MaraljaU lEquttg QloUwttnn (Sift of IE. 3. IWatalfaU. 31. iC. 1. 1894 3 1924 085 501 207 Cornell University Library The original of tliis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924085501207 THE AN' EXPANSION OF AN ARTICLE IN THE ENCYCLOPAEDIA OF THE LAWS OE ENGLAND BY WILLIAM DONALDSON RAWLINS, ONE OF HER MAJESTY'S COtJNSEL, U.A,, AND SOUETQiEE FELLOW OF TBIinTT COLLBQE, CAUBBIDOE. LONDON: EDrNBUEGH: SWEET & MAXWELL, Ltd., Wm. GEEEN & SONS, 3, CHANOEET LANE, W.C. 18 & 20, St. GILES STEEET. Saw l^vi\>\i's\>inx9:, 1899. E^^^'i LONDON: PEINTED BY 0. F. KOWOBTH, GEBAT NEW BIBEBT, PBTTEE liANB— B.C. TO THE RIGHT HONOURABLE SIR EDWARD FRY, PRIVY COUNCILLOR, Hon. D.C.L., Oxon.; Hon. LL.D., Edin., F.R.S., F.S.A., F.L.S. SOMETIME A LORD JUSTICE OF APPEAL, ( V ) PEEFACE. It goes without saying that this little volume does not seek to enter the lists as a competitor for the favour of the profession with the standard treatise on Specific Performance, which so long has held the field in the region of the law which it has made its own. But it is thought that there may be room and use for a concise text-book, which aims at dis- charging the modest function of a finger-post. For, indeed, it is not difficult to lose one's way, in the investigation of a subject whose landmarks are scattered over an immense and ever-widening expanse of Eeports, where principles are in risk of becoming buried under their illustrations, and rules of being lost in a maze of instances and exceptions. The method employed in the following pages has been, as regards citation of authorities, one of rigorous selection. The cases referred to are comparatively few, but endeavour has been made VI PREFACE. to pick out those which most distinctly enunciate the propositions in support of which they are invoked ; to specify (wherever such particularity has seemed likely to be useful) the page of a volume on which authority for the statement in the text is to be found ; and, other things being equal, to give preference to a case in which earlier authorities on the topic under consideration are reviewed or brought together. No statement has been taken from a head-note. To the Article, which has been expanded into the present book, Sir Edward Fry — ^to whom the book is, with his permission, inscribed — ^kindly gave the assistance of some valuable criticisms and suggestions. That advantage has not been enjoyed by the additions, which now make their bow. W. D. E. 1, Nev Square, Lincoln's Inn, March, 1899. ( vii ) TABLE OF CONTENTS. — ♦ — PAOK Table of Cases ix Table of Statutes ^^ xv CHAPTEE I. What Spechtc Pekfoemance is 1 CHAPTEE n. The Oeight and Development of the Jukisdiotion .... 3 CHAPTER in. The Extent and Limits of the Juhisdiotion 13 CHAPTEE IV. COHTRACTS RELATING TO LaND 19 CHAPTEE V. The Stattttb of Feattds 23 CHAPTEE VI. Exceptions feom the Statute of Feauds 36 CHAPTEE Vn. Conteacts eelating to Peesonal Peopeety oe Ams. ... 46 CHAPTEE VIII. Compensation • ^' VUl TABLE OF CONTENTS. CHAPTEE IX. EAOE Damages 66 CHAPTEE X. Injunotion 75 CHAPTEE XI. The Action— Teibtjnal 80 CHAPTEE XII. Paetxes 82 CHAPTEE XIII. Pleading — Transfer — ^Ne Exeat 92 CHAPTEE XIV. Gbootds of Defence 97 CHAPTEE XV. EviDBNCE— PabOL VARIATION 129 CHAPTEE XVI. Judgment — ^Deposit — ^Interest and Eents 134 CHAPTEE XVn. Proceedings after Judgment 144 INDEX 153 ( i^ ) TABLE OF CASES. fAGE Aaron's Beefs v. Twiss 113 Alexander t). Milla 124 AUcard ». Walker ....*..,., 115 AUey V. SescbaiupB 4, 59 AUgoode.Herrybent, &c. B.all. Co 78, 151 Andre-w v. Aitken 114 Archer v. Stone 113 AshburyBail.,&c.Co. 9. Kiche 125 Asylum for Female Orphans v. Waterlow 108 Atkinson v. Ritchie 106, 107 Att.-Gen. v. Day 18, 45 Attwood V. 48 V. Barham 78 «). Small 113 Avery v. Langford 61 Bain v. Fothergill 72 Bainbridge ». Smith 17 Baker v. Williams 152 Baldwin v . Society for Diffusing Useful Knowledge 51 Bahnanno v. Lumley 63 Banister, In re 147 Bankes v. Small 18 Barkworth v. Young 26, 108 Bates V. Eesterton 120 Bitihyany v. Bouch 66 Baxter v. Oonolly 49 — , «. Middleton 137 Beaumont v. Dukes 100 Bell V. Balls 35 D.Denver 151 Bellamy v. Debenham 28 Bermingham v. Sheridan 107 Besant v. Wood 53 Binkes v. Lord Bokeby 61 Birch V. Joy. 140 Bishop of Winchester v. Mid- Hants Rail. Co 90 PAGE Blackett v. Bates 117 Blagden v. Bradbear 45 Bo^m V. Wood 96 Bond V. Hopkins 38 Bonnewell «i. Jenkins ....... . 29 Bower v. Cooper 31 Bowler v. Barberton, &o. Syn- dicate 81 Bozon V. Farlow 49 Brien v. Swainson 29 Britain v. Rossiter 43 Bromage v. Genning 6 Brooke (Lord) v. Rounthwaite- 63 Broome v. Monck 83 Brownlie v. Campbell 103 Bryant, &c., In re 124 Buokland v. FapUlon 86 Buokmaster v. Harrop 36, 83 Bumell V. Brown 63 Burroughs, Lynn and Sexton, litre 146, 147 Butcher v. Stapely ' 39 Buxton V. Lister 19 Cahill «. Cahill 53,109 Calcraft v. Roebuck 61 Camberwell, &c. Society v. Holloway , 144 Carolan v. Brabazon 119 Castle V. Wilkinson 62, 99 Caton V. Caton 33, 41 Chadwick V. Manning 104 Chattook V. Miller 127 Chinnock v. Saiusbury 52 Claringbould v. Curtis 56 Clayton v. Illingworth 14 V. Leech 63 Clermont v. Tasburgh. 62 Clinan v. Cooke. 27, 40 Clowes t'. Hlgginson 97, 130 TABLE OF CASES. PAaB Goatsworth v. Johnson 123 Coohrame v. Willis 98, 115 Obffin V. Cooper , 148 Cogent V. Gibson . , 51 Coles V. Treoothiok 105 Colling, In re , 85 Cblversou v. Bloomfield 96 Connor ». Potts 62, Hi Const «. Harris ., 12, Oooke V. ClayVorth 109 Cordingly i). Clieeseboroagh..64,65 Goupland v. Arrowsniith .... 26 Cranstoun (Lord) v. Johnston . 20 Grosbie v. Tooke 86 Cuddee v. Kutter 14 Cuming, In re 85 Curling v. FUght 148 Dauoe v. Goldingham 98 Darbey ». WMtaker 49 Damley (Earl of) v. Proprie- tors, &B. of Lond. Chat. & Dover Rail 43 Dayis v. Corporation of Leices- ter 75 V. Foreman 77 ». Symonde 118 Dawson v. Lepper 118 De Francesco v. Bammu .... 52 De Hoghton ». Money 106 De Mattos v. Gibson 47 Dear v. Verity 130 Deighton and Harris' Con- tract, /« >•« 119 Denny v. Hancock .' 115 Dietriohsen v. Cabbnm 79 Dimmock v. Hallett 64, 114 Donnell v. Bennett 78 DowUng V. Betjemann 47 Driver ». Broad 25 Drover v. Beyer 96 Drysdale v. Mace 53 Duke of Somerset v. Cookson . 47 Dnncuf t v. Albreoht 64 Dmm V. Flood 98 Dyas V. Stafford 115, 138 Dyer v. Hargrave 62, 113 TAaz Earl of Damley v. Proprietors, &o. of Lond. Chat. & Dover Bail 43 Earl of Egmont v. Smith .... 89 Earl of Shrewshury v. North Staffordshire Eail. Co 125 Eastern Counties Rail. Co. v. Hawkes 89, 126 Ecclesiastical Commissioners v. Pimiey 90 Eden v. Naish 48 Edwards ». Grand Junction Eail. Co 89 Edwards Wood v. Majoribanks 62 Egmont (Earl of) v. Smith . . 89 Elmore v. Firrie 69 England v. Curling^ 51 Esdaile v. Stephenson 140 Evans v. Hoare 33 V. Wood 55 Ewing V. Orr-EwJng 20 Falcke v. Gray 47, 104 Ferguson «i. Wilson. .54, 68,88, 107 FiEe tf. Clayton 131 Filby V. Hounsell 29, 31 Flight V. Bolland 117 Flood V. Fialay 87 Foster v. Reeves 22, 80 V. Wheeler 71 Fothergdll v. Rowland 47, 77 Fowler ». HoUins 88 Franklin v. Lord Brownlow , . 101 Freme v. Wright 145 Friary Hoboyd and Healey'a Breweries v. Singleton . . 22, 87 Fry O.Lane 52,105,106 Games v. Bonnor 148 Gandy v. Gandy 89 Gas Light and Coke Co. v. Towse i , 72 Gee «. Pritchard 8 Gibbs V. Harding 53 Glasse v. Woolgax 15, 17 Godwin v. Briad 34 Grace v. Baynton 149 Granville ». Belts SI TABLE OF CASES. XI PAGB Gray v. Smith 26 Green v. Paterson 89 . ». Sevin 103 «. Smitli 107 Gregory v. Wilson 101 Hadley v. The Loudon Bank of Sootland 78 Hallett's Estates, In re 10 Halsey v. Grant 6, 58, 60, 63 Handsv. Handb 96 Harding v. Metropolitan Bail. Co 21 Hargreayes and Thompson's , Contract, In re 73 Harnett v. Yielding. .4, 16, 97, 127 Hart V. Hart 54, 110, 127 . 1/. Herwig 66 Hartop, JEc parte 88 Harvey v. Ashley 60 Haywood v. Cope 9, 105 Heard v. Pilley 34, 88 Heathcote v. North Stafiord- - shire Bail. Co 78 Helling v. Lumley 105 Henthom v. Fraaer Ill Henty v. Schroder 74, 162 Hermann i). Hodges 50 Hetling and Merton's Con- tract, In re 142 Higgins and Peroival, In re.. 123 . V. Senior 88 Hill V. Gomme 89, 90 Hincksman v. Smith 52 Hinton v. Hinton 86 Hipgrave v. Case 6'9 Hodson V. Henland 40 Hoggart V. Scott 117 HolHs v.. Edwards 39 Holloway v. York 88, 95 Hooper v. Smart 61 Hope V. Hope 53 Homiblow v. Shirley 63 HoTenden ». Annesley 24 Howe V. Smith 139 Hughes V. Parker 32 Hnssey v. Home-Payne .... 28, 33 Imperial Loan Co. v. Stone . . 109 fAOH James v. Smith , , . 94 James Stuart (Lord) v.li.&'B. W. Rail Co 127 Jaques «. Millar 71 Jeffeiys v. JefEerys 16 Jenkins «!. Hiles . T 147 Jesaop V. Smyth , 150 Jeston V. Key 50 Johnson v. Shrewsbury and Birmingham Rail. Co 17 Jones V. Merionethshire, &c. Society 106 Joynes v. Statham 116, 130 Kay V. Johnson 16, 88 KeUy «, Walsh 33, 43 Kemble ». Kean 61 Kennedy v. Lee 26, 111 Kershaw v. Kershaw 143 Kharaskhoma Exploring, &c. Syndicate, In re 32 King V. Bellord 109 Kingdon v. Kirk 93 Knox «. Gye 24 Lacon v. Martins 45 Lady E. Thynne v. Earl of Glengall 42 Lamare v. Dixon 9, 100 Lancaster, &c. Bail. Co. v. North Western Bail. Co. . . 50 Lander and Bayley's Contract, In re '32 Lavery v. Pursell . . 14, 26, 42, 44, 69 Le Blanche v. Granger 47 ' Leech v. Sohweder 9 Levy J). Stogdon. .93, 101, 102, 137 Lincoln ». Wright 36 Lindsay v. Lynch 39 Lloyd V. Nowell 29 London and Birmingham Bail. Co. ». Winter 131 London and S. W. RaU Co. v. Humphrey 49 London Land Co. v. Harris . . 95 Lord Brooke v. Bounthwaite . . 63 Cranstoun v. Johnston . , 20 James Stuart v. L. & N. ^W. Bail. Co 127 xn TABLE OF CASES. PAGE Lord Walpole v. Lord Oriord . 127 Low V. Iimea 79 Bowther «. Heaver 21 Lumley v. Wagner ... .75, 76, 77 I*yde V. Myun 48 Lysaght v. Edwards 121 McGregor v. McGregor , ... 53, 109 McManus v. Cooke ......... 25, 44 McMurray v. Spioer 31 Maoonchy v. Clayton 120 Maddison v. Alderaon . , 24, 25, 39, 40, 41, 44 Malins v. Freeman 115 Malone v. Henshaw 136 Marsh V. Joseph 34 Marshall v. Berridge 32 Martin v. Mitchell 109 ff. Pycroft 131 Mawson v. Fletcher 64 May V. Thomspn 49 Mayor, &c. of Oxford v. Grow. 99 Mayor of London and Tubba' Contract, In re 142, 143 Melbourne BanHng Corpora- tion V. Brougham 99 Mestaer v. Gillespie 37 Meux V. Maltby 87 Miller and Aid worth (Limited) V. Sharp 41 Mills V. Haywood 102 Milneat). Gery . , 31 Modlem v. Snowball 98 Mogridge v. Clapp ...... ICO, 124 Montacute (Viscountess) v. Maxwell 37 Moore V. Orofton 119 Morphett ii.. Jones 40 Moms V. McNeil 96 Mortimer ». Wilson 151 Mortlock i;. Buller 16,59 MuUena v. Miller 112 Naah v. Dix US National 'Provincial Bank of England and Marsh, In re.. 139, 146 Nene Valley, &o. OommisMouers ». Dunkley , 113 FAOE New Ldon Tyre, &c. Co. v. Spilsbury 51 Nickalls v. Merry 55 Nickels v. Hancock 47 Nicol'sCase 56, 111 North V. Percival..29, 31, 134, 142 Noyes v. Paterson « 125 Nunn v. Fabian 41 Nutbrown v. Thornton 64 Oceanic, &o. Co. v. Suther- berry 98 Odessa Tramways Co. v. Men- del 16,104, 126 OdhamsBrothersv.Brunning.. 94 OUver V. Hunting 27 OUey V. Fisher 93, 133 O'HerUhy v. Hedges 86 O'Rorke ». BoUngbroke 62 Ord V. Noel 98 Oriental Inland Steam Co. v. Briggs Ill Oxford i>. Provand 127 — ' (Mayor, &c. of) v. Crow 99 Pagani, In re 109 Page V. Midland Rail. Co. . . 124 Paine v. Hutchinson 65 Palmer v.' Green 123 V. Johnson 65 Parr v. Lovegrove 147 Pattle V. Homibrook 33, 133 Paton V. Rogers . i 140 Pearce v. Gardner 27 -». Watts 127 Pembroke v. Thorpe 105 Perm v. Lord Baltimore .... 20 Penniall v. Harbome 123 Peto V. Brighton, &c. Co 15 Phelan ». Tedoastle ~ 32 Phillipson v. Gibbon .... 144, 148 Pigott and The Great Western Rail. Co., J« re 21 Plant V. Bourne , 31 Portman v. Mill 143 Post V. March 104 Potter V. DufBeld 30 TABLE OF CASES. Xlll FAQS Power V. Barrett 114 Preston v. liyerpool, &o. Bail. Co 89 «. Luck 105,116 Price V. Dyer 129, 132 V. Salusbiiry 1 . .42, 43 Printing, &c. Co. v. Sampson . SI Pritohard v. Ovey 46, 110 Pusey V. Pusey 47 Eae V. Joyce *. .62, 106 Bafiety v. Sohoaeld 122 Bambottom v. Gosden. . . , 130, 131 Bankin v. Huakisson 75 Beddaway v. Banham 103 Eegent's Canal Co. v. Ware. . 98 Beues t;. Picksley 34 Ejdgway v. Wharton 27, 34 Bigby t>. Connol 52, 106 Biley to Streatfield, Inre .... 143 Boberts v. Marcbant 82 Bobinson v. Gallard 150 V. Page 131 Bocbef oncanld v. Boustead .... 23, 25, 36, 104 Bossiter v. MjUer 29, 31 Boyal Bristol, &o. Society v. Bomaah 71 British Bank v. Tur- qnand 125 Bmnmens v. Bobina 127 Byan v. Mntoal Tontine, &c. Association 15,16 Sale V. Lambert 30 Sargent, Mx parte 55 Saxon V. Blake 88 Sayers «. Collyer 70 Scott and Alvarez' Contract, In re ..9, 72, 94, 124, 139, 146, 147 Seton V. Slade 34 Shardlow ». Cotterell 27 ^"bse^, Ex parte 55 ■ V. Foster 84 ShefSeld Corporation_j!. Shef- field Electric Light Co 108 PAQB Shelfer v. City of London, &o. Co 79 Shrewsbury (Earl of) ». North Staffordshire Bail. Co 125 Shrewsbury, &o. Bail. Co. v. L. & N. W. Bail. Co 107 Siboni v. Kirkman 86 Simpson v. Hughes Ill Sims V. Landray 35 Smith V. Buchan 92 o. Chadwiok 113 «. Peters 110 «. Wallace 119 V. Webster 34 ». Wheatoroft ....115,131 SnelUng v. Thomas 132 Soames v. Edge 70 Somerset (Duke of) v. Cookeon 47 Soper V. Arnold 135, 138 South African Territories v. Wallington 49 South Hetton Coal Co. v. Has- well, &o. Co 32 Southby V. Hutt 145 Spurrier v. Hancock 102 StapUton V. Stapilton 48 Starr-Bowkett Building So- ciety, Ac, Inre 119 Steel V. North Metropolitan BaU. Co 50 Stephens v. Green 98 V. Hotham 86 Stewart v. Kennedy, .2, 15, 17, 51, 67, 60, 115 V. (No. 2) . , 116 Storey v. Waddle 95 Street ». Bigby 46 Sutherland v. Briggs 43 Swain v. Ayres 22 Sykes «. Beadon 106 Tacon v. National Standard Land, &c. Co 93 Tadoaster Tower Brewery Co. ». Wilson 102 Tamplin v. James 69, 115 Tasker v. Small 82 Taylor v. Beech 41 XIV TABLE OF CASES. FAQS Taylor «. Portington 127 Thaokwray, &o. , In re 124 Thomas v. Dering 63 Thompson v. Ringer Ii5 Thynne (LadyE.) v. Earl of GlengaE 42 Tildedey v. Clarkson 100 Tiliey iJ. Thomas 102 Todd V. G-ee 66 V. Mid. a. W. RaU. Co. 15 Tolson D. Sheard 98 To-wnsend ». Champemowne.. 83 Townshend (Marquis) v. Stan- groom 132 Turner v. Green 104 tJnion Bank v. Munster. , , . . . 103 TJpperton v. Nicholson 146 Viscountess Montacute v. Max- veU. 37 Walker v. "Walker 38 Walpole (Lord) v. Lord Orford 127 Walsh V. Lonsdale 21 Walters *. Northern Coal Mining Co 108 Ward and Henry's Case .... 55 Warden v. Jones 41 Wauton ». Coppaid 112 WeatheraU ». Geering 107 Webb.w. Hugjies 103 Webster. I?. Webster 41 Wedgpirood V. Adsms 105 PAGE West Midland Bail. Co. v. Nixon , 90 Westby v. Westby 48 Westmeath v. SaJisbniy 63 Wheatley v. Wesfamnster Biymbo Co 15 Whitwood Chemical Co. v. Hardman 77 Wilkinson v. Clements IS Williams v. Brisco 98 V. Evans 40 V. Glfinton 141 V. Snowdeu 95 V. WilUams..48, 101, 111 Winingh»m v. Joyce 101 Wilson ». Wilson 53,123 Wilsons and Stevens' Contract, Inre ...73, 142 Winchester (Bishop of) v. Mid- Hants Rail. Co 90 WindhillLooalBoardof Health V. Vint 106 Winn ». BuU 29 Withy V. Cottle 46 Wolfe -v. Matthews 106 Wolverhampton, &c. Rail. Co. V. L. & N. W. Rail. Co. . . 10, 77 Wood V. Griffith 46 Woods and Lewis' Contract, Inre 20, 141 WooUam v. Heam 132 Wright V. Bell 48 Wycombe RaU. Co. v. Don- nington Hospital 109 Young & Co. ■». Mayor, &c. of Royal Leamington Spa .... 99 ( XV ) TABLE OF STATUTES. — 4 — FAQB Bankruptcy Act, 1883 (46 & 47 Vict. o. 52), s. 55 88 Bankrnptoy Act, 1890 («3 & 54 Viot. u. 71), s. 13 88 Companies Act, 1862 (25 & 26 Viot. c. 89), s. 35 . , 65 Companies Act, 1867 (30 & 31 Viot. o. 131), s. 37 99 Companies Clauses Consolidation Act, 1845 (8 & 9 Viot. o. 16), s. 97 99 Conyeyancing and Law of Property Act, 1881 (44 & 45 Vict. c. 41) — s. 3 ...122, 123 B.4 85 s. 14 123 County Courts Act, 1888 (51 & 52 Viot. o. 43), s. 67 81 Custody of Infants Act, 1873 (36 & 37 Viot. o. 12), s. 2 53 Debtors Act, 1869 (32 & 33 Vict. «. 62), b. 6 96 Dower Act, 1833 (3 & 4 Will. 4, c. 105), s. 5 86 Fines and Eeooveries Act, 1833 (3 & 4 Will. 4, c. 74), s. 47, , 18 Judicature Act, 1884 (47 & 48 Vict. c. 61), s. 14 152 Judicature Act, 1890 (53 & 64 Viot. o. 44), s. 5 , 137 Land Law (Ireland) Act, 1887 (60 & 51 Viet. 0.33), s. 22 81 Land Transfer Act, 1875 (38 & 39 Vict. c. 87), s. 93 90 Land Transfer Act, 1897 (60 & 61 Vict. c. 65), ss. 1—3 83—85 Lands Clauses Consolidation Act, 1845 (8 & 9 Vict, c 18) 21 Lord Cairns' Act (21 & 22 Vict. c. 27), s. 2 67, 70, 79, 101 Married Women's Property Act, 1882 (46 & 46 Viot. u. 75) 99 Married Women's Property Act, 1893 (56 & 67 Viot. c. 63), s. 1 . . . . 99 Merchant Shipping Act, 1894 (57 & 58 Viot. o. 60), s. 57 65 Sales of Reversions Act, 1867 (31 Viot. c. 4), s. 1 52, 105 Statute Law Revision Act, 1883 (46 & 47 Vict. o. 49) 70 XVI TABLE OF STATUTES. PAGB Statute of Frauds (29 Oar. 2, o. S), s. 4 23—45 Supreme Court of Judicature Act, 1873 (36 & 37 Viot. c. 66). .43, 54, 68, 69, 80, 83, 95, 98 Supreme Court of Judicature Act (Ireland), 1877 (40 & 41 Vict, c. 67) ,. 81 Trade Umon Act, 1871 (34 & 35 Vict. c. 31) 106 Trustee Act, 1893 (56 & 57; Viot. c. 53), ss. 26, 31, 32—34 152 Vendor and Purchaser Act, 1874 (37 & 38 Vict. «. 78). .73, 94, 120, 122, ■ 144, 145 VoluEtarjr Conyeyanoes Act, 1893 (56 & 57 Vict. c. 21) 126 Corrigenda. Page 12, line 15— for " Coast" read " Const." „ 47 „ 17—,, "Falche" „ " Falcke." THE ^pdk §txkxmMa of €mixutb. CHAPTER I. WHAT SPECIFIC PEEFOEMANCE IS. A CONTRACT is Specifically performed when each of the parties to it does the very thing or things which he contracted to do, and when, accord- ingly, each party gets in specie what he by the contract bargained for. This is presumably the object, and should be the consequence and result, of every lawful and not impossible contract; and one would there- fore naturally expect to find the enforcement of specific performance occupying, in a civilised system of jurisprudence, the place of the normal legal remedy for breach of contract. And in- deed, in Sbotland, the breach of a contract for the sale of a specific object, such as a particular piece of land, gives to the party aggrieved the E. 1 2 SPECIFIC PERFOEMANCE. legal right to sue for specific performance, or, as it is there termed, implement, and lie cannot be compelled to resort to the alternative of an action for damages, unless implement is impos- sible. In other words, specific performance is part of the ordinary jurisdiction of the Scotch Courts {Stewart v. Kennedy, 1890, 15 App. Cas. at pp. 102, 105). In England, the existing system of jurispru- dence, while not attempting to prescribe or enforce the perf ormahce of all contracts accord- ing to their actual terms, goes, as will be shown, a long way in that direction. The same or a similar jurisdiction is in force in Ireland, in many British Colonies, and in the United States of America, but not, it is probably safe to affirm, in any other country or State. Speci- fic Performance appears to be a plant of dis- tinctively English growth, and to flourish only where there is a juridical system in which the characteristic ideas and principles of English Courts of Equity have taken root. The pre- valent Continental view with regard to the judicial enforcement of contracts may, it is believed, be expressed approximately in the words of the maxim Nemo potest prcecise cogi ad factum. CHAPTER li. THE OEIGIN AND DEVELOPMENT OP THE JURISDICTION. According to the Common Law of England, which in this respect resembled the Roman Law, the onlj legal right arising, upon the non- performance of a contract, in favour of the party injured by the breach, was a claim for damages, a form of remedy obviously inade- quate, in many cases, for the purposes of justice. It is unconscionable that a person who has entered into a binding contract, which he on his part is perfectly able to perform, should be allowed, as the Common Law in effect allowed him, the right of electing between performance of his part of the contract, and payment of damages for not performing it. And so it is not surprising to find that, when a Court of Conscience (as the Chancellor's Court is called in an early case [Case 123 in the Selden Society's Select Cases in Chancery]) became established in this country, and successive Chancellors pre- siding over that Court developed and enforced the priuciples of Equity, one of the matters in 1(3). 4 SPECIFIC PEEFOEMANCE. respect of whicli they assumed and exercised jurisdiction was to decree the specific perform- ance of contracts. It may be that ecclesiastical Chancellors borrowed the idea from the ecclesiastical Courts Christian, which seem — Sir Edward Fry, in the current edition of his well-known treatise, adduces interesting evidence on the subject^ to have claimed a jurisdiction to enforce the specific performance of contracts, in cases where there had been a breach of plighted faith {fidei Imsio). But, however that may have been, it is tolerably clear that the defect in the English juridical system which the Chancellor's Court sought to cure by decreeing specific performance lay in the rigidity and inadequacy of the Common Law remedy for breach of contract. " Unquestionably," said Lord Redesdale in Harnett v. Yielding (1805, 2 Sch. & Lef. at p. 553; 9 R. E. at p. 100), "the original foundation of these decrees was simply this, that damages at Law would not give the party the compensation to which he was entitled; that is, would not put him in a situation as beneficial to him as if the agreement were specifically performed." And similarly Lord ErsMne, in Alley v. Deschamps (1806, 13 Ves. Jun. at p. 227), said: ''This Court (of Chan- ORIGIN AND DEVELOPMENT OF JURISDICTION. 5 eery) assumed the jurisdiction upon this simple principle, that the party had a legal right to the performance of • the contract ; to which right the Courts of Law, whose jurisdiction did not extend beyond damages, had not the means of giving effect " ; adding, " even that was considered -by the Courts of Law to be a great usurpation." It is, indeed, the fact that, as the words just quoted indicate, the Chancery jurisdiction in specific performance was regarded with no little jealousy by the Common Law Courts, and their resistance to it was long continued. The jurisdiction can be traced back as far as to the reign of Richard II. (see the Selden Society's Select Cases in Chancery, p. xxxv.); and yet, so long after that time as the four- teenth year of James I., the judges of the Court of King's Bench stopped, by prohibition, what seems to have been a suit in the Marches Court of Wales to enforce specific performance of a covenant to grant a lease, expressing their opinion that undoubtedly a Court of Equity ought not to give that kind of relief ; for, if it did, to what purpose were there actions on the case and of covenant ? and Coke, C. J., adding, that to enforce performance would subvert the covenantor's intention, which was that he 6 SPECIFIC PEEFOEMANCE. should be able to elect between granting the lease and paying damages {Bromage y. Genning^ 1616, Rolle, 354, 368). Such protests, however, did not avail to prevent the development and firm establish- ment of the Chancery jurisdiction; and with reference to the last^cited case, a Lord Chan- cellor (Lord Erskine), nearly two centuries later, in Halsey v. Grant (1806, 13 Ves. Jun. at p. 76; 9 R. R. 145), made the following trenchant comment : " Bromage v. Genning, in the fourteenth year of King James L, was the pilainest case that can be stated ; and the ground, taken against the jurisdiction, the most untenable, preposterous, and unjust." It was, however, not by any means in all cases of contract that this jurisdiction was exercised. The Power which had brought it into existence naturally made its own con- ditions with respect to the classes of cases in which, and generally with respect to the circumstances under which, it would grant the special remedy of specific performance. But, naturally again, a considerable time elapsed before the ever-increasing stream of authority settled down into flowing with a placid and uninterrupted current within well- defined channels. With regard, for instance, ORIGIN AND DEVELOPMENT OP JUKISDICTION. 7 to such questions as whether specific per- formance of contracts for personal services, or . contracts to build or to repair, should or should not be granted, how far a Court of Equity ought to go in the direction of forcing upon a purchaiser something different from what he had bargained 'for, and whether part payment of the purchase-money or payment of an additional rent should or should not be treated as acts of part performance sufficient to take a case out of the Statute of Frauds, very notable jductuations and divagations of judicial opinion are recorded in the Reports. Indeed, in the seventeenth century John Selden, in a well- known passage (Table Talk, 2nd ed. by Singer, at p. 49), went so far as to say: "Equity in law is the same as the spirit in religion, what everyone pleases to make it. Sometimes they go according to Conscience, sometimes according to Law, sometimes according to the rule of Court. Equity is a roguish thing : for Law we have a measure, know what to trust to ; Equity is according to the conscience of him that is Chancellor, and as that is larger or narrower, so is Equity. 'Tis all one as if they should make the standard for the measure we call a foot, a Chancellor's foot : what an uncertain measure would this be ! One Chancellor has a 8 SPECIFIC PEEPOEMANCE. long foot, another a short foot, a third an in- different foot: 'Tis the same thing in the Chancellor's conscience." However, the importance of certainty and uniformity in the decisions of Conrts of Equity has long ago become fully recognisied in high places. " The doctrines of this Court," said Lord Eld dn, in Gee v. Pritchard (1818, 2 Swans, at p. 414), " ought to be as ■well settled and made as uniform almost as those of the Common Law, laying down fixed principles, but taking care that they are to be applied according to the circumstances of each case. I cannot agree that the doctrines of this Court are to be changed with every succeeding judge. Nothing would inflict on me greater pain than the recollection tha,t I had done anything to justify the reproach that the Equity of this Court varies like the Chancellor's foot." And so, out of a long course of decisions by Lord Chancellors and other Equity judges on the subject of specific performance and matters incidental to it, there was gradually evolved a body of settled principles and rules by which the exercise of the jurisdiction now under con- sideration is, in the present day, guided and limited almost, if not quite, as strictly as if they had been embodied in a statutory code. ORIGIN AND DEVELOPMENT OF JURISDICTION. 9 Hence it has come to pass that, though the jurisdiction has often been termed extraordi- nary, as being outside and independent of the ordinary course of proceedings in Courts of Common Law, its exercise is now a matter of everyday occurrence ; and though it is com- monly said to be discretionary, the discretion referred to is a judicial discretion, exercisable in accordance with the above-mentioned principles and rules. So that, where a contract binding in ^Equity is proved, and no principle or rule of the Court prohibits the exercise of the juris- diction, the remedy of a judgment for specific performance, though strictly not a matter of right, is practically granted as a matter of course (see Lamar e v. Dixon, 1873, L. R. 6 H. L. at p. 423 ; Leech v. Schweder, 1874, L. R. 9 Ch. at p. 467; siadL Haywood y. Cope, 1858, 25 Beav. at pp. 151—153). Equity may follow the Law, but she walks arm-in-arm with Precedent ; and with regard to specific performance it is particularly true that, "after all, the question to what extent a Court of Equity will go is very largely one of authority as to what has been done before" {per Rigby, L.J., in Ln re Scott and Alvarez^ Contract, [1895] 2 Ch. at p. 615). Further, it must not be forgotten that (to use 10 SPECIFIC PEEFOEMANCE. the words of Sir George Jessel, M.E., in In re Halletfs Estates, 1879, 13 Ch. D. at p. 710), "the rules of Courts of Equity are not, like the rules of the Common Law, supposed to have been established from time immemorial. ' It is perfectly well known that they have been established from time to time — altered, im- proved, and refined from time to time. In many cases we know the names of the Chan- cellors who invented them. No doubt they were invented for the purpose of securing the better administration of justice, but still they were invented. The doctrines are progressive, refined, and improved; and if we want to know what the rules of Equity are, we must look, of course, rather to the more modern than the more ancient cases." It may here be noticed that the peculiar jurisdiction under consideration is one which the Court of Chancery used to exercise in relation to executory, as distinguished from executed, contracts. " There is a class of suits in this Court," said Lord Selborne, in Wolver- hampton, Sfc. Rail. Co. V. L. Sf N.