atkins case Buxton versus lister and Cooper July observe upon pollard v  Clayton king I in general this court will not entertain a bill for a specific  performance of contract for chattel or which relate to merchandise but leave  it to law where the remedy be much more expeditious but in the present case  the agreement not be final but to be make complete by subsequent act a bill to  carry it into execution will be allow the defendant enter into a agreement for  the purchase of several timber tree mark and grow at the time it be reduce  into write and on the first of November the follow memorandum be sign by the  party atkins er p Matthew Lister and John Cooper have agree with Joseph Buxton  for the purchase of all those several large parcel of wood consist of oak ash  elm and asp which be number figure and cipher stand and be within the township  of Kirkby for the sum of pound to be pay at six several payment every ladyday  for the six follow year and Lister and Cooper to have eight year for dispose  of the same and that article of agreement shall be draw and perfect as soon as  convenient can be with all the usual covenant therein to be insert concern the  same there be two part of the agreement the plaintiff sign one and the  defendant the other one be leave in the custody of the plaintiff and the other  in the custody of the defendant the bill be bring by the vendor for the  specific performance of the agreement Lord chancellor upon the open say he do  not know any instance of a bill of this nature where it be a mere chattel only  and nothing that affect the realty that a bill may as well be bring for compel  the performance of a agreement for the sale of a horse or for the sale of  stock or any good or merchandise sir Joseph Jekyll do in cud versus butter p  wms decree a specific performance in the case of a chattel but Lord  Macclesfield reverse it and it have be the rule of the court ever since not to  retain such a bill the proper remedy be a action at law where you may recover  damage for the nonperformance of the agreement the defendant counsel to show  the impropriety of such a bill and that the party ought to be leave to law  cite roll report and latchs atkins upon hear what the plaintiff counsel can  allege in order to take this case out of the general rule of the court Lord  chancellor deliver his opinion as follow the general question be as to the  decree for specific performance and this divide itself into two subordinate  one first whether the plaintiff be entitle to seek his remedy in a court of  equity for a specific performance second whether as to the merit of his case  he be entitle to such a decree as to the first I be of opinion that this be  such a agreement though for a personal chattel that the plaintiff may come  here to have a specific performance to be sure in general this court will not  entertain a bill for a specific performance of contract of stock corn hop c so  Cudd v rutter p W Cappur v Harris bunb for as those be contract which relate  to merchandise that vary accord to different time and circumstance if a court  of equity shall admit such bill it may drive on party to the execution of a  contract to the ruin of one side when upon a action that party may not have  pay perhaps above a shilling damage therefore the court have always govern  themselves in this manner and leave it to law where the remedy be so much more  expeditious as to the case of contract for purchase of land or thing that  relate to realties those be of a permanent nature and if a person agree to  purchase they it be on a particular like to the land and be quite a different  thing from matter in the way of trade but however notwithstanding this general  distinction between personal contract and for good and contract for land yet  there be indeed some case where person may come into this court though mere  personal and the plaintiff counsel have cite a case in point tailor versus  Neville vide colt v Netterville p W Thompson v Harcourt bro par can and Edward  bro p c that be for a performance of article for sale of eight hundred tun of  iron to be pay for in a certain number of year and by instalment and a  specific performance be decree such sort of contract as these differ from  those that be immediate to be execute atkins there be several circumstance  which may concur a man may contract for the purchase of a great quantity of  timber as a ship carpenter by reason of the vicinity of the timber and this on  the part of the buyer on the part of the seller suppose a man want to clear  his land in order to turn it to a particular sort of husbandry there nothing  can answer the justice of the case but the performance of the contract in  specie in the case of John duke of Buckinghamshire v ware a bill be bring for  a specific performance of a lease relate to alum work and the trade thereof  which will be great damage if the covenant be not perform on the part of ware  atkins er p the covenant lie there in damage and yet the court consider if  they do not make such a decree a action afterward will not answer the justice  of the case and therefore decree a specific performance this be something of  the like kind the memorandum appear not to be the final contract but be to be  make complete by subsequent article I be doubtful whether at law the plaintiff  will not have be tell this be a incomplete agreement suppose two partner shall  enter into a agreement by such a memorandum as be in the present case to carry  on a trade together and that it shall be specify in the memorandum that  article shall be draw pursuant to it and before they be draw one of the party  fly off I shall be of opinion upon a bill bring by the other in this court for  a specific performance that notwithstanding it be in relation to a chattel  interest yet a specific performance ought to be decree on the circumstance of  the present case such a bill ought to be entertain but at the same time I will  add that court ought to weigh with great nicety case of this kind before they  determine the bill proper where it be a mere personal chattel second if the  plaintiff on the merit of the case be entitle to a decree atkins nothing be  more establish in this court than that every agreement of this kind ought to  be certain fair and just in all its part if any of those ingredient be want in  the case this court will not decree a specific performance for it be in the  discretion of the court whether they will decree a specific performance  because otherwise as I say before a decree may be make which will tend to the  ruin of one party one objection make by the defendant counsel to the decree a  specific performance be misrepresentation this depend upon the evidence of  John Cooper son of the defendant Cooper that his father offer the plaintiff  pound but he insist on pound and say Fenwick and clark two timber merchant  have value it at so much and that this be true on his honour and when he say a  thing on his honour the defendant ought to believe it afterward the defendant  agree to give for the wood on the opinion they have of Fenwick and clark  judgement if this be true it be a ingredient which will induce a courtof  equity not to decree a specific performance for it come out now that Fenwick  and carter do not set any great valuation than pound upon the timber and this  misrepresentation be the ground which induce the defendant to come into the  agreement this fact be very particular put in issue and yet the plaintiff who  examine okey and his wife that be present when this discourse pass do not ask  they as to this fact there be nothing inconsistent therefore in their  deposition from Cooper the next point be as to the preparation of the article  whether there be defect or omission which ought to have be insert it have be  insist by the defendant that they will have have the usual clause insert in  the article relate to the buyer horse be permit to graze on the land where the  timber stand and likewise will have have a covenant for indemnifying the  defendant in fall the timber because as it grow in hedgerow one side belong to  a stranger but the plaintiff refuse it atkins therefore if it be most natural  to suppose it will fall on that side the defendant ought to have be  indemnified from action which may have be bring for a trespass on the stranger  land but then the counsel differ as to the consequence the plaintiff insist  the article ought to be send to the master to see if there be usual covenant  in case of land the plaintiff counsel will have be right but a personal  contract be quite different because when the defendant see that the plaintiff  will not insert these covenant they have no occasion to wait the event of a  chancery suit but may go to another market to supply themselves upon the whole  I be of opinion the bill must be dismiss and if it be to be dismiss upon the  misrepresentation it ought to be with cost but what I will propose be that if  the plaintiff will consent to give up the agreement I will dismiss it without  cost but if he will bring a action then with cost the plaintiff wave the  agreement his lordship decree accord atkins er p