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suit, the writ proceeds on a very different supposition that this Court will give damages for the breach of covenant ; and accordingly the writ is marked with the sum which the verdict of a jury had already awarded on that account. The payment of that sum, however, forms no part of the relief sought by the bill; nor could the bill be so framed as to include such relief without becoming open to a demurrer; for the cases of Denton v. Stewart, and Greenaway v. Adams, in which this Court bas taken upon itself to assess and award compensation in the nature of damages for breach of contract, have been over-ruled by Lord Eldon in Todd v. Gee, and are no longer law.

Sir E. Sugden and Mr. Stuart, contrà.

According to the agreement between Jenkins and Parkinson, the latter was to accept a lease containing a covenant to indemnify Jenkins against his liabilities to Cockburn. The Plaintiffs, as representing Jenkins, have now an indisputable right to call upon Parkinson for a specific performance of his agreement; and their bill is properly framed for this object. But previously to the filing of the bill, a breach had been committed in one respect against the covenant in the contract, (which, be it observed, is large enough to cover every possible breach), and as the damages have been ascertained by means of an action, and as a complete performance in specie is no longer possible in respect of the covenant, which was broken before the Court was called to interpose, a court of equity will give, as a part of the relief incident to the suit, and as the best substitute for the thing actually contracted for, the amount of compensation declared by a jury to be a just equivalent for the injury sustained. The Defendant is bound, and in equity compellable, specifically to perform his contract




in every part : one material part of the contract is the covenant under which the Plaintiffs are entitled to an indemnity from Parkinson, as well in respect of the breach that has already taken place, as of all future breaches of the covenant; and the value of the indemnity in the former case, which forms an integral portion of the specific performance to be decreed, is exactly measured by the amount of the damages assessed at law; and the payment of that amount, therefore, is substantially included in the relief which is prayed by the present bill. The circumstance that a verdict has been recovered for the 15001. does not change the nature of the debt. That debt is equitable merely, and ought to be considered as standing on the same footing with the price agreed to be given for the purchase of an estate. It will hardly be contended that a vendee may not file a bill in equity for the amount of the purchase money, and obtain a ne exeat on such a bill, although all the specific performance he could ultimately have would be simply the payment of the money. (a)

It is an error to suppose that there is any general rule forbidding a party to come into equity for damages. Besides the familiar instance of a bill by the vendee of an estate, there are several cases, like Denton v. Stewart, where the Court, in order to do complete justice between the parties, and avoid the necessity of sending them to law, has directed references to the Master, for the purpose of assessing the amount of compensation; the principle being that where the main object is strictly of equitable cognisance, the Court will not give the remedy by piecemeal, but will itself deal with the whole subjectmatter of the suit. All the cases referred to on the other

side (a) Raynes v. Wyse, 2 Mer. 472. Boehm v. Wood, iT. & Russ. 332.


side are cases where there was a good debt at law, and therefore they do not touch the present question.



Nov. 25.


The bill filed by the executors has plainly, though covertly, this object-to obtain the costs of their testator's action against Parkinson, which costs are otherwise likely to be lost. The Plaintiffs have, by the death of Jenkins, lost the benefit of his verdict, and though a new action may be brought at law upon the covenant of indemnity, and though in that they will be enabled to recover the sum of 15001. paid by the testator on Dr. Cockburn's action against him, together with the costs of that action, they will not be able to recover the costs of the action brought by the, testator against Parkinson, and in which the judgment was not perfected when Jenkins died. Whether or not the Court of King's Bench would allow them to enter up judgment nunc pro tunc upon this verdict, if they could prove that the delay and loss of the judgment were occasioned (as is alleged) by Parkinson's attorney wilfully keeping back the papers, and obstructing the taxation of costs, is another question; though I incline to think that no such relief could be given them, and that therefore the costs of the testator's action are gone.

But have the executors a right on that account to come here, and having—whether by the testator's laches, or through the conduct of the Defendant's attorney, is immaterial - lost the fruits of their testator's verdict, to call upon this Court to treat their claims as equitable, and give them relief? It may be a sufficient answer to say that such is not the prayer of their bill. The bill sets forth the agreement with Parkinson, whereby the latter under



took to build upon the demised premises, and to save the 1833. testator harmless against the breach of covenant which

JENKINS such building might occasion, and it prays a specific performance of the agreement. To what would that per- PA formance amount? To compelling Parkinson to build, and also to save harmless the representatives of Jenkins : in other words, to perform his covenants. The Court will compel him to execute a lease with covenants, which he had agreed to make; but not to do the thing which those covenants had bound him at law to do, under pain of being sued for the breach. But even if the Court could compel him to the thing covenanted, there is no covenant to pay that which has been lost by the testator's death, viz. the costs of his action. If there were any such covenant, the executors would not be remediless at law; they could proceed for those costs as well as for the 15001., and the costs of the action against Jenkins.

But suppose the bill had, as has sometimes been attempted, distinctly prayed performance, or compensaation for non-performance, or had prayed compensation for the breach, under the covenant of indemnity, it would then have asked that the damages might be ascertained by an issue, or by a reference to the Master, which was the course pursued in Denton v. Stewart and Greenaway v. Adams (a). The Plaintiffs cannot be in a better position than if their bill had taken that form; for, unless the damages, or, as they would call it, the compensation, to give it a less legal and more equitable aspect, can be so ascertained, the relief cannot be awarded.

In Todd y. Gee(6) the question was raised, whether a party was entitled to satisfaction by way of damages for the non-performance of an agreement, to compel the

execution (a) 12 Ves. 395.

(6) 17 Ves. 273.





execution of which the suit was instituted, and Lord Eldon there held, that, unless in very particular circumstances, the party was not so entitled. His Lordship did not, in express terms, over-rule Denton v. Stewart, but he did every thing short of denying it to be law; and it was strongly represented at the bar to be a decision made under the pressure of strong claims of justice, but one which should have been forgotten as soon as it was pronounced. In Greenaway v. Adams (a), it was admitted to be the solitary authority for the point, and though it was there followed, because the Master of the Rolls said he would not over-rule what Lord Rosslyn had decided, yet he most reluctantly adopted it; and in a subsequent case (6), expressing the great doubts he had felt of its authority in Greenaway v. Adams, he refused to follow it a second time. The current of all the previous authorities against it, to which Lord Eldon refers in Todd v. Gee, may therefore be considered as restored after a temporary and dubious interruption, and it may now be affirmed that those two cases are no longer law.

But even if they were law, and if this Court, entertaining such a suit, could refer it to the Master to ascertain the compensation due for non-performance of an agreement, or for breach of a covenant, it by no means follows that a ne exeat should issue on the filing of the bill, For what sum is the writ, in such a case, to be marked ? This question occurs in the outset: and, as was said by Lord Thurlow in another case (c), the impossibility of answering it in any way but one,

that the sum must be left to the discretion of the Court, -seems to be an insurmountable objection. Nor will it do to say that 15001. were found due by a

jury. (a) 12 Ves. 395.

(c) Coglar ve Coglar, i Ves. (6) Gwillim v. Stone, 14 Ves. jun. 94.

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