- W. Rail. Co. (1873, L. E. 16 Eq. at p. 439), "known as suits for specific performance of executory agreements, which instruments are not intended between the parties to be the final instruments OKIGIN AND DEVELOPMENT OF JURISDICTION. 11 regulating their mutual relations under their contracts. We call those executory contracts, as distinct from executed contracts; and we call those contracts ' executed' in which that has been already done which will finally determine and settle the relative positions of the parties, so ttiat nothing else remains to be done for that particular purpose. The common expression ' specific performance,' as applied to suits known by that name, presupposes an executory as distinct from an executed agree- ment, something remiaining to be done, such as the execution of a deed or a conveyance, in . order to put the parties in the position relative to each other in which by the preliminary agreenient they were intended to be placed. Of course, if you pass from the technical to the etymological effect of the words, 'specific per- formance ' might signify any direction given by the Court for the doing of anything what- ever in specie ; and I cannot help thinking that in this class of cases a little confusion has some- times arisen from transferring considerations applicable to suits for specific performance, properly so called, to questions which have arisen as to the propriety of the Court requiring something or other to be done in specie" In many cases arising out of executed con- 12 SPECIFIC PERFORMANCE. tracts, in cases, for instance, pf breach of cove- nant by a lessee, the Court of Chancery, in effect, enforced the covenant in specie — enforced, that is to say, the literal performance or obser- vance of it according to its terms — ^by means of an injunction restraining the lessee from con- travening those terms ; but such action on the part of the Court was really referable to its general jurisdiction in relation to injunctions, rather than to its special jurisdiction in relation to specific performance properly ■ so called. Similarly, the observance, according to their terms, of stipulation contained in deeds of part- nership has often been enforced by the Court by means of an injunction (see Coast v. Harris, 1825, Turn. & R. 496). 13 CHAPTER III. THE EXTENT AND LIMITS OF THE JURISDICTION. The foundatiofl of the equitable jurisdiction in specific performance being the inadequacy of the Common Law remedy for breach of con- tract, there is a prima facie case for the exercise of the jurisdiction whenever it appears that one of the parties to a contract binding in Equity has committed a breach of it, and that no remedy at, all, or no complete remedy, is aTail- able at Common Law to the party aggrieved. The category of such cases of contract is a wide one, including all binding contracts rela- ting to the sale or lease of land (in the widest sense of that word), or an interest in land, and also a considerable number of contracts relating to personal property, and some relating to per- sonal acts. It will be convenient to deal with contracts relating to land separately from other specifically enforceable contracts, because the former are especially affected by the Statute of Frauds, and by the equitable doctrines or prin- ciples concerning part performance and com- pensation ; but before proceeding to consider in 14 SPECIFIC PEKFOEMANCE. more detail the cases in which specific perform- ance can be enforced, it may be well to clear the ground by mentioning some classes of cases in which the principles and rules of Courts of Equity cause them to refuse to interfere by granting that form of relief. The Court then — that is to say, the tribunal possessing, in regard to the particular case before it, the equitable jurisdiction in specific performance formerly exercised by the Court of Chancery--will generally refuse that remedy in the following cases, viz. :-r- (1) Where the Common Law remedy is ade- quate; as, for instance, in cases of contracts for sale of Grovernment stock or ordinary articles of merchandise ; for there pecuniary damages, calculated on the market price of the stock or goods, are practically as complete a remedy to the purchaser as the actiial delivery of them ; because, with the money which he gets as damages, he can go into the market and buy a like quantity of stock or goods ( Cuddee v. RuUer, 1720, 1 P. Wms. 570; 2 Wh. & T. Equity Cases, 7th ed. 416). On this principle, too, the Court will not grant specific performance of a contract to let property for a year, or, a fortiori, for a single day {Clayton v. Illingworth, 1853, 10 Ha. at p. 452 ; Lavery v. Pursell, 1888, 39 EXTENT AND LIMITS OF THE JURISDICTION. 15 Ch. D. at p. 519; Glasse y. Woolgar, 1897, 41 Sol J. 573). (2) Where the Couxt would be unable to superintend or enforce effectually the execution of its judgment ; as in cases of contracts invol- ving a continuous series of acts, such as contracts for the building ©f houses, the working of mines, or the construction of railways [WilJcinson v. Clements, 1872, L. R. 8 Ch. at p. 112; Wheatley V. Wes:tminsUr Brymho Co., 1869, L. R. 9 Eq. at pp., 551, 552; Peto v. Brighton, Sfc. Co., 1863, 1 Hem. & M. 468; Kayy. Johnson, 1864, 2 Hem. & M. 118; Stewart v. Kennedy, 1890, 15 App. Cas. at p. 104). Note, however, that there is an exception from this rule in cases where a railway com- pany has taken land from a landowner on the terms that it will carry out certain definite. works; for in such cases specific per- formance may be had (see Myan y. Mutual Tontine, Sfc. Association, [1893] 1 Ch. at p. 128; and Todd v. Midi. Gt. W. Bail. Co., 1881, 9 L. R. Ir. at p. 10, where it was laid down that a railway company, which has contracted, for valuable consideration, to make a siding at a specified point in its line, will be directed by the Court to perform that contract specifically). (3) Where the party coming to the Court 16 SPECIFIC PEEFORMANCE, does not come with perfect propriety of conduct, or, in seeking tlie specific performance, is call- ing upon the other party to do something which he is not lawfully competent to do (Harnett v. Tieldmff, 1'805, 2 Sch. & Lef . at p. 554 ; 9 R. R. at p. 101), or which would involve a breach of trust (MortlocJc v. Buller, 1804, 10 Ves. Jun. at pp. 311, 312). (4) When, from the circumstances, it is doubtful whether the defendant meant to con- tract tp the extent that he is sought to be charged (Harnett v. Yielding, uli supra). (5) Where the Court cannot compel specific performance of the contract as a whole [Ryan V. Mutual Tontine, ^c. Association, [18933 ^ ^^■ at pp. 123, 125). Note, however, that where it is apparent, on the face of a contract, that the parties intended that it should be carried into effect piecenieal, a default in the performance of one part of the contract is no defence to an action fqr specific performance of another part ( Odessa Tramways Co. V. Mendel, 1878, 8 Ch. D. at p. 244 ; see also infra, p. 104). (6) Where the contract, not being based upon a valuable consideration, is a merely voluntary agreement or nudum pactum {Jefferys V. Jefferys, 1841, Cr. & Ph. at p. 141). EXTENT AND LIMITS OF THE JURISDICTION. 17 (7) Where the contract is in its nature strictly personal, as, for instance, for the performance of personal services {Johnson v. Shrewslury and Birmingham Rail. Co., 1853, 3 De G. M. & G. Ch. 914, 926 ; Bainbridge v. Smith, 1889, 41 Ch. D. at p. 474) ; and (8) Generally, where, regard being had to all the circumstances, the enforcement of specific performance would be highly unreasonable {Stewart v. Kennedy, 1890, 15 App. Cas. at p. 105), or otherwise inequitable, or (as, for instance, in such a case as Glasse v. Woolgar, cited under head (1) above) impracticable. Further, although a contract may, on the face of it, appear to be a fit subject for specific enforcement, there may have been some cir- cumstance connected with its inception, or some event, act, or default subsequent to its conclusion, on proof of which the Court will decline to interfere. Instances of such circum- stances, events, acts, and defaults will find place later on in this book in Chapter XIV., on Grounds of Defence {infra, pp. 97 et seq.) Here, too, it may be mentioned that there is one case in which the Court's jurisdiction in specific performance is expressly restricted by statute. Sect. 47 of the Fines and Recoveries Act, E. 2 18 SPECIFIC PERFORMANCE. 1833 (3 & 4 Will. IV. c. 74), enacts that ''in cases of dispositions of lands under this Act by tenants in tail thereof, and also in cases of consents by protectors of settlements to dispositions of lands under this Act by tenants in tail thereof, the jurisdiction of Courts of Equity shall be altogether excluded, either on behalf of a person claiming for a valuable or meritorious consideration, or not, in regard to the specific performance of con- tracts." But this enactment does not prohibit the Court from specifically enforcing a contract by the tenant in tail of an estate to sell the fee simple, or to execute a disentailing assurance — ^which contracts would, before th6 Act, have been enforced by the Court of Chancery (A.-G. \.Day, 1748—49, 1 Ves. at p. 234), — ^but only prevents the Court from holding such a contract binding upon the issue in tail and remainderman, as a disposition in Equity under the Act [Bankes v. Small, 1887, 36 Ch. D. 716). 19 CHAPTER IV. CONTRACTS RELATING TO LAND. Contracts relating to land, or an interest in land, constitute probably by far the most numerous class of cases in which Courts of Equity are asked to grant the relief of a judg- ment for specific performance ; and that form of relief is, indeed, especially appropriate to such cases. "As to the cases of contracts for purchase of lands, or things that relate to realties," said Lord Hardwicke in Buxton v. Lister^ 1746, 3 Atk. at p. 384, "those are of a permanent nature, and if a person agrees to purchase them, it is on a particular liking to the land, and is quite a different thing from matters in the way of trade." Again, "contracts of sale of real estate have always been put in Courts of Equity, and in Courts of Law also, upon a special footing of their own." And "when you are dealing with a contract for the sale of land, a long series of decisions has established that you ought not to try the obligation of the 2(2) 20 SPECIFIC PEEPOEMANCE. vendor by the standard applied by tbe Common Law in cases of ordinary sales of chattels " {In re Woods and Lewi£ Contract, [1898] ,2 Ch. at pp. 214, 216). The jurisdiction exercised by English Courts of Equity over contracts relating to real pro- perty is not confined to cases where the real property is situate in England. Mquitas agit in personam ; and accordingly, if the party against whom it is desired to enforce a contract respecting land situate abroad is in this country, an action for specific performance may be main- tained against him here, and- the Court, by bringing, the weight of its process to bear upon his person, will compel him to perform his con- tract, though it cannot by its judgment act directly upon the land itself. Thus, in the leading case of Penn v. Lord Baltimore (1750, 1 Ves. 444), Lord Hardwicke decreed specific performance of a contract relating to the boundaries of the Provinces of Pennsylvania and Maryland in North America (see, too. Lord Cranstoun v. Johnston, 1793, 3 Ves. Jun. at p. 182 ; and per Lord Selborne in Ewing v. Orr-Ewing, 1883, 9 App. Cas. at p; 40). Further, the contracts of the class now under consideration which are specifically enforce- able comprise not only agreements voluntarily CONTRACTS RELATING TO LAND. 21 entered into by the contracting parties, but also bargains made under tbe stress of legisla- tive enactment — as, for example, by virtue of the compulsory powers of purchase conferred by the Lands Clauses Consolidation Act, 1845 — between the donees of such powers and those against whom thtey have become authorised to exercise them. After notice to treat has been given, and the price has been ascertained, a contract or quasi-contract is established, on which an action for specific performance can be maintained either by the vendor or by the purchaser (^Harding v. Metropolitan Rail. Co., 1872, L. E. 7 Ch. at p. 158 ; In re Pigott and The Great Western Rail. Co., 1881, 18 Ch. D. at p. 150). A tenant in possession, holding under a con- tract for a lease of which specific performance would be enforced by a Court of Equity, is, in contemplation of Equity, entitled to the lease ; and he is accordingly regarded and treated, in the High Court, as holding under the same terms, and with and subject to the same rights and liabilities, as if the lease had been actually granted {Walsh v. Lonsdale, 1882, 21 Ch. D. at pp. 14, 15 ; Lowther v. Heaver, 1889, 41 Ch. D. at p. 264). But there are limits to the application of 22 SPECIFIC PERFORMANCE. this doctrine. It is not applicable in a County Court case, arising out of a contract of ■which such a Court would not have jurisdic- tion to grant specific performance (Foster v. Reeves, [1892] 2 Q. B. 255 : see also Swain v. Ayres, 1888, 21 Q. B. D. at pp. 295—297); nor, again, does it operate to entitle a merely equit- able assignee of a lease to exercise a right — ■ e.g., an option to purchase — given by a covenant in the lease to the legal assigns of the lessee {Friary Hqlroyd and Healey^s Breweries v. Single- ton, [1899] 1 Ch. 86). 23 CHAPTER V. THE STATUTE OF FEAUDS. Whether the land in question in any particular case is situate in England or abroad, the right of a party to a contract concerning, it to sue the other party in this country (see per Lindley, L. J., in Rochefoucauld v. Boustead, [1897] 1 Ch. at p. 207) is, as a rule, very materially affected by the Statute of Frauds (29 Car. II. c. 3). For by the 4th section of that statute it is enacted that "no action shall be brought whereby to charge any person . . . upon any contract or sale of lands, tenements, or hereditaments, or any interest in or concerning them, . . . 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 therewith, or some other person thereunto by him lawfully authorised." The " action" referred to in the statute was, of course, an action at Common Law. Suits in Equity were not within the words of the 4th section ; but they were within the spirit and 24: SPECIFIC PEEPOEMANCE. meaning of the enactment, and were always so considered, Equity following the Law, and .acting in obedience to the statute (see per Lord Redesdale in Hovenden v. Anneshy, 1805, 2 Sch, & Lef. at p. 630 ; 9 R. R. at p. 120 ; and per Lord Westbury in Knox v. Gye^ 1872, L. R. 7 H. L. at p. 674). Accordingly, in the case of a contract of the class now under considera- tion, the party suing in England for specific performance must, in order to establish his case, prove not only that a contract has been entered into, which, if the above-quoted enact- ment were out of the way, would be binding and enforceable, but also (unless his case falls within one of the recognised exceptions from the operation of the statute) that the terms of the contract are evidenced in the manner which the statute prescribes. It is to be observed, however, that the statute does not render void, or illegal, a contract which is not evidenced in accordance with its require- ments, but only bars the legal remedy of an action, by which the contract might otherwise have been enforced {Maddison v. Alderson, 1883, 8 App. Cas. at pp. 474, 488). It relates to the kind of proof required, in this country, to enable a plaintifE suing here to establish his case here, and in that sense regulates procedure here THE STATUTE OF FRAUDS. 25 (Rochefoucauld v. Boustead, [1897] 1 Ch. at p. 207). And one of the results of this is, that if, in a case where the provisions of the statute have not been complied with, the party sued, being sui juris, chooses to waive that defect, specific performance of the contract, if in other respects unobjectionable, may be enforced against him. Passing now from these preliminary obser- vations to a more detailed consideration of the above-quoted language of this important 4th section of the Statute of Frauds, ^ will be noticed, in the first place, that its operation extends to every ^'contract or safe" — which words are to be construed according to thqir literal grammatical meaning (per Kay, J., in McManus v. Cooke, 1887, 35 Ch. D. at p. 687) — " of lands, tenements, or hereditaments, or any interest in or concerning them." Accordingly, not only sales out and out of freeholds, copyholds, or leaseholds, including sales by public auction [Maddison v. Alderson, 1883, 8 App. Cas. at p. 488), and agreements relating to such sales, but also agreements for leases, and all other contracts touching some interest in land, — as, for instance, a contract to sell debentures charged on land (Driver v. Broad, [1893] 1 Q. B, 539), to assign a share of partnership assets 26 SPECIFIC PEEPOEMANCE. comprising land (G^rayv. Smith, 1889, 43 Ch. D. 208), or even to sell the building materials composing a house which at the time of the contract is standing on land' {Lavery v. Pursell, 1888, 39 Ch. D. 508),— fall within the provision of the statute. In the next. place, the statute prescribes that, in cases falling within it, '' the agreement, or some memorandum or note thereof," must be ^^ in writing." It does not, however, prescribe any particular form of document. Therefore any kind of writing, however informal, may do ; telegrams, for example, or letters, or even an entry in a man's own diary (see Coupland v. Arrowsmith, 1868, 18 L. T. N. S. 755; Kennedy v. Lee, 1817, 3 Mer. at pp. 447, 450; 17 E. R. 110; In re Hoyle, [1893] 1 Ch. at pp. 98, 100), and even a statement in an affidavit has been held to be, in point of form, sufficient [BarJcworth v. Young, 1856, 4 Drew, at p. 17). And it is to be remembered that in Acts of Parliament, unless the contrary intention appears, expressions referring to "writing" are to be construed as including references to printing, lithography, and other modes of representing or reproducing words in a visible form (Interpretation Act, 1889, s. 20). Further, the statute does not prescribe, and THE STATUTE OF FRAUDS, 27 the Court accordingly does not require, that the whole of the contract be expressed in a single document. It is allowable for a plaintifE to furnish the requisite written evidence of the contract which he is seeking to establish by reading together two or more paper writings, provided that they are such as to constitute in substance one document, — as, for instance, a letter and. the envelope in which it was posted {Pearce v. Gardner, [1897] 1 Q. B. 688),— or that the writing containing the signature of the defendant or his agent refers to the other writing or writings so as to connect them all with one another, parol evidence being admis- sible to identify the actual writing or vpritings referred to (see on this subject, Ridgway v. Wharton, 1856-57, 6 CI. H. L. 238 ; Clinan v. Cooke, 1802, 1 Sch. & Lef. at p. 33 ; 9 E. R. at p. 7; Shardhw v. Cotterell, 1881, 20 Ch. D. 90; Oliver v. Hunting, 1890, 44 Ch. D. at p. 207). The commonest instance of this kind of thing occurs in the case of a contract constituted by correspondence. It must, however, be borne in mind that, in such a case, the correspondence which has passed between the parties, or their agents, is to be read, and wiU be considered by the Court, as a whole. For two letters picked out of a correspondence, and read by themselves, 28 SPECIFIC PERFORMANCE. . might appear to constitute a complete contract; whereas, on perusal of the rest of the letters, it might be obvious that neither of the parties had ever intended to conclude a contract with the other part j, and that in truth the matter had never passed beyond the stage of negotia- tion {Hussey v. Home-Payne, 1879, 4 App. Cas. 311). But if once a complete contract has been constituted by correspondence, it will not be affected by subsequent letters containing negotiations on new points raised for the first time after the conclusion of the contract (^Bel- lamy V. Dehenham, 1890, 45 Ch. D. 481). It often happens, though, that letters or other informal documents relied on by a plaintiff as evidencing a contract contain expressions point- ing to an intention or desire on the writer's part to have the agreed terms embodied in a formal instrument of agreement. In such cases, it is a question of construction whether a complete enforceable contract has or has not been concluded. On the one hand, if, for instance, an intend- ing purchaser of land writes a letter agreeing to buy it, subject, expressly, to a formal contract , being prepared and signed, the letter means what it says; and unless and until a formal contract is signed, there is no concluded con- THE STATUTE OF FRAUDS. 29 tract (Winn v. Bull, 1877, 7 Ch. D. at p. 32; Lloyd V. JVowell, [1895] 2 Ch. 744). And on tliis ground the Court, in an Irish case, refused to interfere where, an intending purchaser hav- ing made a written offer, the vendor replied by" telegram — " Accept your offer of 1,200^., sub- ject to letter and §igreement to be sent to your solicitor " {Brien v. Swainson, 1877, 1 L, R. Ir. 135). If, on the other hand, there is a simple acceptance in writing of an offer to sell or purchase, accompanied by words expressive of the acceptor's desire to have the terms of the arrangement embodied in some more formal document, such words will not prevent the Court from enforcing the contract constituted by the offer and acceptance (Bo.ssiier v. Miller, 1878, 3 App. Cas. 1137-9 ; Bonnewell v, Jenkins, 1878, 8 Ch. D. 70 ; FUhy v. Hounsell, [1896] 2 Ch. 737; North y. Percival, [1898] 2 Ch. 128). Next, as to the contents of the written aigree- ment, memorandum, or note. The statute gives no explicit direction as to what terms of a con- tract falling within its scope must be expressed in writing ; but the matter has been abundantly elucidated by judicial decisions. The general principle is that the essential 30 SPECIFIC PERFORMANCE. terms of the contract must be expressed in writing. What, then, are the essential terms ? Contracts falling within the scope of the statute vary so much in their details, that it is not practicable to give an exhaustive and univer- sally applicable answer to this question ; but there are certain matters which may be indi- cated as being necessary to be expressed. Every contract in writing for the sale of land, or an interest in land, must contain words which show or provide means of ascertaining, (i.) who the contracting parties are, (ii.) what the subject-matter of the contract is, and (iii.) what the price or other consideration to be paid or given by the purchaser is. The parties need not be actually named in the writing ; any description sufficient to iden- tify the person referred to will do, " the pro- prietor," for instance [Sale v. Lambert, 1874, L. R. 18 Eq. 1), though not ''the vendor" {Potter V. Duffield, Hid. 4) ; and a memorandum, may sufficiently indicate the contracting parties, although the persons appearing on the face of it to be the vendor and the purchaser are, in fact, agents for undisclosed principals,, who the principals are being proveable by parol evi- dence, whether the fact of agency can be gathered from the written document or not THE STATUTE OF FRAUDS. 31 {Filby V. Mounsell, [1896] 2 Ch. at p. 740). Id cerium esi quod cerium reddi potest (see per Lord Cairns in Rossiter v. Miller, 1878, 3 App. Cas. at p. 1141); and the same principle is appli- cable to tlie description of the subject-matter of contract {e.g., Plant v. Bourne, [1897] 2 Ch. 281, where "twenty-four acres of land, free- hold, at T., in the parish of D.," was held by the Court of Appeal to be a sufficient descrip- tion ; and North v. Percival, [1898] 2 Ch. 128), and also to the price or other consideration, as where the contract is to sell at a fair valuation, or at such a price as A. (a third person) shall fix ; but, in the last-mentioned case, the contract is not enforceable unless or until A. has fixed the price {Milnes v. Gery, 1807, 14 Ves. Jun. 400, 407; 9 E. R. 307). Parol evidence is admis- sible to identify the subject-matter of contract with the description of it in the writing {e.g., McMurray v. Spicer, 1868, L. E. 5 Eq. at pp. 536, 537). It is not absolutely necessary, in the case of a sale of land, that the estate or interest to be sold should be specified in writing ; for a con- tract simply to sell land is implied by law to be a contract to sell the whole of the vendor's interest in it, and that interest will be similarly implied to be an estate in fee simple {Bower v. 32 . SPECIFIC PEEFOEMANCE. dooper, 1842, 2 Hare, 408 ; Hughes v. ParJcer, 1841, 8 Mee. & W. 244). But, in the case of a contract for a lease, the writing must show- not only (in the manner already indicated) the parties, the subject-matter, and the rent, but also the length of the term, and the date of its commencement [Marshall Y.'Berridge, 1881, 19 Ch. D. 233), which date, however, may be collected from the document read as a whole [In re Lander and Bagleifs Contract, [1892] 3 Ch. at p, 48), or may be , ascertained from circTxmstances referred to in the document [Phelan v. Tedcastle, 1885, 15 L. R. Ir. at p. 175). With respect to the consideration, it has been distinctly laid down in the Court of Appeal in a recent case (In re Kharaskhoma Exploring and Prospecting Syndicate, [1897] 2 Ch. at pp. 464, 467 ; see also ibid, at top of p. 463), that "a contract in writing , must ex- press as part of the contract the consideration," and that, " if you have a document in writing which does not show in writing what is the consideration, it is not a contract at all in writing, — in other words, a document which only discloses part of a contract is not a con- tract in writing." (See, too. South Hetton Coal Co. V. Haswell, ^c. Co., [1898] 1 Ch. at p. 469.) THE STATUTE 0,F FRAUDS. 33 If, however, in a case to which the Statute of Frauds applies, the consideration has not been expressed in the writing, but there has been such part performance as to take the case out of the statute, the consideration may be proved by parol evidence in an action for specific per- formance of the contract {Kelly v. Walsh, 1878, 1 L. R. Ir. at p. 28*3). The statute further prescribes that the writing must be " signed ly the party to he charged there- with, or some other person thereunto hy him lawfully authorised^'' i.e., his agent for the purpose of signing. " Signed^'' not " subscribed " ; therefore, whether the name occurs in the body of the writing, or at the beginning, or at the end, it will satisfy the statute, provided it is intended to be a signature governing the whole of the writing {Evans v. Hoare, [1892] 1 Q. B. at p. 597; Caton v. Caton, 1867, L. R. 2 H. L. . at p. 143) : for the statute does not make any signed instrument a binding contract by reason of the signature, contrary to the intention of the signatory {Hussey v. Home-Payne, 1879, 4 App. Cas. at p. 323 ; and see Pattle v. Eorni- Iroolt, [1897] 1 Ch. 25). " By the party to le charged," not " by all the parties"; accordingly, a party who has not R. 3 34 SPECIFIC PERFOEMANCE. signed (as, for instance, in the case of an acceptance by parol of a written offer) may- enforce a contract against a party who has signed {Seton v. Slade, 1802, 7 Ves. Jun. at p. 275 ; 6 R. R. 124 ; Rems v. Picksley, 1866, L. R. 1 Ex. 342). " Or some other person,^^ &c. Where a pla,in- tifE founds upon signa,ture by an agent for the defendant, he must prove, unless it is admitted, that the alleged agent had authority not merely to negotiate, but to sign, on his principal's be- half, the contract sued on {Smith v. Webster, 1876, 3 Ch. D. 49; Godwin v. Brind, 1868, L. R. 5 C. P. 299, n,). But the agent's appoint- ment need not be in writing [Heard v. Pilley, 1869, L. R. 4 Ch. 548), and it matters not whether his authority be given to him pre- viously to the contract, or subsequently by the principal's ratification of his act {Ridgway v. Wharton, 1867, 6 CI. H. L. at pp. 296, 297; and as to the requisites of a binding adoption, or ratification, of acts done without previous authority, see Marsh v. Joseph, [1897] 1 Ch. 213). At a sale by public auction, the auctioneer is the agent not only of the vendor, but also of the purchaser, the highest bidder; and he is entitled to sign, at the time and as part of the THE STATUTE OF FRAUDS. 35 transaction (but not afterwards), in the names and on behalf of both parties, a memorandum suflBcient to satisfy the statute [Sims v. Landray^ [1894] 2 Ch. at p. 320 ; Bell v. Balls, [1897] 1 Ch. at pp. 669, 671). But delegatus non potest delegare ; and, accordingly, the auctioneer's clerk has no authority to sign as the purchaser's agent, unless the purchaser has by word, sign, or otherwise specially authorised him so to do {Bell V. Balls, 9,nd Sims v. Landray, uU supra). 