Impossibility of either of three kinds may prevent a decree for specific performance. If the court cannot enforce their own decree, this is a reason for not issuing one. (y) For example, if the

(x) Newham v'. May, 18 Price, 752 Bat it seems compensation may be given where there would have been a case proper for a specific performance, but for the conduct of the defendant in wilfully disabling himself from performing his contract. Denton v. Stewart, 1 Cox, 258; Sir William Grant, M. R., Blore v. Sutton,

3 Meriv. 248; Greenaway v. Adams, 12 Ves. 401, 402; Todd v. Gee, 17 Ves. 278; Woodcock v. Bennet, 1 Cowen, 711. (But see Clinan v. Cooke, 1 Sen. & L. 25; Sains-bury v. Jones, 5 Mvlne & C. 2 Beav. 465.) And it has been held to make no difference whether the disabling act of the defendant be done before or after the commencement of the suit. Andrews v Brown, 3 Cush. 130. Whether the plaintiff's claim to compensation in such case is affected, if he had knowledge when he filed his bill, that a specific performance was impossible, quart. See Hatch v. Cobb,

4 Johns. Ch. 560. Wilde, J., 3 Cush. 135. See Sainsbury v. Jones, ubi sup.

(y) Baldwin v. Society for Diffusing Useful Knowledge, 9 Sim. 393; Clarke v. Price, 2 Wilson, Ch. 157; Deular v.

Hile, 123 Ind 68; Bourget v. Monroe, 58 Mich. 563; Campbell v Rust, 85 Va. 653. Gervais v. Edwards, 2 Drury & W. 80, I Con. & L 242, was an application for the specific performance of an agreement between the plaintiff and the defendant for the straightening of a winding river which divided their lands; which agreement, besides providing for a mutual compensation for soil taken from one or the other by the new cut, stipulated for the adjustment and compensation of certain contingent damages which might be thereafter occasioned. The plaintiff in his bill waived his own right to compensation for the future, and contingent damage; but it was held, that the other provision for the benefit of the defendant (which it was not possible for the plaintiff so to get rid of) was an invincible obstacle to the specific enforcement of the contract. The observations of the Chancellor (Sugden) are very instructive: "As far as the merits of the case go, I would decree the specific execution of this contract: but I do not see how it is possible. If I execute it at all, I must execute it m toto; and manager of a theatre asks a court to compel an actor to execute his agreement to play for him, the court cannot then tell in what manner he is to play the part, and this is of the essence of the bargain. (z)

But the impossibility may be on, the part of the defendant (a) *We have considered elsewhere when an imhow can I execute it prospectively? The court acts only on the principle of executing it in specie, and in the very terms in which it has been made; therefore, when you come to the specific execution of a contract containing many particulars, you must see that it is possible to execute it effectually. The court cannot say, that when an event arises hereafter, jt will then execute it. In the case of a decree for the execution of a contract for the sale of timber, it is no objection that it is to be cut at intervals, that is certain, and the mere delay will not prevent the court from executing it, there the agreement is executed in specie, the court decrees to one the very timber contracted for, to the the other, the very price. If I am called on now to execute this agreement, I can only specifically execute a portion, whereas lam bound to execute it all." After distinguishing the case of an agreement for a covenant for a thing to l>e done thereafter, which can be specifically executed by the making of the covenant, from a case like the present, of an agreement to do the thing itself when the contingency shall give occasion for it, his lordship added: "No precedent has been cited; but, indeed, none is necessary. It is a question of principle; and I am clearly of opinion, that if I gave a decree now, it would not be a specific execution of the contract, but only a declaration that there ought to be a specific execution of it hereafter. 1 must therefore leave the plaintiff to his remedy at law " I Con. & L. 244, 245

(z) De Rivafinoli r. Corsetti, 4 Paige, 264. But see ante, p. * 375, note (p).

(a) As where the defendant has contracted that a third party shall do some act which such third party refuses to do. See Thorn bury r. Bevill, 1 Younge & C, Ch. 564. If the contract particularly pro-ride that some act of the other party, the parties jointly, or a third party, or some other event, shall be the foundation for what the defendant is to do, then if such act or event have not occurred or been done, the defendant (not having been in fault in the matter) will not in general be compelled to perform the contract Thus, if vendor and vendee have stipulated that the price shall be ascertained by arbitration, whether by a particular arbitrator or by arbitration generally, in such case if the arbitration do not proceed as agreed, and the price is not ascertained according to the mode in which the parties have stipulated, equity has no right to make a different contract from that which the parties have entered into, and ascertain it for them in some different mode. Lord Cranworth, Ch., Morgan v. Milman, 3 De G., M. & G. 34, 35, South Wales Railway Co. v Wythes, 1 K. & J. 186, 31 Eng. L. & Eq. 226, 5 De G., M & G. 880. And see Milnes r Gery, 14 Ves. 400; Blun-dell v. Brettargh, 17 Ves. 232; Gourlay v. The Duke of Somerset, 19 id 429. Compare Gregory v Mighell, 18 id. 328; and other cases of the same class cited ante, p *395, n. (g) In Morgan v. Milman there was an agreement between A and B, that B should pay A for certain lands undertaken to be sold under a power, a compensation to be settled by arbitration, or in another specified mode as A should determine; and A having died without appointing an arbitrator, his executor filed a bill against the remainder-man and B, for a conveyance of the land to B, and completion of the contract; and upon this state of facts, making a somewhat different case from the simple one of vendor and vendee, the Lord Chance/for said: ' It is quite clear that the only point remaining in doubt, namely, the amount of the purchase-money, never was ascertained by either of the modes which were pointed out. It has been suggested that that was immaterial; that the court may ascertain it, or that some other step may be taken different from that which the parties stipulated as the mode of ascertaining what the amount of the purchase-money should be. I confess that, upon principle as well as upon authority, the court cannot here, as it seems to me, take upon itself to do that; if indeed there had been an agreement that the price should be that which was to be ascertained by a fair valuation, then the court might interfere." See the judgment of Wigram, V. C, Downs v Collins, 6 Hare, 433 437; Frederick r. Cox well, 3 Younge & J. 514 Where a literal performance is impossible, or would not, owing to a change of circumstances, accomplish the object of the possibility of this kind is a sufficient defence to an action at law for damages, (b) . But it is obvious that an impossibility which is wholly the fault of the defendant, and would not operate as any defence at law, might still suffice to prevent a decree for specific performance. For if such a decree issued, it could only end in money compensation, or in a mere punishment of the defendant, which would be useless to the plaintiff; but costs would probably be given to a plaintiff in such a case, if specific performance were denied. Neither would specific performance be decreed when the defendant can do the thing, but only by a violation of law; (c) hence a vendor will not be ordered to make sale of a * thing, or give a deed of land when he has no legal title, (d) Nor will specific performance of an illegal contract be enforced, although the party seeking it is in possession of the land, (dd)1 But if there be the strictest impossibility that the party himself should do the thing, - as if he be dead, - but there are those who could do it, and should as his representatives, there are many cases in which they are required to do it A mere pecuniary impossibility is no defence, (de) If one promising to sell land has no. title to it, and the buyer knows this, and the seller is unable afterwards to acquire title, a decree will not be granted, (df ) 2 agreement, equity will sometimes give relief in some other manner as near as possible to that originally stipulated for. Thomas v. Vonkapff, 6 Gill & J. 372. It seems that, in the absence of special circumstances, a party cannot be let off from his contract to purchase one estate because of his inability to complete a contract he had entered into with the vendor at the same time for the sale of another estate. Croome v. Lediard, 2 Mylne & K. 260.