Berney v Eyre
| Jurisdiction | England & Wales |
| Judgment Date | 22 July 1746 |
| Date | 22 July 1746 |
| Court | High Court of Chancery |
English Reports Citation: 26 E.R. 1023
HIGH COURT OF CHANCERY
See Boyse v. Rossborough, 1853, Kay, 99.
[383] Case 127.-buxton versus lister and cooper, July 15, 1746. [Observed upon, Pollard v. Clayton, 1855, 1 K. & J. 462.] In general this court will not entertain a bill for a specific performance of contracts for chattels, or which relate to merchandise, but leave it to law, where the remedy is much more expeditious ; but, in the present case, the agreement not being final, but to be made complete by subsequent acts, a bill to carry it into execution will be allowed. The defendants entered into an agreement for the purchase of several timber trees, marked and growing at the time it was reduced into writing : and on the first of November 1744, the following memorandum was signed by the parties: 3ATK. 384. BTJXTON V. LISTER 1021 " Matthew Lister and John Cooper have agreed with Joseph Buxton for the purchase " of all those several large parcels of wood, consisting of oaks, ashes, elms, and asps, " which are numbered, figured, and cyphered, standing and being within the town-" ship of Kirkby, for the sum of 3050, to be paid at six several payments, every Lady-day " for the six following years ; and Lister and Cooper to have eight years for disposing " of the same; and that articles of agreement shall be drawn and perfected as soon " as conveniently can be, with all the usual covenants therein to be inserted concerning " the same." There were two parts of the agreement. The plaintiff signed one, and the defendants the other; one was left in the custody of the plaintiff, and the other in the custody of the defendants. The bill was brought by the vendor for the specific performance of the agreement. Lord Chancellor, upon the opening, said, he did not know any instance of a bill of this nature, where it is a mere chattel only, and nothing that affects the realty. That a bill might as well be brought for compelling the performance of an agreement for the sale of a horse, or for the sale of stock, or any goods or merchandise. Sir Joseph Jekyll did, in Cud versus Butter, 1 P. Wms. 570, decree a specific performance in the case of a chattel, but Lord Macclesfield reversed it, and it has been the rule of the court ever since, not to retain such a bill. The proper remedy is an action at law, where you may recover damages for the non-performance of the agreement. The defendants' counsel, to shew the impropriety of such a bill, and that the parties...
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Boyse v Rossborough
...is a trust the whole question comes properly within the jurisdiction and under the control of this Court," &c. The case of Berney v. Eyre (3 Atk. 387) was referred to in the Court [820] below by the Plaintiffs, but it will be found that there the bill was only to perpetuate testimony; and H......
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...The cause came on to be disposed of as to the costs. Xcaife v. Scaife (4 Buss. 309); Tatham v. Wright (2 finss. & M. 32); Berney v. Eyre (3 Atk. 387), were cited. the master of the rolls [Sir John Romilly]. In modern times the inclination of the Court has been to place the heir at la\v in t......
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...285. [1730] Shirley v. Ferrers, 3 Peere Wms. 77. [1738] Bmndlyn v. Ord, 1 Atk. 571. [1739] Suffolk v. Green, 1 Atk. 450; Berney v. Eyre, 3 Atk. 387. [1745] Daltm v. Thomson, 1 Dik. 97. [1746] Burney v. Eyre, 3 Atk. 387. [1754] Anonymous, 2 Vesey, junior, 487, and Amb. 237. [17771 Smith v. A......