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OUTLINES 
 
 SPECIFIC PEEF0EMMCE. 
 
 Br 
 
 H. S:*^OWEN, B.A., LL.B., 
 
 OF LONDON UNITEBSITT, AND. OF LINCOLN'S INN, BABBISTEB-AT-Li.W. 
 
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-^ 
 
 LAW EXAMINATIONS. 
 
 Me. H. S. bo wen, B.A., LL.B. (First- Class 
 
 Honours in Common Law and Equity, London University, 1882), 
 PKEPAEKS for Ihe Bar Preliminary, Koman Law, General ; London 
 University Law Degrpes ; Solicitors' Preliminary, Intermediate, Final. 
 — Address, 4, Stone Baildings, Lincoln's Inn, W.O. 
 
 RESULTS during 1885. 
 
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 RESULTS, 1886. 
 
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Cornell University 
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 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924084250228 
 
PREFACE. 
 
 The object of this work is to present ib. outline form the 
 r^w relating to Specific Performance, so as to' facilitate the 
 study of more compendious works. The bulk' of the work 
 consists' of notes taken from Sir Edward Fry's well-known 
 treatise; since the notes were taken for their original 
 purpose; I have slightly re-arranged them, aind have en- 
 deavoured to incorporate the gist of the more important 
 recent cases. 
 
 H. S. B. 
 
 4, Stone Buildings, Lincoln's Inn. 
 
eONTENTS. 
 
 CHAPTER I. 
 
 PACE 
 
 Obigin, Character and Extent of the Jurisdiction . . 1-3 
 
 CHAPTER II. 
 
 Contracts in particular in relation to Specific Perform anoe 4-13 
 
 CHAPTER III. 
 
 Defences to an Action for Specific Performance . . 13-41 
 
 (A.) iNCAPACiTr to Contract 13 
 
 NoN-coKCLUsioN op THE Contract 14 
 
 Incompleteness 15 
 
 Illegality and Ultra vires . . . . 16 
 
 (B.) Want op Mutuality 16, 17 
 
 Want op Fairness 17 
 
 Hardship 18 
 
 Inadequacy of Consideration 19 
 
 (C.) Uncertainty 19 
 
 Lapse op Time . . ' W 
 
 Statute of Frauds 20, 24 
 
 Misrepresentation 24-26 
 
 Fraud 20 
 
 Mistake 28-30 
 
 Incapacity op the Court . . . . 30, 33 
 
 Want op Title 33 
 
 Default on the Plaintiff's Part.— Compensation 35-40 
 Inability op the Defendant to pekforji, . . 40, 4J 
 
VIU - CONTENTS. 
 
 CHAPTEE IV. 
 
 FAGB 
 
 PROCECmiE AND MlSCELLAITEODB MATIEBS .... 42-57 
 
 m 
 
 Questions set at the General Bab Examination — 
 
 Easter, 1886 57 
 
 General Test Questions 58 
 
 Index 62 
 
OUTLINES 
 
 OF 
 
 SPECIFIC PEEFORMANCE. 
 
 CHAPTEB I. 
 Origin, Chaeactee and Extent of the Jurisdiction. 
 
 Definition. — The specific performance of a contract is 
 its actual execution according to its stipulation and terms, 
 as contrasted with damages or compensation for its non- 
 execaition. (Fry, p. 2.) 
 
 Such execution may be enforced by ordering the party 
 in default to do the very act he contracted to do, and in 
 the event of his disobedience punishing him for contempt. 
 In some cases the Court may vest property in a purchaser 
 by a vesting order und,er the Trustee Act, 1850 (13 & 14 
 Vict. c. 60, s. 30). 
 
 The Common Law. — The Courts of Common Law on 
 default of performance of a contract did not enforce it 
 specifically, but only gave damages ; but a near approach 
 to specific performance may be found in the prerogative 
 writ of mandamus for the enforcement of public duties. By 
 the Mercantile Law Amendment Act, 1866 (19 & 20 Vict. 
 c. 97, s. 2), in actions for breach of contract to-deliver 
 
2 OUTLINES OP SPECIFIC PERFOEMANCB. 
 
 specific goods, they were empowered to order the very- 
 goods themselves to be delivered over to the plaintiff. 
 
 ' Courts of Equity. — On the other hand, Courts of 
 Equity have for some centuries enforced specific per- 
 formance, and their jurisdiction has been traced back to 
 the reign 6i Eichard II., and from the Year-Book in 
 8 Ed. IV. it would seem that it was fully recognised. 
 Its original source was probably the Canon Law. 
 Although by virtue of the Judicature Acts each division 
 of the High Court is now both a court of law and equity, 
 yet sec. 34 of the 1873 Act specially assigns " the specific 
 performance of contracts between vendors and purchasers- 
 of real estate (including contracts for leases) " to the 
 Chancery Division. The Chancery Division is there- 
 fore the appropriate division for initiating proceedings 
 for the specific performance of contracts relating to land. 
 It should, however, be noticed that if A. sued B. for 
 damages -in the Queen's Bench Division and B. counter- 
 claimed to have a contract to sell land specifically enforced, 
 the judge might if he chose retain the action, and would 
 have all the jurisdiction of a Chancery judge {Story v. 
 Waddle, 4 Q. B. D. 289) ; though in. such a case the action 
 is generally transferred on the defendant's application, even 
 against the plaintiff's wish, to the Chancery Division 
 (Hillrmn v. Mayhew, 1 Ex. D. 132). The last cited case 
 was one for the recovery of land, and the defendant set up 
 a counter-claim for specific performance of a contract for a 
 lease. 
 
 County Courts have also jurisdiction in cases of sales 
 and leases of property when the purchase money or value 
 of the premises does not exceed £600 (County Courts Acts, 
 1865-1867, sees. 1 and 9). 
 
OEIGIN AND EXTENT OP JURISDICTION. 3 
 
 The jurisdiction and its extent. — The jurisdiction 
 is discretionary in the sense that the Court, being governed 
 by settled rules, exercises a judicial, not an arbitrary 
 discretion. As to the scope of the Court's jurisdiction, it 
 is stated generally in Fry that the Court will enforce 
 specific performance in cases : — ■ 
 
 " (1) Where origiitally there was no common law 
 remedy. 
 
 (2) Where the common law remedy was inadequate. 
 
 But the Court will not specifically enforce : — 
 
 (1) Where the common law remedy is adequate. 
 
 (2) Where the contract is such as the Court cannot 
 perform. 
 
 (3) Whore actual performance would be useless. 
 
 (4) Where the Court would be unable to enforce its own 
 judgment. 
 
 (5) Where the enforced performance would be worse 
 than its non-performance. 
 
 (6) Where the contract is voluntary. 
 
 (7) Where the plaintiff has elected to proceed in some 
 other way than for specific performance." 
 
 B 2 
 
OUTLINES OF SPECIFIC PEKFORMANCE. 
 
 CHAPTEE II, 
 
 Contracts in particular in relation to 
 Specific Perfoemance. 
 
 It is now proposed" to deal with certain contraofs par- 
 ticularly, and to see if they will or will not be specifically 
 enforced. 
 
 CONTRACTS FOR SALE. 
 
 Land. — The Court decrees performance because damages 
 may not prove a complete remedy either to a purchaser, to 
 whom the land may have a peculiar and special value, or 
 to a vendor, for by specific performance alone can he get 
 rid of all the liabilities attached to its ownership (^Eastern 
 Counties Eaiheay Co. v. Hawhes, 5 H. L. p. 331, 359) ; and 
 it is to be noticed that such contracts are at present the 
 most fruitful source of specific performance actions. Juris- 
 diction is assumed as regards foreign realty if the defendant 
 is within the jurisdiction of the Court and there is privity 
 of contract. 
 
 Purchase of lands under the Lands Clomses Act, 1845. — 
 If after statutory notice a contract is voluntarily entered 
 into between the company and landowner, such a contract 
 may be specifically enforced. Further, if after notice to 
 treat, the company refuse to proceed, the landowner may 
 apply for a mandamus to compel the company to do so. 
 Proceedings may also be taken when the price has been 
 fixed in one of the methods mentioned in the Act. 
 
CONTEACTS. 
 
 Chattels. — ContraotB for the sale, and delivery of 
 chattels will not generally be enforced specifically, for 
 damages are a sufficient remedy. Seats, when the delivery 
 of chattels is only part of a contract otherwise enforceable 
 (Marsh v. Mulligan, 3 Jur. N. S. 979). In the last-named 
 case the litigation was of a complicated nature ; but one 
 of the terms of the contract was that eight piEimofortes in 
 litigation in Peru shouM be delivered by the defendant to 
 the plaintiff. 
 
 Exceptions to the general rule, however, arise ; e.g. : — 
 , (1) Unique articles, such as the " Pnsey horn " (Pusey v. 
 PMse?/); ships (BeJUattos v. Gibson, 4 De Gr. & J. 276). 
 
 (2) Chattels of peculiar importance to a plaintiff in his 
 business, as in Buxton v. Lester & Cooper, 3 Atks. 384, 
 where a ship carpenter had purchased a large quantity of , 
 timber from a neighbouring proprietor for the purpose of 
 completing a ship. 
 
 Ships. — The result of 17 & .18 Vict. c. 104, appears 
 to be that a person qualified to be owner of a British 
 ship can enforce an executory contract to transfer a ship 
 although it is not in accordance with the statutory form ; 
 and further, after judgment is entitled to be registered ; 
 but pending entry of his name on the registry no notice 
 can be taken of his equity. 
 
 As regard s/ore«g'M ships, there is nothing in the Merchant 
 Shipping Act to annihilate the usual jurisdiction of the 
 Court. 
 
 Stocks and Shares. — As Government Stock is plentiful 
 in the market, readily obtainable, there is no specific per- 
 formance, as damages are an adequate satisfaction {Cuddee 
 V. Butter, 5 Vin. Ab. 638, p. 121). 
 
 But with regard to shares in a company, it is otherwise ; 
 
OUTLINES OP SPECIFIC PBEFOEMANCE. 
 
 and n.ot only can a purchaser enforce the contract speci- 
 fically, hut a vendor may compel a purchaser to complete 
 the execution hy registration of a proper transfer. The 
 duty of procuring registration of the transfer, apart from 
 Special contract and the rules of the Stock Exchange, seems 
 to fall upon the purchaser. (Fry, p. 633.) 
 
 The nature, of Stock Exchange transactions, and the 
 peculiarity of the various oHigations of broker, jobher and 
 operator respectively, are detailed in Fry's Specific Per- 
 formance (pp. 621-630). 
 
 The effect of a winiing-'ap petition. — If the petition was 
 presented before the contract was made, both parties being 
 ignorant of the fact, and subsequently a winding-up order 
 ensues, there is a common mistake, and specific performance 
 is not decreed (Emmerson's Case, 1 Ch. 433). It is however 
 otherwise when the contract, precedes the presentation of 
 a petition. 
 
 Goodwill of a business. — A contract to assign the 
 goodwill of a business, if it does not include the premises 
 will certainly not be enforced, on account of the incapcicity 
 of the Court to give specific directions as to what is 
 necessary to transfer it. 
 
 But where the goodwill is entirely or mainly attached 
 to the premises, a contract for the sale of the goodwill and 
 premises is enforceable. 
 
 It would however appear that an agreement to sell a 
 goodwill even with premises will not be enforced where 
 the business is peculiarly of a personal character, e.g. a 
 non-dispensing medical practice (May v. Thompson, 61 L. J. 
 Ch. D. 917). 
 
 Having dealt with sales, other contracts to be noticed are : 
 
 Contracts to enter into partnership.— If it is for a 
 
CONTRACTS. 
 
 partnership at will, the fact that it can be dissolved at any 
 moment and specific performance would be useless, renders 
 it inadvisable. If however the partnership is to continue 
 for a fixed term of years and there have been acts of part 
 performance, the Court will exercise its powers (England v. 
 Curling, 8 Beav. 129). In such a case the Court will 
 decree that the parties execute a proper deed. 
 # 
 
 Contracts for hire and service. — Such contracts are 
 not specifically enforced, for the personal and confidential 
 character of the relationship would result in an enforced 
 performance being worse than a non-performance. Some- 
 times indirectly the Court may enforce them, as in Lumley 
 V. Wagner, 1 De G. M. & G. 616. W. having agreed with 
 L..that she would sing at L.'s theatre for a certain period, 
 and that she would not sing elsewhere during that period, 
 the Court granted an injunction against W. singing at a 
 rival theatre. But it is stated that the principle of this 
 case will not be extended (Fry, p. 375). 
 
 Contracts of agency are unenforceable specifically. 
 
 Apprenticeship. — Actions for specific performance of 
 articles of apprenticeship cannot be maintained. " The 
 Court cannot compel an apprentice to work, nor can it com- 
 pel the master to instruct " ( Webb v. England, 29 Beav. 44). 
 
 Contracts to build. — Since Lord Cairns' Act (21 & 
 22 Vict. c. 27), where the contract is for the building of a 
 house and also for the grant and acceptance of a lease, the 
 Court will grant specific performance of the contract to 
 take the lease, and give damages for not building the 
 house. 
 
 Generally, however, the Court will not enforce contracts 
 to bnildf because it would be wnable to enforce its judgment. 
 
8 OUTLINES OF. SPECIFIC PEEFOEMANOB. 
 
 But the Court has frequently compelled railway companies 
 to execute works on a concurrence of the following facts : — 
 
 (a) The work to he done defined. 
 
 (6) A material interest to the plaintiff in its execution 
 not adequately compensated by damages. 
 
 (c) Possession of the land ohtained from the plaintiff by 
 the defendant under the contract. 
 (Storer v. ■Great Western Bailway Co., 2 Y. & C. 48, and 
 Wilson V. Furness Bailway Co., L. E. 9 Eq. 28.) 
 
 In the fiist-mentioned case, plaintiff and defendant had 
 come to an agreement by which plaintiff withdrew his 
 opposition to defendant's railway bill, on their undertaking 
 to purchase so much of his land. as was necessary for their 
 purposes at a price named, and to construct and for ever 
 thereafter maintain one neat archway sufficient to permit 
 a loaded carriage of hay to pass under the archway at 
 such place as the plaintiff, his heirs and assigns, should 
 think most convenient in his pleasure grounds, and to form 
 and complete the approaches to such archway. But in 
 Wilson V. Northampton and Banbury Bailway Co., L. E. 9 Ch. 
 Ap. 279, where the agreement was merely to erect a station 
 on part of the lands purchased from the landowner, but 
 there was no stipulation as to the kind of station or as to 
 the mode of using it, the Court held that the agreement 
 was too indefinite to be specifically enforced, and only an 
 inquiry as to damages was directed. 
 
