opere compleantur."(s) Chaucer, too, in the commencement of the Friar's Tale, describing the jurisdiction exercised by an archdeacon, enumerates contracts as one of the matters which were subject to his cognizance.

"Whilom there was dwellyng in my countré

An erchedeken, a man of gret degré,
That boldely did execucioun,

In punyschyng of fornicacioun,

Of wicchecraft, and eek of bauderye,
Of diffamacioun, and avoutrie,

Of chirche-reves, and of testamentes,

Of contractes, and of lak of sacraments,
And eek of many another maner cryme,

Which needith not to reherse at this tyme."

On such a point as this the authority of Chaucer appears entitled to much weight. He is said to have been bred to the law; and it is certain that parts of his tales exhibit an acquaintance even with the forms of law; as, for instance, the Doctor's Tale, where the "pitous bill" presented to Appius by Claudius (v. 178 et seq.) forcibly recalls the form of a bill of complaint in the court of chancery. But perhaps this inquiry into the origin of the jurisdiction is needless. It may have had its source, not in some pre-existing system of jurisprudence, but in the plain principles of morality and the common sense of the judges who founded and enlarged the equitable jurisdiction of the court of chancery.

§ 19. The earliest trace of this jurisdiction in specific performance which the industry of legal antiquaries has discovered appears to be a case in the reign of Richard II, and to have related to the sale of land. (t) In a case in the Year Book of 8 Edw. IV, (u) the jurisdiction is fully recognized. The case arose on a promise to indemnify the plaintiff, and the Lord Chancellor laid down that there was remedy in chancery where the plaintiff was damaged by the non-performance of a promise; and Genny, J., said that if I promise you to build you a house and do not do it, you may have remedy by subpoena. In the reign of Henry VI, cases are recorded in which the jurisdiction was involved. In the

(8) Decret. Greg. 9, lib. 1, tit. 35, cap. 3. (t) 1 Spence, Eq. Jur., 645. See, also, 2 Powell, Contr., 4 et seq.

(u) Page 4, b. The language of Genney, J.,

is "faire a vous un meason." Query, should not this be rendered "to make over to you a house?" The text-books all seem to render it "to build."

21 Henry VII, (v) a case occurs where Fineux, C. J., in discussing the extent of the action on the case observed, that if one bargains with me that I shall have his land to me and my heirs for £20, and that he will make the estate over to me and I pay the £20, but he will not make over the estate to me according to the covenant, I may have an action on the case and am not bound to sue out a subpoena. (w) Brooke, in his Abridgement, (x) after saying that in the case stated an action on the case would lie, adds significantly: "But note that by this he will get nothing but damages, but by subpœna the Chancellor can compel him to convey the estate or imprison him ut dicitur."

§ 20. The reign of Elizabeth, and the early part of the reign of the first James, afford other instances of the exercise of the jurisdiction. (y) But it did not establish itself without great jealousy on the part of the common law courts, of which a curious illustration is to be found in the case of Bromage v. Gennings, (2) in the 14 James I. Bromage sued Gennings in the Court of the Marches of Wales for not executing a lease according to his bargain, and from the statement of the plaintiff's counsel it appears to have been a suit for specific performance and not to recover damages, and this, he added, is usually done in chancery. Thereupon the defendant moved for a prohibition and obtained it, Coke, Doddridge, and Haughton saying that chancery ought not to do so, for then to what purpose are the actions on the case and covenant; and Coke added that this would subvert the interest of the covenantor who understands that it is at his election either to lose the damages, or to make the lease. Doddridge observed that if a decree was made for the execution of the lease, and he did not choose to execute it, there would be no other remedy than imprisonment. So complete was the unanimity of feeling in the court that Serjeant Harris, the respondent's counsel, said that the part he took in the matter was against his conscience.

Nevertheless, from this time forward, the jurisdiction appears to have been well established and in frequent exercise.

(v) 1 Spence, Eq. Jur., 645; C. P. Cooper, Appx., 381. (w) Page 41, a.

(x) Action sur le case, pl. 72.

(y) 1 Spence, Eq. Jur, 645.

(2) Rolle Rep., 354, 368. See, too, infra, 670.