3(2) 36' , SPECIFIC PEKFOEMANCE. CHAPTER VI. EXCEPTIONS FROM THE STATUTE OP FRAUDS. The provisions of the 4th section of the Statute of Frauds are binding upon Courts of Equity (see joer Lord Erskine in Buckmaster v. Harrop, 1807, 13 Ves. Jun. at p. 472; 6 R. R. 132; and supra, p. 23); but those Courts have, never- theless, taken upon themselves to hold, and to enforce their view, that, under certain circum- stances, contracts may be treated as excepted from the operation, or (to use the common phrase) " taken out," of the statute — a striking instance of legislation by judicial decision. These exceptions are cases of (I.) fraud, (II.) part performance, (III.) admission by the defendant, and (IV.) sale by the Court ; and each of them calls for some explanation. (I.) Fraud. — The principle of the Court is, that the Statute of Frauds was not made to cover fraud ; and it does not prevent the proof of a fraud {Lincoln v. Wright, 1859, 4 De Gr. & J. Ch. at p. 22 ; Rochefoucauld v. Boustead, [1897] 1 Ch. at p. 206). '« Cases in this Court," EXCEPTIONS FROM THE STATUTE OP FRAUDS. 37 said Lord Eldon, in Mestaer y. Gillespie (1806, 11 Ves. Jun.^ at p. 628; 8 R. R. 266), "are perfectly familiar, deciding that a fraudulent use shall not be made of that statute (the Statute of Frauds), where this Court has interfered against a party meaning to make it an instru- ment of fraud, a«nd said he should not take advantage of his own fraud ; even though the statute has declared that,, in case those circum- stances do not exist, the instrument shall be absolutely void " : in connection with which statement it is to be remembered that (as has been mentioned supra, p. 24) the Statute of Frauds does not avoid a contract falling within its scope, but only affects the, right of suing upon it. Accordingly, if, for instance, the lack of written evidence of a contract is owing to the fraud of one of the parties, as if one agreement in writing should be proposed and drawn, and another fraudulently and secretly brought in and executed in lieu of the former, in this or such like cases of fraud Equity would i^elieve, even against the words of the statute ( Viscountess Montacute v. Maxwell, 1720, 1 P. Wms. at p. 616). For to allow any other construction of the statute would be to make it a guard and protection to . iraud, instead of a security against it, as was the 38 SPECIFIC PEKPOEMANCE. design and intention of it {per Lord Hardwicke in Wallter v. Walker, 1740, 2 Atk. at p. 100). (II.) Part Performance. — ^Where a parol con- tract has been, in the view of the Court, partly performed, specific performance may be en- forced, notwithstanding the absence of the writing prescribed by the statute. This is, in triith, an instance — ^though such an important one as to require separate discussion — of the application of the principle enunciated under the precisding head [supra, p. 3 6). For the ground upon which Courts of Equity interfere, in cases of this sort, is that otherwise one party to a contract would be able to practise a fraud upon the other (Story's Equity Jurisprudence, s. 759). It would be against conscience to allow a partyj who had entered and expiended his money upon land on the faith of a verbal contract, to be treated as a trespasser, and the other party to enjoy the advantage of the money so expended {Bond V. HopJiins, 1802, 1 Sch. & Lef. at p. 433). In such a case, the party seeking to ignore the contract is really " charged," not (within the meaning of the statute) upon the contract itself, but upon the equities resulting from the acts done in execution of the contract. Iil other words, when the statute says, in effect, that no action is to be brought to charge any person EXCEPTIONS FROM THE STATUTE OF FRAUDS. 39 upon a contract concerning land unless it is evidenced in the manner prescribed by the enactment, it has in view the simple case in which he is charged upon the contract only, and not that in which there are equities result- ing from res gestce subsequent to and arising out of the contract (sge per Lord Selborne in Mad- dison V. Alderson, 1883, 8 App. Cas. 467, at pp. 475, 476). This doctrine concerning part performance appears to be almost, if not quite, coeval with the statute (see, for instance, Hollis v. Edwards, 1683, 1 Vern. 159, and Butclier v. Stapely, 1685, 1 Vern. 363) ; and it has been illustrated by a great number and variety of reported cases. From these it has to be gathered what acts will, and what wUl not, be regarded now- adays by the Court as sufficient acts of part performance to take a case out of the statute, or, in other words, as constituting sufficient grounds for the admission of parol evidence of the terms of a contract falling jon»?a/«c«V within the statute's scope. It is not at all likely that the limits of the doctrine will in the future be enlarged (compare Maddison v. Alderson, uU supra, at pp. 489, 491, and lAndsay v. Lynch, 1804, 2 Sch. & Lef. at p. 5 ; 9 R. R. at p. 57). In the first place, then, the acts relied upon 40 SPECIFIC PERFORMANCE. as part performance must be unequivocally; and in their own nature, referable to some suck contract as that alleged. {Maddison v. Alderson, uhi supra, at p. 479). Further, "nothing is considered as a part perform- ance which does not put the party into a situa- tion that is a fraud upon him, unless the agreement is performed" {CUnan v. Cooke, 1802, 1 Sch. & Lef . at p. 41 ; 9 R. R. at p. 9). And again, ''it is not enough that an act done should be a condition of, or good consideration for, a contract, unless it is, as between the parties, such a part execution as to change their relative positions as to the subject-matter of the contract" (Maddison v. Alderson, ubi supra, at p. 478). Of the acts which have been held to be suffi- cient to exclude the statute, the following are examples, viz. : possession of land taken, or even in some cases continued, by one party, after the contract, with the knowledge and acquiescence of the other party (Morphett v. Jones, 1818, 1 Swans, at p. 181 ; 18 R. R. 48; mdson V. Eeuland, [1896] 2 Ch. 428, 434); expenditure of money in alterations and repairs of buildings by, or by the authority of, the tenant in possession, with the landlord's ap- proval {Williams y. Evans, 1875, L. R. 19 Eq. EXCEPTIONS FROM THE STATUTE OF FRAUDS. 41 547) ; payment of rent at an increased rate {Nunn Y. Fabian, 1865, L. R. 1 Ch. 55 ; fol- lowed in Conner y. Fitzgerald, 1883, 11 L. R. Ir. esp. pp. 114, 115, and in Miller and Aldworth Limited v. Sharp, 1899, 47 W. R. 266), though query the difference in principle between such payment and payment of purchase-money ; and a wife's return to live with her husband after a separation ( Wehster v. Webster, 1853, 4 De G. M. A a. Ch. 437). On the other hand, acts of the following kind will not be treated as part performtoce, viz. : acts merely introductory or ancillary to a con- tract (see examples collected in Story's Equity Jurisprudence, s. 762, and in Maddison v. Alderson, ubi supra, at p. 480) ; payment of part or even the whole of the purchase-money, for the payment of money is an equivocal act, not (in itself) indicative of a contract concern- ing land {Maddison v. Alderson, ubi supra, at p. 479) ; and marriage, for the statute expressly requires " agreements made upon consideration of marriage " to be evidenced by some writing {Taylor v. Beech, 1749, 1 Ves. 298 ; Warden v. Jones, 1857, 2 De G-. & J. Ch. at p. 84; Caton V. Caton, 1866, L. R. 1 Ch. at p. 147). Further, it must be borne in mind that the only defect which part performance cures is the 42 SPECIFIC PERFOEMANCE. formal one of want of written evidence of a contract. Part performance is not a panacea. It pre- supposes a complete contract {Lady E. Thynne v. Earl of Glengall, 1848, 2 CI. H. L. at p. 158) ; ^nd it is of no avail to prove an act of part perform- ance, unless the parol evidence thus let in proves plainly and distinctly (Pn'cev. Salusbury, 1863, 32 Beav. at p. 459), or the defendant admits, a con- tract complete in its terms, and such in all respects as to be, according to the principles and rules of the Court, specifically enforceable. So, where there has been a parol contract and part performance, but the case is one in which specific performance could not be directed, the plaintiff is not entitled, by virtue of the part perform- ance, to obtain relief in damages [Lavery v. Pursell, 1888, 39 Ch. D. at pp. 518, 519). And it may here be noticed that although, on the one hand, where there has been a contract in writing and no part performance, the law presumes that the writing expresses the whole of the contract, and therefore will not permit it to be varied by parol evidence (see, however, infra, p. 129), still, on the other hand, where there has been part performance, parol evidence is admissible in a Court of Equity to add to, or otherwise modify, the terms even of a written EXCEPTIONS FROM THE STATUTE OP FEAUDS, 43 contract ; for what the real contract ultimately was must depend on the combined effect of what was agreed upon in writing and what was agreed upon verbally (see per Turner, L.J., in Frice v. Sahshury, 1863, 32 L. J. Ch. at p. 452 ; Sutherland v. Briggs, 1841, 1 Hare, at p. 35 ; and Kelly v. Walsh, 1878, 1 L. R. Ir. at p. 283, more fully referred to supra, p. 33). But the party seeking to enforce the contract as varied must, in order to succeed, prove that the other party understood and assented to the variation [Earl of Darnley v. Proprietors, Sfc, of London, Chatham 6f Dover Railway, 1867, L. R. 2 H. L. - at p. 60). The applicability of the doctrine of part performance has not been extended by the Judicature Act, 1873 (36 & 37 Vict. c. 66). It applies, in the High Court, only to cases to which it would have applied in the Court of Chancery [Britain v. Rossiter, 1879, 11 Q. B. D. 123). But with respect to the limits observed by the Court of Chancery in applying the doctrine, there has, since the passing of the last-mentioned Act, been some diversity of judicial opinion. In Britain v. Rossiter (ubi supra) in the Court of Appeal, all the judges (Lord Esher, M.R., and Cotton and Thesiger, L.JJ.), substantially concurred in the opinion 44 SPECIFIC PERFORMANCE. that the doctrine was confined to cases of contracts relating to land, or to some interest in land. Subsequently, in Maddison v. Alderson (1883, 8 App. Cas. at p. 474), Lord Selbome intimated a doubt as to the correctness of that opinion. And still more recently, in McManus V. Coohe (1887, 35 Ch. D. 681, 697), Kay, J., expressed the view that the doctrine applied to all cases in which a Court of Equity would entertain a suit for specific performance, if the contract alleged had been in writing, and in particular that it applied to a parol agreement for an easement, though no interest in land was intended to be acquired. This much, at any rate, may safely be said, that the great majority of reported cases in which the doctrine has been applied, and also of the cases in which it is nowadays invoked, have been and are cases of contracts concerning land, or some interest in land (see per Lord Selborne in Maddison v. Alderson, ubi supra, at p. 474). (III.) Admission by Defendant. — The object of the Statute of Frauds was to prevent frauds and per j uries, the Legislature evidently thinking, in framing the 4th section, that there were some contracts of so iniportant a nature that it was not right to leave them to depend on the slippery testimony of men's memories [Lavery v. Pursell, EXCEPTIONS PEOM THE STATUTE OF PEAUDS. 45 1888, 39 Ch. D. at p. 513). But where a plaintifE pleads a contract to the enforcement of wHch the want of writing is the only objection, and the defendant by his pleading does not raise the bar of the statute, and admits, either expressly or impliedly (Ord. XIX. rr. 15, 17, 20), the contract §,lleged by the plaintiff, the case is taken entirely out of the mischief which the statute had in view : there is no room for fraud or perjury ; and the Court will accord- ingly direct specific performance (Lacon v. Martins, 1743, 3 Atk. at p. 3 ; A.-G. v. Day, 1748-49, 1 Ves. at p. 221). (IV.) Sale by the Court. — ^Where property is sold under the direction of the Court, the judi- cial nature of the proceedings, in which the fact of the sale, the particulars of the property sold, the price, and the name of the purchaser are formally certified by the Master, takes the case out of the mischief to prevent which the statute was enacted ; and the Court regards such cases as excepted from the operation of the statute {A.-G. V. Day, 1748-49, 1 Ves. at p. 221; Blagden v. Bradhear, 1806, 12 Ves. Jun. at p. 472). 46 SPECIFIC PEEFOEMANCE. CHAPTER VII. CONTRACTS EELATING TO PEESONAL PEOPERTY OE ACTS. The number and variety of imaginable con- tracts relating to personal property, or per- sonal acts, are almost infinite. All tbat can be attempted here -will be to advert briefly to the principal classes of contracts falling within this category (as well as, as regards some few of them, within the category of contracts re- lating to land), with respect to which the grianting or withholding of relief by way of specific performance has been judicially con- sidered. Annuity.- — ^Contracts to purchase or to sell life annuities may be specifically enforced {Withy Y. Cottle, 1823, Turn. & R. 78; Prit- chard\. Ovey, 1820, 1 Jac. & W. 396). Arbitration and Award. — An action will not lie for specific performance of a contract to refer to arbitration {Street v. Righy, 1802, 6 Ves. Jun. at p. 318), but will lie for specific performance of an award {Wood v. Griffith, CONTRACTS AS TO PERSONAL PROPERTY OR ACTS. 47 1818, 1 Swans, at p. 54 ; see, too. Nickels v. Hancock, 1855, 7 De a. M. & Gc. 300). Business. — See Goodwill, infra, p. 48. Charter-Party. — The Court cannot affirma- tively enforce the contract contained in a char- ter-party, but can restrain, by injunction, the employment of a sjiip in a manner inconsistent with the rights given by that contract {De Mattos V. Gibson, 1859, 4 De G. & J. Ch. at p. 299 ; Le Blanche v. Granger, 1866, 35 Beav. 187). Chattels. — It is only in cases where chattds are unique, or (not merely convenient for the purposes of, but) of peculiar value to the plain- tiff, that the Court will specifically enforce contracts for the sale and delivery of them (compare Falche v. Gray, 1859, 4 Drew. 651, and Fothergill v. Rowland, 1873, L. R. 17 Eq. at pp. 139, 140; and distinguish Bowling v. Betjemann, 1862, 2 John. & H. 544). These cases of specific performance may be compared with those in which, independently of any question of contract, the Court of Chancery exercised jurisdiction to enforce the delivery up in specie of heirlooms, such as the horn in Pusey v. Pusey (1684, 1 Vern. 273), or curiosities, such as the old silver altar-piece in Duke of Somerset v. Cookson (1735, 3 P. Wms. 48 , SPECIFIC PEEPOEMANCE. 389), and with the remedy of execution for the delivery of a chattel, which is now (Ord. XLVIII. r. 2) obtainable in the High Court, in a Common Law action of detinue. Compromise. — An agreement for a compro- mise may be specifically enforced {Attwood y. ,1826, 1 Russ. 353), and, if made in an action, by means of a summons taken out in that action {Eden r. MM, 1878, L. E. 7 Ch. 781). Debts. — An action will lie for specific per- formance of a contract to purchase a debt {Wright y. Bell, 1818, 6 Price, Ex. 325). Expectancies. — Contracts dealing with expec- tancies have, in numerous reported cases, been upheld by Courts of Equity, and directed to be specifically performed (see Lyde v. Mym^ 1833, 1 Myl. & K. 683, and cases there re- ferred to). Family Arrangements. — These are regarded with favour by the Court, and, whatever be the nature of the property to which they relate, •they will, if fair and reasonable, be specifically enforced {Stapilton v. 8tapilton, 1739, 1 Atk. 2 ; Westhy v. Westhy, 1842, 2 Dr. & War. at p. 525 ; Williams v. Williams, 1867, L. R. 2 Ch. 294). Goodwill. — ^A contract for sale of business pre- mises with .the goodwill annexed to them is CONTEACTS AS TO PERSONAL PROPERTY OR ACTS. 49 capable of being specifically enforced {Darhey V. Whitaker, 1857, 4 Drew, at p. 140), but not a contract to sell a goodwill alone {ibid, at p. 139; Baxter v. Conolly, 1820, 1 Jac. & W. 576), nor, it is conceived, a contract to sell a business, or a medical practice, apart from the business premises or other tangible property {Boson V. Farlow, 1816, 1 Mer. 459; May v. Thomson, 1882, 20 Ch. D. 706). Indemnity. — A contract simply to indemnify is not specifically enforceable; but if the in- demnifying party also agrees to do some act, the doing of which would operate as an indemnity, performance of the act may be compelled {L. ^- 8. W. Bail. Co. v. Humphrey, 1858, 6 W. E. at p. 785). Leaseholds. — Leasehold property is regarded by English Law as personalty; but such pro- perty is an interest in land, and accordingly contracts relating to leaseholds fall within the category of contracts relating to land, which have already been discussed. See Chapters III. to VI., supra. Loans. — Specific performance of a contract to lend and borrow money is not gTanted at the suit either of the proposed lender or of the proposed borrower, whether the loan is to be on security or without security (/SoM^A 4/''*'^*'^ R. ' 4 50 SPECIFIC PERFORMANCE. Territories v. Wallington, [1897] 1 Q. B, at p. 696 ; [1898] App. Cas. 309); but where money has been actually advanced, the Court will enforce specific performance of a contract to execute a mortgage for securing the repayment of the advance {^Hermann v. Hodges^ 1873, L. E,. 16 Eq. 18). Marriage Articles. — Performance of a contract on marriage for the settlement of personal, no less than of real, property may be enforced by the Court {Jeston v. Key, 1871, L. E. 6 Ch. 610 ; and see Harvey v. Ashley, 1748, 3 Atk. at p. 611). Parliament — Cases may, perhaps, arise in which a contract not to apply for a private Act of Parliament will be enforced by means of an injunction [Steele v. North Metropolitan Rail. Co., 1867, L. R. 2 Ch. at p. 238, n.) ; but, as a rule, contracts not to apply to Parliament will not be enforced by the Court [8. C; and Lancaster, Sfc. Bail. Co. V. North-Western Rail. Co., 1856, 2 Kay & J. 293). Partnership. — As a general rule, the Court will not adjudge specific performance of a con- tract to form and carry on a partnership. There may be exceptions, but very limited exceptions, from that rule, as, for instance, where, after part performance of such a con- tract, the Court has decreed the execution of a CONTRACTS AS TO PEKSONAL PROPERTY OR ACTS. 51 proper deed of partnei'ship {Scott v. Rayment, 1868, L. R. 7 Eq. at p. 115 ; England v. Curling^ 1844, 8 Beav. 129). 'Patents. — A contract for the sale of a patent was specifically enforced in Cogent t. Gibson (1864, 33 Beav. 557 ; see, too, I^ew Ixion Tyre, Src Co. V. Spihhuru, [1898] 2 Ch. at p. 142 ; arid Preston v. Luck, 1884, 27 Ch. D. 497, 500) ; and similar relief may be obtained on a contract by the vendor of a patent to assign to the pur- chaser patent rights which the former may acquire in the future {Printing, Sfc. Co. v. Samp- son, 1876, L. E. 19 Eq. 462). Personal Acts. — A party to a contract may, in certain cases, be ordered to perform a stipula- tion for the execution by him of a bond or other deed (e.g. Avery v. Langford, 1854, Kay, 663; Granville Y.BeUs, 1848, 18 L. J. Ch. 32; cp. the old cases referred to in Stewart v. Ken- nedy, 1890, 15 App. Cas. at p. 104); but such contracts as a contract by an actor to act at a particular theatre (Kemhle v. Kean, 1829, 6 Sim. 333), or a contract to supply publishers with drawings of maps for engraving and publica- tion, cannot be specifically enforced [Baldwin V. Society for Diffusing Useful Knowledge, 1838, 9 Sim. 393). Personal Services.— K& has been already noticed 4(2) 62 SPECIFIC PEEFOEMANCE, {supra, p. 17), the Court does not grant specific performance of contracts for personal service, such, for instance, as contracts of hiring and service (i??>5y v. Comol, 1880, 14 Ch. D. at p. 487), . apprenticeship {De Francesco v. Barnum, 1890, 45 Ch. D. at p. 437), or agency [Chinnock\. Sains-' hury, 1860, 30 L. J. Ch. 409). Reversions. — Contracts for the sale and pur- chase of reversionary interests, if made — to use the words of the Sales of Reversions Act, 1867 (31 Vict. c. 4, s. 1) — '■'■lona fide and without fraud or unfair dealing," are, it is conceived, specifically enforceable, the former rule, that a purchaser of a reversion must prove that he gave a full price {SincJcsman v. Smith, 1827, 3 Euss. 433), having been virtually abrogated by the last-mentioned Act. StUl, neither that Act, nor the abolition of the usury laws, has taken g,way the old jurisdiction, of Courts of Equity to protect expectant heirs and rever- sioners, and other persons who, owing to igno- rance, poverty, or other circumstances, are peculiarly exposed to extortion and oppression, and to relieve them against catching bargains (see (yRorke v. Bolingbroke, 1877, 2 App. Cas. at p. 833; Fry v. Lane, 1888, 11 Ch. D. at p. 322 ; and the judgments in Rae v. Joyce, 1892, 29 L. R. Ir. 500. See, also, under the CONTRACTS AS TO PERSONAL PROPERTY OR ACTS. 53 head Delay, infra, p. 101, and Drysdale v. Mace, 1854, 5 De G-. M. & G. Ch, 103). Separation. — A valid contract for the present separation of husband and wife may be enforced specifically by directing the execution of a proper deed for that purpose ( Wilson v. Wilson, 1848, 1 CI. H. L. 538); but a contract providing for their prospective separation is unenforceable {Westmeath v. Salisbury, 1831, 5 Bli. N. S. at p. 367). Husband and wife,, when engaged in matri- monial litigation, (as to this limitation of the proposition, see and compare CaMll v. Cahill, 1883, 8 App. Cas. at pp. 429—432, and McGregor v. McGregor, 1888, 21 Q. B. D. at p. 430,) can validly contract with one another for a present separation {Besant v. Wood, 1879, 12 Ch. D. 605), provided there is some sufficient consideration for the contract ( Wilson v. Wilson, vhi supra, at p. 574 ; Gills v. Harding, 1870, L. E. 3 Ch. at p. 339). Formerly such a con- tract was unenforceable, if it contained a pro- vision for the father giving up the custody of his infant children to his wife {Hope v. Hope, 1857, 8 De G. M. & G. Ch. at p. 745); but the effect of the Custody of Infants Act, 1873 (36 & 37 Vict. c. 12, s. 2), has been to remove this objection to the specific performance of a 64 SPECIFIC PEEFOEMANCE. pontract lor separation (Hart y. Start, 1881, 18 Ch. D. at pp. 681, 682). It was held, in the last -mentioned case, that the Chancery Division could enforce specific performance of a contract for a separation deed, and for com- promise of a petition in the Divorce Division, without infringing the provision of the Judi- cature Act, 1873, (s. 24 (5) ), which forbids interference by one branch of the High Court with proceedings pending in another branch; and also that, the contract being on the face of it complete, the circumstance that it contained a provision for the reference to named arbitra,- tors of any difference which might arise in working out its terms, did not oust the jurisdic- tion of the Court to direct the separation deed to be settled by the Judge in Chambers. Shares and SfocA;— Although, as has already been noticed (supra, p. 14), the Court will not specifically enforce a contract to «ell Govern- ment stock [JVutbrown v. Thornton, 1804, 18 Ves. Jun. at p. 161), it will so enforce, at the instance either of the vendor or of the purchaser, con- tracts, even by parol, for the gale of shares in companies (Duncuft v. Albrecht, 1841, 12 Sim. 189), provided, of course, that performance is not impossible {Ferguson v. Wilson, 1866, L. R. 2 Ch. 77), and that the right to it has not been CONTRACTS AS TO PERSONAL PROPERTY OR ACTS. 55 lost or abrogated by delay or otherwise, e.g. by a rescission of the contract [NicoVs Case, 1885, 29 Ch. D. at pp. 428, 445). Such enforcement may be had though the vendor be only equitably entitled to the shares (Pa«Me v. Hutchinson, 1868, L. R. 3 Ch. at p. 390), or though, the contract being one governed by Stock Exchange rules, the purchaser sued be not the original purchaser, but the nominee of the purchasing jobber or broker {Evans v. Wood, 1867, L. R. 5 Eq. 9). Contracts for sale and purchase of shares are generally so made as to be subject to the rules and usages of the London Stock Exchange. A useful statement in explanation of some of those rules and usages is to be found in NicJcalls v. Merry (1875, L. R. 7 H. L. atpp. 539—541). As to whether, and in what cases, if any, performance of a contract between vendor and purchaser of shares in a company can be en- forced by means of an application, under sect. 35 of the Companies Act, 1862, for rectification of the company's register of shareholders, see Ward and Henry's Case, 1867, L. R. 2 Ch. 431 ; Ex parte Sargent, 1873, L. R. 17 Eq. at p. 276; Ex parte Shaw, 1877, 2 Q. B. D. 463, 477—480. Ships. — By sect, 57 of the Merchant Shipping Act, 1894 (57 & 58 Vict. c. 60), it is enacted that, without prejudice to the provisions of that 66 SPECIFIC PERFORMANCE. Act relating to the exclusion of unqualified persons from tHe ownership of British ships, interests arising under contract may be enforced Iby Or against owners or mortgagees of ships, in respect of their interest therein, in the same manner as in respect of any other personal property. Accordingly, the Court has, it is conceived, jurisdiction to adjudge specific per- formance of contracts for sale of British ships [Batthyany v. Bouch, 1881, 50 L. J. Q, B. 421), as well as, in certain cases {e.g. Hart v. Herwig, 1873, L. R. 8 Ch. at p. 866), of non-British ships. In Glaringhould t. Curtis (1852, 21 L. J. Ch. 541), specific performance of a contract to sell a barge was decreed. Trade. — See Goodwill, supra, p. 48. hi CHAPTER VIII. COMPENSATION. Thk principle of .compensation in connection with specific performance is a creation of English. Courts of Equity, and a corollary to the propositions underlying their peculiar jurisdiction as to enforcing contracts specifi- cally. It is unknown to the law of Scotland (Stewart v. Kennedy^ 1890, 15 App. Cas. at p. 102). It resembles the equitable doctrine of part performance in this, that very nearly all the reported cases in which it has been applied were cases of contracts relating to laud, or some interest in land. Its assistance may be invoked either by the vendor or by the purchaser ; but it goes further in favour of the latter than of the former. For, briefly stated, it amounts to this, viz. : (i.) where the vendor is the party seeking to enforce the contract, and he can perform his part of it substantially, though not according to the strict letter (so that he would be unable to maintain an action at Common Law upon it), then, generally, the contract, if in other respects 58 SPECIFIC PEEFOEMANCE. unobjectionable, will be specifically enforced by the Court, the vendor compensating tbe purchaser for any deficiency in value of what the vendor can actually convey as compared with what he contracted to sell ; but (ii.) where the purchaser is the party seeking to enforce the contract, he is, generally, entitled to have a conveyance from the vendor of all that he can convey, even though that be substantially different from the expressed subject-matter of the contract (so that the vendor could not enforce performance), and, in addition, to be allowed compensation, commonly by way of abatement from the purchase-money, for the difference. The two aspects of the principle, in its application to the cases of (i.) a vendor plaintiff, and (ii.) a purchaser plaintiff, have been clearly pointed out by Lord Erskine and Lord Eldon. As to (i.), Lord Erskine said, in Halsey v. Grant (1806, 13 Ves. Jun. at pp. 77, 79): '' Equity does not permit the forms of Law to be made instruments of injustice; and will interfere against parties attempting to avail themselves of the rigid rule of Law for imcon- scientious purposes. Where, therefore, advan- tage is taken of a circumstance that does not admit of a stiict performance of the contract, COMPENSATION. 