 Contracts for mortgages. — Executory contracts to 
 mortgage or lend on mortigage wholly unperformed are 
 not enforceable specifically ; but it is otherwise as to con- 
 tracts to execute a mortgage when the money has been 
 actually advanced. 
 
 Contracts with penalties. — Yery frequently in con- 
 
CONTEAOTS. 9 
 
 tracts for the performance or non-performance of certain 
 acts, a clause is inserted providing for the payment of a sum 
 of money in the contrary event, (a) Whether such sum 
 be regarded by the Court as a penalty or as liquidated 
 damages, the party cannot elect to break his contract on 
 payment of the amount, but the contract will be specifi,cally 
 enforced. The leading case is French v. McCale (2 Dr. & 
 War. 269), where it is laid down by Lord St. Leonards : 
 " If a thing be agreed to be done, though there is a penalty 
 annexed to secure its performance, yet the very thing 
 must be done ; " he cannot elect to break his engagement 
 by paying for the violation of his contract. 
 
 (b) The intention of the parties, however, may be that 
 the promisor should have the right to do the act, paying a 
 higher sum on one alternative than the other, e.g. a tenant 
 agreeing to pay two guineas per acre for meadow land, but 
 if he used it as arable land, then four guineas per acre. 
 Whether the contract falls under (a) or (b) is a question 
 of construction. 
 
 Contracts to compromise. — These will be enforced, 
 and if a suit has been commenced, the Court has power to 
 stay further proceedings on a compromise being effected 
 {Eden V. NaisJi, 7 Ch. D. 781). 
 
 Contracts to refer to arbitration. — Such contracts 
 were originally iiot enforced, but the Common Law Pro- 
 cedure Act, 1864 (17 & 18 Vict. c. 125, s. 11), provides ; 
 "Whenever the parties to any deed or instniment in 
 writing to be hereafter made or executed, or any of them, 
 shall agree that any then existing or future differences 
 between them or any of them shall be referred to arbitra- 
 tion, and any one or more of the parties so agreeing, or any 
 person or persons claiming through or under him or them^ 
 
10 OUTLINES OF SPECIFIC PERFORMANCE. 
 
 shall nevertheless commence any action at law or suit in 
 eqnity against the other party or parties or any of them, 
 it shall he lawful for the Court in which such action or suit 
 is brought, or a judge thereof, on application by the de- 
 fendant or defendants or any of them after appearance and 
 before plea or answer, upon being satisfied that no suffi- 
 cient reason exists why such matters cannot or ought not 
 to be referred to arbitration according to such agreement 
 as aforesaid and that the defendant was at the time of the 
 bringing of such action or suit and still is ready and 
 willing to join and concur in all acts necessary and proper 
 for causing such matters so to be decided by arbitration, to 
 make a rule or order staying all proceedings in such action 
 or suit on such terms as to costs and otherwise as to such 
 Court or judge may seem fit." Since the Act orders have 
 been made which indirectly have the effect of compelling 
 the plaintifif specifically to perform the contract to refer to 
 arbitration. The Act ought to be liberally construed 
 {Willes/ordy. Wafeon, L. E. 14 Eq. 572), and the section in- 
 cludes agreements to refer to foreign courts (Law v. Jarratt, 
 8 Ch. D. 26). 
 
 Awards. — The Court of Chancery in many oases decreed 
 the specific performance of awards, though not made rules 
 of Court, for the performance of some specific thing, as to 
 convey an estate, but not, it would seem, awards simply to 
 pay money. The Court refuses to enforce them if in ex- 
 cess of the arbitrator's authority, defective or uncertain. 
 The unreasonableness of the submission to the arbitrator 
 is also a reason for refusing specific performance. 
 
 Contracts not to apply to Parliament. — As the 
 Court only acts in personam, it has power upon a proper 
 case to restrain a person where the applicant is acting upon 
 
CONTEACTS. 1 1 
 
 private grounds only (Steele v. North Metropolitan Board of 
 Works, L. E. 2 Ct. 238). But if tlie application to the 
 legislature may he urged upon grounds of pvhlic policy, it 
 will not interfere (Lancaster and Carlisle Railway Co. v. 
 N. W. By. Co., 2 K. & J. 293). 
 
 Contraets for separation deeds. — Contracts pro- 
 viding for Beparations*«M fatura are void as against public 
 policy, e.g. provisions relative to separation contained in 
 an antenuptial settlement ; but contracts to live separate 
 made on the eve of an actual separation are valid and will 
 be specifically enforced. Therefore, a husband who has 
 covenanted with trustees to allow his wife to live separate 
 and not to visit her, will be restrained from infringing his 
 covenant ; and if he has covenanted not to take proceedings 
 for the restitution of conjugal rights in the Divorce Court, 
 he will be restrained by injunction if he afterwards consti- 
 tute such a suit (Hunt v. Hunt, 4 De G. T. & J. 221). 
 The Court has power to enforce specific performance of an 
 agreement for a separation deed and for the compromise of 
 a divorce suit without infringing the Judicature Acts 
 (Hart V. Eart, 18 Ch. D. 670)* 
 
 Foreign contracts. — ^If the defendant is here within 
 the jurisdiction, the contract may be enforced (Penn v. Lord 
 Baltimore, 1 Ves. Sen. 444) ; and in Eart v. Eerwig, L. E. 
 8 Ch. 860, where the defendant was domiciled in Ham- 
 burg, it was stated by James, L.J., that where the 
 contract, though made abroad, is to deliver in specie to a 
 person in this country, and the thing itself is brought 
 here, the Court will see that the thing to be delivered 
 here does not leave the country. Of course specific per- 
 formance cannot be enforced against a foreign government 
 (Smith V. Weguelin). Contracts relating to expectancies 
 
12 OUTLINES OF SPECIFIC PEEFOEMANCE. 
 
 and contingent interests to arise on death, have teen 
 enforced {Bechley v. Nmland, 1 P. Wms. 182). 
 
 It must be- generally noticed that the Court •will not 
 specifically enforce voluntary contracts {Jeffreys v. Jeffreys, 
 Cr. & Ph. 138), revooahle contracts, or those entered into 
 merely for the purposes of art, science, or religion, so long 
 as there is no property the right to which is taken away 
 from the person complaining. 
 
( 13 ) 
 
 CHAPTEE III. 
 
 Grounds foe refusing Belief. — ^Defences to an Action. 
 
 Foe tlie purpose of conveniently dealing with the defences 
 open to a defendant in an action for specific performance, 
 without attempting to make any scientific classification, 
 it may be noticed that there are : — 
 
 (a) Some, which if substituted in a common law action 
 
 for damages would produce a similar effect. 
 
 (b) Others, such as want of mutuality of obligation, 
 
 which are confined to specific performance actions. 
 
 (c) Others, which, although constantly recurring in 
 
 common law action for damages, produce in specific 
 performance actions either a dissimilar or at any 
 rate not a precisely similar result. 
 The first class will only be very briefly noticed, as they 
 form part of the general law of contracts. 
 
 (a) Incapacity to contract, such as Lunacy, Coverture. 
 — As regards coverture, married women could, even prior to 
 the Married Women's Property Act, 1882, contract freely 
 to bind their separate estate not subjected to a restraint 
 against anticipation, and specific performance could be 
 enforced against them, and in their favour. (Picard v. 
 Hine, L. E. 5 Ch. 274.) 
 
 The 1882 Act, s. 1 (2) and (3), enacts as follows : " A 
 married woman shall be capable of entering into and 
 rendering herself liable in respect of and to the extent of 
 
1-1 OUTLINES OF SPECIFIC PERFOKMANCE. 
 
 her separate property on any contract . . . ." and " every 
 contract entered into by a married woman with respect to 
 and to bind her separate property, shall bind not only 
 the separate property which she is possessed of or entitled 
 to at the date of the contract, but also all separate property 
 which she may thereafter acquire." A restricted construc- 
 tion was recently put upon the Act by Pearson, J., in Be 
 Shakespeare's Settlement, Deakin v. Lahin, 55 L. J. Ch. 44, 
 to the eifect that the Act does not enable her to enter into 
 a contract with respect to that which may possibly at some 
 future time be her separate property; but if she enters 
 into a valid contract with respect to existing separate 
 property and afterwards breaks it, any separate property 
 which she may have at the date of the recovery of judg- 
 ment against her for the breach will be liable for the 
 breach. 
 
 Non-concliusion of the contract. — It is often very 
 difficult to distinguish mere negotiations from contract ; 
 but if it were only , doubtful whether the contract was 
 concluded or negotiations still remained open, the Court 
 of Chancery used to refuse specific performance. Contract 
 is constituted by proposal on the one side and acceptance 
 on the other ; the acceptance should be unconditional and 
 communicated without unreasonable delay. Acceptances 
 containing words of subjection have often caused litiga- 
 tion. But it appears to be now settled that if a proposal 
 is accepted " subject to a contract to be settled by my 
 solicitors," or even " subject to a proper contract" a 
 condition is imposed which must be fulfilled before there 
 is any contract (Winn v. Bull, L. E. 7 Ch. D. 29, and 
 Harvey v. BamatrSs Inn, 50 L. J. Ch. 761) ; while if it is 
 only " subject to the title being approved by my solicitors," 
 such words would not entitle a purchaser to resist specific 
 
GROUNDS FOR REFUSING RELIEF. 15 
 
 performance if the vendor had a good title and the pur- 
 chaser's solicitor unreasonably withheld his approval 
 (Hussey v. Home-Payne, 4 Ch. App. 311). 
 
 The proposal may be withdrawn at any time before 
 acceptance, although a definite time for acceptance has 
 been graia^ted in the proposal (Cooke v. Oxley, 3 T. E. 653) ; 
 but notice \)f retraction must be given (Byrne v. Van Tren- 
 hoven, 5 C. P. D. 344). The acceptance once given cannot 
 be withdrawn ; and if a letter of acceptance is posted, the 
 contract is complete, although it never reaches its destina- 
 tion, nor can it be nullified by a telegram reaching the 
 proposer before the letter's delivery in course of post. 
 
 Incompleteness of the contract. — ^Every contract 
 should be complete, containing a description of the subject- 
 matter, parties, .price, and other terms. When reduced 
 to writing, the description may be identified by extrinsic 
 evidence, and the maxim " Id certum est quod cerium reddi 
 potest " is applicable (see Shardew v. Cottrell, 20 Ch. D. 90). 
 The same maxim affects the question of parties who may 
 be sufficiently identified by descriptive words as well as 
 by names, e.g. "proprietor" (but not "vendor"). The 
 price may be left to be ascertained by valuation. When 
 the contract specifies a mode of ascertaining the price 
 which is essential, the contract is conditional until the 
 ascertainment (Firth v. Midland Bailway Co., L. E. 20 Eq. 
 100), as when the sale is at a price to be fixed by A., who 
 refuses to value. 
 
 Marshall v. Berridge (51 L. J. Ch. 329), overruling Jagues 
 V. Millar, decides that an agreement for a lease, in order to 
 satisfy the requirements of the Statute of Frauds, must 
 state the date from which the term is to commence. There 
 is no presumption, as in an actual demise, that the date of 
 the agreement is to constitute the commencement of the 
 
16 , OUTLINES OF SPECIFIC PEEFOEMANCE. 
 
 term. Many of thp terms of a contract are, however, 
 implied by law, and therefore a contract to sell a house 
 implies that the interest sold is the fee siinplej and 
 probably a contract for an underlease im'plies that the sub- 
 lessee is to be subject to all the terms of the superior lease, 
 unless the proyisions'in the superior lease are unusual. 
 
 Illegality. — The illegality of a contract or any part of 
 a contract is of course a bar to specific performance", but 
 •the illegality must apparently be clearly made Out- 
 Ultra vires. — ^When corporations are created either 
 by Act of Parliament, charter, or registration under the 
 Companies Acts for special purposes, any contract totally 
 foreign to those purposes, or which' they are impliedly 
 prohibited from making, is void. A contiaot- ■ultra vires 
 as beyond the scope of the company as defined by the 
 memorandum of association cannot be ratified by the 
 unanimous consent of all the shareholders (Ashhury "Rail- 
 way Carriage Co. v. Biche, L. E. 7 H. L. 663) ; if, however, 
 it is within the scope of the company,' but simply beyond 
 the powers of the directors, it may become binding by the 
 company's ratification. 
 
 (b) The defences peculiar to actions for specific perform- 
 ance, as opposed to actions for damages, are — (1) Want of 
 mutuality of obligation ; (2) Hardship ; (3) Want of 
 fairness; (4) Inadequacy of consideration. 
 
 Want of mutuality. — Mutuality of consensus is essen- 
 tial to the validity of every contract; but to recover 
 damages there is no necessity for mutuality of obligation, 
 and therefore an infant can recover damages against a 
 person stii juris with whom he has contracted, although 
 
GROUNDS FOR REFUSING RELIEF. 17 
 
 he might himself have pleaded infancy; But for specific 
 performance, mutuality of obligation is essential, and there- 
 fore an infant cannot enforce specific performance (FligM 
 Y.Bolland, 4 Euss. 301). Formerly, if one of several devisees 
 in trust for sale was a married woman, the contract was 
 unenforceable by them ; and this was one of several reasons 
 which - previously existed 'against a"ppointing a ' married 
 woman a trustee. • 
 
 Exceptions, however, exist to the 'necessity of mutu- 
 ality : — - 
 
 (a) Unilateral contracts. 
 
 (5) Waiver. A voluntary settlor is incapable of enforcing 
 a contract for sale, but the purchaser may waive the 
 want of- mutuality and enforce it against him, or 
 if he reject the title can recover his deposi t. 
 " (c) A person who has not signed a contract required by 
 the Statute of Frauds to be in writing may en- 
 force it against the other party who has signed. 
 
