642 Peculiar remedies given by the Court of Chancery. of accident may be considered as sufficient of themselves to support this jurisdiction. It may be observed that in some cases the Court of Chancery did not hesitate to give a remedy where the common law, even on grounds of public policy, denied that there was any right at all; thus the Court of Chancery held, that an assignment of a chose in action, though not valid according to the rules of law, was effectual in equity, if made for a valuable consideration (a). CASES WHERE A REMEDY WAS GIVEN AT LAW, BUT SUCH REMEDY WAS INSUFFICIENT OR INAPPROPRIATE. Introduction. SECT. I.-Recovery of Specific Chattels. SECT. II.-Specific Performance of Agreements and Duties. Introduction. THE next class of cases to be considered, comprises those in which, though the law itself professed to give a remedy, that remedy was considered to be so inappropriate or insufficient, that the Court of Chancery took upon itself to give a remedy of its own, as being the appropriate remedy. This jurisdiction forms one of the most important heads of the modern jurisdiction. (b) SECTION I.-The Recovery of Specific Chattels. One instance of the exercise of this branch of the jurisdiction of the Court of Chancery is furnished by suits by plaintiffs claiming to have deeds and specific chattels belonging to them delivered up. Several bills of this description were filed from the reign of Hen. V. downwards; and though in many of them there were other grounds of equitable relief, as fraud, trust, and the like, the want of remedy at law for the recovery of the specific things is almost always insisted upon; and this jurisdiction has been continued (c). Sometimes inability to describe the gilt cross; C. P. Cooper, i., p. 378; a crucifix, Watts v. Lady Fitzjames, Reg. Lib. 36 Hen. VIII.; a crimson bed then at Venice, 4 & 5 P. & M. fo. 84; of deeds, Choice Cases in Ch. Introd. p. 46, though it would appear from 9 Edw. IV., 41, that an action of detinue, in ordinary cases, was considered by the common law authorities, to be the proper remedy, et v. 3 Hen. VII., 15 in K. B. C. P. Cooper, Append. 559. See Mitford, 117. Specific performance of Agreements. 643 property with the certainty required by law is stated as the ground for equitable interference (a). The remedy by detinue, or even of trover, (which, as before mentioned, was an action *on the case founded on the ancient action of detinue,) was insufficient and inappro[*644] priate, inasmuch as though a judgment for the plaintiff recognized his right to recover the thing in specie, the delivery could not be enforced on refusal, but damages only (b). The fraudulent suppression or destruction of deeds has been held from an early period to give the Court of Chancery jurisdiction over the whole case (c). The court would take possession of deeds for safe custody for the benefit of all parties interested (d). Where specific things were given by a Will, this court seems to have been considered as the proper tribunal to apply to (e), and not the Ecclesiastical Court; though the Court, as we have seen, seems at first to have declined to entertain a bill for a legacy simply (ƒ). SECTION II.-Specific Performance of Agreements, Obligations, and Duties. It is on the principle above referred to, namely, the inadequacy and insufficiency of the remedy which might be obtained at law, that the Court of Chancery entertained jurisdiction to enforce the specific performance of contracts and duties. The necessity for such a jurisdiction, as regards sales of land, as to which it is now in constant use, can hardly be shown in a stronger light than by recalling to the reader's attention the following expressions of Bracton "Cum quis rem suam vendiderit alicui mobilem vel immobilem, emptor tenetur venditori ad pretium, et venditor e converso ad ipsam rem tradendam" (g); adding almost in the words of Diocletian (h), "sine traditione non transferuntur rerum dominia." But notwithstanding this admitted obligation (i), there was not then, *nor is there now, any mode of proceeding at law for compelling such delivery, or (a) Baker v. Parson, Cal. vol. ii., p. 50. The introduction of the action of trover tended to remedy this, v. supra, p. 244. (6) It appears that the only action in which specific goods can be recovered at law is replevin. See Tidd's Pr., p. 825-6, 4th edit.; and see George v. Chambers, vii. Jurist, 836, 837, 839. Lord Redesdale (on Pleading, p. 118, referring to 9 Edw. IV., 41 b, sup. p. 643) observes, that the Chancellor gave no countenance to the doubt there expressed by the common lawyers, thata subpcena ought not to issue where an action of detinue would lie. (c) Lord Hunsdon's Ca. temp. Jas. I., Hobart, 109. Here Lord Coke and C. J. Hobart assisted the Chancellor; the jurisdiction might have been supported on the ground that the suit was at the instance of the king, who might sue in Chancery or at Common Law, at his option, but it is put generally upon the ground in the text. Where the Courts of Law have entertained jurisdic [*645] tion on the supposed destruction or suppres (d) Introd. to Choice Cases, p. 47. (g) Bract lib. ii. c. 27, fo. 61 b; et v. ib. ii. c. 17, fo. 38 b. Where no earnest was given, or writing signed, or delivery made, each party had locus pœnitentiæ, ib. 61 b. (h) "Traditionibus, et usucapionibus, dominia rerum, non nudis pactis transferuntur." Cod. J. ii. 3. 