tion to prevent a breach of the one or a commission of the other, and it is this mode alone which measures the extent of the jurisdiction which equity will exercise over each. So if a negative contract have already been broken, or if an affirmative tort have already been committed, the only relief that equity can give (except incidentally), either for the breach of contract or for the tort, is specific reparation; and the reasons for giving or withholding that relief are the same as to each. Finally, if an injunction be granted to prevent the breach of a negative contract or the commission of an affirmative tort, equity will incidentally give relief, in the one case, for any breach of the contract already committed, and, in the other, for any tort already committed, if the case be one which admits of any relief which equity can give, e.g., an account of profits; and the principle upon which equity gives such incidental relief is the same in each case, namely, that of preventing a multiplicity of suits.[1]
In respect, however, to the extent of the jurisdiction exercised by equity over them respectively by way of prevention, and the
- ↑ In respect to the jurisdiction of equity over breaches of contract already committed, there is no analogy between affirmative and negative contracts. In strictness there can be but one breach of an affirmative contract, as the slightest breach of such a contract is a breach of the entire contract, and puts an end to it. There can, in strictness, therefore, be no performance of any part of an affirmative contract which has once been broken. This is true even of those contracts which require the performance of a series of acts, apparently independent of each other. For example, though a contract for the purchase and sale of chattels provide for a delivery in instalments, yet a breach as to any instalment will be a breach also as to all subsequent instalments.
As an affirmative contract admits of but one breach, so it can create but one cause of action. Therefore, if an action at law be brought for a breach of an affirmative contract, damages will be given upon the whole contract, and the judgment in that action will be a bar to any future action. Hence, if equity assume jurisdiction over such a contract at all, it must assume jurisdiction over the entire contract, and give full relief. It cannot give relief as to a part of the contract, and leave the plaintiff to sue at law as to the remainder. It would be a wrong to a defendant to permit a single cause of action to be made the subject of two actions against him. Moreover, equity can never permit an action at law to be brought upon a cause of action which has been the subject of a decree in equity.
A negative contract, on the other hand, may be capable of an indefinite number of breaches, each breach constituting a separate and independent cause of action. In such a case, therefore, it does not follow, because equity has jurisdiction to prevent breaches in future, that it has jurisdiction, also, over breaches already committed.
It must be admitted that legal duties are analogous to negative contracts in respect to the number of breaches of which they are capable. Yet, as equity seldom assumes jurisdiction over legal duties, and never prevents breaches of them, it will rarely happen that the jurisdiction of equity will be aiected by the fact that a legal duty is capable of an indefinite number of breaches.
