doctrines of the court as to the consideration which permeates (7) contracts in relation to marriage settlements must be borne in mind in relation to the foregoing statement.

§ 93. In the case of contracts for the purposes of pleasure, scientific pursuits, charity, or philanthropy, it has been said (m) that "no court of justice can interfere, so long as there is no property the right to which is taken away from the person complaining."

9. Where the plaintiff has elected to proceed in some other manner than for specific performance.

§ 94. Where a plaintiff proceeded at common law and recovered damages for breach of the contract, he could not afterwards sue in equity for its specific performance. (n) But, of course, it was not every proceeding at common law under a contract which barred its specific performance in equity.(0) This, result was effected only where the legal and equitable relief were in respect of the same thing.

§ 95. In Swinfen v. Swinfen, (p) Knight Bruce, L. J., seemed to think that the fact of applying to the court of common pleas for an attachment to enforce a contract to compromise would stand in the way of the applicant afterwards suing in chancery for performance of the same contract. And in Blackett v. Bates (2) Lord Cranworth intimated the opinion that a party to an award could not, after unsuccessfully taking proceedings to set it aside, insist on having it specifically performed. But in a case already referred to, a negotiation for the payment of a money compensation which went off was held not to be an election which precluded the relief in specific performance. (7)

§ 96. In a case where a railway company was entitled to enforce a contract as to the sale of lands entered into by the defendant with the promoters of the company, the company first took proceedings under the lands clauses consolidation act for a compulsory purchase, then took compulsory possession of the land by virtue of a bond, and lastly

(1) Cf. infra, § 180, and Re D'Angibau, 15 Ch. D., 228, 242. Consider Lee v. Lee, 4 Ch. D, 175.

(m) Per Jessel, M. R., in Rigby v. Connol, 14 Ch. D., 487.

(n) Sainter v. Ferguson, 1 Mac. & G., 286; cf. Fox v. Scard, 33 Beav, 327.

(0) North v. Great Northern Railway Co., 2 Giff., 64.

(p) 2 De G. & J., 381, 391.

(g) L. R. 1 Ch., 126.

(r) Greene v. West Cheshire Railway Co., L. R. 13 Eq., 44.

filed their bill for specific performance of the contract. It was held that they had taken the benefit of sections of the lands clauses consolidation act to which they were not entitled if a binding contract subsisted, and their bill was dismissed. (s)

§ 97. It is conceived that the principle embodied in the case last cited will continue to be observed by the supreme court.(t) But so far as the form of the proceedings is concerned, the right of claiming alternative(u) relief, and the wide powers of amendment() exercisable under the new practice, will in all proper cases enable a plaintiff to obtain relief by way of specific performance, provided that the facts proved and the rest of his claim as presented or insisted on at the trial are not inconsistent with such relief. (w) 10. Where the jurisdiction has been taken away by statute.

§ 98. By section 47 of the fines and recoveries abolition act (3 and 4 W. IV., c. 74), the jurisdiction of courts of equity in regard to the specific performance of contracts is altogether excluded in cases of disposition of lands under that act by tenants in tail. (x)

11. The jurisdiction is against the defendant personally. § 99. The jurisdiction in specific performance is against the person of the defendant on the equity arising from the contract. This principle is fertile in results.

§ 100. One result is, that where the defendant is a person over whom the tribunals of this country have no jurisdisdiction, there can be no relief. Hence no specific performance can be awarded against a foreign government of a contract entered by such government with a private person. (y)

§ 101. Another result of this principle is, that it constitutes no objection to specific performance, that the subject-matter with which the contract deals was not originally within the jurisdiction of the court, as the contract itself may give the court jurisdiction in specific performance, as

(8) Bedford and Cambridge Railway Co. v. Stanley, 2 J. & H., 746.

(t) See Thompson v. Ringer, W. N. 1881, 48, infra, § 1106.

(u) Ord. XIX, r. 8.

(v) Ord. XXVII, Ord. LVIII, r. 5.

