1 Ves. sen. 126; and see Mr. Belt's Supp. 79. repay Both these propositions are probably open to observation. With respect to the bond, it is plainly immaterial to the merits of the question, whether the money have been actually paid or only se eured. It has been said by a great authority, that "both these cases, when they arise, will deserve great consideration before they are decided in favour of the purchaser." Probably they may; but on the broad principle of natural justice, it seems reasonable, that in all cases of this kind, where a contract is entered into by par ties who are equally ignorant of the fact that the vendor has nothing to sell, equity can only be fairly administered by setting aside the contract, and restoring both parties to the situation in which they were, previously to entering into it. 3. A Party purchasing his own Estate.]-When a party having a right to an estate purchases it from another person, in ignorance of his own title, the vendor will be compelled to refund the purchase-money, with interest from the time of filing the bill, although there may not appear to be any fraud. Thus, in Bingham v. Bingham1, one John Bingham, among other things, devised an estate tail in certain lands to Daniel, his eldest son and heir, limiting the reversion in fee to his own heirs. Daniel left no issue, but devised the estate to the plaintiff in fee. The bill stated, that the latter being ignorant of the law, and persuaded by the defendant and his scrivener and conveyancer, that Daniel had no power to make such devise, and being also subjected to an ac tion of ejectment, purchased the estate of the defendant for 801., *This clearly it cannot be: fraud implies an intention to deceive. There can be no fraud, therefore, where both vendor and vendee are equally igno kind, and differing only in degree from that of the bona fide case of a purchaser thinking he had bought what the vendor as clearly thought he had rant. It is a mistake of the same not sold. and that it was conveyed to him by lease and release. The bill was to have this money repaid with interest. The defendant, by his answer, first of all insisted that Daniel had no power to make such devise; but if he had, he urged that the plaintiff should have been better advised before he parted with his money, for that all purchases were at the peril of the purchaser." The decree was for the money with interest and costs. the 326. 4. Mistake as to a Person bidding being a Puffer.]-In Twining v. Morrice, an estate had been knocked down to a person 2 Bro. C. C. at an under-value, under an erroneous impression among bystanders and bonâ fide bidders, that he was a puffer. "By an inadvertent act," said Lord Kenyon, "Mr. Blake was in a situation that hurt the sale, and was put into that situation by Mr. Twining; it is, therefore, not such a case as I can decree specific performance. I will not set aside the contract, but will leave the plaintiff to his remedy at law." 5. Mistake of the Party who was to make the reserved Bidding.] -In Mason v. Armitage2, another leading case of the same class, '13 Ves. 25. there was a reserved bidding, and that anybody who should hid 401. above it, should have the estate, which was communicated to the company upon a request made by them, in consequence of an erroneous notion that the plaintiff was a puffer,- the reserved bidding was 90007.; Mason, who, previously to the sale, had given an intimation that he would not purchase, bid up to 8000!., and no farther bidding taking place, in consequence of the notion of his being a puffer, the auctioneer, after a considerable lapse, and pointedly adverting to the person appointed to make the reserved. bidding, with the view of inducing him to do so, and saying,, "Is it with your free will and consent that the estate shall be knocked down at 8000 to Mr. Mason?" and the person appointed to make the reserved bidding, making no motion whatsoever, under an expectation that he should be called on by name, the estate was accordingly knocked down to Mason. The auctioneer, immediately after the sale, signed a memorandum to the effect that Mason was the highest bidder, and that he had refused to receive the deposit-money and the purchaser's moiety of the auction-duty, on the ground, that, "neither the owner nor his attorney being present, he did not think proper to receive the same." The vendor pleaded the statute, with an averment-that immediately after the estate being knocked down to Mason, he "revoked the auctioneer's authority," insisting, therefore, that the writing signed by the auctioneer was not a writing signed within the meaning of the statute. The material facts were supported by evidence, the result of which appears to have been, that there was no fraud in the transaction. The Lord Chancellor (Erskine) said, “I admit there is nothing in this contract shewing that anything was fraudulently obtained by the plaintiff; and if he had been de clared the purchaser, and had got into possession, so that the defendant had been obliged to come into this court upon the head of fraud, there would not be sufficient ground to deprive the plaintiff of the benefit of his legal contract. But that is not the case. This plaintiff has got all the law can give him, and applies here desiring more; and the question is, whether, under all the cir cumstances, and upon the authorities and principles, this is a case for a specific performance? In this case I cannot say the plaintiff has acted so as to be an example, though his conduct does not come up to fraud, so that I could have dealt with it as such, if he had obtained possession. The result of the evidence is plain misapprehension and mistake, not an after-thought, by the defendant, satisfied at the moment with the sum of 8000l. If, however, the plaintiff thinks he has a case which the statute will not meet, upon which I do not give any opinion, he is not injured by this decision. There is nothing to shew that this land is of any peculiar value to him; as, if it was contiguous to his own estate, or purchased with a view to set up a manufacture. Therefore Lord Parker's observation as to stock is applicable; and as the plaintiff declared he did not intend to make this purchase, and he has obtained an advantage through a mistake, a court of equity will not give him any assistance in that." SECT. 12.