If an agreement be fair and reasonable at the time of its commencement, any subsequent increase or depreciation of value will not be a ground to impeach the transaction or resist a specific performance of the agreement, provided the parties acted with full knowledge of the nature of the property and its possible liability to fluctuate in value (j).

But a bill for the specific performance of an agreement to refer matters to arbitration will not lie, if the court be not part of the agreement, it cannot give the arbitrators authority to examine upon oath. Moreover, neither a court of law nor equity will enforce an agreement which might have the effect of ousting them of their jurisdiction (k).

If there have been very gross laches in the parties entitled to a specific performance of an agreement, or, in other words, where they have for a long time slept upon their rights, a specific performance has been refused; but what length of time must necessarily expire before the contract shall be dissolved seems to depend much upon the nature of the agreement, and the circumstances which attend it. Thus, where there is a contract for the sale of a reversion, and part of the terms is that the money shall be paid at a fixed time,—if it be not so paid, by default of the purchaser, the vendor is discharged from his contract; for no man who is not in distressed circumstances would sell a reversion; and it would frustrate the very object he had in view if he were entitled only to interest on the purchase money during the delay (1).

In general, if the vendee do not pay the purchase money

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

(k) Kell v. Hollister, 2 Bos. & P. 131. Street v. Rigby, 6 Ves, 818. Agar v. Macklew, 2 S. & S. 418.

(1) Newman v. Rogers, 4 Bro. C. C. 391.

at the time fixed, he will be chargeable with interest thereon at four (m) and sometimes even five per cent (n), and will be bound to endure any losses the estate may sustain, but will be entitled to any profit which may accrue in the meantime.

Where interest is recovered at law it is always at the rate of £5 per cent., but in a court of Equity £4 per cent. is the usual interest allowed (0).

2. The parties must be able and willing to contract; there fore, an agreement by a feme covert, for the sale of her estate, cannot be enforced either at law or in equity, unless the estate be settled to her separate use, so as to empower her to dispose of it as if she was sole,-and no agreement entered into by her husband for his wife, in respect of her property, will be binding on her (p), unless he first gain her consent.

An agreement by a lunatic cannot be carried into execution, but the subsequent change of the mental condition of a person who has entered into an agreement, by becoming lunatic, will not affect the rights of the parties (q).

To enforce the specific performance of agreements the remedy must be mutual; therefore, if an infant enter into a contract for the sale or purchase of an estate, he cannot enforce it in equity, for the remedy is not mutual (r).

Neither will the court decree a specific performance of a contract made when one of the parties was in a state of intoxication, and it makes no difference that the party was not inveigled into drink by the plaintiff (s).

(m) Child v. Lord Abingdon, 1 Ves. J. 94.

(n) Waldron v. Forrester, Excheq. 30 June, 1807.

(0) Sug. V. & P. 506, 7 ed. and the cases cited in the margin.

(s) 1 Mad. V. 1. 303, and see Malins v. Freeman, 2 Keen, 34.

3. The agreement must be certain and fair, otherwise the court cannot decree a specific performance. Thus, where a tenant in tail, with a power to make a jointure of lands situate in the several counties of A. B. and C., in consideration of marriage and a portion which he received with his wife, covenanted by articles before marriage to settle a jointure, but without saying out of what lands in particular, and died before any settlement was made, the wife having also died, her executrix filed her bill for an account of the profits of the lands articled to be settled, the bill was dismissed (†).

The agreement must also be fair; that is, the consideration must not be inadequate or unreasonable,—for a specific performance of a contract will not be decreed if the party against whom it is sought to be enforced can show that the price was very unfair, or unconscionable (u); but any casual accident happening to the property subsequent to the agreement will not form a ground of objection to the specific performance, unless, by means of such accident, the property has become so changed that it cannot be enjoyed in manner prescribed by the agreement itself (v).

(t) Elliot v. Hele, 1 Vern. 406.

(u) Barnardiston v. Lingood, Barn. 341. S. C.; Collet v. Woolaston, 3 Bro. C. C. 228; Vin. Abr. tit. "Contract and Agreement," (P.) Ca. 10. & 12.

(v) City of London v. Mitford, 14 Ves. 41.

CHAPTER VI.

TRUSTS.

PERHAPS there is not any part of the Chancellor's jurisdiction in which he is called upon to exercise a more exclusive and extensive authority, than in matters of trust; and notwithstanding the doctrine of trusts, which are said to be creatures of equity, was unknown to the common law, yet they have been gradually settled and moulded into a certain system, and are governed by nearly the same rules as are applicable to an estate at common law (a).

A trust bears almost an exact resemblance to what a use was before the statute (both arising out of the same court), with this exception,-the uses regarded land only; and it was held that nothing could be granted to a use, whereof the use is inseparable from the possession, quæ usu consumuntur," or whereof seisin could not be instantly given, and therefore could not be granted of personalty, such as terms of years, or other chattel interests, whereof the termor is not seised, but only possessed; but trusts may be created either of real or personsl estates.

As uses paved the way for trusts, it may not be unnecessary

(a) 2 P. Wms. 645, 668, 669.

to trace in a few words the progress of both one and the other. Uses and trusts then, derived their origin from the same source, i. e., the fidei commissum of the civil law, introduced by Augustus, which was the grant of an inheritance to one in trust, that he should convey it, or dispose of the profits at the will of another. This created a right in the party, at whose disposition the estate was held in confidence, called the jus fiduciarium, which might be enforced by the prætor especially appointed for that purpose, styled the prætor fidei commissarius (b).

This fiduciary doctrine from the Roman law was, we are told, first introduced into England by the foreign ecclesiastics, who, being keen adepts in evading the various statutes enacted from time to time for the purpose of stemming their successful encroachments upon the fair territories of this island; and being at the same time well versed in all the subtle refinements of the civil and canon laws, applied the Roman doctrine of the fidei-commissum to evade the statutes of mortmain, by obtaining grants of land, not to their religious houses directly, but to the use of such houses, which the Chancellors, who were in those days of the clerical order, held to be fidei commissa (c), and binding on the conscience of the nominal feoffee to account to his cestui que use for the profits of the estate. This doctrine was introduced about the latter end of the reign of Edward the third. In succeeding reigns the legislature was employed in framing statutes and passing laws to remedy the inconveniences which were every where felt; the provisions of which all tended to consider the cestui que use as real owner of the estate, and allowed actions in respect

(b) Inst. Lib. 2 T. 23.

(c) Bl. B. 2. 328; Doc. & Stud. C. 22.