tract was made for the sale of many tons of iron, to be paid for by instalments, running through many years, and it was impossible to say what the profit of the purchase would be; (d) so, if a ship-carpenter should bargain for the sale to him of ship-timber, situated with peculiar convenience to his purposes. (e)

In much the larger number of cases in which this relief is sought in equity, the sale, conveyance, or transfer of something has been promised. But equity will also enforce promises for mere personal acts, especially if they are connected with a transfer or change of property, as a promise to indorse a noto which has been transferred, (f) or to renew a lease, (g) or to charge an annuity on a certain estate; (h) or to invest money in lands for the purpose of a particular settlement; (i) or contracts made with a third party for the benefit of slaves, or an assignment of them. (j) An agreement to insure may be specifically executed in equity; and the bill may be filed after a loss has occurred. (k)

It may be added, that equity gives relief when a contract refers only to chattels, if circumstances give to them a value altogether beyond their price or money worth-a pretium affectionis - which the plaintiff may rationally subscribe to them, so

(d) Taylor v. Neville, cited 3 Atk. 384. (e) Lord Hardwicke, Ch., Buxton v. Lister, 3 Atk. 385.

(f) See Watkins v. Maule, 2 Jacob & W. 242.

(g) Vide ante, p. 367.

(h) Vide ante, p. 368; Pritchard v. Ovey, 1 Jacob & W. 396.

(i) Kettleby v. Atwood, 1 Vern. 298, 471; Fothergill v. Fothergill, 1 Eq. Cas. Ab. 222.

(j) With respect to contracts for the assignment of slaves, see Williams v. Howard, 3 Murph. 74; per Taylor, C. J., and Henderson, J., Alexander, v. Ghiselin, 5 Gill, 138 (which, however, was an agreement for an assignment of negroes by way of security for a debt). Bryan v. Robert, 1 Strobh. Eq. 334; Sarter v. Gordon, 2 Hill (S. C.), 121. (Compare Young v. Burton, 1 McMullan, Eq. 255); Savery v. Spence, 13 Ala. 561; Caldwell v. Myers, Hardin, 551. See also, Murphy v. Clark, I S. & M. 221; Butler v. Hicks, 11 id.

78; Dudley v. Mallery, 4 Ga. 52. If a master, for consideration received, agree with a third person to manumit his slave, the agreement may be specifically executed in equity, upon the application of such third person. Thompson v. Wilmot, 1 Bibb, 422; though not upon a bill filed by the slave himself. Gatliff v. Rose, 8 B. Mon. 629. Sce Tom v. Daily, 4 Hamm. (Ohio), 368; Peters v. Van Lear, 4 Gill,

249.

(k) Perkins v. Washington Ins. Co. 4 Cowen, 645; Lord Denman, C. J., Mead v. Davidson, 3 A. & E. 308; Carpenter v. Mutual Ins. Co. 4 Sandf. Ch. 408. And, after a loss, a court of equity, taking jurisdiction for the purpose of giving a speci fic performance of the agreement to insure, is not bound to stop by decreeing the execution of a policy, but, without turning the plaintiff over to an action at law upou it, may give him full relief. Tayloe v. Merchants Fire Ins. Co. 9 How. 405.

far as he is concerned. (1) Or where personal property is detained in breach of trust. (m) And where a dispute relates to many articles, and for some the plaintiff may be compensated in damages, and for others not, equity will enforce specific performance as to all. (n) Nor is it a ground of demurrer to a bill, that it seeks specific performance of a contract which relates to personalty. (0)

It makes but little difference in the jurisdiction which equity takes, or in the relief it gives, whether the promise be positive or negative. But, technically speaking, equity decrees specific performance when the promise is positive, and injunction when it is negative. (p) It is obvious, that many promises may be in either form equally valid and effective. Thus, a promise already

(1) Pusey v. Pusey, 1 Vern. 273; Fells v. Read, 3 Ves. 70; Macclesfield v. Davis, 3 Ves. & B. 16; Lowther v. Lowther, 13 Ves. 95.

(m) Pooley v. Budd, 14 Beav. 34; McGowin v. Remington, 12 Penn. St. 56; Cowles v. Whitman, 10 Conn. 121; Mechanics Bank of Alexandria v. Seton, 1 Pet. 299, 305.

(n) McGowin v. Remington, 12 Penn. St. 56.

(0) Carpenter v. Mutual Safety Ins. Co. 4 Sandf. Ch. 408.