 Want of fairness. — This is certainly a ground for 
 refusing the help of the Court. The period for testing 
 fairness is the time the contract was entered into. If a 
 vendor professes to sell whatever interest he has, and the 
 purchaser buys subject to such cbntingency, but in reality 
 the vendor knows he has no interest whatever, the con- 
 tracti is unenforceable. In contracts to sell at a price 
 to be fixed by a third person, the Court would no doubt 
 consider the unfairness of the valuer's conduct as a bar. 
 Even in the absence of any unfair advantage taken of a 
 state of intoxication, the Court will not assist the other 
 party to enforce it specifically. "The Court will not 
 generally exercise its extraordinary power in compelling 
 specific performance where 'to do so would necessitate a 
 breach of trust or of a prior contract with a third persoa, 
 
 c 
 
18 OUTLINES OF SPECIFIC PEEFOBMANCE. 
 
 or would compel a person to do what lie is not lawfully 
 competent to do, partly on the ground of the unfairness 
 and illegal taint of such a contract in itself, and partly of 
 the hardship to which it would expose the person forced 
 to execute it." Therefore if trustees enter into a contract 
 for sale under such circumstances that it is a breach of 
 trust, specific performance would not be enforced against 
 them, and the purchaser if innocent would be left to his 
 remedy of damages. Trustees who enter into a contract 
 of sale with needlessly depreciatory conditions of sale 
 cannot enforce specific performance (Bimn v. Flood, 53 L. 
 J. Ch. 537). In this case the trustees suggested restrictive 
 covenants, &c., which had in reality no existence ; such 
 needless precautions were calculated to deter purchasers, 
 as they were also required to indemnify the vendors 
 agaiust the consequences of any breach thereof. 
 
 Hardship. — If the result of a contract is to impose 
 great hardship on either of the contracting parties it wUl 
 not be specifically enforced ; as where half the purchase- 
 money would, under a will of a prior owner have gone 
 to a third party (Faine v. Browne, 2 Ves. 307) ; or as in 
 Peacock v. Penson, 11 Beavan, 355, where the contract 
 provided for a certain road being made by the vendor 
 over property retained by him, and it appeared that 
 making the road would risk the forfeiture of the lease of 
 part of the estate. 
 
 The period for judging of the hardship is the time the 
 contract was entered into. In some cases the Court has 
 refused its interference by reason of events subsequent to 
 the contract, especially if the plaintiff had control over the 
 estate. Covenants restrictive of the user of the land in a 
 particular way are not specifically enforced if the plaintiff 
 lias himself contributed to such a change of the surrounding 
 
GROUNDS FOR REFUSING RELIEF. 19 
 
 neighbourhood as to render it unreasonable to enforce 
 specific performance against the defendant (Dwifce of Bed- 
 ford V. Trustees of the British, Museum, 2 M. T. & K. 552) ; 
 but the mere fact that the character of the surrounding 
 neighbourhood has changed will not bar a person entitled 
 to enforce performance who has been no party to such 
 change (Sayers v. Collyer, 54 L. J. Ch. 1). Mere failure of 
 the objects of a purchasef s speculative schemes of course 
 do not constitute a defence. Where a forfeiture is sure to 
 result to a defendant by reason of a judgment for specific 
 performance, the contract will not be enforced. 
 
 Inadequacy of consideration. — At common law, as 
 long as there is a consideration, the Court does not enter 
 into its adequacy, as a general rule. But as regards 
 specific performance, in some cases, such as Faldke v. Gray, 
 4 Drew. 651, mere inadequacy of price was treated as a 
 sufficient defence to an action ; it now, however, seems that 
 unless it is so gross as to shock the conscience, amounting 
 to conclusive evidence of fraud, that inadequacy is not 
 per se a sufficient ground for refusing specific performance. 
 Previous to 31 Vict. c. 4, sales of reversionary interests 
 stood on a difiierent footing than interests in possession, and 
 they were liable to be set aside unless the purchaser could 
 prove that he gave the market price ; since that Act they 
 are assimilated to interests in possession. But the practice 
 of the Court to relieve unwary young men from catching 
 bargains is not altered by that Act (Nevill v. Snelling, 15 
 Ch. D. 679, is an extreme case). 
 
 (c) There remains to be considered the third class of 
 defences. 
 
 Uncertainty of the contract. — A greater amount of 
 certainty is required in an action for specific performance 
 
 c 2 
 
20 OUTLINES OP SPECIFIC PEEFOEMANCB. 
 
 tlian in an action for damages. It seems impossible to lay 
 down any general rule as to what is sufficient certainly. 
 Where a vendor had agreed to sell an estate, with the 
 reservation of the necessary land for making a railway 
 through it to Prince Town, it was held that the contract 
 was unenforceable by the purchaser (Pearcev. Watts, L. E. 
 20 Eq. 492). 
 
 Lapse of time. — ^Delay in taking proceedings for 
 specific performance is a bar. The statute 21 Jao. 1, c. 16, 
 does not4ipply, but the rules of equity are more stringent, 
 as a plaintiff must exert himself energetically, the maxim 
 being " Yigilaniibm^ormientibus sequitas suhvenit." So a 
 delay of three and a half years has been held fatal {Hods 
 V. Williams, 4 D. M. & G. 674), and eighteen months in 
 Southcomhe v. Bishop of Exeter, 6 Hare, 213 ; but it is other- 
 wise if the plaintiff, having got the equitable estate, has 
 simply delayed taking an action the only object of which 
 is to get in the legal estate (^Carton v. Bury, 10 Ir. Ch. E. 
 692). 
 
 The Statute of Frauds. — The 4th section enacts 
 " That no action shall be brought. 
 
 Whereby to charge any executor or administrator 
 upon any special promise to answer damages out of 
 his own estate : 
 
 Or, whereby to charge the defendant upon any special 
 promise to answer for the debt, default or mis- 
 carriage of another person : or to charge any person 
 upon any agreement made upon consideration of 
 marriage: 
 
 Or, upon any contract or sale of any lands, tenements, 
 or hereditaments, or any interest in or concerning 
 them : 
 
GROUNDS FOR REPUSINO RELIEF. 21 
 
 Or, upon any agreement that is not to be performed 
 within the space of one year from the making thereof : 
 — ^unless the agreement upon which such action shall be 
 brought, or some memorandum or note thereof, shall be in 
 writing and signed by the party to be charged therewitii, 
 or some other person thereunto by him lawfully authorized." 
 Non-compliance with its formalities does not affect the 
 validity of the contract 'itself, but only bars the right to 
 sue the other party on it, and therefore the contract can be 
 used as a defence, though not for the purposes of counter- 
 claim (Miles V. New Zealand Alford Estate Co., 54 L. J. E. 
 Gh. 1035), and notwithstanding the statute a person can 
 take advantage of any lien. 
 
 How to take advantage of the statute. — ^If the contract is 
 not in writing, but the plaintiff sues on it, and in his state- 
 ment of claim states a contract generally, the defendant 
 must expressly . plead the statute in his statement of 
 defence to take advantage of it. As to what is sufficient 
 to satisfy the statute, the reader is referred to the general 
 text books (Broom's Common Law, pp. 373-436, Ohitty on 
 Contracts, &c.) It may be briefly noticed that there must 
 be a written statement signed by the party to be charged 
 containing expressly or by necessary inference the parties, 
 subject-matter, consideration and promise. The writing 
 must be a concluded contract, and not meiely basis for a 
 contract. The mere fact that a more formal contract is 
 intended to be executed will not prevent a paper duly 
 signed and containing the terms from being binding (for a 
 summary of cases hereon, see Winn v. Bull, 7 Gh. D. 29, 
 recently followed in Harvey v. Barnard's Inn, 60 L. J. Oh. 
 751). The writing must be signed, it need not be sub- 
 scribed ; pencil signature is sufficient, so may initials be. 
 If a signature is placed with the intention of authentica- 
 ting the entire paper, it is sufficient. An auctioneer is an 
 
22 OUTLINES OF SPECIFIC PERFOEMANCjp. 
 
 agent for a purchaser as well as for a vendor, and can bind 
 a purchaser by entering his name. Letters may be referred 
 tQ for signatures, supplying terms, and tliey may constitute 
 the whole contract. 
 
 ^^..^-s^ CASES IN WHICH VERBAL CONTRACTS 
 
 fjj^ A /ft^tx-tw^ ^jjE ENFORCED. 
 
 •^A/ ^^ Sales by the Court. 
 
 f//'^ (2) Contracts where the non-reduction to writing was 
 C9,used by the fraud of the other party. This extends to 
 collateral verbal promises which a person, claiming under 
 a written contract, fraudulently refuses to recognise. 
 
 (3) In cases where the defendant omits to plead the 
 statute. 
 
 (4) If part' performance of a verbal contract has 
 occurred. 
 
 The equitable doctrine of part performance. — ^It should be 
 observed that according to Britain v. Bossiter, 11 O B. D. . 
 123, it is only in contracts relating to land that part per- 
 formance is of any avail. The foundation of the doctrine 
 is clearly stated in the judgment of Earl Selborne in 
 Maddison v. Alderson, 62 L. J. Q. B. 740 : " In a suit 
 founded on part performance the defendant is really 
 ' charged ' upon the equities resulting from the acts done 
 in execution of the contract, ;and not upon the contract 
 itself." It is not every act of part performance which will 
 be sufficient, but 
 
 (a) The acts must be such as are indisputably referable 
 
 to the contract in question and not referable to any 
 
 other title. 
 
 (&) Acts that are merely auxiliary and introductory, 
 
 such as delivery of abstract, measurements of the 
 
 land, &o., are clearly insufficient. 
 
GEOUNDS FOK REFUSING RELIEF. 23 
 
 (c) Acts capable of being undone and admitting of the 
 parties being remitted to their original position are 
 of no avail. 
 
 The contract which the acts of part perfoimance allow to 
 be set up must be of such a nature as that the Court 
 would have had jurisdiction if it had been in writing, 
 and therefore an action tor work and labour done, alleging 
 fraud and part performance, was dismissed on this ground 
 {Kirk V. Bromley Union, 2 P. L. 640 ; but see now also 
 Britain v. Bosdter, 11 Q. B. D. 123). 
 
 .4s to (o). It has been held that if a tenant in posseesion 
 sue for specific performance of an alleged contract for a ^ 
 
 Jkx^ 
 
 ^ ^ ^ o— -— - / A- /? 
 
 new lease, the mere fact of his continuance m possession is A ^i-f' 
 not sufficient, in that it was referable to his then character '*' 
 of tenant {Nunn v. Fabian, L. R. 1 Ch. App. 35) ; but the ■^"^^ 
 possession of a tenant after the expiration of a lease which 
 was referable only to a contract for a renewal, has been con- 
 sidered a part performance. The acknowledged possession , 
 of a stranger is only explicable on the supposition of an 
 agreement (Pom v. Coombe, 1 De G. & J. 34), and the 
 possession is a part performance as regards both owner and 
 stranger. 
 
 In Maddison v. Alderson, the appellant was induced to 
 serve A. as his housekeeper for many years, and to give up 
 other prospects in life, by a verbal promise of A. to leave 
 her a farm for her life. A. signed a will not duly executed. 
 Held, that there was no part performance unequivocally 
 referable to the contract alleged. " As to acts done in part 
 performance, they must be such as could be done with no 
 other view than to perform the agreement " {Gunter v. 
 Hahey, Ambl. 686). The expenditure of money, provided it 
 be such as would be only likely to take place in such a 
 contract as that alleged, and it be with the privity of the 
 other party, is an act of part performance. 
 
24 OUTLINES OF SPECIFIC PEEFORMANCE. 
 
 Expenditure, if set up by a tenant as an act of part per- 
 formance of a contract to acquire a substantial interest in 
 the property, is less equivoeal than possession, for mere 
 possession is referable to a tenancy at will as well as to a 
 larger interest, while considerable outlay is rationally to 
 be referred only to some contract to confer a substantial 
 interest in the property. 
 
 Under (c.) — It has been decided that paynient of the 
 purchase money is not an act of part performance for the 
 purpose of the Statute of Frauds, the reason given being 
 that it can be repaid. But the reasoning seems unsatis- 
 factory, for the vendor may become bankrupt before re- 
 payment. Payment of an increased rent seems to be a 
 sufficient act of part performance (Nunn v. Fabian, L. E. 
 1 Ch. App. 35). 
 
 Marriage of itself is not a sufficient part performance ; 
 but if an antenuptial verbal agreement is followed not 
 only by marriage but by possession taken and expendi- 
 ture of money, that is sufficient (Swcomhe v. Pinniger, 3 
 De G. M. & Gr. 671). A written agreement after marriage 
 in pursuance of a verbal agreement before is sufficient for 
 specific performance. 
 
 What evidence is required of the parol contract. — The Court 
 will decline to act on the affirmative evidence of one 
 witness if uncorroborated. 
 
 Misrepresentation. — To maintain the common law 
 action for deceit, the plaintiff must prove that the other 
 party who made the statements knew them to be false, or 
 was utterly reckless whether they were true or false. 
 (Beese Biver Mining Co. v. Smith, 4 H. L. 79). But 
 statements contrary to fact, if made with a view to a con- 
 tract by a party to the contract (not by a stranger), are 
 grounds for resisting specific performance, though the party 
 
GEOUNDS FOR EEFUSING RELIEF. 25 
 
 making them believed them to be true. Similarly innocent 
 misstatements by an agent will bar an innocent principal. 
 They must also be in relation to the contract in question, 
 with a view to induce the other party to enter into it 
 (dans locum contractui). The party resisting specific 
 performance must have relied on them, and they must be 
 statements of alleged facts, not merely expressions of 
 opinion. If the other" party relies on them, it is no 
 answer to show that he might have adopted further means 
 of investigation, though if he does make further inves- 
 tigations, he is presumed to have relied on his own 
 investigations {Jennings v. Broughton, 5 De G. M. & 
 G. 126). 
 
 A misrepresentation made by a vendor with regard to 
 some patent defect in the thing sold when it is conclu- 
 sively proved that the purchaser had seen the thing, so 
 that this defect must necessarily have been known to him, 
 will not constitute a defynce to specific performance. If 
 a sale is stated to be " with all faults " it wiU not excuse 
 the vendor from the consequences of his own misrepre- 
 sentations. Certain essential defects in the subject-matter 
 may be ground for defence, although there has been no 
 misrepresentation. The defect, however, must not be a 
 patent one, and therefore the circumstance that the estate 
 was described as inclosed with a ring fence when it was 
 not, was no ground of defence in the case of a purchaser 
 who had seen the property and had lived near it all his 
 life (Dyer v. Margrave, 10 Yes. 606). 
 
 The following latent defects have, however, afforded 
 grounds for relief, viz. latent easements, liability of the 
 property to be taken by a company under compulsory 
 powers. If a sale is stated to be " with all faults," a 
 purchaser cannot complain of latent defects, whether dis- 
 coverable or not, but the vendor must not take active 
 
26 OUTLINES OF SPECIFIC PEKFOKMANOE. 
 
 steps to conceal the faults, or he guilty of any misrepre- 
 sentation. 
 
