132 HARVARD LAW REVIEW. enforce a part of a person's contract when it cannot specifically enforce the whole. It is a rule that unless the ternis of an agreement are dis- tinct and independent, equity will not enforce one term without enforcing all. Kemble v. Kean, 6 Sim. 333. The famous case oi Lumleyy. Wagner, I DeG., M. & G. 604, relied upon by the present plaintiff, is not really inconsistent with the rule stated ; for the express negative term which was there enforced, the agreement of an opera singer not to sing during a certain period for any one but the plaintiff, was dealt with as independ- ent of the positive agreement to sing for the plaintiff; and those who attempt to support that case must first take the step of holding the nega- tive agreement independent. When the rule is applied to the principal case, it is clear that the affirmative part of the defendant's contract could not have been enforced, because of the impossibility of the court's •supervising performance. The negative terms, therefore, — one of them, by the way, being negative only in form, and by a clever subterfuge, — could not consistently with the rule have been enforced unless independ- ent. Independent they can hardly be, for they were not expressed in the contract, and exist merely by implication from the positive terms. Their very existence by implication seems unjustifiable ; but if they are implied, they must depend absolutely upon the affirmative terras from which they are inferred. Whitwood Chemical Co. v. Hardmafi, [1891] 2 Ch. 416. Since they are dependent, the argument based upon Lumley v. Wagner, supra, had no application to them, and they could not properly have been enforced unless the case falls within the further rule that when the affirmative part of a contract is unbroken and in a fair way to be per- formed, equity will enforce the negative part on the assurance that the whole will then be performed. The case, however, is not within that rule ; for although the affirmative part of the defendant's contract was as yet unbroken at the time of the filing of the bill, the court had no assurance that it would not be broken, and had no means of preventing the breach. The injunction, therefore, was rightly refused. Great hardship might other- wise have been inflicted upon the defendant; for after the negative injunction had tied his hands and prevented him from making a profit from any other party, the plaintiff might have held him for full damages in an action at law for breach of the affirmative part of the contract, and the injunction would serve no purpose in mitigation of damages. Such injustice equity will not countenance. Locus PcENiTENTiiE OP' A TRUSTEE. — Whether a trustee who, in col- lusion with a third person, has wrongfully conveyed the trust-res, may repent and bring a bill for the recovery of the property, is a problem which on theory may well admit of different solutions. The question often arises in respect to the Statute of Limitations, where the grantee, to whom the trustee has wrongfully conveyed, holds for the statutory period ; is the trustee barred by the statute, as well as the cestui que trusts who were under disabilities at the time the conveyance was made ? An answer in the affirmative was given in a recent Kentucky case on the principle that as the trustee might at any time during the statutory period have recovered the property in equity, he is barred, and what bars the trustee bars the cestui. Willson v. Louisville Trust Co., 44 S. W. Rep. 121 (Ky.).
