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Carroll covepants to convey twenty lots with condi. PRATT tion to be vojd, if Greenleaf shall not within three years & OTHERS erect a good brick house of stipulated dimensions on each lot. Greenleaf agrees to' erect the houses, and CARROLL. covenants to re-convey any lot not built upon within the time, and to pay 100l. for each lot not so built upon. This stipulation obviously severs the contract with respect to each lot. Only those not built upon were to be re-conveyed, and for each lot re-conveyed there was a forfeiture of 1001.

So far as the contract has been executed by Greenleaf or his assigns, he and they ought to be placed in the same situation as if it had been executed by Carroll also. Had it been executed by him, the title of Morris and Nicholson to as many lots as they had erected houses of the description agreed upon, would have been absolute. It could not have been defeated by their failure to perform the residue of the contract. Carroll ought not to enable himself to defeat it by having broken his contract.

The Plaintiffs then ought to have a conveyance of so many lots as shall be equal to the number of houses they have completed under the agreement of September, 1793, and as Carroll's entry in May, 1797, was so far tortious he ought to be accountable for the injury sustained by the property, and for rents and profits from that time. But as the same contract binds Greenleaf and his assigns to pay 100l. for each lot not improved, and as the Court does not consider this as a mere penalty, but as damages assessed by the parties themselves, the Plaintiffs will not be entitled to a conveyance of the lots which were improved without paying 100l. with interest from the 6th of May, 1797, the time when the contract was determined by the entry of Carroll, on each unimproved lot. It is at their election to obtain a specific performance on these terms, or to abandon their claim.

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It is the opinion of this Court that the decree of the Circuit Court ought to be reversed' and annulled, and the cause remanded with directions to take an account of rents and profits which have been or might have been received by the Defendant on the houses which have

PRATT been completed by Morris and Nicholson on the twenty & OTHERS lots in the proceedings mentioned; and also to take an

account of the money with interest thereon, which was CARROLL. demandable by the Defendant on each unimproved lot;

and that an issue, to be tried either in Alexandria or Washington, be directed to ascertain what damages have been sustained by the houses built by Morris and Nicholson previous to the 6th of May, 1797, whether finished or unfinished, on those lots which shall be decreed to be conveyed to the Plaintiffs, since the entry then made by the Defendant; and that on receiving the balance, if any, which may remain due to the said Carroll after deducting the rents and profits before mentioned, and the dainages aforesaid, he be directed to convey to the Plaintiffs a number of standard lots which shall be equal to the number of houses completed by the said Morris and Nicholson in pursuance of the contract of September, 1793; the said lots to be those on which the houses stand, which may have been completed, and if there be more than one house standing on the same standard lot, so that it may be necessary to convey lots not fully improved in order to make the quantity of ground equal to the superficial contents of the standard lots to be conveyed, then such standard lots are to be laid off by direction of the Cir. cuit Court, in such manner as may be equitable and convenient; provided, that the ground improved or built upon by Morris and Nicholson under the said contract, and re-entered upon by the Defendant in May, 1797, be appropriated in the first instance as far as the same shall suffice or be necessary to make up the quantity of ground to be conveyed to the plaintiffs, but so appropriated that no lot shall be divided, unless it be necessary to convey part of a lot in order to make up the full quantity of six standard lots.

END OF VOL. VIII.

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A.

it does not enable him to join para

ties in an action who could not be
ABANDONMENT:

joined at the common law. Green
v. Liter,

230
If a cargo consists partly of memoran 6. Notwithstanding the act of Vir-

dum articles, no abanılonment, for ginia of 1786, reforming the me-
mere deterioration in value during thod of proceeding in writs of right,
the voyage, can be valid unless the the tenant shall still have the full
damage, on the non-memorandum benefit of the ordinary pleas in
articles, exceed a moiety of the

abatement Green u. Liter, 231
value of the whole cargo including 6. If tenants, claiming different par-
the memorandum articles. Mar cels of land by distinct titles, omit
cadier v. Ches. In. Co.

40 to plead that matter in abatement,

and join tlie mise, it is an admis-
ABATEMENT.

sion that they are joint-tenants of

the whole; and the verdict, if for
1. See Bankrupt,

85 the demandant for any parcel of
2. If there be several tenants claim. the land, may be general that he

ing several parcels of land by dis hath more mere right to hold the
tinct titles, they cannot lawfully same than the tenants; and if of
be joined in one writ of right; and 'any parcel for the tenants that
if they be, they may plead in a they have more mere right to hold
batement of the writ. Green v. the same than the demandant,
Liter,

230 Green v. Liter,
3. If the demandant demand against
any tenant more land than he

ADJUSTMENT.
holds, he may plead non-tenure as
to the parcel not holden; but the See Insurance,

53,
writ shall abate only as to the para
cel whereof non-tenure is pleaded ADMINISTRATION.
and admitted, or proved. Green
v. Liter,

230 So long as a qualified executor is ca.
4. Under the act of Kentucky to pable of exercising the authority

amend process in chancery and with which he has been invested
common law, the party may reco by the testator; that authority can-
ver although he prové only part of not be conferred, either with or
the claim in his declaration ; but without limitation, by the Court
VOL. VIII.

61

237

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