 Fraud. — Fraud includes not only statements contrary 
 to fact, made with knowledge of their falsity, but also 
 all nnconscionable and deceptive dealing of either party. 
 Silence of a material fact which it is the duty of the one 
 party to disclose, will furnish a defence to the other in a 
 specific performance action. 
 The duty of disclosure exists 
 (a) Where there is a pre-existing fiduciary relationship, 
 
 such as that of trustee and cestui que trust, 
 (h) In contracts uherrimse fidei, as marine insurance 
 contracts to enter into partnership, suretyship is 
 not included in this class (see judgment of Fry, J., 
 in Davieg v. London and Provincial Marine Insur- 
 ance, 8 Ch. D. 469). 
 (c) In sales of realty vendors to some extent must 
 
 disclose defects in title, latent easements. 
 This in the recent case of Heywood v. Mallalien, 53 
 L. J. Ch. 492. A vendor put up a house for sale by 
 auction, with a general condition that it was sold subject 
 to any existing rights and easements, but without any 
 mention of any specific easement. At the time the 
 vendor was aware of a claim by the owner of an adjoin^ 
 ing house to use part of the premises for washing and 
 brewing. The claim was referred to at the auction, 
 and the vendor's solicitor said that nobody need be 
 deterred from buying on that account, as in all pro- 
 bability it would not be heard of again. Held, that it 
 was the vendor's duty to have referred to the claim in 
 the particulars, that the condition was misleading and 
 not cured by the occurrences in the auction room, and 
 specific performance was refused. 
 
GROUNDS FOE REFUSING BELIEF. 27 
 
 A purchaser of realty is under no obligation to disclose 
 to the. vendor any fact which may tend to enhance the 
 value, unless perhaps he obtained his knowledge by 
 trespass, but he must disclose any fact unknown to the 
 vendor which increases his interest in the property, such 
 as the death of a prior life tenant if a reversion is being 
 sold. 
 
 (d) In the formatioh of companies every prospectus 
 
 m^ust set out the contracts entered into previous to 
 
 the issue of the prospectus (30 & 31 Vict. c. 131, 
 
 s. 38). 
 
 The Sales of Land by Auction Act, 1867 (30 & 31 Vict. 
 
 G. 48), contains certain stringent conditions as to the use 
 
 of puffers at auctions. The fraud of an agent of the 
 
 plaintiff is a defence in a specific performance action: — and 
 
 an opinion is expressed that the fraudulent act of a mere 
 
 stranger might have the same effect if the contract was 
 
 still purely executory (Fry, p. 313). Fraud is also ground 
 
 for rescission at the instance of the party defrauded, but 
 
 such right may be lost by : — 
 
 (1) The impossibility of rescission. 
 
 (2) Acquisition of rights by persons innocent of the 
 
 fraud. 
 
 (3) Election by the person defrauded to abide by the 
 
 contract. 
 
 A shareholder who has taken shares in a company on 
 the faith of a fraudulent prospectus should commence his 
 action for rescission against the company prior to the 
 commeneement of the winding-up. 
 
 Personal fraud is always a bar to specific performance, 
 although the party defrauded may have lost his right to 
 rescission. 
 
 MISTAKE. — In some cases mistake furnishes an 
 
28 OUTLINES OF SPECIFIC PEEFOEMANCE. 
 
 absolute bar to specific performance, in other cases it 
 affords no such defence if the plaintiff is willing to make 
 reasonable compensation to the defendant for the mistake 
 made. 
 
 Parol evidence of mistake is always admissible as a 
 defence, even in cases where the contract requires writing 
 by the 4th section of the Statute of Frauds. (See 
 Tovmshend v. Stangroom, 6 Ves. 328.) 
 
 Where the mistake of the defendant is unintentionally, 
 d fortiori when intentionally, contributed to by the plaintiff 
 there will be no specific performance. A purchaser's 
 action for specific performance has sometimes been dis- 
 missed notwithstanding that it is tbe vendor's own gross 
 mistake (^Webster v. Cecil, 30 Beav. 2), and vice versa 
 (Malins v. Kevan, 2 Ke. 25) ; but generally the cases where 
 a defendant has escaped on the ground of a mistake not 
 contributed to by the plaintiff have been oases where itj 
 would have amounted to an injustice to hold him to his 
 bargain. 
 
 Effect of a parol variation set up by a 
 defendant. — 
 
 (a) Where the parol variation set up by the defendant 
 shows that after the parties to the contract had mutually 
 agreed an error occurred in the reduction into writing. 
 
 In this case, if the Court sees that the written contract 
 varied according to the defendant's contention represents 
 the true contract between the parties, it will enforcie 
 specific performance of the contract so varied. 
 
 This is therefore a case for rectification. 
 
 (6) Where the parol variation set up by the defendant 
 ' does not show a mere mistake in the reduction into 
 writing, but that one party understood one thing and the other 
 another thing, there is no specific performance. 
 
GEOUNDS FOE EEFUSISTG EELIEF. 29 
 
 (c) If the parol variation falls clearly under neither, 
 but that the defendant merely contracted under a mistake, 
 it puts the plaintiff to his election either to have his 
 action dismissed or to have the contract executed with the 
 parol variation. 
 
 Slight parol evidence of a mistake peculiar to one party 
 is insufficient to enable a defendant to creep out of his 
 bargain. The common mistake of both parties as to the 
 subject-matter of the contract is not only a ground for 
 resisting specific performance, but also for rescission. The 
 mistake of one party to a contract in its inception is never 
 a ground for compulsory rectification, against the wish of 
 the other party who made no mistake, it may be for 
 rescission. Thus in the recent case of Marshall v. Paget, 
 54 L. J. Ch. D. 575, the plaintiff granted a lease of certain 
 premises to the defendant, and by mistake included a first 
 floor which she intended to reserve. The defendant 
 pleaded that the mistake was made by the plaintiff alone. 
 It was held that the lease must be rescinded unless the 
 defendant elected to take the premises subject to the 
 reservation of the first floor. 
 
 As regards specific performance at the instance 
 of a plaintiff with rectification of a mistake. — 
 
 (a) If the mistake is that of the plaintiff alone, he cannot 
 enforce the contract so corrected against the other party 
 who made no mistake. 
 
 (V) If there is not any mistake in the inception of the 
 contract, but merely a common mistake of both parties in 
 the reduction into writing, there seems no reason why 
 the plaintiff should not have the mistake rectified and 
 the true contract of the parties enforced, but the cases do 
 not go to this length. (See Tovmshend v. Stangroom, 6 
 Ves. 328.) It however appears that a plaintiff can have 
 
30 OUTLINES OF SPECIFIC PERFORMANCE. 
 
 specific performance (1) Where be sues on a written 
 contract, and the defendant ple9,ding the parol Tariation, 
 he seeks for specific performance with the variation. (2) 
 Where the parol variation is in favour of the defendant, 
 and the plaintiff offers to perform the agreement with 
 the variation. (3) Where the parol variation has not 
 been ptit into writing on account of the defendant's 
 fraud. 
 
 Although, it is not connected with mistake, it should 
 be noticed that if plaintiff or defendant offer parol 
 evidence of a parol contract subsequent to the written one 
 (required by the Statute of Frauds to be in writing), 
 it is inadmissible unless the refusal to perform it 
 might amount to fraud, or there have been such acts of 
 part performance as would have justified a decree in 
 the case of an original substantive agreement. (Snell, 
 p. 554). 
 
 Incapacity of the Court to perform part of the 
 contract. — The Court will not generally compel specific 
 performance of a contract unless it can execute the whole. 
 It is often difficult to decide whether a contract is entire 
 or divisible. A contract for the sale of property in one 
 lot will generally be considered iudi visible ; therefore when 
 two undivided seventh shares of land were sold in one lot 
 and a good title can only be shown to one seventh share, 
 there was no specific performance ; but when property is 
 sold in distiuct lots the vendor is entitled to compel the 
 purchaser of two lots to complete his purchase of one lot 
 though the title to the other lot is defective. It is a 
 priaciple of the Court not to compel specific performance 
 of executory contracts unless it can at the time execute the 
 whole contract on both sides. Thus, where the defendant 
 agreed to grant a lease of a coal mine to the plaintiff, and 
 
GROUNDS FOE EEFUSING EELIEF. 31 
 
 tlie latter agreed to employ defendant as manager, specific 
 performance of the part relative to the lease was refused. 
 But this rule is confined to executory, and does not extend 
 to executed contracts, and therefore the Court will restrain 
 the breach of a covenant in a lease, though it niay contain 
 others which the Court could not possihly enforce specifi- 
 cally. 
 
 "When an executory - contract has both positive and 
 negative covenants, and the Court is unable to specifically 
 enforce the positive covenants directly, it has often enforced 
 by injunction the negative covenants, as in Lumhy v. 
 Wagner, 1 De G. M. & G. 616, where W. having agreed 
 with L. to, sing at L.'s theatre, and not to sing elsewhere 
 for a certain period, the Court granted an injunction 
 against the breach of the negative covenant ; and in the 
 recent case of X><m»eZZv. Bennett, L. B. 22 Ch. D. 835, where 
 a fish-curer contracted to sell all surplus fish to a manure 
 manufacturer for two years and not to sell to any other 
 manufacturer during the same period, the Court granted 
 an injunction to restrain the breach of the negative stipu- 
 lation. But apparently the negative covenants must be 
 express, though in some cases the Court has interfered yj ^/2'/v 
 when they were merely implied, as in Sevin v. Deslandes, / 
 
 30 L. J. Ch. 467. In recent cases the whole doctrine of 
 Lwmley v. Wagner has been criticised, and will probably 
 not be extended. It is stated in Try, p. 375, " It may be 
 conceived that the principle of these cases will not be 
 extended, that negative covenants will not be implied 
 except in those cases where the Courts have already done 
 so ; and that even the presence of express negative cove- 
 naats wUl not be found a sufficient ground for jurisdiction 
 unless the contract is of a kind of which specific perform- 
 ance can be granted." 
 
 Though principally important as regards procedure, it 
 
32 OUTLINES OF SPECIFIC PEEFOEMANCB. 
 
 must be observed that sec. 2 of Lord Cairns' Act, 21 & 
 22 Vict. c. 27, enacted : " In all oases -where the Court of 
 Chancery has jurisdiction to entertain an application ■ for 
 ^ an injunction against a breach of any covenant, contract 
 or agreement, or against the commission or continuance of 
 any wrongful act, or for the specific performance of any 
 covenant, contract, or agreement, it shall be lawful for the 
 same Court if it shall think fit to award damages to the 
 party injured, either in addition to or in substitution for 
 such injunction or specific performance." And so in Soames 
 V. Edge, Johns. 669, where a defendant had agreed to 
 accept a lease and build a house, the Court gave specific 
 performance as regards the lease, and damages for -not 
 building the house. 
 
 The Act gave a discretionary power to the Court to 
 award damages in derogation of the plaintiff's right to 
 specific performance. The student should observe in con- 
 nection with this Act that : — 
 
 (1) A plaintiff cannot employ the Act to obtain damages 
 
 where previous to the Act he could not have re- 
 covered damages in an action at law {Boch Portland 
 Cement Co.y. Wilson, 52 L. J. Ch. D.). 
 
 (2) To recover damages under the Act, the plaintiff 
 
 must have been able to show that at the time he 
 commenced his suit he was entitled to specific per- 
 formance. E.g. Where a plaintiff prayed for the 
 performance of an alleged contract by a company 
 to allot shares to him, and also if all the shares 
 had been allotted to other persons, for damages, 
 and it appeared that before filing the bill all the 
 shares had been allotted, it was held that specific 
 performance from., the first having been impossible, 
 hi^ claim for damages failed also (Ferguson V. 
 Wilson, L. E. 2 Ch. 77). 
 
GROUNDS FOE REFUSING RELIEF. 33 
 
 Now the powers vested in the Court of Chancery by- 
 Lord Cairns' Act, and the powers of the Common Law 
 Courts to award damages, are vested by the Judicature 
 Act in the High Court, and the Chancery Division can 
 give damages where there was formerly no specific 
 performance. 
 
 Still, if the plaintiff has no case for specific perform- 
 ance when lie issues his teri^ he should not invoke the dis- 
 cretionary power of the Court, but ask for damages only 
 {White V. Boby, 26 W. E. 153). 
 
 If he has a case for specific performance when he issues 
 the writ claiming specific performance or in the alter- 
 native damages, and subsequently by his own act renders 
 i^ecific performance impossible, as by selling the property, 
 although justifiably, by reason of the defendant's default, 
 he shoTild ask leave to amend and strike out his claim for 
 specific performance, or else he will not get damages 
 (Hipgrave v. Case, 62 L. J. Ch. D. 399). 
 
 When an action is brought for specific performance, 
 and specific performance is ultimately refused, for causes 
 peculiar to the defendant, such as his mistake, the Court 
 will now consider the question of damages, and give the 
 same damages as would under the- former practice have 
 been given in an action at law (TowspZiw v. James, 15 Ch, 
 D, 222, 223). 
 
 Want of a good title. — The pnr^aser must make 
 out a title free from reasonable doubt. The Court will 
 not consider a title doubtful merely because there is (1) a 
 slight risk of some future litigation against the purchaser ; 
 
 (2) a decision adverse to the title by an inferior Court,- 
 which decision the superior Court holds clearly -wrong ; 
 
 (3) a title dependent on a preSlJmption, if it would be the 
 duty of the judge to give a clear direction to the jury in 
 
34 OUTLINES OF SPECIFIC PEHFOEMANCB. 
 
 favour of the fact, and not to leave the evidence generally 
 to the consideration of the jury. The Court -will now 
 generajly ascertain and decide the point which causes 
 the doubt, though it was laid down by James, L.J., in 
 Alexander v. Mills, 6 Ch. App. 136, that if the point turned 
 upon the construction of some iU-expreseed and inarti- 
 fioially drawn instrument, and all the parties were not 
 before the Court, it might still be considered " doubtful," 
 and would not be thrust on a purchaser, but that such 
 cases are exceptional. (And see Chapter IV., on Procedure.) 
 
 A condition of sale providing that requisitions on title 
 must be sent in within a certain time from delivery of 
 the abstract of title, with a stipulation that time shall be 
 deemed of the essence of the contract, or else be deemed 
 waived, is only effective when a "perfect" abstract is 
 delivered, unless the condition provides that time shall 
 run from its delivery, whether perfect or not. 
 
