M'dAULL v. BBAHAM; 43
plays on ** off nights " for a rival theater, the question how much the receipts
of his employer have been diminished by the oppmjtxunity given the public of
hearing the favorite elsewhefe, is too vague and uncertain to be shown by
legal proof. And if, as is frequently the case, he withdraws from his Bret »
engagement wholly, and devotes himself to the service of a competitor, the
question of damages is rendered still more perplexing by the ditiiculty of ‘
showing what protits the deserted manager would have realized had the pe1·-
fcrmances been continued as agreed; and the latter needs, also, to have some
indemnity, difliculb to be estimated in money. for his liability to refund for
tickets or boxes sold in advance, and for his loss of prestige through failure
of his announced entertainments. Obviously courts of justice cannot compel Y
public performers or members of the professions to perform specific services
they have promised; there are no means at the command of a tribunal for
compelling a person to act, sing, speak, or write, nor is there any standard for
determining whether one has done so in good faith andwith his best skill.
The result, therefore, is that a. pioperly-framed stipulation, in a contract fog-
services of this description, forbidding the employe to serve elsewhere, may be `
enforced by injunction. Such injunctions ere equally obtainable under the
codes of procedure, upon `complaint in a civil action; or, in states adhering to
the old practice, upon bill in equity; or, in the United States circuit court, sit-
ting in equity, if the parties are citizens oi different states. i ¤
In what cases the fact thntthe contract of the parties,· by Iiquidating the  
damages or otherwise, gives the employer a better remedy by action than —-
usual, precludes his resort to injunction, is the question particularly discussed
in the text, and nothing need be added to Judge Bn0wN'e able and lucid ex-
position of the principles governing that branch of the subject. This note
williudicate the development of the general power of equity to enjoin in these
CASES. ` r
° EARLY Euemsn Dmcrsxons went upon the theory that although an inde- •
'pendent, simple covenant noi to undertake speciiied services may be enforced,
when reasonable and consistent with public policy, yet in a contract between ,
A. and B. that B. 'sbali act or sing, etc., for A., and shall not perform for any
one else, the negative clause is merely incidental to ¢he`e.tfir‘nmtive; and unless `
the case is one in which the court can enforce the aHh·mative— stipulation it
ought not to enjoin a proposed breach ofthe negative. These decisions, there-
fore, generally denied A.’s prayer for an injunction to restrain B. from per- n
forming in the employment of G., unless some special ground of- equitable
jurisdictjonuver the case existed. The following are illustrative cases: Price
agreed to prepare exchequer reports for Clarke co-publish. without, however,
engaging notice write for any one else. The lord chancellor refused an injunc-
tion, saying that as he had no jurisdiction to compel Price. directly, to write
reports for Clerke, he ought not to do so indirectly. by forbidding him to write
for anyone else.(a) A similar application was denied for the same reason,
where the engagement of the Society for the Diifusion of Useful Knowledge
with Baldwirfs publishing mm was simply tc furnish them with certain maps
md charts for publication, a thing which the court had nomeans of c0mpel·
(u) 1819, Clarke v. Price, 2 Wlls. Ch. 157.