59 if the failure is not substantial, Equity will interfere. If^ for instance, tlie contract is for a term of ninety-nine years in a farm, and it appears that the vendor has only ninety-eight or ninety-seven years, he must be non-suited in an action: but Equity will not so deal with him ; and if the 'other party can have the sub- stantial benefit of his contract, that slight difference being of no importance to him. Equity wiU interfere. Thus was introduced the principle of compensation . . . where one party would be foUed at Law, but the other may have the reasonable, substantial effect of his contract, compensation shall be admitted; not where the effect will be to put upon him something constitutionally different from that for which he contracted." And again, a very little later, in Alley v. Deschamps (1806, 13 Ves. Jun. at pp. 228, 229), the same Lord Chan- cellor said: " This relief [specific performance] . . . was followed by another class of cases, equally clear, that where a party was not able to perform his engagement according to the strict letter, if the failure was not substantial, the other should not be permitted to take advantage of the strict form." As to (ii.), Lord Eldon said, in Mortlock v. Buller (1804, 10 Ves. Jun. at p. 315): "I also 60 SPECIFIC PERFORMANCE. agree, if a man, having partialinterests in an estate, chooses to enter into a contract, repre- senting it, and agreeing to sell it, as his own, it is not competent to him afterwards to say, though he has valuable interests he has not the entirety ; and therefore the purchaser shall not have the benefit of his contract. For the purpose of this jurisdiction, the person con- tracting under such circumstances is bound by the assertion in his contract ; and if the vendee chooses to take as much as he can have, he has a right to that, and to an abatement ; and the Court will not hear the objection by the vendor, that the purchaser cannot have the whole." The principle under discussion is open to the criticism that to give to a purchaser the remedy of specific performance of part of a contract, and also compensation for a portion of the subject-matter of the contract which the vendor is unable to convey, is virtually to make a new bargain for the parties which they have not made for themselves (see per Lord Watson in Stewart v. Kennedy, 1890, 15 App. Cas. at p. 102), The danger of doing this was evi- dently felt by Lord Erskine (see Halsey v. Grant, 1806, 13 Ves. Jun. at p. 76); but he nevertheless was enthusiastic enough about the principle of compensation to say of it : " This COMPENSATION. 61 is the perfection of our jurisdiction. If the rigid construction of the Law were relaxed, there would be no safety ; but the system is rendered perfect by this healing power of Equity"(/S'.a, atp. 77). The following cases, selected out of the many which occpr in the Reports, may serve to illustrate the application and limits of the principle : — (i.) Vendor plaintiff — (a) Specific performance with compen- sation granted {^Calcraft v. Roebuck, 1790, 1 Ves. Jun. 231—186 acres sold as freehold, two acres being in fact held only from year to year). (h) Specific performance with compen- sation refused [Bmks v. Lord RoJcehy, 1818, 2 Swans, at p. 222— estate sold as tithe free, but in fact subject to tithe), (ii.) Purchaser plaintiff — (c) Specific performance with compen- sation granted [Hooper v. Smart, 1874, L. R. 18 Eq. 683— contract to sell the entirety of freeholds, the vendors being in fact entitled to a moiety only). 62 SPECIFIC PESFOKMANCE. (d) Specific performance witli compen- sation refused [Edwards Wood v. Marjoribmks, 1860, 7 CI. H. L. 806 — contract to sell advowson, an,d discovery by purchaser, after ac- ceptance of title, that the living was subject to a Queen Anne's Bounty mortgage). Other cases will be found collected in Seton, 5th ed., at pp. 1879, 1880; see, tooj Connors. PoUs, [1897] 1 I. R. 534, stated infra, p. 114. It is, however, to be observed that the prin- ciple of compensation will not be applied at the instance of a plaintiff who does not come into Court with clean hands, as, for instance, where he has been guilty of misrepresentation {see per Plumer, M. R., in Clermont v. Tasburgh, 1819, 1 Jac. & W. at pp. 120, 121). Nor will it generally be applied where the purchaser was, at the time of entering into the contract, aware of the defect, whether arising from the vendor's inability to convey the whole of the estate the subject of the contract [Castle v. Wilkinson, 1870, L. R. 5 Ch. 634), or from a patent misdescription [Dyer v. Har grave, 1805, 10 Ves. Jun. 506) — though secus in the case of a latent defect [ibid, at p. 509) ; nor where a purchaser has waived the right to compensa- COMPENSATION. 63 tion, either expressly or impKedly, as by taking possession [Burnell v. Brozbn, 1820, 1 Jac. & W. 168); nor where the proper amount of com- pensation is not capable of .being ascertained {Lord Brooke v. Rounthwaite, 1846, 5 Hare, at pp. 303 — 305) ; nor where the enforcement of the contract against the vendor would be pre- judicial to third persons interested in the property [Thomas v. Bering, 1837, 1 Keen, at p. 747) ; nor where, the contract saying nothing about compensation, the purchaser or lessee has taken Ms conveyance or lease {Clayton v. Leech, 1889, 41 Ch. D. 103). The case of indemnity against a defect of title differs in some respects from compensation. The Court will not, generally, compel a pur- chaser to take, or a vendor to give, an indemnity (see and compare Halsey v. Grant, 1806, 13 Ves. Jun. at p. 79 ; Horniblow v. Shirley, 1806, 13 Ves. Jun. 81 ; Balmanno v. Lumley, 1813, 1 Ves. & Bea. at p. 225). Thus far the general principles of the Court, applicable in cases where there is no special contract relative to compensation, have been considered and illustrated. Where there is an express stipulation on the subject — and not only in conditions of sale on sales by public a,uction, but also in formal agreements for sale 64 SPECIFIC PEKPORMANCE. by private contract, there is usually a clause providing for, or negativing, the allowance of compensation — the special contract between the parties supersedes or supplements the general rule, and the Court is remitted to the duty of construing the contract according to the ordinary rules of construction (see per Lord Campbell in Cordingly -y. Cheeseborough, 1862, 4 De Gr. F. & J. Ch. at p. 385). Accordingly, a vendor may be entitled to defeat the purchaser's claim imder a stipu- lation for compensation, by rescinding the contract pursuant to another stipulation em- powering him so to do {Mawson v. Fletcher, 1870, L. R. 6 Ch. 91); a purchaser may, where there has been material misrepresentation in the particulars of sale, successfully resist per- formance, notwithstanding a condition, in terms binding him to take compensation for any mis- takes or errors in the particulars, but construed by the Court to apply only to accidental slips {DimmocTt v. HalUtt, 1866, L. R. 2 Ch. 21); a vendor defendant may, notwithstanding a stipu- lation providing for his making compensation for errors of any kind in the description of the property, be relieved from compensating the purchaser for even a large deficiency in the stated quantity of the land sold, where there is COMPENSATION. 65 also a stipulation expressly negativing com- pensation for error in the- admeasurements {Cordingly v. Cheesehorough, 1862, 4 De Gr. F. & J. Ch. 379) ; and a purchaser may, by force of a condition of sale that, if any error in the particulars be discovered, compensation shall be allowed by the vendor, obtain compensation for an error not discovered until after the execution of the conveyance {Palmer v. Johnson, 1884, 13 Q. B. D. 351). 6Q SPECIFIC PEEFOBMANCE. CHAPTER IX. DAMAGES. When the eq^uitable jurisdiction in relation to specific performance had become established, a party to a contract falling within the scope of that jurisdiction had two remedies open to him, in the event of and against the other party refusing or omitting to perform his part of the contract : he might either institute a suit in Equity for specific performance, or bring an action at Common Law for damages for the breach. And that being so, and partly, per- haps, because it was content with its victory over the opposition of the Courts of Law to its peculiar jurisdiction, the Court of Chancery appears to have been for a long time indisposed, generally, to give relief by way of damages for breach of contract. " My opinion is," said Lord Eldon, in Toddy. Gee (1810, 17 Ves. Jun. at p. 278), " that this Court ought not, except under very particular circumstances, as there DAMAGES. 67 may be, upon a bill for the specific performance of a contract to direct an issue, or a reference to a Master, to ascertain the damages. That is purely at Law. It has no resemblance to compensation." Experience, however, showed that cases from time to time occurred in which, though the contract sued upon was one of which specific performance might, in accordance with the principles and rules of the Court of Chancery, be granted, justice would best be done by giving damages ; and it was obviously expedient that, in such a case, that Court should not send its suitor away to seek relief in a Court of Law, but should itself dispose of the whole piatter. Accordingly, in the year 1858, an Act, usually called Lord Cairns' Act (21 & 22 Vict. c. 27), was passed, by the second section of which it was enacted as follows : — "In all cases in which the Court of Chancery has jurisdiction to enter- tain an application for an injunction against the breach of any covenant, contract, or agree- ment, or against the commission or continuance of any wrongful act, or for the specific perform- ance 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 5(2) 68 SPECIFIC PERPOEMANCE. injunction or specific performance; and such damages may be assessed in such manner as the Court shall direct." It is to be noticed that the language of this section made it a condition precedent to the exercise of the discretionary power of awarding damages thereby conferred, that the case should be one in which an injunction or specific per- formance might be granted. Therefore, where, at the time of the commencement of the litiga- tion, relief by way of specific performance was impossible — as where, for instance, a plaintiff sought to enforce the allotment to him of some shares, and all the shares had been allotted to other persons before the filing of the bill [Fer- guson Y. Wilson, 1866, L. R. 2 Ch. 77)— the plaintiff could not, under Lord Cairns' Act, get damages. But by virtue of the Judicature Act, 1873 (see ss. 16, 24 (7), 25 (1 1), and 76), not only the jurisdiction under Lord Cairns' Act, but also all the jurisdiction in relation to damages which previously was vested in, or capable of being exercised by, the Common Law Courts, became vested in the High Court of Justice. It foUows that, whether the High Court can or cannot, in any particular case, grant specific performance, it can give damages for breach of the contract; DAMAGES. 69 SO that the Court has now a much larger power than it had under Lord Cairns' Act; for whereas, under that Act, the plaintiff had first to make out that he was entitled to an equitable remedy before he could get damages at all, now he may come to the Court and say, " If you think I am* not entitled to specific per- formance of the whole or any part of the contract, then give me damages " (see per Kay, J., in JElmore v. Firrie, 1887, 57 L. T. N. S. at p. 333, and per Cotton, L.J., in Tamplin v. James, 1879, 15 Ch. D. at p. 222). Still, in a case in which a plaintiff chose to bring his action to trial, on a pleading in which, alleging his willingness to perform and offering to perform a contract, he claimed specific performance, and added a merely alternative claim for damages as a substitute for specific performance, it was held that the Judicature Act, 1873, made no difference to the construction of such a claim ; and, it appearing that the plaintiff had, by selling the property in question, rendered specific per- formance impossible, the claim for damages failed also {Hipgrave v. Case, 1885, 28 Ch. D. 356 ; and see Lavery v. Pursell,. 1888, 39 Ch. D. 508, in which case, however, the question whether damages might have been given under 70 SPECIFIC PEEFOKMANCE. the Judicature Act, 1873, does not appear to Have been considered). Lord Cairns' Act — which applied to cases ■where the damages were merely nominal, as well as to those where they were substantial — was repealed in the year 1883 by the Statute Law Eevision Act of that year (46 & 47 Vict. c. 49), but the jurisdiction of the Court under the repealed Act has not been affected' by the repeal, being preserved by sect. 5 of the re- pealing Act itself (see Bayers v. Oollyer, 1884, 28 Ch. D. at p. 107). Nowadays, however, a , plaintiff suing upon a contract will generally, it is conceived, prefer to invoke, as regards damages, the Court's power under the Judi- cature Act, 1873, rather than the jurisdiction which Lord Cairns' Act conferred. The following cases may be referred to as illustrations of the manner in which the Court of Chancery, and the Chancery Division of the High Court, successively have, since the pass- ing of Lord Cairns' Act, exercised their re- spective powers of granting relief by way of damages: — Soames v. Edge (1860, John. 669)— B. having agreed to build a house on land of A.'s, and to accept from A. a lease of the land and house, which lease A. agreed to grant when the house DAMAGES. 71 should have been built, it was held, on B. making default in building, that A. was enti- tled to damages for the non-building, and also to specific performance of the contract to accept a lease. Jaques v. Millar (1877, 6 Ch. D. 153)— A. having agreed to^iake a lease of works belong- ing to B. for the purpose, as B. knew, of carry- ing on there an oil-refiner's business, and having, owing +0 B.'s refusal to grant the lease, been delayed for fifteen weeks in commencing the business, it was held that A. was entitled to judgment for specific performance, and also to damages (which the judge assessed at the trial) for loss of business profits during the fifteen weeks. Royal Bristol Permanent Building Society v. Bomash (1887, 35 Ch. D. 390)— Judgment for specific performance of a contract for sale of houses, and for payment by the vendor to the purchaser of damages for (1) the latter's loss of a tenant by reason of the vendor having failed to give possession on the day fixed for com- pletion, and (2) deterioration of the property subsequently to the contract. Foster v. Wheeler {1%'^^, 38 Ch. D. 130)— Contract between A. and B., that B. would enter into an agreement with A.'s landlord for 72 SPEGIFIC PERFOEMANCE. a lease of a house in A.'s occupation, and that thereupon A. would surrender his lease. B. having refused to perform her part of this con- tract, it was held that, though specific perform- ance could not be granted, A. was entitled to damages for B.'s breach of contract. In connection with this subject of damages, it is to be remembered that, upon a contract for sale and purchase of real estate, if the vendor, without fraud, is incapable of making a good title, the intending purchaser is not entitled to recover compensation in damages for the loss of his bargain. Even if a person enters into a contract to sell real estate, knowing that he has no title to it, nor any means of acquiring it, the intending purchaser cannot, by an action founded on breach, of the contract, recover any damages beyond expenses actually incurred {e.g. costs of and incidental to inves- tigation of the title, which he may recover in the nature of damages). Other damages he can only recover by means of an action for deceit, in which he would, in order to succeed, have to prove actual fraud on the part of the vendor (see Bain v. Fothergill, 1873-74, L. R. 7 H. L. at pp. 201, 207; In re Scott and Alvares^ Contract, [1895] 1 Ch. at p. 627 ; Gas Light and Coke Co. v, lowse, 1887, 35 Ch. D. DAMAGES. 73 at p. 543; and Sugden, Vendors and Pur- chasers, 14tli ed., p. 358). Where a case for damages is made, the damages are sometimes assessed by the judge at the trial, and the judgment directs payment of the amount so assessed ; otherwise, the judg- ment directs an inquiry to be made as to what damages have been sustained by the plaintiff, or as to what sum of money ought to be allowed and paid by the defendant to the plaintiff by way of damages, with a consequential direction for payment of the damages when certified (for Forms, see Seton, 5th ed., pp. 1833, 1886, 1887). Where, on a summons under the Vendor and Purchaser Act, 1874, the decision is that a good title has not been shown, the Court has jurisdiction to order the vendor to pay to the purchaser, as in the nature of damages, interest on his deposit and the costs of investigating the title {In re Hargreaves and Thompson's Contract^ 1886, 32 Ch. D. 454); but damages by way of compensation to a purchaser for loss occasioned by the vendor's delay in completion cannot be given on such a summons [In re Wilsons mid Stevens' Contract, [1894] 3 Ch. 546). Where, upon the defendant's non-compliance with a judgment for specific performance, the 74 SPECIFIC PEEFOBMANCE. plaintifE obtains an order for rescission of the contract, he Cannot, accordijig to Henty y, Schroder (1879, 12 Ch. D. 666, a decision ■which seems open on this point to criticism), have also an order for damages for hreach of the contract. 7S CHAPTER X. INJUNCTION. The power of granting an injunction, "the strong arm of Equity," as an American Judge has called it (Mr. Justice Baldwin, quoted in 2 Story's Equit. Jurispr., 13th ed., p. 264, note), is a very valuable and efficient instrument of the Court in dealing with questions of specific performance, and has in times past, like specific performance, encountered and overcome no little hostility on the part of Common Law tribimals. To restraiu by injunction the doing of acts contravening the stipulations of a contract operates, in effect, to enforce those stipulations specifically (see ZwJwZiey v. Wagner^ 1862, 1 De Gr. M. & a. Ch. at pp. 615, 616; and per. Kay, L.J., in Davis v. Corporation of Leicester, [1894] 2 Ch. at p. 231). And so, where a contract contains positive as well as negative terms, and the former are capable of being specifically enforced (as, for instance, in Rankin v. HusJcisson, 1830, 4 Sim. 13), the enforcement of the whole of the contract may be effected by means of a 7§ SPECIFIC PERFORMANCE. judgment directing performance of the positive terms, and restraining by injunction the breacla of an J of the negative terms. In the noteworthy case of Lumleij v. Wagner (1852, 1 De a. M. & G. Ch. 604) Lord St. Leonards went a step further, and, deajing with a contract between Mr. Lumley and Mademoiselle Wagner, by which she agreed to sing at his theatre during a period of three months and not to sing elsewhere during that period, he granted an injunction to restrain a breach of the negative stipulation, although the performance of the positive stipulation could not have been specifically enforced. This decision, and some few similar ones, before and after its date, which are to be found in the Eeports, must be regarded, it is con- ceived, as instances of an exception from the general rule already adverted to (supra, p. 16), that a partial specific performance will not be granted where the Court cannot enforce the whole of the contract. The exception appears to be limited to cases in which the contract contains (as in Lumley v. Wagner) an expi-ess, as distinguished from an implied, negative term ; a ground of distinction which no less eminent an authority than Lord Selborne has characterised as " highly artificial and tech- INJUNCTION. 77 nical ." ( Wolverhampton, Sfc. Hail. Co. v. L. 6f JS^. W.Batl. Co., 1873, L. R. 16 Eq. at p. 440). For " everj agreement to do a particular thing in one sense involves a negative. It involves the negative of doing that which is inconsistent with the thing yon are to do " ( joer Lindley, L.J., in Whitwooff Ohemical Co. v. Hardman, [1891] 2 Ch. at p. 426). Accordingly, the practitioner will probably do well to follow the high authority just cited in looking upon Lumley v. Wagner " rather as an anomaly, to be followed in cases like it, but an anomaly which it would be dangerous to extend" (see the last-cited case at p. 428; also Fothergill v. Rowland, 1873, L. R. 17 Eq. at p. 141 ; and Davis v. Foreman,[l 894] 3 Ch. 654). " The tendency of recent decisions ... is towards this view — ^that the Court ought to look at what is the nature of the contract between the parties ; that if the contract as a whole is the subject of equitable jurisdiction, then an injunction may be granted in support of the contract whether it contain or does not contain a negative stipulation ; but that if, on the other hand, the breach of the contract is properly satisfied by damages, then that the Court ought not to interfere whether there be or be not the negative stipulation" [per 78 SPECIFIC PEKPORMANCE. Fry, L.J., in Donnell v. Bennett, 1883, 22 Ch. D. at p. 837). Besides the cases in which an injunction is used by the Court as an instrument for enforc- ing specific performance, there are many in which the grant of an injunction may be inci- dental to proceedings for such enforcement. If, for instance. A, had agreed to sell an estate to B., and then threatened to deal with the estate in such a manner as to prevent him- self from performing his contract, the Court, in an action by B. for specific performance, would interfere, by interlocutory injunction, to restrain any such improper dealing by A. (see 'Heathcote v. North, Staffordshire Rail. Co., 1850, 2 Mac. & Gr. at p. 112 ; and Hadley v. The London Bank of Scotland, 1865, 3 De G. J. & S. Ch. at' p. 70). For another instance, see .Attwood V. Barham, 1826, 2 Russ. 186. And, in some cases of sales of land to railway com- panies [e.g. Allgood t. Merrybent, Sfc. Bail. Co., 1886, 33 Ch. D. 571), after judgment directing payment of the purchase-money and default in payment, an injunction has, at the instance of the unpaid vendor, been granted, restraining the company from running trains over the land, and from continuing in possession of it. The jurisdiction exercised in granting in- INJUNCTION. 79 junctions is in an eminent degree disci-etionary {Low V. Innes, 1864, 4 De G. J. & S. Ch. at p. 290 ; Dietrichsen v. Oabburn, 1846, 2 Ph. Ch. at p. 53) ; but Lord Cairns' Act (quoted supra, p. 67) has not altered the settled principles upon which Courts of Equity previously acted in interfering by way of injunction [Shelfer v. Citi/ of London, Sfc. Co., [1895] 1 Ch. 287). 80 SPECIFIC PERFORMANCE, CHAPTER XI. THE ACTION TRIBUNAL. Actions for the specific performance of con- tracts between vendors and purchasers of real estates, including contracts for leases, are, by- sect. 34 of the Judicature Act, 1873, expressly- assigned (subject to the powers of transfer exerciseable under the Judicature Acts and Eules of Court) to the Chancery Division of the High Court of Justice. Actions for the specific performance of other contracts are not expressly assigned to any Division of the Court, but in practice they mostly find their way to the Chancery Division. County Courts have a concurrent (but not exclusive) jurisdiction, and can exercise all the power and authority of the High Court, in actions for specific performance of agreements for the sale, purchase, or lease of any property, where in the case of sale or purchase the pur- chase-money, or in the case of a lease the value of the property, does not exceed the sum of £500 (see Foster v. Reeves, [1892] 2 Q. B. 255); and in relation to such actions the County Court THE ACTION — TRIBUNAL. 81 judge has all the powers and authorities of a judge of the Chancery Division (County Courts Act, 1888, s, 67). But where, in an action for specific performance on the Equity side of the Mayor's Court of London, it appeared that the whole cause of action had not arisen within the jurisdiction of thq,t Court, the defendants were held to be entitled to a writ of prohibition {Bowler v. Barberton, Sfc. St/ndicate, [1897] 1 Q. B. 164). It may here be mentioned that, in certain cases of agreements for sale of Irish holdings, the Irish Land Commission has jurisdiction to, make a decree for specific performance, by virtue of the Land Law (Ireland) Act, 1887 (50 & 51 Vict. c. 33), s. 22 ; also that, by the Supreme Court of Judicature Act (Ireland), 1877, there are expressly assigned, to the Chan- cery Division of the High Court of Justice in Ireland, not only actions for the specific per- formance of contracts between vendors and purchasers of land, including contracts for leases, but also actions for the specific perform- ance of any other contracts in respect of which a Court of Equity decrees performance. K. SPECIFIC PERFORMANCE. CHAPTER XII. PARTIES. The general rule is that the parties to a specifically - enforceable contract, and they alone, are the proper parties to an action for enforcing specific performance Of it (see Tasher T. Small, 1837, 3 Myl. & Cr. at p. 68). But there are various events and circumstances which modify, or create exceptions from, this rule. I. The death of a party may occur before the contract has been carried into efEect. If the contract is for sale of realty, and the vendor dies before completion, his personal representative may sue the purchaser for spe- cific performance ; for the personal representa- tive is entitled to receive the purchase-money. In the Court of Chancery the vendor's heir [i. e. his heir-at-law or customary heir, accord- ing to the tenure of the property), or devisee, was required to be made a party to such a suit, as being interested in disputing the validity of the contract [Rolerts v. Marchant, 1843, 1 Ph. PARTIES. 83 Ch. at pp. 373, 374; see also BucJcmaster v. Earrop, 1802, 1807, 7 Ves. Jun. at p. 343 ; 13 Ves. Jun. at p. 472 ; Broome v. Monck, 1805, 10 Ves. Jun. at p. 611 ; Townsend v. Champer- nowne, 1821, 9 Price, Ex. 130). This rule was not affected by the Judicature Acts ; and it is conceived that, for the reason already given, the vendor's heir or devisee, as well as his personal representative, is still a necessary party, where the date of the vendor's death is subsequent to the 1st January, 1898 (the date when Part I. of the Land Transfer Act, 1897, came into operation), even although the case be one of a contract for sale of real estate, which, not being land of copyhold tenure proper (sub-sect. (4) of sect. 1 of the last-mentioned Act), has vested in the vendor's personal representative under the 1st section of that Act. Similarly, if, after the vendor's death, the purchaser sues for specific perform- ance, he should, it is conceived, make not only his personal representative, but also his heir or devisee, a defendant. If, on the other hand, the purchaser dies before completion of a contract for sale of real estate, either (1) tlie vendor may sue for specific performance, making the purchaser's personal representative (who has to pay the putchase- 6(2) 84 SPECIFIC PEEFOKMANCE. money, and may hare a case for disputing the validity of the contract), and also the pur- chaser's heir or devisee (who is equitably entitled to the property, and interested in seeing that a proper title is made out), the defendants ; or (2) the purchaser's heir or devisee may sue the vendor, making the pur- chaser's personal representative either a co- plaintiff or a defendant. It is conceived that nowadays, in the case of a contract for sale of freehold property, the equitable estate which passes by the contract to the purchaser (Shaw v. Foster, 1872, L. R. 5 H. L. at pp. 338, 349) will, in the event of his death before completion, vest in his personal representative by virtue of the 1st section of the Land Transfer Act, 1897, and will be sub- ject to the subsequent provisions of Part I. of that Act, including those with respect to assent and conveyance by the personal representative (sects. 2 and 3). If this view is correct — ^the language of the Act is not satisfactorily clear on the point — a deceased purchaser's personal ■representative, in whom an equitable estate in freehold property is vested under the deceased's contractj may, it is conceived, maintain an action against the vendor for specific perform^ a,nce of the contract ; but^ in such a case, the PARTIES. 8& purchaser's heir or deyisee ought, generally, to be made a party to the action. When a deceased Tender's heir is an infant, and the property is such that it is not vested in, and clearly capable of being conveyed by, the personal representative (Land Transfer Act, 1897, sects." 1 (4) and 2 (2): see, too, Conveyancing Act, 1881, sect. 4), recourse may have to be had to the provisions of the Trustee Act, 1893 (see sects. 