 Taking possession may be a waiver of objections to 
 title ; it is not so, however, if it is taken in accordance 
 with theintention of the parties, as evidenced by the parties' 
 contract, or by special consent of the vendor. Also, if the 
 right to a .good title is merely a term of the contract 
 implied by law, a purchaser with notice of a defective 
 title cannot insist on a good title being shown; but if 
 the contract expressly provides that a good title shall 
 be shown, the purchaser's knowledge of defects is im- 
 material. 
 
 Taking possession with knowledge of defects of title is 
 not a waiver of a purchaser's right to have those defects 
 removed which a vendor is capable of removing (Gloag 
 & Miller's Contract, 52 L. J. Ch. D. 655). 
 
 Failure of the consideration. — Events may happen 
 prior to the contract which annihilate the subject-matter 
 
GEOUNDS FOE EEFUSING EELIEF. 35 
 
 thereof or injuriously affect it, and these are gronnds of 
 defence. Where there is a contract for the Bale and purchase 
 of shares in a company, and before its inception a peti- 
 tion to wind up has been presented, though unknown to 
 both parties, the contract will not be specifically enforced 
 (Emerson's Case, 1 Ch. App. 433). Similarly at common 
 law a sale of cargo which has been already lost is void 
 (^Coutourier y. Ho'stie, 5 H.«L. C. 673). 
 
 Sometimes events subsequent to the contract will avoid 
 it and furnish a defence, as when the parties are taken to 
 have contracted on the basis of the continued existence of 
 the subject-matter, as in Taylor v. Caldwell (3 Best & S. 
 826). Generally in equity as regards sales of land on the 
 completion of a valid contract, provided a good title is 
 subsequently made out, the money is considered as belong- 
 ing to the vendor from the date of the contract, and the 
 estate as belonging to the purchaser, who therefore bears 
 all losses and reaps the benefit of any accretions in value. 
 (Consult hereon Sayner v. Preston, 18 Ch. D. 1 ; Castellain 
 V. Preston, 11 Q. B. 380 ; 52 L. J. Q. B. 366.) 
 
 This general rule is, however, subject to the exception 
 that if the contract in its inception is conditional, the 
 property remains at the risk of the vendor until it is 
 performed. 
 
 Default on the plaintiffs part. — The plaintiff must 
 perform the implied and essential terms of the contract. 
 Performance of the contract within the time stated therein 
 for performance will not, however, bar a plaintiff except in 
 cases : 
 
 (a) Where it is expressly stipulated that time should be 
 of the essence of the contract, which is frequently 
 done in conditions .of sale as regards sending in 
 requisitions on title, &c., &c. 
 
3G OUTLINES OF SPECIFIC PEEFOEMANCE. 
 
 The party entitled to object to the other party's delay 
 often waives it by his conduct, e.g. answering requisitions 
 on title not delivered within the time limited for the 
 purpose. 
 
 (6) Where from the nature of the property sold it is 
 only reasonable that it should be, e.g. in sales of 
 mines, public-houses. 
 
 (c) Where the other party gives a notice limiting a 
 reasonable time for performance. 
 
 Eepresentations made by the plaintiff as to future acts 
 which induced the contract must not remain unperformed. 
 Maps and plans, if referred to and incorporated into the 
 contract, must have effect given to them : — but the exhibi- 
 tion of a plan does not bind to an exact performance of the 
 scheme it embodies. Non-perfonnance, also, to be a defence 
 must be of an essential matter ; and in connection with 
 this subject arises cases of specific performance with com- 
 pensation allowed to the other side for non-performance of 
 non-essential parts. Default on the plaintiff's part is also 
 excused if waived by the defendant, or if the result of his 
 own default or neglect. The bankruptcy of either vendor 
 or purchaser is a defence, so likewise is felony. 
 
 Compensation. — Where a vendor is able to perform 
 tie contract in its substance, but not literally in all its parts, 
 he may sue the purchaser for specific performance, allow- 
 ing him compensation for any deficiency. On the other 
 liand, where a vendor has not all he has contracted to sell, 
 he cannot sue for specific performance, but in this case the 
 J urchaser may generally insist on taking what the vendor 
 has, and generally claim compensation for the deficiency. 
 
 (a) WJiere the vendor insists on specific performance and there 
 is no condition as to compensation. — If there is not the usual 
 condition of sale for compensation, yet the vendor can 
 
GEOTJNDS FOR EEFUSING EJELIEF. 37 
 
 enforce the contract on allowing the purchaser compensa- 
 tion, provided he can perform the contract in subetance. 
 No material part must be wanting. Therefore in Peers v. 
 Lambert (7 Beav. 546), where a wharf and jetty were con- 
 tracted to be sold, and it appeared that the jetty was liable 
 to removal by the Corporation of London, there was no 
 specific performance. 
 
 On sale of an estate with a mansion, a small part of the 
 estate, if near the house, may be material. If the property 
 is described as tithe-rent free when it is not, there is no 
 specific performance. Tenure is very material, and there- 
 fore a purchaser of freeholds is not bound to take copy- 
 holds. If the property is described as leasehold and it 
 turns out to be held by underlease, there will be no specific 
 performance unless the covenants in both lease and under- 
 lease are identical, and the lease contains only the same 
 amount of land. 
 
 But where there is only an objection to the' title of a 
 small part of an estate, e.g. 6 acres, valued at £500, out of a 
 large estate valued at £14,175 (^McQueen v. FarqvJiar, 11 
 Ves. 467), and that part not material to the rest, or small 
 trifling quit-rents, the vendor on allowing compensation 
 can enforce specific performance. 
 
 A purchaser after knowledge of a defect may act in such 
 a way as to produce a waiver of the objection, and be com- 
 pelled to complete without receiving any compensation. 
 
 (b) If there is a condition providing that mistakes shall he sub- 
 ject for cmipensation and shall not annul the sale, the vendor's 
 right of insisting upon specific performance is somewhat 
 enlarged. The cases in which, notwithstanding a con- 
 dition, specific performance cannot be enforced, are thus 
 summarised in i-'rideux. Vol. I., p. 30. 
 
 Q) If the misdescription is wilful. 
 
 (2) If the effect wt.uld be to put upon the purchaser 
 
38 OUTLINES OF SPECIFIC PERFORMANCE. 
 
 sometliing constitutionally dift'erent from that for which 
 he had contracted. 
 
 (3) If it is Buch that it may be reasonably supposed 
 that the purchaser, but for the misdescription, would not 
 have entered into the contract at all. 
 
 (4) If the misdescription is of a nature not susceptible 
 of compensation. 
 
 Examples. — Estate degcribed as 21,760. acres, in fact half 
 that amount. 
 
 Estate described as one mile from Horsham station, in 
 fact three miles. 
 
 Estate described as Freehold, in fact copyhold. 
 
 Estate described as Building land, in fact a right of way 
 across it. 
 
 The recent case of Brewer v. Brown, 54 L. J. Ch. D. 605, 
 should be noticed. The vendor contracted to sell a free- 
 hold villa and garden, between which and a certain road 
 there was a wall. The particulars contained a statement 
 that the garden was tastefully laid out, and enclosed with 
 a rustic wall, with tradesmen's side entrance. The wall did 
 not belong to the vendor but he did not disclose the fact, 
 and he also knew that the purchaser thought of building 
 cottages with accesses to the road. The frontage was 181 
 feet on that side. Held, that the vendor could not avail 
 himself of the condition providing for compensation, and 
 that the purchaser could rescind, 
 
 (c) When the purchaser insists on the contract and there is no 
 condition for compensation, the purchaser can generally 
 insist on having all the vendor can convey, and demand ' 
 compensation for what he cannot give. 
 
 Supposing a purchaser is aware of the vendor's imper- 
 fection of title when he entered into the contract, he is not 
 necessarily precluded from demanding compensation (see 
 under " Want of Title") ; but if there is an error as to^ 
 
GEOiJNDS FOR EESTSING RELIEF. 39 
 
 acreage or misdescription of the property, and the purchaser 
 knew of that error, he cannot demand compensation. 
 
 The general rule has been applied where a vendor had 
 merely an undivided moiety or only a remainder : — but not 
 where the alienation of the vendor's partial interest would 
 prejudice third parties. The Court is loth to entertain an 
 objection that compensation is unascertainable, but in 
 extreme cases the purchaser will not be able to claim 
 specific performance with an abatement, but will have to 
 elect between rescission and taking the property as it is at 
 the contract price. 
 
 (d) Thepirehaser insisting on the ccmtract, there being a condi- 
 tion for compensation. — The purchaser's rights in such a case 
 are generally cumulative, but sometimes the condition pro- 
 vides not that compensation shall be allowed for errors, mis- 
 descriptions, &o., but that there shall be neither annulment of 
 the sale nor compensation. It was considered that such a 
 condition applied only to slight errors, and that if the 
 error was large the purchaser could insist on specific per- 
 formance, with compensation (Whitemore r.Whitemore) ; but 
 in the very recent case of Terry v. White, 21 L. J. N. C. 27, 
 the Court of Appeal held that there was no such distino-' 
 tlon, and that the purchaser could not get compensa- 
 tion ; he could, however, resist specific performance bei-ng 
 enforced against him. \/'J2/y\/llin^ 
 
 On the question whether a EoaeHASHt can take advan- 
 tage of a condition for compensation when he has under- 
 described the property and discovers that the restate is 
 larger than he supposed, it has been considered /that : 
 
 (1) The vendor can never compel the purchaser to 
 complete and pay a larger sum than he contr/icted to give. 
 
 (2) But the vendor can sometimes resisy specific per- 
 formance, unless the purchaser will compeiysate him, 
 
 (3) This last rule does not apply if the /excess is small. 
 
40 OUTLINES OF SPECIFIC PEEFOEMANCE. 
 
 for in a small excess the purcliaBer can get the whole 
 •without payment of compensation, the purchaser's power 
 to resist specific performance, unless compensated, being 
 only allowable when the excess is so large as to entitle 
 him to an annulment of the contract on the ground of mis- 
 take {Orange & Wright, 64 L. J. Ch. 690). 
 
 The proper time for a purchaser to claim compensation is 
 before execution of the conveyance, and his right to do so 
 after completion has been much doubted. Amid a conflict 
 of cases, the result seems to be that if there is no fraud on 
 the vendor's part or an express warranty of quantity, a 
 purchaser's claim after completion is too late (Baker v. 
 Joliffe, li Q. B. D. 266), unless there is the usual clause for 
 compensation in the conditions of sale (Palmer v. Johnson, 
 13 Q. B. D. 351). 
 
 Acts in contravention of the contract. — The cases 
 occur most frequently on contracts for leases. It should be 
 noticed that although the lease when executed would con- 
 tain no proviso for re-entry, yet acts of gross waste would 
 ibar a plaintiff. Sometimes a plaintiff has obtained 
 ^eciflo performance of contracts to grant renewal of leases, 
 mbtwithstanding certain breaches on his part, viz., where 
 su«h breaches would not have worked a forfeiture at 
 coi%aon law, or where the legal forfeiture would have 
 beenxrelieved against in equity ; and having regard to sec. 
 14 of fthe Conveyancing Act, 1881, the plaintiff's right of 
 obtainid^g specific performance is now probably enlarged. 
 \ 
 
 Incapa^ty of the defendant to perform.— Con- 
 tracts for pe!^sonal service are conditioned on the continu- 
 ance of physidffl,! power to perform them. Non-performance 
 of contracts in\reference to property is excused, even in an 
 action for damages, if the parties seem to have contracted 
 
GROUNDS FOR REFUSING RELIEF. 4i 
 
 on the basis of the continued existence of the premises, or 
 of other states of fact (Taylor v. Caldwell, 3 B. & S. 826). 
 But even where the defendant has contracted absolutely, 
 although liable for damages if unable to perform, yet he 
 can resist specific performance. If the defendant enters 
 into a contract without having power to perform it, but 
 subsequently acquires the power, he is bound to perform it 
 {Clayton v. Buke of Newcastle, 2 Cas. ia Ch. 112). If real 
 property of a married woman still subject to the common 
 law is contracted to be sold by husband and wife, on 
 the wife's subsequently refusing to complete, the Court 
 will enforce specific performance against the husband as 
 regards his interest in the property, allowing the pur- 
 chaser compensation for the residue. Where contracts are 
 in the alternative, it appears that if one alternative was 
 originally impossible or is subsequently so rendered by the ■ 
 act of a third person, the other alternative must be per- 
 formed; but that if one alternative originally possible sub- 
 sequently becomes impossible by the act of God or the 
 default of the promisee, the promisor is wholly discharged. 
 
42 OUTLINES OP SPECIFIC PEEFOEMANCE. 
 
 CHAPTEK IV. 
 
 Peocedueb and Miscellaneous Matters. 
 
 As the majority of specific performance actions are to 
 enforce contracts for the sale of realty, the following 
 pages on proceedings chiefly refer to actions relative 
 .thereto ; but the reader must bear in jnind that snch a 
 subject is of necessity dealt with very imperfectly in a 
 work of an outline character. 
 
 On the Division of the High Court. — Actions for 
 the specific performance of contracts relating to land must 
 be, and those for the specific performance of other con- 
 tracts generally are, commenced in the Chancery Division 
 (Judicature Act, 1873, sec. 34). Also if A. sues B. in the 
 Queen's Bench Division, and B. counter-claims for specific 
 performance of a contract for the sale of land, the action 
 will generally be transferred to the .Chancery Division 
 (Billman v. Mayhew, 1 Ex. D. 132). 
 
 Parties. — The general rule is that the parties to the 
 contract or their representatives, and no one else, should 
 be joined. Therefore where the vendor has sold the 
 property twice, the first purchaser should sue the vendor 
 only. But if A. has sold to B., who has sold over to C, 
 and A. accepts C. as purchaser, B. would be unnecessary 
 as a party. 
 
