This section is from the book "Dart's Treatise On The Law And Practice Relating To Vendors And Purchasers Of Real Estate", by J. Henry Dart . Also available from Amazon: A treatise on the law and practice relating to vendors and purchasers of real estate.
Constructive notice of the covenant sufficient.
280 ; Mackenzie v. Childers, sup. ; Rowell v. Satchell, 1903, 2 Ch. 212 : 73 L. J. Ch. 20.
(d) Western v. McBermott, (1866) 1 Eq. 499, 506 ; see Sheppard v. Gil-wore, (1887) 57 L. J. Ch. 6.
(e) Knight v. Simmonds, 1896, 2 Ch. 294 ; 65 L. J. Ch. 583 ; Rowell v. Satchell, 1903, 2 Ch. 212; 73 L. J. Ch. 20.
(f) L. & S. W. B. Co. v. Gomm, (1882) 20 Ch. D. at p. 583.
(g) Patman v. Harland, (1881) 17 Ch. D. 353 ; 50 L. J. Ch. 642 ; Nottingham Brick Co. v. Butler, sup.
(A) Inf. p. 890.
(i) Parker v. Whyte, (1863) 1 H. &
M. 167 ; Bobson v. Flight, (1865) 4 D.J. & S. 608; 34 L. J. Ch. 101.
(k) Wilson v. Hart, (1866) 1 Ch. 463 ; 35 L. J. Ch. 569 ; ef. Carter v. Williams, (1870) 9 Eq. 678 ; 39 L. J. Ch. 560, where the covenant being contained in a deed which did not necessarily form part of the title, no examination of the full title would have brought it to light.
(/) See, too, Clements v. Welles, (1865) 1 Eq. 200 ; 35 L. J. Ch. 265 ; Morland v. Cook, (1868) 6 Eq. 252 ; 37 L. J. Ch. 825 ; Feilden v. Slater, (1869) 7 Eq. 523 ; 38 L. J. Ch. 379.
(m) Parker v. Whyte, (1863) 1 H. & M. 167 ; see Wilson v. Hart and
Effect of V. & P. Act, 1874, and Conv. Act,
The primary equitable remedy is, as we have seen, an injunction to restrain a breach of the covenant; but now, since
Damages awarded under Lord Cairns' Act. clements v. Welles, sup.; Evans v. Davis, (1879) 10 Ch. D. 747 ; 48 L. J. Ch. 223; Hall v. Emn, (1888) 37 Ch. D. 74 ; 57 L. J. Ch. 9.5; John Bros., etc. Co. v. Holmes, 1900, 1 Ch. 188; 69 L. J. Ch. 149; Holloway Bros. v. Hill, 1902, 2 Ch. 012 ; 71 L. J. Ch. 818 ; and see Mumford v. Walker, (19C2) 71 L. J. K. B. 19.
(n) Mander v. Falcke, 1891, 2 Ch. 657.
(o) Feilden v. Slater, sup.
(p) King v. Dickeson, (1889) 40 Ch. D. 59G; 58 L. J. Ch. 4G4 ; cf. Fleetwood v. Hull, (1889) 23 .Q. B. D. 35; 58 L. J. Q. B. 311.
(q) Patman v. Harland, (1881) 17 Ch. D. 353 ; 50 L. J. Ch. G42 ; Thornewell v. Johnson, (1881) 50 L. J. Ch. 641 ; inf. p. 891.
(r) Rowell v. Satchell, 1903, 2 Ch. 212; 73 L.J. Ch. 20.
The passing of the Chancery Amendment Act, 1858, s. 2 (Lord. Cairns' Act), the Court may, in all cases where it has jurisdiction to entertain an application for an injunction against a breach of covenant, or against the commission or continuance of any wrongful act, award damages to the party injured either in addition to, or in substitution for, such injunction; and such damages may be awarded, even though not specifically claimed (s). Smith, L. J., stated that as a good working rule, the Court might give damages in lieu of an injunction in cases where (1) the injury to the plaintiff's legal rights was small, (2) was capable of a money estimation, (3) could be adequately compensated by a money payment, and (4). the case was one where it would be oppressive to the defendant to grant an injunction (7). Where the plaintiff is entitled to an injunction, the Court will, in addition, award damages in respect of past breaches of the covenant (u) ; or in substitution, where, after the issue of the writ, an injunction has become impossible (.r) ; or where the plaintiff has been guilty of laches (y) ; or where damages are the more appropriate remedy (s). In Doherty v. Allman (a), it was laid down by Lord Cairns that if parties for valuable consideration with their eyes open contract that a particular thing shall not be done, all that a Court of Equity has to do is to say by way of injunction that which the parties have already said by way of covenant, that the thing shall not be done. It is not in such a case a question of the balance of convenience or inconvenience, or of the amount of damage, or of injury ; but of the specific performance by the Court of that negative bargain which the parties have made, with their eyes open, between themselves. This doctrine is subject, of course, to the general qualification, established by such cases as the Duke of Bedford v. Trustees of British Museum (b), which emphasizes the equitable nature of the jurisdiction, by laying down that the plaintiff who is entitled to the benefit of the restrictive covenant may by his conduct, or omissions, place himself in such an altered relation to the person bound by it, as makes it manifestly unjust for him to ask a Court to insist upon its enforcement by injunction. It must not be supposed that this qualification suggests that a contractual obligation can disappear, even as regards the equitable remedy attaching to it, as circumstances change. It applies only where such an alteration takes place through the acts or permission of the plaintiff, or those under whom he claims, that his enforcing his covenant becomes unreasonable (e). And upon the same principle an amount of acquiescence, less than that which would be a bar to all remedy, may operate on the discretion of the Court, and induce it to give damages instead of an injunction (d). In exercising its discretion the Court will take into consideration all the circumstances of the case (e).
Where injunction the only remedy.
(s) Catton v. Wyld, (18G3) 32 Beav. 266. As to the remedy by injunction on a representation not amounting to a covenant, see Pig-gott v. Stratton, (1859) 1 D. F. & J. 33; 29 L. J. Ch. 1 ; Martin v. Spicer, (1886) 34 Ch. D. 1 ; Spicer v. Martin, (1888) 14 A. C. 12; 58 L. J. Ch. 309.
(t) Shelfer v. City of London Electric Lighting Co., 1895, 1 Ch. 237, 322 ; 64 L. J. Ch. 216 ; and see this case as to the effect of Lord Cairns' Act generally.
(u) Hindley v. Emery, (1865) 1 Eq. 52 ; 35 L. J. Ch. 6.
(x) Catton v. Wyld, (1863) 32 Beav. 266.
(y) Senior v. Paivson, (1866) 3 Eq. 330, not a case under a covenant.
(z) Martin v. Headon, (1866) 2 Eq. 425 ; 35 L. J. Ch. 602.
(a) (1878) 3 A. C. 709, 720 ; Cooke v. Gilbert, (1892) 8 T. L. R. 382 ; Formby v. Barker, 1903, 2 Ch. 539, 554; 72 L. J. Ch. 716; and see Richards v. Pevitt, (1877) 7 Ch. D. 224 ; 47 L. J. Ch. 472.