¶1A specific performance cannot be decreed. The defendant had fairly disabled himself before the suit was brought, and this was known to the plaintiff. He was not bound to wait any longer upon the plaintiff, but had a clear right to exact immediate payment, or else to part with his interest in the land to another; in order to meet his own convenience or necessities. It is doubtful how far the Court has jurisdiction to assess damages, merely in such a case, in which the plaintiff was aware, when he filed his bill, that the contract could not be specifically performed or decreed. It is properly a matter of legal cognizance. The case of Denton v. Stewart, (1 Cow, 258.) was hesitatingly followed by Sir Wm. Grant, in Grenaway v. Adams, (12 Vesey, 395.) but it has been much questioned by Lord Eldon, in Todd.v. Gee; (17 Vesey, 273.) and though equity, in very special cases, may possibly sustain a bill for damages, on a breach of contract, it is clearly not the ordinary *561jurisdiction of the Court. In Phillips v. Thompson, (1 Johns. Ch. Rep. 131.) the bill was retained in order to afford a compensation, in damages, under a feigned issue, but that case was under peculiar circumstances. The bill was filed for discovery and for specific performance, and the plaintiff made out a case of very clear equity to relief, and the remedy was precarious at law.
¶2If the defendant had not parted with his interest before the filing of tho bill, it might, even then, have been a point' deserving of consideration, whether the plaintiff was entitled to assistance, when no accident, mistake, or fraud, had intervened, to prevent the performance of the contract, on his part, and when after indulgence, and after considerable subsequent delay, he had twice been required to make payment, and had omitted to do it. The acquiescence in his default, or the waiver of it, by the defendant, had terminated before the assignment, by these calls for payment, and the doctrine in Benedict v. Lynch, (1 Johns. Ch. Rep. 370.) would seem to apply.
¶3But it is not intended to prejudice any claim the plaintiff may have under his contract, at law, for damages,
¶4Bill dismissed without costs.
¶5 Vide Ballard v. Walker, (3 Johns. Cas. 60.) where the vendee suffered four years to elapse, before he offered to fulfil the agreement, on his part, and in the meantime, the vendor had sold the land to another; the Supreme Court considered the contract of sale as rescinded or abandoned ; and in an action brought by the vendee, to recover damages for the non-performance, gave judgment for the defendant. Orby v. Trigg, 9 Mod. 2.