 The general rule is relaxed to avoid multiplicity of 
 
PEOCEDUEE. 43 
 
 actions. If persons not parties to the contract claim 
 adversely to laotli, they may in some cases be made defend- 
 ants. A purchaser from a voluntary settlor can make 
 the persons beneficially entitled under the settlement 
 parties. (0. XVI. r. 8 :) " Trustees, executors, and adminis- 
 trators may sue and be sued on behalf of or as representing 
 the estate of which they are trustees or representatives 
 ■without joining any of the persons beneficially interested, 
 &c." Notwithstanding, a cestui que trust can enforce 
 specific performance against a purchaser from his trustee. 
 If the cestuis que trustent have sold the property, a v tin d o r ^ 
 should not sue the trustees in whom the legal estate is 
 vested unless they were also parties to the contract. 
 Principals can enforce the contracts of their agents (Touehe 
 V. Metropolitan Wareh(mdng Go., L. E. 6 Ch. 671); but if 
 the agent appears on the face of the contract to be such, 
 and the principal is named, he should not be joined by a 
 vendor except under special circumstances. If a stranger 
 gets possession of the subject-matter of the contract, with 
 notice of it, he is liable to be made a party {Potter v. 
 Sanders, 6 Hare, 1). If a tenant for life has entered into 
 a contract enforceable against remaindermen, they can sue 
 and be sued. (See Settled Land Act, 1882, sec. 31 (2).) 
 
 The effect of death.— li the original purchaser is dead, 
 his heir or devisee should be joined in an action by the 
 vendor, as well as his personal representative ; but unless 
 the contract was binding on his ancestor as well as on the 
 vendor, his heir or devisee cannot alone enforce specific 
 performance. 
 
 If the original vendor dies, his personal representative 
 would apparently be a sufacient party if the purchaser 
 sues (C. A. 1881, sec. 4). 
 
 If the executors of an original vendor decline to enforce 
 specific performance, an action may be brought by his 
 
44 OUTLINES OF SPECIFIC PEEFOEMANCE. 
 
 creditors against the purchaser, and the executors and 
 real representative of the vendor. Stakeholders and 
 auctioneers may be made parties, but it is not proper to 
 add them when the deposit is small, unless they decline 
 to pay the money into court on request' ; but if it is large, 
 it is proper to join them, unless they have already paid it 
 into court before action. 
 
 The- writ of summons. — The general rules laid down 
 in Orders II. to V. are applicable, and as to the endorsement 
 of(ilaim, the form given in Appendix A, Part III., 9, is as 
 follows : " The plaintiff's claim is for specific performance 
 of an agreement dated the day of for the sale by 
 
 the plaintiff to the defendant of certain (freehold) here- 
 ditaments." Any costs occasioned by the use of any forms 
 of writs and of endorsements thereon, other or more 
 prolix than the forms prescribed when applicable, are 
 borne by the party ut-ing the same, unless the Court or a 
 judge shall otherwise direct (0. II. r. 2). 
 
 After service of the writ of summons and appearance 
 by the defendant, the usual course of pleading will take 
 place. (See Orders XIX., XX., XXI. and XXIII.) A 
 statement of claim is almost sure to be delivered, for the 
 defendant will generally require it ; but even in the absence 
 of notice from him the plaintiffwill generally properly do so 
 in an action of this kind. The form given in Appendix C, 
 Section II., 12, to the Eules of 1883, should be as closely 
 followed as possible. If the purchaser in a specific 
 performance actioa intends to claim damages, he must in 
 his statement of claim allege the material facts on which 
 he intends to rely to sustain such claim ; but sometimes 
 the Court considers the question of damages, even though 
 such question is not raised in the pleadings {Tamj^lin v. 
 James, 13 Ch. D. 715). 
 
PROCEDURE. 45 
 
 Statement of defence. — The defence must he de- 
 livered within 10 days from delivery of the statement of 
 claim or from the time limited for appearance, whichever 
 shall be last, unless such time is extended. The defence 
 will he drawn on the grounds mentioned in Chapter III., 
 and forms are given in Appendix D of the Eules. If the 
 vendor be plaintiff, and the purchaser is resisting specific 
 performance, it is usuaLfor the defendant to counter-claim 
 as to his deposit, and ask for a personal order for repay- 
 ment and for a declaration that he has a lien. The usual 
 proceedings, such as Reply, Joinder of Issue, Notice of 
 Trial, and the various interlocutory proceedings in an 
 action, need not be here mentioned in detail, but it is 
 important to notice that a summons or motion may be 
 made for an inquiry into the plaintiff's title. 
 
 Summons for inquiry into title, — ^If the defendant 
 does not contest the validity of the contract, &c., &c., but 
 simply objects to the vendor's title, an interlocutory 
 application for an inquiry as to title may be made by 
 either party with a view to saving further expense. If a 
 summons is taken out, it is of the following form :-- 
 
 1886. B. No.... 
 In the High Court of Justice, 
 Chancery Division. 
 Mr. Justice Pearson. 
 
 Between John Barker Plaintiff, 
 
 and 
 Thomas Carter. . .Defendant. 
 
 Let all parties attend at my chambers, Eoyal Courts of 
 Justice, Strand, London, on the 25th day of April, 1886, 
 at o'clock in the forenoon, on the hearing of an appli- 
 cation on the part of the plaintiff that an inquiry may be 
 
46 OUTLINES OF SPECIFIC PEEFOEMANCE. 
 
 directed whether a good title can be made to the heredita- 
 ments comprised in the agreement dated the 14th day of 
 June, 1886, on the statement of claim mentioned; and if a 
 good title can be made then a further inquiry when it was 
 first shown that a good title can be made. 
 Dated this 21st day of April, 1886. 
 
 This summons was taken oiit by Thomas Smith of 
 14 Old Broad Street, in the City of London, solicitor 
 for the above-named plaintiff 
 To Mr. John Jones, solicitor for the 
 above-named defendant. 
 
 Trial of the action, and judgment. — Specific per- 
 formance actions resemble other actions in the Chancery 
 Division as to the method of trial, &c., but the judgment 
 in an action for the specific performance of a contract to 
 sell land is worthy of special notice. If there has been 
 such preliminary inquiry as to title as previously men- 
 tioned, and the title is found to be good, or where the 
 purchaser has admitted the plaintifi''s title, the jydgment, 
 if in the plaintiff's favour, will take somewhat of the 
 following form : — 
 
 (a) A declaration that the plaintiff is entitled to specific 
 performance of the agreement. 
 
 (h) A direction that interest shall be computed on the 
 balance of the purchase-money. 
 
 (c) That an account be taten of the rents and profits 
 » that have been received by the plaintiff. 
 
 (d) A direction as to the taxation of the plaintiff's costs. 
 
 (e) A direction that what is due for rents and profits 
 
 shaU be deducted from purchase- money, interest 
 and costs. 
 
 (f) A direction that upon the plaintiff's executing a 
 
 proper conveyance of the estate to the defendant. 
 
PEOCEDUEB. 47 
 
 at the expense of the latter (such conveyance to 
 be settled by the judge if the parties differ), and 
 upon the plaintiff's delivery of deeds, &o., the 
 defendant pay to the plaintiffthe certified balance. 
 (g) Liberty for all parties to apply. 
 
 (See Seton, Vol. II., Pt. 1, 1304.) 
 The judgment may also direct that in default of pay- 
 ment of what is due by the purchaser the premises be sold 
 and the deficiency paid by the purchaser. 
 
 If there has been no preliminary investigation of title 
 before the hearing by reason of the validity of the contract 
 being in question, and the defendant's case is maintained 
 on such grounds, he wiU get judgment dismissing the 
 action with costs. If the defendant's other defences fail, 
 and the only remaining question is want of title, he may 
 occasionally get the action dismissed at the hearing for 
 want of title, but generally the Court will decree a 
 reference. The judgment in this latter case simply de- 
 clares that the agreement should be specifically en- 
 forced if a good title can be made to the premises, and 
 directs : — 
 
 (1) An inquiry whether a good title can be made (or 
 whether a good title can be made subject to the conditions 
 of sale). 
 
 (2) A further inquiry when it was first shown that such 
 title could be made, and adjourns further consideration. A 
 summons is then taken out to proceed, and the result is 
 embodied in the chief clerk's certificate, which is ncfw 
 complete when signed by him ; it is then filed, and objec- 
 tions thereto must be taken by summons or motion within 
 eight days from the filing. 
 
 Further consideration. — The action then comes on 
 for further consideration, and if the chief clerk's certificate 
 
48 OUTLINES OF SPECIFIC PEEFOEMAXCB. 
 
 is in favour of the title the judgment resembles the one 
 previously given as regards the directions. 
 
 If the certificate is against the title.— The judg- 
 ment will I 
 
 (1) Direct taxation of the defendant's costs ; 
 
 (2) Order them to be paid by the plaintiff, as also repay- 
 
 ment of the deposit and interest thereon ; 
 
 (3) Declare that the defendant is entitled to a lien on 
 
 such estate for costs, deposit and lien ; 
 
 (4) Give the defendant liberty to apply in chambers for 
 
 the purpose of giving effect to his lien ; 
 and dismiss the plaintiff's action. 
 
 Costs. — If the purchaser resists specific performance on 
 the ground that the agreement was not binding, or on the 
 grovjttd of fraud, &c., &c., and the Court gives judgment 
 for specific performance, the purchaser is directed to pay 
 the costs up to and including trial, and in such case there 
 is no inquiry as to when it was first shown that a good 
 title could be made. If the purchaser resists specific 
 performance merely on the ground of ilie want of title, and 
 no title is shown before action brought, although he 
 obtains judgment he wiU have to pay the costs up to the 
 time when he first showed a title; it is therefore the 
 vendor's duty to offer to the purchaser his costs up to 
 that time, and to give him a conveyance (Daniell's Ch. 
 Practice, p. 1375). 
 
 Proceedings after judgment. — Eetuming to the 
 judgment for specific performance before mentioned, it is 
 apparent that further proceedings are generally necessary. 
 As regards the settlement of the conveyai^oe, it is now pro- 
 vided by 0. LV. r. 34 : " Where by a judgment or order a 
 
PEOCEDUEE. 49 
 
 deed is directed to be settled by the judge in chambers in 
 case the parties differ, a summons to proceed shall be 
 issued, and upon the return of the summons the party 
 entitled to prepare the draft shall be directed to deliver 
 a copy thereof within such time as the judge shall think 
 fit to the party entitled to object thereto, and the party 
 so entitled to object shall be directed to deliver to the 
 other party a statement in writing of his objections (if 
 any) within eight days after the delivery of such copy, 
 and the proceedings shall be adjourned until after the 
 expiration of the saidj period of eight days." If a vendor 
 wilfully refuses to execute the conveyance, the purchaser 
 may obtain an order fixing time and place for execution 
 of conveyance and payment, and on non-compliance there- 
 with may take proceedings for contempt by sequestration 
 or attachment, or may apply for a " vesting order " or an 
 order appointing some one to convey to him in lieu of the 
 vendor, it being provided by the Supreme Court of Judi- 
 cature Act, 1884, sec. 14, that, " Where any person neglects 
 or refuses to comply with a judgment or order directing 
 him to execute any conveyance contract or other document, 
 the Court may, on such terms and conditions (if any) as 
 may be just, order that such conveyance contract or 
 other document shall be executed by such person as the 
 Court may nominate for that purpose ; and in such 
 case the conveyance contract or document so executed 
 shall operate and be for all purposes available as if it 
 had been executed by the person originally directed to 
 execute it." 
 
 If a defendant disobeys the judgment, a vendor plaintiff 
 may similarly apply for an order fixing time for payment 
 and execution of conveyance, and proceed for attachment 
 on non-compliance (see Grace v. Boynton, 25 W. E. 606, 
 where a defendant who had been ordered to accept a lease 
 
 E 
 
50 OUTLINES OP SPECIFIC PEEFOHMANCB. 
 
 woTild not execute it) : — or, if there was not embodied in 
 the judgment a declaration of his right to a lien for his 
 purchase-money, he may now apply for it, and for an 
 order directing (1) sale of the property, (2) appointment 
 of a receiver, (3) an injunction for restoration of possession. 
 Having thus shortly and imperfectly noticed the course 
 of proceedings in an action, a few matters therein men- 
 tioned remain to be noticed more fully. 
 
 References as to title. — The reference is in general 
 terms, unless the vendor gets a contrary direction, which he 
 should get embodied in the judgment, e.g. when there has 
 been any waiver of objections before action. If the estate 
 is sold subject to conditions of sale as to title, the inquiry 
 is whether a good title is shown in accordance with such 
 conditions, and the inquiry is often extended as to the 
 time at which a good title was shown. There will be no 
 inquiry at all where by the contract for sale the vendor 
 only sells such interest as he happens to have, or it is 
 provided that his title shall neither be produced nor 
 inquired into. Stipulations in contracts precluding a 
 purchaser from making requisitions as to title, do not pre- 
 clude a purchaser from relying on objections disclosed by 
 the vendor himself. The reference is not whether a good 
 title could be made at the date of the contract, but whether 
 the vendor can make one ; and if he can make one before 
 the chief clerk's certificate, it is sufficient, unless, 
 
 (1) There has been unreasonable delay ; or, 
 
 (2) Time is of the essence. 
 
 But the period when the vendor could make a title is 
 all-important, as before noticed in reference to costs. 
 
 The Vendors and Purchasers Act. — A summary 
 remedy in respect to disputes which may arise as to the 
 
PEOCEDUEE. 51 
 
 title, the reqtiisitioiis, compensation and other questions 
 connected with the contract (not being a question affect- 
 ing the validity of the contract) under this Act. (it is 
 enacted by sec. 9 of 37 & 38 Vict. c. 78 : " A vendor or pur- 
 chaser of real or leasehold estate in England, or their 
 representatives respectively, may at any time or times 
 and from time to time apply in a summary way to a judge 
 of the Court of Chancery in England in chambers in re- 
 spect of any requisitions or ohjeotions or any claim for 
 compensation or any other question arising out of or con- 
 nected with the contract (not being a question affecting 
 the existence or validity of the contract), and the judge 
 shall make such order upon the application as to him shall 
 appejir just, and shall order how and by whom all or any 
 of the costs of and incident to the application shall be 
 borne and paid." 
 
 Although the procedure is by summons, the further 
 argument of the case often takes place in court. 
 
 Disputed questions of fact as well as of law and con- 
 struction can be disposed of, and Re Borroughs (5 Ch. D. 
 601) decided that "whatever could be done in chambers 
 upon a reference as to title under a decree where the 
 contract was established " in an action for specific per- 
 formance, can be done by a summons under this section. 
 
 The following are some of the questions which have been 
 decided under this section : — ^Whether a power of sale 
 authorized a partition ; whether a limitation was void for 
 remoteness; whether succession duty was payable; whether 
 a post-nuptual settlement was void as against a subse- 
 quent mortgagee without notice. But it was recently held, 
 that a purchaser who by mistake has paid interest to 
 the vendor cannot recover the money so paid under this 
 section, but must bring an action (In re Young v. Harston, 
 54 L. J. Ch. 1146). 
 
