Another item is $3,500, for the loss of the supposed profits of the voyage on which the Amiable Nancy was originally bound. In the opinion of the court, this item also was properly rejected. The probable or possible benefits of a voyage, as yet in fieri, can never afford a safe rule by which to estimate damages in cases of a marine trespass. There is so much uncertainty in the rule itself, so many contingencies which may vary or extinguish its application, and so many difficulties in sustaining its legal correctness, that the court cannot believe it proper to entertain it. In several cases in this court, the claim for profits has been expressly overruled; and in Del Col v. Arnold (3 Dall., 333), and The Anna Maria (2 Wheat. Rep., act of the 26th of June, 1812, ch. 107, has been sioned by stress of weather, and the fall of the so repeatedly decided by this court that it can-market there is precisely what would have not be permitted again to be judicially brought arisen upon the arrival of the vessel under orinto doubt. Upon the facts disclosed in the dinary circumstances. Unless, therefore, the evidence, this must be pronounced a case of sale of the corn was compelled at Antigua, gross and wanton outrage, without any just solely by the misconduct of the privateer (which, provocation or excuse. Under such circum- in our opinion, was not the case), the claim for stances, the honor of the country, and the duty such loss cannot be sustained. of the court, equally require that a just compensation should be made to the unoffending neutrals, for all the injuries and losses actually sustained by them. And if this were a suit against the original wrong-doers, it might be proper to go yet farther, and visit upon them in the shape of exemplary damages, the proper punishment which belongs to such lawless misconduct. But it is to be considered, that this is a suit against the owners of the privateer, upon whom the law has, from motives of policy, devolved a responsibility for the conduct of the officers and crew employed by them, and yet, from the nature of the service, they can scarcely ever be able to secure to themselves an 559*] *adequate indemnity in cases of loss. They are innocent of the demerit of this trans-327), it was, after strict consideration, held, action, having neither directed it nor countenanced it, nor participated in it in the slightest degree. Under such circumstances, we are of opinion that they are bound to repair all the real injuries and personal wrongs sustained by the libelants, but they are not bound to the extent of vindictive damages. While the government of the country shall choose to authorize the employment of privateers in its public wars, with the knowledge that such employment, cannot be exempt from occasional irregularities and improper conduct, it cannot be the duty of courts of justice to defeat the policy of the government, by burthening the service with a responsibility beyond what justice requires, with a responsibility for unliquidated damages, resting in mere discretion, and intended to punish offenders. As the respondents have not appealed from the decree of the Circuit Court, that decree, so far as it allows damages against them, is not re-examinable here. And the only inquiry will be, whether any of the items allowed by the District Court were improperly rejected by the Circuit Court. And first, as to the item of $1,200, for losses sustained in the sale of the cargo at Antigua. This loss is said to have been occasioned partly by the deterioration of the corn by sea damage, the mixing of the damaged with the sound corn by the improper conduct of the crew of the Spider brig, of war, and partly by a fall of the price of corn during the detention of the vessel at Antigua. We are of opinion that this item was properly rejected. The injury to 560*] *the corn was in no degree attributable to the improper conduct of the officers and crew of the privateer. The vessel was actually bound to Antigua at the time when she was met by the privateer, under a necessity occa1.-Vide ante, Vol. II. Appendix, note 1, p. 5. The jurisdiction of the admiralty, as a court of prize, has been recently reviewed in England, on an application to the Court of Chancery for a prohibition, in which it was determined, that this jurisdiction does not depend upon the prize act or commission, nor cease with the cessation of hostilities; but that it extends to all the incidents of prize, and to an indefinite period after the termination of the war. Ex parte Lynch et al., 1 Maddock's Rep. 15. that the prime cost, or value of the property lost, at the time of the loss, and in case of injury, the diminution in value, by reason of the injury, with interest upon such valuation, afforded the true measure for assessing damages. This rule may not secure a complete *indemnity for all possible injuries; but [*561 it has certainty and general applicability to recommend it, and in almost all cases, will give a fair and just recompense. The next item is $2,127 60, for the ransom of the vessel and cargo, and the payment of the costs of court. The evidence upon this head is not very satisfactory in its details. It is asserted that the vessel was seized for the want of papers, but whether as prize of war, or to enforce a municipal forfeiture, is not distinctly stated; and no copy of the proceedings of the court is produced to clear up