brown case robert Rochfort appellant Francis creswick et Ux  Respondents d may  Mews dig thirteen rockford v creswick where the manner of obtain a agreement  in not strict just and regular a court of equity ought not to decree a  specific performance although the agreement be in part execute viner vol p can  William ridge a alderman of London be seize in fee of certain land in the  county of meath and Wexford in Ireland do by his will in devise the same to  his old son William for life and in case of his death without issue among the  testator six young child Joseph John James Charles mary and Sarah in fee  William the son in make a lease thereof for forty one year to one Robert  Quelsh at the rend of pound per and and in die without issue whereby the land  vest in the say six young child in fee the appellant have purchase the share  and interest of Joseph John James Charles and Sarah in the land and the  respondent Francis creswick have marry mary the other daughter and be thereby  entitle to a six part of the land in her right and sir Richard Holford be a  creditor of creswick and have outlaw he in Ireland in and obtain a custodiam  of his say six part of the land in meath the appellant in agree to take the  same of the say sir Richard Holford at the rend of pound per and the appellant  be thus in possession of the six part of the say land in meath under sir  Richard Holford the respondent Francis in propose to sell his wife interest in  all the land in meath and Wexford to the appellant whereupon certain article  be execute by they date the that of September whereby the respondent Francis  agree that he and the say mary his wife together with one knight his  brotherinlaw and trustee shall on or before the that of march then next by  fine common recovery or such other conveyance as the appellant shall advice  convey to he and his heir all their estate share and demand in and to the say  land discharge from all encumbrance and the respondent and knight be before  the that of November then next to swear what encumbrance affect the say estate  and the respondent Francis do thereby assign and release to the appellant all  rend and arrear of rend and mean rate due before the article and before the  perfection of such conveyance he be to procure a discharge from sir Richard  Holford of all his demand upon the say land and for the appellant better  security from sir Richard debt he be to retain so much of the purchase money  in his hand as shall satisfy sir Richard which be to be allow the appellant in  part of the purchase money and the remainder thereof if any be to be pay as  after mention and by these article the appellant brown be to account with sir  Richard Holford as former videlicet for one half year commence the saint of  may and end the saint of November from which time the respondent Francis be to  indemnify the appellant from any further account with sir Richard and in  consideration of this conveyance the appellant agree to pay pound sterling in  England videlicet pound upon perfection of the article and pound more to John  Scroop esquire as soon as the say John Scroop and the respondent mary shall  notify to the appellant their consent and approbation of the article which sum  of pound be to be for the sole and separate use of the say mary pound more  immediate after perfect the conveyance and the remain pound after sir Richard  Holford shall be satisfy his debt if any remain to be pay to the respondent  Francis on or before the that of December then next although by these article  the appellant make the purchase money but pound and therein blend together the  arrear of rend and the purchase money for the land yet the agreement be make  for two distinct sum videlicet pound for the land and pound for the arrear of  which last sum pound be suppose to have be then brown er p pay videlicet pound  to sir Richard Holford though no more than pound be pay he and pound pay in  London though no more than pound be actual pay and pound more be promise to be  make good after the execution of these article the respondent mary and Mr  knight her trustee signify their consent thereto and that they and the  respondent Francis be ready to perform the same but the appellant do not pay  the say pound till June and then take a note from Mr Scroop whereby he agree  that it shall remain in his hand till the conveyance be execute and in case  they be not perfect within six month that the money shall be repay although  within two or three year afterward all the money except pound be by the  appellant consent at several time pay by Mr Scroop to the respondent wife to  supply her necessity the appellant not take any other step towards perform the  article although the title deed be in his own custody and application be from  time to time make to he for that purpose and the circumstance of the  respondent Francis be thereby render desperate he in may rash make a attempt  on the appellant life by stab he in saint Andrew church for which he be fine  and imprison till the year but during all the time of his imprisonment the  appellant never make any application to have the conveyance perfect but  content himself with the quiet enjoyment of the estate at length in the year  the appellant on term of the respondent oblige himself by a bind in the  penalty of pound to depart the kingdom of Ireland and never to return consent  to his enlargement from prison but never say any thing about proceed in his  purchase as think when he have get the respondent out of the kingdom he shall  rest at quiet in the possession of his estate under the title he then have and  although brown application be afterward make to the appellant to proceed in  his purchase he refuse the same and declare he owe the respondent no money and  will pay no more for he the respondent Francis look upon this conduct as a  waiver of the article do in the name of himself and his wife and in her right  in January exhibit a bill in the court of chancery in Ireland against the  appellant and sir Richard Holford and other for a account of the six part of  the rend and profit of the premise and that the article may be set aside or if  the court shall be of opinion to establish the article that the appellant may  be oblige to perform the same and pay his purchase money with interest to this  bill the appellant answer and plead the respondent outlawry at the suit of  Holford and deny that he come into possession under the article or under the  respondent title but under the custodiam though Holford have no custodiam of  the Wexford estate but this plea be overrule the appellant answer again and  also exhibit a cross bill to have a specific performance of the article on the  saint of June the cause be hear when the Lord chancellor take time to consider  of