The  wife  died  without  issue ;  and  A.  brought  his  bill  to  have
the  £8,000  settled  on  him  during  his  life.  The  Court  refused
to  decree  it ;  because  A.  was  in  statu  quo,  as  to  all  that  part
of  the  agreement  which  he  had  performed,  and  not  having
performed  the  whole,  and  the  other  part  being  now  impossible,
and  no  compensation  being  possible  to  be  adjusted  for  it,  he
had  no  title  in  Equity  to  a  specific  performance,  since  such
performance  would  not  be  mutual.  But  the  issue  of  A.,
if  any,  might  have  been  relieved,  because  they  would  have
been  in  no  default.  This  case  illustrates  the  first  proposi-
tion.'

§  'TK^.  But  (which  is  the  second  case)  if  a  man  has  per-
formed so  much  of  the  agreement,  as  that  he  is  not  in  statu
quo,  and  is  in  no  default  for  not  performing  the  residue,  there,
he  shall  have  a  specific  execution  of  the  agreement  from  the
other  party.  As,  if  a  man  has  contracted  for  a  portion  to  be
received  with  the  wife,  and  has  agreed  to  settle  lands  of  a  cer-
tain' value  upon  the  wife  and  her  issue,  free  of  encumbrances  ;
and  he  sells  part  of  his  lands,  to  disencumber  the  other  lands,
and  is  proceeding  to  disencumber  and  settle  tiie  rest.  In  such
a  case,  if  the  wife  should  die  without  issue  before  the  settle-
ment is  actually  made,  yet  he  shall  have  the  portion,  because
he  cannot  be  placed  in  statu  quo,  having  sold  a  part  of  his
lands ;  and  there  was  no  default  in  him,  since  he  was  going  on


1  Gilb.  Lex  Praetor.  240,  241 ;  Peversham  v.  Watson,  Eep.  Temp.  Finch,
445 ;  S.  C.  2  Freem.  K.  35.  But  see  Hovenden's  note  to  2  Freem.  E.  35  (4).—
The  ease  seems  to  have  been  put  in  the  Beports  upon  the  ground  that  the  cov-
enants of  the  plaintiff  were  by  way  of  condition  precedent,  -which  could  not  be
dispensed  with  in  Equity.  Kep.  Temp.  Finch,  447  ;  2  Freem.,  R.  35.  See  New-
land  on  Contracts,  oh.  12,  p.  249,  250.
