D. DARWIN HUGHES
Marshall,
Michigan.
ARTES
1817
SCIENTIA
LIBRARY
VERITAS
OF THE
UNIVERSITY OF MICHIGAN
PAPLULTOUS UNUM
TUEBOR
SI-QUÆRIS PENINSULAM-AMŒNAM).
CIRCUMSPICE
BEQUEST OF
MRS. JAMES HUNTLEY CAMPBELL
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ESSAY
UPON THE
LAW OF CONTRACTS
AND
AGREEMENTS.
BY JOHN JOSEPH POWELL, Esq.
OF THE MIDDLE TEMPLE, BARRISTER AT LAW.
Ita veritas, etiamfi jucunda non eft, mihi tamen grata eft.
IN TWO VOLUMES.
VOL. I.
CIC,
DUBLIN:
PRINTED FOR P. BYRNE, J. MOORE, J. RICE, AND
W. JONES.
1796.
01-8-34 VPK
."
Bequest of
Mrs. James Huntley Complete
mus.
3.23.1932
TO THE
J
READER.
ARIOUS and important as are the topics
which preſent themſelves to a ftudent of
the law of England, there does not appear to
me any which opens fo wide and extenfive a
field for inveſtigation, as that which is the fub-
ject of the following Effay. Contracts com-
prehend the whole buſineſs of human negotia-
tions. They are applicable to the correfpon-
dence of nations, as well as to the concerns of
domeſtic life. They include every change and
relation of private property, and confequently
furniſh the principal fubject, on which all legal
and equitable jurifdiction is exerciſed.
But however different the objects, the con-
tracts reſpecting them muſt uniformly be deter-
mined by the principles of natural or civil
equity. Yet, although many works are extant,
both
A 2
[ iv ]
1
both in our own and foreign languages, in
which thoſe principles are applied to the rights
and uſages of other communities, no treatiſe
has hitherto appeared, written profeffedly to
fhew the connexion between thofe general prin-
ciples, and the laws of property in England.
In order, therefore, to exhibit in a compact
and ſyſtematical form, the authorities extant in
our books upon this fubject, and by comparing
them together, and examining their refpective
dependencies, relations, and confequences, to
diſcover the general rules and principles of na-
tural and civil equity on which thofe decifions
are founded, I was induced, at an early period,
among other objects, to undertake that courfe
of reading, on which I laid the foundation of the
following tracts. Satisfied that in this branch of
the law, as in every other part of fcience, the
primary object was to eſtabliſh a proper and folid
ground-work, by obtaining a thorough ac-
quaintance with the principles by which it is
governed.
•
In purfuing this plan, I fought for no doubt-
ful points to examine, obfcurities to elucidate,
or errors to detect; but when, in the proceſs
of this work, fuch difficulties prefented them-
felves, I was not deterred, by the influence of
names, from canvaffing, explaining, and ex-
pofing them to the reader.
Perhaps
[ v ]
Perhaps there may be fome, to whom fuch
conduct may appear not ſtrictly juftifiable, as
tending to diminish that refpect with which
we ought to look up to thofe, whofe duty it
is to adminifter the laws, in a well-regu-
lated ftate: I confefs, my mind is impreffed
with a different opinion; I cannot conceive it
poffible if, in taking a comprehenfive view of
the numerous decifions which have been made
in this extenſive branch of the Law, one or two
inftances fhould occur wherein analogy may have
been overlooked, or principle difregarded, it
will furniſh any imputation on the wiſdom, in-
tegrity, or diligence of thoſe who fat in judg-
ment on fuch occafions. On the contrary, I
was aftoniſhed to find, that an attentive ex-
amination fhould not have difcovered among
the almoſt innumerable queftions of property,
which the extenfive reciprocal intercourfe of
this great and commercial empire caufe to be
judicially agitated, not more than one or two er-
rors in judgment, and the developement of
which (if they ſhould be admitted to be errors)
can be attended with no other very impor-
tant advantages, except the prefervation of
uniformity in legal determinations, could be
diſcovered.
All reafoning must be founded on firft prin-
ciples. The fcience of the Law derives its
principles
+
:
[ vi ]
principles either from that artificial fyftem which
was incidental to the introduction of feuds, or
from the ſcience of morals. And, without a
knowledge of theſe principles, we can no more
eſtabliſh a conclufion in law, than we can fee
with our eyes fhut, meaſure without a ſtandard,
or count without arithmetic.
If the preceding obfervations be founded in
truth, and all general ſcience be reducible into
firſt principles, the fame remark will likewife
apply to every diſtinct branch of each particular
ſcience. Thus the law will have its principles
of defcent, its principles of purchaſe, its prin-
ciples of repreſentation, its principles of con-
ftruction of inftruments. For instance, it is
a rule of conſtruction that were, in feveral in-
ſtruments made in pari materia, different words.
are uſed importing ideas of different things,
thoſe words fhall not be taken to mean the
fame thing: Thus were one act of parliament
made to regulate gaming, ſpeaks of a gaming
contract, and a fubfequent act of parliament,
made likewiſe to regulate gaming, fpeaks of a
fecurity taken at the time of gaming, the one act
has been expounded to intend the contract, and
the other only the fecurity: Now this conclu-
ſion muſt have been founded
upon fome princi-
ple, on which it muſt ultimately reft. I take the
principle to have been this, that as, in a formal
instrument,
1
[ vii]
inftrument, made with deliberation, in which
language is uſed technically, the fame words
muſt be taken to import the fame fignification
throughout, fo, in fuch inftruments, a different
penning muſt be taken to import a different
meaning or fignification. This muſt be allowed
as a felf-evident principle, as it is one, without
the admiffion of which, there could be no rule
to find out the true and genuine ſenſe of lan-
`guage. If this be conceded, it follows of courſe,
that wherever an inftrument or inftruments, in
which the fame circumftance occurs, is or are
to be difcuffed and conftrued, recourſe muſt be
had to this principle, and all our conclu-
fions upon the import of words, expreffing dif-
ferent ideas, muſt be eſtabliſhed on its bafis.
This propofition cannot be denied, without de-
nying the axiom in logic; that in reaſoning,
the fame confequences will, in all caſes, invari-
ably follow from the fame premiffes; I have
therefore ventured, where this truth has been
neglected, to expofe the defect, and for the fake
of analogy, without a due attention to which the
law muft ceaſe to be a rational and demonftra-
tive ſcience, to contend even againſt authority,
when fo circumftanced, as appearing to me not
to be founded in law.
If I have argued againſt the propriety, or ſtrict
legality of blending together legal and equitable
rights,
[viii]
rights, as an innovation upon our fyftem of ju-
rifprudence, and fubverfive of its first princi-
ples; it has not proceeded from a difpofition, in
itſelf inimical to fuch temporary modifications.
of the law, as muft and ought to be made to
fit it to the exigencies of civil fociety, at dif-
ferent periods and under varying circumſtances;
but from a conviction that this fecondary prin-
ciple of accommodation, muſt not be extended
fo far, as to permit the warping of fundamental
principles, to which we muſt adhere with a facred
veneration, if we wish to preferve that conſtitu-
tion of government under which we have the
happineſs to live. For what fecurity has the
conſtitution, if it be not in the internal policy of
our country, exhibited in that wife and benevo-
lent adminiſtration of commutative juſtice, ac-
cording to thoſe great principles and maxims
of law and equity, which have been ratified by
the fanction of fucceffive ages? QUOD BONI
EST JUDI CIS AMPLIARE JURISDICTIONEM, is a
wife maxim, when properly understood. Taken
in its true and genuine fenfe it means, that a
judge fhould fo model and adapt the rules and
principles of juftice to the exigencies of man-
kind, that they may accommodate all times,
manners and circumftances. But a power to
model and adapt, by no means involves a power
to create or annihilate. The former belongs to
conftruction, the latter to legiſlation. That a
right
2
}
1
[ix]
right in itſelf purely legal cannot be the pro-
per fubject of difcuffion in a jurifdiction purely
equitable, and that a right purely equitable,
cannot be the proper fubject of a purely legal
juriſdiction, are axioms which cannot be de-
nied, ſo long as the law recognizes a diſtinction
between legal and equitable rights. It is a pro-
pofition as felf-evident, as that blue is not red,
or white black.
Every man who is acquainted with the law of
England, knows that law and equity, although
they aim at the fame end, which is to do juſtice,
are diftinctly adminiftered in their refpective
courts, by their particular judges, and rules of
juſtice. The chancellor is invefted with an ex-
traordinary and uncontroulable power to judge
according to that which is alledged and proved,
He has authority to direct the uſe of a legal
right to an equitable purpoſe, if he can obtain
evidence of facts, which prove, that in con-
Science it ought to be fo applied; but the judges
of the common law have no fuch authority, they
are to judge according to a ſtrict and ordinary
or limited power. So long as thefe juriſdictions
continue diſtinct, fo long muft the rights alfo
over which they have jurifdiction. A pure
truft may be judged of at law, but it muſt be
executed in equity. The rules of law and equity
cannot be guided by the fallibility of men; it
would
[ x ]
J
would be deſtructive to the intereſt of the com-
munity that they fhould. For whatever plaufi-
ble reaſons of convenience or expediency may
be offered to the contrary, they will be found,
on inveſtigation, referable only to particular
inftances. But it is abfolutely neceffary for
the advantage of the public at large, that the
rights of the fubject fhould, when agitated in
a court of law, depend upon certain and fixed
principles of law, and not upon rules and con-
ftructions of equity, which when applied there,
muſt be arbitrary and uncertain, depending, in
the extent of their application, upon the will
and caprice of the judge.
If the mind of a man of common fenfe and
information is not as much ſtartled, when he
hears a court of law giving a remedy for the re-
covery of a debt againſt a married woman, by
the ordinary courfe of legal proceſs againſt her
perfon and ſeparate eftate, as he would be were
he witneſs of fuch court adjudging the ſpecific
execution of a contract, directing the perfor-
mance of a truft, controuling the ufe to be made
of a judgment at law, or guiding the conſcience
of a party to whom fraud is imputable; it is
not, becauſe the principles of the law are not as
grofsly violated in the one cafe as in the other,
but becauſe the opinion, that fuch a woman can
have no property or liability but what is found-
I
ed
[xi]
ed upon a truſt, is not immediately obvious to
one not intimately acquainted with technical
learning. If he were made to comprehend that
fuch an adjudication cannot be given without
violating a legal principle coeval with the exif-
tence of the common law, that a feme covert can
have no legal property, and has loft all ability to
contract; he would fee that it was a legal con-
clufion without legal premiffes to fupport it, that
it was a building without a foundation. He
would then be alarmed at fuch a judgment, as
affuming the fhape of a legiſlative not a judicial
act.
But if he were inftructed a little further,
that fuch debt arofe out of an annuity contract,
his ſurpriſe would be ftill greater; for he would
then perceive, that a court of law had not only
taken upon itſelf to bind a perſon to a contract,
who at law had no capacity of contracting, but
to direct the application of a truſt fund, and to
enforce a right, unattainable but in equity, of a
nature which a court of equity fets its face
againſt, as founded upon a contract unequal and·
deſtructive to one of the parties. He would
diſcover, on the part of a court of law, an equi-
table adjudication binding an equitable right,
in favour of a mere legal claimant, having no
equitable principle in his favor. If a judgment,
founded upon thefe premiffes, can be deemed
law, all reaſoning upon legal and equitable
right is at an end, no diftinction fubfifts between
them.
[ xii]
them. Such an adjudication muſt be aban-
doned, or reft upon the maxim "tet pro ratione
voluntas," againſt the introduction of which
maxim into our law, (which thoſe who have
been beft acquainted with it, have entitled the
perfection of reafon) the country would, there
can be no doubt, enter an eternal proteft, and
exclaim with the barons of old "NOLUMUS
LEGES ANGLIA MUTARI."
I thought it expedient to fubmit thefe obfer-
vations to the reader, as my excufe for arrefting
his attention in the difcuffion of fome fubjects in
the following tract, which, if the ſanction of a
few years can bear down that of ages, muſt be
deemed law at this day, but which, in an effay
of this nature, whofe object is to develope
principles, could not be paffed over without
inveſtigation.
It behoves me likewife to mention one other
circumſtance, which is, that the reader will find
many of the obſervations and general remarks,
here fubmitted to his confideration, have been
taken as well from the civil law writers, as from
thoſe who have difcuffed the theory of the laws
of nature and nations, to which I frequently re-
forted, knowing them to have been the fources,
from which thofe great and diſtinguiſhed charac-
ters, who laid the foundation of that noble fu-
perftructure,
2
[ xiii]
perſtructure, the fyftem of equity, as now ad-
miniſtered in this country, evidently received
moft effential affiftance. But I did not deem it
neceffary to refer to the paffages particularly, as
they do not derive their authority in our law,
from their being to be found in the Code, or the
Digeſt, in Grotius, or in Puffendorfe, but from
being recognized in our own courts.
With thefe remarks I fhall leave the work to
its fate, under a confidence that it will meet the`
fame candid reception, with which the profef-
fion have honored the former productions of
the author.
CAREY-STREET,
Lincoln's Inn Fields.
1790.
-
Just
CON-
T
བ་ གས
}
~
[ xiv ]
CONTENT S.
VOL. I.
DD the Primitive State of Property,
page 1.
Of the Allent to Contracts or Agree-
ments, and the Power residing in
different Perfons, as moral Agents,
to bind themselves and others, ibid. 9.
Of the Subjects of Contracks or Agree-
ments, ibid. 152.
Of the General Mature of Contrafs or
Agreements, ibid. 234.
Of Contracts or Agreements, confidered
as fuch in Equity, arising out of In-
ftruments, &c. having a different Ef-
fect at Law, ibid. 313.
Of the Confideration necellary to ſupport
a Contract or Agreement, ibid. 330.
Of the Interpretation of Contracts and
Agreements, &c. ibid. 370.
Of difannulling, discharging, refcinding,
waiving, or altering Contracs ör
Agreements, ibid. 412.
CON.
}
[ xv ]
CONTENT S.
VOL. II.
DF the Remedy to enforce Agreements
in Law and Equity, page 1.
Df the Equitable Jurifdi&ion in decree-
ing executory Contrats and Agree-
ments, ibid. 14.
Df the Equitable Jurifdi&ion in reliev-
ing against unreasonable contraäs or
Agreements, ibid. 143.
Df the Principles on which Courts of
Equity refufe to interfere in Cafes of
Contra&s or Agreements, ibid. 215.
INTRO.
་་
INTRODUCTION.
On the Primitive State of Property.
M
EN originally poffeffed all things in common.
In this ftate every one converted whatever his
occafions required to his own ufe. This injured no
man,, fince there was then more than fufficent to an-
fwer the exigencies of all.
The exerciſe of this common right in a ftate of
nature, flood in the place of that right of property
which fubfifts in a civilized ftate; for no man could
then justly take from another, that which another had
first taken to himſelf. But if the first taker afterwards
abandoned it, others might make uſe of it in their turn.
But during the occupation of the first taker, he ac-
quired a right, by virtue of which he was entitled to
prevent others from interrupting him in the enjoyment
of that, of which their *Creator had granted them the
common uſe. This ftate is well illuftrated by the
fimile of a theatre, which though open for every per-
fon that comes, yet the place in which any individual
fits, is, in a proper and peculiar fenfe, his own; for
the moment any place is filled, nobody has a right to
remove the occupier for the purpoſe of feizing it for
himſelf.
Such was the condition of man with refpect to land,
while he continued in a paftoral ftare; for the indi-
vidual was only entitled to the poffeffion of the spot,
which was in the immediate occupation of his herds
and flocks. But neceffity, and the fagacity of man,
foon fuggefted, and opened to his view, the advanta-
ges that might be derived from the cultivation of the
ground. When an individual had bestowed a portion
of his labour, on a particular ſpot, and thereby rendered.
it more productive than it was in a ſtate of nature,
the idea was eaſily adopted, that his right to that ſpot
did not expire with every temporary dereliction of pof-
feffion; he was entitled to the produce in the courſe of
the feaſons. This led to the divifion of the land. Then
portions of it were in the first inftance diftributed
among the nations of the earth, and afterwards by a
progreffive
B
[
*ii. ]
1
ON THE PRIMITIVE STATE
[*iii. ] progreffive *fubdivifion affigned to tribes, families,
1 * iv. ]
and individuals.
To effectuate the ftill further advance of civilizati-
on, labour and induftry were neceffary; which led to
variety of inventions, by which the gifts of nature
were made to contribute in a far greater degree to the
conveniencies of life, than they were capable of doing
in their primitively uncultivated ftate. Then the an-
cient community of goods was no longer confiſtent
with that equity which in a ftate of nature required an
equality of diftribution. Things derived an acceffion
of value from labour which they had not in their pri-
mitive ftate, and it was juft that the produce of each
man's induſtry fhould be fo far his own, that no other
ſhould ſhare the benefit of it, without his permiffion.
New ideas of property then neceffarily prefented them-
ſelves to the mind, whereby every one, who poffeffed
himſelf of things which he improved by his labour and
induſtry, was confidered as having thereby acquired a
right to retain them as his own, although they were
not neceffary to his immediate ufe; unleſs he difpofed
of them at his will and pleaſure to others. This laid
the foundation on which exclufive property in *
able goods was eſtabliſhed by civil laws, of which the
characteristic is, that others are always excluded;
whereas in a communion of goods (i. e. in a ſtate of
nature) others are not excluded from things, of which
any one is poffeffed, except fo long as they are in the
actual uſe of the prefent occupier. In an advanced
ftate of fociety, this right of exclufive enjoyment is
confirmed and modified in various ways, by laws made
for that purpoſe.
move-
Now as things which were the objects of property
were of different natures, adminiftering in different
ways to the neceffity and convenience of men, it hap-
pened that the individual had fometimes more things
of one kind and fewer of another than his occafions re-
quired. He found it therefore convenient to exchange
thofe things of which he had a fuperfluity, for thoſe in
which he was deficient. Hence originated traffic,
which is a neceflary confequence of property in goods,
and reciprocal accommodation. But the commutation
of commodities being, in the courfe of time, found
inadequate to the various, and combined tranfactions
to which fociety gave rife, it became neceffary to
agree on fome common meaſure by which things,
different
OF PROPERTY.
*
different *in their nature, might be compared together, [ v. ]
and made equivalent to one another. To anſwer this
end, men agreed to place an imaginary value on fuch
permanent fubftances, as might becoine the ftandard
of compariſon between the different articles of pro-
perty; and metals being found the most generally con-
venient for this purpoſe, they were adopted as the me-
dium of exchange. Thus was money introduced,
which has furniſhed private people with the means of
extending their poffeffions; and rendered practicable
that unequal divifion of property, which we now fee
prevail.
The diſcovery and adoption of this medium of value,
money, enabling men to encreaſe their poffeffions both
of real and perfonal things in an extent not prac-
ticable before its introduction, and confequently en-
larging the notion of poffeffing accumulated property,
put an end, in great meaſure, to the original mode of
acquifition, by taking poffeffion of that which belonged
to no man, which act we have feen was the foundation
of all individual property, and confequently, of all
derivative acquifition.
* A thing may become ours, from a derivative ac- [ *vi. ]
quifition, either by virtue of fome act of another, or by
virtue of fome pofitive inftitution.
The former of theſe modes of derivative acquifition
will alone be material for our prefent confideration.
Derivative acquifition, by virtue of fome act of ano-
ther, is effected by contract.
A contract, according to the common law definition
of it, is an agreement between two or more concerning
fomething to be done, whereby both parties are bound
to each other, or one is bound to the other. But, by
the writers upon general law, it is defined to be,
"Duorum pluriumve in idem placitum confenfus, obliga-
tionis licitè conftituendæ vel tollendæ caufa datus ;" that
is, the confent of two or more perfons in the fame
thing, given with the intention of conftituting, or
diffolving lawfully fome obligation. Perhaps the fol-
lowing defcription will be deemed more fimple than
either. "A contract is a tranfaction in which each
party
B 2
ON THE PRIMITIVE STATE, &c.
:
{
[*vii. ] party comes under an obligation to the *other, and
each, reciprocally, acquires a right to what is promiſed
by the other."
It is evident that, under thefe definitions of a con-
tract, every feoffment, gift, grant, leaſe, loan, pledge,
bargain, covenant, agreement, promife, &c. may be
included; for, in all theſe tranſaЯions, there is a mu-
tual confent of the minds of the parties concerned in
them, upon agreement between them, refpecting fome
property or right that is the object of ftipulation.
The ingredients requifite to form a contract are,
First, Parties. Secondly, Confent.
Secondly, Confent. Thirdly, An
obligation to be conſtituted or diffolved.
That theſe things muft coincide, is evident from
the very nature and effence of a contract: for the re-
gular effect of all contracts being on one fide to ac-
quire, and on the other to part with or alien fome pro-
perty, or to abridge and reftrain natural liberty by
binding the parties, or one of them, to do, or re-
ftraining them, or one of them, from doing, fome-
thing which before he might have done, or omitted
[* viii.] doing, at his pleaſure, it is neceffary* that the party
to be bound, fhall have given his free affent to what
is impofed upon him.
This mode of confidering contracts is agreeable to
the Roman law, which fays: "In omnibus rebus,
quæ dominium transferunt, concurrat oportet affectus
ex utraque parte contrahentium; nam five ea venditio,
five donatio, five conductio, five quælibet alia cauſa
contrahendi fuit, nifi animus utriufque confentit, per-
duci ad effectum id quod inchoatur non poteft." And
no contract can be faid to be ſtrictly fuch, unleſs the
party affenting be under an obligation to perform that,
to which he has affented.
Thefe obfervations lead us, Firft, to the confide-
ration of what perfons have a capacity to affent, fo as
to oblige themſelves, or others, by agreement. And,
fecondly, what circumftances are neceffary to conclude
that the parties to a contract have affented, and thereby
conftituted a perfect obligation.
1
Of
* Of the Allent to Contrats or Agree: [*9]
ments, and the Power reading in
different Persons, as moral Agents,
to bind themselves and others.
W!
E have already fuggeſted, that it is of the effence
of every contract or agreement, that the par-
ties to be bound thereby fhould conſent to whatever is
ftipulated; for, otherwife, no obligation can be con-
tracted, or concomitant right created. I fhall, there-
fore, confider,
Firft; What perſons are capable of binding them-
felves by their contracts or agreements.
Secondly; What perfons are capable of binding
themſelves, and alfo others, by their contracts or agree-
ments.
Thirdly; In how many ways an affent to a contract
or agreement may be given.
*10
*And, fourthly; What circumftances invalidate. [ 10 ]
fuch affent.
Firft. In order to aſcertain what perfons have a moral
power to bind themſelves by their contracts and agree-
ments, we muft confider what we mean by the term
"Affent." Now the term "affent" fignifies the ac
quiefcence of the mind to fomething propofed or af
firmed; and involves, in confideration of law, firſt, a
phyſical power of affenting; fecondly, a moral power;
and, thirdly, a deliberate and free ufe of thofe powers.
Therefore the abſence of any of theſe capacities in
either of the parties to a contract or agreement, ren-
ders the perfon labouring under it incapable of entering
into an agreement to bind himſelf, or, by virtue of his
acts, others.
It is evident then, that a man who is not perfectly
mafter of his reaſon, is incapable of giving a ſerious
and valid afſent to a contract or agreement thereby to
bind himself; becauſe ſuch affent is an act of the under-
tanding, of which perfons fo circumftanced are
morally incapable, their actions being the refult of an
irrefiftible impulfe, the power, of felf-government be-
ing
1
!
1
[* 11. ]
1
Inftit, lib. 3.
tit. 20. de inu-
til. Stipul. 8.
Furiole.
4 Rep. 126.
Perk. fect. zł.
Finch. 102.
2 Roll Abr.
728.
OF THE ASSENT TO CONTRACTS
ing wanting. In this refpect, idiots* and lunatics are
incapable of entering into contracts or agreements to
bind themſelves or their own property, the effence of a
contract being, in fuch cafes, wanting on their parts,
their acts, if difadvantageous to themfelves, not being
to be imputed to them, but to their diſeaſe. It was
therefore held in the Roman law, quod furiofus nullum
negotium gerere poteft, quia non intelligit quod agit. Ac-
cording to the law of England, alſo, all deeds, gifts,
grants, and conveyances, not of record, made by per-
fons of theſe defcriptions, with a view to transfer their
property, whether real or perfonal, are actually void;
becaufe fuch difabilities do not difcharge or annul,
but make the contract abfolutely inoperative ab initio.