20. et v. supra, p. 138, n. (h); p. 140, n. (a). (i) The mutual right of the contracting parties to specific performance is equally acknowledged by the Courts of Law at the present day. Mitford, p. 118. 645 Specific performance of Agreements. enforcing a completion of the sale; and if a man sold his land, and took a security for the price, though he refused to convey, he might still, it seems, bring an action of debt for the money, leaving the purchaser to bring his counter-action on the case (a). Bills for specific performance of contracts for sale of land (for which, it may be observed, damages were not a substitute), are amongst the earliest that are recorded in the Court of Chancery (b). This jurisdiction would be the more readily entertained, as it was analogous to that by which a person who entered into a contract by bargain and sale was held to be trustee for the bargainee (c). Chief Justice Fineux (temp. Hen. VII.) insisted that there was then no necessity for a subpoena in such cases, as an action on the case would lie (d). But Brooke, in his abridgement of this case, adds, "But by this remedy he would get nothing but damages; but by subpoena, as it is said, the Chancellor may compel him to convey the estate, or imprison him" (e). There was this additional reason for sustaining the jurisdiction before the Statute of Frauds, that where the agreement was by word of mouth, a discovery of the exact terms could only be obtained by the Court of Chancery; that statute, as will be presently noticed, put an end to the jurisdiction to enforce mere parol agreements (f). There are many instances of the exercise of this jurisdiction from Elizabeth to the Commonwealth, and some by the advice of the judges (g). It was exercised where specifie performance was considered to be essential to the ends of justice, on any promise on which an action for damages would lie (h), particularly if earnest had been paid (i); and in [*646] some cases, where an action would not lie at law, as in the instance of a marriage agreement so ill worded that no action could be sustained (k), and where the time had elapsed within which a demand was to be made for performance of the act (1). It was not confined to (a) 18 Edw. IV., 6; Fulbeck, ii., 29 a. It has before been observed, that the common law followed the Roman law in not giving a real action (rei vindicatio) where there had been no delivery. (b) Cal. ii. 2, temp. Rich. II. and Lord Scales v. Felbrigge, ibid. ii. p. 26, temp. Hen. VI.; a decree, by the name of an award, was made in this case for specific performance, with an abatement, ib. p. 27; the defendant had insisted that the matter was determinable at common law; et v. ib. p. 35 & 40. In the case,temp. Rich. II., the plaintiff seeks relief generally on the ground that the agreement not being by specialty, he had no relief at law-no decree, vol. ii., p. 2; and see instances temp. Hen. VI., C. P. Cooper, Append. 381. Bill against feoffee in trust to complete the contract made by the cestui que trust, temp. Edw. IV., ib. 382. (c) V. supra, p. 512. "Hoc edicto Prætor favet naturali equitati, qui constituta ex consensu pacta custodit, quia grave est fidem fallere." Dig. xiii. 5. 1. But the Prætor did not enforce specific performance, nor convert the vendor into a trustee for the purchaser; both were of clerical invention. (d) Y. B. 21 Hen. VII. p. 41; et v. 22 Hen. VI. 43; Fulbeck, ii. 24 b. (e) Brooke, Abr. Trespass on the Case. 72. The jurisdiction is recognized Dr. and Student, i. Ch. 21, p. 63, on the ground of conscience. (f) Et v. Sugd. V. & P. i. p. 199, 10th ed. (g) Choice Cases in Ch. p. 43, 39 Eliz: Toth. 66, v. inter alia, Throckmorton v. Throckmorton, 7 Jac. I. (h) "For equity will never make that a good agreement that is not good at law.” 2 Freem. 217, a. D. 1697. (i) Toth. 259, Brown v. North, 8 Jac. L; ib. 239, 10s. paid; ib. 260, 5l. paid; et v. p. 265. See 2 Freeman, 216. (k) Dict. Lord Keeper, 2 Freem. 246; and see Mitf. 116,-where parties meaning to create a good title have used an imperfect instrument; and see 1 Fonbl. 149. (1) Kemp v. Palmer, Toth. 76; Gibson v. Paterson, i Atk. 12. Lord Hardwicke seems to have considered that time, generally speaking, was not a material ingredient in equity, though the time fixed is of the essence of the contract at law, Sugd. V. & P. i. 402. Now time alone may be a sufficient bar to Agreements founded on Parol-Stat. of Frauds. 646 agreements relating to estates in land; specific performance was decreed of an agreement to execute a deed granting a deputation for the use of a patent during the life of the plaintiff (a). The court would not decree the specific performance of an agreement on the evidence of a single witness, but the ascertainment of the fact was referred to a trial at law, and the equity, that is, whether a specific performance should be decreed, was reserved (b). Lord K. Egerton, for avoiding perjuries, put bounds to the practice of applying to the court on parol evidence only (c). This was afterwards effectually accomplished by the Statute of Frauds; and then the doctrine of part performance, as taking the case out of the statute, arose (d), which will be considered in the subsequent volume of this work; the principle of which doctrine is, that where there has been a substantial part performance of the agreement, it would be a fraud to take advantage of the statute. A covenant was equally enforced as an agreement. A covenant to settle lands to which the covenantor was entitled in possibility, was