In what cases be in such a case; and, it is probable, if the question granted.

Injunctions in the nature of specific

is ever maturely considered, that a contrary determination will be adopted.

But, where it is clear that the covenant is of such a nature that a court of equity cannot make a compensation for the breach of it; as in breaches of covenants not to assign without licence (a), or to keep the premises insured (b), relief will not be given against the penalty. Considerable discus

sion also has taken place how far the court would relieve against a forfeiture for breach of a covenant to repair. In the case of Sanders v. Pope (c), Lord Erskine, upon the authority of a determination of Lord Macclesfield (d), expressed a strong opinion in favour of the equitable interposition; but the doctrine, after full and elaborate discussion, has been established to the contrary (e). The same determination would consequently be made with respect to the breach of a covenant to build; though the authorities are conflicting, as to the power to decree a specific performance in such case (ƒ).

As courts of equity on the one hand interpose to restrain the recovery of penalties, the principles of performance. equal justice require on the other, that they should enforce the specific performance of the act agreed

(a) Wafer v. Mocatto, 1 Salk. 156. 2 Vern. 594. 1 Eq. Ab. 108. (b) Rolfe v. Harris, 2 Price, 206. n. Reynolds v. Pitt, ib. 212.

S. C. 19 Ves. 134. White v. Warner, 2 Meriv. 459.

(c) 12 Ves. 282.

(d) Hack v. Leonard, 9 Mod. 91.

(e) Hill v. Barclay, 16 Ves. 402. 18 Ves. 56. Bracebridge v. Buckley, 2 Price, 200. Sed vide Hannam v. South London Waterworks Company, 2 Meriv. 67. n.

(f) There are two instances of specific performance decreed of

to be done, or restrain from the doing of that which In what cases it was agreed should not be done (a).

Injunctions in the nature of Specific Performance, are usually of two kinds. 1st. Where granted on the application of the landlord, to restrain the tenant, from a violation of some covenant contained in his lease the cases upon which will be considered in a subsequent part of this treatise. 2dly. Where injunctions are granted, upon the application of a tenant holding under an agreement for a lease, to restrain the landlord from proceeding against him in ejectment. This relief is granted, upon the common equity, of the tenant being entitled to the specific performance of the agreement, by the execution of a lease. If, however, it appears from the answer, that the tenant is not entitled to a decree for a specific performance, the injunction will be either refused, or granted only upon his undertaking to give judgment in the ejectment, to go to commission and set down the cause for the ensuing term; and he is at the same time required to pay the rent into court. The latter course was adopted in a case where the answer stated the insolvency of the tenant, and various breaches of the agreement during five years

covenants to rebuild, City of London v. Nash, 3 Atk. 515. 1 Ves. 12. Allen v. Harding, 2 Eq. Ab. 17. and in Moseley v. Virgin, 3 Ves. 184. Lord Rosslyn stated, that a specific performance might be decreed. Lords Thurlow and Kenyon, on the other hand, have pronounced a contrary opinion. Errington v. Aynesley, 2 Bro. C. C. 343. Lucas v. Comerford, 3 Bro. C. C. 166. 1 Ves. jun. 235. That a covenant to repair cannot be specifically performed, vide Rayner v. Stone, 2 Eden, 128. Flint v. Brandon, 8 Ves. 159.

(a) 1 Fonb. 5th Ed. 153.

granted.

In what cases possession (a). In a subsequent case the injuncgranted. tion was refused, upon the ground of insolvency in the tenant, and the fact of his having injured the premises (b). And it has been repeatedly stated by Lord Eldon, that if an agreement contains covenants, which must be inserted in the lease if the agreement be specifically performed; if they are of that nature that a court of equity will not relieve against a forfeiture for the breach of them, and the tenant has committed breaches, an injunction will not be granted (c). It would indeed be nugatory to compel the execution of a lease, which the lessor might immediately determine by an ejectment for breach of a covenant, against which no relief could be had in equity. It appears also, that even if the agreement contained no clause of reentry, yet if the court saw a gross case of waste, or of breaches of covenants which could not well be indemnified at law, that it would refuse to interpose (d). But, on the other hand, if the landlord has done any act which would amount to a waiver of the forfeiture, the court decreeing a specific performance, would not allow him to take advantage of the fact, that the lease bore date before it was actually made; and exclude the tenant from the benefit of those circumstances, which constitute a waiver of the forfeiture at law (e).

