464. A negative quality will sometimes be imported into an affirmative covenant, and relief afforded by injunction. Thus lessees who had covenanted to manage land or cultivate a farm in a husband-like manner, have been restrained from doing acts. of bad-husbandry, although there was no express covenant to refrain from such acts. But where the affirmative agreement cannot be specifically enforced, the court will not import into it a negative covenant. Thus, where a defendant had agreed to take notes of cases in court, and compose reports for the plaintiff, but had failed to do so, an injunction to restrain him from making reports for other persons was refused. Other instances will be found in the cases cited in the note. Injunctions to restrain breaches of covenant may, if the occasions require it, be of a mandatory character.3 465. The last class of cases in which injunctions are granted, which will be particularly noticed, embraces those in which the writ is issued in the case of corporations. Many cases of this description fall under the jurisdiction of equity upon the subject of trusts; and this jurisdiction, of course, authorizes a court of chancery to interfere wherever the property of a corporation can, under the conditions of its corporate birth, be treated as trust funds, and there is an attempt to apply the property to purposes foreign to the objects of the corporation, in other words, foreign to the trust. The theory upon which the remedy by injunction is administered in such cases is, simply, that the court will interfere to prevent a breach of trust. Thus it has been held in several cases, that, where property is conveyed to a religious corporation upon the trust, either expressed or sufficiently implied, that it is to be held for the benefit of a set of men holding certain religious doctrines, the court will interfere to restrain a use of the property for the benefit of those who do not hold the prescribed doctrines.1 Indeed, the ground upon which the jurisdiction of courts of chancery in cases of injunction to restrain corporate action has been put by text writers of very considerable authority, has been solely a breach of trust; but it is submitted, with deference, that this view of the jurisdiction is somewhat too limited, for it would seem that a court of equity would usually interfere to restrain acts of corporations ultra vires, when these acts resulted or were likely to result in injury to the stockholders, without regard to the question whether there had been a technical breach of trust. Be this as it may, the equity jurisdiction in the United States over corporations has been very extensively exercised. Thus in Pennsylvania this is not only one of the distinct heads of jurisdiction conferred by statute, but it has been treated as one of those equitable powers which are inherent in courts of chancery. Bills to restrain corporate action within proper limits are, therefore, very frequent in the United States, and they are used in cases of corporations of a municipal and public kind, as well as those of a private, or mercantile, or eleemosynary character. The jurisdiction of the court may, also, be invoked to prevent the franchise of a corporation from being destroyed." A corporation, however, cannot be compelled to perform a 1 Schnorr's Appeal, 17 P. F. Sm. 138; Roshi's Appeal, 19 Id. 462; Watson v. Jones, 13 Wallace, 679; High on Injunctions, chap. v. v. Bank, 4 Allen, 1; March v. Eastern Railway Co., 40 N. Hamp. 548; Philadelphia and Erie R. R. Co. v. Catawissa R. R. Co., 3 P. F. Sm. 20; Winebrenner v. 2 Kerr on Injunctions, 570; High on Colder, 7 Wright (Pa ), 244; Manderson Injunctions, v. Commercial Bank, 4 Casey, 379; Stur 761. 3 See ante, Introduction, Chap. I., p. ges v. Knapp, 31 Verm. 1; Stevens v. 21, note. Rutland and Burlington R. R., 29 Id. See Commonwealth v. The Bank of 545; Nazro v. Merchants' Ins. Co., 14 Pennsylvania, 3 Watts & Serg. 193. Wis. 295; Grand Trunk Railway v. Cook, 29 Ill. 237; Carter v. City of Chicago, 57 Id. 283; Durfee v. Old Colony R. R. Co., 5 Allen, 230; Peabody v. Flint, 6 Id. 52; Dodge v. Woolsey, 18 How. 341. See, also, Colman v. Eastern Counties Railway Co., 10 Beav. 1; Simpson v. The Hotel Co., 8 II. L. Cas. 712. 5 See Delaware and Raritan Canal v. 6 Osborn v. Bank of the United States, public duty at the suit of a private individual, without some special right or authority.1 In leaving the subject of injunctions it should be remembered. that the examples given of the application of this equitable remedy to the cases which have been discussed are, after all, only illustrations of the jurisdiction, and are not to be regarded as an exhaustive catalogue of all the cases in which this remedy can be applied. The field of this jurisdiction is an exceedingly wide one, and scarcely any injury to the rights of property can be imagined where the writ would not issue, if the remedy at law was inadequate, and the only efficient redress would be the restraint of the commission or continuance of the wrongful act. CHAPTER III. RE-EXECUTION, REFORMATION, RESCISSION, AND CANCELLATION. 466. Reason for the existence of these | 473. Cancellation as applied in the re equitable remedies. 467. Re-execution. 468. Reformation. scission of voidable contracts. 474. Cancellation independent of rescis sion. 475. Relief by rescission and cancellation a matter of judicial discretion. 469. General principles in such cases. 