
    DAVID HUNT agt. ROBERT J. FYFFE.
    
      Specific Performance : Penal Bond: Practice: Chancery.
    1. A bill for specific performance does not lie on a penal bond for the conveyance of real estate. The remedy is at law, on the penalty for damages.
    2. Under the law of 18*55, regulating chancery practice, the court, on sustaining a demurrer to a bill in chancery, should grant leave to amend.
    APPEAL from the District Court of the First Judicial District in and for Leavenworth County.
   By the Court

Lecompte, C. J.

The complainant filed his bill for a specific performance. The defendant had given his penal bond, conditioned for the conveyance of the half of a quarter section of land, after making purchase thereof at the Delaware land sales. After making the purchase he refused to convey. Thereupon the complainant filed his bill. The defendant demurred — demurrer was sustained by the court below. Leave ivas asked by the complainant to amend. This was refused, and the bill dismissed.

The complainant alleges error in these several judgments. Upon consideration, the court is of opinion that there ivas error, except as to the judgment sustaining the demurrer. The complainant ought to have been allowed to amend, as he may be able to show that the primary object of the bond was to secure the conveyance.

Order. — It is, therefore, ordered and adjudged that the judgment of the court below, refusing leave to amend and dismissing the bill, be and the same is hereby reversed, and the cause is hereby remanded to the said first district court sitting in and for the county of Leavenworth, and that the complainant have his costs in this court.  