 E 2 
 
52 OUTLINES OF SPECIFIC PEBFOEMANCB. 
 
 The deposit.— If a pu'rohaBer unjustifiably refuses to 
 complete, he forfeits his deposit, alpart from any express 
 stipulation in the conditions of sale. If sued for damages 
 by the vendor it would be brought into account in his 
 favour (see Sowe v. Smith, 63 L. J. Ch. 1060). It is 
 however a guarantee for due payment by the purchaser, and 
 therefore in the last cited case, where upon a contract for 
 sale of real property the purchaser paid £500 as " deposit 
 and in part payment of the purchase-money," and the 
 contract provided that the purchase-money should be 
 paid on a certain day, and that if the purchaser should 
 fail to comply with the agreement the vendor should be 
 at liberty to resell, and recover any deficiency in price as 
 liquidated damages, and on the purchaser's default the 
 vendor ultimately resold the property at the original 
 price, it was held that the purchaser could not recover the 
 deposit. 
 
 If the vendor cannot make a title it must be returned, 
 and that with interest, unless the latter is barred (as it 
 generally is) in the conditions of sale. Conditions provid- 
 ing for forfeiture of the deposit to the vendor on various 
 events cannot be enforced by a vendor who is unable to 
 make a good title {Want v. Stallebraas, .8 Ex. 176). The 
 purchaser, as we have seen, has a lien on the estate of the 
 vendor for his deposit and interest thereon at 4 per cent. 
 If the deposit is in the hands of an auctioneer and it is 
 large he can be made a party; if it is small, he should not 
 be made a party unless and until he refuses to pay it into 
 court. 
 
 Damages. — Can be claimed in lieu of or in addition to 
 specific performance, and when the parties to a contract 
 claim specific performance only, tJie Court, may grant 
 them in lieu if they will more completely satisfy the 
 
PKOCEDUEE. 53 
 
 justice of the case. Damages are generally assessed by an 
 inquiry in chambers.. If a purchaser relies on the remedy 
 of damages solely, he must as a rule tender a conveyance ; 
 but this is excused where the vendor fails to deduce a title, 
 produces a bad one, or wrongfully resells the property. 
 
 The measure of damages. — A purchaser is entitled 
 to recover : 
 
 (1) Deposit. 
 
 (2) Interest thereon, unless barred by stipulations. 
 
 (3) Interest on purchase-money lying idle, if the vendor 
 
 has notice, in some cases. 
 
 (4) Expenses incurred in investigation of the title. 
 Although there is a stipulation in the conditions of sale 
 
 that on the purchaser's insisting on requisitions on title 
 which the vendor is unable to comply with the vendor 
 may rescind and return the deposit without interest and 
 that the purchaser shall have no further claim for interest 
 and costs, yet the purchaser may claim damages such as 
 the expenses of investigation if the vendor had no title 
 whatever (^Bowman v. Hyland, 8 Ch. D. 588). And the 
 vendor's reservation of a right to rescind such as that just 
 stated never entitles him to avail himself capriciously of 
 it (see in Dames to Wood, 29 Ch.- D. 626) ; but although 
 he must have a reason for exercising his power, the reason 
 need not be stated to the purchaser (Glenton and Saundars 
 to Haden, 53 L. T. N. S. 435 ; and see Heppenstall v. Hose, 
 51 L. T. N. S. 589;. 
 
 If the contract goes off from the vendor's inahility to 
 make a title, no further damages are as a rule recoverable 
 on breach of contract. The supposed exception was that they 
 were so recoverable if the vendor had no title and knew he 
 had none ; but Hopkins v. FlaeebrooJe, and all cases that 
 depended on it, are now overruled by Bain v. Fothergill, 7 
 
54 OUTLINES OF SPECIFIC PEEFOEMANCE. 
 
 H. L. 158, -which decided that upon a contract for the snle 
 of realty, if the vendor without fraud is incapable of making 
 a title, the proposed purchaser is not entitled to recover 
 compensation in damages for the loss of his bargain. " A 
 purchaser in an action for breach of contract cannot 
 recover damages beyond the expenses he has incurred ; any 
 other damages must be the subject of an action /or deceit." 
 
 Bain v. Fothergill does not apparently overrule Engel v. 
 Fitch, L. E. 3 Q. B. 314, and profits of a resale could be 
 recovered on a refusal by a vendor to make a title as 
 opposed to his inability to do so. Of course the ordinary 
 rules apply where the cause of failure to complete arises 
 from some other source, such as wilful refusal to complete. 
 
 When the purchaser makes default, the vendor can only 
 recover in damages the diiference between the price agreed 
 upon and the market value of the property as ascertained 
 by a resale within a reasonable time and the expenses so 
 incurred. The purchaser if sued can set off the deposit 
 in reduction of damages (see judgment of Fry, L.J., in 
 Howe V. Smithy. If however the property on being sold 
 fetches the same price or more and the vendor does not sue 
 the purchaser, the latter cannot recover the deposit, as 
 it is a guarantee for payment (Howe v. Smith, 53 L. J. 
 Ch. 1055). 
 
 Interest, Rents. — On a valid contract for sale of land, 
 the equitable interest in the property passes to the pur- 
 chaser sub mode, the legal estate remains with the vendor. 
 On completion both legal and equitable coalesce in the 
 purchaser ; but if the sale goes off and is not completed, 
 the equitable interest revests in the vendor. 
 
 When no time is fixed for completion, apart from special 
 .agreement the purchaser takes the rents and the vendor is 
 entitled to interest from when the contract ought to be 
 
PEOCEDUEE. 55 
 
 completed, i.e. from when a good title was shown (see 
 hereon Spencer Bell to South Western Bailway Co., 33 
 W. E. 771). 
 
 When a time is fixed in the contract. — Prima facie the time 
 so fixed is the date from which to compute interest in 
 favour of the vendor and to allow the purchaser the rents. 
 Hxceptions : — 
 
 (a) When the interest's larger than the rents and the 
 
 delay is caused by the vendor, the vendor takes 
 
 the interim rpnts in lieu of interest up to the date 
 
 when a good title is shown. 
 
 . (6) If the purchaser gives notice to the vendor that the 
 
 money is lying idle at the bank. This applies 
 
 equally in contracts with railway companies who 
 
 are purchasing under their compulsory powers 
 
 (^Regent Canal Go. v. Ware, 23 Beav. 675). 
 
 Often the conditions of sale provide that the purchaser 
 
 shall pay interest from the day fixed for completion, from 
 
 whatever cause such delay may arise. Notwithstanding this 
 
 condition, interest only runs from when a good title is 
 
 shown, if delay is caused by the vendor's own default 
 
 (De Visme v. De Visme, 1 Mao. & G. 336), which however 
 
 apparently now must be wilful. 
 
 In the recent case of Gold & Norton's Contrad, 33 W. E. 
 833, however, where the delay in the completion of the 
 purchase arose from the default of the vendor (for at 
 the time the engrossment was sent for examination the 
 vendor's solicitor was taking a holiday during vacation, 
 and during transit through posts the deeds were acciden- 
 tally detained for a time), and the purchaser gave notice 
 to the vendor that he had deposited his money at a bank 
 to a separate account, the purchaser was relieved as 
 from the receipt of that notice by the vendor from payment 
 of interest on his purchase-money, notwithstanding that he 
 
56 OUTLINES OF SPECIFIC PEEFOEMANCE. 
 
 Jiad been in receipt of the rents nnder the contract, and 
 the condition that he should pay interest, if from any cause 
 whate-^er the purchase was not completed on the day 
 named. But the condition binds when the delay arises 
 from the state of the title, untenable objections of the 
 purchaser, the act of God, &c. 
 
 The rate of interest usually allowed is 4 per cent. 
 
 If the vendor is in possession and the purchaser becomes 
 entitled to the rents, he is only entitled to those rents 
 which the vendor has received, not for those which but 
 for his wilful default he might have received. Vendors 
 who during completion have worked mines had to account 
 for market value of the minerals, less cost of severance 
 (Brown v. Dihhs, 26 W. B. 776), and must take reasonable 
 cai-e of the property (Lysaght v. Edwards, 2 Ch. D. 507). 
 A purchaser of a house should immediately insure it, for 
 unless he has made it part of his contract that the 
 insurance policy should be assigned, he has no right 
 against the vendor in respect of it (Bayner v. Preston, 
 L. E. 18 Ch. D. 1), although the insurance company could 
 compel a vendor to return the money if he had also 
 received it from the purchaser (Gastellain v. Preston, L. E. 
 11 Q. B. D. 380). If a pi/rchaser takes possession he must 
 generally pay interest from taking possession to comple- 
 tion, even though the delay arises from the neglect of the 
 vendor ; but see now Gold & Norton's Contract, 33 W. E. 
 333. 
 
 In Kershaw v. Kershaw, L. E. 9 Eq. 56, where a purchaser 
 was let into possession at the intended time for completion 
 and afterwards difficulties as to completion arose, on his 
 payment into the bank and notification to the vendor of 
 appropriation, it was con^dered that he was not chargeable 
 with interest after the date of the notice. 
 
 By taking possession a purchaser does not make himself 
 
QUESTIONS SET. 57 
 
 liable for use and occupation should the sale subsequently 
 fall through from the vendor's inability to make a title. 
 
 Sales of reversionary interests. — Interest is payable by 
 the purchaser from the date fixed in the contract for 
 completion if none is fixed from when a good title was 
 first shown. 
 
 If (hey are sold hy the Court. — Interest runs from the date 
 fixed for completion, an^if none from the time when the 
 chief clerk's certificate becomes binding. 
 
 QUESTIONS SET AT THE GENEEAL BAE 
 EXAMINATION.— I?a«fej-, 1886. 
 
 1. What is necessary under the Statute of Frauds (1) as 
 to the validity of a contract for sale of lands, tenements, 
 or hereditaments, or any interest in or concerning them ; 
 and (2) as to the validity of any agreement that is not to 
 be performed within one year from the making thereof? 
 (Page 20.) 
 
 2. Are there any, and, if any, what, circumstances 
 under which, notwithstanding the express language of the 
 Statute of Frauds, a contract for the sale of laiids, tene- 
 ments, or hereditaments, or any interest in or concerning 
 them, may be taken out of its operation, and the contract 
 enforced in equity, although not made as required by the 
 statute ? (See page 22.) 
 
 3. Are there any exceptions to the general rule that the 
 Court will not compel specific performance of a contract 
 unless it can execute the whole of it ? If so, give two or 
 more examples of such exceptional cases. (See pages 
 30-33.) 
 
 4. Is there any, and, if any, what, statutory or other 
 
58 OUTLINES OF SPECIFIC PEEFOEMANCE. 
 
 mode by -which a vendor or purchaser of real or lease- 
 hold estate can, otherwise than by an action, obtain the 
 decision of a judge in respect of any requisition or objec- 
 tion, or any question arising out of or connected with the 
 contract, but not aflfecting the existence or validity of the 
 contract? (Page 60.) 
 
 Geneeal Test Questions. 
 
 1. Under what circumstances does a plaintiff in a 
 specific performance suit succeed if he can, and fail if he 
 cannot, prove part performance? Mention some of the 
 leading propositions which have been established as to 
 what is, and what is not such part performance that a 
 plaintiff can succeed on it. (Page 22.) 
 
 2. What is the rule as to the interference of equity 
 with respect to contracts, a term of which is intended to 
 provide for the rendering of personal service by one party 
 in favour of the other ? Apply the rule to cases where — 
 
 (a) The contract provides that defendant shall serve 
 plaintiff for a given time for stated money pay- 
 ment, and shall serve no one else during that time ; 
 
 (6) The express negative stipulation is omitted, but the 
 services to be rendered by defendant are incon- 
 sistent with his serving another ; 
 
 (c) The contract provides, amongst other things, that 
 defendant shall execute a deed of covenant to render 
 personal service on stated terms. (Page 30.) 
 
 3. Will equity ever decree specific performance of an 
 award, and, if so, under what circumstances? (Page 10.) 
 
 4. What is the rule as to want of mutuality in a 
 contract as a defence to an action for specific performance 
 thereof? Does the rule render the following defences, or 
 any and which of them, good ; viz.^ 
 
GENEEAL TEST QUESTIONS. 59 
 
 (a) That plaintiff has not signed the contract and 
 therefore is not bound ; (page 17) 
 
 (6) That plaintiff (vendor) at the date of the contract 
 had no interest in the land sold, or only a life 
 estate, though he has acquired the fee, or the 
 reversion, since the contract ; and therefore at the 
 date of the contract defendant conld not have got 
 a specific performance against him; (pages 47, 50) 
 
 (c) That defendant (vendor) has not the whole fee 
 simple in the land which he contracts to sell, and 
 therefore he could not have enforced the contract 
 against plaintiff? (Pages 38, 39, 41.) 
 
 Explain the grounds of your answers, and state what, if 
 any, circumstances you consider would vary the result in 
 either of the ahove cases. 
 
 5. Will the Court under any, and if so, what cir- 
 cumstances decree specific performance of contracts for 
 partnership? (Page 6.) 
 
 6. A plaintiff in his statement of claim claimed specific 
 performance of a contract to sell certain property and in the 
 alternative a sum as liquidated damages. After the close 
 of the pleadings the plaintiff gave the defendant notice 
 that, in default of completion in a week, he should sell tho 
 property, which he accordingly did. Can the plaintiff 
 obtain judgment at the trial for damages ? (See Hipgrave 
 V. Case, quoted p. 33.) 
 
 7. When the Court has ordered specific performance of a 
 contract for tlie sale of land, or of a contract to carry out 
 an arrangement by a deed, the terms of which may be in 
 dispute, what course is usually adopted to give complete 
 effect to the judgment of the Court? (Page 48.) 
 
 8. Will the Court ever decree specific performance of 
 contracts to build ? (Pages 7 and 8.) 
 
 9. A. sells to B.;a piece of land or houses subject to a 
 
60 OUTLINES OF SPECIFIC PEEFOKMANCE. 
 
 lease referred to in tlie coutraot. The vendor vertally 
 assures him that the provisions of the lease have no 
 injurious effect upon the property. B., subsequently to the 
 signing of the contract, discovers that the lease contains 
 provisions which, had he known of them at the time, would 
 have deterred him from buying. Has he any. remedy? 
 (Page 25.) 
 
