1. Matters relating to the jurisdiction generally.

2. By whom specific performance may be enforced.

3. Against whom it may be enforced.

4. As to the parties to the suit.

5. As to the Bill.

6. As to proceeding by claim under the Orders of April, 1850.

7. As to how the plaintiff's case may be sustained in the absence of a written agreement - fraud - part-performance - admission by Defendant of parol agreement - parol variation of written agreement.

8. As to grounds of defence negativing plaintiff's right to specific performance except with a variation of the original agreement; viz., fraud - mistake - surprise-misrepresentation-unfulfilled promise - parol variation, etc.

9. As to grounds of defence negativing in toto plaintiff's right to specific performance; viz., personal incapacity - nature of contract, or fraud, etc. etc, attending its execution - matters relating to the estate - title - or consideration - plaintiff's conduct, &C. after contract - election of other remedy.

10. As to the proceedings in the suit; viz., payment of purchase-money into Court - reference of title and proceedings thereon - decree for plaintiff - conveyance - decree dismissing bill.

11. As to costs.

(1.) The only remedy to be obtained in Equity for the non-performance of the contract, is a decree for specific performance (a): at one time there was a floating idea in the profession that the Court might award compensation for non-performance, in the event of the primary relief failing; but the contrary has been settled by modern decisions (b): nor does it make any difference that compensation is sought, not against the owner of the estate, but against a person who falsely assumed authority to sell (c).

Specific performance the only remedy in Equity.

The Court of Review, (or now the Court of Bankruptcy,) cannot enforce specific performance against a purchaser who has not expressly submitted himself to the Jurisdiction (d); nor, perhaps, even against one who is willing so to submit himself (e).

The principle by which Courts of Equity have professed to be guided in decreeing specific performance of a contract for purchase, is, that damages at Law may not, in the particular case, afford a complete remedy (f): they will, therefore, decline to interfere if the subject-matter of the contract be such that both vendor and purchaser would be reimbursed by damages; as on an ordinary agreement for the sale of Stock (g): in the case of land, the purchaser's right to sue can never be questioned upon this ground; for the land may, to him, have "a peculiar and special value" (h): it is more difficult to understand why the Courts should entertain a suit by a vendor, who, the title being accepted and there being nothing special in the case, wants nothing but his purchase-money and interest, which an action at Law would give him: it appears, how ever, to be settled that, upon the principle of affording mutual remedies, the Courts will entertain such a suit (i); whether the consideration be a life annuity, or a gross sum (k).

Court of Bankruptcy cannot enforce specific performance, semble.

Inadequacy of damages the principle on which specific performance is decreed.

But, on ground of mutuality of remedy, vendor who only wants his purchase-money may sue in Equity.

(a) Specific performance of contract for sale or purchase of Railway shares will be enforced; Duncuft v. Albrecht, 12 Sim. 189, affirmed 199; Shaw v. Fisher, 12 Jur. 152; Wynne v. Price, 13 Jur. 295.

(b) Todd v. Gee, 17 Ves. 273; Sainsbury v. Jones, 5 Myl. & Cr. 1, see p. 3.

(c) Sainsbury v. Jones, 5 Myl. & Cr. 1.

(d) Ex parte Cutis, 3 Dea. 242, overruling Ex parte Gould, 1 G. & J. 231; Ex parte Sidebotham, 3 D. & C. 818; and Ex parte Barrington, 4 D.& C. 461.

(e) See Ex parte Bennett, 10 Ves. 382.

(f) See Adderley v. Dixon, 1 Sim. & St. 610.

(g) Cud v. Butter, 1 P. Wms. 570; Nutbrown v. Thornton, 10 Ves. 159, 161.

(h) 1 Sim. & St. 610.

Whether the mere fact of the defendant being bound under an Act of Parliament to complete the contract, and of the plaintiff having an easier remedy by Mandamus, will prevent the latter from resorting, (if he please,) to a Court of Equity, seems to be doubtful (l): if, however, a plaintiff proceed both at Law and in Equity for the same subject-matter, he may, by order of course, be compelled to elect between his action and suit (m): and this relief has been afforded where a landlord had filed a bill against his tenant for specific performance of an agreement to take a lease, and was also suing him for use and occupation of the premises during part of the term (n): but where the action is brought for the non-performance of particular acts: - e. g., to improve or repair the property - the performance of which is not specifically prayed by the bill, or which are acts the specific performance of which cannot be decreed, and the action is brought only for such damages as were sustained up to the time of its commencement, no case for election seems to arise (o).

And although the agreement may in itself vest in the purchaser the interest contracted for (p), yet, if it appear on its face that a further instrument is necessary to carry-out the intentions of the parties, the Court will decree specific performance of the agreement in that particular (q).

Whether the existence of an easier remedy by mandamus is a bar.

Plaintiff cannot proceed at once at Law and in Equity.

Specific performance when decreed, although contract may vest estate in purchaser.

(i) Withy v. Cottle, 1 Sim. & St. 174; Adderley v. Dixon, ib. 607; Clifford v. Turrell, 1 Y. & C. C. C. 138; see V. C. Wigram's judgment in Adams v. Blackwall Railway Company, 13 Jur. 621.

(k) Clifford v. Turrell, ubi supra; affirmed, 9 Jur. 633.

(7) See Walker v. Eastern Counties Railway Company, 6 Ha. 594;

Adams v. Blackwall Railway Company, 13 Jur. 620, V. C. Wigram, reversed on appeal, 2 Mac. & G. 118; see also Hyde v. Edwards, 13 Jur. 757, R.

(m) Danl. Ch. P. by H. 791, 793; Royle v. Wynne, Cr. & Ph. 252.

(n) Ambrose v. Nott, 2 Ha. 649.

(o) See Fennings v. Humphery, 4 Beav. 1, 7.