(p) There are cases where a contract to do something, and the correlative contract to refrain from doing some inconsistent thing, are not the converse of one another, and where, in other words, the perform ance of the negative part of the agreement is not of itself the performance of the positive part. In such a case, although the nature of the act to be done is such that a specific performance of it cannot be compelled, the court may still do what it can towards compelling men to the fulfilment of their engagements, by enjoining the party from violation of the negative part of the contract. Rolfe v. Rolfe, 15 Sim. 88. The court will not indeed use the power of injunction for the purpose of indirectly accomplishing that which it is unable to effect by the direct exercise of its jurisdiction to decree specific performance; yet where there is contained in the contract a promise to refrain from doing some particular thing, affording, therefore, of itself a proper case for an injunction, an injunction will be granted; and all the

more willingly, if the final consequences will probably be the performance of the whole agreement, including as well those affirmative parts, which from their nature cannot be directly enforced, as that negative promise which is the legitimate ground for the injunction. A very recent and instructive case of this kind is Lumley v. Wagner, 1 De G., M. & G. 604, 13 Eng. L. & Eq. 252, where Mademoiselle Wagner had agreed with Mr. Lumley to sing at his theatre for three months, and during that time not to sing elsewhere; Lord St. Leonards, Ch. (affirming the decision of Parker, V. C.), enjoined her from violating the negative stipulation not to sing at any other theatre, though he could not compel her to sing at the plaintiff's theatre. The opinion of the Lord Chancellor contains an elaborate review of the conflicting cases upon this important subject, and is worthy of particular attention. Lumley v. Wagner was recognized in Johnson v. Shrewsbury & Birmingham R. Co. 3 De G., M. & G. 927, 932. Hamblin v. Dinneford, 2 Edw. 529 is contra, but was decided when the course of English decision was different from what it now is. Where the injunction prayed is only ancillary to the enforcement of the contract, the court will not grant it, if the contract is not one which is capable of specific execution. Baldwin e. Society for diffusing Useful Knowledge, 9 Sim. 393; Gurley v. Hites hue, 5 Gill, 217. And see South Wales Railway Co. v. Wythes, 1 Kay & J. 186, 31 Eng. L. & Eq. 226.

referred to, to leave manure on a farm, may just as well be a promise not to take it away; and equity would relieve in one case as well as in the other. A covenant in restraint of trade, so called, that is, not to carry on a certain business, for a certain time, in a certain place, will, if in itself just and reasonable, be enforced by injunction, (q) so will a covenant not to build on land contiguous to the plaintiff, and to his detriment, (r) or not to erect or use dangerous or annoying buildings or machinery near him, (s) or that buildings on certain land, shall conform in reasonable particulars with those on the land of the promisee; (†) or that trees, which are peculiarly ornamental or convenient to the plaintiff, shall not be cut down by the defendant, on whose land they grow. (u) And a court of equity has jurisdiction to grant a specific performance of an agreement for the purchase of a copyright. (v)

Before leaving contracts for personal acts, or relating to chattels, it may not be useless to remark, that the Supreme Court of the United States appears to be less disposed than the courts of England to regard the distinction between contracts which relate to realty and those which refer only to personalty. (w) Indeed, throughout this country, there seems to be a strong tendency to subordinate this distinction, and all the more technical rules which have been enunciated in reference to this subject, to the general question, whether the plaintiff is in justice

(9) Rolfe v. Rolfe, 15 Sim. 88; Shad well, V. C., Kemble v. Kean, 6 Sim. 335; Lord St. Leonards, Ch., 1 De G., M. & G. 631.

(r) Rankin v. Huskisson, 4 Sim. 13. See Squire v. Campbell, 1 Mylne & C. 459; Roper v. Williams, Turner & R. 18.

(s) Barrow v. Richard, 8 Paige, 351. An injunction was granted to restrain church-wardens from ringing a bell at an early hour in the morning, which they had agreed with the plaintiff, for a valuable consideration, to refrain from doing. Martin v. Nutkin, 2 P. Wms. 266. See Soltau v. De Held, 2 Sim. N. s. 183, 9 Eng. L. & Eq. 104.

(t) Franklyn v. Tuton, 5 Madd. 469, where a lessee, who had not complied with his covenant, that houses erected by him on the demised land should correspond in eleration with the adjoining houses, was

required to alter the elevation and perform the covenant.

(u) And see Briggs v. Earl of Oxford, 5 De G. & S. 156, 8 Eng. L. & Eq. 194, and s. c. on appeal, 1 De G., M. & G. 363, 11 Eng. L. & Eq. 265.

(v) Thombleson v. Black, 1 Jur. 198 Lord Langdale, M. R., there said, that wherever a copyright formed a part of the subject-matter in respect of which relief was sought, a court of equity had jurisdiction, even though other matters might be mixed up with it. And see Sims v Marryat, 17 Q. B. 281, 7 Eng. L. & Eq 330.