26 (ii) (a), 31, and 32), in order to effectuate the transfer of the legal estate: but judgment must, usually, be obtained in an action (as distinguished from a petition), in order that those provisions may be made use of (compare In re Colling, 1886, 32 Ch. D. 333, and In re Cuming, 1869, L. R. 5 Ch. 62). Where the contract relates to leasehold or other personal property, and either vendor or purchaser dies before completion, the personal representative of the deceased party stands in his shoes for the purpose of suing or being sued for specific performance, unless the contract was of such a nature as to be personal (see infra, p. 86) to the deceased. If a deceased vendor of real estate has left a widow who, but for the contract, would be entitled to dower or freebench, she should be made a party to the purchaser's action, and 86 SPECIFIC PERFORMANCE. the contract may be enforced against ter (see the Dower Act, 1833, sect. 5; Hinton v. Hinton, 1755, 2 Ves. 638). A contract to take a lease may be enforced against the proposed less^ee's executors, but the Court will take care that the le^se is so framed as not to impose personal liability upon them {Stephens t. Hotham, 1855, 1 Kay & J. 571). Where the performance of a contract requires the exercise of personal skill or taste by one party, his death puts an end to the contract, and his executors are under no liability in respect of it (see per Parke, B., in Siboni v. Kirhman, 1836, 1 Mee. & W. at p. 423). II. There may have been an assignment by instrument inter vivos, or by operation of law. In the case of an assignment by instrument inter vivos, the assignee of the benefit of the con- tract may generally sue for performance (making the assignor a party), unless the contract is one which requires some personal skill or discretion for its performance by the assignor, or is other- wise personal to him, or being, for instance, an agreement for a lease, contains a stipulation prohibiting assignment of the lease (see Croshie V. Toolce, 1833, 1 Myl. & K. 431; BucMand v. Papillon, 1866, L. R. 2 Ch. 67; S. C. L. R. 1 Eq. at p. 481 ; O'Herlihy v. Hedges, 1803, 1 PARTIES. 87 Sch. & Lef. 123 ; 9 R.' R. 23 ; Floods. Finlay, 1811, 2 Ball & B. 9 ; 12 R. R. 55). But a merely equitable assignee of a lease is not entitled to maintain an action against the lessor, or the lessor's assigns, for performance of a contract for purchase of the freehold, alleged to have been constituted by a notice by the equitable assignee of intention to exer- cise an option of purchase, given, by a covenant in the lease, to the legal assigns of the lessee (^Friary Holroyd and Healey's Breweries v. Single- ton, [1899] 1 Ch. 86). If A., after contracting to sell or let property to B., conveys it to C, an action for specific performance of the contract may generally be maintained by B., not only against A., but also against C, unless the latter has obtained the legal estate for value, and without notice of the contract {e.g. Meux v. Malfby, 1818, 2 Swans. 277). The trustee in bankruptcy, or the committee in lunacy (with the sanction of the Master, and joining the lunatic as a co-plaintiff — see Ord. XVI. r. 17), of a vendor, or of a purchaser, may sue, and a vendor's or a purchaser's committee in lunacy may (to- gether wi^h the lunatic) be sued for specific performance. But trustees in bankruptcy 88, SPECIFIC PERFORMANCE. having a staitutory right of disclaiming un^ profitable contracts (Bankruptcy Act, 1883, s. 55 ; Bankruptcy Act, 1890, s. 13), a bank- rupt purchaser's . contract of purchase cannot be specifically enforced against his trustee without the latter's consent, while his right of disclaimer is subsisting (see Holloway v. York, 1877, 35 W. R. 627). III. There are cases of agency. Where persons contract expressly as agents for named principals, the principals are, gene- rally, the only proper parties to sue or be sued {Ex parte Hartop, 1806, 12 Ves. Jun. at p. 352). Where, however, an agent contracts in his own name, the unnamed principal may, generally, sue or be sued (provided the contract is not personal to the apparent principal [see II. above]) without the agent being made a party; but the agent also is liable to be sued {Higgins V. Senior, 1841, 8 Mee. & W. 834; Saxon v. ' Blalte, 1861, 29 Beav. 438; Fowler v. Hollins, 1872, L. R. 7 Q. B. at p. 624). And directors of companies are in the same position, as re- gards liability upon contracts, as other agents {Ferguson v. Wilson, 1866, L, R. 2 Ch. at p. 89 ; Eay V. Johnson, 1864, 2 Hem. & M. at p. 123). In some cases, e.g.. where an agent claims to be personally interested {Heard v. Pilley, 1869, PAETIES. Sa L. E. 4 Ch. at p. 551), or where an auctioneer, as agent for both parties to a sale, is holding a deposit of large amount {Earl of Egmont v. Smith, 1877, 6 Ch. D. at pp. 474, 475), an agent may properly be joined as a party to the action. And it may here be mentioned that there are cases in which a company may be sued upon a contract made by its projectors before its incorporation (see and compare Edwards V. Grand Junction Rail. Co., 1836, 1 Myl. & Or. at p. 672 ; Eastern Counties Rail. Co. v. Hawkes, 1855, 5 CI. H. L. 331 ; and Preston v. Idverpool, Sfc. Rail. Co., 1856, ibid. 605). IV. There are cases not falling within any of the foregoing heads, in which a third person, not named as a party to a contract, may sue or be sued upon or in connection with it. Thus, if the contract, though in form made between A. and B., is intended to secure a benefit to C, so that C. is entitled to say he has a beneficial right as cestui que trust under it, C. may enforce the contract against A. and B. {Gandy y. Gandy, 1885, 30 Ch. D. at p. 67). Again, children born of a marriage, in contem- plation of which a settlement was executed under which they are interested, may sue for the execu- tion of the trusts of that settlement {Green y. Faterson, 1886, 32 Ch. D. at p. 106 ; and cp. Hill 90 SPECIFIC PERFORMANCE. y. Gpmme, 1839, 5 Myl. & Cr. 250). And a third person, who is in possession of land, the subject of the contract,, and will be affected by the judgment (^Bishop of Winchester v. Mid- Hants Rail. Co., 1867, L. R. 5 Eq. at p. 21), or who claims an interest in the purchase-money on the ground of some agreement with the vendor ( West Midland Rail. Co. v. Nixon, 1863, 1 Hem. & M. at p. 181), may properly be joined as a defendant to an action for specific performance of the contract. V. Where the contract sued upon relates to registered land or a registered charge. In such cases the Court may cause third per- sons, who have registered estates or rights in the land or charge, or have entered up notices, charges, or inhibitions against the same, to appear in the action, and show cause why the contract should not be specifically .performed (Land Transfer Act, 1875, s. 93). VI. The recent case of Ecclesiastical Commis- , sioners v. Pinney ([1899] 1 Ch. 99) is a peculiar one. The Commissioners had been consenting parties to a contract by a vicar for sale of glebe lands. Upwards of twenty-two years after the date of the contract, no purchase-money having been paid and no conveyance executed, but interest on the purchase-money having, ever PAETIES. 91 since the contract, been paid to the vicar for the time being by a series of tenants for life in possession of the purchased lands, the Com- missioners, to whom, under the Ecclesiastical Leasing Acts, 1842 and 1858, the purchase- money was payable, brought an action for specific performance, or, in the alternative, for enforcement of. vendor's lien. It was held by the Court of Appeal that the Commissioners had at least a prima facie right of action, they not being merely in the position of persons consenting to an ordinary contract, but them- selves having important statutory duties to perform in relation to the transaction. 92 SPECIFIC PERFORMANCE. CHAPTER XIII. PLEADING — TRANSFER — NE EXEAT. Pleading. — The pleadings in an action for specific performance are governed, of course, by the ordinary rules of pleading, and the parties must play the game of litigation according to the rilles. Still, it may, perhaps, be useful to re- mind practitioners of the following points. A plaintiff seeking specific performance should take care, in his Statement of Claim (if any), to plead a complete, clear, and specifically enforce- able contract, and also to describe the subject- matter of the contract clearly. Otherwise, in the event of there being default in delivery of a Defence, he will not be in a position to obtain judgment under Ord. XXVII. r. 11 ; for, on an application under that rule, he will not be allowed to supplement his pleading by putting in the written agreement (if any) or other evidence {Smith v. Buchan, 1888, 36 W. R. 631). Where a purchaser is plaintiff, he may ask, in the alternative, for rescission of the contract, PLEADING — TEANSFER — NE EXEAT. 93 and return of any deposit which he may have paid (see Levy v. Stogdon, [1899] 1 Ch. at p. 10). And where a contract of sale contains the usual condition, empowering the yendor, in the event of default by the purchaser, to forfeit the deposit and resell the property, the vendor suing for performemce may claim, in the alter- native, a declaration that he is entitled to forfeit and resell in accordance with the condition. It is, however, prudent in such cases to put forward the alternative claim not only in the Statement of Claim, but also in the indorsement on the writ (see Kingdon v. Kirk, 1887, 37 Ch. D. 141). Similarly, a vendor plaintiff, who may desire to obtain, at the trial, a declaration of vendor's lien, should be careful to ask expressly for it in writ and pleading (Tacon v. National Standard Land, Sfc. Co., 1887, 56 L. T. N. S. 165). It is permissible, where the Statute of Frauds does not create a bar, to combine in one and the same pleading claims for rectification of a written contract, and for specific performance of the contract as rectified (07% v. Fisher, 1886, 34 Ch. D. at p. 370). A defendant, where there are pleadings, should take care to plead distinctly, in his Defence, every ground of defence which may, in the particular case, be available, e.g. non- 94 SPECIFIC PEEFOBMANCE. compliance with the provisions of the Statute of Frauds (Ord. XIX. r. 15 ; Odhams Brothers V. Bruming, 1896, 74 L. T. N. S. 370 ; James V. Smith, [1891] 1 Ch. at p. 389; and see infra, Chapter XIV.). If what the defendant wants is not simply to defeat the plaintiff's claim — ^if, for instance, he desires rescission, setting aside, or rectification of the contract, or repayment of deposit — he should counterclaim for it. In a recent case, "bristling with points," a purchaser, who had failed in the High Court and in the Court of Appeal, on a summons under the Vendor and Purchaser Act, 1874, challenging the vendor's title, and was then sued by the vendor for specific performance, . was allowed to reopen the question by bringing " an action of review by way of counter-claim" notwithstanding the order of the Court of Appeal, on the ground that, since the date of that order, he had for the first time discovered certain material facts, which showed the vendor's title to be defective {In re Scott and Alvares^ Contract, [1895] 1 Ch. 596, 621 ; 2 Ch. at pp. 610, 611). Transfer. — ^It may happen that a defendant sued, in the Queen's Bench Division, for recovery of land, for instance, or for return of PLEADING TRANSFER — ^NE EXEAT. 95 a deposit, has a cross-claim against the plaintiff for enforcement of a contract relating to or connected with the subject-matter of the action. In such a case, the defendant may, in his pleading, counter-claim to have the contract specifically performed, and for that purpose to have the action transferred to the Chancery Division : he will then be in a position to apply, by summons, for the transfer {Holhway v. York, 1877, 2 Ex. D. 333). It is not, however, by any means a matter of course that the order for transfer will be made (compare Storey v. Waddle, 1879, 4 Q. B. D. 289, and London Land Co. V. Harris, 1884, 13 Q. B. D. 540). The Queen's Bench Division will always, pursuant to sect. 24 (4) of the Judicature Act, 1873, " recognize and take notice of" an equit- able right to specific performance appearing in- cidentally in the course of an action ( WtlUams V. Snowden, 1880, W. N. 124). Ne Exeat. — The Court of Chancery, in some cases, on interlocutory application by the •vendor in a suit for specific performance, granted a writ of ne exeat regno to issue against the purchaser, with the object of protecting the vendor against loss of the agreed purchase- money, by reason of the purchaser going abroad without paying or securing the payment of it. 96 SPECIFIC PEKFOEMANCE. The circumstances under which this writ might be granted were discussed at length by Lord Eldon in Boehm v. Wood (1823, Turn. & R. at pp. 343 et seq. ; see, too, Morris v. McNeil, 1827, 2 Russ. at p. 605). The writ has not been abolished : but, under the present practice, it probably will not be issued in any case which does not fall within the provisions of sect. 6 of the Debtors Act, 1869, by which section arrest upon mesne pro- cess was done away with, and a limited power of arresting, under certain specified circum- stances, a defendant about to quit England was conferred, and is now (Judicature Act, 1873, s. 76) exerciseable by the judges of the High Court (see Drover v. Beyer, 1879, 13 Ch. D. at pp. 243, 244; Hands v. Hands, 1881, 43 L. T. N. S. 750; Colverson v. BhornfieU, 1885, 29 Ch. D. at pp. 342, 343 ; and Ord. LXIX.). 97 CHAPTER XIV. GROUNDS OF DEFENCE. Generally, it is a good defence to show that the particular cas» before the Court falls within some or one of those classes of cases already adverted to (supra, pp. 14 — 17), in which the Court declines, as a rule, to enforce specific performance. It may, however, be convenient to the practitioner to have this general state- ment supplemented by some concise particulars of the principal grounds of defence, upon which, when the circumstances of the particular case render any of them appropriate and available, a defendant to an action for specific performance may rely. Ambiguity. — Where the terms of a contract are ambiguous, the Court may on that ground refuse to enforce it (Clowes v. Higginson, 1817, 1 Ves. & Bea. at p. 533 ; Harnett v. Yielding, 1805, 2 Sch. & Lef. at p. 558; 9 E. R. at p. 104 ; and see the cases cited infra under the head Uncertainty). Breach of Trust. — The Court will not give, even to an innocent purchaser, the relief of specific performance, where trustees have con- R. 7 98 SPECIFIC PERFORMANCE. tracted to sell to him tinder circumstances rendering the sale a breach of trust on their part {Ord v. Noel, 1820, 5 Madd. 438); and a purchaser or intended lessee may set up such a breach by way of defence [Dunn v. Flood, 1885, 28 Ch. D. at p, 693 ; Tolson v. Sheard, 1876, 5 Ch. D, at p. 25; see, too, p. 16, supra). Other cases illustrating this principle are Dance V. Goldingham, 1873, L. R. 6 Ch. at pp. 911, 913; and Oceanic, Sfc. Co. v. Sutherherry, 1880, 16 Ch. D. at p. 244. Condition. — It may afford a defence that the contraict was, in its inception, conditional or con- tingent, and has not become absolute {Regenfs Canal Co. v. Ware, 1857, 23 Beav. at p. 586), or that some condition precedent has not been performed by the plaintiff ( Williams v. Brisco, 1882, 22 -Ch. D. at p. 449), or cannot be fulfilled (Modlem v. Snowball, 1861, 31 L. J. Ch. 44). Consideration. — That absence of consideration may be a ground of defence has already been indicated (supra, p. 16). Reference may also be made, on this topic, to Cochrane v. Willis, 1865, L. R. 1 Ch. at pp. 63, 64, and to the observations of Lindley, L.J., in Stephens y. Green, [1895] 2 Ch. at p. 162. With respect to inadequacy of consideration, s^e infra, p. 105, under the head Hardship. GROUNDS OF DEFENCE. 99 Corporation. — Inasmuch as, subject to some exceptions based upon convenience (see cases cited in Young 8f Co. v. 3Iayor, Sfc. of Royal Leamington Spa, 1883, 8 App. Cas. at pp. 524, 525) or authorized by statute {e.g. the Com- panies Clauses Consolidation Act, 1845, s. 97, and the Companies Act, 1867, s. 37), the general rule of law is that a corporation cannot bindingly contract otherwise than under its common seal, the fact that the contract sued on is not under seal may be a defence [e.g. Mayor, ^c. of Oxford Y. Crow, [1893] 3 Ch. 535). But this defence will not avail where there has been part performance (see cases cited in Melbourne Banking Corporation v. Brougham, 1878-79, 4 App. Cas. at p. 169). Coverture. — This may still, in some cases {e.g. Castle V. Wilkinson, 1870, L. R. 5 Ch. 534; and see Incapacity, infra, p. 109)be a ground of defence for a married woman. But the effect of the Married Women's Property Act, 1882, has been to enlarge very greatly the region of separate property, in which married women can exercise all the rights, and experience some of the liabili- ties, arising from contracts ; and, by the amend- ing Act of 1893 (56 & 57 Vict. c. 63, s. 1), every contract thereafter entered into by a married woman otherwise than as agent (a) is to be 7(2) 100 SPECIFIC PEEFOEMANCE. deemed to be a contract entered into by her with respect to and to bind her separate pro- perty, whether she is or is not in fact possessed of or entitled to any separate property at the time when she enters into such contract ; (b) binds all separate property which she may at that time or thereafter be possessed of or entitled to ; and (c) is also enforceable, by process of law, against all property which she may there- after, while discovert, be possessed of or entitled to. But separate property subject to a restraint on anticipation is expressly excepted from the operation of the foregoing enactment. Default of Plaintiff. — A defendant may success- fully resist performance by establishing that the plaintiff has not performed some essential term, express or implied, of the contract, which was performable by him {e.g. Tildesley v. ClarJc- son, 1852, 30 Beav. at p. 426), or, being a tenant for life, has omitted to take some step which he ought, pursuant to the Settled Land Acts, to have taken (per Lindley, L.J., in Mogridge v. Clapp, [1892], 3 Ch. at p. 395), or has not fulfilled some material representation, as to his own future plans or acts, made by him at the time of, and as an inducement for, the contract {Beaumont v. Dukes, 1822, Jac. at pp. 424 — i26; Lamare v. Dizon, 1873, L. R. 6 GROUNDS OF DEFENCE. JOX H. L. at p. 428), provided, of course, that the defendant has not waived or occasioned the default. Again, it is a ground of defence that the plaintiff has disabled himself from effectually performing his part of the contract by com- mitting an act .of bankruptcy, or a felony {Franklin v. Lord Brownlow, 1808, 14 Ves. Jun. at pp. 556, 557; Willinghmi v. Joyce, 1796, 3 Ves. Jun. at p. 169), or has been wilfully guilty of acts or omissions disentitling him to relief {e.g. Gregory v. Wilson, 1852, 9 Hare, at p. 686). Delay. — A binding contract may be constituted by offer and acceptance ; but where the accept- ing party is plaintiff, and his acceptance has been unreasonably delayed, the defendant may plead no contract {e.g. Williams v. Williams, 1853, 17 Beav. at p. 216). Further, though the contract be admitted, a defence may be raised by showing that there has been undue delay by the plaintiff in per- forming his part of the contract, or in com- mencing {Levy V. Stogdon, [1898] 1 Ch. at p. 484; [1899] 1 Gh. 5) or prosecuting his action ; particularly where the subject-matter of the contract is of a speculative or fluctuating •character, as, for instance, a reversionary in- 102 SPECIFIC PERFORMANCE. terest, or a tavern {Spurrier v. Hancock, 1799, 4 Ves. Jun. 667 ; Mills v. Haywood, 1877, 6 Ch. D. p. 202); unless, indeed, the defendant has himself occasioned the delay, or has waived his right to object on the score of it. " What is the remedy of a purchaser [of a reversion] who cannot get what he wants ? He can bring an action for specific performance, asking, in the alternative, for rescission of the contract and return of his deposit. He is not to lie by until the position of all parties is altered, and then, when the reversion falls in, to come and say ' Give me the fund' " {per Lindley, M.R., in Levy v. Stogdon, [1899] 1 Ch. at p. 10). But a purchaser's delay may be excused if he has, to the vendor's knowledge, been in possession under the contract {Mills v. Haywood, uhi supra). Where time is of the essence of a contract, either expressly by virtue of a stipulation to that effect, or impliedly, by reason of the nature of the subject-matter {e.ff. a public- house sold as a going concern, Tadcaster Tower Brewery Co. v. Wilson, [1897] 1 Ch. at p. 711), or of. the surrounding circumstances {Tilley v. Thomas, 1867, L. R. 3 Ch. at p. 67), non-obser- vance of such time is generally fatal; and though the time for completion may originally not have been essential, one party may, after improper GEOUNDS OP DEFENCE. 103 delay by the other party, make it essential, by notice fixing a reasonable time within which the contract must be completed ( Green v. Sevin, 1879, 13 Ch. D. 589, and cases there cited). Gn the other hand, though the case be one of a class in which the time for completion is usually essential, a condition for payment of interest in the event of non^completiou at the specified date may operate to show that time was not of the essence ( Webh v. HugTies, 1870, L. E. 10 Eq. 281). Fraud. — A contract will not be specifically enforced against a defendant who establishes that his entering into it was procured, or occa- sioned, by some fraud on the part of the plaintiff, or his agent ; but whether the fraudulent act of a stranger can ever operate to deprive an innocent vendor of his right, to enforce aeon- tract, qucere ( Union Bank v. Munster, 1887, 37 Ch. D. at pp. 53—55). Fraud is infinite in variety [Reddaivay v. Banham, [1896] App. Cas. at p. 221). In some cases — where, for instance, the nature of the contract is, or the antecedent fiduciary relations of the parties have been, such as to make full disclosure of all material facts a duty — even silence may amount to fraud (Brownlte v. Camp-, bell, 1880, 5 App. Cas. at pp. 950, 954)j though 104 SPECIFIC PEEFORMANC!e. " silence is innocent and safe, where there is no duty to speak" {Chadwick v. Manning , [1896] App, Cas. at p. 238 ; cp. Turner v. Green, [1895] 2 Ch. at p. 209). But, of course, if the defend- ant, on discovering the fraud, elects to abide by the contract, he cannot afterwards plead the fraud as a defence to an action for specific per- formance. And, again, a party to a contract which is divisible into two parts will not be allowed to evade performance of his clear obli- gations under one part of the contract, by setting up his own fraudulent collusion with the other party's agent in connection with the other part [Odessa Tramways Co. v. Mendel, 1878, 8 Ch. D. 235, 244). That the specific enforcement of an alleged contract would involve a fraud on the public was, in a modern case [Posi v. March, 1880, 16 Ch. D. 395), held to be a good ground for de- fence. And it may here be noted that the Statute of Frauds does not prevent the proof of a fraud [Rochefoucauld v. Boustead, [1897J 1 Ch. at p. 206). Hardship.-^The Court, in the exercise of its judicial discretion, is averse from enforcing a hard bargain, even where no impropriety of conduct is imputable to the party suing {Falcke V. Gray, 1859, 4 Drew, at p. 659 ; and see, for GROUNDS OF DEFENCE. 105 instance, Wedgwood v. Adams^ 1843, 6 Beav. 600 ; also Presion v. Luck, 1884, 27 Ch. D. at p. 506). But, in considering the question of hardship, the time when the contract was entered into is the material time ; and subsequent events cannot, usually, be relied upon as raising a de- fence on this ground. Nor will the defence avail, where the hardship has arisen, or may arise, through the defendant's own default {PemhroTte v. Thorpe, 1740, 3 Swans. 443, n.) or act {e.g. Helling v. Lumley, 1858, 3 De G. & J. Ch. at p. 498), or by reason of his having made a speculative purchase of property which turns out to be worthless {e.g. Haywood v. Cope, 1858, 25 Beav. at p. 150). Again, as a general rule, inadequacy of price, unless so striking as to amount to conclusive evidence of fraud, is not in itself a sufficient ground for refusing a specific performance {Coles \. TrecothicJc, 1804, 9 Ves. Jun. at p. 246); and there appears to be now {i.e. since the Sales of Reversions Act, 1867) no reason for except- ing contracts for the sale of reversionary inte- rests from the operation of this rule; though the last-mentioned statute has not otherwise affected the Court's jurisdiction to give relief against unconscionable bargains (see e.g. Fry v. 106 SPECIFIC PERFORMANCE. Lane, 1888, 40 Ch, D. 312); and, for a review of the cases on this topic, see the judgments of the Irish Court of Appeal in Rae v. Joyce, 1892, 29 L. E. Ir. 500. , Illegality. — Upon grounds of public policy, the Court declines to enforce illegal contracts (Si/kes- V. Beadon, 1879, 11 Ch. D. at pp. 193—197); as where, for instance, the consideration is an agreement to stifle a prosecution ( Windhill Local Board of Health v. Vint, 1890, 45 Ch. D. 351 ; Jones V.Merionethshire, Sfc. Society, [1892] 1 Ch. at p. 188), or even where the transaction savours of champerty (i?e Hoghton v. Money, 1866, L. R. 2 Ch. at p. 169), or where the contract, having originally been legal, has become illegal by virtue of some subsequent statute {Atkinson v. Ritchie, 1809, 10 East, at p. 634 ; 10 R. R. at p. 374). Again, a trade union being, apart from the Trade Union Act, 1872, an illegal association, the Court will not directly enforce an agreement between its members for providing benefits to members {Rigiy v. Connol, 1880, 14 Ch. D. 482); but in some cases it may, by means of an in- junction, indirectly enforce such an agreement {Wolfe V. Matthews, 1882, 21 Qi. D. at p. 196). The Court, however, looks with groat dis- favour on the objection of illegality, when urged GROUNDS OF BEFENCE. 107 by a party to a contract who has received the con- sideration for which he contracted {Shrewsbury^ ^c. Rail. Co. V. London and North- Western Rail. Co., 1853, 16 Beav. at p. 451). Impossibility. — " In bills for specific perform- ance," said Lord Hardwicke in Green v. Smith (1738, 1 Atk. at,p. 573), " this Court never gives relief where the act is impossible to be done " ; but it must always be borne in mind that, though specific performance be impossible, a defendant may be liable in damages. The impossibility of performance may occur, or arise, in a variety of ways, — by reason, for instance, of the destruction or extinction of the subject-matter of a contract ; or, in the case of a contract to allot shares, by reason of all >the shares in the company having been allotted, to persons other than the person seeking per- formance, before the commencement of the action {Ferguson v. Wilson,, 1866, L. R. 2 Ch. at pp. 86, 87) ; or from a change in the political relations of a contracting party's country {Atkinson v. Ritchie, 1809, 10 East, at p. 535; 10 E. R. at p. 374); or from the refusal of a third person to give some necessary licence or consent {Weatherall v. Geering, 1806, 12 Ves. Jun. at p. 511 ; Bermingham v. Sheridan, 1864, 33 Beav. 660); or from there not being 108 SPECIFIC PEEFOEMANCE. time enough for one party to do works which, by the terms of the contract, were to be done within a specified time {Asylum for Female Orphans v. Waterlow, 1868, 16 W. R. 1102); or from the intended term of a lease having expired before trial of an action for enforcing an agreement for the lease ( Walters y. Northern Coal Mining Co., 1855, 5 De G. M. & G. Ch. at p. 639) ; or from a plaintifE's lacfc of power to perform his part of the contract {e.g. Sheffield Corporation v. Sheffield Electric Light Co., [1898] 1 Ch. 203). Where, however, the meaning of a contract is, that one party shall do a certain thing, but may, at his option, do it in either of two modes, and one of those modes becomes impos- sible by the act of God, he is bound to perform it in the other mode, which is possible {Barkworth v. Young, 1856, 1 Drew, at p. 25). A fortiori if, at the time of the contract, one of the alternatives is impossible, the other, being possible, must be performed. Incapacity. — It may be a ground of defence that the party sued was, at the time of the contract, under some personal or particular incapacity which operated to prevent the con- tract from binding him. Thus an infant is, generally, incapable of GROUNDS OF DEFENCE. 