And thoſe cafes, wherein it has been held that the
Show. Par. Ca. deeds of fuch perfons are not void, but voidable, pro-
ceed only upon the notion that non eft factum cannot
be pleaded to them, becauſe they have the form, though
not the operation of deeds, and, therefore, are not
void (that is, as not being deeds) without fhewing the
ſpecial matter which makes them, notwithstanding
their form, of no efficacy in fact. But the better opi-
nion feems to be, that, as fuch an imbecillity goes to
the gift of the action, and proves the contract a nullity,
it may be taken advantage of on the general iffue.-
Thus it is laid down by Ashton, 39 H. 6. 42 b. that a
warranty, entered into in a deed by one non compos, is
actually void, becaufe the deed is void.
4 Rep. 123.
152.
[* 12. ]
Thompfon v.
*
So it was adjudged in the court of King's Bench,
Leach, 3 Mod. in the cafe of Thompson and Leach, that a furrender by
a perfon non compos being actually void, a contingent
S. C. Salft. 576. remainder, depending upon the eftate of the perfon
non compos, was not deftroyed by fuch furrender.
296–301.
L. Ray. 316.
3 Lev. 284.
2 Vent. 198.
And where it appeared on a fuit in chancery, infti-
Comb. 438,468. tuted on behalf of a lunatic, that the defendant therein
had conveyed lands to the lunatic, in confideration of
Attorney Gen. which, the lunatic had affigned to him, a fecurity for
Carth. 211,
2.50. 435.
v. Parkhift,
I Chan Ca.
113.
Co. L. 2. b.
i1
Vent. 203.
money to fatisfy him the purchafe money; the court.
directed the defendant to account for the money, and
to pay the fame with damages.
But, although, in an abstract view, and confidering
Bac. br. 84. the point merely in a moral light, and according to the
nature of things, property cannot be acquired originally
by one deprived of reafon; becaufe, in this method of
acquiring property, the acquifator must be capable
of.
OR AGREEMENTS.
1
* of a volition, or intention to take poffeffion of, and [* 13. ]
hold fuch a thing as his own, which is the foundation
of his right; yet, by the law of England, (which, in
that refpect, agrees with the law of moft civilized
ftates) perfons labouring under infanity are confidered
as competent to acquire property from others by a
derivative title; for, though, in this cafe likewife,
to give effect to a transfer of property from one to
another, it is required, in the common courfe of
things, that the party receiving be capable of judging
of, and affenting by proper figns to receive, what is
transferred; yet, as the granting party is capable of
affenting and thereby binding himfelf, the law is fa-
tisfied, prima facie, with the prefumed affent to re-
ceive what it is intended will be beneficial, and ad-
judges this equivalent to a formal affent to accept, ſo
far as fuch affent is neceffary to give efficacy to a con-
tract, and to veft the property transferred, in perfons
fo circumſtanced. And if fuch perfons obtain or re-
cover their intellects and agree thereto, fuch acceptance
becomes binding; but if they die during their inca-
pacity, or recover their intellects, and die without
agreement, their heirs may avoid fuch acceptance;
for they ſhall not be bound by the contracts or agree-
ments of perfons who, in fact, want capacity or pow-
er to contract.
However, notwithstanding the contracts and agree-
ments of perfons non compos to alien their property be
void, and this even as to themſelves; yet the better
opinion is, that perfons, fo circumftanced, cannot,
themſelves, when they recover their intellects, take ad-
vantage of their own incapacity.
[* 14. ]
Thofe, who contend that a perfon non compos may,
on his recovery, defend himſelf from his contracts by
pleading his incapacity, found the propofition they
maintain on the authority of the Regiftrum brevium, in Fol. 228.
which there is a writ for the alienor himself to recover
lands aliened by him during his infanity, dum fuit non
compos mentis fuæ, ut dicit, &c.; on the authority of C. 28. fol. 66.
Britton, who ftates, that infanity was a fufficient plea
for a man to avoid his own bond; and on the reaſoning
ufed by Fitzherbert in his Natura. Brevium, where he
contends, "that it ftands with reaſon that a man ſhould
ſhew how he was vifited by the act of God with in-
firmity, by which he loft his memory and difcretion
for a time; and compares this cafe with that of an in-
fant
Fol. 466.
1
OF THE ASSENT TO CONTRACTS
17
*
[*15.] fant who may avoid his feoffment, grant, or leafe,
as well within age as of full age." And further argues,
"that the caſe of the non compos is ftronger in law than
the cafe of the infant, becauſe the infant is confidered,
in law, as having a difcretion fo as to fubject him to be
refponfible for crimes, whereas the non compos hath no
manner of diſcretion; for that if he kill a man, it is no
felony, nor fhall it fubject him to any forfeiture."
!
!
Thoſe who maintain the contrary propofition, rely
upon the cafes to be found in the year-books during the
reign of Edward the Third, from which it appears to
have been the opinion of the judges at that period, that
no fuch plea was admiffable; for in Mich. 5 E. 3. PI.
131. Herle fays, that fuch an iffue in law, as that, at
the time of the obligation made, the obligor was of
non-fane memory, cannot be received; and 35 Aff
Pl. 1o. of rent, on a releaſe of the plaintiff pleaded in
bar, to which he replied, that he was of non fane me-
mory at the time of making it; it is faid per Monbray,
you ſhall not have a writ of dum non fuit compos mentis
of your own feifin, &c. nor, by confequence, fuch
plea; and he faid, that the judges, having been ſpoken
[*16.] to, were of the * fame opinion: But the caufe was ad-
journed, and no more is to be found reſpecting it.
And, in the 29th. Hen. 6. on a queftion, whether the
heir of one who had aliened when of non-fane memory
could defeat the fame by entry without action, Prifat
lays it down as ſettled law, that the ancestor himself could
not have defeated his feoffment by action or entry; becaufe
the law would not fuffer him to difable himſelf: and
he took a diftinction between this cafe and the cafe of
infancy, of which the feoffor might himſelf take ad-
vantage: and, upon the principle above-mentioned,
the whole court were clearly of opinion with Prifct as
to the point we are now difcuffing. Accordingly,
Littleton (who lived in the reigns of Henry the 6th,
and Edward the 4th, and writ his book on Tenures
in the 14th year of the latter prince's reign) ftating
(fect. 405) the right of the heir of a man of non-fane
memory to enter into the lands of his anceſtor notwith-
ſtanding a deſcent caft, ufes the following ftrong lan-
guage as to the point in queftion. And in this you
may ſee a cafe where the heir may enter, and yet his
anceſtor, which had the fame title, could not enter.
For he which was out of his memory at the time of
fuch defcent, if he will enter after fuch a deſcent, if
an
OR AGREEMENT S.
an * action upon this be fued against him, he hath [*17.]
nothing to plead for himſelf or to help him, but to fay,
that he was not of fane memory at the time of fuch de-
fcent, &c. And he shall not be received to fay this, for
that no man of full age shall be received in any plea by the
law To DISABLE HIS OWN PERSON, but the heir may
well difable the perſon of his anceſtor for his own ad-
vantage in fuch cafe; for that no laches may be ad-
judged in him which hath no difcretion in ſuch caſe.”
And (fection 406) he proceeds thus: "And if fuch
a man of non-fane memory make a feofment, &c. he
himſelf cannot enter, nor have a writ dum non fuit com-
pos mentis, &c. caufa qua fupra; but, after his death,
his heir may well enter, or have this writ, at his
choice."
This conclufion of Littleton, in which he is ſupported
by Lord Coke (after an examination of all the autho-
rities, and all the elementary writers before his time)
is further corroborated by feveral decifions reported in
Croke Elizabeth, which, from their having been de-
cided fo near the period in which Fitzherbert wrote his
Natura Brevium (which was in the time of Henry the
8th) furnifh a strong ground to doubt, whether this
rule was not, at that time, fettled, notwithstanding [* 18. ]
Fitzherbert reafons ftrongly against it.
**
398.
The firft cafe, I allude to, is that of Stroud and Stroud v. Mar-
Marshal, where debt was brought upon an obligation, hal, Cro. Eliz
and the defendant pleaded, that, at the time of the
obligation made, he was de non-fane memory; and it was,
on demurrer, adjudged to be no plea.
Eliz. 622. S. C.
And in the cafe of Crofs and Andrews (in the fame Crofs v. An-
reporter, during the fame reign) in which an action drews, Cro.
upon the cafe was brought againft an innkeeper, 1 Roll Abr.
wherein the plaintiff declared on the common cuſtom 2. D. 2.
of the realm, that an innkeeper fhould keep the goods
of his guefts fafely; the defendant pleaded, that when
the plaintiff lodged with him, he was fick and of non-
Jane memory, by occafion of his indifpofition; and this
plea, on demurrer, was held bad. And one reafon
given was, that it did not lie with an innkeeper to fay,
he was of non-fane memory on this action, any more than
in debt on an obligation.
To thefe authorities may be added Beverley's cafe, Beverley'scafe,
wherein it is ftated, that two points, upon argument,
4 Rep. 123.
and
OF THE ASSENT TO CONTRACTS
1
*
[* 19.] and on good confideration, were unanimoufly refolved
per totam curiam, 1ft. That every deed, feoffment, or
gfant, which any man non compos makes, is avoidable,
and yet fhall not be avoided by himſelf; becauſe it is
a maxim in law, that no man of full age fhall be, in
any plea to be pleaded by him, received by the law to
ftultify himſelf and difable his own perfon. 2d. If the
common law had given a writ of non compos mentis to
him who has recovered his memory after alienation,
certainly it would have given him remedy for the main-
tenance of himſelf, his wife, children, and family,
although he recovered not his memory, but continued!
non compos mentis.
However, notwithſtanding the weight of the autho-
rities I have cited, it might be contended, if the rea-
fon of the thing were of that fide the queftion, that the
writ in the Regiftrum Brevium evinces, that the ancient
common law recognized this kind of plea by the party
non compos himſelf, and that the cafes, however nume-
rous, being founded on a miſtaken notion, are not of
fufficient weight to counteract the evidence of ſuch a
writ in that valuable repofitory. But upon a fair
[* 20.] *inveftigation of the queftion, it appears to me, that,
according to the ſpirit of the common law, the ftrongeſt
arguments will be found againſt receiving ſuch a plea.
Fitzherbert, who contends moft ftrongly in favour of
its admiffion, founds his argument, in defence of that
propofition, principally, on the analogy between the
cafe of infanity and the cafes of infancy and dureſs :
but there feems to be a wide difference in the nature
of the diſqualifications; for infancy and durefs are facts
capable of being proved without having recourſe to the
actions of the parties meant to be difqualified. They
cannot be affumed where they do not really exiſt. But
infanity, being a quality annexed to the mind of the
party who is fubject to it, is a conclufion upon hist
ftate of mind to be drawn only from his own actions.
A perfon therefore may affume this diſability, whereas
he cannot feign the other, the proof not originating in
himſelf and his actions, but fubfifting independently.
That being the cafe, the law (which is anxious to
provide against the poffibility of committing fraud, at
the fame time that it provides for the protection of
right) removes the temptation to practice the former,
by prohibiting every man from fetting afide his own
deliberate
OR AGREEMENTS.
deliberate acts by *ftultifying himfelf, although it [21. I
furniſhes a means by which his heirs after his death, or
his friends whilft he is living, may avail themfelves of
this difability. And it is to be obſerved, that the law
in thefe cafes does not proceed upon the ground that
the party is bound; for that cannot be, ſeeing that,
by the law of nature, he wants the capacity to affent to
a contract; but, becauſe the policy of the law, which
rather fubmits to a particular miſchief than a public in-
convenience, ſets bounds to the law of nature in point
of form and circumftance.
4 Rep. 224. 20
· And. 145. 193.
Co. Lit. 247.
For fimilar reaſons of public policy, all acts done by
idiots and lunatics in a court of record, as fines, re-
coveries, and the ufes declared upon them, recogni- 2 Inft. 483.
zances, ftatutes, and the like, are good, and neither Bro.tit.Fines 75
they themfelves, nor their heirs, nor executors, can
avoid them.
10 Rep. 42 b.
Bro. fait inrol.
14.
The law, in fome inftances, proceeds upon the
fame principle with regard to infancy and durefs; for
if an infant levy a fine, fuffer a recovery, or enter into
a fecurity of record, and omit to avoid them before he
come of age; or if a feme covert levy a fine; the
former cannot avoid fuch affurances and fecurities on
*the ground of infancy, nor the latter fuch fine on the [ 22. ]
ground of durefs.
But mark the reafon of all theſe exceptions: it is
not becauſe the law binds perfons, who by defects or
diſabilities are either by the law of nature or the law of
the land, difabled to contract, but directly the contrary;
it is, becauſe the law finds them to be perfons not fo
difabled, and does not admit the averment of ſuch
diſablement, becauſe, in the one cafe, it is certified
by the invincible and indiſputable credit of the judge
(which is the higheſt evidence the law knows of) that
the non compos, or the infant is a perfect and able per-
fon, and becauſe, in the other cafe, the wife is exa-
mined of her free will judicially by an authentical
perfon, trufted by the law, and by the king's writ for
that purpoſe, and fo taken in ſome fort as a fole woman.
And, therefore, the authority of the record is not to
be contested, nor is it to be avoided by any averment
against the truth of it: for that would tend to leffen
the credit of judgments in courts of record, by trying
them by other rules than themſelves. So that the
fame law of policy, which prohibits a perfon non compos
from ftultifying himſelf upon grounds of public
convenience,
*
|
!
OF THE ASSENT TO CONTRACTS
[* 23.] * convenience, likewiſe, upon fimilar grounds, pro-
hibits an infant, or feme covert, from taking advantage
of infancy or coverture, when to permit fuch plea
would be attended with public inconvenience.
7 Chan. Ca.
353.
Then, if the ground of general inconvenience be a
ſufficient reaſon in our law for admitting a miſchief in
particular, to prevent a public inconvenience, by hold-
ing not only fuch perfons, but alſo their heirs and exe-
cutors, to their contracts if of record,. and refufing
to admit all averments in fuch cafes of theſe diſabilities
in perpetuum; furely there is nothing ridiculous in the
common law having adopted the maxim, that a man
fhould not avail himself during his life of his own folly
or infanity; becauſe the admiffion of fuch an allegation
would, as we have mentioned, open a gate to diffimu-
lation, deceit, and fraud.
But although, at prefent, the law feems clearly to
be, that a man shall not ftultify himself by his own plea,
yet it has provided means whereby the acts of lunatics
may be rendered ineffectual, even in refpect of them-
felves. For, though the law of England has not
provided for perfons fo circumſtanced a tutor, as the
[* 24. ] *civil law has done, without whofe affent no act of
theirs is binding, yet it has eſtabliſhed a curator, who
may protect and fecure their lands and goods and to
that intent the common law has given the cuftody of
idiots, madmen, and lunatics, and of all that they have
to the king, who is bound of right, by law, to defend
his fubjects, their goods and chattels, lands and tene-
ments; which prerogative is declared by the ftatute
of the 17 E. 2. cap. 9 and 10 de prærogativa regis,
which (as is exprefly ftated therein as to lunatics)
alío expressly enacts, that the king fhall provide that
their lands and tenements fhall be fafely kept, &c.
"So that they shall in no wife be aliened" within the
time aforefaid (i. e.) during the ſuſpenſion of their
underſtanding.
Jenk. Cent, 40.
Pl. 77. 4. Rep.
126. b.
Upon theſe ſtatutes it is holden, that, after office
found upon the writs de idiota inquirendo, or de lunatico
inquirendo, the alienation, gift, or other act, &c. of
him who is non compos mentis, as well as of him who is
an idiot, may be avoided, even during his life, in a
Fitzh. Abr. tit. fcire facias by the king, who is bound as pater patriæ
to protect all his fubjects, their goods and eftates;
and which office, to prevent all incumbrances, fhall
fci. fa. Pl. 10.
106.1 Chan.
Ca. 112.
}
have
OR AGREEMENTS.
:
have relation to the difability. For the reafon why [25. ]
they cannot be avoided by himfelf on plea, &c. is not
for default of right, but by reafon of a perfonal inca-
pacity to do the act, namely, to ftultify himſelf by his
plea. And the rule is not impeached by this proceſs;
becauſe the idiot or lunatic is no party to the record,
for the whole truth is found by the inqueft.
And, after fuch office found, all gifts made by an 4 Rep. 126. b.
idiot, lunatic, &c. of his goods and chattels, and all
bonds made by him are utterly void; and if he be ſued
in any action upon any bond or writing that he has
made, the king, by his writ (fo long as the office
ftands in force) reciting the office, may fend a ſuperſe-
deas to the juftices, where the fuit is commenced.
III. 2 P. Will.
Upon theſe common law proceedings, the, interpo- 3 Atk. 170.
fition of the chancellor, to avoid the acts of idiots and 3 P. Will. 105.
lunatics, feems to have been founded. For his autho- 118.
rity in theſe cafes does not originate in the extraordi-
nary jurifdiction of the court, or in the authority of
the chancellor or keeper, qua fuch; but it is by virtue
of a peculiar jurifdiction of the great feal, granted.
under the royal fign manual upon every * demife of
the crown to the then lord chancellor or lord keeper,
authorizing them, refpectively, to make grants and
orders for the cuftody of lunatics and their eftates, and
to act therein as they fhall think fit, and by virtue of
the prerogative of the crown.
[ * 26. ]
Parkhurst, I
Parkhurst,
Upon this ground, bills brought to fet afide con- 2 Vern. 414.
veyances, fettlements, and affignments, made by idiots Att. Gen. verf.
and lunatics (though in other refpects reaſonable, and Chan. Ca. 112.
for the convenience of their familiesa) have been re- . ↑ Eq. Ca.
tained; for ſuch bills ought properly to be brought by Abr. 279-5.
the attorney general or committee, and the lunatic 2 Ver. 412.
ought not to be a party; becauſe, if they were con- Att. Gen. verf.
fidered as brought by the lunatic, and founded upon Chan. Ca.
the extraordinary jurifdiction of the chancellor over the 112. et vid.
confcience of the party contracting, as having taken Ibid. 153, 154-
an undue advantage of the other contracting party, the 2 Vern, 412,
fame objection would lie in chancery to his ftultifying 678.
himſelf as lies at law to that plea. Accordingly it was
faid by the lord chancellor and juftice Dodderidge, that Vide 1 Eq. Ca.
if a man who is non compos mentis aliens lands, they Abr. 278 Pl. I.
ſhall not be restored to himself in chancery, upon a matter 1 Roll. Ab.
oftequity, against the maxim of the common law. And in 377. Pl. 11.
the
I
:
OF THE ASSENT TO CONTRACTS
[27.]
I Chan. Ca.
113. S. L.
Chan. Ca. 153,
354.
Ridler ver.Rid-
ler, 1 Eq. Ca.
Abr. 279-5.
!
the cafe of the attorney * general and Sir Robert Park-
burst, which was a bill filed to fet afide an affignment
made by a lunatic long before inquifition, but after the
time he was found lunatic, it was objected that the
lunatic was not inade a party, and the objection was
overruled, the reaſon for which was, that he might not
ftultify himſelf.
But it ſeems that it is not a fatal objection to a bill
for the purpoſe of avoiding an act of a lunatic, &c.
that he is a party with the attorney general or his.com-
mittee; the latter of whom ſeems, to fome purpoſes,
to be the repreſentative of the crown, and to ftand in
the place of the attorney general, and not to repreſent
the lunatic.
Thus where a bill was brought by a lunatic and his
committee to fet afide a fettlement, which had been
obtained from him by the defendant, before the iſſuing
out of the commiffion of lunacy, but fubfequent to the
time wherein, by the commiffion, he was found to
have been a lunatic, the defendants demurred; for
that it was a known maxim of law, that a perfon ſhould
not be admitted to ftultify himself. The lord chancellor
overruled the demurrer; and alledged, as one reaſon
[* 28. ] for fo * doing, that the committee was likewiſe a
plaintiff, and the feveral charges of lunacy were by
him, in behalf of the lunatic: and his lordfhip faid,
that it had been always held that the defendant muft
anſwer in that cafe, and he was ordered to do fo.
Att Gen, verf.
Woolrich, I
But where a fuit is on behalf of the lunatic, and in
order to compel the performance of an agreement made
with him before he became infane, and is not to fet
afide an agreement made by him, the lunatic ought to
be a party; becauſe he may recover his underſtanding,
and then he is to have his eftate at his own diſpoſal,
and his committee is but a bailiff with regard to him,
and accountable to him or his reprefentatives; in
which refpect his cafe differs from that of an idiot,
for his recovery is not expected by the law.
Thus where a bill was brought by the attorney ge-
neral, on behalf of a lunatic, to be relieved upon a
Chan. Ca. 153. marriage agreement for the benefit of the lunatic be-
fore he was fuch, and the defendant demurred, becauſe
the lunatic was no party; it was ruled a good demur-
rer: the lord keeper declaring, that it was as needful
to
OR AGREEMENTS.
រ
to make the lunatic a party as an infant,
where a [* 29. ]
fuit was on his behalf; for, in fuch a cafe, his being a
party does not tend to ftultify himſelf.
"
If, in fuch cafes, it be a queſtion whether the 2 Vern. 412,
tranfactions impeached, as being done when the party 414-
1
was non compos, were done when he was in a ſtate of
infanity or at a lucid interval or whether he had lu-
cid intervals or not; the court of chancery will direct
an iffue to try thoſe facts. But a perfon non compos at
times only, may bind himſelf by an agreement made in
his lucid intervals.
fon v. Medli-
Drunkenneſs, though operating during its continu- per Sir Jof. Je-
ance as a temporary infanity, yet being of a man's own kyl, in John-
procuring, is not, in law, of itſelf a gtound for a cott, 3 P. Will.
man to refcind his affent to a contract or agreement, 231, note A.
whether the fame refpect his lands or goods, or other
thing concerning him. Nor is it a reafon, in equity,
for relieving a man against any contract or agreement,
gained from him when in thofe circumftances.
Upon this principle Lord Hardwicke thought that, Cory v. Cory,
where an agreement was to fettle difputes in a family, I Vez. 19.
and was reaſonable, the objection that one of the [* 30. ]
parties was drunk at the time, was not fufficient
ground to fet it afide, unlefs fome unfair advantage
had been taken.
But if the party, from whom ſuch contract or agree-
ment has been gained, were drawn in to fuch a de-
bauch by the management or contrivance of him who
gained the contract or agreement, and was in ſuch a
ſtate as to be utterly deprived of the uſe of his reaſon
and underſtanding, then equity would relieve; for
fuch an affent can by no means be efteemed ſerious or
deliberate, and without this no contra&t can be binding
in equity.
Nor is a perfon's being of a weak underſtanding of
itfelf any objection, in law, to his binding himſelf by
his affent to a contract; for neither courts of law nor
equity examine into the wifdom or prudence of men
in their manner of tranfacting their concerns, or dif-
poſing of their eftates. If a man, therefore, be legally
compos mentis, be he wife or unwife, he is the diſpoſer
of his own property, and his will ftands for a reafon
for his actions. And the rule is the fame in equity; Ofmond v.
for if a weak man give a bond, and there be no fraud Fitzrov, et al.
·
or 3. P. Will. 129.
OF THE ASSENT TO CONTRACTS
*
[* 31.] or breach of truft in the obtaining it, equity will not
fet it aſide only for the weakness of the obligor,
if he be compos mentis; for the court of chancery will
not meaſure the fize of people's underftandings or ca-
pacities, there being no ſuch thing as an equitable in-
capacity, where there is a legal capacity.
Ofmondv.Fitz-
Will. 129.
But if there be any fraud in procuring a bond from
roy, et al. 3 P. a weak man, or the tranfaction be attended with cir-
cumftances that warrant a fufpicion that the party,
binding himself, has been practifed upon by impofiti-
on; then a court of equity will furnifh relief. There-
fore, where the parents of a young nobleman, had in-
trufted a fervant to take care of an infant heir on his
travels, and to prevent his being impofed upon; and
the fervant, continuing with him until he was twenty-
feven years of age, had then prevailed upon him to
enter into a bond to pay him a thouſand pounds, which
bond was prepared by the fervant himfelf and kept a
profound fecret: Sir Joseph Fekyl relieved on the
ground of fraud, and decreed the bond to be delivered
up; faying, that the fervant, inftead of acting agree-
able to his truft, had, himſelf, been guilty of impo-
fition; and that a breach of truft was of itſelf evi-
[* 32.] *dence of fraud, nay of the greateſt fraud; becauſe a
man, however careful otherwife, was apt to be off his
guard, when dealing with one in whom he repoſed a
cónfidence.
Cro. Car. 502.
