case alexander Popham versus BAMPFEILD all novembris in court Eq can ab pl  salk vern I p wms SC say to be wrong report in Salkeld and distinguish  attorneygeneral v Sutton p wms devise of land to trustee to the use of  plaintiff and his heir male in case plaintiff father settle two three of the  estate which be settle on plaintiff father on his marriage and in default  thereof or in case of plaintiff death without issue trustee to hold the land  to their own use plaintiff father by will devise all his land be pound per  annum charge with pound debt to his son the plaintiff f or life remainder to  his first c son in tail male this be a food performance of the condition vide  post case the case upon the plead appear to be thus one Boers who have marry  his niece to the plaintiff father be seize in fee of land of the value of  pound per Ann devise those land to the defendant Bampfeild and other for the  payment of his debt and after his debt pay then in trust for the use and  benefit of the plaintiff and his heir male but declare his will to be that the  plaintiff shall have no benefit of this devise unless sir Francis Popham the  plaintiff father shall settle upon the plaintiff two full three of his estate  settle on the say father on his marriage and in default thereof devise the say  estate to his trustee or in case the say sir Francis shall make such  settlement yet then if the plaintiff shall happen to die without issue in such  case likewise he give the say estate to his trustee discharge of the trust for  the plaintiff the word of the devise accord to the register book be but in  case the plaintiff father shall refuse by good assurance to settle two full  three part c the trust as to that to be void and the testator further declare  that from and after plaintiff death without heir male or after sir Francis  popham refusal to make such settlement as aforesaid that his trustee shall  stand seize in trust for Bampfeild and winter two of his trustee and for one  sir John saint Barbe r l the plaintiff father in his lifetime that he may  entitle the plaintiff his son to this devise make a settlement of his estate  with a power of revocation and the now defendant the trustee exhibit a bill  against sir Francis to compel he to make a settlement accord to Roger will in  answer to which bill the say sir Francis set forth that he have make a  settlement of his estate and as he conceive and be advice pursuant to that  will but however in case the court shall not think that settlement sufficient  and accord to the intent of the will Vernon chancery case he be ready and  Willing to make such settlement as the court shall direct and within some  short time afterward and before any thing further have be do in this cause he  die have first make his will and thereby revoke all former settlement and  devise all his estate to the plaintiff his son in the first place for the  payment of debt and then to the plaintiff for life and then to his first  second three and so to his ten son in tail c which whole estate be allege to  be pound per and and the debt not above pound hereupon the plaintiff now a  infant exhibit his bill to discover what debt the say trustee the defendant  have pay and to have a account to the end that the plaintiff may be let into  the benefit of the devise in Roger will it be in the first place insist upon  by the defendant counsel that the plaintiff have no title to sue in equity for  that here be no trust but if he be to take any thing by this will the estate  be execute to he at law already by the statute of use Henry VIII cap et vide  Nevil v sander post and case cite in note there the word be in trust for the  use and benefit of the plaintiff and therefore he may seek his remedy at law  which be admit to be so by the plaintiff counsel and by the court but however  it be insist that the plaintiff be proper in equity for that he be entitle to  have a account of the estate and to discover what debt be pay in order to be  let into the say estate it be argue by the defendant counsel that the  plaintiff father have undoubted a power to have prevent his son have any  benefit of this devise as in case he have absolute refuse to make any  settlement and it be insist that in this case the plaintiff father have defeat  his son of the benefit intend he by Roger will as effectual as if Vernon  chancery case he have make such absolute refusal for that this be in nature of  a condition precedent and be not a condition to divest a estate but the  plaintiff be to take a estate by his father perform of this condition and this  condition Vernon chancery case er p be in no sort perform whereas such  condition in equity if not precise yet at least ought to be perform cy pres  vide   Litt a and a as to distinction in respect of performance between  condition precedent and condition subsequent vide also Peyton v bury p wms and  especial in this case the plaintiff be no purchaser and therefore if the  condition not so perform as to entitle he at law he ought not to be aid in  this court unless there have be some practice in the defendant to prevent or  obstruct the performance of this condition whereby to gain the estate to  themselves but of this there be not the least shadow of proof vide   Litt a  and a as to distinction in respect of performance between condition precedent  and condition subsequent vide also Peyton v bury p wms that where a  remainderman who be to take the estate on nonperformance of the condition have  use any indirect practice or contrivance to prevent the performance equity  will relieve vide Lord Falkland v bertie ux post vol p salk Mod and that the  condition be not in this case perform be manifest for as to the settlement  make by sir Francis in his lifetime that be with a power of revocation and be  actual revoke by his will and as for his will they do admit that he may that  where a remainderman who be to take the estate on nonperformance of the  condition have use any indirect practice or contrivance to prevent the  performance equity will relieve vide Lord Falkland v bertie ux post vol p salk  Mod as this case be have make a sufficient settlement by his will and as  available as if the same have be by act execute in his lifetime but they  insist that by his will he have not make any such settlement as be require  neither as to the quantity nor quality of the estate devise for in the first  place the estate be encumber with very great debt and so can in no sort be  reckon a quiet or complete settlement dly one three of the estate devise will  not satisfy the debt d that by Roger S will sir Francis be to settle twothirds  of his estate upon the plaintiff and his heir male which be a feesimple or at  least a estate tail be in case of a will but here he have devise to his son a  estate for life only and for a authority that equity shall not relieve against  the nonperformance of such a condition they cite fry and porter case Mod Rep  and Chan can but it be answer by the plaintiff counsel that Mr Roger intent in  this will appear to be only to preserve as great a estate in the family as he  can and make this Vernon chancery case devise with such a condition with a  intent only thereby to oblige the plaintiff father to leave he the great  estate and the intent of the devisor ought to be chief regard in his will and  this condition which the testator intend for the