(w) Cf. Cargill v. Bower, 10 Ch. D., 502, 508; Newby v. Sharpe, 8 Ch. D., 39.

(x) As to the specific performance of contracts to disentail, cf. Petre v. Duncombe, 7 Ha., 24; Dering v. Kynaston, L R. 6 Eq., 210. (y) Smith v. Weguelin, L. R. 8 Eq., 198.

well as in damages. The original jurisdiction in respect of the boundaries of our plantations in North America resided in the king in council; but a contract respecting them having been entered into between adjoining proprietors was held by Lord Hardwick to give the court jurisdiction;(z) and on the same principle, although the court has no jurisdiction in matrimonial causes, yet, where there has been a contract or covenant, it may interfere to enforce the execution of a proper separation deed, or to restrain the breach of a covenant contained in it. (a)

§ 102. This introduces to our consideration the subject of foreign contracts.'

The general principle which regulates the place for the enforcement of contracts is, it is conceived, expressed in the maxim "actio sequitur forum rei."(b) It follows from this that a contract made abroad may be enforced against a defendant within the jurisdiction of this country, and as the remedies for breach of a contract are clearly governed by the lex fori, or law of the place where the action is brought, (c) it follows that it is no objection to the specific performance in England of a foreign contract that the foreign law might have given no such remedy.

Accordingly a marriage contract made in France was specifically executed here, the parties to it having come to this country as refugees. (d)

§ 103. This jurisdiction is not confined to cases of contracts relative to personal property, but extends to those

(z) Penn v. Lord Baltimore, 1 Ves. Sen., 444 Consider Norris v. Chambres, 3 De G. F. & J., 583 (affirming S. C., 29 Beav., 246). (a) Wilson v. Wilson, 1 H. L. C., 538; S. C., 14 Sim., 405; 5 H. L. C., 40.

(b) Davis v. Park, L. R. 8 Ch., 862.
(c) Story's Conflict of Laws, § 556.
(d) Foubert v. Twist, 1 Bro. P. C., 129.

1 Foreign contracts.] Equity will decree specific performance of a contract, notwithstanding the subject was not originally within the jurisdiction of the court; the relief is not restricted to personal contracts, but extends to real estate when the parties reside within the jurisdiction, or are temporarily within such jurisdiction, and are served with process. Massie v. Watts, 6 Cranch, 158; Watkins v. Holman, 16 Pet., 25; Sutphen v. Fowler, 9 Paige's Ch., 280; Stainsburg v. Fringer, 11 Gill. & Johns., 149; Wood v. Warner, 15 N. J. Eq., 81; Olmey v. Eaton, 66 Mo., 563; Orr v. Quinn, 2 Law Repts. (N. C.), 465; Cleveland v. Burrell, 25 Barb., 532; Dooley v. Watson, 1 Gray, 414; McGreggor v. McGreggor, 9 Iowa, 65; Renn v. Hayward, 14 Ohio St., 302; see, however, Peter v. Worthington, 14 Ala., 584; Čarter v. Jordon, 15 Ga., 76; Smith v. Iverson, 22 id., 190; Akin v. Lloyd, 28 Ill., 331; Birchard v. Cheever, 40 Vt., 94. In Wisconsin, in an action to enforce specific performance of a contract to convey land-Held, that the bill might be filed in any court in the State. Burrill v. Eames, 5 Wis., 260.

relative to real or immovable property, where the defendant is within the jurisdiction of the court. The maxim is "Equitas agit in personam," and any operation of the judgment on the immovable estate abroad is not direct but indirect, and only through the medium of the person affected by the judgment. Thus, where Sir Philip Cartaret, the owner of the island of Sark, had mortgaged it, and a bill was brought against him by the mortgagee for foreclosure, a plea put in by the defendant that the island was not within the jurisdiction of the court of chancery was overruled.(e)'

§ 104. But the court has been careful to confine its jurisdiction to relief arising strictly from privity of contract: it has nothing to do with rights arising from privity of estate in any other country.(ƒ) So in Norris v. Chambres(g) the court declined to enforce a lien on foreign real estate, though the parties were residing here, and the defendant had taken the estate with notice of the contract from which the lien was sought to be raised.