Upon the fame principle, if a man were of a weak
underſtanding, and were harraffed or rendered uneafy
at the time of contracting; or if a deed were executed
in extremis; or by a paralytic, whofe mind could not
be fuppofed to be adequate to the buſineſs he was about,
and who might therefore be eafily impofed upon; this
might, if the provifion in the deed were fomething ex-
traordinary, or the conveyance made without any con-
fideration, or one remarkably inadequate, be relieved
in equity.
An infant is under an incapacity to grant or con-
vey, by deed, any part of his property; the cafe of a
lunatic, and that of an infant, going, in general, as
has been faid, hand and hand in this refpect; both be-
ing governed by the fame reaſon, viz. want of power
or capacity to affent to any alienation; therefore a
grant, furrender, or conveyance made by an infant of
his eftate, by deed or matter in fact, is abfolutely void;
and although ſome have endeavoured to diftinguiſh be-
tween
OR AGREEMENT S.
a [
to do
tween a deed, * which gives only an authority
thing, and a deed which conveys an intereft by the
delivery of the deed itſelf, viz. that the first is void
and the other voidable; yet the better opinion is, that
the reafon is the fame to make them both void, unleſs
it be in the cafe of a feoffment, which is only voidable
becauſe of the folemnity of the conveyance.
* 33- 1
But conveyances by act of law, are void or not as
against an infant, according to their effect; for the dif-
ability of an infant (analogous to that of one non còm-
pos) to affent to an act in pais, is only quo ad hoc, and
ex partë: that is, it is only a difability to bind himſelf,
and not fuch a difability in him as difcharges others.
The validity therefore of fuch acts depends upon,
whether there be an apparent benefit, or the femblance
of a benefit, to the infant. If neither of thefe appear
upon the face of the tranfaction, it is merely void;
otherwiſe voidable or not, at the election of the infant.
And, therefore, although the furrender of an infant Cro. Car. ŝoż.
leffee by deed is void, his furrender in law, by accep-
tance of a new leafe, will be void or not, according to
the terms of fuch new leafe. If it either increaſe his
term, or decreaſe his rent, it will be good, but if
* neither of thefe be effected by it; it will be void.
•
It is obfervable, that this incapacity of an infant is of
a mixed nature, partly phyfical and partly moral, pro-
ceeding frequently from the want of legal, not of na-
tural, difcretion; for, in deciding upon the contracts
of infants, the actual ftate of their capacities, or their
phyſical power to decide rationally, is not confidered,
it being fufficient that they want difcretion in prefump-
tion of law, which every perfon does (without refe-
rence to his actual ability or judgment) until he arrives
at his age of twenty-one years; except in cafes of
actual neceffity, in which cafes, the difability to con-
fent fo as to bind himself (as far as it operates as a mo-
ral incapacity) being intended as a privilege and to
protect perfons of tender years from impofition, yields
in the degree, in which its influence would counteract
its object.
[
*
34. I
Upon this principle an infant is bound, at law, by Cor Jac. 494-
his contract or bargain for diet, apparel, necellary
45.
learning, employment, and the like: and the court of Term Rep.
King's bench were of opinion, in the cafe of Freeman
and Hurst, that a promillory note, given by an infant
C
for
OF THE ASSENT TO CONTRACTS
[ * 35. ] for * board and lodging, and for teaching him the
buſineſs of hair-dreffing, was valid, and would fupport
an action for the money.
Vide Cro. Ja. 320.
Bro. tit. cover-
ture et enfant,
Pl. 25. Kirkton
v. Eliot. 2. Bulft.
69.
Fitzh. Nat.
Brev. quart.
edit. 390. 21 H.
6. 31. b.
9 H.
6. 10. Bro.
tit. Labourers,
43, 51 tit. Co-
vert, 25.
Cro. Eliz. 920.
I Lev. 87.
March 145.
So if an infant take a leaſe of an houſe or of land,
and refide in the houſe, or enter upon the land and
manure it until a rent day; if the rent be not of greater
value than the leafe, he will be liable to an action of
debt for the rent.
And an infant of twelve years old may bind himſelf by
a covenant to ſerve in huſbandry; and if he depart from
his fervice, an action will lie against him, founded on
the ſtatute of labourers, 23 E. 3. ftat. 1.
So a fingle obligation, entered into by an infant,
for a fum actually laid out in neceffaries, will bind
him.
•
And an infant may, even at law, be bound by a
prefumed agreement; for it was faid by Yates, Juftice,
1 Roll. Abr. 729. that an action of aflumpfit for a fine, due by an infant
on an admittance to a copyhold, would lie, if the infant
continued to occupy and enjoy.
- Pl. 8.
3 Burr. 1719.
[ * 36. ]
Whittingham
verf. Hill. Cro.
Ja. 494.
3 Salk. 196.
Freeman v.
Hurft, 1 Term
Rep. 40. Bart-
lett v. Emery,
ibid. 42, (note
a.)
Farncham v.
44.6.
**
But, at law, the legal capacity of an infant to
bind himſelf by his affent to a contract, does not ex-
tend beyond the neceffity that gives rife to it; namely,
his education, neceffaries, and lodging. Therefore if
an infant be in trade, and incur a debt in buying things
to maintain his trade, it will not bind him, although
he gain his living thereby.
And the rule of law is the fame, as to a debt in-
curred in repairing houfes belonging to him, or the
like.
Neither can an infant bind himſelf by ftating an ac-
count; becauſe the only confideration for the promiſe
that arifes in law upon a ſtated account, is the ſtating
of the account. Therefore, as an infant cannot ſtate
an account, the confideration does not hold, and the
promife is void.
So where a woman covenanteth to teach an infant to
Atkins, i Keb. fing and to dance, and to find him in meat, drink,
wathing and lodging, and the infant covenanted to
fèrve her it was held that the infant was not bound by
the covenant.
But
OR AGREEMENT S.
•
But an infant's bond, even for money borrowed, [
may, by circumſtances ex poft facto, become binding
in equity.
37. ]
Nelf. Chan. Rep.
Thus where an infant borrowed a fum of money for Hampfon v.
which he gave a bond, and then devifed his perfonal Lady Sydenham,
eftate (being of fufficient capacity) for the payment 55.
of his debts, particularly thofe he had fet his hand to;
this bond was decreed to be paid, notwithſtanding the
minority of the obligor.
And although, at law, a contract entered into with
an infant for money, even to pay for neceffàries, be
void according to the refolution in Salkeld, yet it is Salk. 279.
otherwife in equity; for if one lend money to an in-
fant to pay a debt for neceffaries, and, in confequence
thereof, the infant does pay the debt: although he be
not liable at law, he will, notwithstanding, be fo in
equity; becauſe in this cafe the lender of the money
ftands in the place of the perfon paid, viz. the creditor
for neceffaries, and fhall recover in equity as the other
fhould have done at law.
1
And although an infant cannot by his affent bind Note. This ob-
himfelf to a ſpecific contract, except in cafes of the [38. 1
nature of thoſe above ftated, yet his incapacity does fervation appears
render contracts entered into with him, if there be
to be equally ap-
plicable to a
any femblance of benefit to arife to him thereby, void, contract with an
or voidable by the party contracting with him; for idiot or madman.
though the infant has this privilege, yet the party with other contracting
whom he contracts has it not; for the latter knows party, the affent
with whom he contracts, and, therefore, fhall not be is perfect.
relieved against his own folly; nor fhall that be turned
to the prejudice of the infant, which the law defigned
as, a protection and fecurity to him againſt all difadvan-
tageous contracts.
For, as to the
I Vent. 51. et
Therefore, where the plaintiff declared that the de- Smith v. Bowen,
fendant (in confideration that the defendant would 1 Mod. 25. S. C.
ſuffer him to take away fo much of the plaintiff's grafs vid. Farneham v.
which the defendant had cut down) promifed to pay Atkins, 1 Sid.
him fo much for it; it was moved in arreft of judg- 446. Forester's
ment, after verdict, that the plaintiff was an infant, cafe, I Sid. 41.
and, therefore, that he not being bound by the agree-
·
ment, neither ought the defendant to be bound by it;
for the confideration was not good, becauſe not reci-
procal; for the infant might have avoided his pro-
mife, if an action had been brought againſt him. Sed
non allocatur:
C 2
So
OF THE ASSENT TO CONTRACTS
*
39. ]
Holt v. Claren-
cieux, Strange
937.
Clayton v. Aſh-
down, 9 Vin.
[ 40.]
Ab.
6. 393. Pl. 4.
*
Cao. Car.
306.
303,
* So it was held in the cafe of Holt and Clarencieux,
wherein the plaintiff declared that it was mutually
agreed between her and the defendant, that they ſhould
marry at a future day which was paft; and that, in
confideration of each other's promifes, each engaged
to the other; notwithſtanding which the defendant did
not marry the plaintiff, but had married another,
which fhe laid to her damage of 4000l. The defen-
dant pleaded, that the plaintiff at the time of the pro-
mife was an infant. And it was contended, on the
behalf of the defendant, that the plaintiff not being
bound equally with the defendant, this was a nudum
pactum, and that therefore the defendant could not be
charged in the action. But the court were of opinion,
that as marriage was then looked upon to be an ad-
vantageous contract, the agreement was not void, but
voidable at the election of the infant; and that as to
the perfon of full age, it was abfolutely binding.
And equity will decree a ſpecific performance of an
agreement fo circumftanced againſt the adult.
Thus where A. during his minority, by himſelf and
guardian, entered into articles to let B. a farm at a
certain rent; B. entered upon * the farm and conti-
nued the poffeffion, and paid the rent after A. came
of full age. Then A. conveyed the inheritance to C.
and afterwards B. quitted the farm, infifting that he
was only tenant at will, and refufed to accept a leaſe
or execute a counterpart, becaufe A. being an infant
at the time of making the agreement, was not bound
by it, and therefore B. ought not to be bound by it.
But by Harcourt Chan. B. fhall exécute a leaſe to C.
and C. execute a counterpart of fuch leafe to him in
purſuance of the articles, and B. fhall pay cofts.
.
If an infant make a leafa for years referving rent,
and the leffee enter; he may make the leffee his tenant,
or, at his election, a diffcifor, and proceed againſt him
accordingly.
And the court of Chancery, which in thefe cafes
as upon principles of fubftantial justice and natural
equity, on whom the cuftody of infants officially de-
volves, has frequently interpofed, and held infants to
their contracts in cafes where, at law, they would
not have been bound. The principle upon which
that court proceeds, feems to be this: that, as, on
the one hand, if advantageous contracts were not
binding
OR AGREEMENT S.
41. ]
* binding upon the perfons contracting with infants, [*
the protection which was intended as a privilege,
would, in event, become a prejudice; fo, on the other
hand, if no agreements would bind infants either in
law or in equity, that privilege, at the fame time that
it protected them from prejudice, would debar them
from the poffibility of reaping any advantage by con-
tracts, as none would treat with thoſe whom they
knew could not be bound. Equity, therefore, con-
fiders the intrinfic nature of the contract, with what
view it is entered into, who are the parties to it, whe-
ther the friends of the infant advife and confent to it, Vide 9 Mod.
the extent of its influence, and in what degree it has 104:
been executed, and directs the confcience of the in-
fant according as theſe circumſtances affect the agree-
ment; thereby giving to fuch tranfactions their juſț
efficacy.
•
[* 42. ]
Earl of Chefter-
field v. Lady
Cromwell,
Thus a contract made by an infant, by the advice
and confent of his friends, has been decreed to be good,
and that under the moft harfh circumſtances imagina-
ble; namely, by turning the intereft of money into
principal, upon condition that the creditor would not,
at that time, extend the lands of the debtor. As where
J. S. mortgaged his eftate to C, and then * died leav-
ing D. his daughter and heir, who was an infant and
had nothing to fubfift on but the rents of the mortgaged
eftate. The mortgage having been fuffered to run in
arrear three years and a half, C. grew uneafy at it, 287. 1.
and threatened to enter on the eftate, unlefs his intereſt
might be made principal. Upon which D.'s mother,
with the privity of her neareft relations, ftated the ac-
count, and D. being then near of age, figned it.
This agreement was eſtabliſhed by the court of Chan-
cery, being for the infant's benefit, who, without it,
would have been deftitute of fubfiftence.
From theſe confiderations that head of equity, which,
in cafes of marriage contracts and agreements, autho-
rizes the court to reftrain infants (parties thereto)
from refcinding, by decreeing fuch agreements to be
binding on their property, feems to have fprung.
For it is obvious, on reflection, that marriage agree-
ments for the fettlement of the property of the parties
are not original, but are in the nature of acceffory,
contracts. The principal contract is the marriage
itſelf, which male infants at fourteen, and female in-
fants at twelve, are of capacity to enter into with
confent
1
Eq. Ca. Abr,
OF THE ASSENT TO CONTRACTS
I
43. ]* confent of their parents or guardians. As foon as
the marriage is had, the principal contract is executed,
and cannot be fet afide, or refcinded even at law; fo
that it is then confidered upon the fame footing as con-
tracts binding on the ground of neceffity. The eftate
and capacities of the parties are immediately altered.
The children born of the marriage are equally purcha-
fers under both father and mother. So that were the
parties permitted to refcind fuch contracts, the intereft
of third perfons, the iffue, would be affected; for fuch
agreements muſt be either good or bad in toto, becauſe
every part conftitutes the whole, as the confideration
arifes from each part; and, confequently, it is impof-
fible to take away any part of the confideration, without
overturning the agreement entirely.
Then, as the law has entrusted the parents and
guardians of infants with the direction of the principal
contract, the marriage of their children and wards,
and confiders the children, when acting under that
fanction, as bound by their affent in like manner as in
other contracts arifing out of neceffity; it feems per-
[* 44 ] fectly confiftent with the principles of equity and
justice, that they fhould be bound, acting under the
fame fanction, by their affent to the acceffory contract
refpecting their property. And the intereft of the
iffue in, and alteration in the capacities of the parties
to fuch contracts, furnish an equitable ground for the
interpofition of the courts, And, indeed, if equity
did not inforce fuch agreements, this privilege of not
being generally bound to the execution of contracts,
meant to protect infants, would militate in cafes where
the infant's fortune was in money the other way;
for, the primary contract being binding, muft be fol-
lowed by its legal confequences, one of which would be,
that the huſband, money being a perfonal thing, would
be entitled to the abfolute property in it immediately
upon the marriage.
Price v. Scys,
Barnard. 117,
$. £. per Lørd
The firft cafe that occurs of this kind is that of
Price and Seys. There a lady, entitled to a portion of
Hardw. 3 Atk. 3000l. payable at her age of twenty-one, and likewife
entitled to a bond of 100% both of which were made
chargeable upon a real eftate, entered into a treaty of
marriage, the lady being at that time but eighteen years
of age.
Upon this occafion marriage articles were
6330
made,
OR AGREEMENTS.
made, by which, in confideration of the intended [* 45. ]
marriage, and of the 3000l. portion and of the 100l.
bond, the intended hufband agreed to make a fettle-
ment upon her, the uſes of which fhould be to the huf-
band and wife for their lives, and the life of the fur-
vivor of them, by way of jointure upon her, and in
bar of her dower, the remainder to the heirs of the
body of the wife by the husband begotten, &c. The
marriage was folemnized, and then the hufband died,
without having made a fettlement, the wife furviving.
She afterwards married again, and then fhe and her
huſband fet up a claim to theſe fums in her right as
ſurviving her huſband. On a bill filed between the
parties in Chancery, the queftion came before Lord
Talbot, who was of opinion, that there was no ground
for the claim. His lordſhip faid it was clear, that if,
a fettlement had been made in this cafe, inſtead of the
articles, the court would not have fuffered the wife to
claim the benefit of the demands in queftion, notwith-
ftanding fhe had furvived her huſband; for the huf
band would have been confidered as a purchafer of her
portion. That in this cafe there was no fettlement
made, but only articles. Then the question was,
whether that would make any difference? And his
* lordship's opinion was, that it would not.
was reaſonable that theſe articles fhould bar the wife
of the benefit of thefe chofes in action, in the fame man-
ner as a fettlement itſelf would have done,
For it [* 46. ]
IOI. I P. Will.
5.74, 2 Eq. Ca.
And it would make no difference, in fuch cafe,
whether the intereft of the wife were in poffeffion, or
depended upon a contingency. The cafe of Theobald Theobald v.
and Duffay, determined finally in the houfe of Lords, Duffay, 9 Mod.
is a very ftrong cafe to this purpoſe. So is the cafe of
Harvey and Ashley, wherein an objection was made, Abr. 88. c. 11.
that, as part of the fortune of the wife (who was an
infant) was a contingent perfonal intereft, which by 3 Atk. 606.
the marriage would not have been transferred to the
huſband, the fettlement of that could not be beneficial
to the infant, and was therefore remedilefs: but Lord
Hardwicke difallowed that diſtinction.
vide inf.
And in the cafe of Blois and Lady Hereford, this Blois v. Lady
principle was carried ftill further, an infant being there Hereford.
confidered as bound, as to her perfonal eftate, by her 2 Vern. 501,
agreement, inferred from circumftances only. In that
cafe A. married with B. who had an eſtate in land and
a fortune
ON THE ASSENT TO CONTRACTS
47.] a fortune in money. Being both infants, an act of
parliament was obtained for fettling à jointure on the
wife in bar of dower, but to ceafe if he did not fettle
her land when of age; but nothing was faid as to the
wife's perfonal eftate, part of which was a mortgage
for 1300l. taken in a truſtee's name. The wife when
ſhe came of age fettled her own land, Afterwards the
huſband died. The queſtion was, whether this mo-
ney fhould go to his executors, or furvive to the wife
as a chofe in action? and Lord Cowper (then lord
keeper) faid, that he laid no ftrefs upon the declaration
of truft. The law of the court would prefume a promife;
and in all cafes where a fettlement was equivalent, it
was to be intended that the huſband fhould have the
portion. The wife fhould not have her jointure and
fortune both.
But thefe cafes muſt be taken with fome diftinctions.
For if, in fuch cafe, the jointure were inadequate to
the wife's portion, much more if there were any
col-
lufion between the wife's friends and the huſband in the
making of the jointure, fo as by that means it was not
fuitable to the lady's fortune; there, if the proportion
confifted in chofes in action, unaltered during the
[48. ] marriage, as fhe would be entitled to her legal in-
tereft in thefe chofes in action by furviving her huſ-
band, a court of equity would not, in fuch a cafe,
take from her the benefit of them: and in that cafe fhe
would have an equity, rebutting the equity which the.
reprefentative of the hufband would have upon her.
Vide 2 P. Will.
243.
Ath. 615.
?
In the cafe of Cannel and Buckle, Lord Macclesfield.
faid, that if a feme infant feized in fee fhould, on a
marriage, with the confent of her guardians, covenant,
in confideration of a fettlement, to convey her inheri-
tance to her huſband, and it were done in confidera-.
tion of a competent fettlement, equity would execute
the agreement.
+
·
And although Lord Hardwicke obferved, in the caſe
of Harvey and Ashley, that this was going a great way,
as it related to the inheritance of the wife; yet he ad-
mitted that there were cafes where the court would go.
to that extent. For inftance, if lands of the wife
were no more than an adequate confideration for the
Vide infra, Cecil fettlement that the hufband made, and after the mar-
v. Salisbury.
riage the wife fhould die and leave iffue, who would
be entitled to portions provided for them by the ſettle+.
Bishop of Bath
and Wells v.
Hypfley.
ment,
OR AGREEMENT S.
]
ment, it would * in that cafe be very reaſonable for the [* 49. 1
court to affirm that fettlement.
1 Brown's Ca.
Chan. 116.
But in the cafe of Durnford and Lane, which was a Durnford
bill praying a specific execution of articles, made pre- v. Lane,
vious to the marriage of Thomas Lane with Ann Bowyer,
then an infant, entered into for the fettlement of her
eftates, by which it was covenanted that, upon her at-
taining her age of twenty-one, the hufband and wife,
and her mother, fhould levy fines, and ſettle the eſtate
in truſtees to the uſe of the mother for life, remainder
to the truſtees to pay the rents, &c. to the wife for her
feparate ufe during her coverture-remainder to the
huſband for life, remainder to the children of the mar-
riage, in fuch proportions as the wife fhould appoint,
in default of appointment, fhare and fhare alike in tail
general remainder to fuch ufes as the wife fhould ap·
point; and in failure of appointment, part to the mo-
ther in fee; and whereby the huſband covenanted to
permit the wife to enjoy the eftates to her ſeparate uſe,
and that he would lay out 500 l. and 1500l. to certain
ufes declared by the fettlement: Lord Thurlow feems
to have been of opinion, that an infant would not be
bound by articles made previous to her marriage re- [ 50. ]
ſpecting her real eſtate, unleſs fhe had a fettlement from
her huſband, and had, after his death, taken poffeffion
and availed herſelf of it; in which cafe his lordfhip
thought ſhe would be bound by the equity arifing from
her own act. Upon which ground he declared, in
this cafe, that he could not fay the whole property of
the wife was bound, or decree the articles to be fpecifi-
cally performed.
But it is obfervable, that, in the preceding cafe, the
general object of the fettlement was the for tune of the
wife only, and that the court was able to give relief
without actually deciding the queſtion, as to the validity
of ſuch contract by an infant,
*
Williams.
Brown's Ca.
I
Chan. 153.
And Lord Thurlow, in the cafe of Williams and Williams v.
Williams, was of opinion, that a marriage con-
tract, the effect of which was to preclude an infant
from any thing, whether real or perfonal, which
fhould come from any quarter, would be void, as unrea-
fonable,
But, in fuch cafes, the hufband will be bound by
his covenant, refpecting the eftate of his wife which
fhall
OF THE ASSENT TO CONTRACTS
[* 51, ] fhall afterwards come to him, as well as refpecting
51,]
the eſtate of which he is in poffeffion.
Williams v.
williaros.
Brown's Ca.
Chan. 152.
Thus where by indentures, previous to the marriage
of A with B. an infant, it was agreed, that 7007.
advanced by B. and 700l. advanced by her uncle,
thould be laid out in lands, which fhould be fettled up-
on her for life, with remainder to truſtees, upon trufts
therein mentioned; with a provifo in the deed, by
which A. covenanted, that all fums of money, &c.
which should come to B. or to him, in her right, from
the mother, or otherwife, fhould be applied to or vefted
in truſtees to the fame ufes as the 1400 l. A chofe in
action belonging to the wife, was reduced into poffef-
fion by A. and a moiety of the refiduary eftate of the
mother of B. devolved upon A. And Lord Thurlow
held, that the husband having covenanted for himſelf,
that what ſhould come to him ſhould be bound by the
articles (which he might do) the chofe in action muſt
be fo applied, and alfo the moiety of the reſiduary eſtate
of the mother.
And a wife is alfo entitled to the interpofition of the
court of Chancery, to enforce an agreement made on
[ 52 ] her marriage with an infant, if her portion be an
adequate confideration for the fettlement ftipulated.
Strickland v.
Ca. 211.
1
Thus where the defendant was feifed for lives of a
Cker, 2 Chan, church leafe, in truft for an infant to whom he was
guardian; and on a treaty of marriage between the in-
fant and the plaintiff, who had 1000l. portion, an in-
denture was made, with the confent of the guardian,
whereby the infant covenanted that the leafe fhould be
furrendered, and a new leafe taken, in which the life
of the intended wife fhould be put in for her jointure.
The guardian was made party to the deed only to fhew
his confent; the marriage was had; the portion paid;
the leafe was furrendered, and the wife's life put in;
the husband died. Then the widow fued the guardian
to affign the leafe to her for her life. And it was
decreed that he fhould fo affign; and the decree was
affirmed on a rehearing.
Hollingfhead v.
Hallingtheid,
₫ Strange Goj.
So where a man. devifed his eftate to A. for life,
with feveral remainders over, with power to the perfon
in poffefion to limit any part of the premiffes for a
jointure, not exceeding one moiety: the firft devifee
for life, whil an infant, married, and, with his mo-
ther,
OR AGREEMENT S.
ther,
entered into articles to fettle lands of 100l. per [* 53. ]
annum on the wife for her jointure. But in the articles
no notice was taken of the power. Before any jointure
made purſuant to the power, the tenant for life died.
And on a bill againſt the remainder-man to have the
jointure made good, it was fo decreed,
A woman, being an infant, may alſo, by an agree- Drury v. Drury.
ment entered into on her marriage, wave her right of 5 Brown's Par,
dower and thirds incident by law to the act of marriage.
Ca. 570.
