(m) Drewe v. Corp, 9 Ves. 368 ; Halsey 9. Grant, 13 Ves 77, 79. Binks v Lord Rokeby, 2 Swanst. 222. An agreement to convey ten lots in not satisfied by a tender of eight lots and the undivided half of four other lots. Roy v. Willink, 4 Sandf. Ch. 525.

(n) A purchaser who has contracted for an assignment of a term of ninety-nine years, will not be compelled to accept an underlease for a term of the same length, wanting three days, although the contract of sale contains a provision that any error or misstatement of the property or term of years, shall not vitiate the sale, but shall be the subject of compensation, and although compensation be tendered; for no underlease is substantially the same thing as an assignment of the original term. Madeley v Booth, 2 De G. & S. 718; 1 Sugd. V. & P ch. 7, § l,p. 10.

(o) A party who has agreed to purchase a freehold estate, cannot be compelled to take a leasehold, no matter how long the term. Drewe v. Corp. 9 Ves. 368. And see Wright v. Howard, 1 Sim. & S. 190.

(p) Collier v. Jenkins, Younge, 295

(q) Wood v. Griffith, 1 Swanst. 54; Mortlock v. Buller, 10 Ves. 315; Mestaer v. Gillespie, U Ves 640; Paton v. Rogers, 1 Ves. & B. 352 , Nelthorpe v. Hol gate, 1 Collyer, 203; Milligan c Cooke, 16 Ves. 1: Seaman v. Vawdrey, 16 Ves. 390, Painter v. Newby, 11 Hare, 26, nom. Newby 0. Paynter, 19 Engl. L. & Eq. 68, before Wood, V. C, affirmed 22 Law J. (n. s) Ch. 85; Burrow e. Scammell, 19 Ch. D. 175; Swain v. Burnett, 76 Cal. 299; Boat-wick v. Peach, 103 N. Y. 414; Roberts v. Lovejoy, 60 Tex. 253. See also Waters v Travis, 9 Johns. 450. See Ketchum v. Stout, 20 Ohio, 453. But the court may-refuse a cy ores execution of an agreement to sell land in which the vendor has a limited estate only, if the third parties interested in the property would be prejudiced thereby. Thomas c. Dering. 1 keen, 729.

(r) See the cases in the preceding note. Also ante, p. * 382, n. 1.

1 Nor a lease instead of an estate in fee, as intended. Ellicott 0. White, 43 Md. 145. - K.

obvious. In the first case the plaintiff stands ready to perform his part of the contract. In the other, the plaintiff says he cannot perform his part, but demands performance from the defendant. In most cases the defendant stands in a more favorable position before the court than a plaintiff who seeks for specific performance. That is, it requires a less weight of objection to induce a court to withhold this relief, than of favorable circumstance or reason to persuade them to grant it.

As there is a rule at law for the construction of a contract, that it should be established rather than defeated, so equity, it is said, desires not forfeiture, but compensation, (s) And therefore, specific performance will be decreed, either with a modification of the bargain, or with compensation, provided neither be carried so far as to substitute a new contract for that which the parties made, (t)

Upon still another question the authorities, as yet, are much divided. It is, whether a court of equity will hold jurisdiction of a case, merely to make compensation to an injured party, where it cannot give specific performance. In other words, Is compensation within the power of equity only as an incident of, or as collateral to, a specific performance which would otherwise be inequitable; or can it decree compensation by itself, without reference to specific performance? It is not to be denied, that high authorities, including the Supreme Court of the United States, appear to hold that a court of equity has this distinct and independent power of compensation (u) But it seems to * us rather a departure from the beat-established principles of equity jurisprudence; and, indeed, to tend to the confusion of the distinction between equity and law, by taking away all limit to equity. We are unable to see how compensation in such a case is anything else than damages.(v) Judge Story, who admits that the cases of this kind have been pushed quite too far, supposes one, in illustration of a class, in which, as he says, "there seems to be a just foundation for the exercise of equity jurisdiction." (w) It is where one who has orally bargained away an estate, conveyed a part, and sold the rest for value to a buyer ignorant of the first sale, and innocent of the fraud, and the first buyer cannot have specific conveyance, but prays for compensation. Here, however, if the circumstances of the case permitted an action for the fraud, damages would be recoverable at law, and would be measured there as in equity. And if the action could not be sustained, or damages could not be recovered, it would present the simple case of a party who has wholly neglected the wise and plain and well-known rules of law for the prevention of fraud, and finds that the law gives him no indemnification for the loss he has brought upon himself. Nor do we see any distinct principle which would justify equity relief in such a case, which would not give it as well in every case where the buyer of a house was cheated; cases in which, says Lord Chief Baron Alexander, "no one, I apprehend, ever thought of filing a bill in equity." (x)

(s) Page v. Broom, 4 Ross. 6, 2 Russ. & M. 214.

(t) Halsey v. Grant, 13 Ves. 77, 79: King r. Bardeaa, 6 Johns. Ch. 38; Moras v. Elmendorf, 11 Paige, 277.

(u) Pratt v. Law, 9 Craoch. 494; Phillips v. Thompson, 1 Johns. Ch. 131 (com-pare Woodcock v. Bennet, 1 Cowen, 711, 756); Payne v. Graves, 5 Leigh, 561; Johnston v,. Glancy, 4 Black! 94; Rockwell v. Lawrence, 2 Halst. Ch. 190; Aday v. Echols, 18 Ala. 353, 2 Story, Eq. Jnr. f 798, and note 1. But compare id. § 799 See Bowie v. Stonestreet, 6 Md. 418.

(v) And see Todd v. Gee, 17 Ves. 278; Gwillim v. Stone, 14 Ves. 128; Clinan v. Cooke, 1 Sch & L 225; New ham v. May, 13 Price, 749; Clarke v. Rochester, && Railroad Co. 18 Barb. 356.

(w) 2 Story, Eq. Jnr. § 798. See Mons v. Elmendorf, 11 Paige, 277, 288.