Page:Harvard Law Review Volume 9.djvu/480

452 HARVARD LAW REVIEW. cannot tell whether they mean any more than a forma arguendi, for it is the relief to a plaintiff that is argued about. Such expressions, or order that a defendant accept something, may have even crept inadvertently into some decrees for specific performance, and would carry little weight; but in a cursory search we find few such, and their absence in others is very significant. In Seton, 696, plaintiff purchaser is decreed to be " at liberty to pay into court pounds to the credit of the cause," and the premises shall be conveyed to him. That is all. The leading case, Felch v. Hooper, which reached a decree in 4 Clifford, 493, does not compel defend- ant vendor to accept the money, and there is no more legal need for vendee to accept a deed than for a vendor to accept the money. In the statute, P. S., ch. 141, sec. 22, under which Felch v. Hooper was decided, there is no anxiety manifested that the foreigner shall accept the money due him by the enforced contract, nor any means provided for the court to make him do so, and the court does not try to, but of course, as of simple equity, requires the plaintiff to deposit it, and would permit defendant to take it. It must do this much to do equity, and in such permissive decree makes no decree inadmissible in personam, violates no constitutional rights of the non-served non-resident, and no greater decree than this is wanted in our Brunswick case. Would it not be rather ludicrous for an equity court to distress itself, whether the foreigner ever did take the deed or the money from the clerk? Would it not be a grave defect in the administration of equity to suffer his neglect so to do to bar the rights in Massachusetts land of a vendor who has done his whole duty? The text-books say that even inability of vendor to make perfect performance shall not bar the plaintiff's right to an imperfect performance if he wants it. The default, inability, or refusal of a defendant must not prejudice the plaintiff. In brief, the cause invokes relief for a plaintiff. He alone prays any. Of course he must do equity, that is, if vendee, pay into court, — if vendor, file a deed ; and it is wholly immaterial whether the de- fendant ever accepts either, — from which it follows that a decree against the Englishman should not order him to accept the deed. The court is merely requiring a plaintiff " to do equity," and, if there be no court or case, the plaintiff has done his duty when he tenders a correct deed. It would seem, then, that in our Brunswick case, and also in cases of personal citation, the decree should not compel ac-