472. Rescission; voidable contracts, how 477. Rule in England; Sir Hugh Cairns's Act. 478. No uniform rule on this subject in the United States. 466. IT has been stated in a former chapter that in order to render the circle of equitable relief in the case of contracts and duties complete, it is necessary that not only should a suitor in chancery obtain redress by virtue of bills for specific performance and injunction, but that there should also exist some remedy by means of which a lost writing may be supplied, an 1 Buck Mountain Co. v. Lehigh Coal Co., 14 Wright (Pa.), 91. Upon the general subject of the jurisdiction of equity by way of injunction over com panies and corporations, see Redfield on Railways, 325; Kerr on Injunctions, chaps. xxiii. and xxiv.; and High on Injunctions, chaps. v. and xvii. instrument which has been erroneously framed corrected, and documents obtained through fraud or duress surrendered. Hence there arises the necessity for bills for Re-execution, Reformation, and Cancellation, which may be appropriately considered immediately after the subjects of the two preceding chapters. 467. The remedy of Re-execution is applicable to cases in which deeds or other instruments are lost or destroyed; and is the method by which equities growing out of accident are sometimes enforced. Very frequently in cases of accident the redress which a party seeks is not only that the lost instrument shall be reexecuted, but that further relief shall be administered by directing a performance on the part of the defendant of the duty for which he was bound by the instrument, and for the non-performance of which, were it not for the loss, he could have been held answerable in a common law action. Thus in former times, and when the strictness of the common law rule in regard to profert had not been relaxed,' the relief in equity in the case of a lost bond extended not only to re-execution, but also, for the purpose of avoiding circuity of action, to a decree for the payment of the debt.2 In such a case (it will be observed) the object of the complainant is to obtain a payment of the money due upon the bond, to accomplish which he was originally compelled to resort to equity in consequence of a rule of pleading which prevented his recovery in a common law action. Here, therefore, the ultimate relief sought is not re-execution but payment. But cases may sometimes arise in which re-execution is the principal or only redress which is required; and here the equitable remedy now under consideration is particularly called into play. An illustration of the necessity for this equitable remedy may be found in those cases in which a deed has been lost, and a title is, therefore, in danger of being rendered unmarketable by the absence of one of the links in the chain. Thus, if a conveyance to a purchaser has accidentally been burned, the seller will be compelled upon a resale to join in a conveyance to the new purchaser, or if the estate is not resold to again convey to the first purchaser. In a case of this kind the interposition. 1 See ante, p. 183. Adams's Eq. 167. 3 Bennett v. Ingoldsby, Finch, 262; 2 Sug. V. and P. 41 (8th Am. ed.). of the chancellor is sought solely upon the ground of the efficiency of the equitable remedy, and no relief is asked for beyond the simple re-execution of the lost or spoliated instrument. Of course in applying this remedy the court will act in obedience to the general principles by which its interposition is usually regulated; and as one of those principles consists in the discouragement of carelessness or negligence, a decree may be refused if the loss or destruction of the instrument has happened through the fault of the complainant.1 468. The remedy of Reformation is obviously one which is necessary to the complete and exact administration of justice; and which, moreover, can be attained by equitable procedure alone. A court of law may construe and enforce an instrument as it stands, or may refuse upon proper cause shown to give any effect to it, or may treat it as a nullity. But it is plain that if the instrument has not been drawn so as to express the true intention of the parties, to enforce it in its existing condition would be simply to carry out the very mistake or fraud complained of; while to set it aside altogether might deprive the plaintiff of the advantages of a contract to which he is lawfully entitled. It is obvious, therefore, that the only true measure of justice in such a case is the equitable remedy by reformation (or correction, as it is sometimes called), by means of which the instrument is made to conform to the intention of the parties, and is then enforced in its corrected shape. The occasions which most frequently give rise to this equitable remedy are cases of mistake and fraud. Thus, where a settlement is executed with the design of carrying out prior articles, but which is so drawn by mistake that it fails to conform to the intention as expressed in the articles, a bill in equity will lie for the purpose of reforming the instrument so that the original intention of the parties to the settlement may not be defeated. And so where, through artifice, the written evidence of a contract is drawn in such way that the terms of the agreement are not accurately expressed, the party injured by the See Hoddy v. Hoard, 2 Carter (Ind.), Eq. 20, and notes; Perry on Trusts, ¿ 474. 359; ante, p. 66. Glenorchy. Bosville, 1 Lead. Cas. |