109 entering into a binding contract {King v. Belhrd, 1863, 1 Hem. & M. at p. 347); so is a married woman acting alone, as regards property which, is not her separate property, or subject to a power of appointment by deed vested in her {CaUll v. Cahill, 1883, 8 App. Cas. at p. 428; Martin v. Mitchell, 1820, 2 Jac. & W. at pp. 424, 425), except that she can bindingly contract with her husband for a compromise of legal proceedings between them {McGregor v. McGregor, I'^m, 21 Q. B. D. at p. 430) ; so, again, is a person of unsound mind, provided the plaintiff at the time of the contract knew of the unsoundness {Imperial Loan Co. v. Btone, [1892] 1 Q. B. 509 ; but distinguish In re Pagani, [1892J 1 Ch. at p. 238); so, where the defendant was, to the plaintiff's knowledge, in a state of intoxication at the time of the contract {Cooke v. Clayworth, 1811, 18 Ves. Jun. at p. 15 ; but distinguish Shaw V. Thackrayj 1853, 1 Sm. & Gr. at p. 539); and so, where the defendant is under disability to sell (otherwise than under the Lands Clauses Acts), as being an ecclesiastical corporation {Wycombe Rail. Co. v. Donnington Hospital, 1866, L. E. 1 Ch. at p. 273). Incompleteness. — ^A defendant may defend himself by showing that, at the time of the 110 SPECIFIC PEEFOEMANCB. issue of the \7rit, the contract or (i£ the case is one in which writing is requisite) the written evidence of it was incomplete, in the sense of being defective in respect of some term which is essential (see above, pp. 29, 30) or material, and cannot be supplied either by ordinary legal implication, or by some means indicated in the contract itself. Where a contract is, on the face of it, incomplete until something else has been done, whether by further agreement between the parties, or by the decision of an arbitrator, the Court is. powerless, because there is no complete contract to enforce {Hart v. Hart, 1881, 18 Ch. D. at p. 689). But the defence may fail if, the defect being curable, it is owing to the defendant's own default that it has not been cured (see'Pritchard v. Ovet/, 1820, 1 Jac. & W. at pp. 403, 404, and Smith v. Peters, 1875, L. R. 20 Eq. at p. 513). Again, a contract alleged and sued upon by a plaintiff may be incomplete, in the sense that it never passed out of the stage of negotiation, or, for one reason or anotlier, never became a completely concluded contract. This ground of defence has very often been taken in cases of contracts alleged to have been constituted by offer and acceptance. The rule of the Court is, that whoever brings GROUNDS OF DEFENCE. HI forward a contract, as constituted of a proposal on one side and an acceptance on the other, must show that the acceptance was prompt, immediately given, unqualified, simple, and Tinconditional( On'ere^a? Inland Steam Co. v. Briugs, 1861, 4 De a. F. & J. Ch. at p. 197) ; and, further, that it was communicated to the pro- poser within a reasonable time {Williwms v. Williams, 1853, 17 Beav. at p. 216), and before any withdrawal of the proposal had been brought to the knowledge of the person to whom it was made {Henthorn v. Fraser, [1892] 2 Ch. at p. 31, a case noticeable as illustrgiting a dijfference between acceptance and withdrawal hy post). A common instance of such a con- tract is an application for shares in a company^ followed by allotment and notice of it to the applicant (see NicoVs Case, 1885, 29 Ch. D. at p. 426). In accordance with the foregoing rule, if a fresh term is introduced into the acceptance of an offer, a binding contract is not concluded by the acceptance {Kennedy v. Lee, 1817, 3 Mer. at p. 454). But, of course, expressions which, in the view of the Court, fall short of adding a fresh term do not affect the enforceability of what, apart from them, is a complete concluded contract {e.g. Simpson v. Hughes, 1897, 45 112 SPECIFIC PERFORMANCE. W. R. 221). With respect to concluded con- tracts, see further, supra, pp. 27 — 29. Infancy — Lunacy. See Incapacity, supra, pp. 108, 109. Misrepresentation. — A false representation, knowingly made by a party, or his agent, in order to induce a contract, is fraud [q.v. supra, p. 103). But, apart from fraud, the circum- stance that a party to a contract, or his agent {Mullens v. Miller, 1882, 22 Ch. D. at p. 199), made carelessly, or even quite innocently, some material misrepresentation, which was in fact relied upon by the other party, and was an in- ducement to the contract, will generally afford to that other party a good defence in an action for specific perforniance. Indeed, where the contract has been induced by a material misre» presentation of fact made by a party or his agent, the other party not only can successfully resist an action for specific performance, but also is entitled to maintain an action, or a counter; claim, for rescission, even though the misre- presentation was not made fraudulently ( Wauton V. Coppard, [1899] 1 Ch. at pp. 97, 98). " It is no answer to a defence on this ground that the defendant was offered, or possessed, means of testing the truth of the representation complained ofj if" he did not avail himself of GROUNDS OF DEFENCE. 113 those means {Aaronh Reefs v. Twiss, [1896] App. Cas. at p. 279) ; but it inay be an answer, if he used such means (Attwood y. Small, 1838, 6 01. & Fin. 232). And the defence is unten- able if the defendant all along knew the truth of the matter (e.ff. Nene Valley, ^c. Commissioners V. DunJcley, 1876, 4 Ch. D. at p. 4 ; Dyer v. Har- grave, 18Q5, 10 Ves. Jun. at p. 509) ; for, in such a case, he cannot hare been misled by thd representation, and there is no room for draw- ing the inference of fact {Smith v. ChadwicJc, 1884, 9 App. Cas. at p. 196) that he relied upon it. " It is quite true," said North, J., pithily in Archer v. Stone (1898, 58 L. T. N. S. at p. 35), " that a man may with impunity tell a lie in gross, in the course of negotiations for a con- tract. But he cannot, in my opinion, tell a lie appurtenant. That is to say, if he tells a lie relating to any part of the contract or its sub- ject-matter, which induces another person to contract to deal with his property in a way which he would not do if he knew the truth, the man who tells the lie cannot enforce the contract." And even silence may amount to a misre- presentation disentitling a plaintiff to perform- ance. If, for instance, a purchaser of leasehold E. 8 114 SPECIFIC PEEFOEMANCE. property tells the vendor the object which he has in purchasing, and the vendor remains silent as to a covenant in the lease prohibiting or interfering with that object, his silence is equivalent to an untrue representation that there is no such covenant {Power v. Barrett, 1887, 19L. R. Ir. atp.487). Further, a misrepresentation may be made by conduct {Andrew v. AitJcen, 1883, 31 W. R. 425), as well as by words; but mere general statements, advertising flourishes, have often been held not to amount to misrepresentation substantial enough to excuse a defendant from performance (e.y. Dimmock v. Hallett, 1866, L. R. 2 Ch. at p. 27). , In a recent Irish case, in which a misrepre- sentation had been innocently made by the vendor's agents with respect to the acreage of- the property sold, and the purchaser had, in consequence of the misrepresentation, agreed to pay a price ca.lculated on the basis of the supposed acreage, it was held that the purchaser was entitled to have specific performance by the vendor to the extent of the real acreage, with a deduction from the purchase-money pro- portionate to the deficiency (67 acres out of 442) {Connor Y. Potts, [1897] 1 I. R. 534, and esp. 539). GROUNDS OF DEFENCE. 115 Mistake. — Contract is consensus ad idem, and where a contract has been founded upon a com- mon mistake of both parties with regard to some material matter, that is a ground of defence to an action for specific performance (e.y. Cochrane V. Willis, 1865, L. E. 1 Ch. 58). Further, a mis<;ake induced, or contributed to, by the plaintiff, or his agent, may afford a good defence {e.g. Denny y. Hancock, 1870, L. R. 6 Ch. 1); and so may even a mistake on the part of the defendant, or his agent, only {e.g. Malins v. Freeman, 1837, 2 Keen, at p. 34 ; and see Stewart v. Kennedy, 1890, 15 App. Cas. at p. 105). But where there has been no mis- representation, and no ambiguity in the terms of a contract, a defendant will not, generally, be allowed to evade performance by simply stating that he has made a mistake {Tamplin v. James, 1880, 15 Ch. D. at p. 217; see, too, Dyas V. Stafford, 1881, 7 L. R. Ir. at p. 606). As to mistake concerning the person con- tracted with, see Smith v. Wheatcroft, 1878, 9 Ch. D. 223 ; and compare iV«sA v. Dix, 1898, 58 L. T. N. S. at pp. 448, 449. Mistakes of law, as well as mistakes of fact, may afford a defence {Allcard v. Walker, [1896] 2 Ch. at p. 381, and cases there cited). And if the mistake consists in the omission, from a 8(2) il6 SPECIFIC PERPORMANCE. ■written memorandum of agreement, of some- thing which was verbally agreed upon, the defendant may prove the omission by parpl evidence, and will not be compelled to perform the contract except with the omitted term in- cluded {Joynes v. Statham, 1746, 3 Atk. 388). It is, however, to be borne in mind that, where a contract has been reduced to writing, one party's mistaken belief, not induced by the other piartyj in regard to the nature of the obli- gations which he has, according to the true con- struction of the instrument, undertaken, will not, generally, suffice to enable the mistaken party to escape from performance ; for every person who becomes a party to a written contract, con- tracts to be bound, in case of dispute, by the interpretation which a Court of law may put upon the language of the instrument {Stewart V. Kennedy, No. 2, 1890, 16 App. Cas. 108, and at pp. 121 — 123; see, however, joer Cotton, L.J,, in Preston v. LucJc, 1884, 27 Ch. D. at p. 506). Mutuality. — If at the time when the contract was made — which is the crucial time for this purpose^ — ^it was not mutual, that is to say, was such that, though enforceable against one of the parties, it was not enforceable agaiist the other, that circumstance is generally a good defence. In order that the Court may inter-' GROUNDS OF DEFENCE. 117 fere there must be mutual rights capable of being enforced by the Court " {per Lord Cran- worth in BlacJcett v. Bates, 1865, L. R. 1 Ch. at p. 125). A defendant, for instance, may successfully resist performance at the suit of an infant, because he could not have enforced performance against the infant {Flight v. Bolland, 1828, 4 Russ. at p. 301); so, also, where the plaintiff at the time of the contract had no title {Hoggart V. 8cott, 1830, 1 Russ. & M. at p. 295). But a defendant will not be held excused where he has so conducted himself as to waive this objection {Hoggart v. Bcott, ubi supra) ; or, it is conceived, where it is owing to his own default that a contract, originally mutual, has become unenforceable by him; or where he has, but the plaintiff has not, signed a written contract falKng within the Statute of Frauds, for, in this case, the plaintiff, by suing, has made the con- tract mutual {Flight v. Bolland, ubi supra) ; or where a defendant, having contracted to sell substantially more than he is able to convey, is sued for specific performance with compensa- tion, although here he could not have enforced the contract against the purchaser (see pp. 57 — 61, supra). A contract, originally one-sided, may ha,ve 118 SPECIFIC PEEFOEMANCE. become mutual ; as where A. has contracted to sell property, or to renew a lease of itj to B., upon request within some limited period by B., and the request has been duly made. Here, of course, no defence can be maintained on the •ground of the original absence of mutuality. For when, for instance, a lessee, who has an option of renewal, has duly served a proper notice requiring the lessor to renew, there is a contract between the parties for grant and ac- ceptance of a renewed lease, from which neither party can recede without the other's consent, and which is specifically enforceable by either of them {Dawson v. Lepper, 1892, 29 L. R. Ir. at p. 216). Rescission. — If the defendant can show that the contract has been effectually rescinded, that is, of course, a good defence to an action for specific performance of it. Such rescission may have been brought about in a variety of ways. The parties may simply have agreed with one another, either in writing or (notwithstanding that the contract was one required by law to be expressed in writing) by parol {Davis v. Si/monds, 1787, 1 Cox, at p. 406 ; 1 R. R. at p. 67), to rescind. Or, without expressly agreeing to rescind their original contract, they may have come to some fresh GROUNDS OF DEFENCE, 119 agreement whicli is so inconsistent with the original contract as, in effect, to abrogate it. Or there maj have been, on the part of the plaintiff, such a waiver or abandonment, either by words or by conduct, of his rights under the contract, as to dispense the defendant from performance, on his clearly proving the waiver or abandonment [Carolan v. Brdbazon, 1846, 3 Jo. & Lat. at pp. 209, 210 ; Moore v. Crofton, 1846, ibid, at pp. 445, 446). Or, again, as commonly happens in cases of sales on the Stock Exchange, the original contract may have been put an end to by the substitution for it of a binding contract between the seller and a nominee of the original buyer. Or the defendant may have exercised, reasonably and in good faith, a power of rescission reserved to him by the contract {In re Starr-BowJcett Build- ing Society, ^c, 1889, 42 Ch. D. 375 ; Smith v. Wallace, [1895] 1 Ch. 385; distinguish In re Deighton and Harris' Contract, [18Q8] 1 Ch. 458). Or he may have rescinded on the strength of some circumstance which the Court recognises , as entitling a party to a contract to annul it, fraud, for instance, or absolute refusal to per- form, or unreasonable delay, on the part of the other party. If a vendor of land, being by the contract 12(> SPECIFIC PERPOEMANCE. bound to make out a marketable title, refuses to discharge that obligation, the purchaser may , elect to treat such refusal as a breach, releasing him from the contract as if it had been rescinded, even though the time for completion may not have arrived (JffflcoMcAy v. Clayton, [1898] 1 I. R, 291). Statute of Frauds. — ^Non-compliance with the requirenients of this statute is a very common ground of defence. This topic has already been discussed {supra, pp. 23 ei seq.). 7//ne.— The cases in which lapse of time, or, in particular, the non-observance of some stipu- lation in the contract with respect to time, furnishes a ground of defence, have been adverted to under the head Delay {supra, p. 101). Title. — It may be a ground of defence that the plaintiff, being vendor, cannot make such a title as the purchaser is entitled, in accordance with the contract, to require. An objection of this kind is sometimes adjudicated upon at the trial (e.y. Bates v. Kesterton, [1896] 1 Ch. 159), but of tener in the proceedings upon an inquiry as to title {infra, p. 144), or at the hearing of a summons under the Vendor and Purchaser Act, 1874. On a contract of sale, the obligations of the vendor as regards title depend partly upon the GROUNDS OF DEFENCE. 121 nature of the subject-matter, and partly upon the terms, express or implied, of the con- tract. In the case of an ordinary open contract for sale of freehold land, the vendor's obliga- tions are, in their main outKnes, well settled. It is incumbent 09 him (i) to make out a good forty years' title to the fee simple, free from incumbrances; and also (ii) to pay the out- goings of the property (retaining the rents), and to take reasonable care of it, — not only not wil- fully damaging it, but not wilfully allowing it to become deteriorated {Lysaght y. Edwards, 1876, 2 Ch. D. at p. 507)— during the interval between contract and completion or previous acceptance of possession by the purchaser ; and (iii) on payment of the purchase-money, to execute and procure the execution by all other necessary parties (if any) of a proper deed for conveying the property to the purchaser. And so if, at the date of the contract, the pro- perty is in the occupation of a tenant, the purchaser being, generally speaking, entitled to have it preserved pending completion in its existing state, the vendor is not entitled, against the purchaser's wish, to determine the tenancy, and if he does so determine it, he becomes liable to the purchaser for any loss thereby 123 SPECIFIC PERFOEMANCE. accruing to him {Raffety v. Schofield, [1897] 1 Ch. at pp. 944, 945). Similarly, in the simple case of an open con- tract for sale of a leasehold house, held for a term of years under a lease, containing usual lessee's covenants and a proviso for re-entiy on breach of any of them, the vendor is, it is conceived, bound, except in so far as he is relieved from obligation by statutory rules (Vendor and Purchaser Act, 1874, s. 2 ; Con- veyancing, &c. Act, 1881, s. 3), not only to show that the lease is a valid one, but also to keep it unimpeached (and therefore to go on performing the lessee's covenants) until com- pletion or transfer of possession, and to prove, if required, due performance of covenants up to that time. It is true that, by the statutory rule appli- cable to such a case (Conv, Act, 1881, s. 3 (4)), the lease is to be assumed to have been duly granted unless the contrary appears, and that production of the last receipt for rent is suffi- cient evidence of the due performance of the covenants unless the contrary appears. But, if the purchaser can make it appear that in fact the lease was not duly granted, or that any of the covenants — a repairing covenant, for in- stance — have in fact not been duly performed, GROUNDS OF DEFENCE. 123 that will, it is conceived, provided he has not clearly waived the objection, be a good defence to an action by the vendor for specific perform- ance (see sub-s. (11) of s. 3 of Conv. Act, 1881 ; also In re Higgins and Peroival, 1888, 57 L. J. Ch. at p. 808 ; and Palmer v. Green, 1856, 25 L. J. Ch. at p. 842). The exercise of a right of re-entry or for- feiture may be postponed, or averted, by or under s. 14 of the Conveyancing, &c. Act, 1881, but such rights are not abrogated by that enactment; and it is conceived that, notwith- standing it, a vendor of leasehold property cannot enforce Specific performance of a con- tract to sell it, while his title is impeachable on the score of some un waived breach of cove- nant (cf . at Common Law, Penniall v. Sarhorne, 1848, 11 Q. B. 368; and Wilson v. Wilson, 1854, 14 C. B. 616). Section 14 does not pre- vent neglect to comply with a covenant from being a breach of the covenant {per Lord Esher, M.R., in Coatsworth v. Johnson, 1886, 55 L. J. Q. B. at p. 222). In connection with the topic just discussed, it is to be remembered that the common form of conveyance of leasehold property by a ven- dor " as beneficial owner" contains an implied covenant, on his part, that all the lessee's cove- 124 SPECIFIC PERFORMANCE. nants have been performed up to the time of conveyance (Conv. Act, 1881, s. 7" (B.) ), and that a purchaser is, generally, entitled to sue in respect of a breach of covenant for title ■which comes within the literal terms of that covenant, even though he took his conveyance with notice of the defect {Page v. Midland Rail. Co., [1894] 1 Ch. at pp. 20, 24). Generally, if a vendor can make a good title at a.ny time before the day fixfed for complex tion of the contract, it will be enforced; but if he has no title in himself, he will not be allowed, to insist on the purchaser accepting the title of some third person wlio can make a good title {In re Bryant, Sfc, 1889, 44 Ch. D. at pp. 233, 234). In some cases, the defence will succeed if it is shown that the title is doubtful, in regard to some question of law or of fact {Alexander v. Mills, 1870, L. R. 6 Ch. at p. 131 ; Mogridge v. Clapp, [1892] 3 Ch. at p. 392; In re Scott, 6fc., [1895] 1 Ch. at pp. 603, 604, cp. p. 609); but as regards general matters of law, including the construction of general Acts of Parliament, th6 Court, nowadays, usually solves the doubt by deciding the question {In re ThacTtwray, 6j:c., 1888, 40 Ch. D. at pp. 38, 39). A purchaser is not justified in repudiating a GROUNDS OF DEFENCE. 125 contract without investigation of the title, merely because tie finds that one link in it is a voluntary conveyance executed before the Voluntary Conveyances Act, 1893 {Noye& v. Paterson, [1894] 3 Ch. 267). Ultra Vires. — It may be a good defence that the contract sued on is one which it was beyond the powers of a defendant corporation, or of its officers, to make (see Ashhury Rail. Sfc. Co. V. Riche, 1875, L. E. 7 H. L. 653; Earl of ShrewsluryY. North Staffordshire Rail: Co., 1865,^ L. R. 1 Eq. at p. 617). A contract may, however, though ultra vires the directors of a company, be one which the Qompany is competent to adopt, and if it be adopted by ratification or acquiescence on the company's part, it becomes enforceable against the company. A stranger contracting in good! faith with a corpora,tion is entitled to assume that whatever ought, according to its regula- tions, to have been done, in order to put it into a position to contract with him, was duly done [Royal British Bank v. Turquand, 1856, 6 El. & Bl. 327). And in a case where a railway com- pany had statutory power to buy land for extraordinary purposes, it was held that an honest vendor of land to the company was not bound to see that the land was strictly required 126 SPECIFIC PEEFORMANCE. for such purposes, and a defence on the ground of ultra vires failed (Eastern, Counties Rail. Co. v. HawTces, 1855, 5 CI. H. L. 331). Again, where a transaction, taking it in its entirety, would be bad, but the agent of one of the parties to it has colluded with the other party for the purpose of putting the agreement in such a form that the valid part shall be separated from the invalid part, then that which is intra vires may be separated from that which is ultra vires: in other words, that which is honest and true may be separated ffona that which is dishonest and false, and the principal of the agent who has been party to the fraud may say to the other party, whona he sues, " You have agreed that that which was ori- ginally commenced as one negotiation shall result in two separate agreements, and, you having so. agreed, I will now take you at your word, and I will enforce so niueh- of the agree- ment as is contained in the valid separate document upon which I sue, and I will leave the other part of the agreement alone" {per Fry, J., in Odessa Tramways Co. v. Mendel, 1878, 8 Ch. D. at p. 243). Uncertainty. — A contract must, in order that it may be specifically enforced, be certain and GROUNDS OF DEFENCE. 127 definite (Lord Walpole v. Lord Orford, 1797, 3 Ves. Jun. at p. 420). Accordingly, uncertainty, indefiniteness, vagueness, or obscurity as to the terms or ex- tent of a contract may afford a ground of defence. For typical examples of this, reference maybe made to Harnettx. Yieldinff (1805, 2 Sch. & Lef . 549 ; 9 R. R. 98) ; Lord James Stuart v. L. §• iV. W. Rail. Co. (1852, 1 De a. M. & G. Ch. at p. 735) ; Tai/lor t. Portington (1855, 7 De G. M. & G-. Ch. 328) ; Rummens v. RoMns (1865, 3 De G. J. & S. Ch. 88) ; and Fearce v. Watts (1875, L. R. 20 Eq. 492). But the conduct of the parties after the con- tract may displace an objection which might originally have been raised on this score ; and the Court will be slow to give effect to such a defence where there has been fraud on the part of the defendant, or part performance (Oxford Y. Frovand, L. R. 2 P. C. 135; CAattock V. Miller, 1878, 8 Ch. D. at p. 181). "I think,^' said Kay, J., in Hart v. Hart (1881, 18 Ch. D. atp. 685) ..." Lord Justice Turner went as far as this : It is the duty of the Court, as far as it is possible to do so, to ascertain the terms of the agreement, and to give effect to it. That is, as I understand, the rule of Equity, that although there may be consider- 128 SPECIFIC PERFORMANCE. ^ able vagueness in the terms, and although it may be such an agreement as the Court would hesitate to decree specific performance of, if there had not been part performance, yet, when there has been part performance, the Court is bound to struggle against the difficulty arising from the vagueness." 129 CHAPTER XV. EVIDENCE — PAROL VAKIATION. It has already been noticed (supra, pp. 33, 36 et seq.) that there are certain cases of con- tract in which, although the Statute of Frauds requires written evidence of the terms of the contract, the Court allows them to be proved by parol; also that parol evidence may be admissible for identification of documents (supra, p. 27), or the subject-matter of con- tract (supra, p. 31); and that it is permis- sible to prove by parol evidence the abandon- ment of a written contract (supra, pp. 118, 119; see, too, Price v. D^er, 1810-11, 17 Ves. Jun. at pp. 363, 364). It is now proposed to advert briefly to another and important cate- gory of cases, in which, the contract sued on being in writing, it is sought by one of the parties to an action for specific performance to set up a parol variation of the written contract. Parol Ka/'/af/b/?.— Independently of the Statute of Frauds, it is a rule of the Common Law that parol evidence cannot be received to contradict a written contract. But Courts of Equity have K. 9 130 SPECIFIC PEEPORMANCE. long held that, when the exercise of their dis- cretionary jurisdiction in speqific performance is invoked, a defendant may adduce parol evidence to show that by fraud, mistake, or surprise the writing sued upon does not cor- rectly or completely express the real bargain (see Joynes v. Statham, 1746, 3 Atk. 387 ; Ram- lottom V. Gosden, 1813, 1 Ves. & Bea. at p. 168 ; Clowes V. Higginsan, 1814, ibid, at pp. 626, 527; also Hid. at p. 378). Cases in which the' defence is that there was something by parol, which is of the essence of the contract but not expressed in the writing, differ, of course, from those in which the defen- dant's point is that, though there is a clear contract in writing, it ought not to be performed because of some collateral circumstances whith show, fraud, mistake, or surprise. Both grounds of defence, however, may legitimately be matters for parol evidence (iJea?' v. Veriiy, 1869, 17 W. R. at pp. 568, 569). Where the effect of the parol evidence is to show that the parties were at cross-purposes, the Court declines to interfere {^Clowes v. Higgin- Son, ubi supra, at p. 635) ; but where it shows that the parties were at one, but that some material item of their parol contract has been omitted from the written memorandum of it, EVIDENCE — ^PAEOL VAEIATION. 131 there the Court will, at the defendant's request, enforce performance of the written contract with the parol variation (see Fife v. Clayton'^ 1807, 13 Vesi Jun. 546). And where the plaintiff submits to perform the omitted term, he may obtain similar relief {Martin v. Pycroft, 1852, 2 De G. M. & G. Ch. 785 ; cp. Robinson V. Page, 1826, 3 Russ. 114, 121, and Smith v. Wheatcroft, 1878, 9 Ch. D. 223). It depends, in fine, on the particular circumstances of each case, whether a parol variation set up by a defendant will defeat the plaintiff's right to performance, or whether the Court will perform the contract, taking care that the subject-matter of the parol agreement is also carried into effect {London, 6fc. Rail. Co. v. Winter, 1840, Cr. & Ph. at p. 62). Sometimes the Court allows the plaintiff to elect between having his action dismissed, and having judgment for performance with the varia- tion (e.ff. Eambottom v. Gosden, supra, p. 130). It -must, however, be borne in mind that if, subsequently to a written contract falling withia the scope of the Statute of Frauds, the parties have verbally agreed to vary it, but the varia- tions have not been acted upon, neither party can escape from performance of the written contract by reason only of the parol variations ; 9(2) 132' SPECIFIC PEEFOEMANCE. for to allow parol evidence of such variations to be given would be directly contrary to the statute (see Price v. Dyer, 1810-11, 17 Ves. Jun, at p. 365 ; and Bnelling v. Thomas, 1874, L. R. 17 Eq. 303). Lord St. Leonards' view of the result of the authorities as to parol variation is stated in Sugden, Vendors and Purchasers, 14th ed. at p. 165). In the Court of Chancery, a curious distinc- tion appears to have been made by some eminent judges, who held that, although the defendant to a suit for specific performance of a written contract might adduce parol evidence in variation of the contract, the plain- tiff in such a suit could not, at any rate where there had been no part performance, go into parol evidence for the purpose of enforcing the contract with a variation (^Woollam v. Hearn, 1802, 7 Ves. Jun. 211 b; 2 W. & T. Eq. Cas. 7th ed. 513; Marquis Townshend y. Siangroom, 1801, 6 Ves. Jun. 328). But on the coming into operation of sect. 24, sub-sect. 7, of the Judicature Act, 1873, such a distinction be- came untenable; and it has accordingly been held that, where the Statute of Frauds does not create a bar, a plaintiff may, in one and the same action, obtain, upon parol evidence of mistake, rectification of a written contract,- EVIDENCE — ^PAROL VAEIATION. 133 and specific performance of the contract as rectified {OlUy v. Fisher, 1886, 34 Ch. D. 367). It may here be added that, where an alleged contract in writing is sued on, it is open to the defendant to show by parol evidence that, not- withstanding the writing, there was no contract {FattU V. Hornihrj)olc, [1897] I Ch. 25). 