§ 2. This treatise being devoted to a discussion not of contracts in general but of one particular method of giving relief in respect of them, it is not proposed here to enter into the numerous points which arise upon the above definitions. Many of the points which would require attention in such a discussion will be found treated of under the head of the defenses which may be raised to an action for specific performance. That mode of treatment, if less logical, is, it is conceived, more practically useful for the purposes of this treatise than entering upon a general discussion of the nature of contracts.

§ 3. The specific performance of a contract is its actual execution according to its stipulations and terms; and is contrasted with damages or compensation for the non-execution of the contract. Such actual execution is enforced under the equitable jurisdiction vested in the courts of this country by directing the party in default to do the very thing which he contracted to do, and, in the event of his disobedience, by treating such disobedience as a contempt of court and visiting it with all the consequences of such contempt, including committal to prison; (d) and in some cases by doing in one way the thing which the defaulter was directed to do in another way, as, e. g., by vesting by an order of the court an estate which ought to have been vested by conveyance of the party. (e)

§ 4. From every contract there immediately and directly results an obligation on each of the contracting parties towards the other of them to perform such of the terms of the contract as he has undertaken to perform. And if the person on whom this obligation rests fail to discharge it, there results in morality to the other party a right at his election either to insist on the actual performance of the contract or to obtain satisfaction for the non-performance of it.(ƒ)

§ 5. When we consider how large a part in the affairs of modern society is played by contracts and the resulting rights and obligations, and how plainly the right to insist on the actual execution of contracts flows from their very nature, it is at first sight a remarkable circumstance that no

(d) Seton, 1328, 1563, et seq.

(e) See infra, § 1151.

() Austin's Jurisprudence (3d ed.), 65.

system of jurisprudence, except that administered by the courts of equity in England and its past or present colonies, has ever attempted directly to enforce the actual performance of contracts in their very terms. And yet such is, it is believed, the case. (g)

§ 6. It is certain that the Roman law gave a title to damages as the sole right resulting from default in performance, and did not enforce specific performance directly or in any other manner than by giving such right to damages. It held to the maxim, "Nemo potest præcise cogi ad factum.”(h)

§ 7. In like manner the common law of England made no attempt actually to enforce the performance of contracts, but gave to the injured party only the right to satisfaction for non-performance.

§ 8. Perhaps it is to the recent growth in most societies of contract as compared with status, custom, and imperative law that the want in question is to be referred. Sir Henry S. Maine has shown, in his work on Ancient Law, (i) how slow was the introduction into jurisprudence of any provision for the enforcement of contracts, and how that introduction was due to the increase of commercial activity. The same spirit of commerce which led to the enforcement of contracts, also brought in the notion that money is an equivalent of everything—is an universal common measure; and this, coupled with the simplicity of early contracts and the difficulty attendant on the specific performance of complicated ones, probably led to the arrested growth of the remedies for their breach and the confining of such remedies for the most part to the payment of money or the delivery of a chattel.

§ 9. There were, it appears, ancient systems of law which refused all assistance to the enforcement of contracts on the ground that they ought only to be entered into with those whose honor could be trusted; such was, it is said, the principle adopted by Charondas and the ancient Indians. ()

§ 10. Though the courts of common law never enforced the specific performance of contracts, there were certain

(g) See further infra, 669.

(4) See Pothier, Tr. des Oblig., pt. I, ch. 2, art, 2, § 2.

(1) Ch. 9. In ancient Egypt and Assyria contracts seem to have played a very import ant part. (See for the former 1 Wilkinson's Ancient Egyptians, 312 et seq. [ed. 1878]; and

for the latter The Assyrian Private Contract Tablets, translated by the Rev. A. H. Sayce, in 1 Records of the Past, 137 et seq.) In the view of comparative history, Egypt and Assyria both reached the stage of modern history at a very early period of the world's life. (j) Holland, Jurisp., 174.

cases in which they made near approaches to it, and these it will be well briefly to consider. They were cases:

(1) Where a public duty arose from a private contract. (2) Where the contract was for the delivery of a chattel. (3) Where the contract was for the payment of a sum of money.

(4) Arising on covenants real.

§ 11. (1) The object of the prerogative writ of mandamus is the enforcing of public duties. Before the judicature acts, (k) if A. had by the deed of settlement of a company, entered into a contract with that company, or with trustees for it, or with his fellow shareholders, that a company should be formed and conducted in a specified manner, including, for instance, provisions for the registration of transfers of shares, and if this deed of settlement had been confirmed by royal charter and the company had made default in registering a transfer, whereby A. was injured, in such a case the prerogative writ of mandamus would have lain in the Court of Queen's Bench, and the public duty of the company which resulted from the contract contained in the deed of settlement would have been enforced at the suit of A.(7) Here the contract would not have been specifically enforced; but a public duty flowing in part from the contract would have been performed.