specifically enforced when the covenantor, by coming into possession of the lands, was enabled to perform his covenant (e). An agreement for further assurance was enforced, though not demanded within the time fixed for the completion (f). The heir was liable to perform his ancestor's contract (g); but the court would not enforce the performance of any agreement unless there were a sufficient consideration. At one time the court hesitated to decree performance of an agreement relating to copyhold lands, in respect of the rights of the lord; but about 1680, "the distinction was laughed out of court" (h). *There are obvious reasons, besides those before mentioned, [*647] why in later times, when the powers of the court became more completely developed, this court should have sustained its jurisdiction; the peculiar powers which it has, as before noticed, by reference to its officers, to ascertain whether the vendor has a good title to the estate. sold, is one; and there is no branch of its jurisdiction which has been more universally approved. In some cases, the specific performance of contracts for the delivery of chattels, and the performance of specific acts were enforced. In one case the defendant was compelled to deliver a quantity of wool to the plaintiff according to the tenor of a recognizance he had entered into (i); in another, the defendant was decreed to procure for the plaintiff a license to export certain corn; on that being done the plaintiff was to deliver to him so much wheat according to the condition of a bond he a specific performance in equity, ib. 409; and it may be made of the essence of the contract, ib. 432, et seq. (a) Reg. L. A. 1582, fo. 231, inf. 647. (b) Toth. 262, 10 Car. I. (c) Cary, p. 10; Choice Ca. in Ch. 148. (d) The first case appears to have been Butcher v. Stapeley, 1 Vern. 365, Floyd v. Buckland, 2 Freeman, 268, v. 1 V. & P. p. 199. (e) Winman v. Roper, 1 Rep. Ch. 85, 21 647 Specific performance of Awards. had entered into: but the plaintiff was in all cases left to his remedy at law, where that would answer the ends of justice (a). The principle still remains the same; but now it is considered that compensation in damages is all that justice requires, in many cases where specific performance was formerly decreed, and they are accordingly left to the common law (b). So a contract for building a house (c), and a covenant to repair, might then be enforced in specie; in the latter case viewers were appointed to see to the proper completion of the work (d). There is an instance of a person being restrained from preventing another from specifically performing his part of a contract, the defendant having in view by his obstructions to get an excuse for not performing his own part of the contract (e). A person who had entered into a valid contract for the purchase of an estate was considered by the Court of Chancery as the beneficial owner, so that he might devise the estate in the same manner as if it *had been conveyed to him (f). Then, as now, the estate was [*648] considered, in substance, as the land of the purchaser, the price the money of the vendor (g), on the principle, that what is agreed to be done is to be considered as done, which is an acknowledged maxim of the court. That the bargain had by accident become a very disadvantageous one to the vendor, did not prevent his being compelled to complete it (h). The court, it may be observed, also exercised the very beneficial jurisdiction of rescinding agreements improperly obtained, so that a party might not be harassed by such an agreement being put in suit against him. The specific performance of awards was enforced on the ground of carrying into effect the original agreement to perform the award (i). In a case where it was proved by the arbitrators that they had made a mistake in their award, by omitting the word "heirs" in the estate given to one of the parties, the award was rectified (). Analogous to the doctrine of specific performance is the jurisdiction which the court has entertained from an early period, of compelling the (a) Bykers v. Salomy, 36 & 37 Hen. VIII. the performance. One of the judges of the fo. 37; Banks v. Sheriff, Toth. 261. (b) Mitf. 118-9. (c) See the proceedings, Tyngelden v. Warham, Cal. vol. ii. p. 54, temp. Edw. IV. There is a rejoinder, but no decree; the contract was by deed. The jurisdiction is recognized, Y. B. 8 Edw. IV. fo. 4, by the Chancellor, and by Gernney, though Fineux, C. J. 21 Hen. VII. fo. 41, insisted that the proper remedy on breach of a contract to build was by action on the case. Lord Rosslyn seems to have thought that where the terms were sufficiently definite such an agreement might still be enforced, Moseley v. Virgin, 3 Ves. 185. This subject will be considered hereafter. (d) Kempe v. Fitche, 7 & 8 Eliz. fo. 340. A writ of injunction was issued to enforce Court of King's Bench lately went far be yond what the Court of Chancery has ever done, by granting a rule nisi for a mandamus to compel a person under the Building Act to reinstate the paper and decorations on the new as they were on the old party wall; however, it was treated as an experiment, and discharged with costs. Regina v. Pensford, vii. Jurist, 767, 1843. (e) Cary, 84. (f) Foljambe's case, A.D. 1651, cited Nelson, C. R. p. 77. (g) See i Salk. 154, 3 P. W. 215. (i) Choice Ca. in Ch. 166, 25 Eliz. (k) Scott v. Wray, temp. Car. I. 1 Rep. Ch. 46, and see Choice Cas. p. 116, 19 Eliz. |