Account.

Another ordinary head of equitable jurisdiction is

(a) Boardman v. Mostyn, 6 Ves. 467.

(b) Buckland v. Hall, 8 Ves. 93.

(c) 1 V. & B. 72. 3 V. & B. 30.

(d) Gourlay v. Duke of Somerset, 1 V. & B. 68.

(e) Ib. 73.

that of Account, upon which courts of law being In what cases unable to afford so complete a remedy as courts of granted. equity, a concurrent, and in some respects an exclusive, juris liction has been assumed by the latter (a). Thus wherever it appears from the nature of the transactions, that a plaintiff is entitled to an account, the court considers this as a sufficient ground for an injunction to restrain the defendant from proceeding in a claim, the correctness of which cannot be ascertained, till the account has been taken: as in a case where there had been dealings between a landlord and tenant, so extensive as to produce an account too complicated to be taken at law, and the landlord had brought an ejectment for nonpayment of rent, it was holden, that the tenant might file a bill, before judgment at law, for an account, and to have the balance applied to the rent claimed to be due, without bringing in the rent under the statute (b). But where the subject is merely matter of set off, and capable of proof at law, a bill for an account will not lie (c); and accordingly in a recent case, where a bill by a tenant to restrain proceedings at law for rent, alleged an agreement, under which the landlord was indebted more than the amount of the rent; this being merely a legal set off, a demurrer was allowed (d). The court of Exchequer, however, have determined, that a bill for an account and an injunction, was not de

(a) Ex parte Bax, 2 Ves. 388. Bateman v. Willoe, 1 Sch. & Lef. 205. Corporation of Carlisle v. Wilson, 12 Ves. 279.

(b) O'Connor v. Spaight, 1 Sch. & Lef. 305.

(c) Dinwiddie v. Bailey, 6 Ves. 136.

(d) Townrow v. Benson, 3 Madd. Rep. 203.

In what cases murrable, on the ground that the plaintiff in equity, granted. stating a balance to have been acknowledged in his favour, might have pleaded it at law on notice of set off: and it appears to have been admitted, that it is sufficient for the purpose of obtaining an injunction, that the plaintiff should state in his bill and affidavit, that an unsettled account subsists between the parties, and that the defendant would be found indebted to him on such account, in a greater sum than he is proceeding for (a).

The following question, at one time caused considerable difficulty; viz. whether, where there were partners, and a separate creditor took a moiety of the chattels in execution, he might call for a sale, and take a moiety of the money arising from it; or whether the court would force upon him the whole account of the partnership, and permit him only to take that interest which the partner, his debtor, would have been entitled to after the account? This subject, which had been noticed before (b), received a very elaborate discussion in a case in the Exchequer (c), where the doctrine, which has since been adopted (d), was laid down as follows: Whether the partner for valuable consideration sells his interest in the partnership, or his representatives take it upon his death, or a creditor takes it in execution,

(a) Wattleworth v. Pitcher, 2 Price, 46.

(b) Richardson v. Gooding, 2 Vern. 293. West v. Skip, I Ves. 239. Fox v. Hanbury, Cowp. 445. Hankey v. Garrett, 3 Bro. C. C. 457. 1 Ves. jun. 236.

(c) Taylor v. Field, 4 Ves. 396. 15 Ves. 559. n.

(d) Barker v. Goodair, 11 Ves. 78. 557. Dutton v. Morrison, 17 Ves. 193.

Young v. Keighly, 15 Ves.