A rehearing was granted, and the case disposed of at the January term, as follows:
Dixon, C. J.A motion for a rehearing having been made and granted in this case, we have carefully re-examined the ground of our former decision, and find it in the main correct. When we said that the facts stated in a supplemental bill must be such as are material and beneficial to the case made by the original bill, we spoke of supplemental bills strictly so called, and it seems that we ought not to have been misunderstood. *292Tke difference between sucb bills and supplementary bills in tbe nature of bills of review is familiar. Story’s Eq. PI. (Red-field’s ed.), §§ 337, 337a, 338.
The distinction between compensation which a court of equity gives where a specific performance can be only in part enforced, and damages for a breach of the covenants of an agreement of which the court is able to enforce a complete specific performance, is obvious. It is noted in Todd v. Gee, and Jenkins v. Parkinson, cited in the former opinion. Lord Eldojst said, in the first case, that satisfaction by way of damages for the nonperformance of an agreement to compel the execution of which the suit was instituted, was at law; and that unless under very particular circumstances, as there might be, a court of equity ought not to give such satisfaction.
It is insisted that tbe circumstances of this case render tbe supplemental complaint proper; first, because tbe alleged breaches of tbe covenant occurred before tbe execution of tbe lease, wbicb is hereafter to be executed, if at all, under tbe direction of tbe court in this action; and, second, because tbe statute of limitations may run so as to bar tbe action at law for tbe damages before tbe lease shall have been executed. This suit has now been pending upwards of ten years, and it may be as many more before a final judgment will be obtained.
The first of these objections to the remedy at law can be very easily obviated. The court, in adjudging a specific performance of the agreement for a lease, may direct the lease to be dated at a time antecedent to the alleged breaches, in order to give the plaintiffs their action upon the covenants. This was done in Mundy v. Joliffe, 5 Mylne & Craig, 167, and in Pain v. Coombs, 1 De Gex & Jones, 34.
Tbe other objection to tbe legal remedy is not, however, so readily removed.
If, as in Pain v. Coombs, it was the defendant who complained that the plaintiffs bad done acts which would be breaches *293on their part of the covenants of the intended lease, this objection might be obviated by the court requiring the plaintiffs to undertake not to plead or take advantage of the statute of limitations, nor to advert to the date of the lease, so as to defeat on those grounds an action which might be brought against them by the defendant. Undertakings of this nature are not unfrequently required of the party asking the aid of a court of equity, as conditions upon which such aid will be granted. If the party seeking relief does not perform such acts and conditions as to the court seem reasonable and just, his application will be dismissed. But here the case is reversed. It is the plaintiffs, the parties invoking the aid of the court, who complain that the defendant, who resists the specific performance, has done acts which will constitute breaches of the covenants of the lease when executed. Gan the court in such case, after having enforced specific performance of the agreement for a lease, likewise compel the defendant to undertake not to avail himself of the statute of limitations, nor to advert to the date of the lease, as matters of defense in any action thereafter to be brought against him upon the covenants of the lease ? It seems to us that it cannot, and that the power of the court in that case is limited to a specific performance of the agreement made by the parties.
The court cannot itself make any new agreement and compel the defendant to execute that also. For this reason we are of opinion that the case made by the supplemental complaint comes within the “very particular circumstances” mentioned by Lord Eldoít, and that the demurrer was properly overruled. If, however, upon the cause being remanded, the defendant shall, within such reasonable time as shall be fixed by the circuit court, enter into an undertaking not to plead or avail himself of the statute of limitations, nor to advert to the date of the lease in any action or actions which may hereafter be brought against him for any alleged breaches of the coven*294ants of the lease occurring before the same was actually executed, then we think that the supplemental complaint should be dismissed. If the rights of the plaintiffs are suitably protected, it is certainly more proper that the damages should be ascertained at law than in equity.
By the Court.- — Order affirmed.