the injunction according to sound discretion. Gray v. Ohio R. R. Co., 1 Grant, 412; Rich,'s App., 57 Pa. St., 105.

Balance of proof.] Where the proof is so equally balanced as to leave the contract in doubt, this will furnish sufficient cause to deny the application_for an injunction. Brown's App., 62 Pa. St., 17.

Mandatory injunction.] The courts grant mandatory injunctions, in this country, with great reluctance. Washington Univ. v.iGreen, 1 Md. Ch., 97; Audenreid v. Phila. and Read. R. R. Co., 68 Pa. St., 370.

Covenant not to build] Land was sold, and a covenant entered into, not to erect a building more than ten feet in height; an injunction was granted to restrain. Clark v. Martin, 49 Pa. St., 289.

CHAPTER III.

OF THE WRIT OF NE EXEAT.

§ 1136. The Court of Chancery sometimes issued a writ of ne exeat in suits for for specific performance. (a)1

§ 1137. It is conceived that this writ, though not abolished, will in future probably not be often applied for in actions of the kind with which this treatise is concerned; inasmuch as, under the present practice, it is not likely to be issued except in cases where the party applying for the writ can satisfy the court on all the points on which proof is required by the provisions of the 6th section of the debtors act, 1869;(b) under which if the plaintiff in any action in the court in which, before the year 1870, the defendant would have been liable to arrest proves, at any time before final judgment, by evidence on oath to the satisfaction of the judge, that the plaintiff has good cause of action against the defendant to the amount of £50 or upwards, and that there is probable cause for believing that the defendant is about to quit England unless he be appre

(a) Raynes v. Wise, 2 Mer., 472; Blaydes v. Calvert, 2 J. & W., 211; Boehm v. Wood, T. & R., 332; Jenkins v. Parker, 2 My. & K., 5;

Morris v. McNeil, 2 Russ., 604; and see Seton, 316. 1329.

(b) See Drover v. Beyer, 13 Ch. D, 242, 243.

1 A complainant is not entitled to a writ of ne exeat on a bill for the specific performance of a contract, previous to the time at which the contract is to be performed, and before any right of action has accrued thereon, either at law or in equity, against the defendant. The debt must be shown to be actually due. De Rivafinoli v. Corsetti, 4 Paige, 264; Brown v. Haff, 6 id., 535. It has been laid down that a writ of ne exeat cannot be granted, unless, 1. There is a precise amount of debt positively due. 2. It must be an equitable demand on which the plaintiff cannot sue at law, except in cases of account, and a few others of concurrent jurisdiction. 3. The defendant must be about to quit the country, proved by affidavits as positive as those required to hold to bail at law. Rhodes v. Cousins, 6 Randolph, 188. But in Alabama the rule is not precisely the same. Writs of ne exeat may, there, be properly granted in the following cases: 1. Where the demand is exclusively equitable, whether a sum certain be due or not, and the defendant is about to remove beyond the jurisdiction of the court 2. Where the courts of law and equity have concurrent jurisdiction, the defendant being about to remove, and where bail has not been obtained, it will be granted in aid of the action at law. 3. Where the two courts have concurrent jurisdiction, and no action at law has been commenced, but in a suit in equity instituted, the removal of the defendant will be restricted. 4. In cases of extreme necessity, and where it becomes necessary to prevent a failure of justice. The fourth clause is, however, not established as a fixed rule of law. Lucas v. Hinckman, 2 Stew., 11.

hended, and that the absence of the defendant from England will materially prejudice the plaintiff in the prosecution of his action, the judge may order such defendant to be arrested and imprisoned for a period not exceeding six months, unless and until he gives security (not exceeding the amount claimed in the action) that he will not go out of England without leave of the court. (c)'

(c) 32 & 33 Vict. c. 62, s. 6; cf. Jud. Act, 1873, s. 76.