$21. Before proceeding further, it will be well to distinguish the jurisdiction usually described as that in specific performance from some kindred ones formerly exercised by the court of chancery. By that expression is usually understood that peculiar, and, as it is called, extraordinary jurisdiction, which that court exercised in respect of executory contracts as contrasted with executed contracts. An executory contract is one which is not intended between the parties to be the final instrument regulating their relations; an executed contract is one which is intended to be thus final. (a) The difference may be illustrated by the contrast between an agreement (say on the dissolution of a partnership), to execute a deed containing certain covenants, and the deed itself containing these covenants. The agreement is an executory contract; the deed is an executed contract. An action founded on the agreement would be strictly an action for specific performance; an action founded on the deed would not be so described, and it could have been entertained by the court of chancery only on the ground that an injunction or an account was prayed for, or that some independent jurisdiction of the court was invoked. It could not have been supported on the ground of specific performance as ordinarily used.

§ 22. Actions for specific performance of executory contracts differ from actions for the performance of trusts. For contracts are for the most part contained in legal instruments which give rise to legal rights; and specific performance is therefore only an alternative remedy in lieu of damages. On the contrary, trusts are constituted by instruments which are of equitable force only so far as the trust is concerned, in respect of which therefore before the judicature acts a suit in equity was the only mode of relief.

§ 23. From actions for specific performance we must further distinguish actions for the delivery of a chattel in specie. This may be a mode of specific performance when the right to the chattel flows from a contract.' But the

(a) Per Lord Selborne in Wolverhampton See, also, 1 Powell, Contr., 235; and infra' and Walsall Railway Co. v. London and § 822. Northwestern Railway Co., L. R. 16 Eq., 439.

1 Several articles purchased.] Specific performance will be decreed as to all, where the plaintiff can only be compensated in damages for some of several articles purchased by him. McGowin v. Remington, 12 Pa. St., 56.

court of chancery had (as we shall see [b]) an independent jurisdiction to decree the delivery up of unique articles, whether the right to them resulted from contract or not.

§ 24. Again, from actions for specific performance we must distinguish those cases in which, by reason of fraud or the breach of some fiduciary relationship, a constructive trust arises. Cases sometimes of a mixed nature have arisen; as, for instance, when by a contract to give up part of an estate if purchased, A. persuaded B. not to compete with him as a purchaser. On A.'s refusal to abide by his contract, B. might have sued him, alleging at once the contract and the breach of A.'s duty as agent. (c)

We shall hereafter see (d) that the peculiar doctrines of the court as to the specific performance of executory contracts do not necessarily apply to the other forms in which the court grants specific relief.

§ 25. There is an observation often made with regard to the jurisdiction in specific performance which remains to be noticed. It is said to be in the discretion of the court.' The meaning of this proposition is not that the court may arbitrarily or capriciously perform one contract and refuse to perform another; but that the court has regard to the conduct of the plaintiff and to circumstances outside the contract itself, and that the mere fact of the existence of a valid contract is not conclusive in the plaintiff's favor. (e) "If the defendant," said Plumer, V. C., "can show any circumstances dehors, independent of the writing, making it in

(b) Infra, § 57.

(d) Infra, § 822 et seq.

(c) See Chattock v. Muller, 8 Ch. D., 177, 181. (e) Lamare v. Dixon, L. R. 6 H. L., 414.

Neither party to a contract is entitled to a decree for specific performance as a matter of right, the granting or withholding such relief is always in the sound discretion of the court: this is the rule as laid down by all the authorities, and sustained in a long chain of decisions. Pyrke v. Waddington, 10 Hare, 1; Cox v. Maddleton, 2 Drew, 209; Bennett v. Smith, 16 Jur., 422; Watson v. Marston, 4 De G. M. & G., 230; Waters v. Howard, 1 Md. Ch., 112; Blackmilder v. Loveless, 21 Ala., 371; Hudson v. Layton, 5 Harring., 74; Young v. Daniels, 2 Iowa, 126; Rudolph v. Covell, 5 id., 126; Anter v. Miller, 18 id., 405; Waters v. Howard, 8 Gill., 262; Smoot v. Rea, 19 Md., 398; Hester v. Hooker, 7 Sm. & Marsh, 768; Tobey v. County of Bristol, 3 Story, 800; Pickering v. Pickering, 38 N. H., 400; Humbard v. Humbard, 3 Head (Tenn.), 100; Scott v. Whiltour, 20 Ill., 316; Doyle v. Harris, 11 R. I., 539. Where the vendor refused to fulfill, as required by the terms of the contract: Held, by the Court of Appeals in New York, that the right to maintain a suit for specific performance was perfect. Peters v. Delaplaine, 49 N. Y., 362; see McComas v. Easley, 21 Gratt., 23; Hale v. Wilkinson, 21 id., 75; Beach v. Dyer, 93 Ill., 295.

