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Page:Harvard Law Review Volume 1.djvu/389

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being specifically repaired; and, therefore, the rule, as to equity’s assuming jurisdiction, ought to be, and generally is, the same in all these cases. And hence it follows that, as equity will seldom enforce specific reparation of a tort which consists in mis-feasance, or of the breach of an affirmative contract which consists in doing, so it will seldom enforce a specific reparation of a breach of a legal duty. For example, an owner of a particular estate in land is subject to the legal duty of keeping the estate in repair, and a breach of that duty constitutes that species of tort called permissive waste; but as equity will not enforce specific reparation of a breach of a contract to repair, so it has been long settled that equity will not enforce specific reparation of permissive waste.[1]

It has been shown on a previous page[2] that equity might enforce specific reparation of torts which consist in mis-feasance in many cases in which it has hitherto declined to do so, and that it ought to do so whenever a specific reparation is necessary for the purposes of justice. And the same argument is applicable to breaches of affirmative contracts which consist in doing,[3] and to breaches of legal duties.

In the foregoing observations upon the jurisdiction of equity over legal duties, reference has been had to such legal duties only as are imposed by the common law. There are important legal duties imposed by the canon law; but the jurisdiction of equity over these depends upon different considerations from those hitherto presented, and the treatment of it will therefore be postponed until we come to the jurisdiction of equity over canon-law rights.

As the jurisdiction of equity over those torts which consist in non-feasance (i.e., negative torts) is analogous to its jurisdiction over affirmative contracts, so the jurisdiction of equity over those contracts which consist in non-feasance (i.e., negative contracts) is analogous to its jurisdiction over torts which consist in mis-feasance (i.e., affirmative torts).

In respect to the mode in which equity exercises its jurisdiction over them respectively, the analogy between a negative contract and an affirmative tort is perfect. Thus, the ordinary mode of exercising equity jurisdiction over each is by granting an injunc-


  1. See Lord Castlemaine v. Lord Craven, 22 Vin. Abr. 523, pl. 11.
  2. Supra, pp. 128, 129.
  3. See Clark v. Glasgow Ass. Co., 1 MacQueen, 668, 670.