a single doubt or obscurity. Nor does it appear whether the compromise was made before or after the libel was filed; and it is admitted that it was made without taking the advice of counsel, upon the mere opinion of a merchant at Antigua, who supposed that a condemnation would certainly ensue. Upon what legal grounds this opinion could be reasonably entertained, it is extremely difficult to perceive. Assuming that the vessel and cargo were seized as prize of war, it cannot for a moment be admitted that the mere want of papers could afford a just cause of condemnation. It might be a circumstance of suspicion; but explained (as it must have been) by the preparatory examinations of the officers and crew, and by the fact of a voluntary arrival, it is difficult to suppose that there could be any judicial hesitation in immediately acquitting the property. And the farthest that any prize court could, by the utmost straining, be presumed to go, would be to order further proof of the proprietary interest. It would be the highest injustice to the British [*562 courts to suppose that the mere want of papers, under such circumstances, could draw after it the penalty of confiscation. We do not, therefore, think that the ransom was justifiable or reasonable. The utmost extent of loss to which the owner was liable, was the payment of the costs and expenses of bringing the property to adjudication; and for such costs and expenses, as far as they were incurred and paid, the owner is now entitled to receive a recompense. In this respect, the decree of the Circuit Court ought to be amended. The item for the supercargo's commission was also properly rejected. It does not appear, with certainty, to what sum he was entitled; and under the circumstances, if lost (which is not satisfactorily shown), the commissions were not lost by any act for which the respondents are liable. The sum allowed for the travel, attendance, and expenses of the supercargo in procuring testimony, by the Circuit Court, is, in our judgment, an adequate compensation. The sum of $44 was (probably by mistake) deducted by the Circuit Court from the expen. ses at Antigua. This sum is to be re-instated. To the decree of the Circuit Court there are, consequently, to be added the following sums, viz. : For expenses and costs of court at Antigua, $542.21 The loss on the exchange to pay that sum, (say) $188. The short allowance of expenses, $44. In the whole, amounting to the sum of $774.21, on which interest, at the rate of 6 per 563*] *cent., is to be allowed from the time of payment up to the time of this judgment. And the decree of the Circuit Court is to be reformed accordingly. R. C., a citizen of Virginia, being seized of real property in that state, made his will: "In the first place. I give, devise, and bequeath unto J. L." and four others, all my estate, real and personal, of which I may die seized and possessed in any part of America, in special trust, that the afore-mentioned persons, or such of them as may be living at my death, will sell my personal estate to the highest bidder, on two years credit, and my real estate on one, two, and three years credit, provided satisfactory security be given by bond and deed of trust. In the second place. I give and bequeath to my brother T. C.," an alien, all the proceeds of my es tate, real and personal, which I have herein directed to be sold, to be remitted to him, accordingly as the payments are made, and I hereby declare the aforesaid J. L." and the four other persons, "to be my trustees and executors for the purposes aforementioned." Held, that the legacy given to T. C., in the will of R. C., was to be considered as a bequest of personal estate, which he was capable of taking for his own benefit, though an alien. Equity considers land, directed in wills, or other instruments, to be sold and converted into money, as money; and money directed to be employed in the purchase of land, as land. Where the whole beneficial interest in the land or money, thus directed to be employed, belongs to the person for whose use it is given, a court of equity will permit the cestui que trust to take the 564*] money *or the land at his election, if he elect before the conversion is made. But in case of the death of the cestui que trust, erty will pass to his heirs or personal representawithout having determined his election, the proptives, in the same manner as it would have done if the conversion had been made, and the trust executed in his life-time. The case of Roper v. Radcliffe, 9 mod. 167, examined; distinguished from the present case; and, so far as it conflicts with it, overruled. T Court for the District of Virginia, in which HIS was a case certified from the Circuit the opinions of the judges of that court were opposed on the following question, viz. : Whether the legacy given to Thomas Craig, an alien, in the will of Robert Craig, is to be considered as a devise, which he can take only for the benefit of the commonwealth, and cannot hold; or a bequest of a personal chattel, which he could take for his own benefit. This question grows out of the will of Robert Craig, a citizen of Virginia, and arose in a suit brought on the equity side of the Circuit Court for the District of Virginia, by Thomas Craig, against the trustees named in the will of the said Robert Craig, to compel the said trustee to execute the trusts, by selling