134 SPECIFIC PEBFOKMANCK. CHAPTER XVI. JUDGMENT— DEPOSIT — INTEREST AND RENTS. Judgment — If, at the trial, the plaintiff suc- ceeds, the form of the judgment varies, of course, according to the subject-matter of the contract sued on, and to the position under it of the party suing relatively to the party sued (see North V. Percival, [1898] 2 Ch. at p. 134). A variety of forms of judgment is collected in Setpn, 5th ed. pp. 1832 et seq. In a simple case of a contract for sale of land, where the title has not been accepted, admitted, or established at or before the trial, the judg- ment, if the vendor is plaintiff, begins with a declaration and order that the contract ought to be specifically performed in case a good title can he made , to the property comprised in it, and goes on to refer the action to the chambers of the judge for inquiry as to whether a good title can be made, and, if so, when it was first shown that such a title could be made, and adjourns the further consideration of the action until after the Master's certificate of the result of the inquiry. If, in such a case, the purchaser is JUDGMENT — DEPOSIT — ^INTEREST AND RENTS. 135 plaintifp, the form of judgment will be the same, except that the words italicised above will be omitted. Ver J often the title is accepted, admitted (by default in pleading or otherwise), or established, before or at the trial. In such a case, of course, no inquiry as to title is requisite ; the judgment provides for the ascertainment of the amounts for which the vendor is accountable in respect of rents, the purchaser in respect of interest on unpaid purchase-money, and the unsuccessful party in respect of costs of action, and directs the vendor to convey the property to the pur- chaser, against payment by the latter of the total amount due from hint, after adjustment and set-off of the several amounts for which the parties respectively are accountable to one another in respect of purchase-money, rents, interest, and costs. Where a purchaser has accepted and ap- proved a title, all the facts being known to him at that time, he cannot afterwards resist a judgment for specific performance, and claim to have the title investigated in the chambers of the judge, on the suggestion of some ob- jection to the title which he might have taken before he accepted it {Soper v. Arnold, 1889, 14 App. Gas. at pp. 434, 436),, 136 SPECTFIC PEEFOEMANCE. Tlie judgment at tlie trial may, in a suitable case, contain a declaration of the vendor's lien on the property sold for unpaid purchase-raoney, interest, and costs, and a reservation to him of liberty to apply to the Court to enforce the lien ; or an inquiry as to, or assessment of, damaged sustained by the plaintiff by reason of the defendant not having performed the con- tract ; or provisions for compensation being given, or an abatement of the purchase-money being made, in respect of defect of title or deficiency of estate. In a purchaser's action, an inquiry as to rents, for which the vendor is accountable, on the footing of wilful default cannot be directed against the vendor as of course, and in the absence of special circumstances; but it may be, and ought to be, directed, if special cir- cumstances leading up to it are shown at the trial to exist [Malone v. Henshaw, 1891, 29 L. R. Ir. at p. 358). Where the contract sued on is an agreement for a lease, the judgment usually directs the parties to execute respectively a lease and counter-part lease of the property according to the agreement: where it is a contract for transfer of shares, it is by the judgment ordered that the vendor and all proper parties execute a JUDGMENT DEPOSIT — ^INTEREST AND KENTS. 137 deed of transfer of tlie shares to the purchaser, and that the- latter concur in all necessary and proper steps for causing the shares to be duly registered in his name; and the purchaser is declared liable to indemnify the vendor against calls. If the action Ijas been registered as a lis pendens, and is, at the trial, dismissed, the judgment may include an order vacating the registration {Baxter v. Middleton, [1898] 1 Ch. 313). And where a vendor plaintiff has received a deposit, and his action is dismissed with costs, the purchaser may (provided he has counter- claimed for it) obtain judgment for return of his deposit, with interest, and also a declaration giving him a lien on the vendor's interest in the subject-matter of the contract for the amount of the deposit, interest, and costs (see Levy v, Stogdon, [1898] 1 Ch. at p. 485). As to costs: — ^when exercising the essentially discretionary jurisdiction in specific perform- ance, the Court has always dealt at discretion with the costs of proceedings invoking that jurisdiction, with the object of doing the com- pletest possible justice in each particular case ; and this discretion is amply confirmed to the Supreme Court by the present rules of proce- dure (see Judicature Act, 1890, s. 5, and 138 SPECIFIC PEKFOEMANCE. brd. LXV.). It would, therefore, be of little ^practical use to attempt a classification of the very numerous reported authorities illustrating this topic. Many of them are collected in Seton (5th ed.) at pp. 1875, 1876, and in Morgan and Wurtzburg on Costs in the Chancery Division^ pp. 250 — 264. There is, however, a pro- nouncement by Fitzgibbon, L.J., which is of such common applicability that it may use- fully, perhaps, be quoted. " As to costs," he said (in D.yas v. Stafford, 1882, 9 L. R. Ir. at p. 529), " I disapprove of any suggestion that a defendant who succeeds upon a plea of the Statute of Frauds is an unmeritorious litigant, and that he is only reluctantly to be allowed his costs." (See also infra, p. 148.) Deposit. — Payment by the purchaser of a deposit takes place almost invariably on sales by public auction, and sometimes on sales by private contract. The deposit, in such cases, serves two purposes ; if the purchase is carried out, it goes in part payment of the purchase- money ; but its primary purpose is to serve as a guarantee that the purchaser means business {Soper V. Arnold, 1889, 14 App. Cas. at p. 435). Accordingly, if, owing to want of title in the vendor or otherwise, the contract comes to an end without any default on the part of the JUDGMENT — ^DEPOSIT — ^INTEEEST AND RENTS. 139 purchaser, he is generally entitled to have his deposit repaid to him, with interest. But if, on the other hand, the contract goes off in consequence of some default on the purchaser's part, the vendor is generally entitled to forfeit and retain the deposit, even though there be not (as, however, there commonly is) a stipulation in the contract expressly providing for such forfeiture {Howe v. Smith, 1884, 27 Ch. D. 89). It is, however, possible — as a recent case {In re Scott and Alvares' Contract,- [1895] 2 Chi see pp. 614, 615) has shown — that there maybe a contract of sale, in dealing with which the Court will decline to give the vendor a judg- ment for specific performance, on the ground that his title is one which Equity will not force on a purchaser, and, at the same time, will decline to give the purchaser a judgment for return of his deposit, on the ground that the contract under which he paid it is binding at Law: — a result of the double jurisdiction in Courts of Law and Equity, and the extraordi- nary jurisdiction exercised by Courts of Equity, which is more curious than satisfactory. (See also In re National Prov. Bk. of England and Marsh, [1894] 1 Ch. at p. 192.) Interest and Rents. — Where there is no stipu- 140 SPECIFIC PEEFOKMANCE^ lation in a contract of sale of land with respect to interest on unpaid purchase-money or the rents of the property sold, the general (but not universal) rule of the Court is that the pur- chaser, if he completes the contract after the time fixed for completion or at which he ought to take possession, is to be considered as in possession as from that time ; and accordingly, as from that time until actual completion, he must pay interest (computed usually at the rate of four per cent, per annum), taking, on the other hand, as from the same time the rents, which up to that time are considered as belong- ing to the vendor. If, however, such interest is much more in amount than the rents, and it is clearly made out that the delay of completion was occasioned by the vendor, then, to give effect to the general rule would be to enable the vendor to profit by his ownwrong; and the Court, therefore, gives the vendor no interest, , but leaves him in possession of the interim rents (see Paton v. Rogers, 1822, 6 Madd. at p. 257 ; Esdaile v. Stephenson, 1822, 1 Sim. & St. at p. 123 ; and Birch v. Joy, 1852, 3 CI. H. L. at pp. 590, 591). But an express stipulation in the contract may, and often does, modify the general rule. It is, for instance, a usual stipulation that JUDGMENT — DEPOSIT — INTEEEST AND RENTS. 141 interest shall be paid by tlie purchaser from the day fixed for completion until actual com- pletion, "if, from any cause whatever," or (and, nowadays, more commonly) "if, from any cause whatever other than wilful default on the part of the vendor^'' completion is delayed beyond the fixed date. Such a stipulation is put in mainly by way of precaution, for the purpose of giving the vendor some hold over the purchaser. It is — ^particularly in the shorter unqualified form — obviously open to abuse : but, even where that form has been emjployed {e.g. Williams v. Glenton, 1866, L. R. 1 Ch. 200), it is very seldom that a vendor can take advan- tage of his own wrong, and compel the purchaser to pay interest, if the vendor is himself to blame {In re Woods and Lewis' Contract, [1898] 2 Ch. at p. 213). Where the longer form has been used, ques- tions have repeatedly arisen, and have been much debated, as to the meaning and scope of the ■ expression "wilful default" in such a stipulation. "It is now settled that moral delinquency, intentional delay, wilful obstruc- tion on the part of a vendor, may all be absent, and yet there may be wilful default on his part, disentitling him to interest [under such a stipu- lation]. If a vendor knows the material facts — 142 SPECIFIC PERFORMANCE. knows that there are difficulties which it is his duty to overcome — ^knows that he may not be able to overcome them by the time fixed for completion, and he fails to overcome them by that time, although no fresh unforeseen occur- rence prevents him from doing so, the delay caused by such failure on his part is attributable to his wilful default, in the sense in which that expression is used in contracts of this descrip- tion ; and his right to interest during such delay is excluded " (/« re Hetling and Mertonh Contract, [1893] 3 Ch. at p. 281). Recent illustrations of this topic are to be found in In re Wilsons and Stevens^ Contract ([1894] 3 Ch. 546), where the vendor's omission to take steps to procure certain necessary ad- missions to copyholds was held to amount to wilful default; and in North v. JPemmZ([1898] 2 Ch. 128), where the vendors' repudiation of the contract by resisting the purchaser's claim for specific performance was held not to consti- tute such wilful default as to disentitle theiii to interest. Due force is, of course, to be given to the epithet ''wilful": there may be default by a vendor which falls short of being " wilful," in the sense attachable to that word in stipulations of the kind under consideration {e.g. In re JUDGMENT — DEPOSIT — ^INTEREST AND RENTS. 143 Mayor of London and TubW Contract, [1894] 2 Ch. at pp. 536, 537). Where it is a term of the contract that interest at a specified rate is to be paid, as from the time for completion, unless the vendor is guilty of wilful default, it is conceived to be the better opinion that the purchaser cannot escape from liability to pay such interest merely by setting apart the unpaid purchase^money on a deposit account at a bank, or even by investing it, and giving the vendor notice of the appropriation {In re Riley to Streatfield, 1836, 34 Ch. D. 386): though it may be otherwise where the contract contains no such term [Kershaw v. Kershaw, 1869, L. R. 9 Eq. 56). 144 SPECIFIC PEEFOKMANCE. CHAPTER XVII. PKOCEEDINGS AFTEE JUDGMENT. Inquiry as to Title. — ^Though this inquiry has so commonly been directed at the trial that it has been considered convenient to advert to it Tinder the head of Proceedings after Judgment, it should be borne in mind that an order for such an inquiry is obtainable also, in an action for specific performance, on interlo(Jutory appli- cation before trial, under Ord. XXXIII. r. 2, or by means of an application under Ord. XXXII. r. 6 {e.ff. Camberwell, Sfc. Society v. Holloway, 1879, 13 Ch. D. at p. 758} ; and where, the only question is that of title, the earliest practicable opportunity of applying for the inquiry ought to be embraced (PMUipson v. Gibbon, 1871, L. E. 6 Ch. at p. 435). Indeed, in cases where title only is in question, an originating summons under the Vendor and Purchaser Act, 1874, will generally answer all purposes ; for whatever can be done in chambers upon a reference for inquiry as to title under a PROCEEDINGS AFTER JUDGMENT. 145 judgment in an action where the contract has been accepted, admitted, or established at or before trial, can also be done upon proceedings under the last-mentioned Act {In re Burroughs, Lynn, and Sexton, 1877, L. R. 5 Ch. at p. 604). But the Court is not disposed to allow a litigant to blow hot and cold; and a party to a contract, who has applied for and obtained an order under the Vendor and Purchaser Act, qannot after- wards maintain an action for specific perform- ance, if he might have obtained all needful relief in the proceedings which he originally elected to take {Thompson v. Ringer, 1881, 29 W. E. 520). A vendor may, if he likes, stipulate for the sale of an estate with such title only as he happens to have(-Fre»ie v. Wright, 1819, i-Madd. at p. 365) ; and if he has done so, making the stipulation clear to the purchaser {Southly v. Hutt, 1837, 2 Myl. & Cr. at p. 212), there is no room for any inquiry as to title. Nor, again, will inquiry as to title be directed if it appears that the purchaser has expressly {e.g. by admis- sion of the title in the pleadings), or impliedly {e.g. by some unequivocal act of ownership), waived his right to the inquiry, or, where the only point or points in dispute upon the title is or are argued and decided at the trial. K. 10 146 SPECIFIC PEEFOEMANCE. Where inquiry in the common form {supra, p. 134) is directed j "a good title" means a good title according to the contract ( Upperton t. Nichol- son, 1871, L. R. 6 Ch. at p. 442); and accord- " ingly, in making the inquiry, regard is had to any stipulations in the contract by which the purchaser's ordinary legal right to a good title {supra, pp. 121, 122) may have been curtailed. Of such stipulations there are countless varieties. Two forms of common occurrence it may be Useful to notice particularly, viz. : (i.) a stipulation to the effect that the purchaser is not to require the vendor to prove the title, or some specified part of it ; in which case the purchaser is not precluded from showing aliunde that the title is defective ; and (ii.) a stipulation . to the effect that the title, or some specified part of it, is not to be inquired into ; in which case the purchaser is precluded from making any inquiry whatsoever (see In re National Provincial Bank of England and Marsh, [1895] 1 Ch. 190, and the cases there reviewed ; also In re Scott and Alvarez, ibid. 596, and [1895] 2 Ch. 603). The general principles applicable to such restrictive stipulations are that they are to be construed strictly, and that effect will be given to them if clear, honest, and fair, but refused PROCEEDINGS AFTER JUDGMENT. 147 if they are raisleading or otherwise unfair (see In re Banister, 1879, 12 Ch. D. 131, 136, 142, 143). But, stringent though the conditions may- be, the Court is not disposed, in the case of a contract for sale of land, to grant to the vendor the discretionary remedy of a judgment for specific performanee, unless it sees that the purchaser will get at least a holding title to the land {In re Scott and Alvares'. Contract, 1885, 2 Cb. at pp. 612,, 613, 615). Affidavit evidence as to matters of fact is admissible on the inquiry as to title {In re Bur- roughs, ^c, supra, p. 145); and a vendor is in time, as regards making out his title, if he makes a good title according to the contract before the signing of the Master's certificate {Jenkins v. Hiles, 1802, 6 Ves. Jun. at p. 655), or, it is con- ceived, in the case of a vendor and purchaser summons, before the evidence is closed. As to the difference between showing and making a title, see Parr v. Lovegrove {1857, 4 Drew, at p. 176). Unless the certificate is varied on a proper application for that purpose, the Court, on the subsequent hearing, will generally direct specific performance, or dismiss the action, according as the certificate is in favour of or against the title. But where the certificate is against the title, or, being in favour of it, is varied, the 10(2) 148 SPECIFIC PEEFCEMANCE. vendor is sometimes allowed a further oppor- tunity of curing the defect {Coffin v. Cooper^ 1807, 14 Ves. Jun. 205 ; Portman v. Mill, 1831, 1 Euss. & M. 696 ; Curling v. Flight, 1848, 2 Ph. Ch. 613). As to the costs up to the time wheri a good title is shown, the conclusion to be drawn from a comparison of the modern authorities is, it is conceived, that these, like other costs of specific performance actions {supra, p. 137), are entirely in the discretion of the Court (see PMllipsonY. Gibbon, 1871, L. E. 6 Ch. at p. 434, and>Br Cotton, L.J., in Games v. Bonnor, 1884, 33 "W. E. at p. 66). Inquiry as to title is not confined to cases relating to real or leasehold property. It has, for instance, been directed where shares ia mining companies were the subject-matter of the contract ( Curling v. Flight, ubi supra). Non-compliance with Judgment. — Where, by a judgment, the defendant has been ordered to perform specifically his part of a contract, and he has made default in doing so, there are several remedies, of some or one of which, according to the circumstances of the particular case, the plaintiff may avail himself by means of application in the action— (i.) He may obtain an order fixing a time PKOCEEDINGS APTEE JUDGMENT. 14& and place at which, or a limited period within which, the judgment is to be complied with by the defendant, and, in default of compliance with the order, he may proceed to enforce it by writ of fieri facias, or elegit, if the default be in payment of money, and, if otherwise, by writ of sequestration or attachment (Grace v. Sain- ton, 1877, 25 W. E.' 506; Ord. XLIL rr. 3, 6, 8, 17, 24 ; Ord. XLIII. r. 6 ; Ord. XLIV.). Where the judgment in a vendor's action has directed (1) an account to be taken of what is due to the plaintiff for purchase-money, &c. (2) a conveyance to be settled by the judge and executed as an escrow, (3) payment to be made by the defendant to the plaintiff, at a time and place to be appointed by the judge, of the amount certified to be due, and (4) delivery- over thereupon of the conveyance and other title deeds, the judgment is not a conditional one (Ord. XLII. r. 9) because of the direction for a conveyance. As soon as the certificate ascer- taining the amount payable has been made, and the time and place for payment have been appointed, there is an absolute and uncondi- tional order for payment of the sum of money so ascertained, on which, if not obeyed, process of execution may generally issue at once. The latter part of the judgment splits the contem- 150 SPECIFIC PEEFOEMANCE. plated transaction into two separate and distinct acts. There is, first, an absolute order to pay the money, and, secondly, an absolute order to deliver the conveyance and title deeds. But, such an order f oi- payment to the plaintiff being a complete and final order, he is not entitled, if he omits to serve it and the defendant fails to pay, to get an order directing the defendant to pay the certified sum into Court ; but he may have a four-day order for payment to himself personally, such an order being merely a work- ing-out of, and supplemental to, the judgment (Robinson v. Gallmd, 1889, 37 W. E. 396 ; and see a similar order in Jessop v. Smyth, [1895] 1 I. E. at p. 510). In an earlier case, in which the judgment had directed that, on the plaintiff (vendor) handing over a proper conveyance and the other title deeds, the defendant should pay the amount to be certified as due from him, and the plaintiff had tendered the conveyance and title deeds, but the defendant had refused to accept them, or to pay, North, J., did not give leave to issue execution at once, but made an order that the plaintiff should be at liberty to deposit the conveyance and title deeds in Court, and at the same time (subject- to such deposit being made) made a four-day order on PROCEEDINGS AFTER JUDGMENT. 151 the defendant for payment of the certified sum {Bell Y. Denver, 1886, 54 L. T. N. S. 729). (ii.) He may avail himself of the provisions of Ord. XLII. r. 30, by which it is provided that, if a judgment for the specific performance of any contract be not complied with, the Court or a judge, besides or instead of proceedings against the disobedient party for contempt, may direct that the act required to be done may be done, so far as practicable, by the party by whom the judgment has been ob- tained, or some other person appointed by the Court or judge, at the cost of the disobedient party, and upon the act. being done, the ex- pense incurred may be ascertained in such manner as the Court or judge may direct, and execution may issue for the amount so ascer- tained and costs (see Mortimer v. Wilson, 1885, 33 W. R. 927). (iii.) If, being a vendor of land, he has been declared entitled to a vendor's lien, he may obtain an order for enforcement of his lien by sale of the land, with, in a proper case, the appointment meanwhile of a receiver; and further, if the land be unsaleable, he may in some cases {e.g. Allgood v. Merrylent, Sfc. Rail. Co., 1886, 33 Ch. D. 571) obtain an in- junction restraining the defendant from con- 152 SPECIFIC PEEFOEMANCE. tinuing to use the land, and an order that the plaintifB be put into possession of it. (iv.) If he be a purchaser of land, he may obtain an order vesting the defaulter's estate in him, or appointing someone to execute a conveyance of it to him (Trustee Act, 1893, ss. 26, 31, 32—34 ; Judicature Act, 1884, s. 14). (v.) He may, whether there has been a declaration of Hen or not [Baker v. Williams^ 1893, 41 W. E. 375), obtain an order rescinding the contract and staying all further proceedings in, the actioh [Henty v. Schroder, 1879, 12 Ch. D. 666). INDEX, ABANDONMENT of cfintract, 119. ABATEMENT, by way of compensation {q. v.), 58, 114, 136. ABEOAD, land situate, 20, 23. AOOBPTANCB, by post. 111. communication of, 111. contract constituted by, 29, 101, 110. DELAY (2. V.) in, 101. fresh, term introduced by, 111. possession, of, 121. prompt. 111. requisites of, 111. shares, of. 111. simple, 29, 111. subject to formal contract, 28, 29. unconditional. 111, ACCOMMODATION WOEKS, contract to construct, 15. ACQUIESCENCE, company, by, 125. possession taken, in, 40. ACEEAGE, deficiency of, 61, 64, 114. ACT, ancillary to contract, 41. disentitling plaintiff to reUef, 101. introductory to contract, 41. ACT OP BANKEUPTCY, 101. ACT OP GK)D. rendering one mode of performance impossible, 108. 154 INDEX. ACT OF PARLIAMENT, construction, of, 124. contract not to apply for, 50. expressions referring to "'writing" in, 26. ACTION, . assignment of, 80, 81. for deceit, 72. in sect. 4 of Statute of Frauds, 23. of covenant, 5. of detinue, 48. of review, 94. on the case, 5. SPECIFIC PEBEOBMANOE {q. V.) for, 80 e< sej. tria,nsfer of, 95. vliole cause of, 81. ACTOE, contract by, 51. ACTS OF OWNBESHIP, as PABT PEBFOEMAIirCB (q.V.), 39 — 41. waiver of right to inquiry as to title by, 145. ADMISSION, by defendant, taies case out of Statute of Frauds, 44. copyholds, to, 142. of title, judgment after, 135. ADOPTION, company, by, 125. of acts done without authority, 34. ADVOWSON, contract to sell, 62. ^ QUIT AS AQIT IN PERSONAM, 20. AFFIDAVIT, evidence on inquiry as to title, 147. statement in, 26. AaENOY, contract of, 52. fact of, 30. PARTIES (g'. V.) in cases of, 88, 89. proof of, 34. AGENT, appoidtnient of, 34. auctioneer, 34. auctioneer's clerk, 35. INDEX. 153 A.G'Em;— continued. authority ol, 34. oontraotmg in his own name, 88. director, 88. fraud of, 103, 104, 126. fraudulent collusion -with, 104, 126. holding a large deposit, 89. misrepresentation by, 112. mistake of, or induced by, 115. party to be charged, for, 33. party, when made, 88, 89. person contracting as, 88. personally interested, claiming to be, 88. signature of, 27, 33. undisclosed principal, for, 30. AGREEMENT. iSee Contract. ALLOTMENT, notice of, 111. stiit to enforce, 68, 107. ' ALTEENATIVE claims, 92, 93, 102. AMBIGUITY, a ground of defence, 97. mistake without, 115. ANNUITY, contract to purchase or sell, 46. APPEENTIOESHIP, contract of, 52. APPEOPEIATION of purchase-money by purchaser, 143. AEBITEATION, contract to refer to, 46. AEBITEATOE, decision of, 110. AEEEST of defendant about to quit England, 96. ASSIGN, legal, of lease, 22, 87. ASSIGNEE, equitable, of lease, 22, 87, ASSIGNMENT, action, of, 80, 81, benefit of contract, of, 86. instrument inter vivos, by, 86. of partnership assets, contract for, 25. operation of law, by, 86. prohibited, where, 86, 156 INDEX. ASSIGNOE of benefit of oontraot, 86. ATTACHMENT, writ of, 149. AUCTION, ooiTDiTiONS or SALE {q. V.) on, 63—65. deposit paid on sale by, 139. sale by, within Statute of Frauds, 25. AUCTIONEER, AGENT {q. V.) of vendor and of purcbaser, 34. . authorized to sign memorandum, 34. party, when made, 89. AUOTIONEBE'S CLBEK, is not, generally, purchaser's agent to sign, 35. AUTHOEITY of agent {q. v.), 34. AWAED, specific performance of, 46. BANE, setting apart purchase-money in, 143. BANKRUPT, act of, 101. purchaser, 87, 88. vendor, 87. BANKRUPTCY ACT, 1883.. .88. BANKEUPTOY ACT, 1890... 88. BAEGE, contract to sell, 56. BOND, execution of, 51. BOUNDARIES, contract relating to, in America, 20. BEEACH OF CONTEACT, by lessee, 12. Common Law remedy for, 3, 13. equitable remedy for, 13. remedy for, in Scotland, 1. BEEACH OF TEUST, a ground of defence, 97, 98. contract involving, 16. INDEX. 157 BROKEE, 55. BUILDIN& OONTEACT, damages for breach of, 71. generally not Bpeoificaily enforceable, 15. BUILDING MATERIALS, contract to seU, 26. BUSINESS, contract for sale of, 48, 49. CAPACITY, 108. See Iwoapacity. CATCmNG BARGAINS, 52, 105. CEETAZNTT, importance of, 8, 126. And see UircEBTAnm. CERTIFICATE, appointing time and place for payment, 149. ascertaining amount payable, 149. in favour of or agarnst titie, 147. signing, of, 147. yariation of, 147. CESTUI QUE TRUST, when a party, 89.. CHAMPERTY, transactions sayouring of , 106. CHANCELLORS, ecclesiastical, 4. CHANCERY DIVISION, assignment of action to, 80. transfer by, 80. to, 95. CHAETERPAETY, contract contained in, 47. CHATTELS, contract for sale and deKyery of, 47. CHOSE IN ACTION, 48. See Debt. COLLATERAL CIRCUMSTANCES, 130. COLLIERY, 15. See Mines. COLLUSION, fraudulent, 104. COLONIES, jurisdiction in specific performance in, 2, 158 INDEX. COMMITTEE of lunatic, 87. COMMON LAW, action of detinue, 48. damages only remedy for breach of contract, 3. inadequacy of remedy, 4, 13. remedy adequate, when, 14. right to elect between performance and damages, 3, 6. rule as to BvmEifCB {q. v.), 129. tribunals, hostile to injunction, 75., COMMUNICATION of acceptance, 111. COMPANY, acquiescence by, 125. contract made by directors of, 88, 125. by projectors of, 89. ratification by, 125. rectification of register of, 55. sale of land to eailwat (j. v.), 78. And see Coepoeation. COMPANIES ACT, 1862, s. 35.. .55. COMPANIES ACT, 1867, s. 37.. .99. COMPANIES CLAUSES CONSOLIDATION ACT, 1845, s. 97... 99. COMPENSATION, abatement by way of, 68. a creation of Coults ofBquity, 57. condition for, 63 — 65. conveyance or lease taken, where, 63. criticism of the principle of, 60. DAMAGES {q. v.), contrasted with, 67. differs from indemnity against defect of title, 63. for deficiency of acreage, 61, 64, 114.. in value, 58. judgment for, 136. kno-^ledge of defect by purchaser, where, 62. land, in cases of contracts relating to, 13, 57. latent defect, in case of, 62. loss occasioned by delay, for, 73. mistakes or errors, for, 64. MUTrALiTT {q. V.) in relation to, 117. negatived, 64, 63. patent misdescription; in case of, 62. prejudice to third persons, where, 63. INDEX. 