This feems a neceffary confequence of the principle
eftabliſhed by the houfe of Lords in the cafe of Drury
and Drury, in which it was decided, that a woman
being an infant, might, under the ftatute 27 Henry 8th,
by contract to accept a jointure, preclude herſelf from
her right to claim dower, or thirds, in her husband's
real or perfonal eftate. Upon which decifion, courts
of equity, following up the principle, have founded a
variety of cafes, wherein, by provifion of the husband,
a wife may be barred of dower, where the common
law would not bar her: as on an eſtabliſhment in the
nature of a jointure fettled out of perfonal eftate, if
fo framed as to import a jointure, whether expreffed or
no. This the court does by way of enforcing the
agreement of the parties, and to prevent double fatis-
faction. Thus a bond given before marriage for the
wife's livelihood and maintenance, was held a fatis- Longdale,
faction for dower, though the word Jointure was not 1 Vez. 55.
ufed.
*
But, if an agreement with an infant be without fem-
blance of benefit to him, it will in all cafes be void.
[
*
Vizard v.
I
54. ]
Therefore a bond with a penalty, although given ↑ Roll Abt.
for neceffaries received, will not bind him; for it
729. Pl. S. Mo.
never can be for his advantage to enter into a penalty. 679. Godb. 219.
That this is the principle upon which fuch a bond is Ca. 316.
void, is clear from the circumftance, that, if an infant
and a furety enter into a penal bond for neceffaries for
the latter, the bond will bind the furety, although it
will not bind the infant. So that it is not the nature of
the bond, but the incapacity of the infant, that makes
it void.
And where agreements have been held to be in them-
felves
OF THE ASSENT TO CONTRACTS
[* 55. ] felves void against infants; they have, nevertheleſs,
been confidered as made binding by their fubfequent
allent when of full age.
Vide Franklin
1 Vern. 132.
Vide infra.
And it is not neceffary that the affent, in fuch caſes,
ſhould be exprefs, it feems fufficient that acts be done,
from whence an affent muft neceffarily be inferred.
Thus an agreement, void in itſelf as againſt an in-
v. Thornbury, fant, was neverthelefs held binding; the infant having
received intereft under it, after he came of full age.
Which refolution is founded on this reafon, that the
law will never intend a wrong in an act that can, by any
conftruction, be made lawful.
@ Vern. 225.
So if an infant make an exchange of lands, and con-
Eq. Ca. Abr. tinue in poffeffion after he come of age, he fhall be bound
by it.
Vide
$82.3.
Durnford v.
Lane, fupra.
2 Vez. 529,
TA
[
*
*
Lord Hardwicke was of opinion, that the equity
would be the fame, fuppofe a woman, being an infant,
and entitled to a ſmall real eſtate of inheritance, were
to marry; and the husband, in confideration of that
real estate, and that he ſhould have and enjoy the in-
56. 1 heritance for his own benefit, fettled a proviſion by
way of jointure on her, whether of land or perfonal
eftate is immaterial, and then he died; and fhe, after
his death, took to that provifion fo made for her, and
enjoyed it, and afterwards died: for, putting that cafe
in argument, he fays, the court of Chancery would
not, in fuch cafe, fuffer her heir at law to infift on
the inheritance of that real eſtate by defcent from her;
but would hold her heir at law bound by her fubfe-
quent agreement, fhe having thereby bound herfelf by
her own acts, and departed from her intereft in that
real eſtate. And the court would decree her heir at law
to be a truftee for the heir at law of her huſband.
Atk. 617.
And fuch implied affent inay be either permanent
or temporary. Therefore if a woman marry, and a
jointure is made after marriage, and the huſband die
leaving her an infant; if the, without doing any act
to determine her election, marry a fecond hufband
during her infancy, and he enter on the jointure eftate,
that entry will bind the hufband and wife during the
coverture.
And in fome cafes a mere acquiefcence, after the in-
fant's
OR AGREEMENTS.
1
ant's attaining his age, furniſhes * à fufficient reafon [* 57. ]
for a court of equity to hold an infant to his agreement;
!
for if a man does not exprefs his define to be relieved,
when he has convenient means, it is to be prefumed that
he is willing to abide by his original agreement; efpe-
cially if thoſe with whom the contract is made, be
prejudiced thereby.
Abr. 282. q.
Thus where a bill was filed for the execution of the Cecil v. Salibury.
trufts of a will, and to compel a fale, in order to raife 2 Vern. 224-
portions and maintenances for younger children; and 1 Fq. Ca.
the heir, being a minor, in his anfwer defired the truft
eſtate might not be fold, and offered to ſubject other
lands, not within the truft, for the better railing of
the portions, fo that then a fale would not be necef-
fary: the court of Chancery held the heir to his offer;
becauſe, by that means, he had delayed a fale. And
the court faid, that if he would have departed from
what he had offered, he ought immediately, when he
came of age, to have applied to the court, to have
retracted his offer, and amended his anfwer, which he
had neglected to do.
·
And where, on fubmiffion, an award was made be-
Zihop of Bath
tween the bishop of Bath and Wells on the * one part, [* 58. ]
and an infant and his guardian on the other part, and Wells v.
that, during the bishop's life and the infant's mino- Hypfley, cited
rity, they thould both be at liberty promifcuouſly to 3 Atk. 614.
dig lead ore, &c. and that the profits thould be divided
equally between them; Lord Nottingham, on a bill
brought to confirm the award, being of opinion that
the infant was bound by it, indemnified the truſtees
for what they had done, and decreed, according to the
prayer of the bill, that the award fhould be eſtabliſhed.
But there must be fome equitable ground for the in-, Roll. Abr-
terpofition of the court of Chancery, or it will leave 376-5. 1 Fq.
fuch agreements to their fate at law. Therefore if an Ca. Abr. 282. I
infant fell land for money, and then re-inveft the money
raiſed by the fale in the purchafe of other land; this fale
will not be aided in Chancery, becauſe the perfon of the
infant is difabled by a maxim in law.
And there are cafes in which an infant fhall be bound
by his aflent, even at law. Thus if he take an eſtate
upon condition, he will, if he retain the eftate, be
bound by the condition, nor can a court of equity
relieve him; for it cannot change the nature of infant's
eftates,
OF THE ASSENT TO CONTRACTS
[* 59.] * eftates, nor make that abfolute which is defea-
fible.
Pigott v. Ruffel,
Cro. Eliz. 124.
1 Chan. Ca. 256.
1 Eq. Ca. Abr.
283.7.
Eliz. 719.
Cro.
Salk. 387.
Harris v. Lee,
So if leffee for life, and he in the reverſion, join in
a fine to a ſtranger, and the reverfioner reverfes the
fine for nonage, yet he fhall not enter for the for-
feiture; becauſe he joined in the fine and confented
to it.
Again, if an infant executor affent at ſeventeen to a
legacy, fuch affent fhall be good, if there are fufficient
affets befides to pay debts, otherwiſe not.-
A feme covert is alfo, during the marriage, inca-
1 Bac. Abr. 68. pable of binding herfelf or her huſband by her affent
to any agreement in pais, fhe being, in confideration
of law, under the coercion and dominion of her huſ-
band, and, confequently, having no moral capacity
to affent to a contract either refpecting his property or
her own.
1 P. Will. 483.
[ *
A feme covert, therefore, cannot, at common law,
borrow money, nor contract a debt to bind her huf
band by borrowing money, even though fuch money
be afterwards applied to buy neceflaries for which the
* 60. ] may
* bind him; becaufe ftill it was in her power to
have wafted that money. But if money be applied to
the uſe of the wife for her cure from any diftemper, or
for neceffaries, the perfon who lent her the money,
will, in equity, ftand in the place of the perfons who
found and provided fuch neccffaries for the wife; and
as fuch perfons would be creditors of the hufband,
fo fhall the lender ftand in their place, and be a cre-
ditor alfo.
But there are many exceptions out of this rule of
the common law; for a wife may have feparate pro-
perty, as to any contract refpecting which the has in
equity, the fame capacity of affenting as if he were
fole; therefore where a wife, authorized-by fettlement
to difpofe of her ſeparate property, fells part of it, a
court of equity will bind her, as a perfon equally com-
petent with a feme fole.
And, in fuch cafes, it is not neceffary that her truf-
tees be parties to the conveyance or confulted, unleſs
their confent is made effential by the fettlement; for
the mere appointment of trustees is not fufficient
ground from whence to infer, that fuch was the in-
tention of the inftrument creating the truft for her,
fince,
OR AGREEMENT S.
fince
there muſt be truſtees, or otherwife fhe could [
have no feparate property.
I
* OI.
Thus where, on the marriage of A. and B. an eftate Grigby v. Coz.
was ſettled in truftees to receive the rents and profits 1 Vez. 517.
for her fole and feparate ufe, and as the fhould direct
or appoint whether fole or covert. The wife, by
deed of appointment, fold part to C. The hufband
covenanted againft incumbrances. The truftees were
not confulted. And, on a bill filed in Chancery to
have the effect of this bargain, Lord Hardwicke de-
creed in favour of the purchafer, faying, that it was
impoffible not to decree to the purchafer of this equity
and truft the benefit thereof as against the wife, fo far
as purchaſed from her, and as against the hufband, fo
far as he had bound hinfelf by his own contract: for
the rule of the court was, that when any thing was
fettled to the wife's feparate ufe, fhe was confidered
as a feme fole, and might appoint in what manner fhe
pleafed, and, unlefs the joining of her truftees was inade
effential, there was no occafion for it.
But it is always more prudent for the purchafers of
fuch intereſts to talk with the truſtees; as their appro-
bation will induce courts of equity to view fuch tran- [
factions, which are generally contrary to the intent of
the proviſion, with a more favourable eye.
And an acquiefcence by a feme covert in a court of
equity, to any difpofition of her feparate eftate, will
operate as a virtual appointment.
163.
* 62. 3
Par-
Thus where a feme covert, having power to receive Allen v.
the profits of an eftate to her feparate ufe, and appoint worth, i Ver.
them as fhe pleafed, brought a bill jointly with her
huſband for an account, and fubmitted that the profits
fhould be applied to the payment of her huſband's debts,
for which a decree paffed; fhe was held to be bound
by this acquiefcence, and the bill, to which fhe was
made a party without collufion, was confidered in equity
as an execution of her power, in like manner as an
actual appointment would have been.
And any engagement made by a feme covert, re-
fpecting the difpofition of her feparate property in this
or that way, may be inforced in equity against her,
although her husband be out of the reach of the process
of the court.
Thus
}
OF THE ASSENT TO CONTRACTS
63. ]
Bell v. Hyde,
Pre. Chan. 328.
Gill Rep. Eq.
83.
Peacock v.
Monk, 2 Vez.
193.
* Thus where a woman, previous to her marriage,
had her own fortune fettled upon her; and, her huſ-
band being very much in debt, and arrefted, and the
creditors going on to take out execution, and feize his
goods, fhe, to prevent it, gave a note, that if they
would difcharge the action, (which was for 2000)
fhe would pay the debt out of her own feparate eftate,
and the action was accordingly difcharged. A bill,
brought against her and her husband on her refufing
to make good this agreement, was retained by Lord
Keeper Harcourt, after adviſing with Sir John Trevor,
mafter of the Rolls, and an attachment against her in the
abfence of her huſband, was held to be regular.
So the general engagement of a wife will, in equity,
operate upon her feparate perfonal property, and ap-
ply to the rents and profits of her real eſtate; and her
truſtees will be obliged to apply both, when they arife,
to the fatisfaction of fuch general engagement.
Thus Lord Hardwicke faid, in the cafe of Peacock
and Monk, that, if a wife, having an eftate to her fe-
parate ufe, borrowed money which fhe gave a bond to
pay, this would give a foundation to demand the mo-
[ 64. ]ney against her out of her feparate eftate, the being
confidered as a feine fole as to that.
*
Norton v. Tur-
vill, z P. Will.
144.
Stanford v.
*
So, in the cafe of Norton and Turvill, where à feme
covert, before her marriage, with the confent of her
then intended huíband, conveyed an eftate to her fe-
parate ufe, and after her marriage borrowed 251. upon
her bond and died. Though it was admitted that the
bond given by the feme covert was abfolutely void,
and in that refpect differed froin a bond given by an in-
fant, which was only voidable, yet it was held to be
payable out of the feparate eftate of the wife, which was
a truft eftate for payment of debts.
So, in the cafe of Stanford and Marshal, the rents
Marſhal, 2 Atk. and profits of the feparate eftate of two femes covert
were ordered to be paid by their trustees to credi-
tors by bonds, in which they had joined with their
hufbands.
68.
And an agreement, made by a feme covert with her
huſband reſpecting this property, will be binding, and
will operate in the nature of an appointment.
Thus
OR AGREEMENTS.
Ca. Abr. 26. Pl.
Thus where E. devifed hereditaments in * feveral [* 65. ]
counties to truſtees during the life of M. his daughter, Freeman et al.
wife of Sir C. M. in truft, to pay the rents and pro- v. Sir Cleve
fits during her life, to fuch perfons as ſhe ſhould appoint, Malon, 2 Eq.
for her ſeparate ufe, and with which her huſband ſhould 29. Bunb. 205.
not intermeddle, nor fhould the fame be liable to his 3 Brown's Par.
debts; and alfo directed, that his executrix fhould, Ca. 378.
within fix months after his deceaſe, out of his perfonal
eftate, pay to his faid truſtees, or the furvivor of them,
6,000l. upon truſt to place the fame out at intereſt with
his daughter's approbation, for fuch purpoſes as fhe
alone, by any writing executed in the prefence of two
or more witneffes, or any writing purporting to be
her will, notwithſtanding her coverture, fhould direct,
ſo as the fame ſhould be for her own ſeparate uſe, and
not to be liable to her huſband's debts or difpofal, and
deviſed other eſtates to the fame uſes, and died. And
then, by articles between Sir C. M. and M. his wife,
fhe, in confideration of his confent to her defire of liv-
ing ſeparate, agreed that he fhould have paid to him
out of her ſeparate effects 1000l. within three calen-
dar months then next following, with 200 l. per annum,
parliamentary taxes deducted, for his life, payable
quarterly. And it was thereby ftipulated, that the
agreement fhould be made an order of court, and [66. J
that the truſtees fhould confent thereto, and that, un-
til fuch confent and order could be had, the agent for
M. and her truftee fhould give fecurity by a bond of
1000l. penalty, conditioned, that either M. fhould
perform the articles on her part, and that fuch order
of court and conſent ſhould be had, or, that M. ſhould
be delivered up again into the poffeffion of her huſband.
And Sir C. M. covenanted that, on being paid the
1000 . and fuch confent and order being obtained,
M. fhould live ſeparate from him without moleftation,
and that he would give fecurity for his performance of
the articles. By an indorfement on thefe articles, made
fubfequent, the fame were affirmed, and a propoſal made
for exchanging the 1000 l. for an additional annuity of
100l. per annum to the huſband for life. On a fuit brought
after the death of M. for a performance of thefe articles,
it was decreed, that the articles were well executed by M.
purſuant to the power veſted in her by the will of E. her
father, and that the fame fhould be performed and car-
ried into execution, as far as they remained unperformed
by her and her truſtees; which decree was afterwards af-
firmed, with cofts, on an appeal to the houfe of Lords.
D
And
OF THE ASSENT TO CONTRACTS
1.
[ * 67. ]
Wright v. Lord
Cadogan, et al.
6 Brown's Par.
Ca. 156.
[ *
* And a covenant in articles, entered into before
marriage, that a wife fhall have the difpofition of fuch
real and perfonal property as fhe fhall acquire during
the coverture, is fuch an agreement as a court of equity
will fupport, and render valid as to any equitable
eſtate that ſhall accrue to the wife during the cover-
ture. And any difpofition thereof made by her, al-
though it be without a fine, will be effectual to bar
her heirs.
Thus where an indenture was executed previous to
the marriage of A. with B., reciting that B. was then
entitled to a copyhold eſtate of inheritance and a rent-
charge therein mentioned, and that ſhe had great ex-
pectations of a confiderable acceffion of fortune from
feveral relations; and that A. not being in the actual
poſſeſſion of any eftate out of which any provifion
might be made for her, it had been agreed between
them, that the faid copyhold lands and the faid rent-
charge, fhould continue and be to the fole and feparate.
ufe of B. notwithſtanding her intended coverture, and
free from the controul or intermeddling of her intended
huſband, and not to be ſubject to his debts; and that
all fuch eftates, either real or perſonal, or of any kind
68. whatfoever, which fhould or might defcend upon or
68.1
come to her during her coverture, or to her huſband
in her right by defcent, or by virtue of any remainder
or reverfion, or of any devife, gift, or bequeft, or by
virtue of the ſtatute of diftributions, or by any other
ineans whatſoever, fhould likewife be and enure to the
faid B. for her fole and feparate ufe, free from the con-
troul of the faid A. and no ways ſubject to his debts,
and to be applied and difpofed of, from time to time,
as fhe fhould, by any deed or deeds, executed in her
life-time, or by her faft will and teſtament duly made
and publiſhed in the prefence of three or more credible
witnefles, direct or appoint, notwithſtanding her co-
verture; it was therefore witneffed that, in confidera-
tion of the faid marriage, and for better eſtabliſhing
and comfirming the faid agreement, the faid A. cove-
nanted with C. and D. that he would, as ſoon as con-
veniently might be, at the requeft of the faid C. D.
and B. exccute and perfect all fuch deeds, acts, mat-
ters, and things, conveyances and affurances, as ſhould
be devifed or adviſed by her counfel, for better and
more effectually fecuring the faid copyhold eftate and
rien-charge for her fole and feparate ufe, notwithſtand-
ing her coverture; and from time to time, as often
:
as
OR AGREEMENT 8:
* 69. ]
as any eftate, real or perfonal, fhould defcend upon [
or come to the faid B. or the faid A. in her right, by
defcent, devife, bequeft, or gift, or by virtue of any
reverſion or remainder then limited, or afterwards to
be limited, or by virtue of the ftatute of diftributions,
or by any other means whatſoever, would execute and
perfect fuch deeds, acts, conveyances, and affurances
in manner aforefaid, for vefting the fame in fuch per-
fon or perfons as fhe fhould appoint in truft for her
fole and ſeparate uſe, and to be ſubject to ſuch diſpo-
fition as the faid B. fhould from time to time, and all
times thereafter make thereof, by any deed or deeds,
writing or writings, under her hand and feal, or by
her laft will and teftament, duly made and publiſhed
in the prefence of three or more credible witneffes
and that, until the faid B. ſhould convey and affign the
premiffes'in manner abovementioned, it fhould be law-
ful for the faid C. and D. and the furvivor of them,
or his executors, adminiftrators, and affigns, to re-
ceive the rents and profits of the faid copyhold lands,
and the faid yearly rent-charge, and alfo the rents and
profits of all fuch lands as might or fhould deſcend
upon or come to the faid B. as abovementioned, dur-
ing the intended coverture; and alſo all * fuch per- [ * 70. ]
fonal eftate as aforefaid, and pay the fame to her, or
as ſhe ſhould appoint, for her feparate ufe, and fubject
to the like difpofition of the faid B. notwithſtanding
her coverture.
;
At the time of executing this deed, B. was entitled Ibid.
to the reverfion in fee of feveral eftates vefted in truf-
tees, ſubject to an eſtate for life of W. S. and a limita-
tion to his firſt and other fons in tail.
B. being thus entitled, duly executed in the prefence Ibid.
of three witneſſes her laft will and teftament, or deed
of appointment, in the nature of her laſt will and teſ-
tament; and, thereby, after reciting her marriage-
articles, fhe, by virtue of the power thereby referved
to her, and of all other powers enabling her in that be-
half, did limit, appoint, give, and devife all her eftate,
c. as therein mentioned. And the question was,
whether the articles executed on B.'s marriage, and her
ſubſequent appointment, was a good and valid appoint-
ment of her eftate, as againſt her heir at law.
the
It was contended, on behalf of the heir at law, that Ibid.
proper and only methods of enabling a feme covert
D 2
to
:
OF THE ASSENT TO CONTRACTS
;
[* 71. ] to diſpoſe of her * inheritance by deed or will, or writ-
ing in nature of a will, operating as an appointment,
were, either by a conveyance to ufes or trufts before
the marriage, referving fuch power, or elfe by fine,
in which the and her huſband joined after the marriage,
with a deed to lead the uſes of it, referving fuch power,
to her over the inheritance vefted in the conufees.
But that, unleſs one of theſe methods was taken, her
will of real estate would be void as an inftrument or
conveyance, and could not bind her heirs. That, in
the prefent cafe, the power reſted only upon articles
between huſband and wife, without any eftate veſted
in truſtees, out of which an appointment, by virtue of
the power, was to enure. That B. might have ap-
pointed her eſtate as againſt the huſband and his heirs,
to whomſoever ſhe thought fit, the articles being made
for valuable conſideration, as against the huſband and
thofe claiming under him: but that, as between her
own heir at law and the deviſees, it was a queftion
merely between volunteers, and confequently they
could claim no aid in equity to fupply a defect in the
capacity of the teftatrix, as a married woman, to make
her will, when fuch will muft take effect as an ap-
pointment in execution of the power, or not at all;
and the * power, in this caſe, remained only in cove-
nant between her and her huſband, without depending
upon any eftate vefted in other perfons, out of which
it could take effect. On the other fide it was contend-
ed, that the legal eſtate in the hereditaments deviſed
was then outſtanding in trustees, and therefore no for-
mal conveyance of it was by any means neceffary, as
fuch conveyance could not affect the legal eftate, or
have any legal operation; it could amount only to a
direction to the truſtees to become truſtees thereof for
fuch perfons, intents, and purpoſes, as fhe fhould by
deed or will appoint. And as B.'s intereft was only
equitable, the general agreement and intention of the
parties, clearly and indubitably expreffed in the articles,
were equally as ftrong and binding as an equitable
conveyance; and did, in effect, amount to a direction
to the truſtees and their heirs, to ftand ſeiſed of the re-
verfion in truft, and for the benefit of fuch perfon and
perfons as ſhe ſhould appoint, and in the mean time for
her feparate uſe, exclufive of her intended huſband;
and especially as he, by the articles, covenanted to do
all neceflary acts, to enable his wife to make any fuch
difpofition or appointment of her reverfion as the fhould
[ * 72. ]
think
OR AGREEMENTS.
米
​think fit, either by deed * or will; by which covenant [* 73. ]
he was bound, in equity, to do all neceffary acts for
authenticating and eſtabliſhing of any deed or will
which ſhe ſhould make concerning the fame. And up-
on theſe grounds Lord Northington decreed in favor of
the devifees and fupport of the appointment. Which
decree was affirmed on an appeal to the houfe of Lords.
Chan.
And the law is now held to the fame, in refpect Rippon y
to ſeparate property fo circumftanced, in which a feme Hawdin, in
covert has a legal eftate; this was fo determined in the
cafe of Rippon and Fawdin. There a woman was
entitled to a legal eftate in lands, and her huſband,
previous to his marriage with her, gave bond to truf-
tees, conditioned that the fhould have power, by will
to diſpoſe of her eftate. She accordingly did fo. And
Lord Camden decreed the heir to be a truſtee for the
devifee, obferving that this cafe was not to be diſtin-
guifhed from the cafe of Wright and Cadogan. Sed
quære.
And a feme covert may, by acts done after the cover-
ture is determined, render an agreement refpecting
herſelf, made whilſt ſhe was under coverture, binding
upon her property * by relation; becauſe acts done af- [* 74. ]
ter the becoming a widow will bind.
225.
Thus where a provifion was made by Sir Edward Sir Edward
Mofeley for his lady, in lieu of her jointure, by articles Mofeley's cafe,
during her coverture, and fhe, after the death of her cited 2 Vernon
huſband, entered only on forty-fix pounds per annum,
part thereof; fhe was held to performance of the
whole articles,
note 17. S. C.
So, where a mortgage, in the form of a leafe, had Goodright, lef
been granted of a feme covert's eftate by the huſband fee of Carter,
and wife, and, after the huſband's death, the deed be- v. Strathan,
ing in the hands of the mortgagee, the wife had di-
Dougl. Rep. 53.
rected the tenants in poffeffion to attorn to the mort- Cowper 201.
gagee, had fettled with him for the balance of the rents,
ftiling him mortgagee, and had not queftioned his pof-
-feffion for a number of years; the court of King's
Bench were unanimouſly of opinion, that the convey-
ance in this cafe, though in the form of a leafe, was
in ſubſtance a mortgage; and not being within the
reaſon for which leafes by a feme covert were held to
be only voidable, was abfolutely void on the death of
the huſband; but that the acts done by the widow,
the
OF THE ASSENT TO CONTRACTS
i
[* 75. ] the deed being in the poffeffion of the mortgagee,
were tantamount to a re-delivery, which, without a
re-execution, was equivalent to a new grant.