the trust fund, and paying over the proceeds of the same to the complainant. The clause in the will of Robert Craig, upon which the question arises, is expressed in the following terms, viz.: "In the first place, I give, devise, and bequeath unto John Leslie, and four others, "all my estate, real and per-` sonal, of which I may die seized or possessed, in any part of America, in special trust, that the afore-mentioned persons, or such of them as *may be living at my death, will sell [*565 my personal estate to the highest bidder, on two years credit, and my real estate on one, two and three years credit, provided satisfactory security be given, by bond and deed of trust. In the second place, I give and bequeath to my brother, Thomas Craig, of Beith parish, Ayrshire, Scotland, all the proceeds of my estate, both real and personal, which I have herein directed to be sold, to be remitted unto him accordingly as the payments are made, and I hereby declare the aforesaid John Leslie, " and the four other persons, "to be my trustees and executors for the purposes aforementioned.' The Attorney-General of Virginia, on behalf of that state, filed a cross bill against the plaintiff in the original suit, and the trustee; the prayer of which is to compel the trustee to sell the trust estate, so far as it consists of real estate, and to appropriate the proceeds to the use of the said commonwealth, by paying the same into its public treasury. The will of Robert Craig was proved in June, 1811, and the present suit was instituted some time in the year 1815. Mr. Nicholas (Attorney-General of Virginia), argued, that most, if not all nations, have imposed some restrictions upon the capacity of aliens, to hold property within the territory of the nation. The law of England and the law of Virginia being the same in this respect, there is no want of reciprocity, and there is a peculiar fitness in extending the same rule to British subjects in this country, as is imposed on American citizens in England. By the law of [*566 England an alien cannot take a freehold by inheritance; he may take by purchase, but cannot hold; it escheats to the crown upon an inquest of office. Nor is this incapacity confined to a | stitutions, perverted the invention of uses, in freehold interest; it extends to leaseholds, and order to evade the statutes of mortmain, and any the smallest interest in lands. The sever- they might be applied in the same manner to ity of this rule has been relaxed only for the evade the disability of aliens to hold a legal esbenefit of commerce, and that very partially. tate in real property. Even supposing this to An alien merchant may take a lease for years of be a personal trust; it is a devise of the profits a house for habitation, but not of lands, &c. growing out of land, which would, until a sale, And no other alien can even take a lease of a accumulate for the advantage of an alien, and house for habitation. The rule may be con- is equivalent to a devise of the land itself to an sidered as illiberal, and inconsistent with the alien. There is nothing compulsory upon the enlightened spirit of the age; but its wisdom trustees to sell, and by collusion between them may be vindicated on many grounds; and it and the cestui que trust, the sale might be postcan only be dispensed with by the legislative poned forever, whilst an alien enjoyed the prowill, or by compact with foreign nations. As fits of the lands, and transmitted them to his Lord Mansfield said of the laws against the Pa- representative. But this devise of the proceeds pists, "whether the policy be sound or not, so of the sale of lands was, in effect, a devise of long as they continue in force they must be exe- real property. The leading case on this subcuted by courts of justice according to their ject is strongly fortified by subsequent decisions true intent and meaning. The legislature only In Roper v. Radcliffe, it was solemnly detercan vary or alter the law. "3 The property in mined *that lands given in trust, or [*569 question consisted of real estate, which re- devised to pay debts and legacies, shall be mained in specie, at the time of the devisor's deemed as money in respect to creditors, but death. The devise of a trust in lands cannot not in respect to the heir at law or residuary operate for the benefit of an alien. No equi- legatee, in respect to whom they shall be deemed table fiction can change the specific quality of in equity as lands; and that, consequently, the the property. It is the settled doctrine of the residue in that case being devised to persons common law, that an alien cestui que incapable of holding an interest in lands, the 567*] *trust can only take for the king's use.