159 COMPENSATION— conMraMcc?. purchaser plaintiff, -where, 57, 59, 62. specific performance -with, granted, 61 refused, 61, 62. statement of the principle of, 57, 68. imascertainable, 63. unknown to law of Scotland, 57. vendor plaintiff, where, 57, 58, 62. ■waiver of right to, 62. where plaintiff gmlty of MISEEPEESENTATION (ff. v.), 62, 64. COMPLETENESS, 109—112. See Incompleteness. COMPLETION, death (j. v.) before, 82—86. delay of, 73, 140—143. interval between contract and, 121, 140. performance of lessee's covenants imtil, 122 — 124, TIME (q. V.) for, after, 140—143. title made before day for, 124. COMTEOMISE, contract for, 48. petition in Probate Division, of, 54. COMPTJLSOET POWEES, bargains made under, 21. CONCLUSION of contract, 27—29, 110—112. CONDITION, forfeiture of deposit (j. v.), for, 93. payment of intekest (j. v.), for, 103. precedent, 98. And see Conditions oe Sale. CONDITIONAL CONTEAOT, 98. CONDITIONS OF SALE, clear, 145, 146. compensation {q. v.), as to, 63 — 65. ' forfeiture of deposit (q. v.), as to, 93. honest and fair, 146. misleading or linfair, 147. payment of inteeest (j. v.), as to, 140 — 143. restrictive, instances of and principles applicable to, 146, 147. •WHiFUIi DEFAULT (j. v.), aS to, 141 — 143. 160 INDEX. CONDUCT, abandonment or waiver by, 119. HARDSHIP {q. v.), in cases of, 104. misrepresentation, by, 114. propriety of, required in plaintiff, 16, 62. waiter of objection by, 117, 127. CONSENT, Ecclesiastical Commissioners, by, 90, 91. protector of settlement, by, 18. refusal of, 107. trustee in bankruptcy, of, 88. CONSIDEBATION, absence of, 16, 98. an essential part of contract, 30, 32. ascertainment of, 31. illegal, 106. ■ inadequacy of j 98, 105. proyeable by parol evidence, 33. CONSTRTJCTION, 116, 124. of CONDITIONS or SAIB (g. v.), 146. CONTENTS of memorandum, 29. CONTINGENT CONTEACT, 98. CONTINIIOUS ACTS, contracts involving, 15. CONTEACT, absolute, 98. acceptance, constituted by, 29, 110. actor, by, 51. admitted, 145. advowson, to sell, 62. agency, of, 52. agent, signed by, 30. annuity, relating to, 46. apprenticesMp, for, 52. arbitration, to refer to, 46. articles of merchandize, relating to, 14. barge, to sell, 66. binding at Law, 139. in Equity, 9, 13. "boundaries of Colonial lands, relating to, 20. breach, of trust, involving, 16. INDEX. 161 COWUBAGT— continued. building, 15. materials, for sale of, 26. business, for sale of, 48, 49. obarter-party, contEuned in, 47. chattels, for sale and delivery of, 47. circumstances precluding enforcement of, 17. compromise, for, 48, 54. conclusion of, 28, 110 — 112. conditional, 98. consideration for, 30*32, 53. Continental view as to enforcement of, 2. contingent, 98. continuous acts, involying, 15. copyholds, relating to, 25. corporation, by, 99. correspondence, constituted by, 27 — 29. DAMAGES {q. v.), satisfied by, 77. day, to let land for a, 14. debentures, to sell, 25. debt, to purchase, 48. definite works, providing for, 15. disentailing deed, to execute, 18. divisible, 104, 126. doubtful, 16. drawings, to supply, 51. essential terms of, 29 — 30. executed, 11. executory, 11. expectancies, dealing with, 48. family arrangement, by way of, 48. foreign land, relating to, 20, 23. formal, contemplated, 28. freeholds, relatmg to, 25. glebe land, for sale of, 90. goodwill, to sell, 48, 49. Government stock, relating to, 14. houses, for building, 15. illegal, 106. impracticable, 17. incomplete, 110. indenmify, to, 49. inequitable, 17. interest in law, relating to, 13, 19 — 22, 25. is consensus ad idem, 115. land, relating to, 13, 19—22, 80, 81. B. 11 162 INDEX. CO'NTBA.CT—conUnued. LEuids Clauses Act, under, 21. lease, lor, 21, 25, 32, YO, 71, 80, 81, 108. leaseholds, relating to, 25, 49. loan, for, 49. marriage, on, 50. medical prtictioe, to sell, 49. merchandize, relating to, 14. mines, for working, 15. money, to btJirow, 49. mortgage, to execute, 50. not performable as a wliole, 16. object of, 1. one-sided, 117. open, 121, 122. Parliament, not to apply to, 50. parol, 42. PAST PEETORMAWCE {q. V.) of, 38—44. partial execution of, 16, 76. partnership, to form, 50. assets, to assign, 25. patent, relating to, 51. personal, 85, 86, 88. acts, relating to, 13, 46, 51. property, relating to, 13, 46 — 56. services, for, 17, 51, 52. piecemeal, to be executed, 16, 104. proved partiy by writing and partly by parol, 43. public auction, on, 25. pubUo-house, relatiag_ to, 102. railway, for constructing, 16. registered land, relating to, 90. EBSCISSION (g. V.) of, 65. reversion, to sell, 62. separation, for, 53, 54. settlement, for, 50. several documents, contained in, 27. shares, relating to, 64, 65, 68, 107, 148. ship, to seU; 56, 66. sidmg, to make, 15. signature of, 33^ — 36. STATUTE OP PEAITDS (j. v.), affected by, 23 et aeq. stock, to sell, 14, 54. subject-matter of, 30. tenant in tail, by, 18. theatre, to sing at, 76. INDEX. 163 GONTBA.GT— continued. third person, intended to benefit, 89. to sell land, 31, 78, 82—85. trade, relating to, 48. unreasonable, 17. valuation, to sell at a, 31. variation of, 43. voluntary, ^6. works, for executing, 15. yearly tenancy, for, 14. CONTRACTING PASTY, name of, 30. CONVENIENCE, 99. CONVEYANCE, delivery or tender of, 149, 150. error discovered after execution of, 65. execution of, 121, 149. leasehold property, of, 123, 124. to third person, after contract to sell or let, 87. CONVEYANCING, &c. ACT, 1881, sect. 3. ..120, 122. sect. 4... 85. sect. 14... 123. COPYHOLD, contracts relating to, 25. excepted from Part I. of Land Transfer Act, 1897. . .83. omission to procure admissions to, 142. COEPOEATION, absence of seal of, 99. contract of, 99. ultra vires of, 125. ecclesiastical, 109. PAET PEBFOEMAlTCE (q. V.), -where, 99. stranger, contracting -with, 126. And see Compant. ' OOEEESPONDENCE, contract constituted by, 27—29. • COSTS, in discretion of Court, 137, 148. inquiry as to title, on, 148. reference to authorities on, 138. Statute of Frauds pleaded, where, 138. 11(2) 164 INDEX. OOTJNTEECLAIM, 94, 95, 112, 137. COUNTY COUET, case of tenaiit in possession under agreement, 22, concurrent jurisdiction of, 80, 81. COUNTY COUETS ACT, 1888, s. 67.. .81. COUET CHEISTIAN, 4. COUET OF CHANCEEY, doctrine of part performance in, 43. proteotire jnrisdiotion of, 52, 105. rule of, as to parties, 82. COUET OP CONSCIENCE, 3. COUET OF KING'S BENCH, 5. COUETS OF EQUITY, bound by Statute of Frauds, 36. jurisdicuon of, 8, 9, 139. rules of, 10. uniformity iu the decisions of, 8. COVENANT, action for breach of, 124. breach of, by lessee, 12, 123. giving option of purchase, 22, 87. implied, by vendor, 123. neglect of, 123. non-disclosure of, 114. performance of, 122 — 124. COYEETUEE a ground of defence, 99, 100. CUBIOSITIES, delivery up of, 47. DAMAGES, alternative claim for, 69. assessed by judge, 73, 136. ooMPENSAtioM- (j. V.) contrasted with, 67. complete remedy, -vmere, 14, 77. costs of investigating title, 72, 73. Court of Chancery long indisposed to give, 66. deceit, for, 72. INDEX. 165 DAMAGES— conWnMed, delay, for, 71, 73. deterioration, for, 71. illuBtrations of exercise of powers of giyiag, 70 — 72. inadequacy of, as a compensation, 4. , inquiry as to, 73, 136. Judicature Acts, under, 68 — 72. justice sometimes best done ty giving, 67. Lord Cairns' Act, under, 67 — 70. loss of bargain, for, 72. business profits, for, 71. tenant, for, SI. nominal, 70. non-buUding, for, 71. PAST PEEFOEMANOE {q. V.), by virtue of, 42. payment of, 73. rescission of contract, upon, 74. Vendor and Purchaser Act, under,_ 73. wbere specific performance impossible, 68, 69, 107. DATE, for completion, 102, 103. of commencement of lease, 32. DEATH, purcbaser, of, 83 — 85. sometimea puts an end to contract, 86. vendor, of, 82—86. DBBENTTJEES, contract to sell, 25. DEBT, contract to purcbase, 48. DEBTOES ACT, 1869, s. 6... 96. DECLARATION of Ken, 136, 137, 152. DEED, deposit of, in Court, 150. execution of, 50, 51. tender of, 150. DEFAULT in compliance with judgment, 148 — 152. in delivery of defence, 92. in payment ,of money, 149. of plaintiff, a ground of defence, 100. 166 INDEX. DEFECT, consisting in want of written evidence, 41. conveyance taken with notice of, 124. cuxable, 110. indemnity against, of title, 63. latent, 62. patent, 62. title, of, 120—125, 148. DEFENCE, 92—94. See PLKADHfa. DEFICIENCY in quantity, 64. in value, 58. DELAY, a ground of defence, 101. acceptance, in, 101. condition for payment of interest, where, 103, 140 — 142. DAMAGES {g. V.) for, 71, 73. excused, where purchaser in possession, 102. legal proceedings, in, 101. notice in case of, 103. occasioned by defendant, 102. performance; in, 101. plaintifE, by, 101. rescission on ground of, 119. shares, in case of contract to sell, 64, 55. speculative or fluctuating property, respecting, 101. TIME (j. V.) of the essence, where, 102. undue, 101. unreasonable, 101. vendor, occasioned by, 140 — 142. waiver of, 102. And see Time. DEPOSIT, alternative claim for, 93. ATJCTioifEER (q. V.) holding, 89. counterclaim for, 94. declaration of right to forfeit, 93. forfeiture of, 139. interest on, 139. Uen for, 137. of conveyance and title-deeds in Court, 150. payment of, by purchaser, 138. placing purchase-money on, 143. INDEX. 167 D'ETOSTH— continued. purposes of, 138. repayment of, 93, 94, 137—139. where title not forced on purchaser, but contract binding at Law, 139. DESOEIPTION, errors in, ,64. flourishing, 114. PARTIES (3, v.), of, 30. subject-matter, of, 31, 92, DESTETJOnON of subject-matter of contract, 107. DETBEIOfiATION, damages for, 71. yendor must not cause or allow, 121. DETIlSrUB, action of, 48. DEYELOPMENT of jurisdiction in specific performance, 3 — 12. DEYISEB a party, 82—85. DIAET, entry in, 26. DIEBCTOES liable as agents, 88. ultra vires, 125. DISABILirY to sell, 109. DISOLAIMEE by trustee in bankruptcy, 88. DISCLOSUEE of material facts, 103. DISCOVEET of material facts, 94. DISCEBTION OP OOUET, costs, as to, 137, 148. injunction, as to, 79. judicial, 9. remedy, as to, 147. DISENTAIL, contract to, 18. DISMISSAL OP ACTION, 131, 137, 147. 168 INDEX. DISPOSITION IN EQUITY, 18. DIVISIBLE CONTEAOT, 16, 104, 126. DOWER, 85. DOWER ACT, 1833, s. 6... 86. DRAWINGS, contract to supply, 51. DRUNKENNESS, 109. EASEMENT, parol agreement for, 44. ECOLBSIASTIOAL COMMISSIONERS, action by, 90, 91. ELECTION between dismissal and parol variation, 131. performance and damages, 3. to abide by contract after discovery of fraud, 104. to treat refusal to perform as a breach, 120. ELEGIT, writ of, 149. ENFORCEMENT OP LIEN, 91, 93, 151. EQUITABLE ASSIGNEE, 22, 87. EQUITABLE ESTATE, 84. EQUITABLE EIGHT to specific performance, 95. EQUITIES incidentally appearing, 95. resulting from res gestae, 39. EQUITY, foUows the Law, 9, 24. Lord Eldon on tiie doctrine of, 8. Selden's view of, 7. ERROR, admeasurements, in, 65. description of property, in, 64. discovered after conveyance, 65. particulars of sale, in, 64, 65. ESCROW, 149. INDEX. 169 ESSENTIAL TEEMS, non-perionnanoe of, 100, 102. of memorandum of contract, 30. ESTATE, description of, 31. equitable, passes by contract, 84, EYIDENCE, abandonment or waiver, of, 119, 129. affidavit, by, 147. closing of, 147. Common Law rule as to, 129. covenants, of performance of, 122. defect consisting of want of written, 41 — 42. fraud, of, 105. incompleteness of written, 110. on inqtury as to title, 147. on motion for judgment in default of defence, 92. PASOL (j. v.), in cases of PAkt PEKFORMAlfGE (j. v.), 39, 129. to ascertain parties, 30. to identify subject-matter, 31, 129. writing, 27^ 129. to prove consideration, 33. no contract, 133. omission, 116. Statute or Peaitds (g. v.), required by, 24. written, how furnished, 27. And see Paeol Vaeiation. EXECUTED CONTBACT, defined, 11. enforcement of, 12. EXECUTION, 149. for delivery of chattel, 48. of deed, 50, 51, 53, 149. EXBCUT0E8, contract for lease enforced against, 86. personal contract not enforced against, 86. And see Peesosal EbpbesentatiVi:. EXECUTOET CONTEACT defined, 11. EXPECTANCY, contract dealing with, 48. 170 INDEX. EXPECTANT HBIES, protection of, 52. EXTENT of itirisdictionin specific performance, 13 — 18. EXTEAOEDINAEY jimsdictioii in specific performance, 9, 139. FAIRNESS. See Haedship, 104, 105. FAMILY AEEANGEMENT, when specifically enforced, 48. FEE SIMPLE, interest of vendor presumed to be, 31. title to, 121. FELONY of plaintiff, 101. FIDEI L^BIO, 4. FIERI FACIAS, writ of, 149. FINES AND EECOVEEIES ACT, 1833, s. 47, dispositions nnder, 18. FOEEIGN LAND, contracts relating to, 20, 23. FOEFEITUEE, DEPOSIT (g. v.), of, 139. lease, of, 123. FOEMAL OONTEACT, acceptance subject to, 28, 29. letter contemplating, 28. FOUE DAY OEDEE, 150. FEATTD a ground of defence, 103, 104. action for deceit, in, 72. an exception from tie statute op featjds (q. v.), 36—38. defendant, of, 127. divisible contract, in case of, 104. election to abide by contract after discovery of, 104. groxind of relief in cases of part PEEPoaMAtfOE {a. v.), 38. INDEX. 171 PRAUD — continued. infinite in variety, 103. lack of -written evidence o^wing to, 37. misrepresentation, by, 112. not protected by Statute of Pkatjds {q. v.), 36, 37, 104. on tiie public, 104. plaintLffi or his agent, of, 103 price, evidenced by inadequacy of, 105. secret, 37. aUenoe may amount to, 103. strangfer, of, 103. vendor, of, 72, 103.' where no room for, 45. And see Pabol Variation. PEAUDS, STATUTE OF, 23—35. See Statute of Fbauds. FEEEBENCH, 85. PEEEHOLD, contract relating to, 25, 61, 84. EEESH term; introduced into acceptance, HI. ETJETHEE CONSIDEEATION, hearing on, 147. EUETHEE INSTEUMENT contemplated, 28, 29. GLEBE LAND, contract for sale of, 90. GOING CONOEEN, pubUo-house sold as, 102. GOODS, contracts relating to, 14. GOODWILL, contracts for sale of, 48, 49. QOVEBNMENT STOCK, contract to seU, 14, 54. GEOHNDS OF DSFENOB, ambiguity, 97. breach of trust, 97. condition or contingency, 98. consideration, absence of, 98. corporation, •want of seal of, 99. coverture, 99. default of plaintifE, 100. delay, 101. fraud, 103. 172 INDEX. GEOtJNDS OF DEFENCE— coraimttfd. fenerally, 97. ardship, 104. illegality, 106. impoasibility, 107. incapacity, 108. incompleteness, 109. indefiniteness, 127. infancy, 112. lunacy, 112. misrepresentatiou, 112. mistake, 115. mutuality, want of, 116. obscurity, 127. pleaded distinctly, should be, 93. tescission, 118. Statute of Frauds, 120. time, lapse of, 120. title, defect or want of, 120. uUra vires, 125. uncertainty, 127. vagueness, 127. HARDSHIP, a ground of defence, 104, 105. at time when contract entered into, 105. inadequacy of price, consisting of, 105. occasioned by defendant's own default, 105. speculative purchase, in case of, 105. subsequent event, arising out of, 105. where no impropriety of conduct, 104. HEIE, at law, 82—84. customary, 82 — 84. expectant, 52. HBIELOOM, deUvery up of, 47. HIGH COURT OF JUSTICE, 80. HIEING AND SEEVICE, contracts of, 17, 52. HOUSE, contract to build, and to accept lease, 70. toseU, 71. INDEX. 173 HUSBAND AND WIFB, ; oontraots between, 53, 109. separatiou of, 33. And see MATtBiED Woman ; Wifb. IDENTIPIOATION, parties, of, 30. Bubjeot-matter, of, 30—31. ILLEaAIiITT, a ground of defence,, 106. agreement to stifle a prosecution, 106. champerty, 106. plaintiff requiring commission of, 16. produced by subsequent statute, 106. trade union, in cases of, 106. where party has received consideration, 106, 107. IMPLIED TEEMS in contract to seU land, 31. IMPOSSIBILITY, a ground of defence, 107, 108. act of God, arising from, 108. arising from plaintiffs own act, 69. DAMAGES (9. V.) notwithstanding, 107. instances of, 107, 108. one altematiTO, of, 108. shares, of contract relating to, 54, 68, 107. INABILITY, of Court to superintend or enforce execution, 15. of plaintiff to perform his part, 108. of vendor to convey the whole, 62. INADEQUACY, of Common Law remedy, 4. of consideration or pricie, 98, 105. INCAPACITY, a ground of defence, 108, 109. ecclesiastical corporation, of, 109. infant, of, 108. intoxication, from, 109. married woman, of, 109. person of unsound mind, of, 109. personal or particular, 108. INCEPTION OF CONTRACT, circumstances connected with, 17. 174 INDEX. INCOMPLETENESS, a ^oTmd of defence, 109 — 112. evidence of contract, of, 110. negotiation, in cases of, 110. owing to defendant's own default, 110. INDEPINITENESS a ground of defence, 127. ■ INDEMNITY, COMPENSATION' (g. V.), Contrasted with, 63. contract for^ 49. defect of title, against, 63, purcliaser not compelled to take, 63. shares, by purchaser of, 137. ' ven,dor not compelled to give, 63. INFANT, children, custody of, 53. defence by, 112. heir of vendor, 85. INCAPACITY (q. V.) of, 108. mutuality, in regard to, 117. INJUNCTION, directing performance of positive terms, 76. ■discretionary, 79. hostility of Common Law tribunals to, 75. incidental to proceedings for enforcement of contract, 78. instrument for enforcing performance, 75, 78, 106. Lwmhy v. Wagner, in, 76. operates to enforce stipulations, 75, 106. partnership-deed, for enforcement of, 12. positive as 'weU as negative terms, where, 75. private Act, to restrain appKoation for, 50. restraining breach of negative terms, 76. improper dealiag with land, 78. the strong arm of Equity, 75. trade union, in case of, 106, trains, restraining running of, 78, 151. user of land, restraining, 151. INNOCENT MISREPEESENTAION (g. «.), 112, 114. sUence, 104. vendor afleoted by fraud of stranger, 103. INQUIET, DAMAGES {q. v.), as to, 73, 136. reiits, as to, 136. wilful default, on footing of, 136. INDEX. 175 INQTJIEY AS TO TITLE, adjudicatioii upon title {q. v.) in 120. admission of title, where, 145. affidavit evidence on, 147. certificate on, 147. common form of, 134, 146. costs on, 148. difference tetween ahmring and making a title on, 147. directed by judgment, 134, 144 — 148. further opportanity allowed, when, 148. no room for, where„145. not confined to cases relating to real or leasehold pro- perty, 148. ohtainable on interlocutory application, 144. precluded, 146. regard had to stipulations in the contract on, 146. restricted by conditions of sale {q. v.), 146. shares in mining companies, where contract related to, 148. should be applied for at earliest opportunity, when, 144. time (j. v.) for making out title on, 147. title only in question, where, 144. variation of certificate on, 147. vendor and purchaser summons, on, 144, 145, 147. waiver of right to, 145. where points in dijgpute upon title decided at trial, 145. ESrSANITY. See Lotatio. INTENTION, of defendant, 16. of signatory, 33. to have a formal contract, 28. INTEEBST, condition for pajrment of, 103, 140, 143. deposit (g. «).), on, 137, 139. description of vendor's, 31. more in amount than the rents, 140. no stipulation with respect to, where, 139, 140. rate of, 140. unpaid purchase-money, on, 140 — 143. when not given to vendor, 140, 141. where purchase-money appropriated, 143. WTLniL default [q. v.), effect of, 141 — 143. INTEEEST IN LAND, contracts relatiag to, 13, 19—22, 25., 176 INDEX. INTEEPEETATION of contract, 116. INTOXICATION of a contractiiig party, 109. INVESTMENT of purohaae-money by purchaser, 143. lEBLAND, jurisdiction in specific performance in, 2. sale of holdings in, 81. JOBBER, 55. JUDGMENT, acceptance or establishment of title, after, 135. action, in, as distinguished from petition, 83. affecting third person, 90. compensation or abatement, for, 136. conmtional, 149. contract for lease, enforcing, 136. form of, 134—137. in default of defence, 92. iwatriRT AS TO TITLE (j. V.), directing, 144 — 148. non-compliance with, 148 — 152. performance -with parol variation, for, 131. proceedings after, 144 et seq, purchaser plaintiff, where, 134 — 136. return of deposit, for, 137. transfer of shares, where contract for, 136, 137. vendor plaintiff, where, 134—137, 149—152. vendor's lien,, declaring, 136. JTJDIOATUEE ACTS, damages under, 68 — 72. doctrine of part performance not extended by, 43. JUDICIAL OPINION, fluctuations of, 7. JURISDICTION, County Courts, of, 80, 81. damages, as to, 67 — 72, development of, in specific performance, 6. discretionary, 19. double, 139. excluded by statute, 18. extent and limits of, 13 et seq. extraordinary, 9. INDEX. 177 JURISDICTION— confenued. in specific performance considered a usurpation, 3. iNJXJNOTioiir (a. v.), as to, 79. jealousy of Onancery, 5. limited by principles and rules, 8. LoKD Oatens' Act {q. v.), under, 67, 79. Mayor's Court, of, 81. prima facie case for exercise of, 13. protective, of Court of Chancery, 52. traceable to reign of Sicliard 11., 5. KNOWLEDGE of possession taken, 40. LAND, contracts relating to, 13, 19 — 22. unsaleable, 131. LAND TEANSPEE ACT, 1897... 83— 85. LANDS pLATJSBS CONSOLIDATION ACT, 1847, quasi-contracts under, 21. LAPSE OE TIME, 120. LEASE, iassigmnent of agreement for, 86. contract to accept, 70, 71, 86, 118. date of commencement of, 32. essential terms of contract for, 32. executors, contract for enforced against, 86. expiration of, before trial, 108. length of term of, 32. not duly granted, 122. performance of covenants in, 122. renewed, 118. surrender of, 72. LEASEHOLD, contract relating to, 25, 49, 85. conveyance of, 123, 124. death of vendor or purchaser of, 85. sale of, 122. LEGAL ESTATE, obtaiued for value and without notice, 87. transfer of, 85. vesting of, 83, 85. 12 178 INDEX. LEGAL PERSONAL EEPEESENTATIVE. See Pebsonai Eepbesentativi:. LESSEE, covenants of, 122 — 124. defence by intended, 98. option of renewal, exercising, 118. LBSSOE bound by exercise of option to renew, 118. LETTEE and envelope, 27. contract constituted by, 27 — 29. may satisfy Statute of Frauds, 26. subsequent to conclusion of contract, 28. LETTBES PATENT, contract for sale of, 51. LICENCE, refusal of, 107. LIEN, declared by judgment, 136, 152. enforcement of vendor's, 91, 136^ 151, 152. purchaser's, for deposit, 137. LIMITS of jurisdiction" in speoifio performance, 13 — 18. LIS PENDENS, aciion registered as, 137. LITHOaEAPHY, 26. LOAN, contract for, 49. LOED CAIEN8' ACT, Sect. 2, damages under, 67 — 70. quoted, 67. repeal of, 70. LOSS, of bargain, 72. of businessTprofits, 71. of tenant, 71, 121. LUNATIC, defence by, 87, 112. incapacity of, 109. party to action, 87. INDEX. 179 MAECHES COUET OP WALES, 5. MAEEIAGE, agreements upon, to be evidenced by -writing, 41. children of, may sue for execution of settlement- trusts, 89. not PAUT PEEFOBJIAlfCE (j. ■!;.), 41. performance of contract on, for settlement, 50. MAEEIAGB AETICLES, enforcement of, 50. MAEEIED WOMAN. " contracts of, 53, 99, 100, 109. defendant, 99. incapacity of, 109. - litigatiug -with husband, 53, 109. MAEEIED WOMEN'S PEOPEETY ACTS, 1882, 1893, 99—100. MASTEE, certificate as to title by, 134, 147. MATEIMONIAL SUIT, compromise of, 53. MAXTMS, ^quiiaa agit in personam, 20. .Delegatus non potest delegare, 35. Equity follows the Law, 24. Id certwm est quod cerium reddi potest, 31. Nemo potest proEcise cogi ad factum,, 2. MAYOE'S COUET OP LONDON, action on Equity side of, 81. MEDICAL PEAOTICE, contract for sale of, 49. MEMOEANDUM, contents of, 29. indication of contracting parties in, 30. omission from, 130. BIGKATURE {q. V.) of, at auction, 35. And see Statote OF Peauds. MEECHANT SHIPPING ACT, 1894.. .55. MINES, contract to work, 15, shares in companies for working, 148. 12 (2) 180 INDEX. MISDESCRIPTION, particulars of Bale, in, 64. patent, 62. MISEEPEBSBNTATION, a ground of defence, 112 — 114. acreage, as to, 114. agent, by, 112, 114. careless, 112. conduct, by, 114. false, 112. innocent, 112, 114. material, 112. means of knowledge of, 112, 113. reliance on, 112, 113. BEBCissiON (g. v.), a ground for, 112. silence may amount to, 117. where defendant knew tbe truth, 113. MISTAKE, a ground of defence, 115, 116. common, 115. construction of contract, as to, 116. defendant or his agent, of, 115. iaduced by plaintifi or his agent, 115. not induced by other party, 116. of law or of fact, 115. omission of term, consisting of, 115, 116. < particulars of sale, in, 64. person contracted with, as to, 115. where not a defence, 115. And see Pabol VaeiATIOIT. MONET, contract to lend and borrow, 49. to secure advance of, by mortgage; 50. default ia payment of, 149. MOETGAGE, contract to execute, 50. MOETGAGEB of ship, 56. MUTUALITY, generally requisite, 116. infant suiug, where, 117. no title, where, 117. option exercised, where, 118. INDEX. 181 MUTUALITY— eontinued. original absence of, cured, 117, 118. Statute of FsAUDa (g. v.), in case -within, 117. time of contract, at, 116. waiver of, 117. want of, a ground of defence, 116 — 118. owing to defendant's default, 117. wtere Vendor unable to perfoim substantially, 117. NAME of party, 30. NE EXEAT, writ of, 95, 96. NEGATIVE TERM, enforced by INXOKCIION (g. v.), 75, 76, 77. express, 76. implied, 76, 77. NEGOTIATION, authority of agent Hmited to, 34. falsehood daring, 113. stage of, 110. NEW TEEM in acceptance. 111. NON-COMPLIANCE WITH JUDGMENT, 148—152. NOTE of contract, 29. NOTICE, aJlotinent, of, 111. appropriation pf purchase-money, of, 143. exercising option, 118. _ fixing time for completion, 103. of defect, conveyance taken with, 124. NOTICE TO TEBAT, 21. NOVATION in cases of sales on Stock Exchange, 119. NUDUM PACTUM, 16. OBLIGATION of vendor under open contract, 121—123. OBSCUEITY aground of defence, 127. 182 INDEX, OCCUPATION of tenant at time of contract, 121. OFFER, and ACOEPTAITCE {q. V.), contract constituted by, 29, 101, 110. parol acoeptaaoe of, 34. withdrawal of. 111. And see Acceptanoe. OMISSION, disentitling plaiatifi to relief, 101. proof by parol of, 116. tenant for Ufe, by, 100. term of contract, of, 115, 116, 130. to procure admissions to copyholds, 142. OPEN CONTEAOT, 'for sale of freehold land, 121. leasehold house, 122. OPTION, of performance in either of two modes, 108. purchase of, 22, 87. renewal of, 118. OEDEE, . absolute, 149, 150. fixing time and place for payment, 148, 149. for enforcement of lien by sale, 151. four-day, 150. payment to plaiatifi or into Court, for, 149 — 151. rescinding contract, 152. staying proceedings, 152. supplemental to judgment, 150. vesting, 152. OEIGIN of jurisdiction in specific performance, 3 — 12. OUTGOINGS, payment of, 121. OWNEESHIP, 39—41. See Acts op Ownership. PAELIAMENT, construction of Acts of, 124. contract not tp apply to, 50. INDEX. 183 PAEOL, ACCEPTANCE {q. v.), 34. agreement for easement, 44. to rescind, 118. to vary contract, 131. ascertainment by, of consideration, 33. of purchaser, 30. of vendor, 30. " contradiction by, of -written contract, 129. contract partly performed, 38. to sell shares, 54. evidence of omissian, 116. identification by, of subject-matter, 31. modification of ■written contract, 42. plain and distinct proof of contract by, 42. proof that there was no contract, 133. And see Evidbnce. PAEOL VAEIATION, collateral circumstanoes warranting 130. contract enforced with, 131. in cases of fraud, mistake, or surprisej 130. election between, and dismissal of action, 131. Lord St. Leonards on, 132. no part performance, where, 132. parties at cross-purposes, where, 130. at one, but material term omitted, where, 130. set up by defendant, 131, 132. by rfaintiff, 132. Statute of Frauds, in cases within, 131. submission to perform omitted term, where, 131. where contract partly performed, 42. where something by parol of the essence, but not ex- pressed, 130. . PAETLAL EXECUTION of contract, 16, 76. PAETIOTJLAES OP SALE, mistakes or errors in, 64. PAETIES, AGENT (j. v.), 88, 89. assignment, after, 86. auctioneers, when made, 88. cestui que trust, 89. charged on equities resulting from acts done, 38. children, 89. ■ conveyance, to, 121. 184 INDEX. VARTmS— continued. DEATH (3. v.] of, 82—86. descriijtioii of, 30. Ecclesiastical Oommissioners, 90, 91. general rtile as to, 82. lease, in contract for, 32. ^unatic and committee, 87. names of, 30. party to be charged, signature by, 33. personal representative of pttrchaser, 82 — 86. of vendor, 82—86. third persons, 89, 90. trustee in bankruptcy, 87, 88. ■who have not signed, actions by, 33, 34. PAETNEESHIP, contract to form and carry on, 60. enforcement of stipulations in deeds of, 12. execution of deed of, 50, 51. share, of assets of, contract to assign, 25. PAET PAYMENT, deposit goes in, 138. not treated as pabt PEEroKMANOE (j. v.), 41. PAET PBEEOEMANCB, acts of, 39--41. an exception from the Statute of Ehattds (g". v.), 38- 44. ancillary act, not by, 41. consideratioD not expressed in writing, where, 33. doctrine of, coeval with Statute of Erauds, 39. not extended by Judicature Act, 1873... 43. expenditure of money, 40. ERATJD (g. v.), its connection with, 38, 40, 127. ground of relief , in cases of, 38. High Court, in the, 43. - ' introductory act, not by, 41. land, in cases of contracts relating to, 13, 44. limits of doctrine of, 39, 43, 44. modification of written contract after, 42. not a panacea, 42. parol agreement for easement, ia case of, 44. partnership, of contract for, 50. presupposes a complete contract, 42. referable to the contract alleged, 40. requisites df, 40. INDEX. 185 PAET PBEFOEMANCE— con