the matter and have afterward order the cause to be further hear they be  accord hear by his lordship assist by the chief justice of the king bench and  two of the judge of the common plea on the that and that of June the that of  July and the that of November when his lordship with the concurrent opinion of  the judge order and decree that the appellant shall account before a master  for what he do receive or without his own wilful default may have receive out  of the respondent six part of the meath estate from the saint of November but  not before the mesne profit of that estate from the death of William ridge  juia to all saint be release and discharge by the article and that the master  shall ascertain what be due from the respondent to Holford and that the  appellant in the say account shall have credit for such part thereof as he pay  Holford over and above the pound and the pound by the article agree to be pay  so as the respondent shall be ease in those sum but if upon the account it  shall appear that the appellant have pay Holford more money than be due to he  the appellant be to have no credit for such over payment but be leave to  recover the same against Holford as he can such payment be voluntary and  without the consent of the respondent and not compulsory on the part of the  appellant sir Richard Holford be never put into the possession of the  respondent estate by the brown er p custodiam nor any injunction issue thereon  and it be also decree that the appellant shall account with the respondent for  one six part of the rend and profit of the Wexford estate from the time of the  attornment of the tenant to the appellant his lordship declare that the  purchase of the say six part be fraudulent the respondent be then out of  possession and the appellant in possession though concern as counsel brown for  the respondent to recover the possession for they and it be further decree  that so much of the respondent bill as seek to set aside the article whole  shall be dismiss and that the appellant shall be leave to his action of  covenant for the performance of the article and that the appellant cross bill  shall be dismiss with cost and a injunction award to put the respondent  Francis into possession from this decree the plaintiff in the cross cause  appeal insist r Raymond c Phipps that the article ought to have be establish  by the decree in regard they have be in part execute and will have be execute  entire have not the respondent Francis after many year acquiescence refuse to  perform the same although the appellant be always ready on his part that the  appellant cross bill ought not to have be dismiss with cost because the  article be in part establish even by the decree and also because the  respondent do not by their bill absolute pray that the article may be set  aside but pray in the disjunctive only that the appellant shall either account  for the profit of the say six part or pay the purchase money with the interest  thereof accord to the article and which he be ready to do that the respondent  mary in her answer to the cross bill declare her readiness to comply with the  respondent Francis her husband in execute the article and he in his answer say  that until fill his original bill he be always Willing to perform the say  article and therefore the decree ought to have confirm and establish they and  direct a specific execution in regard there be no fraud circumvention or  surprise in obtain they and that at the time of their be execute the rate of  land in Ireland be general at twelve or thirteen year purchase so that the  appellant be to pay a full consideration for the say six part that the  appellant be a entire stranger to the deal between the respondent and sir  Richard Holford and can not know what be due from the respondent to sir  Richard and as sir Richard have a custodiam of the estate the decree ought to  have allow the appellant all he have pay to sir Richard on account of the  respondent debt and have put the respondent and not the appellant upon recover  back such over payment if any from sir Richard Holfords executor it be the  respondent fault that he do not settle the account with sir Richard as by the  article he covenant to do on the other side it be contend t Lutwyche c Talbot  that the appellant by obtain possession of the premise and hold the same in  his own right while he be concern as counsel for the respondent in order to  obtain the possession for he be guilty of great injustice and breach of trust  that the respondent from the difficulty he be under by the appellant keep he  out of possession and refuse to come to a account be force to come into the  agreement in question without a sufficient knowledge of the value of the  estate or the amount of the arrear of rend and the respondent be likewise  impose upon as to part of the brown consideration for as to the pound suppose  to be pay to Holford no more than pound be pay and no more than pound be pay  of the pound suppose to be pay in London that the appellant do not comply with  the term of the article after they be execute the pound not be pay to Mr  Scroop till near a year after the time limit and even then the appellant annex  a new condition to that payment not warrant by the article and although he be  to pay sir Richard Holford the half year rend due at all saint be pound yet he  never pay it that the appellant by his proceed and a answer put in to a bill  exhibit by the respondent have waive the article for in that answer he have  swear that he disregard the article further than as to the arrear and mind the  same no more and be resolve never to have any further deal with the respondent  thereon that since pronounce the decree the respondent wife mary have die and  her right descend to her heir at law it be not in the respondent power to  perform the article for no act have be do either by he or his wife to bar the  right of such heir that as to any payment make by the appellant to sir Richard  Holford who proceed against the respondent brown er p have be very severe the  same be make voluntary and some of they since the respondent bill be file the  decree be extreme just in allow the appellant to have credit only for so much  of the money so pay as the debt due from the respondent to sir Richard at the  time of those payment amount to and if the appellant have pay any more it be  in his own wrong without necessity and without authority and therefore he and  not the respondent ought to seek a satisfaction for the same after hear  counsel on this appeal it be order and adjudge that the same shall be dismiss  and the decree therein complain of affirm and it be further order that the  appellant shall pay the respondent pound for his cost in respect of the say  appeal jour vol p