Opinion
(1793.)
One promised Rutland Mollineux that in consideration of, etc., he would make assurance of certain lands, which he refused to do. And Mollineux sued him in the Court of Requests for a special performance. In order to obtain a prohibition he alleged:
1. That the plaintiff has an action on the case at common law. To which it was answered that in it he would only recover damages, but here the suit is for a specific performance, to obtain which there is no action at common law. And this is the ordinary course in Courts of Chancery.
Yet we will not suffer the Court of Requests to go on, though the Chancery may.
2. It appears by the bill that the plaintiff is a recusant convict, who by the statute is an excommunicated person, and therefore cannot sue.
The defendant has admitted the plaintiff to be able to sue.
The court refused the prohibition.
DODERIDGE, J. The court will do justice to a recusant convict. Noy, 88.