specific performance of his contract to sell registered land or a registered charge are to be taxed as between solicitor and client, and, unless the court otherwise orders, paid by such vendor.(r) § 1111. How far the summary jurisdiction conferred by the 35th section of the companies act, 1862, is properly applicable to the enforcement of contracts for the sale and purchase of shares is a question which has been much discussed, but can hardly be said to be even now satisfactorily settled. That section provides that if the name of any person is without sufficient cause entered in or omitted from the register of members of a company under the act, or if default is made or unnecessary delay takes place in entering on the register the fact of any person having ceased to be a member of the company, the person or member aggrieved may apply by motion or summons for an order of the court that the register may be rectified, "and the court may either refuse such application, with or without costs. to be paid by the applicant, or it may, if satisfied of the justice of the case, make an order for the rectification of the register, and may direct the company to pay all the costs of such motion, application, or petition, and any damages the party agrieved may have sustained. The court may, in any proceeding under this section, decide on any question relating to the title of any person who is a party to such proceeding to have his name entered in or omitted from the register, whether such question arises between two or more members or alleged members or between any members or alleged members and the company, and generally the court may in any such proceeding decide any question that it be necessary or expedient to decide for the rectification of the register." § 1112. The enactment may seem at first sight to offer an attractive and efficient substitute for an action for specific performance in cases arising out of contracts for the sale of shares, but the decisions upon it show that its applicability in practice to such cases is by no means universal. The jurisdiction which it confers is clearly discretionary; and, whatever the effect of the limited power which it gives the (r) See too as to bringing in third parties, Ord, XVI. rr. 17, 19, 21; supra, § 168 et seq. and § 877. court over costs upon the generality of its subsequent language, (s) it seems that the court will at any rate be slow to exercise this jurisdiction for the purpose of deciding questions between vendors and purchasers of shares, except where the legal title of the applicant is clear. (t) (8) See per Jessel, M. R., in Ex parte Sar. gent, L. R. 17 Eq., 276. (t) Ward and Henry's case, L. R. 2 Eq., 226; 2 Ch., 431; Musgrave and Hart's case, L. R. 5 Eq., 193; Ex parte Sargent, L. R., 17 Eq., 273; Ex parte shaw, 2 Q. B. D., 463. See too Buckley, Comp Acts (3d ed.), 81-84. CHAPTER II. OF INJUNCTIONS. § 1113. It has already been in effect stated(a) that executed, as distinguished from executory, contracts are not within the scope of this treatise. The present chapter will accordingly be confined to the consideration of the use of injunctions in connection with contracts of the latter kind. § 1114. The jurisdiction of the court in injunction is connected with the specific performance of executory contracts in three ways: (1) Sometimes the injunction is the instrument by which the court specifically enforces the contract itself or some part of it: (2) Sometimes the injunction is merely incident or ancillary to the performance of the contract; and (3) Sometimes the injunction is used for the purpose of giving effect to rights resulting from the non-performance of the contract. 1. Injunction the instrument of performance. 1115. It is evident that whenever the court grants an injunction restraining the breach of any express or implied (a) Supra, § 21; cf. §§ 180, 1540. 1 Injunction; where the law would work injustice.] In a case when, by fraud or mistake, a party has an advantage in proceeding at law, and which will manifestly make the law a sword of injustice, a court of equity will restrain the party where conscience is thus barred from using the advantage he has improperly gained. In such a case it was said, per curiam: "The only ground upon which this testimony can be received to control the legal effect and opera tion of these covenants is the fraud of the party in attempting to enforce them in violation of his agreement. The evidence is regarded as sufficiently certain and clear, in the proof of that contract, that the damages to be paid by the railroad for their right in the premises were to be divided between these parties in specific proportions, and that no claim was to be made on the grantor on his covenant in this decd natter arising out of that negotiation; and evidently it was in confident reliance upon this understanding that the grantor neglected so to qualify his covenant that no right of action could arise thereon for that matter. Regarding these facts, therefore, as sufficiently