1 Rule in this country.] This is a writ of right, rather than a prerogative writ. It is only granted in cases of equitable debts and claims. Seymour v. Hazard, 1 John.'s Ch., 1; Forrest v. Forrest, 10 Barb., 46. It is a mesne process, holding the party to equitable bail; it commands the arrest of the party if the bail is not furnished. Adams v. Whitcomb, 46 Vt., 708. Until the party refuses to give the required security he cannot be restrained of his liberty. Bushnell v. Bushnell, 15 Barb., 309.

Writ of capias.] In Samuel v. Wiley, 5 N. H., 353, it was held that the power of a court of equity independently of any statute to obtain security for the performance of its decree by ordering, by a writ of capas, the arrest of a party intending to leave the State to avoid such decree is analogous to the practice pertaining to the writ of ne exeat.

Attachment.] The remedy may be by an order, that the party within a given time give security, and upon default an attachment will issue for contempt. Attorney General v. Macklow, 1 Price, 289.

No adequate remedy at law.] In order that the writ may be granted it must be affirmatively shown that there is no adequate remedy at law. Orme v. McPherson, 36 Ga., 571.

Courts of concurrent jurisdiction.] Such courts will not refuse this writ merely because the plaintiff has a remedy at law. Lucas v. Hickman, 2 Stew., 11; Mackdonough v Gaynor, 18 N. J. Eq., 249.

Certainty.] The demand must be capable of being reduced to a certainty. Whitehouse v. Partridge, 3 Swanst., 365; Bonesteal v. Bonesteal, 28 Wis., 245. Fraud must be shown.] Where this is not done, and the action is not of an equitable nature, this writ will be refused. Malcolm v. Andrews, 168 Ill., 100. Where the contingency might never happen, the writ was refused. Anon., 1 Atk., 521.

Partnership settlements.] The defendant had sold all his property and was threatening to leave the State; he refused a partnership settlement. Held, that this writ was properly issued. Dean v. Smith, 23 Wis., 483; Myer v. Myer, 25 N. J. Eq., 28.

Rule in Arkansas.] In this State this writ is allowed by statute in cases of executory contracts, and the time for performance has not arrived, if the complainant entered into the contract in good faith and without notice on the part of the defendant that he intended to leave the State. Gresham v. Peterson, 25 Ark., 377.

CHAPTER IV.

OF RELIEF AFTER JUDGMENT.

$1138. It may and not unfrequently does happen that, after judgment has been given for the specific performance of a contract, some further relief becomes necessary, in consequence of one or other of the parties making default in the performance of something which ought under the judgment to be performed by him or on his part; as, for instance, where a vendor refuses or is unable to execute a proper conveyance of the property, or a purchaser to pay the purchase-money. The character of the consequential relief appropriate to any particular case will of course vary according to the nature of the subject-matter of the contract and the position which the applicant occupies in the transaction; but in every case the application must, under the present practice, be made only to the court by which the judgment was pronounced, (a) and the multiplicity of legal proceedings which sometimes(b) occurred before the fusion of the jurisdictions of the Courts of Chancery and common law is now practically impossible. (c)'

(a) Jud. Act, 1873 (36 & 37 Vict. c. 66), s. 24 (5); Appell. Juris. Act, 1876 (39 & 40 Vict. c. 59), s. 17.

(b) Phelps v. Prothero, 7 De G. M. & G.,

722; Ford v. Compton, 1 Cox. 296; Reynolds v. Nelson, 6 Mad., 290; Frank v Basnett, 2 My. & K., 618.

(c) Jud. Act, 1873, s. 24 (7).

