(j) Brinkley v. Hann, (1843) Dru. 175 ; see Gumming v. Ince, (1847) 12 Jur. 331 ; 17 L. J. Q. B. 105 ; Petre v. Espinasse, (1833) 2 M. & K. 496 ; Selby v. Jackson, (1843) 6 Bear. 192.

(k) Sup. Ch. III. ; Ch. IV. ; and p. 149 et scq.

(I) Sup. p. 806 et seq.

(m) Turner v. Green, 1895, 2 Ch. 205; 64 L. J. Ch. 539.

(n) Bellamy v. Sabine, (1847) 2 Ph. 425; 17 L. J. Ch. 105.

(o) Union Bank v. Munster, (1887) 37 Ch. D. 51, 54; 57 L. J. Ch. 124.

"Want of mutuality may be either legal or equitable. "Want of mutuality at law occurs where in a bilateral contract a promise which is the consideration for another promise,- e.g., to pay the purchase-money in consideration of a promise to convey the estate, - is not enforceable. Want of mutuality in equity is a ground of defence not infrequently relied on ; but in respect of which the rules of the Court are somewhat undefined. The principle would seem to be an illustration of the judicial discretion to which the remedies of a Court of Equity are subject: viz., that a defendant ought not to be harassed with litigation founded on an agreement which he himself could not enforce against the plaintiff. Thus, where a contract by a corporation to grant a lease was invalid, as not being under the seal of the corporation, and therefore not enforceable by the corporation, specific performance of the contract at its instance was refused (p). Apparently, by reason of want of mutuality at law, it was once doubted whether a plaintiff could enforce a written agreement which he himself had not signed : but it was ultimately decided (q) that he could, inasmuch as filing the bill bound him to the contract, and from that time there was mutuality (r). So, as we have seen, the personal incapacity of the plaintiff to enter into the contract, is generally, if subsisting at the time of the writ being issued, a good defence (s). But the fact of one party to a contract having so acted as to preclude his right (t), or even having by accident lost his right (u) to enforce it in Equity, will not affect the remedies of the other party; and it not infrequently happens, in other cases, that plaintiffs obtain decrees for spacific performance of agreements, the specific performance of which could not have been enforced against them as defendants (a?).

Want of mutuality of remedy, whether a defence, when founded on alleged want of title in plaintiff vendor.

(p) Oxford Corp. v. Crow, 1893, 3 Ch. 535.

(q) Butler v. Powis, (1845) 2 Coll. at p. 161.

(r) Martin v. Mitchell, (1820) 2 J. & W. at p. 427 ; Coleman v. Upcot, (1705) 5 Vin. Ahr. 528; Dowell v. Dew, (1842) 1 Y. & C. C. C. 345; Butler v.Powis, sup.; see London § Birmingham It. Co. v. Winter, (1840)

Cr. & Ph. 57 ; but see also Gaskarth V. Lord Lowther, (1806) 12 Ves. 107.

(s) See sup. p. 1053.

(t) S. E. R. Co. v. Knott, (1852) 10 Ha. 122; E. C. R. Co. v.Hawkes, (1852) 1 D. M. & G. at p. 758 ; (1855) 5 H. L. C. 331 ; 22 L. J. Ch. 77.

(u) Hawkes v. E. C. R. Co., (1852) 1 D. M. & G. at p. 758.

The defence of non-mutuality in Equity has generally been grounded upon the alleged entire, or partial, want of title in a plaintiff vendor. Thus, it has been held, that A. cannot enforce, against C.r an agreement for the sale to him of B.'s estate ; even although B. be willing to confirm the contract (y): and it has been considered doubtful by Lord St. Leonards (z) "whether there is any case in which a man, knowing himself not to have any title, has been allowed to enforce the contract by procuring a title before the report" (a).

The doctrine appears, in fact, to be an illustration of the general rule that where no legal invalidity affects the contract, the enforcement of it in Equity is a matter of judicial discretion (b). Consistently with this, in several cases, specific performance has been decreed at the suit of vendors who, contracting under the bond fide belief that they could make a good title, afterwards, on discovering that they had no title, either legal or equitable, procured the concurrence of the necessary parties (c) : as, also, at the suit of vendors who had contracted to sell the fee simple, knowing that they had only a life estate or other limited interest, and relying on being able to procure the concurrence of the parties entitled in remainder (d). So, it would seem that a vendor who has contracted to sell in the bond fide belief that he is absolutely entitled, when in fact he has only a partial interest, may enforce the contract, if he is able to complete the title by the date fixed for completion (e). But it must be observed that in none of these cases did the purchaser, on discovering the defect, repudiate the contract. A vendor cannot make a purchaser accept a conveyance from a third party instead of himself, as that would be substituting one contract for another (/).

The jurisdiction is discretionary with the Court.

(x) See Martin v. Pyeroft, (1852) 2 D. M. & G. 785, 795; 22 L. J. Ch. 94.

(y) Noel v. Hoy, (1820) cited Sug. 14th ed. 217 ; and see Tendring v. London, (1731) 2 Eq. Ca. Ab. 680 ; Hamilton v. Grant, (1815) 3 Dow, 33, 42.

(z) Sug. 12th ed. 241, n. (p).

(a) See on this point, Bryan v. Lewis, (1826) Ry. & Mo. 386 (a case at Law on a sale of goods); Lechmere v. Brasier, (1821) 2 J. & W. 289 ; Dalby v. Pullen, (1829) 3 Si. 29; (1830) 1 R. & M. 296; and the cases cited inf. n. (g), next page.

{b) Salisbury v. Hatcher, (1842) 2 Y. & C. C. C. at p. 64 ; and see remarks of Lord Eldon in White v. Damon, (1802) 7 Ves. 35, as to how the discretion is to be exercised.

(c) Hoggart v. Scott, (1830) 1 R. & M. 293, a case of mistake as to the proper parties to exercise a power of sale under a will; Chamberlain v. Lee, (1840) 10 Si. 444, where the frontage of the estate was found to belong to a third person; Eyston v. Simmonds, (1842) 1 Y. & C. C. C. 608; 11 L. J. N. S. Ch. 376, where the estate had escheated to the Crown; and see Williams v. Carter, (1821) Sug. 14th ed. 217 ; Graham v. Oliver, (1840) 3 Beav. 124 ; E. C. B. Co. v. Hawkes, (1855) 5 H. L. C. 331 ; 22 L. J. Ch.