§ 105. It has been said by Mr. Justice Story, (h) that "the doctrine of the English courts of chancery on this head of jurisdiction seems carried to an extent which may perhaps in some cases, not find a perfect warrant in the general principles of international public law." And Lord Romilly, M. R., in the case last cited, adopting this remark, . expressed his disposition not to go a step further than the cases warranted and demanded.(i)

§ 106. It remains to notice a case in which the court of chancery granted relief with a view to specific performance against a defendant not within the jurisdiction.(j) In that

(e) Toller v. Carteret, 2 Vern., 494. See, too, Comes Arglasse v. Muschamp, 1 Vern., 75; Jackson v. Petrie, 10 Ves., 164; Lord Portarlington v. Soulby, 3 My. & K., 104, 108; Story Eq. Jur., § 743.

(ƒ) Vincent v. Godson, 4 De G. M. & G., 546. See, too, the argument in Innes v. Mit chell, 4 Drew., 57, and the cases collected in the note, p. 99.

(g) 29 Beav., 246; 3 De G. F. & J., 583.

(h) Conflict of Laws, § 544 (2d ed.).

(i) See further, as to land in the Colonies, Re Holmes, 2 J. & H., 527; Sichel v. Raphael, 3 N. R., 662; Reiner v. Marquis of Salisbury, 2 Ch. D., 378; and cf. per Jessel, M. R., in Norton v. Florence Land and Public Works Co., 7 Ch. D., 335.

(j) Hart v. Herwig, L. R. 8 Ch., 860. Distinguish Rowney v. Alder, before Pollock, B., as Vacation Judge, 24 Sól. Jo, 807.

'It has been decided, in New York, that a court of equity may compel the specific performance of a contract to purchase land, though such contract was both made and to be performed, and the land lies within a foreign jurisdiction, provided that the defendant has been duly served with process and subjected to the jurisdiction of the court. Cleveland v. Burnell, 25 Barb., 532; Newborn v. Bronson, 3 Kern. (N. Y.), 587.

case Hart, a domiciled Englishman, agreed at Hamburg with Herwig, domiciled at Hamburg, for the purchase of a ship to arrive from San Francisco, for a certain sum liable in the event of certain damage to an abatement. The ship arrived in this country. The plaintiff claimed the abatement, the amount of which he alleged could be ascertained by a survey, which Herwig and the master refused, and declined to complete except on payment of the full price. The bill was against Herwig and the master, and prayed specific performance and an injunction against removing the ship. This injunction was granted by Malins, V. C., and upheld by James and Mellish, L. JJ. Their Lordships drew a distinction between an action for damages and the suit. If it had been the former, it was said that the action must have been in the forum of the defendant. "But where," said James, L. J., "the contract as in this case, though made abroad, is to deliver a thing in specie to a person in this country, and the thing itself is brought here, then the court here, in the exercise of its discretion, will see that the thing to be delivered in this country does not leave this country, so as to defeat the right of the plaintiff to have it so delivered."(k) The law thus laid down seems to create an exception to the general principle of international law, which requires the plaintiff to seek the defend.ant and to sue in his forum. The decision is remarkable, but it has the authority of three unanimous judges.

12. Quasi-contracts in respect of which the court has jurisdiction.

§ 107. There is a class of quasi-contracts in respect of which the court entertains jurisdiction, viz.: where the relationship of vendor and purchaser is constituted by the exercise of those compulsory powers of railway and other companies which are conferred by the lands clauses consolidation act, 1845, and similar statutes. They are here called quasi-contracts, because when the proceedings are strictly under the statute there is an absence on the part of the man whose land is taken of that volition, which seems an essential element in all true contracts.

(k) Page 864.