Jenk. Cent. 4.
And there are feveral cafes in which a feme covert
may, even at law, contract, and thereby entitle her-
felf to or become the fubject of an action, without her
hufband being joined, and as a feme fole.
1 Bac. Abr. 308. Thus if a huſband has abjured the realm, or is ba-
1 Roll. Rep. 400. nifhed, he is thereby civiliter mortuus.
And he being
1 Com. Dig. 18. difabled to fue or be fued in right of his wife, ſhe is
in ſuch caſe, confidered as a 'feme fole; for it would
be unreaſonable that he fhould be remedilefs on her
part; and equally fo on thoſe who had any demands on
her, that, not being able to have any redrefs from the
huſband, they ſhould not have any againſt her.
Moor 851.
10 E. 3. Pl. 37.
* 76.]
fol. 399. Co.
Litt. 332. b.
1 H. 4. I.
Countess of
Portland v.
Podgers,'
And a wife, being confidered in fuch cafes as a widow,
is fuable on her general contracts.
Thus King Edward the Third brought a quare im-
pedit againſt the lady of Maltravers, to which the
pleaded that fhe was covert of * baron; whereunto it
was replied for the king, that her huſband was put into
exile; and thereupon fhe was ruled to anſwer. So
King Henry the Fourth brought a writ of right of ward
against Sibyl Belknap, who pleaded that the was covert
baron, to which a like reply was made by the king.
And Gascoigne, C. J. ex affenfu fociorum, awarded that
the fhould anſwer.
So it is faid in Moore's Rep. fol. 666. Ca. 910, that
after a divorce a thoro et menfa, the wife may fue alone
without her baron.
So it was held, in the cafe of the Countess of Port-
land and Podgers, that where the huſband was, by at
of parliament, baniſhed for life, the wife might in all
Vide Co. Litt. things act as
things act as a feme fole, and as if her huſband were
dead; and that the neceffity of the cafe required that the
fhould have fuch power,
2 Vern. 104.
233. a.
Vide Co. Bank.
Law 26. 1 Bac.
Abr. 308.
And, in the cafe of Sparrow and Caruthers, Mr.
Juftice Yates thought tranſportation, although but for
feven years, to be fuch an abfence of the husband,
within the reafon of the cafes of abjuration, &c.
as that the wife might, during that period, be fued
alone.
And
OR AGREEMENTS.
*And Lord Holt was of opinion, in the cafe of [77. ]
Darley and the Duchefs of Mazarine, that if a woman 1 Salk. 116.
I L. Kaym. 147.
married an alien enemy, the would be chargeable as a
feme fole for her debts and contracts, as much as if
her huſband had abjured or been baniſhed.
So, by the cuſtom of London, if a feme trades by to Mod. 6.
herſelf in a trade with which her husband does not in-
termeddle, fhe may fue and be fued as a feme fole,
Of late years fome other cafes likewife have been
confidered, even at law, as exceptions out of the ge-
neral rule, that a feme covert is under an incapacity
of entering into a general engagement to bind herſelf
or her property; upon the ground of there being cafes
begotten by the practice of modern times, which are
not within the fpirit, although they are within the
letter of the rule. The inftances alluded to are thoſe,
wherein it has been held, that a feme covert, living
as feme fole on a feparate maintenance, allowed her by
her huſband on a ſeparation after marriage, fhall not
be permitted, if fhe gain credit in that character, to
plead her coverture, in order, thereby, to prevent her
creditor from recovering his debt.
Hil. 23 Geo. 3.
*The firſt cafe of this kind was that of Ringstead *
୮ 78. ]
and Lady Lanesborough, which was an action brought Ringſtead v.
by the plaintiff againſt the defendant for goods fold by Lanesborough,
him to her. The defendant pleaded, that at the time B. R. Vide
of the promiſe fhe was covert baron of Lord Lanesborough, Coke's Bank.
a peer of Ireland, who was fince dead. To this plea Law 24.
the plaintiff replied, that the defendant lived feparate
from her huſband, they having been parted before the
promiſe made, and that fhe, by a deed of feparation,
had a large feparate allowance, which was duly paid.
And that the defendant lived in England and her huſ-
band in Ireland. To which replication there was a
demurrer. Lord Mansfield delivered the judgment of
the court in favour of the plaintiff, but expressly declared,
that his opinion was founded on all the circumftances of the
cafe taken together, and would only be an authority in a
cafe circumftanced exactly fimilar to the prefent. The
circumſtances were, that the wife lived ſeparate from
the huſband, and had a ſeparate maintenance, he being
in Ireland, the in England; that ſhe acted as a feme
fole, and it was a fraud in her to attempt to avoid
her contracts by this defence; that this agreement,
though between huſband and wife, bound each of them
as
:
OF THE ASSENT TO CONTRACTS
[ * 79. ] as * effectually as if they were fingle. That the wife,
under this agreement, had a property of her own;
that ſhe was under no power even of her huſband;
that the reafon of her incapacity ceafed; the creditor
could not fue the huſband; that when the contracted,
fhe did it as a fingle woman; that after having got
credit as a feme fole, the never ſhould be permitted to
fay, that ſhe was married; and more particularly when
the confequence was not to make another perfon liable,
but to prevent the creditor recovering his debt at all.
That there was no cafe precifely in point, and there- .
fore the court muſt make a new precedent, from rea-
fon, conveniency, and analogy to the authorities.
Barwell v.
[* 80. ]
Brooks, Hil.
24. G. 3. B. R.
Co. Bank. Law.
28.
·
In the laft-mentioned cafe, the hufband's being
refident abroad was relied upon as a strong circumſtance,
forming an analogy between that cafe and the cafes
which had gone before of perfons exiled, abjuring the
kingdom, tranſported, or the like. But the following
cafe takes a broader ground, it having been therein
held, that where the hufband is not himſelf liable to his
wife's debts, his being within the kingdoin will make
no variation. Therefore, where an action was brought
for goods fold and delivered to the defendant, and
The pleaded coverture: it was replied, that the defen-
dant lived feparate and apart from her huſband; that
fhe had a competent feparate maintenance regularly
paid; and that the goods, mentioned in the declarati-
on, were furniſhed for her feparate ufe and fupport.
There was a demurrer to the replication, and judg-
ment for the plaintiff, The court obferving, that
though ftrefs was laid upon the hufband's being abroad
in Lady Lanesborough's cafe, yet that made no diffe-
rence, for that the principle of the judgment in that
cafe was, "that the husband was not liable."
The two foregoing cafes, it is obfervable, aroſe up-
on actions brought to recover the price of neceſſaries
purchaſed by femes covert, who were feparated from
their huſbands, and, on their feparation, furniſhed,
by agreement, with the means of maintaining them-
felves.
But the doctrine of the capacity of a feme covert,
fo circumſtanced, to bind herſelf, at common law, by
her affent to contracts, has been in a later cafe, carried
ftill further; to an extent indeed, which, if it can be
ſupported upon principles of law, will leave her, as to
her
OR AGREEMENT S.
81. ]
* her moral capacity of contracting, in all refpects in [* 81.
the fame ftate, as if the were a feme fole.
51
1
The cafe alluded to is that of Corbett againſt Poelnitz, Corbett v. Poel-
the declaration in which ſtated the following facts: nitz, Term
That Ann, before her marriage wirh Baron Poelnitz, Rep. vol. i. 5,
was the wife of Lord Percy. That, after their mar-
riage, a feparation took place by mutual agreement, and
Ann had a competent maintenance of 1600 l. per annum
fettled on her by deed. That then Ann (whilft fhe was
fo covert with Baron, and whilft fhe lived fo feparate
and apart from him, and whilft her maintenance was
duly fecured and paid to her) in confideration - that
Corbett, the plaintiff, at the fpecial inftance and re-
queft of Ann, and for and in confideration of the fum
of 9001. paid by Chambers to Ann, had then and there
become held and firmly bound, together with Ann,
to Chambers, by their joint and ſeveral bond in 1800 l
conditioned for the payment of an annuity of 150 4
during the natural life of Ann; and had alſo, at the
like fpecial inftance and requeſt of Ann, together with
her, executed a warrant of attorney for confeffing
judgment on the bond for* 1800l. and cofts of fuit, [* 82. ]
at the fuit of Chambers, undertook and promifed faith-
fully to indemnify Corbett against the ſaid bond, and
warrant of attorney. That afterwards, and after this
promife, the marriage between Ann and Lord Percy
was diffolved by act of parliament, by which the fame
provifion of 1600l. was continued and fecured to her
for life. That afterwards, Ann was married to Baron
Poelnitz. That after this marriage, 2621. 10s. be-
came payable to Chambers, by virtue of the condition
of the bond for one year and three quarters annuity,
whereupon judgment was entered up on the bond for
the 1800 and 63s. cofts; and thereupon Corbett, to
prevent his being taken in execution, had paid the
2627. 10 s. and 5%. 19 s. cofts: yet, that Baron Poelnitz
and Ann had not paid him the fame, or indemnified
him against the payment thereof. A verdict being
given for the plaintiff, a motion was made in arreft
of judgment, upon the ground, that, although in mo-
dern times the law allowed a woman to have a ſeparate
maintenance, yet that was only an exception to the
general rule; and extended no further, than to enable
the wife to provide herſelf with neceffaries; that
this fund, being given for neceffary maintenance,
therefore
OF THE ASSENT TO CONTRACTS
* 83.]* therefore was only liable for neceffaries; that al-
though the court had gone fo far, as to fay, when a
wife agreed to receive a feparate maintenance, the hould
be anfwerable for fuch maintenance; yet that did not
prove that he was fo much a feme fole, as to be able
to make or bind herfelf by every fpecies of contract.
The court gave their opinions feparately on the quef-
tion. Lord Mansfield faid, that the facts laid in a very
narrow compafs, and admitted of no doubt. Lord
and Lady Percy, by a deed, mutually agree to live
feparate; neither can break this agreement; and a
large maintenance is fettled on her for her own private
feparate ufe, as a feme fole to all purpoſes, the fame as
if the were unmarried. The claim upon which this
action is founded, is of a moft meritorious nature.
Lady Percy applied to the plaintiff; he confidered her
as a feme fole, and became furety for her: fhe pro-
mifed to indemnify him; and the contract was con-
cluded, under a firm belief on both fides, that it was
perfectly valid and binding. In juftice, then, the
ought to pay this debt. But then, to encounter this,
there is a rule of pofitive law, which is to be adhered
to and preferred, though in fome particular cafes it
84.] may feem * productive of hardship and oppreffion. By
this general rule, a married woman can have no pro-
perty, real or perfonal. Her contracts are entirely
and univerfally void; for her contracts, even for ne-
ceffaries, are the contracts of her huſband: fhe cannot
be fued, or taken in execution. This is the general
rule. But then, it has been properly faid, that as the
times alter, new customs and new manners arife: theſe
occafion exceptions, and juftice and convenience re-
quire different applications of theſe exceptions, within
the principle of the general rule. The question then
is, whether it is fo here? whether, under the circum-
ftances of the prefent cafe, a married woman fhould,
or fhould not, be fued folely? exceptions have been
made in this very cafe. Where a huſband is in exile,
or has abjured the realm, and credit has been given to
the wife alone, juftice fays he must pay, for the husband
carnot be fued. So it is in the cafe of tranſportation,
though the cafe, is not exactly the fame; for, there,
the abfence is only temporary, becauſe the huſband may
come over, and be fued afterwards. Why, then, is
it fo eftablithed? becauſe the wife acts as a fingle wo-
man, gains credit as fuch, receives the benefit, and
*
!
•
*
fhall
المنسجمة
OR AGREEMENT S.
>
ſhall be liable to the lofs: and where she has an eftate [* 85. ]
to her ſeparate uſe, in juſtice ſhe ought to be liable To
THE EXTENT OF IT. In niodern days, a new mode
of proceeding has been introduced, and deeds have
been allowed, under which a married woman affumes
the appearance of a feme fole, and is to all intents and
purpofes capacitated to act as fuch. In the ancient
law, there was no idea of a feparate maintenance; but
when it was eſtabliſhed, what faid the courts? than the
huſband shall not be liable even for neceffaries; and they
faid fo, becauſe convenience and juftice required it. In
the preſent cafe, no diftinction has been taken at the
bar, whether fuppofing Lady Percy to be liable, her
fecond huſband is fo; and they have done right, for ſo
he muſt certainly be. The only queftion then is,
whether a woman married, but living ſeparate from
her huſband by agreement, having a large feparate
maintenance fettled on her, continuing notoriouſly to
live as a ſingle woman, contracting and getting credit
as fuch, and the huſband not being liable, fhall be fued
as a feme fole? I think the fhould; it is juſt that ſhe
fhould be fo. I am of opinion, that the prefent caſe
is determined by the two late ones which have been
cited (viz. Ringſtead and Lady * Lanesborough, and [* 86. T
Barwell and Brooks) which do not reft upon one or Vide fupra Lady
two circumſtances as contended, but upon the great Lanesborough's
principle which the court has laid down, " that where Mansfield to be
a woman has a ſeparate eftate, and acts and receives only an authority
credit as a feme fole, fhe fhall be liable as fuch." There in a cafe circum-
ſtanced exactly
is the fame juftice in this cafe, nor can fee any diffe-
fimilar to itſelf.
rence between them. Willes, Juftice, concurred.
1
]
cafe, faid by Lord
Afhurst, Juftice. It feems to me, that to decide
the prefent queftion, we need only confider the reafons.
on which the incapacities of a feme covert are founded;
not on the fame ground as thoſe of an infant, whoſe
difabilities arife from a want of difcretion; but firſt,
becauſe ſhe has no property; and fecondly, becauſe
it would be unreafonable to permit the wife to affect
the property of her huſband, except where he will not
allow her neceffaries; in which cafe her contracts are
the contracts of her huſband. Now, where a woman
has a ſeparate maintenance, and the huſband cannot be Quare of this
charged, it follows naturally that ſhe muſt; and if fɔ, principle, vide
we cannot draw a precife line, and fay, the fhall be
liable for this, and not for that; for her incapacity,
}
arifing
infra.
OF THE ASSENT TO CONTRACTS
Fe
Lord Mansfield.
*
87. arifing from want of property, being once removed,
Vide fupra in this ſhe is, in my opinion, fuable for all. But if, as was
cafe, contra per fuppofed, fhe were only liable in refpect of her ſeparate
maintenance, ſhe could not be liable generally, but
only fo long as the maintenance continued, after the
manner of an executor, as long as affets remain in his
hands. That, however, cannot be: if fhe exhauſt her
whole fund, it is her own folly, but does not render
Vide contra inf. her lefs liable. As to her being only liable in reſpect of
her firſt fettlement, fuch a doctrine was never before
contended. If the be liable at all, fhe is liable gene-
rally, and that not only for neceffaries, but for all
contracts, I think the other two cafes govern this,
and that the rule for arrefting judgment must be dif
charged; for fhe gained a general capacity to contract
debts, and confequently her fecond huſband takes them;
for he takes her cum onere.
Vide this cafe
infra, where De
Grey C. Juft. and
Blackstone, are
Buller, Juftice. The only confiderable diftinction
to be found between this cafe and that of Ringstead and
Lady Lanesborough, is the non-refidence of Lord Lanef-
borough: but that is entirely done away by what the
court faid in Barwell and Brooks, that it made no fort
[* 88. ] of difference whether the hufband was in England or
#
not, for he was not liable; which was the great prin-
ciple that influenced the decifion, and not his local
fituation. Hence, then, we have only to confider,
whether it is poffible to draw the line, that the wife
fhall only be liable for neceffaries. The opinion of
the two judges in Hatchett and Baddeley went wide of
it, and it has never been much preffed: but I think
clearly of opini- the objection has no force, for if fhe has a power of
on, that a feme contracting, it must be a general one. A diftinction
covert cannot bind has been made as to the fund that is liable; and it has
herſelf by her
been afked, what if the alien the whole? the argument,
however, ftops fhort; for it ought to have fhewn,
that the huſband would again become liable in that
cafe: but there is no colour to fay, that, if the wife
fpends the whole of her fettlement, her huſband fhall
be liable even for neceffaries. As to the prudence of
the measure, that is no ground on which the court can
found their decifion. In Lady Lanesborough's cafe,
the only question was, whether the could acquire a
capacity to contract? it was determined the could;
and, therefore, as I think that cafe muft govern the
prefent, I am of opinion that the plaintiff may recover,
acts under feal.
Quære, whether
this be a true
principle.
Quære, de hoc,
vide fupra.
I have
OR AGREEMENT S.
* I have ſtated the arguments of the court in the above [*89. ]
cafe at length; becaufe, if the decifion which was
founded upon them can be fupported, it eſtabliſhes a
principle, upon the foundation of which a feme covert
may, at law, execute inftruments, give bond, confeſs
a judgment, enter into contracts under feal by way of
covenant or otherwiſe, and act, to all intents and pur-
pofes, as a ſingle woman. For the action here brought,
proceeds upon the ground that Corbett, the furety, has
paid the money on account of the principal, and has
thereby diſcharged the principal from the debt; upon
which the law raifes an implied contract, whereby the
principal is fuppofed to have bound himſelf to indem-
nify the fecurity. The confideration, then, upon
which this implied contract is raiſed, is the diſcharge
of the principal. But the principal cannot be faid to
be diſcharged from that, to which the never was liable;
confequently, if this decifion be law, it muſt be on
the ground that Lady Percy was bound: the neceffary
inference from which will be, that a woman, fo cir-
cumſtanced, may bind herſelf at common law by bond.
And if ſhe can bind herſelf at law by bond, fo may fhe
likewiſe by any other inftrument under feal.
•
* But it has been again and again adjudged, that a [*
90. }
bond given by a feme covert, is, at common law, ipfo Vide Norton v.
facto, void, and fhall neither bind her nor her huſband. Turvill, 2 P.
Will. 144. S. C.
Then, as the implied contract, upon which the action fupra, 1 Bac.
brought by the furety is founded, reſts on the furety's Abr. 695.
having difcharged the exprefs contract, and as a void
contract cannot be difcharged; there being no difcharge,
there is, in this cafe, no confideration to fupport the af
fumpfit; but it muſt reſemble the cafe of forbearance
given to an infant upon his bond, which has been decided
to be no confideration to fupport an affumpfit, the infant
not being liable to pay at the time of the forbearance.
But it is faid, although it be true that it is a rule of
pofitive law, that a married woman can have no pro-
perty real or perfonal, and that, therefore, her con-
tracts are entirely and univerfally void; yet, that mo-
dern times have introduced new cuftoms and manners,
and that deeds have been allowed, under which mar-
ried women affume the appearance of femes fole,
and are to all intents and purpoſes capable to act as
fuch.
The
OF THE ASSENT TO CONTRACTS.
[* 91. ]
• Cham. Rep.
The term modern times is a relative term, * fo vague
in its nature, that one is at a lofs to affix to it any
certain idea. It is true that the common law had no
notion of diftinct interefts between husband and wife,
over which the could have a general difpofing power;
and it is no leſs true, that the notion of a feparate main-
tenance has been recognized in equity from very early
44, 164. Finch's periods; for courts of that defcription have univerfally
Rep. 56, 73. interpofed in controuling and overlooking the applica-
tion of this fpecies of property, and making decrees
Perk. 4. ſec. 8. reſpecting it for more than a century. But Perkins,
whoſe writings were compofed and publifhed fo early
as the reign of Edward the 6th, exprefsly lays it down,
that, if there be a difference betwixt the husband and
wife, by reafon whereof certain LANDS of the HUSBAND
are ASSIGNED unto the wife by the friends of the huſband
and by his affent, and the wife grant a rent-charge to be
iuing out of the fame lands unto a ſtranger, the grant
Wayland's cafe,
Bult. 188.
3
[92. ]
92.]
is VOID.
It is true, that it is only in very late times, that
courts of law have fupported actions againſt married
women, unleſs in inftances where they have been con-
fidered as under a civil widowhood; which differed
from the cafe of a feparate maintenance, in as much
as this was a feparation by act of law, and, * therefore,
a woman, fo circumftanced, was entitled to her dower
or jointure, and was, in confideration of law, to all
intents and purpofes, a fingle woman; whereas the
rights of the hufband of a woman having a feparate
maintenance, to all other intents and purpoſes, except
as to the difpofition of that maintenance, remain as
they were previous to fuch a fettlement. He is entitled
to any property fhe acquires by gift. He may releaſe
a legacy bequeathed to her. He will be entitled to the
rents and profits of a real eſtate defcending upon her
She remains under the fame incapacity of difpofing of
her real estate, nor can fhe contract as to any part of
her perfonal eftate, not comprized within her feparate
maintenance.
It is alſo alledged, "that as, where a woman has a
feparate maintenance, the hufband cannot be charged,
it follows naturally that ſhe muſt." If the reaſon why
a feme covert is not fuable for contracts entered into by
her, were, that her husband is fo chargeable, the con-
trary propofition might be fairly inferred, where the
hufband is not fo. But as the principles upon which a
feme covert's incapacity is founded, are quite of another
nature,
J
OR AGREEMENTS.
:
nature, ftating the true principles will evince the [* 93. ]
weakneſs of fuch an argument.
The difability of a feme covert to contract, arifes
from three circumftances: Firft, For want of POWER
to affent fo as to bind herſelf, fhe having, in confidera-
tion of law, no will of her own, her will being, by the
marriage, fubject to that of her huſband. Secondly,
For want of power to bind her huſband. Thirdly,
For want of property.
make any Old Nat. Brev
authority, 62. 21 H. 7.40;
And if a
b. Pl. 64. Brcs
Abr. tit. Con-
22. I Mod.
G
94. ]
By the common law a wife is diſabled to
grant, contract, or bargain, without the
allowance, and confent of her huſband.
feme covert make a contract in the market, or elfe- tract 19. 1 Roll.
where, even for bread to maintain the family, and it Abr. 351. (E)
be found expressly to have been made without the allow Pl. 5. 20 H.
ance or confent of her husband, the contract is void, and Rep. 126. Fitz.
fhall not charge him, even although it be expended in Nat. Brev. 277-
the houſehold of the hufband. But if the wife, coha-
biting with the huſband, has a general licence from him
to buy neceffaries, her contracting (without being
particularly authorized as to the time) for neceffaries
for herſelf, her husband, her children, or her family,"
is evidence to a jury to find the affent* of the hufband, [
unleſs the contrary be exprefsly fhewn; becauſe it
cannot be reaſonably prefumed, that any man would
deny his affent to have the neceffities of his family fup-
plied. It is true that a wife ought to be maintained,
and it is the more neceffary that it fhould be fo pro-
vided by our law, as it takes away all property from
her, by which fhe might provide for her own fubſiſt-
ence; therefore, if her huſband turn her out of doors,
the law implies that he gives her credit for common
neceffaries, and to that extent confiders her contracts
as his. But in neither of thefe cafes is her right to be
maintained, founded either on a right fhe has to con-
tract for herſelf, or on a power the law gives her to
charge her huſband by way of contract, but there muſt
in both cafes be his affent, either exprefs or implied.
The contract muſt be his, and not her contract. And
therefore it is that, upon her departure from him, fhe
cannot bind him, even by her contract, for comnion
neceffaries; for, from the moment of her feparating
herfelf, all evidence of the confent of her huſband to
maintain her ceafes, and the obligation fo to do is alfo
at an end.
But
OF THE ASSENT TO CONTRACTS
المحيط
[ * 95. ]
But if the propofition put by the court in the
Baronels Poelnitz's cafe were true; viz. " that when
the obligation in the hufband to maintain ceaſes, the
capacity of the wife to contract begins," a wife, on
her departure from her huſband, would inftantaneouſly
be bound by any contracts the fhould make. But the
law is otherwife; for, though the act of departure
deſtroys the evidence of the hufband's confent to her
having neceffaries, becauſe it would be unreaſonable
to bind him by an implicit confent to keep two houſes;
it does not diffolve the marriage, or reftore to the wife
the power of volition, which, from the time of the in-
termarriage, the law, that looks upon the huſband and
wife as one perfon, and, therefore, allows but one
will between them, which it confiders as placed in
the huſband as the fitteft and ableft to provide for and
govern the family, deprives her of. And when it is
confidered, that the law gives to the huſband the abſo-
lute power over, her perfonal property, and the govern-
ment and direction of her real property during the co-
verture, it is but reaſonable that, as her departure does
not reftore her power over thofe, neither fhould it ſub-
ject her to her contracts, which, without her property,
The muſt be incapable to difcharge. Many cafes might
[ * 96. ] be* put to fhew that it by no means follows, that the
huſband's being difcharged makes the wife chargeable.