equitable to interpose for the purpose of a specific performance, a court of equity, having satisfactory information upon that subject, will not interpose."(f) But of these circumstances the court judges by settled and fixed rules; hence the discretion is said to be not arbitrary or capricious, but judicial; (g) hence, also, if the contract has been entered into by a competent party, and is unobjectionable in its nature and circumstances, specific performance is as much a matter of course and therefore of right as are damages. (h) The mere hardship of the results will not affect the discre tion of the court.'(i)

(f) In Clowes v. Higginson, 1 V. & B., 527. (g) Goring v. Nash, 3 Atk., 186; White v. Damon, 7 Ves., 30, 35; Buckle v. Mitchell, 18 id., 100, 111; Revell v. Hussey, 2 Ball & B.,

288.

(h) Hall v. Warren, 9 Ves., 605, 608.

(i) Haywood v. Cope, 25 Beav., 140, where Lord Romilly, M. R., fully discusses the nature of the discretion in specific perform

ance.

1 Rule as to specific performance.] It is as much a matter of course for a court of equity, sitting as such, to decree the specific performance of a contract, as for a court of law to give damages for the breach of it, where the matter concerns real estate, is valid, unobjectionable in its nature, and in the circumstances connected with it: it must, however, be capable of being enforced. Hall v. Warren, 9 Ves., 608; Haywood v. Cope, 25 Bow, 140; Rogers v. Saunders, 16 Me., 92; Griffith v. Frederick Co. B'k, 6 Gill & John., 424; Pigg v. Corder, 12 Leigh., 69; Meeker v. Meeker, 16 Conn., 403; Seymour v. Delancey, Cow., 445; 6 Johns. Ch., 222; King v. Merford, 1 N. J. Eq., 274; Plummer v. Kepler, 26 id., 481; Anthony v. Leftwich, 3 Rand. (Va.), 238; Prater v. Miller, 3 Hawks., 629; Turner v. Clay, 3 Bibb., 52; Frisly v. Ballance, 4 Scam., 287; Broadwell v. Broadwell, 6 Ill., 599; McMurtrie v. Bennett, Harr. Chau. (Mich.), 124; Dougherty v. Hamston, 2 Black, 273; St. John v. Benedict, 6 Johns. Ch., 111; McWharter v. McMahn, 1 Clark. (N. Y.), 400; Henderson v. Hayes, 2 Watts., 148; Perkinson v. Wright, 3 Han. & Michen, 324; Leigh v. Crump, 1 Ired. Eq., 299; Gould v. Womack, 2 Ala., 83; Pulman v. Owen, 25 id., 493; Ash v. Daggy, 6 Ind., 259; Howard v. Moore, 4 Sneed., 317; Minturn v. Seymour, 4 Johns. Ch., 497; Jackson v. Ashton, 11 Peters, 229; Bowen v. Irish, 6 Bosw., 245; Lowery v. Buffington, 6 W. Va., 249: Abbott v. L'Hommedien, 10 id., 677; Stearns v. Beckham, 31 Gratt., 379.

When judicial discretion ceases.] The relief demanded in an action for the specific performance of a contract lies in the discretion of the court, only so far as it must necessarily judge whether, under the circumstances, the agreement is, or is not, an inequitable one. When that fact is determined, judicial discretion ceases. Goodwin v. Collins, 4 Houst. (Del.), 28; King v. Hamilton, 4 Pet., 310; Lee v. Kirby, 104 Mass., 420; Wedgwood v. Adams, 6 Beav., 600.