We will now consider those grounds of defence which, assuming the existence of a prima facie valid agreement, go to negative altogether the right to specific performance. These may be considered under the following heads : 1st, the personal capacity of the parties to contract; 2nd, the nature of the agreement, or the circumstances under which it was entered into; 3rd, the estate contracted for ; 4th, the title thereto ; 5th, the consideration; and 6th, the conduct of the plaintiff subsequently to the date of the agreement.

Section 6

Defences where complete written agreement.

As to the 1st of the above heads. - Personal incapacity on the part of the defendant to enter into the contract (s) is, of course, a sufficient defence to a suit for specific performance; unless, having acquired or recovered his contracting capacity, he has confirmed or adopted the agreement. This subject has been fully dealt with in an earlier part of the book, to which the reader is referred (t).

1st, Personal incapacity to contract.

(p) See Shelburne v. Inchiquin, (1784) 1 Br. C. C. at p. 350 ; Jackson v. Cator, (1800) 5 Ves. 688 ; Rich v. Jackson, (1794) 4 Br. C. C. 514, 518.

(q) See Legal v. Miller, (1750) 2 Ves. sen. 299; Price v. Dyer, (1810)

17 Ves. 356, 364 ; Robinson v. Page, (1826) 3 Rus. 114; Sug. 14th ed. 165.

(r) Sug. 14th ed. 165 ; sup. p. 503 el seq.

(s) As to which, vide Ch. 1.

As to the 2nd of the above heads. - Where the contract has been entered into for an illegal purpose, whether the same be expressly prohibited or be merely the subject of a statutory penalty, Equity will refuse to enforce it either directly or indirectly (u); but if the agreement is not positively illegal, the Court will not refuse specific performance, merely because it " savours of illegality" (v) ; and if a legal agreement be intended in all events to be executed according to its terms, it will not necessarily be avoided by a collateral parol stipulation for something not malum in se but merely prohibited (x).

2nd, Matters relating to contract- illegality.

So, also, if the contract be in contravention of the rights of a third party (y), Equity will refuse to interfere; as where, before the Voluntary Conveyances Act, 1893, it derogated from a previous voluntary settlement by the plaintiff vendor (z) ; but specific performance would, before that Act, be enforced, as has been shown (a), at the suit of the purchaser, against the voluntary settlor.

Interference with the rights of a third party.

(t) See Ch. I.

(u) Thomson v. T., (1802) 7 Ves. 470; Syhes v. Bcadon, (1879) 11 Ch. D. 170, 197; 48 L. J. Ch. 522; Knowles v. llaaghton, (1805) 11 Ves. 168 ; De Begnis v. Armistead, (1833) 10 Bing. 107 ; Ewing v. Osbaldiston, (1837) 2 M. & C. 53, 85 ; 6 L. J. N. S. Ch. 161 ; Gas Light Co. v. Turner, (1840) 8 Sc. 609; and see Tomlinson v. Manchester and Birmingham R. Co., (1840) 2 R. C. 104; Ritchie v. Smith, (1848) 6 C. B. 462 ; 18 L. J. C. P. 9 ; G. JV. R. Co. v. E. C. It. Co., (1851) 9 Ha. 306, 312 ; L. B. & S. C. R. Co. v. L. & S. W. R. Co., (1859) 4 D. & J. at p. 389 ; Shrewsbury R. Co. v. L. § N. W. R. Co., (1853) 4 D. M. & G. 115 ; (1857) 6 II. L. C. 112; 26 L. J. Ch. 482, hut the defence is not favoured in Equity: S. C, (1853) 16 Beav. 451 ; and it is allowed effect only for the public benefit, and not for the benefit of the defendant, Holman v. Johnson, (1775) 1 Cowp. at p. 313; and see

Williams v. Bayley, (1866) L. R. 1 H. L. 200, where an ecpaitable mortgage, given by A. as an inducement to forbear taking criminal proceedings against his son, was ordered to be delivered up to bo cancelled ; cf. Re Great Berlin Steamboat Co., (1884) 26 Ch. D. 616; 54 L. J. Ch. 68. See on the subject of illegality generally, Fry, 4th ed. 212 et seq.

(v) Aubin v. Holt, (1855) 2 K. & J. 66, 70 ; 25 L. J. Ch. 36.

(x) Carolan v. Bralazon, (1846) 3 J. & L. 200.

(y) See Harnett v. Yielding, (1805) 2 Sch. & L. 549, 554 ; Gas light Co. v. Towse, (1887) 35 Ch. D. 519 ; 56 L. J. Ch. 889 ; and see and consider Tcacoch v. Benson, (1848) 11 Beav. 355; 18 L. J. Ch. 57 ; Willmott v. Barber, (1880) 15 Ch. D. 90.

(z) Smith v. Garland, (1817) 2 M.r. 123 ; Johnson v. Legard, (1822) T. & R. 281 ; Campbell v. Ingilby, (1857) 1 D. & J. 393.

Again, if the contract be one which the Court cannot execute in all its material terms (b) ; or there are mutual rights incapable of being enforced by an immediate decree (c); or the consideration is the execution of works which the Court cannot superintend (d) ; or there is only an agreement to borrow or lend upon mortgage (c), the Court will refuse its aid. But where money has been advaneed upon the faith of an agreement to execute a mortgage, even with an immediate power of sale, the Court will decree specific performance by ordering the execution of the mortgage (f).

Inability of the Court to execute the contract.

Where the enforcement of the contract would be against public policy; as where it originates in the improper disclosure of evidence taken in a Chancery suit, the Court will not interfere (g) ; nor will it, if the completion of the contract would amount to a breach of trust (h) ; even by reason of a stipulation collateral to the agreement for sale; as where it was agreed that the purchaser should out of the purchase-money retain a debt due to him from the selling trustee (i). And so, where trustees concurred with other fiduciary vendors in a sale of three several properties for an entire sum, which they agreed to apportion among themselves, specific performance against the purchaser was refused (k).

Contract against public policy.

Breach of trust.

(a) Sup. pp. 913, 1033.

(b) Gerrais v. Edwards, (1842) 2D. & War. 80 ; Counter v. Macpherson, (1845) 5 Mo. P. C. 83 ; Doicns v. Collins, (1848) 6 Ha. at p. 437 ; Ford v. Stuart, (1852) 15 Beav. 493; 21 L. J. Ch. 514; Williamson v. Wootton, (1855) 3 Dr. 210 ; Paris Chocolate Co. v. Crystal Palace Co., (1855) 3 Sm. & Gr. 119 ; Waringy.ManchesterR. Co., (1849) 7 Ha. at p. 492 ; 18 L. J. Ch. 450 ; Hope v. H, (185G) 22 Beav. 351 ; S. Wales R. Co. v. Wythcs, (1854) 5 D. M. & G. 880 ; Vansittart v. V., (1858) 4 K. & J. 62 ; 27 L. J. Ch. 222 ; lewis v. Stephenson, (1898) 67 L. J. Q. B. 296.