Ex gratia, if a woman, refiding with her huſband,
take up goods, as filks or muflins, and pawn them be-
fore they are made into cloaths, the hufband is not
bound to pay for them, becaufe they never came to his
ufe. Yet no man will fay that the wife is therefore
liable. So if a woman borrow money, and cloath
herſelf in a better manner than her rank requires, al-
though this comes to the ufe of the hufband, becaufe
the wife muft of neceffity be clothed, yet the cloaths
being beyond her eftate, her husband fhall not be
chargeable with the money. And if a wife buy any
thing, the husband fhall not be bound to pay for it,
unleſs it come to the ufe of the huſband. And yet in
ì Salk. 118.
1 Roll Abr.
350. E. I. 8.
Ibid. E. 4.
Strange 875.
2 Blackft. 1079.
neither of thefe cafes fhall the wife be liable. And
Lord Chief Justice Raymond held, in the cafe of Child
and Hardiman, that if a woman elope from her huf-
band, though ſhe does not go away with an adulte er,
or in an adulterous manner, a tradefman truſts her at
his peril, and the husband is not bound.
Lord Chief Juftice De Grey, in the cafe of Hatchet
and
OR AGREEMENT S:
and Baddely, lays down the law in thefe forcible
terms. "No act of the wife can ever make her liable
to be fued alone. If the can be fued, he can fue, ac-
quire property, releaſe actions, execute deeds, &c.
WHICH WOULD OVERTURN FIRST PRINCIPLES.
99
97. ]
And Blackstone, J. faid, "that it feemed to be fup-
pofed by the argument, that if the huſband was not
bound to pay this debt, it followed that the wife might
be compelled alone. But this was no legal confequence.
He thought, in the then prefent cafe, IT COULD NOT
BE RECOVERED OF EITHER. And he was clearly
of opinion, that in no cafe could any feme covert be
fued alone, except in the known excepted cafes of
abjuration, exile, and the like, where the huſband was
confidered as dead, and the woman as a widow, or elfe Co. Litt. 133.
as divorced a vinculo. And therefore Elizabeth Wil-Moore 853.
mot, whoſe huſband was abroad when the attempted
to fue alone, did it with the addition of Widow. The
contrary doctrine militated against the FIRT PRINCI-
PLES of the English law, which confidered the wo-
man's powers, nay almoft her very being, as fufpend-
ed during the coverture. Her contract was merely i Sid. iző.
void fo as to bind herſelf, faid all the judges in Manley
*
and Scot. She and her huſband might plead non eft Salk. 7. 6. Mod.
factum to her bond. If judgment were had againft [* 98. ]
her, or fhe were outlawed, her huſband and ſhe might 311.2 P. Will.
reverſe it by writ of error. The very forms of the 144.
action demonſtrated the fame thing, if fued alone fhe Bro. Abr. Error
could have no addition, which was in the very teeth 173:
of 1. Hen. 5. c. 5. If fued in her maiden name, it 6 Mod. 311.
was a misnomer. If by her huſband's name, and as a
widow, it was the like. She could not put in bail Cro. Ja. 445.
without her huſband. And as the previous ſteps were
thus embarraffed, fo after judgment the remedy muſt
prove defective. No elegit could go againft her lands,
otherwiſe this would be a mode of alienation by a feme
covert without a fine. It would be endleſs to purfue
this idea through all its legal ABSURDITIES.
It will hardly be contended, after what has been ob-
ferved, that the principle, upon which a married wo-
man is diſcharged from her contrat, ftands upon the
ground, that her huſband is bound by her contract. And
if that be not the principle, the conclufion founded upon
it," that if the husband be difcharged, the wife muft be
bound," will be equally fallacious.
E
But
OF THE ASSENT TO CONTRACTS
1 * 99. 1
* But it is faid, that the circumſtance of a feparate
rhaintenance being provided for the wife alters the cafe.
In a degree it does fo, even at law: and that confiſt-
ently with first principles and former adjudications.
It has been ſtated, that the true ground upon which
a huſband, who turns his wife out of doors, is liable
to be fued for neceffaries purchafed by her, is, that
the law, which takes from her the capacity of contract-
ing herſelf, in its humanity, concludes, that in fuch
cafe, her huſband confents that the fhall contract for
him to this extent, and the fact of the expulfion is
evidence of this confent. But, if the husband pro-
vide a feparate maintenance, the prefumption that he
intended to give her credit on his account for necef-
faries fails, the pofitive proviſion rebutting any fuch
conclufion upon him. In fuch cafes, then, the pro-
perty may be made liable to this purpofe, without any
deviation from the rule, as to a feème covert's capacity
to contract, by confidering the feparate property, as
anfwerable, by the affent of the hufband, for the wife's
maintenance. This mode of confidering the cafe
feems warranted by the forms of proceeding, for it is
neceffary, in all fuch caſes, that the huſband ſhould
100. ] * be a co-defendant. And if he be not a party to
the record, the whole proceeding will be vitious.
There is no inftance in the books, of an action's be-
2 Blackft. Rep. ing fuftained againſt the wife, the hufband being liv-
195.
ing, at home, and under no civil difability. A wife,
ly a VOLUNTARY feparation, does not acquire fuch a
character, which may be called a civil widowhood, nor is
taken notice of by the law as fuch."
*
Per Curiam
unan. in Lean
verf. Schutz.
Supra.
Vide 3 Eulit.
183.
Vide Newfome
Bower.
3. P. Will. 37.
This, then, feems to be the only ground upon which
the cafe of Barwell and Brooks can be fupported, and
not the affumed principle, that the hufband was not
liable, and that, therefore, the wife was."
3
The analogy affumed between thefe cafes, and the
cafes where the hufband is exiled, or has abjured the
realm, or the like, is equally fallacious becaufe thoſe
cafes are founded upon the civil death of the huſband;
for that amounts to an actual diffolution of the mar-
riage, entitles the wife to her dower, or jointure, &c.
and, confequently, reftores her to her original capa-
city of taking property in her own right, and of bind-
ng herfelf by her own affent, without reference to her
hufband..
But
?
OR AGREEMENTS.
*But it is faid, "that it is impoffible to draw the [* ioi. ]
line, that the wife fhall be only liable for neceffaries."
This is begging the queftion. That fhe may be con-
fidered as liable, in law, to the extent of her feparate
maintenance only, is clear. That the ought to be
charged no further, in equity, will be evident, if we
advert to the principle upon which this property is
liable to her contracts, and to her fituation in relation
tổ her huſband and the public. The true principle as
has been fhewn is, that her huſband affents to this pro-
perty being liable to her maintenance, and that, there-
fore, her contracts entered into for that end attach upé
on it. Then, in the relative fituation in which the
and her huſband ftill ftand, fhe can acquire no other
property. If eſtates defcend to her, or perfonalty be
diftributed to her, the hufband's claim is not barred.
She cannot difpofe of the one, or levy a fine of the
other, without his confent. If her property be limited,
fo ought her capacity of rendering herfelf liable to be
limited. Then, as to the public, they are in no
worfe a fituation, than if they give credit to a woman
who elopes. It is a rifk the law impofes on thofe who i Salk. ii6.
give credit to women. If it be an inconvenience, it Pl. 6.
must be remedied by the legislature who makes, not [* 102. ]
by courts whofe province is, by the conftitution, con-
fined merely to the expofition of them.
*
I
116.
Moore Ca. 910.
But the common law recognizes, and admits a dif-
tinction between the feparate maintenance and general
property of a feme covert for per Holt, if huſband i Salk. 115, 116.
and wife be divorced a menfa et thoro, and a legacy be Cro. Eliz. 908.
left to the wife, and the huſband releaſe it, ſhe is there- 5 Mod. 71.
by barred; and the law is the fame as to an obligation Cro. Car. 463.
made to her before marriage, for the marriage conti
nues, and the huſband hath all her right; but if, in
fuch cafe, the wife has her alimony, and fue for defama-
tion or other injury, and recover cofts, and the huf
band releaſe them, this fhall not bar the wife; for thefe
cofts come in lieu of what fhe has ſpent out of her ali-
mony, which is a feparate maintenance, and not in the
power of her huſband.
And courts of equity affift creditors no further, than Kinge v. Dela-
to make the feparate maintenance liable to the fatisfac- vall, 2 Vern.
tion of their debts.
326.
Thus where Sir R. A. and his lady, by reafon of Ibid.
fome difcontents in the family, agreed to live apart,
E 2
and
OF THE ASSENT TO CONTRACTS
[* 103.] and there was a ſeparate* maintenance fettled upon tfie
lady, but determinable upon either of their deaths. The
lady contracted feveral debts during the feparation. Sir
R. died. A bill was then brought to fubject the defen-
dant's jointure to the payment of the plaintiff's debt. Et
per lord keeper, Had the feparate maintenance continu-
ed, there might be fome reafon for the creditors to allow
that, and make it liable to their fatisfaction; but that
being determined by the death of the huſband, he did not
fee which way the jointure could be charged with it.
But it is faid, that, in equity, a woman having a
feparate eſtate may be fued as a feme fole. Then why
fhould a fair creditor be fent there to feek redrefs?
the answer is obvious, the ſubject matter to be affected
falls under the proper jurifdiction of a court of equity,
whereas, with relation to the wife, the law does not re-
cognize it. It being a principle of law, that no divi-
fion of property can fubfift between hufband and wife,
they being as one perfon, it follows, that no contract
between them can be binding, except by the interven-
tion of a truſtee; therefore every feparate eftate of a
[* 104. ] feme covert, of whatever * nature it be, muſt be a
truft eftate, and as fuch cognizable in equity only.
Upon this principle alone, fuch an eftate was held in
the cafe of Norton and Turvill not to be within the
ſtatute of limitations, fo as to be protected in equity by
that ſtatute from the demands of a creditor, whoſe debt
had been contracted at the diſtance of ten years.
Vide fupra.
"But, even in a court of equity, there is no in-
ſtance of a perfonal decree againſt a feme covert for
payment of a fum of money. If a feire covert, fo
circumftanced, have contracted that this, or that por-
tion of her feparate eftate fhall be difpofed of in this
or that way, ſhe and her truſtees may be decreed to
make that difpofition; but if ſhe enter into an engage-
ment, which would make a feme fole liable to the
whole extent of her contract, as to her perfon, &c. in
every refpect, it is clear fuch general engagement would
not bind her as fuch. The utmoft extent of determined
cafes is, that the general engagement of the wife ſhall
operate upon her perfonal property, fhall apply to the
rents and profits of her real eftate, and that her truf-
tees fhall be obliged to apply perfonal eftate, and rents
and
OR AGREEMENTS,
*
Brown's Ca.
and profits of real eftate, when they arife, to the fa- [* 105. 1
tisfaction of fuch general engagement." The law was Hulme v. Te-
thus laid down by Lord Thurlow, in the cafe of Hulme nant, et ux.
against Tenant and his wife, wherein Lord Thurlow Chan. vol. i. 16.
took the diſtinction between proceeding perfonally againſt
the feme covert, and carrying into effect the ge-
neral engagement of a wife upon her perfonal property,
and the rents and profits of her real eftates, by obliging
her truſtees to apply them as they arofe, to the fatisfac-
tion of fuch general engagement; his lordſhip refuſing
to decree a feme covert to execute a power of appoint-
ment over her ſeparate eftate, in order thereby to fatis-
fy a bond entered into by her; and obferving, "that
although the remedy in equity was more extenfive than
in a court of law, yet he did not find that a court had
ever ordered a power to be executed. They had in-
duftriouſly stopt ſhort of fo doing, and had only given a
remedy by ſtopping the fund, where the power was exe-
cuted." And his lordfhip refufed to decree the feme
covert to execute her power, although he was extreme-
ly clear, that the wife's leafehold would be liable to her
contract,
*
Now, if it be true, that the proper jurifdiction over
property of this kind belongs to a court of equity, it [*106. ]
may be queftionable, whether that court would, in
any cafe, interpofe to give effect to a general engage-
ment of a wife who had a feparate maintenance, to
part with that maintenance, whatever they might do
in cafe of an actual mortgage or affignment of it. There
feems to be a material diftinction between ſeparate pro-
perty retained by, or limited to a feme covert, and a
ſeparate maintenance allotted to her. The object, in
the former cafe, is to enable a woman, though under
coverture, to exerciſe the fame power in the difpofition
of her eftate, as if fhe were fingle. The object, in
the latter cafe, is to enable a woman to live ſeparate
from her huſband; therefore the fame principle, viz,
"to execute the intent of parties," that would induce a
court of equity to fupport a fair agreement for a pur-
chafe of an equity or truft in the former cafe, would
be an inducement for it to refuſe its affiftance in the
latter cafe. The intent then, being clearly, that a
feme fo circumftanced fhould receive the feparate main-
tenance from time to time, and not that ſhe ſhould
have any power of difpofing thereof; it feems, there-
fore, very questionable, whether the furety, in the
cafe
ނ
OF THE ASSENT TO CONTRACTS
[*107. ] cafe of Corbet and * Poelnitz, would, even in equity,
have had any relief againſt the Baronefs; for that muſt
have depended upon whether that court would have
deemed the original contract, fuch a one as it ought to
eftablish and carry into execution; for if the court
would not have eftablished it in favour of the obligee,
by decreeing him a fatisfaction of the bond out of the
truft eftate, there would have been no confideration
to fupport an equity to charge the fund in favour of
the furety, whofe only claim muſt be to ftand in the
place of the obligee, and to have the relief that he
would otherwife have been entitled to. Lord Hard-
wicke, in the cafe of Grigby and Cox, faid, that he
ſhould have had great difficulty in carrying the agree-
ment in that cafe into execution, or eſtabliſhing that
purchaſe; becauſe, that fört of tranfaction was generally
contrary to the intent; for, where a feme covert was tó
receive rents and profits to her feparate ufe, the friends
of the wife meant nos that the fhould make a fale of it,
but receive it from time to time. This reafoning would
apply much more ſtrongly in the caſe of a ſeparate main-
tenance; in which cafe the object of the fettlement is,
expressly, that of a continuing maintenance, which a fale
totally defeats.
Vide fupra.
1
Lad
* 108. ]
44 E 3.33.
Bro. tit. Oblig.
74. et vide
Rothwell v.
Widrington,
* Vern. 456.
* But if the contract between the Baronefs Poelnitz
and Chambers had been of fuch a nature as a court of
equity would have fupported, the proper mode for the
furety would, in my opinion, have been to have ap-
plied to a court of equity: for then, Corbett's having
diſcharged her from a fuit in equity by Chambers, by
paying the money, might have been confidered as a
good confideration whereon to found a decree againſt
her, that the furety ſhould ſtand in the place of the prin-
cipal, and be indemnified, what he had paid, out of her
ſeparate maintenance. And, when a court of equity
furniſhes ample relief, there feems NO reafon why a
court of law fhould extend its power, by overthrowing
both the foundest principles and cleareft precedents, merely
becauſe the parties have miſtaken the remedy.
An agreement entered into by a feine covert, joint-
ly with her huſband, for the benefit of her eftate, will
bind her as if baron and feme bind themſelves in the
penalty of one hundred pounds, to pay one hundred
marks to W. S. for a releaſe from him of all his right
in the lands of the wife. If W. S. releafe, and then
the
A
OR AGREEMENT S.
the hufband die, the wife fhall be bound notwith- [* 109. ]
standing her coverture; becauſe the releafe was for her
advantage.
At common law, an huſband, likewife, is under a
moral incapacity of entering into any agreement with
his wife, they being confidered as both conſtituting but
one individual perfon; whereas there muſt be two
perfons capable of reciprocally affenting to conftitute a
contract.
>
But, in equity, a man may, as between himſelf and Vide Att. Gen.
his wife, make an agreement or declaration of truft, v. Whorewood,
1 Vez. 538, 539-
which, though not for valuable confideration, will take Augier v. Au-
effect as against him, and any claiming voluntarily and gier, infra.
in repreſentation under him.
Ward, v. Bow-
Thus, where a huſband agreed that his wife fhould yer, Finch's
Rep. 56.
take two guineas of every tenant that renewed a leafe
with the hufband, beyond the fine which the hufband Calmady v. Cal-
received; this was allowed to be the wife's ſeparate Will. 339.
money.
And if a feme covert lend her huſband money, faved
mady, cited 3 P.
out of an allowance arifing* from an agreement between [* 110. ]
herſelf and her hufband; the court of Chancery will
confider her as a creditor against him, and his repre-
ſentatives, to that amount.
4
335.
Thus, where it was proved that the husband allowed Stanning v.
his wife to difpofe and make profit of all fuch butter, Style, 3 P. Will.
eggs, poultry, pigs, fruit, and other trivial matters ariſing
from his farm, over and befides what was uſed in the
family, for her own ſeparate uſe, and by way of pin-mo-
ney; and it was proved in the caufe, that when any
one came to buy fowls, &c. he would fay he had no-
thing to do with those things, they were his wife's;
and that he also had confeffed, he had been obliged to
borrow a hundred pounds of his wife, to make up a
fum to compleat a purchaſe: it was decreed that the wife,
after the death of the hufband, was well entitled to
claim this 10Q4. as a creditor: the Lord Chancellor
obferving, that courts of equity had taken notice of and
allowed feme coverts to have feparate interefts by
their huſband's agreements, and that this 100. being
the wife's favings, it ſeemed but reaſonable encourage
ment to her frugality to allow it her; efpecially as there
were no creditors to contend with.
And
OF THE ASSENT TO CONTRACTS
[* III. ]
Gorges v.Chan-
cey, cited I Ca.
Ch. 118.
* Vez. 539.
Beard v. Nut-
hall, 1 Vern.
$27.
* And the wife may, in fuch caſe, difpofe of her fav
ings by will. Thus, in the cafe of Gorges and Chancey,
where baron and feme by agreement feparated and lived
apart, and ftipulated that the wife fhould have 150l. per
ann. ſeparate maintenance, out of which fhe faved fome
money, and put it out to intereſt, and took bonds in a
friend's name for it, and diſpoſed of the money by will:
it was, upon debate, eſtabliſhed to be a good difpofition
for a valid confideration.
And fuch agreement will alfo take effect againſt the
huſband's executors and adminiſtrators, and all claiming
voluntarily or in reprefentation under him. Thus, in
a cafe before Sir Jofeph Jekyl, relating to lady Cowper's
eftate, feveral gifts, made to her by Lord Cowper in his
life, were eſtabliſhed to belong to his lady, and to paſs
by her will.
So where A. after marriage, entered into a voluntary
bond to fettle a jointure of a given value on his wife,
and died, after which the jointrefs was evicted: the
court of Chancery, on a bill filed by the wife, decreed
her to retain fo much of the huſband's perfonal eſtate
[112.] againſt his reprefentatives, as would make up the de-
ficiency in her jointure, notwithſtanding the bond was
given after marriage, and voluntary.
Rofs v. Rofs,
x Ca. Chan.
171.
Lord Cornbury
v. Middleton,
208.
Tenant in tail, agreeing that others fhall enjoy his
tail lands, will be bound thereby; and Chancery will,
in execution thereof, decree him to levy a fine, and fet-
tle the lands accordingly.
A ceftuique truft of an eſtate may, by his affent to
an agreement to which the truſtees are no parties, bind
them and his intereft therein.
Thus where A. feifed of the King's moiety of the
1 Chan. Ca. 173. New River water in fee, conveyed the fame to truſtees,
upon truft for himſelf and his wife during their refpec-
tive lives, and afterwards upon truft that they fhould,
out of the rents and profits thereof, pay his debts and
portions for his daughters at certain days, and then to
permit B. the heir of A. and his heirs, to take and re-
ceive the rents and profits, A. and his wife died; and
then B. contracted with C. for fale of part of the
hares of the ſaid moiety for 7000l. part to be paid im-
mediately,
OR AGREEMENTS.
mediately, and the reft at a future time.
* Afterwards [113. ]
S. contracted with B, by articles under hand and feal,
for the whole moiety; and then B. and his wife, and
the only acting trustee, executed a conveyance to C. ac-
cording to the articles. Afterwards C, filed a bill to
have the articles carried into execution; and notice of
the articles entered into with C. being proved on S. it
was then infifted for the latter, that there was no ground
to decree the agreement made with C. it being made
by a ceftuique truft of the furplus only, and the truf
tees no parties, but, on the contrary, one of them
fwearing that he difapproved of the contract, and would
never confent to it. Et per curiam, C. had the firſt
agreement, and S. the fecond, and equity ought to de-
cree with the firft; for an intereft in a trust is in equity
affignable; and he that may transfer, may covenant that
his truſtees fhall do it.
+
But it had been otherwife, if all the truftces had
joined in a conveyance to S. without notice.
Having, in the foregoing part of this chapter, fub-
mitted to the reader the obfervations that have occurred
to me on the right which is veſted in individuals to
bind themfelves, by their affent to any contract or
* agreement, ſo as to render themfelves refponfible in [*114 )
law, or in equity for its performance, I fhall next call
the attention of the reader to the confideration of who
are perfons capable of contracting, and binding, both
themſelves and others, by their allent to contracts and
agreements.
Churchwardens are a corporation, and, as fuch, are
morally competent to affent to a reaſonable contract or
agreement beneficial for the pariſh; and, thereby, to
bind the parishioners and their fucceffors, and alfo fuc-
ceeding churchwardens.
2 P. Will. 266,
Thus, an agreement made by the churchwardens of D. Martin et
a pariſh, that the five o'clock bell in the morning fhould ux. v. Nurking
not be rung; in confideration whereof the parties, in-
convenienced thereby, covenanted with the churchwar-
dens to erect a new cupola and bell; was fpecifically de-
creed and inforced by an injunction, not to ring the bell
during the lives of the parties who had erected the cu- ›
pola, &c. purſuant to the agreement.
The heir of a copyholder, whofe father purchaſes a Greenwood v.
manor
Hare, I Ch.
Rep. 144.
OF THE ASSENT TO CONTRACTS
[* 115.] manor for lives, will be decreed to carry into execu-
tion an agreement made by the father to furrender and
affign the fame for a valuable confideration, if the father
die before that be done.
Baden v. Coun-
tels of Pem-
broke, et al.
* Vern. 213.
Per Lord Hard-
So an anceſtor, feifed in fee, may by his agreement
bind his heir. Therefore if A. agree to fell lands,
and receive part of the purchaſe money, and before any
conveyance made, die; his heir, on a bill brought
against him, will be decreed to convey, and the money
will go to the executors; efpecially if there be more
debts due, than the owner's perfonal eftate is fufficient
to pay.
And the rule, in equity, is the fame, where the ef
wick, Pre. Ch. tate is in borough English; there the youngeſt fon will
be decreed to convey as cuftomary heir.
640.
Fleetwood, et
al. 4 Brown,
Part. Ca. 435.
And a court of equity will, even when the anceſtor
is only tenant for life, decree a fpecific performance of
an agreement made by him against the heir; where that
agreement, at the fame time of its being entered inte,
was clearly advantageous to the heir.
I
Thus where A. feifed of lands worth 1300l. a year,
Chetwynd v.
* 116.] ſubject to a mortgage of* 5000 l, previous to his mar-
riage, viz. in 1714, fettled them on himſelf for life,
remainder, as to part, for fecuring a jointure of 400 b.
a year to his wife, with remainder, as to other part,
to truſtees, for a term of years, to raife 2000 l. for
younger children, remainder in ftrict fettlement, re-
mainder to his own right heirs. And afterwards, not
having iffue, in order to fecure his eftate to his niece.