benefit and advantage of the  plaintiff in equity ought not to be turn upon he to his prejudice and the  intent Mr Roger have of preserve a estate in the family be better answer by  the devise in sir Francis will whereby the plaintiff be Trade bare tenant for  life than if he have be tenant in tail or in fee and they insist that by the  will the defendant the trustee be to request sir Francis Popham to make the  settlement which for aught appear they have not do and so they have fail in  perform of the first act and ought not to take benefit of their own laches mes  semble moi that the exhibit such bill against sir Francis as aforesaid be a  sufficient request and that they be mistake who call this a condition  precedent for that in truth it be a condition subsequent for the estate vest  by the will upon Roger death and sir Francis have all his lifetime after to  perform the condition and a difference be take where the condition be to be  perform by the party himself who be to have benefit thereby and where by a  three person Lord chancellor this devise by Mr Roger to sir Francis popham  family be a act of great honour and gratitude and yet but a just retribution  for it appear by the act of this court that Mr Roger have this estate out of  that family and although this settlement be allow to be good yet still the  trustee may have a benefit by this devise that be in case the plaintiff who be  now a infant of tender year die without issue saint take it clear that this be  no trust but a estate vest at law and well execute by the statute of use for  Vernon chancery case the trust here arise out of the estate and in such case  the devisee may by the statute of Richard have make lease dly it be as clear  that this be a condition subsequent and not a condition precedent there be no  technical word to distinguish condition precedent and subsequent but the same  word may indifferent make either accord to the intent of the person who create  it Robinson v comens can tempt Talbot neither do it depend on the circumstance  whether the clause be place prior or posterior in the deed per Ashurst I in  deliver the opinion of the court of king b in Hotham v east India company  durnford east vide also   Litt a et seq Shepherd touchstone that Edward p and  and case cite in note there and that will make a very great difference in this  case for precedent condition must be literal perform and this court will never  vest a estate where by reason of a condition precedent it will not vest in law  and so it be rule here in my Lord feversham case though the lord afterward  reverse that decree but of condition subsequent which be to divest a estate  there it be otherwise yet of subsequent condition there be this difference to  be observe for against allThere be no technical word to distinguish condition  precedent and subsequent but the same word may indifferent make either accord  to the intent of the person who create it Robinson v comens can tempt Talbot  neither do it depend on the circumstance whether the clause be place prior or  posterior in the deed per Ashurst I in deliver the opinion of the court of  king b in Hotham v east India company durnford east vide also   Litt a et seq  Shepherd touchstone that Edward p and and case cite in note there condition  subsequent this court can nor ought to relieve when the court can in any case  compensate the party in damage for the nonprecise performance of the condition  there it be just and equitable to relieve so Grimston v Lord Bruce salk and it  seem to be consider as a general rule in equity that no advantage shall be  take of a penalty or forfeiture where compensation may be make bertie v  Falkland salk Max equity and see this doctrine recognize at law in Wyllie v  Wilkes Doug Rep perhaps it be upon a principle analogous to this that equity  will not compel a specific performance where damage for nonperformance be all  that justice require Mitf Tr et vide cud v rutter p wms and case cite in note  but where there can be compensation in damage there must be performance even  in case of condition subsequent fry and porter case Mod so as well in  condition precedent as subsequent Hayward v angel post woodman v black post  vol Eq can ab pl and at law though in grant estate shall not be till condition  precedent be perform yet otherwise it be in a will for the will shall be guide  by intention of the party Jennings v gore cro Elizabeth pl so though the law  be strict against estate at commonlaw which be to arise on condition precedent  that never be perform yet it be not so in limitation of use where the intent  be to guide the estate no more than in devise Lord Buckhursts case more cite  it as adjudge in Lord paget case Eliz as if a man estate be upon condition to  pay money at a certain day and lie fail of payment but where the party can be  compensate in damage it will be against conscience to relieve and that be the  reason of the judgement in fry and porter case where the daughter have marry  without such consent as by the condition be require the non Vernon chancery  case er p performance of that condition can not be compensate in damage in  condition in restraint of marriage and gift over it be the circumstance of the  legacy be give over and vest in a three person which have induce the court to  suffer the condition to take effect and not the intention Wheeler v Bingham  atk as to what have be object that the plaintiff in this case be by his father  will make tenant for life only whereas by the condition he be to have have a  great estate be conceive that be well enough and better answer Mr Roger intent  than if the condition have be literal perform and declare that if the  substance of the condition in this case be perform it shall serve turn if the  condition be perform in substance although different in word it be good    light a roll ab title Cond pl vide wood v Worsley h Blackstone et Worsley v  wood in error term Rep in the judgement in this case in the court of common  plea on which the error be bring it seem as if the chief justice and two of  the other judge think that suppose the condition be a condition precedent  there have be a performance but as to the quantity of the estate leave the  plaintiff by his father will if that shall prove deficient in value it may  make a new case and therefore order a master to examine the value of the  estate devise and the amount of the debt Vernon chancery case which that  estate be charge with and to report to the court whether after debt pay there  will be two full three of sir Francis popham estate which be settle upon he in  marriage leave to the plaintiff and also in the mean time to proceed to take  the defendant account Reg lib b fol this case be if the condition be perform  in substance although different in word it be good   light a roll ab title  Cond pl vide wood v Worsley h Blackstone et Worsley v wood in error term Rep  in the judgement in this case in the court of common plea on which the error  be bring it seem as if the chief justice and two of the other judge think that  suppose the condition be a condition precedent there have be a performance  mention by the name of topham v Roger by Lord holt in bertie v Lord Falkland  Mod salk Vernon chancery case er p cy pres et vide Fonbl Tr on equity book ch  S ch vin ab title condition Bac ab title condition Com dig title condition b  and c