proved, and the bill as sufficiently setting up the fraud and asking for relief on that ground, we think the case is brought within the general rule upon which relief is granted." Taylor v. Gilman, 25 Vt., 411. term of a contract it thereby pro tanto specifically enforces the performance of the contract. (b) § 1116. Where the contract contains express negative as well as positive terms, and the positive terms are capable of specific performance by the court, the court may and naturally will enforce by injunction the observance of the negative terms; for by so doing it promotes the complete performance of the contract as a whole. § 1117. Thus where the commissioners of woods and forests contracted with a committee of the united service club for the grant by the commissioners to the trustees of the club of a lease of a specified piece of ground, and further that a specified plot on the south side of this piece of ground should be laid out as an ornamental garden, and no buildings whatever should be erected thereon, and afterwards the commissioners began to build stables on the plot; the court specifically enforced the observance of the negative stipulation by restraining the commissioners from continuing to build on the plot and also from permitting such part of the stables as had already been built to remain upon it. (c) § 1118. But where part of the contract is of such nature as to be incapable of specific performance by the court, a difficulty presents itself with respect to the court's enforcement of any other part of it by injunction. For, as we have seen, (d) the court will not, as a general rule, enforce part of an executory contract unless it can perform the whole; and, in the case supposed, the grant of an injunction would obviously be tantamount to a merely partial enforcement of the contract. § 1119. On the principle referred to in the last preceding section, one would expect to find the court always refusing to interfere by injunction to restrain the breach or non-performance of part of an executory contract where the rest of the contract is incapable of, or is not a proper subject for, specific performance: and in fact there are numerous instances of such refusal.(e) seq. (b) As to injunctions restraining applica- (d) Part III., chap. xvi., §§ 802, 811, 833 et tions to Parliament, see infra, Part VI., chap. ix., § 1567 et seq; and, as to the discretionary character of the jurisdiction, see per Lord Westbury in Low v. Innes, 4 De G. J. & S., 290. (c) Rankin v. Huskissom, 4 Sim., 13 (Shad. well, V. C.). (e) See e. g., supra, § 833 et seq., and the cases there cited: also Fothergill v. Rowland, L. R. 17 Eq., 132, cited supra, § 840; per Lord Cottenham in Dietrichsen v. Cabburn, 2 Ph., 57; Rogers v. Wilmot, W. N., 1880, 88. Cf. Horne v. London and North western Railway Co., 19 W. R., 170. § 1120. There are, however, cases in which, though the contract as a whole has been such as the court could not or would not specifically enforce, it has nevertheless granted an injunction restraining the breach of some express or implied term of it. These cases have already been discussed at length in a previous chapter. (f) It may here be added that whenever, in such cases, a person is compelled by injunction to observe some negative term of a contract, the whole benefit of the injunction is conditional upon the plaintiff's performing his part of the contract, and the moment he fails to do any of the acts which he has engaged to do, and which were the consideration for the negative term, the injunction will be liable to be dissolved.(g) § 1121. In connection with the cases referred to in the last preceding section, the old case of Martin v. Nutkin(h) may be referred to. There articles were executed between the plaintiffs, who resided very near the church of Hammersmith, and the parson, church wardens, overseers, and some of the other inhabitants of the parish, by which the plaintiffs covenanted to erect a new cupola, clock and bell to the church, and the other parties covenanted that a bell which had been daily rung at five o'clock in the morning, to the great annoyance of the plaintiffs, should not be rung during the lives of the plaintiffs or the survivor of them: the plaintiffs performed their part of the contract, but the bell after about two years was rung again: the contract on the part of the parish authorities was specifically enforced against them by means of an injunction; although, as Lord St. Leonards remarked in the course of his judgment in Lumley v. Wagner, (i) the court clearly could not have granted any specific performance. 2. Injunction ancillary to performance. § 1122. The jurisdiction of the court in injunction is often ancillary to that in specific performance, for the purpose of preventing the defendant making a use of some legal interest or right vested in him in a way inconsistent with (f) Part III, chap. xvi., § 833 et seq. (g) See per Lord Hatherley (then V. C.) in Stocker v. Wedderburn, 3 K. & J., 495. (h) 2.P. Wms., 266. |