B. C. and her iffue, and having occafion for 1000!
in May 1725, came to an agreement with C. her huf
band, that C. fhould pay the mortgagee 274/. 198
for intereft on the 5000 and alfo the growing intereft
thereof, and indemnify A. against the fame, and alfo
pay him 1000 (all which fums were to be repaid with
intereft) and fhould alfo pay 5000 l. as A. by deed or
will fhould direct. In confideration whereof, A.
agreed to fettle and convey, charged as above-menti-
oned, and, in purfuance thereof, did, by indenture of
leafe and releafe, bearing date the 1ft and 2d of June
1725, convey and affure his eftates to C. and W. de·
ceafed, and their heirs, to the uſe of A. for life, re-
mainder, as to part, fubject to the jointure of 4001.
per ann. and to the terms for raifing the younger chil-
dren's fortunes, and the eftate tail, limited by the deed
7.
of
OR AGREEMENTS.
of 1714 to truſtees, for * the term of 500 years from [*1*7. ]
the death of A. to raiſe thereby 5000l. to be applied
as A. fhould, by will or deed appoint; and alfo to
raife all monies that A. fhould pay in difcharge of the
mortgage or intereft thereon; and, from and after the
determination of this term, to the ufe of C. and B. his
wife, father and mother of W. C. for their lives, re-
mainder to their children as they fhould appoint; and,
for want of appointment, to W. C. for life, remain-
der to his firft and other fons in ftrict fettlement, &c.
remainder to the right heirs of A. And, as to the re-
fidue of the eftates, after the death of A. to the uſe of
C. and W. and their heirs, in truft, by fale or other-
wife, to raiſe money to pay the 1000-274% 195.
and all monies paid for intereft or principal of the 50001.
mortgage, and all monies which C. fhould have ad-
vanced or paid for A. and, after payment thereof, to
the fame trufts as the other part of the eftates were li-
mited to: with a covenant from C. to pay the 5000%
and intereft, and to indemnify A. against payment
thereof; and a covenant from A. that, in cafe he fhould
leave iffue of his wife, his executors or adminiftrators
fhould repay C. all money advanced by him.
*By indenture, dated the 3d of the fame June, C. de- * 118. ]
miſed to A. certain hereditaments for 99 years, for fe- Ibid.
curing the payments of the mortgage and intereft, and
indemnifying him therefrom.
C. paid the intereſt of the 5000l. but paid no part Ibid.
of the principal, and died inteftate on 5th Feb. 1731,
without having made any appointment, leaving neither
real nor perfonal affets to make good his covenant; and
his wife died in March following. There were iffue,
W. C. the eldeſt ſon and heir, and H. C. and B. C. all
then infants.
C. being dead, and not having left affets, and all Ibid.
the children being infants, and their guardian refufing
to interfere, and A. being called upon for payment of
the 5000l. and intereſt, and the eſtate conveyed to hini
being incumbered to the full value, prior in time to
the conveyance to A. and he being thereby brought
into difficulties, he exhibited his bill in Chancery for a
ſpecific performance of the agreement; or that, on
payment of the fums advanced by C. and re-con-
veyance of the eftates contained in the deed of the
3d of June, the indentures of the 1st and 2d of
June
OF THE ASSENT TO CONTRACTS
book
Ibid.
*
119.] June might be delivered up, and the cftates be re
conveyed to A. or as he fhould direct. The infants,
in their answer faid, that they did not know whether it
was for their benefit that the agreement made between
A. and C. fhould be performed, or that the 5000l. and
intereft, fhould be paid out of the real eſtate of W. C.
the eldeft fon and heir of C. or out of the rents thereof.
On a reference to a maſter, he reported, that A. was
of about the age of feventy-one, and that S. his wife
was of the age of forty-three; that they had not any
iffue living, nor had had any for upwards of twenty-one
years paft; and that the eftates of A. were of the an-
nual value of 1180l. and were then worth, to be fold,
30,000 7. and that the infant was then of the age of fix-
teen years, and was, from the death of his father, en-
titled to a real eſtate in poffeffion, of the clear yearly
value of 26501 and upwards, fubject to the raifing of
8000l. and that there had been already faved out of his
eftate 3000/ then in the hands of the accountant-ge-
neral, befides a confiderable fum in the hands of the
receiver, not accounted for; and that as A, was fo far
advanced in years, and had not, nor was there any pro-
bability of his having iffue, and that as, whatever fhould
*120.] *be paid out of the infant's eftate for the 5000, and in-
tereft, would be fecured to him with intereft by the af
fignment of the mortgage, and by the eftates vefted in
C. and W. in truft to be fold, and would continue part
of the infant's perfonal eftate; and, as his perfonal ef
tate was not then fufficient to pay off the principal and
intereft of the mortgage, the mafter conceived, that it
would be for the infant's benefit, that the arrears and
growing payments thereof fhould be paid out of his
per-
fonal eftate; and that it would be likewife for his bene-
fit, to pay off both principal and intereft on the mort-
gage, as foon as his eftate fhould be fufficient for that
purpoſe. Whereupon, Lord Talbot decreed the infant
carry into execution the agreement between A. and
his father.
to
哈
​The infant W. C. became of age in November
1741, and immediately appealed to the houfe of Lords
from this decree and the proceedings thereon; fug-
gefting, that he was neither executor nor adminiftra-
tor to his father, and that he claimed no part of his
real eſtate, except what was ſettled upon him by ftrict
fettlement,
OR AGREEMENTS.
fettlement, and in which his father had barely an [* 1áƒ. ]
eftate for life that determined on his death; and that
therefore he was not bound to fulfil his father's cove-
nants. And, in cafe the court fhould compel him to
a fpecific performance of this agreement out of his
own eſtate without his confent, he would be in a worſe
condition by having been an infant at the time of hear-
ing, than he could have been if of full age, fince it
could not be pretended that the court would have made
fuch a decree againſt him, had he been of age, without
his own expreſs conſent to it; that ſhould he be obliged
to pay the mortgage money, intereft, and cofts, which
then amounted to 78g0% or thereabouts, he could not
be repaid any part of it, or any intereft for his money;
till after the death of A. who, though very old, was
healthy, and might live feveral years; the money ad-
vanced by his father, and now due to his adminiftra-
tor with intereft, amounted to 4850l. and, if A. was
then dead, theſe two fums, with the 5000l. he had
power to charge, making together 17,700l muſt be
raiſed by fale of part of the eſtate in queſtion; and, fup-
pofing the fame to be worth 30,000l. according to the
maſter's report, what would remain of the eſtate would
be worth no more than 12,300l. * in which, by the [* 122. ]
fettlement, the infant could have no other eftate than
for life, chargeable with 400 l. per annum to A.'s wife,
who was little more than fifty years of age, and very
healthy. From all which calculations, it would evi-
dently be of prejudice to the infant to carry this agree-
ment into execution; and that if the uſes of the ſet-
tlement had been truly reprefented to the mafter, ſo
that it had appeared upon his report that the infant was
only tenant for life, it was apprehended the court would
hardly have made fuch a decree, or declared it to be
for the infant's benefit to perform the agreement. But
the reafons already fuggefted in the mafter's report be-
ing replied, and it being obferved in addition, that it
would not make the agreement on the whole lefs rea-
fonable in itſelf, or more advantageous for A. that the
infant happened to be only tenant for life of the eftate,
fince this was evidently intended for the purpofe of pre-
ferving the eftate longer in the infant's family, and he
being very young, would, according to the courſe of
nature, probably enjoy the eftate a great many years
after A.'s death. Befides the infant's father had 3
power of limiting the inheritance of the eftate to the
infant, if he had thought proper to exercife that power.
Thereupon
OF THE ASSENT TO CONTRACTS
[123] * Thereupon the appeal was difiniffed, and the decree,
orders, and reports, complained of, affirmed.
Highter v.
Sturman,
1 Vernon 210.
Vide Baſker-
ville v. Baker-
ville, et ux.
z Vern. 448.
i Roll Abr. 351.
F. 1. et vid.
10 Mod. 160,
i6i, 243.
[ * 124. ]
Máfon v. Ma-
fon, cited Mofe-
ly 2241
Treat. Eq. 34.
Ibid.
A mother may likewife, acting as adminiftratrix to
her huſband, bind her children.
And the covenants of a woman, made before mar-
riage, bind her after taken husband. Thus if, upon a
treaty of marriage, by articles between A. father of
the intended huſband on the one part, and B. the in-
tended wife on the other part, A. covenants that, in
confideration of the marriage had, and of payment of
a portion of 2600 l. he will fettle his eftates in manner
therein ftipulated, and B. covenants for payment of
the portion; and the marriage be had, and then it fall
out that part of the portion is fo circumſtanced that it
cannot be had; and, thereupon, A. refuſes to perform
his part of the agreement, unleſs the portion be paid;
the hufband will be compelled, by decree, to make up
the deficiency of the portion, though he be no party to
the articles, his wife having, whilft fole, covenanted for
payment thereof, and, confequently, bound him, after
marriage, to perform that covenant.
*In the cafe of Mafon and Mafon, where a mother,
who was both jointrefs and guardian, but had no
power by her jointure to fell timber, entered into ar-
ticles for the fale of timber to the value of 1000 1. theſe
articles were carried into execution in equity.
It being a maxim in law, that the real eftate of a
feme covert fhall not be bound without a fine, no agree-
ment of the huſband alone to part with the wife's inhe-
ritance will bind the wife, or be carried into execution
in equity. But if the wife, upon a private examination,
confent to an agreement by her huſband to convey her
lands, the court of Chancery will decree it. But the
bill for this purpoſe muſt be filed againſt both husband
and wife; for the wife ought not, by law, to convey by
any compulfion from the hufband; which it will other-
wife be intended that the docs.
But if a feme covert agree to fell her inheritance,
fo as the may have part of the money, and the land be
accordingly fold, and her part of the money put into
truſtees hands this money is not liable to the huf-
band's debts, though the afterwards agree that it fhall
be
*
OR AGREEMENTS:
be *fo; nor fhall any promiſe made by the wife for that [* 125.]
purpoſe, fubfequent to the firft original agreement, be
obliging in that behalf.
Hob. 203
Tenant in tail cannot, by agreement to convey for 1 Lev. 238, 239.
valuable confideration without fine or recovery, bind his 2 Vent. 350.
iffue in tail or the remainder men; becaufe the iffue in
tail claim per formam doni, from the creator or author
of the eftate tail; and, therefore, a court of equity,
though the iſſue are in the power of the tenant in tail to
be barred by a particular affurance, that not being had;
cannot take away the right they derive, not from the te-
nant in tail, but from the author of the eftate.
S. L. Powell v.
Thus where A., tenant in tail, agreed that B. and Rofs v. Rofs,
his heirs fhould enjoy the entailed lands, provided A. Ca. Ch. 171.
and his heirs might enjoy B.'s copyhold lands; and the Powell, Pre.
agreement was executed, and a decree was obtained Chan. 278.
againſt A. to levy a fine; and A. died in contempt for Sangen v. Wil-
not doing it, and his iffue entered on the entailed lands, Gil. Rep. Eq.
liams, cited
whereupon a bill was filed to compel him to execute the 164.
agreement; it was adjudged that the iffue was not bound
thereby.
* But, if the iffie enter upon the land, and accept [*126. ]
of the agreement, it ſhall bind him; becaufe by enter- So adjudged in
ing upon the recompence which his anceitor received Rofs v. Rofs,
for the eftate tail, he makes himfelf a party to the ori-
ginal agreement, and is, therefore, bound in conſci-
ence to perform it.
1
fupra.
128.
And a diftinction is taken between cafes where the Vide 1 Ch. Ca.
lands are entailed dè fatto, and thoſe where there is 234, 236. Finch.
only an agreement to entail; for, though the agree
ment raifes an equity againft him that makes it, yet that
equity is the creature of the court of Chancery, to be
governed by it as confcience directs; therefore if a man, vide i Vern. 14,
being tenant in tail in equity, bargain and fell his ef- 2 Vern. 132,
tate, the court will decree fuch difpofition good againft 135 583-
the iſſue; for, to this purpofe, they conftrue their own
creature as a fee ſimple conditional before the statute de
donis, which became abfolute by the having iffue, and
the donee whereof had thereby the power of alienating
it.
It feems that, upon the fame principle, the heir in
rail of a copyhold, whofe anceſtor had entered into an
agreement to fell, but had died before furrender,
would, in a court of equity, be decreed to convey to
the
2 Vent. 350.
OF THE ASSENT TO CONTRACTS
[*127.] the purchaſer; * for the entail of a copyhold remains as
it was, at common law, and is not within the ſtatute de
donis.
Bro. Contract.
26. 11 Rep. 50.
Poph. 194.
Vide to Mod.
469.
An as tenant in tail is reftrained from aliening the
eſtate without fine or recovery, fo is he reſtrained from
charging it, or difpofing, by contract or agreement, of
the lafting improvements after his death. Therefore
if tenant in tail article for ſale of the trees growing on
the inheritance, the vendee muft fever them during the
life of tenant in tail; for if he die before they are cut
down, his iffue fhall have them as part of the inheritance,
and the vendee fhall not be permitted, after the death of
tenant in tail, to fell one tree, though it be half cut
down: for, as the tenant in tail has power over the in-
heritance but during his own life, he cannot delegate
that power to another but during the fame time; and
confequently, whatever remains part of the inheritance
at the death of tenant in tail, at which time his power
over it ceaſes, muft neceffarily go to the heir to whom
the inheritance belongs.
But if tenant in tail, having a power to make leafes
for three lives, covenant to make fuch a leaſe, and die
[* 128. ] before execution; it is faid, that a court of equity
would carry this into execution againſt the heir.
Per Cancet.
5
The executors of every perfon are implied in himfelf,
z P. Will. 197. and bound without naming.
Johnfon v.
Ogilby, 5 P.
An attorney, having an authority, undertaking for
and on behalf of his client, may bind him by an agree
ment, and will not himſelf be liable in cafe of non-per-
formance. Thus if, previous to a trial, and just before
it is to come on, the parties come to an agreement re-
Will. 277. S. C. lative to the matters in queftion, and the attorney of
2 Eq. Ca. Abr. the plaintiff or defendant alone fign the agreement for or
on behalf of his client; a court of equity will hold this
binding on the client, but will difinifs a bill for fpeci-
fic execution against the attorney.
31. Pl. 40.
vid. 5 Brown's
Par. Ca. 547.
Parrot v. Wells,
et al. 2 Vern.
127.
Et
But where an attorney prevented a perfon indebted
from applying to his creditors to compound his debts,
telling him, "that he need not trouble himſelf to go
to his clients, for they would be governed by him, and
would make no agreement without him, but what
agreement he made they would ftand by," and he there-
upon agreed, on their part, for a certain compofition,
in confideration whereof the fecurities fhould be deli-
vered
OR AGREEMENTS.
vered * up, on performance by the debtor of his part [* 129.]
of the agreement and refufal of the creditors to abide by
the contract of their attorney, he was, upon a bill filed,
decreed to indemnify the former according to the terms
of the agreement.
A general authority to a ſteward to make contracts Per Lord Chan.
with the tenants, will not bind the lord without his Cowper, 5 Vin.
conſent and approbation, unleſs part of the bargain be Abr. 522. Pl.
actually executed.
35.
It is faid that, if a joint-tenant enter into an agree- Vide 2 Vera.
ment to alien, and neglect ſo to do, and die, a court of 63.
equity will not, by its decree, compel the furvivor to
perform the agreement. But this pofition must be taken Per Lord
with this limitation, that the articles are not fuch as
amount to afeverance of the jointure in equity; for, if 34. et vid.
they be, the court will decree againſt the furvivor.
Hardw. 2 Vez.
I luft.
59. b.
In the cafe of Muſgrave againſt Dashwood, a copy- Muſgrave v.
holder for life, where, by the cuſtom of the manor there Dashwood,
was a widow's eftate, agreed, That J. S. fhould hold ª Vern- 45, 63.
and enjoy during his life, and the widowhood of the wo-
man that he ſhould leave at his death: after the death
of the copyholder, a bill was filed againſt the widow [* 130. ]
to have this agreement performed. But the court dif-
miffed the bill with cofts, faying, that if fuch contracts
for copyholds fhould be decreed, the lords would be de-
frauded of their fines.
But Lord Hardwicke, in the caſe of Hinton and Hin- Hinton v. Hin-
ton, over-ruled the foregoing cafe, ſo far as it extended ton, 2 Vez.
to deny fuch a decree, where the agreement was for a
631, 638.
valuable confideration paid as to the greateft part; or
where the vendee had performed, or was ready to per-
form, his part of the contract. This was a bill filed
for a fpecific performance of an agreement for a fale
of a copyhold (and that to the exclufion of the widow's
free bench) by a father to his fon for valuable confide-
ration, paid as to the greatest part, the father dying
before an actual furrender. And Lord Hardwicke was Vide Renning-
of opinion, that by analogy to the determinations at ton v. Cole.
law in fimilar cafes, where the huſband had actually Noy, 29. Ben-
parted with the eftate, in which cafes the widow loft
her free bench, upon the ground that the free bench Freeman 516.
eftate of the wife was but a branch out of the estate of the
husband, the wife fhould, in equity, where there was
F
an
fon v. Scot,
Salk. 185.
OF THE ASSENT TO CONTRACTS
[* 131.] an agreement, be bound thereby; * for it was, in
equity, a parting with the whole eftate: then that
court, confidering the thing as done from the time at
which it ought to be done, confidered the vendor as a
truſtee for the vendee, and that thofe who came in his
place ought to perform his agreement. And his lord-
ſhip decreed a ſpecific execution againſt the widow.
Thirdly, We are to confider in how many ways an
affent may be given to a contract or agreement.
An affent to a contract or agreement may be either
expreſs or tacit.
An exprefs affent is declared by fome fign: as gef-
ture, fpeaking, writing, &c. and, in fome cafes, by
folemn profeffions before magiftrates, public regiſter-
ing, or the like. And fuch affent may be either prece-
dent, concomitant, or fubfequent.
A tacit affent may arife in feveral ways.
*
It may be inferred from inaction or forbearance of
acting. Thus a man by his filence, in cafe he be pre-
[* 132.] fent, and acquainted with what is doing, is fuppofed
to give his affent to what is then done; unless it appear
that he was awed into filence, or any ways hindered
from ſpeaking.
Clare v. Earl of
Bedford, cited
2 Vern. 151.
1 Will. Rep.
393.
Shep. Prac.
Counf. 482.
PL. 9.
Hunfden v.
Cheyney,
z Vern. 150.
1 Eq. Ca. Abr.
355. Pl. 7.
As if a prior mortgagee witness a fubfequent mort-
gage-deed without giving notice of his claim this act
is confidered as a tacit affent that his own fecurity
fhould be poftponed.
So if A. make a leafe for years to B. upon good con
fideration, and afterwards he make a leafe to C. of the
fame land for the fame time; and B. drive the bargain,
and be witneſs to the fecond leafe, and do not difcover
this leafe to C. and it be not excepted in the fecond.
leafe, and the fecond leafe be upon good confideration:
in this cafe the fecond leffee will, even at law, be pre-
ferred.
Again, where a mother, to whom a term was limit-
ed in tail, ftood by at a treaty for the marriage of
her fon, and heard him declare, that the term was to
come to him after her death, and was a witnefs to the
deed whereby the fon took upon him to fettle the re-
verfion of the term expectant upon his mother's de-
ceafe
}
OR AGREEMENTS.
* ceafe on the iffue of that marriage, and did not menti- [
on or infift that ſhe had more than an eftate for life
therein: on a bill filed by the iffue of the marriage againft
the mother, praying that the iffue fhould have the bene-
fit of the marriage-fettlement, and that the mother
ſhould make it good as to the reverfion of the term af-
ter her deceaſe; it was fo decreed, notwithſtanding the
infifted that fhe was ignorant of her title, and knew not
that ſhe, as tenant in tail of a term, might diſpoſe of it,
and that ſhe was no party to the marriage agreement,
nor concerned in it.
*
133. ]
And where A. upon his marriage with E. fettled the Raw, et ux. v.
lands in queftion, of which he was only tenant in tail, Pole, 2 Vera.
upon her for her jointure; and B. the younger brother 239.
of A. who was heir to the entail, was privy to the treaty,
and ingroffed the jointure deed, but concealed the en-
tail; and afterwards A, died without iffue, and B. hav-
ing the deed of entail in his cuftody, brought his eject-
ment, and recovered at law; E. filed her bill for relief,
and B. by his anfwer, confeffed the facts above ftated,
and that he had the deed of entail then in his hands, but
did not mention his title, nor difcover the deed, becaufe
*he apprehended his brother would dock the entail. [134. ]
The court decreed, that E. fhould hold and enjoy her
jointure againſt B. and all claiming by or under him;
which decree was affirmed on appeal to the houſe of
Lords.
And, in ſuch caſes, affent is prefumed, even againſt Barnard. Rap.
an infant; for it is meant as a puniſhment for his con- 102, 103.
cealing his right, by which an innocent perfon is drawn
in to advance his money, &c. Thus the court of
Chancery granted a perpetual injunction againſt a mort-
gagee, who had engroffed a fettlement, and not difco-
vered that he had fuch a mortgage upon the eftate; and
yet the mortgagee was an infant at the time he ingroffed
the deed.
↑
But, in order to warrant us in concluding from a Welford v.
man's filence that he has relinquished his right, two Beczley,
things are neceffary. The firft is, That he thould Vez. 6,
know that what belongs to him is conveying to ano-
ther, for, when one forbears to act through mere ig-
norance, it can have no effect. Upon this principle
Lord Hardwicke, in the cafe of Welford and Beezley,
faid, that he did not think the bare attefting a deed as a
F A
witnefs
ÖF THE ASSENT TO CONTRACTS
[* 135.] witneſs could create fuch a * prefumption of his know-
ledge of the contents, as to affect him with any fraud;
becauſe a witness was only to authenticate an inftrument,
and not to be prefumed privy to the contents. And Lord
Thurlow declared himfelf to be of the fame opinion in
the cafe of Becket and Cordley, for, that, in fuch caſe,
the property was bound upon the principle of notice,
and a witneſs, in practice, was not privy to the contents
of a deed.
Becket v
Cordley,
Brown's Rep.
Chan. 357-
Vide Tindal. ct
[* 136.]
al. v. Brown,
vol. i. fol. 167.
Term Rep.
Godbolt 358.
Secondly, That he fhould be voluntarily filent,
though he has full liberty to ſpeak; for if there be any
compulfion, that hinders him from acting, there is no
ground, from his filence, to conjecture an affent to
what is going forward.
The former principle governs in a court of law in
cafes where a leffee for a year holds over; for in ſuch
cafe he is not confidered as a tenant at will, but as a te-
nant for a year; the law prefuming, from the leffee's
filence, a tacit agreement to renew the contract upon
the original terms.
So if the holder of a note, when it is diſhonoured,
omit to give reafonable notice to the indorfee, that
he looks upon him as liable, and intends to refort to
him; he will be confidered as agreeing to discharge the
indorfer, and to accept the maker; for the omiffion of
that information amounts, in law, to a tacit affent to
give credit to the maker, and is tantamount to an agree-
ment to diſcharge the indorfer.
Many inftances of this kind occur in cafes, where,
to give effect to fome great leading contract, founded
upon an exprefs agreement, fome other tacit agreement
muft, from the very nature of the tranfaction, be in-
cluded therein. Thus if a man bargain with another
for the fale of his trees, the law implies that the vendee
fhall have free ingrefs and egrefs to take them; becauſe,
otherwife, the former agreement would be to no pur-
pofe. So he who lets a chamber, is prefumed to con-
fent that the keffee fhall make ufe of fuch other parts
of
the houſe as are neceffary to give him free accefs to this
apartment, and free paffage from it. And if a man
give leave to another to lay pipes of lead through his
lands, the law infers a tacit agreement, that he may
dig the ground to lay them there.
And
OR AGREEMENTS.
་
*
And there is one fpecies of tacit agreement which [137]
runs through, and is annexed to all contracts, conditi-
ons, and covenants; namely, that if one of the parties
fail in his part of the agreement, he ſhall pay the other
party fuch damages as he has fuftained by fuch neglect
or refufal.
.
Burr. 1011.
Thus where, on payment of 2621. 10s. by A. to Dutch v. War-
B. the latter agreed to transfer five ſhares in the Welsh ren, M. 7 G. 1.
copper mines at the opening of the books, and for fe- C. B. cited
curity gave A. a note in theſe words, " 18 Auguft- 1720,
I do hereby acknowledge to have received of A. 262 4.
IOS. as a confideration for the purchaſe of five fhares,
which I do hereby promife to transfer to the faid A. as
foon as the books are open, being five fhares in the
Welsh copper mines. Witnefs my hand." The books
were opened, when A. requeſted B. to transfer theſe
fhares, which he refufed, and told A. he might take
his remedy. A, brought an action upon the cafe for
money had and received to his ufe. The chief juftice
left it to the confideration of the jury, whether they
would not make the price of the ſtock, as it was on the
day when it ſhould have been delivered, the meaſure
of the damages, which they did, and gave the plaintiff
but 1757. damages. And, on a cafe made for the con-
fideration of the court of* Common Pleas, it was re- [* 138. ]
ſolved that the verdict was right, being not for the
whole money paid, but for the damages in not trans-
ferring the flock at the time, which was a lofs to A.
and an advantage to B, who was a receiver of the dif-
ference to the uſe of A.
So if one ufually fend his fervant to market upon truft,
and, when he takes up goods, ftand to the bargain;
this is evidence of his affent that all the world ſhould
truſt him; and may be applied by a jury to evince an
affent to any particular contract.
