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by the will, the costs are to come out of the general 1802. fund. (c)



PEARSON, Reg. Lib. xlviii. fol. 402.“ The decree as to the point in


OTHERS. “ this case merely directed an account of testators debts, “ funeral expenses and legacies, and that his personal estate “ should be applied in payment of his funeral expenses “ and debts, in a due course of administration, and then in “ payment of his legacies.'

(c) Folliffe v. East, 3 Bro. Ch. C. 25. Studholme v. Hodgson, 3 P. Wms. 303, acc.


Dec. 7, 8. THE bill in this case prayed a specific performance of Where nothing an agreement to execute a lease of the lands of New- has been done

under an agreetown and the other premises hereafter mentioned in the ment, the court

ought not to Queen's County for three lives, with a clause of perpetual decree a specirenewal.

fic performance except when

the right to The bill stated that Edward Butler being seized of the mutual.

compel it is lands in question by virtue of a lease for lives with clause of perpetual renewal, did on the 24th and 25th of September, 1790, by deeds of lease and release, made subsequent to his marriage, convey the said lands to trustees, to the use of himself for life, and after his death, subject to a jointure to his wife, to the defendant Edmund Butler the first son of the said marriage his heirs and assigns for ever. On the 24th of April 1794, Edmund Butler, previous to his then intended marriage with F. Madden, entered into a settlement by deeds of lease and release to which his father and the trustees in the former settlement were parties,

1802. whereby the lands which were the subject of the bill were LAWRENSON

conveyed to trustees, in trust to permit and suffer the said

Edmund and his assigns to receive the rents and profits of BUTLER.

the same during his natural life, with remainder to the issue male of the marriage, with the ultimate reversion to Edmund with a proviso that it might and should be lawful for the said Edmund from time to time during his life to make leases of the said premises for three lives or thirty one years, and by and with the consent of the trustees under their hands and seals to make leases for any term of years or lives with or without covenant for perpetual renewal, so that there should be reserved upon every such lease the best and most improved rent that could reasonably be had, without fine or other compensation.

The marriage took effect, and Edmund Butler being seized of the lands in question, in March 1800, entered into a treaty with the plaintiff for a lease of the house and demesne of Newtown. The plaintiff agreed to take the same at 1l. 12s. per acre, (which the bill charged to be the full improved rent) on a lease for lives renewable for ever, which the defendant, Butler, represented he had a power of making with the consent of the trustees under his marriage settlement. Accordingly, on the 29th of March 1800, a memorandum in writing was signed by the parties to the following effect : “ That said Edmund did for him"self and his heirs, set and to farm, let to plaintiff and “ his heirs the house and demesne of Newtown, and also, * eighteen acres on the north side of Ballybooden road,

at the yearly rent of 1l. 12s. per acre for three lives, " with perpetual renewal, paying 25l. as a fine for s each renewal, and that plaintiff did agree to take the

trees on the said lands, and all or such of the said Ed

mund's stock or furniture at a valuation as he should “think proper to dispose of; and it was also agreed, that

plaintiff should take twenty-two acres, called the Mill.

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Scrub, at the same rent.” And to this memorandum 1802. these words were added “ Ralph Lawrenson (the plaintiff) LAWRENSON “ doth agree to pay double the valuation of trees, furniture, « and stock.”

BUTLER And there was ar. indorsement on it to this effect: “ That Ralph Lawrenson was to pay a further sum “ of 100l. to William Ryan one of Butler's creditors.” It was further charged that defendant had promised to procure the consent of the trustees to execute the lease but had not done so, and now refused to execute it himself.

On the part of the defendant it appeared that he was involved in debt and desirous to raise money, and had with this view entered into the treaty with the plaintiff, but that having remarked to him the obstacle arising from his being precluded by his marriage settlement from taking a fine, it was suggested by the plaintiff that that obstacle could be surmounted by plaintiff's paying to him double the valuation of the trees, &c. and that such double valuation would not be considered as a fine; and that under that impression he signed the memorandum : that the memorandum when signed was delivered to plaintiff's friend Mr. Edward Lawrenson (the only other person who had been present at the transaction) with an injunction not to shew it or disclose its contents to defendant's father. It was also proved on the part of the defendant that the nature of the settlement was mentioned to plaintiff at the time of the transaction, and a copy of it delivered to Mr. Edward Luwrenson. The trustees refused to consent to defendant's making a lease pursuant to the agreement, and defendant denied that he had promised to procure their assent, but stated by his answer, that having repented his indiscretion, he went on the day next but one after the agreement was executed to the house of plaintiff's friend Mr. Edward Lawrenson, and told him he would not abide by the agreement. As




to the fact, whether the rent agreed on by the memorandum was the best improved rent, there was evidence on both sides.

Upon the opening of the case by Mr. Saurin for the plaintiff, a difficulty being suggested whether it was possible for him to obtain a lease according to the terms of the agreement for want of, the consent of the trustees.

Mr. Saurin offered to take a lease with a proviso that it should be void as against issue male, and contended that the defendant should at least be obliged to execute such a lease ; but the offer was rejected by the defendant's counsel.

Mr. Saurin and Mr. Burne for the plaintiff. There are two questions in the case ; first, whether if the settlement were out of the way, the court would decree a specific execution ? and secondly, what difference the settlement makes in the case ? 1. The general rule is, that wherever the remedy at law cannot be complete, equity will give a specific execution, even in cases where no action at law can be maintained. Cannel v. Buckle, 2 P. Wms. 244. Now, though the vendor might have complete remedy in the shape of damages, for the breach of contract by the vendee, inasmuch as the consideration to him was money, and one sum of money is as good as another) yet the vendee cannot have compensation made to him, in damages, for the loss of his bargain. Then the only grounds on which the relief sought by the plaintiff can be denied, are fraud, circumvention, or some undue practices on the part of the plaintiff ; but there is no circumstance of fraud in the case ; the concealment of the transaction from the defendant's father was not the act of the plaintiff, but the suggestion of the defendant himself; there is evidence that the rent was a fair one ; at least certainly between the

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rent and the fine the full value of the lands was to be given. 1802. And even if it were otherwise, mere inadequacy of price LAWRENSON (if not excessive) is no ground to impeach an agreement,

BUTLER. unless there be some concealment of the true value from the party. Then, 2dly. What difference does the settlement make in the case ? Certainly, it puts it out of the defendant's power to give a valid lease to the extent of his agreement, without the consent of the trustees: but that is an injury sustained by the plaintiff, and of which it is not competent for the defendant to avail himself, and if the plaintiff does notwithstanding make his election to abide by the agreement, the defendant ought not to be allowed to say that, because he cannot grant the lease agreed upon, he will not grant any lease whatever. Admitting that the agreement was executed under a mistake, that mistake has not been at all injurious to the defendant, but only to the plaintiff, and when he calls on the defendant to relieve him from the consequences of the mistake as far as the law will allow, the defendant cannot resist him.

Mr. O'Grady for the defendant. If a lease were to be executed pursuant to this agreement, it would be quite contrary to the leasing power in the settlement, and equity will not decree a specific performance of such an agreement. Crawford v. Oliver, Ridgeway's Cases in Parliament, (Ireland) 315; Stratford v. Lord Aldborough, ibid. 281. In order to render an agreement of this kind binding in equity, there must be a mutuality, that is to say, each party must have an equal right and power to compel a performance ; but there was no such mutuality in this case ; for supposing that the agreement had been more beneficial to the defendant than to the plaintiff, and that he had filed a bill to enforce it, he could not have succeeded without making out a good title in himself to execute the lease, which he could not have done, by reason of the restriction in the settlement, of which VOL. I



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