* devise was void. The application of this prinAll the reasons of policy which incapacitate ciple to the present case is obvious. Nor can him from holding a legal estate in lands, equally the consequence of forfeiture be avoided by the apply to disable him from holding an equitable cestui que trust electing to take the property as estate in the same species of property; it is the money. The exercise of the right of election usufruct, of which the law aims to deprive him. for such a purpose was denied in Roper v. RadTrust estates are governed by precisely the same cliffe, and in the Attorney-General v. Lord rules as legal estates. "The forum where it is Weymouth. The rights of the commonwealth adjudged," says Lord Mansfield, speaking in a may be enforced in a court of equity, because court of equity, "is the only difference between the disability of an alien to hold lands for his trusts and legal estates. Trusts here are con- own benefit is not considered as a penal forfeitsidered, as between the cestui que trusts and ure, but arises merely from the policy of the trustee (and all claiming by, through, or under law. It has, therefore, been adjudged in equity, them, or in consequence of their estates), as the that he cannot demur to the discovery of any ownership and as legal estates, except when it circumstances necessary to establish the fact of can be pleaded in bar of this right of jurisdic- alienage. 10 tion. Whatever would be the rule of law if it Mr. Wickham, contra, argued, that this was a was a legal estate, is applied in equity to a trust mere question as between the heirs and perestate." Again, speaking of the case of Banks sonal representatives. If the property in ques v. Sutton, he says, "So that I take it by the tion be real property in the view of a court ofgreat authority of this determination on clear equity, it is admitted that an alien cannot hold law and reason, cestui que trust is actually and it. But, on the other hand, if it be personal absolutely seized of the freehold in considera- property, it cannot be denied that he may take tion of this court; and that, therefore, the legal and hold it. If, as between citizens, *it [*570 consequence of an actual seizure of the freehold, be personal property, it must be so as respects shall in this court follow for the benefit of one aliens. A court of law can only look to the 568*] in the *past. " The cestui que trust, legal quality of the property. At law the inin the present case, takes an interest which ex- terest is vested in the trustee; but a court of tends to the whole estate, with an election to equity takes notice of the title of the cestui que take it as land. Nobody but he can compel the trust, as beneficially interested, and regards the trustees to sell, and they may hold the trust, quality of the estate as respects his interest and apply it for the benefit of the cestui que only. It is incontestible, that there may be pertrust forever. This is precisely the mode in sonal trusts of real property. Such are the which the monastic and other ecclesiastical in- familiar instances of trusts for the payment of 1. Co. Litt. 2, b. Hargrave's notes, Calvin's case, Co. Rep. Part 7, 18, b. 2.-Ib. 3.-Foone v. Blount, Cowp. 466. 4.-The King v. Holland, Styles, 20; Alleyn, 14 Rolle's Abr. 154, 534; The Attorney-General v. Sir George Sands, 130, 131; 3 Ch. Rep. 33; Hobart, 214; 1 Mod. 17; Hardres, 495; Cro. Jac. 512; Gilbert on Uses and Trusts, 243; 1 Com. Dig. 300; 1 Bac. Abr. let. C., tit. Alien, 132; Harrison's case, Mr. Jefferson's correspondence with Mr. Hammond, State Papers, Waite's ed., Vol. I., p. 374. 5.-Burgess v. Wheate, 1 W. Bl. 160. 7.-1 Salk. 228; 1 Eq. Cas. Abr. 98, 1 Ves., 41; Co. Litt. 46, a. Cro. Eliz. 190. 8.-Roper v. Radcliffe, 9 Mod. 167, 181. 9. The Attorney-General v. Lord Weymouth, Ambler, 20; Davers v. Dewes, 3 P. Wms. 46; Hill v. Filkens, 2 P. Wms. 6; 10 Mod. 483; The King v. The Inhabitants of Wivelingham, Doug. 737. 10.-The Attorney-General v. Duplessis, Parker, 144, 5 Bro. Parl. Cas. 91. fortify it, and has no analogy to the case now before the court. Here is no devise of the an trust is entitled to the proceeds of the sale of the land as a sura in gross; and there is no precedent for confiscating profits of an estate purchased by an alien, which profits were actually received before office found. Nor can the argument that, by collusion between the trustee and the alien cestui que trust, the latter may go on forever receiving the profits of land, be supported; because it is arguing against a right from its possible abuse (always an unsound mode of reasoning), and, because the same thing may happen between an alien and any ostensible owner of land. All that a [*573 court of equity, in any case, could do, would be to refuse to decree the land to the alien, and compel him to relinquish his claim unless he took money. But equity will not aid to enforce a confiscation. Thus, where the testator directed money to be laid out in land, the money not having been laid out, Lord Rosslyn held, that the crown, on failure of heirs, had no equity against the next of kin to have it laid out in real estate in order to claim by escheat. 10 debts and legacies charged on land; trusts for raising portions, and bankrupt's estates; in all of which the property goes to the personal rep-nual perception of profits, but the cestui que resentatives, without any question as to the citizenship or alienage of the cestui que trust. It is an elementary principle, which lays at the very foundation of the doctrines of equity, that land directed to be sold and converted into money, and money directed to be employed in the purchase of land, are considered as that species of property into which they are directed to be converted.1 And it is immaterial in what manner the direction is given, whether by will or deed; or in what state the property is found-in land or not.2 The argument on the other side, that the alien having the right 571*] *to elect that the property should not be sold, therefore it must be considered as land, may be answered