of a Plaintiff, to explain, add to, or vary a written Contract (h), (except in cases of Fraud) (i), it is admissible, on the part of a Defendant to a Bill for a specific performance, to show circumstances, dehors, independent of the Writing, making it inequitable to interpose for the purpose of a specific performance (k).

Where, therefore, on the face of the Agreement, a specific sum was to be given for Timber, but it was shown by parol Evidence that the Defendants were induced to give that sum upon an untrue representation that it was valued by two Timber Merchants, it was not enforced (1). So, where an Agreement was to pay so much Rent, but by the Evidence it appeared the Defendant was induced so to agree because she thought, from the Plaintiff's false representation, it was the rent he paid, a specific performance was refused (m). So, in a case where the Defendant proved that at the time the Agreement was executed there was a parol Agreement by the Plaintiff, upon the faith of which the Defendant executed, which parol Agreement had

(h) Ramsbottom v. Gosden, 1 Ves. & Bea. 165; and see what is said in Butler v. Cooke, 1 Sch. & Lefr. 39; and Meeres v. Ansell, 3 Wils. 275. Penn v. Lord Baltimore, 1 Ves. 451. Baker v. Payne, 1 Ves. 456. Woollam v. Hearn, 7 Ves. 211, 219. Robson v. Collins, 7 Ves. 130. Marquis Townshend v. Stangroom, 6 Ves 328. Rich and Jackson, 4 Bro. C. C. 514. Judgment more fully given in 6 Ves. 336. Coles v. Trecothick, 9 Ves. 246. Winch v. Winchester, 1 Ves. & Bea. 375Clowes and Higginson, 1 Ves. & Bea. 526, 7. Davis v. Symonds, 1 Cox, 403. In Stokes

v. Moore, 1 Cox, 221, the Court appear to have been of opinion, that Parol Evidence is admissible on the part of a Plaintiff in explanation of a written agreement, where such explanation related only to the Repairs of a House; and see Ogilvie v. Foljambe, 3 Meriv,

53.

(i) Baker v. Paine, 1 Ves. 456. Pember v. Mathers, 1 Bro. C.C. 52.

(k) Davis v. Symonds, 1 Cox,

402.

(1) Buxter v. Lister, 3 Atk

383.

(m) Woollam v. Hearn, 7Ves.

219.

been unperformed, a specific performance in favour of the Plaintiff was refused (n).

Where an Agreement has been unfairly obtained, and the Party has been in possession, and made lasting Improvements, he has been allowed for them, on consenting to deliver up the Agreement, and account for the Profits, but not if he goes to Law and fails there (o).

In the case of Articles, if they appear unreasonable, or if even some parts of them appear unreason- · able (p), or founded in fraud, or it would be unjust or unconscionable to give assistance, a Court of Equity will not enforce them (q). So if an Heir sells a Reversion in the Life of his Father at an under value, the Court will not in favour of such a Purchaser decree a specific performance of a Covenant for further Assurance (r).

An Agreement may be resisted on the ground of a parol waver (s), or a waver by acts of the Parties (t), though at common Law, an obligation, or other matter in Writing, could not be discharged by parol (u); but the proof must be very clear (x). If variations in an Agreement by Parol be so acted

(n) Clark v. Grant, 14 Ves. 519.

(0) Savage v. Taylor, For.

234.

(p) See 3 Atk. 190. (q) Young v. Clerk, Preced. Ch. 538.

(r) Johnson v. Nott, 1 Vern. 271.

(s) Goman v. Salisbury, 1 Vern. 240. Price v. Dyer, 17 Ves. 356. Legal and Miller, 2 Ves. 299; and see this case

cited by the Chancellor, 6 Ves. 336, in note. Gibbons v. Caunt, 4 Ves. 848. Sed vide Woollam and Hearne, 7 Ves. 211. Davis v. Symonds, 1 Cox, 407.

(t) Lady Lanesburgh v. Ockshott, 2 June, 1719. Dom. Proc. noticed in Lord Harcourt's MS. Tables.

(u) 19 E. 4. 1 b.

(x) Buckhouse and Crosby, 2 Eq. Abr. 33.

upon that the original Agreement cannot be enforced without injury to one party, that circumstance would be a bar to a specific performance of such original Agreement (y); but variations verbally agreed upon are not sufficient to prevent the execution of a written Agreement, if the situation of the Parties in all other respects remains unaltered (2).

