Page:The Green Bag (1889–1914), Volume 01.pdf/44

Rh in 1557: 1 " And no subpoena will lie for her common law, the same being the most indif [the covenantee], as for a cestui que use, to ferent trial, by a jury of twelve men." As compel Sir A. [the covenantor] to execute might be supposed, the most determined op the estate. . . because she has her remedy ponent of this new encroachment of equity at common law, by action of covenant." ' upon the common law was Lord Coke. In In the reign of Elizabeth, however, there Bromage v. Genning,1 the plaintiff applied are several reported cases in which specific to the King's Bench for a prohibition against performance of contracts was decreed.2 a suit for specific performance of a lease There were many similar decrees in the brought against him in the Marches of reign of James I., one of which, according to Wales, on the ground that Genning's proper Tothill, was " by the judge's advice." 3 This remedy was an action at law. Sergeant is, possibly, an error of the reporter. At all Harris, in reply, urged that the object of the events, the hostility of the common-law judges suit was not the recovery of damages but to the jurisdiction of equity over contracts the execution of the lease, and that this was was very plainly expressed, two years later, in regularly done in chancery. Coke, C. J., Gollen v. Bacon,4 by Fleming, C. J.: "If one Doddridge and Houghton, JJ. : " Without doth promise for to give me a horse for 20 doubt a court of equity ought not to do so, shillings, afterwards he doth not perform for then to what purpose is the action on the this; I am not in this case to go and sue in case and covenant; and Coke said that this chancery for my remedy, but at the common would subvert the intent of the covenantor, law, by an action on the case for a breach of since he intended to-have his election to pay promise, and so to recover damages; and this damages or to make the lease, and they is the proper remedy, and the common law would compel him to make the lease against warrants only a remedy at the common law; his will; and so it is if a man binds himself and if the law be so in the case of a horse, in an obligation to enfeoff another, he cannot a multo fortiori it shall be so in case of a be compelled to make the feoffment." Sergeant Harris then confessed that he promise to make an assurance of his land acted in the matter against his conscience, upon good consideration, and doth not per form it, he is not to sue in chancery for and the court accordingly granted the pro this, but at the common law, which is most hibition. This was in 1616, the year of the proper." Croke, J., and Yelverton, J., agreed memorable contest between Lord Coke and herein with the chief justice, who added : Lord Ellesmere as to the power of equity to "There are too many causes drawn into restrain the execution of a common-law judg chancery to be relieved there, which are ment obtained by fraud. Lord Coke was more fit to be determined by trial at the alike unsuccessful in this contest, and in his attempt to check the jurisdiction of equity 1 Wingfield v. Littleton, I)y. 162a 2 Pope v. Mason (1569), Toth. 3; Hungerford v. Hut- in matters of contract. The right of equity ton (1569), Toth. 62; Foster v. Eltonhead ( 1582), Toth. 4; to enforce specific performance, where dam Kemper. Palmer (1594), Toth. 14; King r Reynolds ages at law would be an inadequate remedy, (1597), Ch. Cas. Ch. 42; Beeston v. Langford '1598), has never since been questioned. Toth. 14. a Throckmorton v. Throckmorton (1609), Toth. 4. 11 Roll. R. 368. 4 1 Bulst. 112.