-UNCERTAINTY. Where the terms of the contract cannot be clearly collected from the agreement, the court will not enforce it. It is not, of course, necessary, that the terms should be contained in the agreement, if they can be ascertained from any other sources, clearly referred to by it; or by means specifically appointed for the purpose, that is sufficient. But where these means fail, by leaving the terms in question finally uncertain, the court will not interfere. And therefore where the agreement was for the purchase of an estate, at a price to be fixed by two surveyors, one to be chosen by each party, and the surveyors by their award in writing, after stating the land as seventy-three acres, valued the property at a certain sum, with a declaration that, if there should be any error in the above admeasurement, "an allowance at the rate of 421. for every acre, either less or more than the said admeasurement, should be made out of, or in addition to, the said purchase-money, as the case may happen, if the mistake be in the allotment in Horse-Moor-Field, over the brook; and an allowance of the same nature, at the rate of 847. for every acre, if this mistake be in the other part of the estate on the house-side of the brook," without stating how much of the land lay on each side of the brook, and consequently there were no means of determining to what extent the 847. was to be allowed, or to what extent the 427. only was to be allowed. On the ground of this uncertainty, Sir J. Leach considered the award not to be final and certain, and allowed a general demurrer to bill for the specific performance 1. 1 Hopcraft v. Hickman, 2 Sim. & Stu. 134. SECT. 13.-HARDSHIP. 1. Equity will not enforce a hard Bargain, when, 633. 2. Instances of Hardship, 634. 3. Equity will not enforce a Contract which the Party cannot perform, : 2 ker, cit. 5 Ves. 549, from Lord Harcourt's MS. table. 3 Per Sir S. Romilly, 10 1. Equity will not enforce a hard Bargain, when.]—A bargain may be so hard and unreasonable, that, in the absence of all circumstances of fraud, the court will not enforce it2. In Tilly Squire v. Bav. Peers3, Lord Chief Baron Eyre thus expresses himself:Laying out of our consideration all circumstances of fraud, the court, upon the mere consideration of its being so hard a bargain, will not enforce it." What is such a degree of hardship or unreasonableness as will induce the court to refuse its aid, is a question for its discretion, and must depend upon the circumstances of each particular case. It is no objection to the ground of the equity jurisdiction in this respect, that it is vague and uncertain; many other principles on which courts of equity habitually act, are equally vague and uncertain. To adopt the language of Lord Eldon, with reference to another principle:-"The rule is clear enough, but the application in each particular 1 Mortlock v. case must depend upon the discretion of the Judge. It is like the case of fraud; the rule is, that this court will set aside a bargain for fraud; but the court has never ventured to lay down a general proposition what shall constitute fraud1." It is obviously Buller, 10 Ves. impossible to state as a proposition, what shall be the degree of hardship or unreasonableness, which would induce the court to refuse to enforce the contract; but it has been said that, unless hardship arise to a decree of inconvenience and absurdity so great, that the court can judicially say, such could not be the meaning of the parties, it cannot influence the decision2. 306. Per Lord El don in Prebble v. Boghurst, 1 Swanst. 329. Faine v. Brown, cit. 2 Ves, sen. 307. 42 Sim. & Stu. 488. 2. Instances of Hardship.]-Where a person entitled to a small estate under his father's will, given on condition, that, if he should sell it within twenty-five years, half the purchase money should go to his brother, agreed, in writing, to sell it, and afterwards refused to carry the sale into execution, pretending to have been intoxicated at the time; Lord Hardwicke held, that, without the other circumstance, the hardship alone of losing half the purchase-money, if the contract were carried into execution, was sufficient to determine the discretion of the court not to interfere, but leave the parties at law 3. The late case of Rhodes v. Cook4, would seem to be referable to this head. There the defendant to the original bill, who was tenant for life of an estate, remainder to his children as he should appoint, remainder to his children in fee, mortgaged the estate to the plaintiff's testator, and gave a policy of assurance on his life, as a collateral security. Afterwards he ob tained a further advance of 500l., for which he gave his bond only; but an agreement was made at the same time between himself, his two daughters, (who were his only children), and the creditor, whereby it was agreed that the estate should be imme diately sold; that the father should receive for his own use s clear moiety, and that the other should be equally divided between the two daughters. The father lived seven years after, and continued all that time in possession of the estate, without taking any steps to carry the agreement into effect. A bill was then filed by the purchaser. Afterwards both the father and creditor having died, a supplemental bill was filed by the executor of the creditor against the daughters, and their father's executor, praying that the agreement might be carried into effect, the estate sold, and that a clear moiety of the produce of the estate, after satisfaction of the mortgage debt, might be deemed assets of the father. The bill was dismissed on the ground, that the daughters having, by |