by another, equally good. That having the right to say it shall be sold, it must, therefore, be considered as money. But, it is denied that an alien has an election to make it real property. As an infant cannot make an election for want of capacity; so an alien cannot elect to take, because he cannot hold real property. The right of election is a benevolent principle, applying for the benefit, not for the injury of parties. The cestui que trust, in this case, has elected to take it as money, by his bill praying for a sale. But, supposing him to have been silent, the elementary writers lay down the rule that it remains personal property. As the party who has his election may determine to take the property as land to be sold for his benefit, or money to be invested in land, the question can only arise between the heirs and personal representatives. Some cases, which appear to be exceptions to the rule, confirm it. Such are the cases of a resulting trust to the heir, where the purposes of the trust are fulfilled, or at an end; the cases where the union of title to the estate, as real and personal, extinguishes the demand, and the cases where the intention is obscure. The rule' extends to all cases where the quality of 572*] money is imperatively fixed on land by the will or deed. As to Roper v. Radcliffe, its analogy to the present case is remote; it has always been considered a very questionable case; and it is not to be put in competition with the more direct authorities already cited. By the act of Parliament, under which that case was determined, a Catholic cannot even purchase; but at common law, an alien may not only purchase, but hold against all the world, except the crown. That case is not confirmed by Lord Chancellor King, in Davers v. Dewes, On the contrary, he says, that if the point, "were res integra, it would be, indeed, very questionable." Its reasoning is also questioned by Lord Mansfield. The case of the Attorney-General v. Lord Weymouth does not 6 1.-Doughty v. Bull, 2 P. Wms. 323; AttorneyGeneral v. Johnston, Ambl. 580; Yates v. Compton, 2 P. Wins. 308; Fletcher v. Ashburner, 1 Bro. Ch. Cas. 501; Ackroyd v. Smithson, Id. 503; Berry v. Usher, 11 Ves. 87; Robinson v. Taylor, 2 Bro. Ch Cas. 589; Williams v. Coade, 10 Ves. 500; Biddulph v. Biddulph, 12 Ves. 160. 2.-Edwards et ux. v. Countess of Warwick, 2 P. Wms. 171; Biddulph v. Biddulph, 12 Ves. 160; Thornton v. Hawley, 10 Ves. 129. 3.-Seely v. Jago, 1 P. Wms. 389; Earlom v. Saunders, Ambl. 241. The Attorney-General, in reply. admitted, that in considering the legal operation of the devise, the national character of the devisee was to be laid out of view; and that the estate, which its terms would pass, could not be varied by any consideration of that character. As an alien is capable of taking (though not of holding) a direct fee in the lands, he is also capable of taking any lesser estate than a fee, under any modification of trust, express or implied. There is nothing, therefore, in the character of an alien to repel, or even to narrow, the legal operation of the terms of the devise. Whatever estate they would pass to a citizen, the same they will pass to an alien. What estate, then, would pass to a citizen? It is said, a personal estate only, because, the testator having directed the land to be sold, has stamped upon it the character of personal property. But this is not the whole effect of the terms of the devise. They give to the legatee the option of taking the land; and, *in so do- [*574 ing, they give him an interest in the land itself. This option thus cast upon the legatee is not the effect of any act to be done by him. To create the right of election, it is not necessary that he should actually elect, or that he should be able to elect. The mistake on the other side results from confounding the right of election with the exercise of that right. The right to choose is the legal effect of the devise, and stamps a character on the estate. The fact of electing is a subsequent act, which may or may not take place; but which, whether done or not, cannot alter either the character of the devise or the option which it casts upon 4. Grimmitt v. Grimmitt, Ambl. 210. 5.-Hewitt v. Wright, 1 Bro. Ch. Cas. 86; And see 16 Ves. 191; 18 Ves. 174; 1 Ves. & Beames, 272. 6.-Pultney v. Lord Darlington, 1 Bro. Ch. Cas. 226. 7.-3 P. Wms. 46. 8.-Foone v. Blount, Cowp. 467. 9.-Ambl. 20. 10. Walker v. Denne, 2 Ves., Jun., 170. WASHINGTON, J., delivered the opinion of the court: The incapacity of an alien to take, and to hold beneficially, a legal or equitable estate in real property, is not disputed by the counsel for the plaintiff; and it is admitted by the counsel for the state of *Virginia, [*577 that this incapacity does not extend to personal court has to make, is, whether the above clause in the will of Robert Craig is to be construed, under all the circumstances of this case, as a bequest to Thomas Craig of personal property, or as a devise of the land itself. Were this a new question, it would seem extremely difficult to raise a doubt respecting it. The common sense of mankind would determine, that a devise of money, the proceeds of land directed to be sold, is a devise of money, notwithstanding it is to arise out of land; and that a devise of land, which a testator by his will directs to be purchased, will pass an interest in the land itself, without