§ 12. In addition to the old prerogative writ of mandamus, there is a statutory writ under the 68th section of the common law procedure act, 1854, which provides for the issue of "a writ of mandamus compelling the defendant to fulfill any duty in the fulfillment of which the plaintiff is personally interested." It was naturally suggested that this power authorized the courts of common law to grant specific performance of contracts by means of the statutory writ; but in the case of Benson v. Paull, (m) the Court of Queen's Bench declined specifically to enforce a contract for a lease, and determined that the provision of the act did not apply to the duty arising from a personal contract. To this opinion the same court adhered in the subsequent case of Norris v. The Irish Land Co.,(n) and it was regarded as settled that

(k) See now Jud. Act, 1873, § 25 (8); Re Paris Skating Rink Co., 6 Ch. D., 731.

(1) Norris v. Irish Land Co., 8 El. & Bl.,

(m) 6 El. & Bl., 273.
(n) 8 El. & B1, 512.

the courts of common law could not by means of the writ of mandamus enforce the actual execution of contracts which resulted in private rights only and not in duties in which the public were interested.

§ 13. (2) Before the passing of the common law procedure act, 1854, it was a matter of question whether in detinue the delivery of the specific chattel could be obtained if the defendant chose to pay the damages assessed instead of delivering up the chattel; but all such doubts are removed by the 78th section of that act, which provides that "the court or a judge shall have power, if they or he see fit so to do, upon the application of the plaintiff in any action for the detention of any chattel, to order that execution shall issue for the return of the chattel detained, without giving the defendant the option of retaining such chattel upon paying the value assessed." (o)

§ 14. If a contract were entered into between A. and B. for the delivery by B. of a certain chattel on payment of a certain sum by A., and A. made the payment but B. refused to deliver the chattel, an action for its detention would lie in a court of common law at the suit of A., and at his election execution might issue for the return of the chattel. This looks very like a specific performance of the contract, but was not such in fact. The complaint of A., in the case supposed, was not that the contract had been broken, but that the chattel had been detained. He did not aver that the contract ought to be performed and that the chattel ought to be made his; but he alleged that the contract had been performed, and that therefore the chattel was his, and the defendant's detention wrongful. In short, the contract came into controversy, if at all, only as the title of the plaintiff.

§ 15. (3) Lord Mansfield, C. J., has remarked that "pecuniary damages upon a contract for payment of money are, from the nature of the thing, a specific performance." (p) But the remark seems hardly strictly accurate. No doubt the sum agreed to be paid will be the measure of damages, and the amount paid will be the same whether the contract be performed or broken. But in the former case the money

(0) Cf. Ord. LII, r. 6.

(p) In Johnson v. Bland, 2 Burr., 1086.

is paid in performance of the contract; in the latter case it is paid as satisfaction for its non-performance. It is evident that the consequences of the two payments would, therefore, be different.

§ 16. (4) According to the old common law, a covenant by A. to convey lands to B. (which was called a covenant real) could be enforced by a special writ of covenant, which was in the nature of a specific performance of that covenant. The writ was to the sheriff to command A. that he keep his covenant with B.; and the relief for non-performance was not in damages but by means of a præcipe quod reddat of the land in question. This writ of covenant was the commencement of proceedings in fines before their abolition.(g)

§ 17. In one case the ecclesiastical courts exercised a jurisdiction in the nature of specific performance. When man and woman had entered into a marriage contract per verba de præsenti, one refusing might be sentenced by the ecclesiastical court to celebrate the marriage in facie ecclesiæ accordingly, and for refusal to obey might be excommunicated and imprisoned on a writ de excommunicato capiendo until he or she submitted to obey the ordinary; and a like jurisdiction was exercised in the case of contracts per verba de futuro, though the process for contumacy was in certain cases different. (r) But by the statute 26 Geo. II, ch. 33, s. 13, and afterwards by statute 4 Geo. IV, ch. 76, s. 27, this jurisdiction of the ecclesiastical courts was abolished.

§ 18. From what has been already said, it appears that the origin of this branch of equitable jurisdiction is not to be sought in the Roman law. Perhaps it is rather to be found in the ecclesiastical or canon law, which seems to have recognized the obligation of actual performance of the terms of the contract. The decretals of Gregory, under the title De Pactis, contain a chapter, headed "Judex debet studiose agere ut promissa adimpleantur," in which it is laid down, "Studiose agendum est ut ea quæ promittuntur

(9) Fitzh. Natura Brevium, "Covenant to Levy a Fine;" 3 Bla. Com., 156.

(r) 2 Burn's Eccl. Law (1st ed.), Marriage, ch. 2, p. 5. In the Maid of Honor Massinger

makes his heroine sue to the king for the specific performance of a written contract to marry her.

1 Rule where contract is executed.] The specific performance of contract may be refused by a court of equity, which it would not set aside if executed. Jackson v. Ashton, 11 Peters, 229; Clitherall v. Ogilvie, 1 Dessans Eq., 250; Barksdale v. Payne, Riley S. C. Ch., 174; Seymour v. Delancey, 3 Com., 445.