 10. A. contracts to sell to B. a specified close of land, 
 described as consisting of four acres. It turns out that it 
 consists of but three acres. Can either A. or B . insist on 
 the contract being carried out on any, and what, terms ? 
 Give the reason for your answer. (Pages 36, 37.) 
 
 11. In what cases is time considered to be the essence 
 of the contract in the Chancery Division of the High 
 Court of Justice ? (Page 34.) 
 
 12. Would the Court decree specific performance of a 
 contract for the sale of a medical practice ? Give reasons. 
 (Page 6.) 
 
 13. Will specific performance be decreed of a contract for 
 the sale of lands at (1) a fair valuation, (2) a price to be 
 fixed by B., who refuses to value? (Page 15.) 
 
 14. Can a vendor compel specific performance of a 
 contract for the sale of a house when he has (1) omitted 
 to disclose a structural defect, (2) taken steps to prevent 
 such defect from being discovered ? (Page 25.) 
 
 15. State the proceedings in a vendor's action for 
 specific performance of a sale of real estate when the 
 vendor's title is disputed. (Pages 45, 47.) 
 
 16. In what cases can a purchaser of real estate recover 
 against the vendor, in case of the vendor's title proving 
 defective — 
 
 (a) The etspenses of investigating the title ; (page 53) 
 (6) The profits of a resale he has made ? (Pages 53, 54.)- 
 
 17. To what extent are (1) inadequacy of consideration, 
 
i5!VfS5N 
 
 GENERAL TEST QUESTIONS 
 
 rr V? 
 
 ^"^. 
 
 (2) want of mutuality, defences to an action 
 performance? (Pages 16, 17.) 
 
 18. What will te the order on " further consideration " 
 if the chief clerk certifies that a good title cannot be 
 made ? (Page 48.) 
 
 19. Give cases in which a vendor who has misdescribed 
 the property cannot enforce specific performance, not- 
 withstanding a condition of sale providing that misde- 
 scription shall only entitle the purchaser to compensa- 
 tion, and shall not be ground for rescission. (Page 37.) 
 
 20. Can a purchaser after taking a conveyance in any 
 case demand compensation for defects in the subject- 
 matter which he has discovered since completion ? (Page 
 40.) 
 
 21. What risk does a purchaser incur who takes 
 possession of real property before he has investigated 
 thoroughly the vendor's title ? (Page 34.) 
 
 22. A. induced B. to serve him as housekeeper without 
 wages for some years, and to give up other prospects in 
 life, by a verbal promise to leave her an estate in certain 
 lands for her life. He subsequently executed a will which 
 was attested by one witness only. Can B. compel specific 
 performance against A.'s heir ? (Page 23.) 
 
 23. To what extent are contracts providing for sepa- 
 ration between husband and wife enforceable ? (Page 11.) 
 
 24. What effect on specific performance is caused by a 
 winding-up petition when the vendor and purchaser of 
 the shares were both ignorant of such petition at the time 
 of contracting ? (Page 6.) 
 
 25. What is the extent of the jurisdiction of the Queen's 
 Bench Division of the High Court in specific performance ? 
 Had the Court of Queen's Bench before the Judicature 
 Act any jurisdiction ? (Pages 1 and 2.) 
 
INDEX. 
 
 Abatement op Pbiob, 36, 38 
 
 Abstbact of Title, 34 
 time for requisitions, 31 
 
 AOOBPTAITGE, 14, 15 
 
 retraction before, 15 
 
 subject to title being approved, 
 14 
 
 withdrawal of, 15 
 AoTS In contravention of the con- 
 tract, 40 
 Aqent, 
 
 contracts for, not enforced, 7 
 
 party to action, 43 
 Altbenauve, 
 
 contract, 9 
 
 relief, 52 
 
 APPEENTIOESHIP, 7 
 
 contracts for, 7 
 Arbitration, 
 
 contracts to refer to, 9 
 
 Attachment, 49 
 
 Auctioneer, 
 
 agent to bind purchaser, 21 
 as a party to action, 44 
 
 Awards, 
 
 specific performance of, 10 
 
 Bond — see Penalty, 
 
 Breach of Tbust, 
 
 ground of defence, 18 
 Business, 
 
 contract to assign goodwill of, 6 
 
 Canon Law, 2 
 
 Capacitt to Contract, 13 
 
 Certainty, 
 
 amount required for specifio 
 performance, 19 
 
 Certificate of Chief Clbek, 47 
 Cestui que Trust, 
 
 power to enforce contract ot 
 trustee, 43 
 
 Charitable purposes, 
 contracts for, 12 
 
 Chattels, 5 
 
 latent defect, 25 
 part of contract otherwise en- 
 forceable, 5 
 unique, 5 
 
 Common Law, 
 fraud, 24 
 
 jurisdiction of Courts of, 1, 2 
 remedy iuadequate, 3, 4 
 
 Company, 
 
 promoters' contract?, 27 
 
INDEX. 
 
 63 
 
 CoMPANT — continued, 
 ultra vires, 16 
 
 effect of winding up on a con- 
 tract to sell bhares, 6 
 
 COMPENSATION, 
 
 purchaser can enforce contract 
 
 and claim, 36 
 vendor can enforce contract on 
 
 allowing, 36 
 purchaser's right to claim, 39 
 ■when it should be cluimed, 40 
 
 Completeness, 
 
 not su£Bcient, 15 
 
 Completion, 
 
 compensation after, 40 
 refusal to complete, 54 
 no time fixed for, 54 
 
 COMPEOMISE, 
 
 specific performance of, 9 
 
 Concealment, 
 
 bar to specific performance, 26 
 
 Conditions op Sale, 
 
 providing for compensation, 37 
 barring a purchaser's right to 
 
 damages, 53 
 barring a purchaser's right to 
 interest on deposit, 55 
 
 CONSITEEATION, 
 
 further, in an action, 47 
 inadequacy of, 19 
 
 Convey ANOE, 
 
 compensation after, 40 
 disputes as to form of, 49 
 
 COPTHOLD, 
 
 cannot be forced on a purchaser 
 of freehold, 37 
 
 COBPORATION, 
 
 ultra vires, 16 
 
 Costs, 48 
 
 vendor's title defective, 48 
 vendor's title not shown, 48 
 
 coitnteb-claim, 2 
 
 County Cottets, 
 jurisdiction of, 2 
 
 Covenants, 
 
 negative, extending jurisdic- 
 tion, 31 
 breaches by a lessee, 40 
 
 CfiEMTOKS, 
 
 deceased vendor's contract en- 
 forced by, 43 
 
 Damages, 52, 53 
 
 in addition to specific perfor- 
 mance, 52 
 
 in lieu of specific performance, 
 53 
 
 measure of, 53 
 
 Death, 
 
 purchaser's, 43 
 
 vendor's, 43 
 Deceit — see Fraud. 
 Default or Plaintipp, 35 
 Defect in Subject-matter, 35, 
 
 38,41 
 Delay, 20 
 
 Deposit, 
 
 returnable with interest, 52 
 lien for, 52 
 
 Devisee, 
 
 when a party, 43 
 
 Directors, 
 
 ultra vires, 16 
 
 Disclosure, 
 
 necessity for, 26 
 patent defect, 25 
 
64 
 
 INDEX. 
 
 Discretion of Coubt, 3 
 Dismissal or Action, 48 
 DivisiBiLiTT or Contract, 30 
 
 Easements, 
 
 non-dwclosure of, 26 
 Election, 
 
 as to mistake, 29 
 
 EsBOB-^^ee Mistake. 
 Evidence, 
 
 parol evidence as to mistake, 
 
 28 
 parol evidence as to subsequent 
 alteration of contract, 30 
 
 Executed Contbaot, 31 
 exeoctoey oontbact, 31 
 
 Faibneeb, 
 
 when to be judged of, 17 
 
 !FlBB, 
 
 insurance, benefit of, 56 
 subject-matter destroyed by, 35 
 
 FOBKIGN, 
 
 government, 11 
 
 sale of foreign realty, 4 
 
 ship, 5 
 
 Pbatjd, 
 
 agent's, 25 
 
 bar to specific performance, 27 
 
 wliat constitutes, 26 
 
 Frauds, Statute of, 20 
 
 specific performance notwith- 
 ' standing statute, 22 
 
 fcethbb consideration, 47 
 Goodwill, 6 
 
 GOVBENMBNT StOOK, 5 
 
 Habdship, 18 
 
 bar to specific performance, 18 
 when to be judged, 18 
 
 HiEE AND SeBVIOB, 
 
 contracts for, unenforceablOj 7 
 
 Husband and Wn's, 
 
 effect of husband's contract to 
 sell, 41 
 
 Illegality, 16 
 Impossibilitt, 41 
 Incapacity, 
 
 to contract, 13 
 
 defendant to perform his part; 
 41 
 
 Incompleteness — see Complete- 
 ness. 
 
 Infant, 16 
 
 Initials, 
 
 signature' by, 21 
 
 Injunction, 7 
 
 Inbubanoe, 56 
 
 Interest, 
 
 on purchase - money, time of 
 commencement, 54, 55 
 
 Judicatube Acts, 2 
 
 jubisdiction, 
 
 general limits, 3 
 
 Knowledge, 
 
 of defect in subject-matter, 25, 
 
 89 
 of vendor's title, 34 
 
 Laches, 
 
 bars specific performance, 20 
 
INDEX. 
 
 65 
 
 Land Clauses Consolidation Act, 
 
 i 
 Lease, 40 
 
 Leasehold, sf ^'fl^t^^ 
 Letters, 15 ? 
 Lien, 52 
 
 LoedJDaibns' Act, 7 
 Lots, 30 
 
 Mandamhb, 1 
 
 Maps, 36 
 
 Mabriaoe, 
 
 no part perfoimance, 24 
 
 Mabbied Woman, 
 
 specific performanoe by and 
 
 against, 13 
 effect of 1882 Act, 13, 14 
 
 Merchant SuifKng Acts, 5 
 
 Misdescbiftiun, 
 
 when a bar, 36 ■ 
 
 effect of condition of sale, 37 
 
 MiSBEPBESENTATION, 
 
 agenf s, 25 
 
 matters of opinion, -25 
 
 with all faults, 25 
 
 HlSTAEE, 
 
 efTeot of, 28 • 
 
 in redtiction into writing, 28, 
 
 30 
 rectification of, 28 
 
 MOBTeAGE, 
 
 contracts for, 8 
 
 MUTCALITY, 
 
 of consensus, 16 
 of obligation, 16, 17 
 
 Negative Covenants, 31 
 Negotiations, 14 
 
 Occupation rent, 56 
 
 Parliament, 
 
 contracts not to apply to, 10 
 Parol, 
 
 evidence of mistake, 28, 30 
 
 Parties to an Action, 42, 43 
 
 Partnership, 
 
 contracts for, 6 
 
 Paet performance, 
 
 effect as regards Statute of 
 Frauds, 22 
 
 what constitutes, 22, 23 
 Penalties, 
 
 contracts with penal clauses, 8 
 Plans, 
 
 effect of, 36 
 
 Pleadings, 44, 45 
 
 purchaser's taking, 34 
 Price, 
 
 fixed by valuation, 15 
 
 Proposal, 14, 15 
 Public-house, 
 
 contract for, lapse of time; 36 
 Puffers, 
 
 n'bt to be used at anetions, 27 
 
 Railways, 
 
 contracts to construct works, 8 
 
 Rectification,' 
 
 mistake when rectified, 28 
 not rectified, 29 
 
 References op Title, 45, 50, 51 
 F 
 
6ti 
 
 IKDEX. 
 
 Resistbation, 
 
 of transfer of shares, 6 
 
 Belief. 
 
 after judgment, 49 
 
 Kents, 55 
 
 Bepkesentations — see Misbbpee- 
 sentation. 
 
 Besoisbiok, 
 
 mistake ground for, 29 
 
 Betbactation, 15 
 
 Bevebsionaby Intebests, 19 
 
 assimilated to interests in pos- 
 session, 19 
 
 Sale, 
 
 by the Court, 22, 57 
 
 Bepabate Estate, 13 
 
 Sbpabation, 11 
 
 SEQtBSTBATION, 49 
 
 ^;iips, 5 
 
 SlOKATCBE, 21 
 
 Silence, 
 
 not always sufSeient, 26 
 Station, 8 
 
 Statutes, 
 
 Cairns', Lord, Act, 7 
 Common Law Procedure Act, 9 
 Frauds, 20-24 
 Judicature Act, 1873,... 2 
 Lands Clauses Act, 1845,. ..4 
 Married Women's Property 
 
 Act, 13 
 Mercantile Law Amendment 
 
 Act, 1856,...l 
 Merchant Shipping Act, 5 
 Sale of Land by Anction Act, 
 
 1867,... 27 
 
 Statutes — continued. 
 
 Supreme Court of Judicature 
 
 Act, 1884,.. .49 
 Trustee Act (13 & 14 Vict. c. 
 
 60), 1 
 Vendors and Purchasers Act, 50 
 Stock, 
 
 contract for, 6 
 
 Stock Exchange, 
 
 contracts made on, 6 
 
 SUB-PrBCHASEB, 
 
 when a party, 42 
 
 Tenant for Life 
 
 sale by, 43 
 Time, 
 
 when of the essence of a con- 
 tract, 35 
 limit of time for bringing action, 
 20 
 
 Tithe, 37 
 
 TlTLB» 
 
 defective, a bar to specific per- 
 formance, 33 
 
 doubtful, 34 , 
 
 when shown, how it affects 
 costs, 48 f"?^^^- 
 
 ordered to be delivered over, 47 
 
 Ultra vibes, 
 
 memorandum of association, 16 
 powers of directors, 16 
 
 UNCERTAINTYi 
 
 bars specific performance^ 19 
 Underlease, 
 
 description as leasehold, 37 
 Unfairness, 17" 
 Unilateral Oontbacts, 17 
 
INDEX. 
 
 67 
 
 Valuation, 
 
 contracts for sale at, 15 
 
 Vendoks and Porchasebs' Act, 
 50,51 
 
 Vendor's Lien, 
 
 how enforced, 50 ] 
 
 VOLtTNTART CONTRAOTS^ 
 
 not enforced, 12 
 
 Waivbr, 
 
 of defects of subject-matter, 37 
 of defective title, 34 
 
 Wife — see Married Woman. 
 
 Will, 
 
 contract to leave property by, 
 23 
 Works, 
 
 contracts for, 8 
 
 
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