An Agreement, if impeached, must be so at the time of its commencement, nothing subsequent can affect it (a); a failure in a speculation forms no ground to resist a specific performance (b). Where an Estate was sold for a specific Sum and an Annuity during the Life of the Vendor, who died before any thing became due in respect of the Annuity, the Agreement was nevertheless executed (c). It is therefore a general Rule, that where an equitable Title is complete, a legal Conveyance will be decreed, though the property may be much enhanced or depreciated in value (d). There are, however, cases, where, when a specific performance would be attended with great loss and hardship to the Defendant, the Court has not decreed a specific performance, but has directed an Issue to try what damages the Party has sustained by the nonperformance of the Agreement (e). In family arrangements particularly, the Court has held Parties to Agreements which

(y) See the case in 2 Eq. Abr. 48. pl. 16. and in Vin. Abr. Tit. Contract and Agreement, (H.) Ca. 38. and Legal and Miller, 2 Vez. 299.

(z) See Price and Dyer, 17 Ves. 364.

(a) 1 Atk. 404.

(b) Adams against Weare,

1 Bro. C. C. 569; and see Mortimer v. Capper, 1 Bro. C. C. 156.

(c) 1 Bro. 156; and see 2 Bro. 17, 18.

(d) Revell v. Hussey, 2 Ball & Bea. 287.

(e) City of London v. Nash, 3 Atk. 516.

strangers would not have been bound by (f). In general, however, the Court will not hold Parties acting upon their rights, doubts arising as to those rights, to be bound, unless they act with full knowledge of all the doubts and difficulties that arise: but if Parties with full knowledge act upon them, though it turns out that one gains a great advantage, yet if the Agreement was fair and reasonable at the time it will be binding (g). It has been held that the Court will enforce such an Agreement, though it turns out that the Parties acting upon a wrong opinion of Council were mistaken in point of law (h).

No Agreement will be enforced that is illegal (i); if, for instance, it be found in champerty (k), or made with a view to stifle a prosecution for Felony (1). From one case (m) it would seem if a Vendor entitled only under an Agreement sells to another, such Vendee might object to a specific performance, on the ground of the Statute 32 Henry 8, c. 9(n); but the most recent decision on this subject appears to establish the validity of such sub-contract (o). An Agreement in fraud of a Power will not be enforced (p). If a Party were compelled to do an act

(f) Stockley v. Stockley, 18 Ves. 31. Stapilton v. Stapilton, 1 Atk. 1.

(g) Ibid. 10. Cann v. Cann, 1 P. Wms. 727, but see Davy v. Barber, 2 Atk. 491, where it is said, that where any extraordinary advantage happens by an accident, it is in the discretion of the Court to decree a specific performance.

(h) Gibbons v. Caunt, 4 Ves. 849.

(i) Ex parte Dyster, 1 Meriv. 172.

(k) Powel v. Knowler, 2 Atk. 224.

(1) Johnson v. Ogilby, 3 P. Wms. 279.

(m) Thomson v. Thomson, 7 Ves. 473.

(n) Hitchens v. Lander, Coop. 34. In Wall v. Stubbs, 1 Madd, Rep. 80, the point was doubted.

(0) Wood v. Griffith, 1 Swanst. 56, 58.

(p) See Harnett v. Yelding, 2 Sch. & Lefr. 558, 9.

which he is not lawfully authorized to do, he would be exposed to an Action for damages at the Suit of the Person injured by such Action; and therefore if a Bill is filed for a specific performance of an Agreement made by a man who appears to have a bad Title, he is not compellable to execute it, unless the party seeking performance is willing to accept such title, as he can give, and that only in cases where an injury would be sustained by the Plaintiff if he were not to get such an execution of the Agreement as the Defendant could give (p).

So, an Agreement for the Sale of a Ship, was, under the Ship Registry Act, 26 Geo. 3, c. 60, considered as void in Equity as well as at Law, for want of the Certificate of Registry being duly recited in the Memorandum of Sale, although a copy of such Certificate was thereunto annexed; and a Motion founded on such Agreement was refused (q).

A specific performance of an Agreement to sell an Estate in Fee, by one who supposed he was absolute Owner of the Estate, when he was only Tenant for Life, under a Settlement, with a proviso empowering him to purchase an Estate in Fee Simple in Possession, in some convenient place or places in England, of equal or better value, and to settle the same on him in lieu of the settled Estate which was then to be his own, has been refused (r). In no case, does the Court ever do so fruitless a thing as to decree a specific performance of acts impossible to be done. In such case it leaves the party to his remedy at Law (s).

(p) See Harnett v. Yielding, 2 Sch. & Lefr. 554.

(q) Brewster v. Clarke, 2 Meriv. 75.

(r) Howel v. George, 1 Madd. Rep. 1.

(s) Green v. Smith, 1 Atk. 573.