It is well settled that, while proceedings are pending in the court of chancery, all applications to other courts are looked upon with jealousy. It is a rule thoroughly established, that chancery will administer complete redress to the parties, and this, though in its progress it may decree on a matter which was cognizable at law. Where equity can do complete justice between the parties, it will never turn them out of court to pursue their remedy at law. Cathcart v. Robinson, 5 Pet., 263; Beardsley v. Halls, 1 Root, 366; Milter v. McCann, 7 Paige, 457; Chinn v. Heale, 1 Munf., 63; McRaven v. Forbes, 6 How. (Miss), 569; Hume v. Long, 6 Monr., 116; Miami Exporting Co. v. United States Bank, Wright, 249; Oliver v Pray, 4 Ham., 175; Brown v. Gardner, Harring.'s Ch., 291; Hawley v. Sheldon, id., 420. So where a bill was filed against a mortgagee, who was also lessee of the mortgaged premises, to obtain a set-off of the rent against the amount due on the mortgage, the bill was retained to compel payment of the rent, though the plaintiff failed to support his claim of set off. Walcott v. Sullivan, 1 Edw.'s Ch., 339. Again, where, on a bill by a vendor to enforce the specific performance of a contract for the sale of land, it appeared that by the contract the vendee had the right to relieve himself from the purchase by paying a stipulated sum, it was held that the right of the vendor to come into equity for a specific performance being clear, the court, in refusing to decree such specific performance, might decree the payment by

§ 1139. There are two kinds of relief after judgment for specific performance of which either party to the contract may, in a proper case, avail himself.

§ 1140. (1) He may obtain (on motion in the action) an order appointing a definite time and place for the completion of the contract by payment of the unpaid purchasemoney and delivery over of the executed conveyance and title deeds, (d) or a period within which the judgment is to be obeyed, and, if the other party fails to obey the order, may thereupon either at once issue a writ of sequestration against the defaulting party's estate and effects, (e) or, if the default was in some act other than or besides the payment of money, may move, on notice to the defaulter, for a writ of attachment against him. (f) Indeed, in a case where a person who had agreed to accept a lease would not, though ordered by the court to do so, execute the lease, it was held that an attachment was the only means to which the court could resort for enforcing such execution. (9)

§ 1141. (2) He may apply to the court (by motion in the action) for an order rescinding the contract. On an application of this kind, if it appears that the party moved against has positively refused to complete the contract, its immediate rescission may be ordered: otherwise, the order will be for rescission in default of completion within a limited time:(7) and the court will decline to order the deposit

(d) Morley v. Clavering, 30 Beav., 108; Dorling v. Evans, before Bacon, V. C., 18 July, 1878 (cited seton, 1328).

(e) Order XLVII. r. 1. Cf. the Debtors Act, 1869, s. 8.

under the Debtors Act, 1869; and Order XLIV. r. 2.

(g) Grace v. Baynton, 25 W. R., 506. (h) Foligno v. Martin, 16 Beav., 586; Simpson v. Terry, 34 Beav., 423; Clark v. Wallis, (f) see Rule 6 of the Order (7th Jan. 1870), 35 Beav., 460; Henty v. Schroder, 12 Ch. D., 666.

the vendee of such stipulated sum to the vendor, although the vendor might have received the same at law. Cathcart v. Robinson, 5 Pet., 263; Long v. McMillan, 5 Dana, 484, is an authority of similar nature. In that case the defendant denied fraud, alleging that through mistake he had not received sufficient credit; and it was held that although the remedy was complete at law, yet, as the subject matter of the bill and cross-bill were connected the court might take jurisdiction. Upon the same general principle, where a note was made payable in the year "one thousand eighteen hundred and thirty-six" by mistake for 1836, it was held that chancery would correct the mistake on a bill for that purpose, and having obtained jurisdiction for that purpose would enforce payment of the note. Savage v. Berry, 2 Scam., 545. And though chancery will not reverse the judgment of a court of law, nor decide against a point decided in such court, they will, nevertheless, hear the same subject of controversy upon grounds not litigated at law, either for want of legal testimony, supplied in chancery by the party's oath, or because it was a subject of equity jurisdiction only, or perhaps for other causes, and enjoin the judgment at law; even though the grounds inay, at the time of the injunction, be cognizable at law, if they were not so considered by the courts of law when the judgment was rendered and the bill brought. Dana v. Nelson, 1 Atk., 252.