(w) Barr v. Lapsley, 1 Wheat. 151, Mechanics Bank of Alexandria v. Seton, 1 Pet. 299; 2 Story, Eq. Jur. § 724. See Clarke v. Flint, 22 Pick. 238, pa: Wilde, J.

and equity entitled to other and better relief than the law can give him. (x) In those of our States in which an equity jurisdiction was slowly and reluctantly admitted, among the earliest instances of equity power given to the courts, after that of relieving in mortgages, was that of specific performance. And frequently, if not always, it is "the specific performance of any written contract," without reference to its subject-matter.

.SECTION IV.

OF CONTRACTS RELATING TO THE CONVEYANCE OF LAND.

It is in relation to contracts for the sale and conveyance of land, (y) that the equity relief of specific performance is most freely admitted, most frequently practised, and most distinctly defined. (z) Nor does equity refuse to decree respecting land

in a foreign country, provided the parties are resident within their jurisdiction, and there is nothing which must prevent the court from compelling them to execute their agreement. (a) But in decreeing a specific performance of a parol contract for the sale of lands, courts always require the complainant to do complete justice, upon the broadest principles of equity, and will not be satisfied with a literal performance of the agreement by him. (b)

The first question which presents itself in reference to contracts for the conveyance of land, is in relation to the title; for defect of title is a very common defence. It is a general rule, that any party who objects to title, and asks to have inquiry made as to its sufficiency, may have that inquiry, (c) unless the

400; Blundell v. Brettargh, 17 Ves. 232. See Cheslyn v. Dalby, 2 Younge & C., Ex. 170. Yet where an award, declaring the price has been actually given, a court of equity will enforce compliance with it. "That a bill," said Lord Eldon, Wood v. Griffith, 1 Swanst. 54, "will lie for the specific performance of an award, is clear, because the award supposes an agreement between the parties, and contains no more than the terms of that agreement, ascertained by a third person; and then the bill calls only for a specific performance of an agreement in another shape." See also, Bouck v. Wilber, 4 Johns. Ch. 405; Penniman v. Rodman, 13 Met. 382; Jones v. Boston Mill Corporation, 4 Pick. 507. And after an agreement to sell, at a price to be fixed by arbitration, has been executed to the extent of appointing the arbitrators, it is not competent to either party at his pleasure entirely to undo what has been done; for a revocation of the authority of the appraisers or arbitrators, though good at law, may be bad in equity, in which case the arbitrators may go on in disregard of such revocation, and a court of equity will respect their award, and perhaps enforce it. Lord Eldon, Ch., Harcourt v. Ramsbottom, 1 Jacob & W. 505, 508; Cooth v. Jackson, 6 Ves. 12, 41; Belchier v. Reynolds, 2 Kenyon, Pt. 2, 87, where a specific performance was decreed according to a valuation made after the death of the vendor. See also, Pope v. Duncannon, 9 Sim. 177; Cheslyn v. Dalby, 2 Younge & C., Ex. 197; Dimsdale v. Robertson, 7 Irish Eq. 554, 2 Jones & La T. 58. If an award appear to have

been made upon a ground which is not sustainable, or if the arbitrators have misconducted themselves in making it, specific performance will not be decreed. Chichester v. M'Intire, 4 Bligh, N. s. 78. See Sugd. Law of Prop. 74 (in Law Lib. Vol. 65).

(a) Penn v. Lord Baltimore, 1 Ves. Sen. 444; Lord Cranstown v. Johnston, 3 Ves. 182. Marshall, C. J., Massie v. Watts, 6 Cranch, 158-161; Watts v. Waddle, 6 Pet. 389; Watkins v. Holman, 16 Pet. 25; White v. White, 7 Gill & J. 208; Stansbury v. Fringer, 11 id. 149. Where the defendant was the infant daughter and heir of the vendor, domiciled within the jurisdiction of the court, though the land was situated in another State, Walworth, Ch., granted a decree which directed a conveyance by the infant, when she arrived at proper age, to enable her to transfer the legal title according to the law of the State where the land was; and authorized the plaintiff, meanwhile, to take and retain possession of the land, if he could obtain possession thereof without suit; and a perpetual injunction was granted, restraining the defendant from disturbing the complainant in such possession, or from doing any act whereby the title should be transferred to any other person, or in any way impaired or incumbered. Sutphen v. Fowler, 9 Paige, 280.

(b) Hull v. Peer, 27 Ill. 312.

(c) As to the distinction between the case where the apparent defect in the vendor's title is such an one as may be expected to be removed upon a reference consistently with the equity practice; and