
    Farish, Appellant, v. The State.
    The act of the legislature of 1833, in relation to actions against the state by-individuals, does not enlarge the subject matter of equity jurisdiction.
    An act which should confide to the chancery court, jurisdictoin over questions purely of law, would be clearly unconstitutional.
    APPEAL from chancery.
    Farish filed his hill in the chancery court, against the State of Mississippi, to recover damages for a breach of contract.
    The Attorney-General filed a demurrer, which was sustained, and the bill dismissed for want of jurisdiction. The complainant prayed an appeal to this court.
    Gildart and M’Clung, for appellant.
    This suit was commenced by bill in the chancery court. The complainant filed his bill against the State of Mississippi, under the authority of an act passed 15th of February, 1833, (see Laws of 1833, p. 205,) making the high court-of chancery the tribunal in which complaints against the state should be heard and remedied. To this bill the attorney-general of the state filed a general demurrer, which was sustained, and the case comes into the high court of errors and appeals, by an appeal from that decision.
    It will be borne in mind, that the suit was brought in the chancery court, not because that court was the proper tribunal upon the general principles of equity for its adjudication, but because an express statute of the state declared it to be the only tribunal in which a citizen could procure legal redress from 'the state for any injury sustained. Although the complainant might have a strictly legal right, and on which, were the defendant an individual, he might, and could be prosecuted only, in the courts of common law, still, when the state is the defendant, the suit must be brought by filing a bill in the chancery court, although no equity may appear upon the face of the bill. It is the proper tribunal for trying all cases against the state, whether legal or equitable.
    It appears, from the bill which the defendant’s demurrer admits to be true, and also from the exhibits in the case, that Edward S. Farish, the complainant, entered into a contract with John Lawrence, the state architect, agreeing to furnish the timber and perform the carpenter’s work upon the state house about to be erected, for the sum of 33,000 dollars. It also appears in exhibit B, that said complainant, as required by law, entered into bond with approved security, in the sum of 64,000 dollars, for the faithful performance of his part of the contract. That said architect was authorised to contract for, and to bind the state by his acts. See Statutes of 1833, p. 192, conferring that power upon him. It also appears from said bill, that the complainant at the time of making said contract, was a citizen of another state, and that immediately, he left all other business in which he was occupied, removed to Jackson in this state, and incurred great expense and trouble in procuring journeymen and other laborers to the number of ten, at least, and in other incidental preparations for performing this portion of the agreement. It farther appears, that immediately after the formation of said agreement with said Farish and before said Farish had time even to make any default, the said architect made another agreement with Messrs. Phillips and Rothrock, contracting with them, that they should supply the timber necessary, and informed the complainant that his contract was annulled so far as furnishing the' lumber was concerned, but was still held to be valid in reference to the remainder. This was without the assent of the complainant, and after he had gone to much trouble, expense and preparation for the performance of his portion of the covenant.
    As the case stands in court upon this general demurrer, the question could not arise as to the right of the state to rescind the contract, but even if that question were before the court, it would hardly be contended, that, of the two parties to a contract, one has a right to rescind without the assent of the other, and after that other has incurred much expense in preparation for performance. For authorities upon this point, see 2 Bac. Abr.j Chitty on Con.tracts,275; 14 Johns. Rep. 363. All directly assert the doctrine, that a contract cannot be rescinded without the assent of both parties, or unless the party refusing his assent has been guilty of some default.
    It appears from the hill, the complainant has been guilty of no default. Immediately after making the contract with the state, he left a lucrative business in which he was engaged in another state, emigrated to this, prepared himself at great trouble and expense, in procuring materials and hiring laborers for the completion of ,his work; professed himself ready at that time and all subsequent limes to execute his covenant, but was hindered, obstructed, and prevented by the state, and its own agents and officers, from performing and completing the same, and at the time that the first instalment of his remuneration became due, it was refused, and has ever since been refused him.
    This is the attitude in which the case stands. If he had completed the work according to his agreement, no one will doubt that he would have been’ entitled to the full compensation which the state contracted to pay him. And so he contends in this case.— He having made ever exertion to comply with his covenant, having never made any default, but being obstructed and prevented from so doing entirely by the state and its own officers and agents, he should legally be in the same situation as though he had perfected his contract, and the state, instead of taking advantage of its own wrong, should consequently be compelled to comply with its part of the covenant and afford him the remuneration to which he is entitled upon every principle of law or justice. It is a principle of law well established, and one upon which this case turns entirely, that when one of the parties to a contract is prevented by the other party from performing his portion of covenant, his attempt, offer and readiness to perform amount, in law, to a full performance, and his failure to perform is not a breach of his covenant. For authority upon this head refer to 4 Dane’s Abr. 407.
    Attorney-General, contra.
    
   Mr. Justice Peat

delivered the opinion of the court.

It is not contended that this case is within the ordinary jurisdiction of a court of equity; but that jurisdiction is expressly given by the act of the legislature of 1833.

The provisions of the statute referred to are: That hereafter it shall be competent for any person or persons desiring him, her, or themselves, or body politic to have a just claim against the State of Mississippi, to exhibit and file a bill in equity, in the Superior Court of Chancery, against the State of Mississippi,” &c.

We do not understand this provision as enlarging the subject matter of equity j urisdiction. It only authorises the court, in cases ■within its jurisdiction, to take cognisance thereof, although the state be a party defendant, which it could not do before.

Any act which should confide to this court jurisdiction over questions purely of law, would be clearly unconstitutional, because such questions are to be determined, in the first instance, by the circuit court; and hence the construction contended for by counsel cannot be sustained.

The decree of the court below must be affirmed with costs.  