regard to the character of the fund out of which the purchase is to be made. everyone capable of taking under it, or the | where none of it is wanting for the payment of legal estate in the lands which this option cre- debts and legacies, the whole may be retained ates. The option thus given to the devisee by as land. This doctrine is founded on the right the terms of the will is an operative principle, of election, resulting from the devise. But which, whether exercised or not, still gives eo no actual election need be made to produce the instanti that the will takes effect, an interest in legal effect; it is the same, though the parties the lands, which, if the devisee be incapable of are disabled to elect; they cannot defeat its holding, they pass to the commonwealth. So operation by electing to take as money; and far is the effect of this option from awaiting an where nothing is done indicative of an election, act of election to be done by the devisee, and the principle still operates. depending on such act, that it has been decided where a subsequent election had been made to take as money, by persons disabled to hold the interest in land, that the act of election came too late to change the character of the devise, which, by virtue of the option it carried with it, had thrown upon the devisee an estate in the lands the instant the will itself began its operation. It is true that the decision in Roper v. Radcliffe is founded on a particular act of Par-estate. The only inquiry, then, which this liament against Papists: but this is no objection 575*] *if the act of Parliament creates precisely the same disabilities in respect to the Catholics which the common law had created in relation to aliens. For if their respective disabilities as to land be the same, a devise of lands to one will receive precisely the same construction as a devise of lands to the other. The object of the stat. of 11th and 12th of William III., ch. 4, was to render Papists aliens, in regard to lands in England. The stability of the government being supposed to depend upon this policy, the design of the maker of this law," says Lord Chief Justice Parker, "was, first, to get the lands of this kingdom out of the hands of Papists." "And, secondly, to prevent them from making any new acquisition." The first object does not relate to aliens; but the second applies precisely to them, and the provisions of the act, as to Papists, are substantially the same with those of the common law as to aliens. It is not, however, the disabilities of either, which are to affect the construction of this devise; that construction is first to be made on the terms of the devise it-"nothing is better established than this princiself, and then whatever legal consequence ple, that money directed to be employed in the would result from the disability of the one, purchase of land, and land directed to be sold will equally result from that of the other. In and turned into money, are to be considered as Roper v. Radcliffe, it was held that, though that species of property into which they are lands devised to be absolutely sold for the pay-directed to be converted, and this, in whatever ment of debts and legacies were to be considered as money, so far as creditors and legatees were concerned, yet, as to the residuary devisee they were to be considered as lands, because of his option to prevent the sale by paying the 576* debts and legacies, or his option to have a decree for the sale of so much only as the debts and legacies should require; and, it was determined in that case, that the residuum devised to the Papists should be considered as land, and, therefore, within the prohibition of the statute. The authority of this case has been repeatedly recognized in subsequent decisions, all of which concur to show that, though a devise of lands to be sold is consider ed as personal estate, as to creditors and specific legatees, yet it is considered as land in respect to the heirs and residuary legatees. And The settled doctrine of the courts of equity correspond with this obvious construction of wills, as well as of other instruments, whereby land is directed to be turned into money, or money into land, for the benefit of those for whose use the conversion is intended to be made. In the case of Fletcher v. Ashburner (1 Bro. Ch. Cas., 497) the master of the rolls says, that manner the direction is given." He adds, "the owner of the fund, or the contracting parties, may make land money, or money *land. [*578 The cases establish this rule universally.' This declaration is well warranted by the cases to which the master of the rolls refers, as well as by many others. (See Dougherty v. Bull, 2 P. Wms., 320; Yeates v. Compton, Id., 358: Trelawney v. Booth, 2 Atk., 307.) The principle upon which the whole of this doctrine is founded is, that a court of equity, regarding the substance, and not the mere forms and circumstances of agreements and other instruments, considers things directed or agreed to be done, as having been actually performed, where nothing has intervened which ought to prevent a performance. This qualification of the more concise and general rule, that equity considers that to be done which is agreed to be done, will comprehend the cases which come under this head of equity. Thus, where the whole beneficial interest in the money in the one case, or in the land in the |