There is alfo another kind of affent that may be con-
fidered as tacit or prefumptive, though it be purely
imaginary. This is where a perfon doth not think, nor
indeed can think, of the engagement he enters into, be-
cauſe he is ignorant on what it is founded; yet he is
ftill fuppofed to acquiefce in it, becauſe we prefume
that, if he knew the thing, either he would confent to
it as beneficial to himſelf, or fhould confent to it accord-
ing to the maxims of natural equity.
Upon this principle, the law, upon every feoffment,
releaſe,
OF THE ASSENT TO CONTRACTS
[139] releaſe, furrender, gift* or affignment, vefts the pro-
perty thereby conveyed in the feoffee, releafee, furren-
deree, donee, grantee, &c. his affent thereto being pre-
fumed, it appearing prima facie to be for his intereſt.
So the heir's acceptance of an inheritance defcending
to him is prefumed.
Smith, et al. v.
Neffen, et al.
Term Rep.
vol. i. '269.
[ * 140. ]
Broderick v.
Will. 239. S. C.
S. L. 1 Vern.
19, 20.
Again, If the perfons, upon whom a bill is drawn,
refufe to accept upon account of the credit of the indor-
fer, but pay the bill for the honor of the drawer: this
raifes an affumpfit, founded upon a tacit agreement, up-
on which an action for money paid, laid out, and ex-
pended, may be maintained againſt the drawer.
So if the hufband turn his wife out of doors, this, in
law, amounts to a tacit affent to give her credit for ne-
ceflaries; and, upon that ground, fubjects him to an
action, as before ftated.
Fourthly, I fhall confider what circumftances inva-
lidate an allent given,
Ignorance or error, in fome cafes, renders a contract
or agreement invalid, by invalidating the affent given to
it by one of the parties.
*In this refpect a diftinction is made, where the
perfon, lying under the error or mistake, was drawn
in to contract by fraud and circumvention, practifed by
one of the parties in taking advantage of the other's
ignorance of his right, or concealing it from him; and
where there proves to be an error or miſtake refpecting
the thing or fubject bargained for, equally unknown to
both parties: for, in the former cafe, the contract or
agreement will be null and void in itfelf; becaufe, in all
bargains, where the nature of the thing contracted about,
and all its qualities, good and bad, are explained, and
conceived to be understood, the affent is yielded under
an idea, that the facts are strictly as ftated.
Therefore, where one devifed his lands away from
Broderick, P. his heir at law, but did not execute his will accord-
4 Vin. Abr. 534. ing to the ftatute of frauds; and afterwards the heir at
law, in confideration of 100 guineas paid him by the
devifee, did, by deed, reciting that the will was duly
executed, releaſe to the devifee all his right to the eſtate
devifed; and then the heir at law, being told by the
devifee, that, there being debts appointed by the will
to be paid, it would facilitate the raifing the money
for the payment of debts, if he (the heir) would
join
OR AGREEMENTS.
*
* join in a leafe and releaſe of the deviſed premiffes; [ 141. ]
whereupon, for 50 guineas more paid to him, the heir,
together with the devifee, by leafe and releafe, convey-
ed the premiffes to J. N. and his heirs, in confideration
of 4000 mentioned to be paid by the purchafer. And
a receipt was given for the money, but, in truth, the
purchaſe money was not paid, but J. N. was a truſtee
only for the devifee, and fo admitted to be. A bill was
filed by the heir at law, to be relieved againſt theſe af-
furances. One witnefs fwore, that the heir did declare
to him, that the will was not worth any thing; and that
this declaration was made by him, before his executing
the releaſe. Per curiam. Either fuppreffio veri, or
fuggeftio falfi, is a good reaſon to ſet afide any releaſe or
conveyance: then, to recite in a deed that the will was
duly executed, when it was not, was fuggeftio falfi; and
to conceal from the heir that the will was not duly exe-
cuted, was fuppreffio veri. So that both circumftances
concurred. And as to the declaration of the witneſs, it
was faid, it was not to be believed, that, if the heir
had known that the will was not duly executed, he would,
for ſo ſmall a confideration, have parted with his eftate.
And the court relieved the heir.
* But, if it plainly appear that there was nointention [* 142. ]
of fraud in either of the contracting parties, and that the
one had no more knowledge of the thing contracted
about than the other; there, if, in a doubtful point, one
party miſtake, it is fo much the worfe for him, but the
contract is valid notwithſtanding; for the affent is com-
plete and full to treat upon the ſubject as it stands.
Thus it was laid down by Lord Macclesfield, in the Cann v. Cann.
cafe of Gann and Cann, where two parties were con-
1 P. Will. 726.
tending in the court of Chançery refpecting an eſtate,
and one releaſed his pretenfions to the other; that
there could be no colour to fet this releaſe afide, be-
cauſe the man that made it had the right; for by the
fame reafon there could be no fuch thing as compro-
mifing a fuit, nor room for any accommodation:
every releaſe fuppofed the party making it to have a
right; but this could be no reafon for its being fet afide,
for then every releaſe might be avoided. That, there-
fore, an agreement entered into upon a fuppofition of a
right, or of a doubtful right, though it afterwards
came out that the right was on the other fide, fhould
be binding; and the right fhould not prevail against
?
the
OF THE ASSENT TO CONTRACTS
[*143.] the agreement of
Pullen v. Ready,
2 Atk. 587.
}
[* 144.
]
Pufey v. Dif-
bouveric, 3 P.
Will. 316.
..:
the parties, for the right muſt al-
ways be on one fide or the other; and therefore the
compromiſe of a doubtful right was a fufficient founda-
tion of an agreement,
So where one devifed his eftates in remainder, after
an eſtate limited in tail, in truft for his niece E. and
her fons and daughters in tail, and went on,
« Item,
It is my will, and I do hereby declare, that if the faid
S. and M. (two daughters of E.) or either of them, fhall
hereafter marry with any perfon or perſons whatſoever,
without the conſent of their father and mother, and the
truſtees named in the faid will, or the greater number of
them living, fignified under their hands, then it is my
will, that fuch of the daughters, fo marrying, fhall have
and receive no more benefit and advantage by my
faid
will, or any thing therein contained, than if they were
actually dead, or not named in my faid will, either by
particular naines or daughters in general." E. the mo-
ther had three daughters, R.-S. and M. afterwards M.
married without confent, and then a lawfuit aroſe be-
tween the fifters and their huſbands as to the fortunes
of the wives. And then articles of agreement were en-
tered into and executed between all the parties, by
which, among other things, it was agreed, that, after
the death of E. the mother, who, was then tenant in
tail, an equal divifion fhould be made between the
daughters of all the eftates belonging to the teftator.
Afterwards R. one of the daughters, and her hufband,
objected to M.'s having any fhare of the teftator's eftate
upon the ground that the, marrying without confent,
had forfeited her right in the third of what was to come
to her upon the death of her mother, and, in order to
get rid of the agreement, infifted that they executed the
articles under a mistake. Lord Hardwicke faid, that
there was nothing more mifchievous than for a court of
Chancery to decree a forfeiture after an agreement, in
which, if there was any mistake, it was the miftake of
all the parties to the articles, and no one of them was
more under an impofition than the other; and he decreed
them to be carried ſpecifically into execution.
1
*
But in fuch cafes the parties muſt be acquainted with
the extent of their rights, and the nature of the infor-
mation they can call for refpecting them, or otherwife
the inclination of courts feems to be that they fhall
not be bound. Therefore where one, being a free-
man
OR AGREEMENT S.
*inan of London, and having a wife, a fon, and a [145]
daughter, compounded with the wife as to her cuftoma-
ry part; and then made a will, giving, inter al. 10,000!.
to his daughter, upon condition that the fhould releafe
her orphanage part, together with all her claim or right
to his perſonal eftate by virtue of the cuſtom of the city
´of London, or otherwife, and made his fon executor, his
daughter being about the age of twenty-three years.
And the daughter, after having been informed by her
brother that he had an election to have an account of
her father's perfonal eſtate, and to claim her orphanage
part, elected the legacy, and executed a releaſe of her
thare under the cuftom. Lord Talbot, on an applica-
tion by her after taken huſband to fet this leaſe afide, on
the ground that her cuftomary fhare would have been
40,000l. was induced fo to do; becauſe his lordſhip
faid, he hardly thought the knew fhe was entitled to have
an account taken of the perfonal eftate of her father, in
order to afcertain what her orphanage part would amount
to, and that when the fhould be fully apprized of that,
then, and not till then, the was to make her election;
for probably fhe would not have elected to accept her
legacy, had the known or been informed what her
orphanage part amounted unto before fhe waived it [ * 146. ]
and accepted the legacy,
*
Under the head of Contracts, under an ignorance
that does not invalidate the contract for want of confent,
we may clafs Wager Contracts, to the validity of which,
it is not effential that the event be in itſelf contingent.
For here it is fufficient that the event be equally uncer-
tain to the parties.
dall, Cowper
37:
Therefore, where an action was brought to recover Jones v. Ran-
money won upon a wager, whether a decree of the
court of Chancery would be reverfed or not on an ap-
peal to the houfe of Lords. And it was objected, on
motion in arreft of judgment, that the contract was
void; and one ground urged againſt it was, becauſe
the event was not contingent, but certain, for the laws
of this country were clear, evident, and certain. All
the judges knew them, and, knowing them, admi-
niftered juftice with uprightnefs and integrity. The
event, therefore, was certain, and of courfe the wager
ſuch as in its nature was impoffible to be loft. Sed per
curiam: this contract is equal between the parties;
they have each of them equal knowledge or equal igno-
rance :
OF THE ASSENT TO CONTRACTS
[ * 147 .] rance: it is concerning * an event which, reaſoning
by the rules of predeftination, is to be fure fo far certain,
that it must be as it ſhould afterwards happen to be. But
it is a future event equally uncertain to the parties, whe-
ther the houfe of Lords would be of the fame or a dif-
ferent opinion with the chancellor. The prefumption,
if any, rather against the perfon betting in oppofition
to the chancellor's judgment.
❤
Here we may likewife confider thofe cafes, in which
agreements are made for the purchaſe of eftates, and
the like, which eftates are afterwards found, in circum-
ftances, to have been erroneouſly reprefented to the
purchafer. In thefe cafes a diftinction is made accord-
ing to the nature of the circumftances miſtaken, or ref-
pecting which there is error. If the miſtake be refpect-
ing that, at which the perfon making the contract par-
ticularly aimed, the agreement will be void, his affent
being founded on the ground, that the thing in which
the error lies exifted, or was wanting. Any deviation
from the terms of the contract in thefe refpects, is, there-
fore, effential. But, if the error be in fome circum-
ſtance, which, although the purchaſer would have been
better pleaſed with his bargain had it exifted, yet he did
[* 148. ] not particularly aim at and fpecify in his contract; here
the bargain will be good, and the defect will lie in com-
penfation for the existence, or non-exiſtence of this
circumftance, does not appear to have been confidered as
an effential motive to the affent given; and then the git
of the contract is the value of the thing contracted for,
which, in caſe of any variation, may be equalized by de-
ducting the difference of value out of the purchafe money.
As for example, fuppofe a man contracted and agreed
to fell an eſtate, and in his defcription ftated it to be
tythe-free, and it afterwards turned out to be fubject to
tythes; if it were not evidently the intention of the party
contracting for the purchaſe that it fhould be tythe-free,
fo as that were the exprefs motive to his affent, the being
ſubject to tythes would not invalidate the agreement;
for, whether it be fo or not is an accident, and has no-
thing to do with the effence of the contract; it is con-
fidered, therefore, as not affecting the affent to pur-
chaſe, but merely as giving the vendee a right to call
upon the vendor for an abatement of price, in propor-
tion to the inconvenience or diminution of value, that
the being tythable occaſions.
So
OR AGREEMENTS.
* So if a man were to agree to purchaſe an eftate up- [ 149. ]
on a particular, in which it were ſtated to confift of a
manor, lands, &c. and it turned out that the manor
belonged to another perfon, and not to the vendor. The
bargain would, nevertheless, be carried into execution,
in equity, ſubject to an abatement in price, according
to the value at which the manor was eſtimated. And,
yet, it may be very material in the confideration of the
purchafer, whether, he, or another perfon, be lord of
the manor extending over his eftates. But fuch cir
cumſtances are, nevertheleſs, confidered, in equity, as
laying in compenfation merely.
To put this principle of equity, in a ſtill ſtronger
light. Suppoſe an eſtate with a manor were fold by a
particular, fpecifying the value of each part, and where-
in the manor were thrown in as a make-weight, and,
on a valuation taken, at the inftance of the vendee, the
eſtate were valued, without the manor, at the fum fti-
pulated to be paid for it with the manor; and it turned
out that the manor was in another perfon, and not in
the vendor: in ſuch caſe it appears to me, that the bar-
gain ought to be carried into effect, in equity, without
any deduction from the fum* ftipulated for the purchaſe. [* 150. ]
For, confidering the ground upon which the parties
contract, the vendee is no lofer by the deficiency. The
contract ftill remains equal upon their eftimation.
But if the buyer make it an exprefs condition in the
agreement for the purchaſe, that the lands be tythe-
free, or that there be a manor, and the feller covenant
therein to that effect; then, unleſs the fact turn out as
ftipulated, the contract will be null.
And, in fome contracts, the intention of the parties,
as to the nature of their affent, will be inferred from
circumftances; as from price, or the like. Thus if a
man fell a horfe for a price, which it could not be
worth, unless it were found, the contract will be void,
if it turn out otherwife; for the purchaſer would never
have confented to give a found price, unleſs he were to
have a found horfe.
This principle is illuftrated by the writers on natural
law by a very appofite inftance, namely, that of a female
flave cloathed in the dreſs of a man, and offered to be
hired or fold in that character.
ས་
In
OF THE ASSENT TO CONTRACTS, &c.
[* 151..]
i
* In fuch caſe the difference of the fexes is only to be
known by their habits, and, confequently, cannot be mifta-
ken, unless under a difguife. And, therefore, the hirer
muſt be ſuppoſed to have confented to the agreement,
under the affurance that the fervant was of that fex
whofe habit the wore, and then the error is effential, and
confequently, the bargain is null and void.
Df
[ 52 ]
1
Of the Subjects of Contra&s or Agree-
H
ments.
AVING fhewn what perfons are capable of con-
tracting, or being contracted with; we are ne-
ceflarily led, in the next place, to confider the fubjects
refpecting which contracts may be entered into, and in
what refpects men may lawfully bind, or oblige them-
felves by their words, or bargains.
And it is obfervable, upon this branch of our en- Plowd. 432
quiry, that a diftinction fubfifts between contracts that
are executed, and fuch as are executory. For it is a
known rule of law, that a man cannot by contract, exe-
cuted, grant or convey any thing, in which he has not
an actual or potential intereft, at the time of the grant or
conveyance; becauſe it is neceffary that he, who by his
contract makes another poffeffor of any thing, fhould
firft be, himself, the proprietor of it. In our law,
therefore, every contract executed, reſpecting a ſubject
*
of which the party conveying is not owner, actually [153]
or potentially, at the time of entering into it, is void.
Thus, if a man grant all the wool that he ſhall buy here- Hob. 132.
after, this is a void grant; for he has the wool neither
actually nor potentially.
So if one make a leafe of lands to another, and the Co. Litt. 41. b.
leffor has, then, no intereſt in the lands leafed; it is a
good plea for the leffee to fay, "that the lefior had no-
thing in the lands at the time of the leafe.
Upon the fame principle, if one grant unto another a Bac. Max. 73.
rent-charge out of white acre, and that it fhall be lawful
for the grantee to diftrain in all the other lands whereof
the grantor is then feifed, and in thoſe which he fhall
thereafter purchaſe; although this be but a liberty of
diftrefs, and no rent, except out of white acre, yet the
clauſe is void, as to the lands to be purchaſed afterwards.
So, if a reverfion had (when attornment was in uſe) Ibid.
been granted to J. S. and afterwards J. D. (a ftranger)
had, by his deed, granted to J. S. that, if he (J.D.)
purchafed
1
OF THE SUBJECTS OF CONTRACTS
[* 154.] *purchaſed the particular eftate, he would attorn to the
grant; this had been a void attornment, notwithſtanding
J. D. had afterwards purchaſed the particular eftate.
Co. Litt. 309. b.
Plowd. 432.
[ * 155. ]
Bac. Max. 78.
19 H. 6. 62.
a 64. a Bro.
Grant. 40.
Dyer, 221. Pl.
18.
Upon the fame principle, it is laid down by lord Coke,
that if, before the 4. Ann, cap. 16. fect. g. the conufee
of a fine, previous to attornment, had bargained and fold
the feigniory to another; the bargainee could not have
diftrained; and the reaſon is, becauſe the grantor could
not have diftrained; and no man can transfer more
right to another man, than he has himſelf.
Again, if one, being poffeffed of a horfe, fell the
horfe to another, upon condition that he pay forty
pounds for it at Christmas: the contract being complet-
ed as foon as the price is agreed upon, he cannot, after-
wards, and before Christmas, fell it to a third perfon.
Nor will fuch latter fale be made goed, though the firft
vendee fail of payment, by reafon whereof the vendor
re-feizes the horſe; becaufe, at the time of the fecond
contract, the vendor had neither intereft, nor property,
nor poffeffion of the horfe, but only a condition, which
will not enable him to contract * for the property and
poffeffion; therefore, it is merely a void act.
And if A. grant unto B. that if B, enter into an obli-
gation to A, of 100l. and afterwards procure him fuch a
leafe, then the fame obligation fhall be void. And B.
enter into fuch an obligation unto A, and afterwards pro-
cure fuch a leafe, yet the obligation is fimple; be-
caufe the defeazance was made of that which was not.
So if A. grant to B, by deed, that if B. make unto
A. an obligation for any fum, it fhall be void; and af-
terwards B. enter into fuch an obligation to A. the grant
is void; becauſe it is the grant of a duty that A; had not
in him at the time of the grant; and every man may
bind himſelf to what he pleaſes.
Nor will the law allow a man to grant or incumber
that in which he has only an inchoate title, or intereſt
to be perfected in future. Thus, if a writ of annuity
were granted by a prebend, after collation, admiffion,
and inftitution, but before inftallation or induction;
fuch a grant, though it were confirmed by the ordinary,
he
OR AGREEMENT S.
he being the patron, *would be void; becauſe the pre- [* 156. ]
bend had jus ad rem and a future intereft, and not jus
in re; for he cannot be faid to be a prebendary to all
intents, nor at the common law, without the real poſ-
feffion, which is given him by induction.
But we muft diftinguish the laft-mentioned cafe, from
thofe cafes in which, although it be uncertain whether
the thing granted will ever exift, and it, confequently,
cannot be actually in the grantor or certain, yet it is in
him potentially, as being a thing acceffory to fomething
which he actually has in him; for fuch potential proper-
ty may be the fubject of a contract executed, as a grant,
or the like. Thus a parfon may grant all the tithe that 22 H. 6. 43.
he fhall have in fuch a year, yet, perhaps, he fhall have
none; for the right to the advowfon, &c. is in him, and
out of that advowſon they arife. So a tenant for life
may fell the profits of his lands for three or four
years to come, and yet the profits are not then in effe.
Upon the fame principle, a lord of a manor may part
with the profit of his courts for a time to come.
Hob. 132.
This principle was inveftigated and * confirmed in [* 157. ]
the cafe of Grantham againſt Hawley. There, one Grantham
feifed of land, let the fame by indenture for twenty-one v. Hawley,
years, and covenanted therein that it fhould be lawful
for the leffee, his executors and affigns, to carry away,
to his own ufe, fuch corn as fhould be growing upon
the ground at the end of the term; and afterwards the
leffor affigned his reverfion. And one queftion was,
whether the leffee was entitled to corn fo growing?
and it was argued on the part of the affignee of the re-
verfion, that it was merely contingent, whether there
fhould be corn growing upon the ground at the end of
the term or not; and that the leffor never had property
in the corn, and, therefore, could not give nor grant
it; for the right to the corn, ftanding at the end of the
term, being certain, accrued with the land to the lef
for. But judgment was given against the reverfioner:
becauſe it was faid, that the property, and very right
of the corn, when it came into being, was paffed away;
for this was both a covenant and a grant; and, there-
fore, if it had been of natural fruits, as of graſs or
hay, which run merely with the land, the like grant
would have carried them in property after the
term. Then, though corn were fructus induftrials,
fo
OF THE SUBJECTS OF CONTRACTS.
..
Tit
[ * 158. ] * ſo that he that fowed it might feem to have a kind of
property ipfo facto in it, divided from the land, and,
therefore, it would go to the executor, and not to the
heir; yet, in this cafe, all the colour the reverfioner
had to it was by the land, which he claimed from the
leffor who gave the corn; and, though the leffor had
not the corn actually in him, nor certain, yet he had it
potentially; for the land was the mother and root of all
the fruits. Therefore he that had that, might grant
all fruits that might arife upon it afterwards, and the
property would pass as foon as the fruits were extant.
1
Bacon's Max.
79,
And where contracts are executory, operating as
declarations precedent, and to the perfection of which
fome new act or conveyance is neceffary to give them
life and vigour, the law admits of them, although
made before any intereft vefted.
As if a man covenant with J. S. by indenture, that
before fuch a day he will purchaſe the manor of D.-and
before the fame day levy a fine of the fame land, and
that the fame fine fhall be to certain ufes which are ex-
[*159.] preffed in the indenture. This indenture * will bind the
land, though it be purchaſed after; becauſe there is a
new act to be done, viz. the fine.
Bac. Max. 80.
Ibid. 79.
Ibid. So.
So if I grant unto J. S. authority, by my deed, to
demife for years the land whereof I am now feifed, or
hereafter ſhall be ſeiſed, and after I purchaſe lands, and
J. S. my attorney, demife them: this is a good demife,
becauſe the demife of my attorney is a new act, and all
one with a demife by myſelf.
But if there were no new act to be done, then it would
be otherwife as if a man fhould covenant with his fon,
in confideration of natural love, to ſtand ſeiſed unto his
ufe of the lands which he fhould afterwards purchaſe,
the uſe would be void. And the reaſon is, becauſe there
is no new act, nor tranfinutation of poffeffion following,
to perfect this inception; for the ufe muſt be limited by
the feoffor, and not by the feoffee, for the feoffee had
no intereft at the time of the covenant.
So, if A. mortgage land, and afterwards covenant
with J. S. in confideration of money which he receives
from
OR AGREEMENTS.
from him, that, after he has entered for the condition [ 160. ]
broken, he will ſtand feiſed to the uſe of J. S. and A.
enter, and this deed be enrolled, and all within the fix
months, yet nothing paffes; becauſe the enrolment is no
new act, but a perfective ceremony of the firſt deed of
bargain and fale; and the law is more ftrong in this cafe,
becaufe of the immediate relation that the inrolment has
to the time of the bargain and fale, at which time the
bargainor had nothing but a naked condition.
So, if there be two joint-tenants, and one of them Ibid.
bargain and fell the whole land, and before the inrolment
his companion die, nothing paſſes of the moiety accrued
by furvivor.
Another obſervation appofite to this part of our ſub-
ject is, that the right of difpofing, being a right com-
menfurate with and correlative to property, cannot be
extended beyond the ability of the party contracting
to difpofe; becauſe it is vain and impertinent to con-
tract about matters which are unattainable. It follows
from hence, that no right can be created, nor obligation
be incurred, from a contract to perform things naturally Bro. tit. faits
impoffible. And, therefore, were one man abfurd [161. ]
enough to covenant with another to build him a large 37. Et vide
Fitzh. Oblig 13.
houſe in a day; or to go to Rome in the fame time; or Puffend. lib. 3.
to overturn Weſtminſter Hall with his finger; or to make fec. 2. Et ibid.
the Thames overflow Westminster Hall; or to drink up note 1. 40 E. 3.
the fea; or touch the fky with his hand, or fuch like
impoffibilities: fuch contracts would be void; and the
party, undertaking to accompliſh them, would be ſub-
ject to no action, even for damages accruing, by reafon
of non-performance.
6. 2.
But we muſt diſtinguiſh here, between things natu-
rally impoffible, and the impracticability of accompliſh-
ing of which must be evident to all parties at the time of
contracting; and things which are not phyfically impof-
fible, but the impoffibility of accompliſhing of which
arifes from circumftances peculiar to the party con-
tracting; for, in the latter cafes, although the main
contract be of neceffity void, by reaſon of the inability
of the perfon undertaking to perform it: as if a man
contract to fell an eftate, the title to which is in ano-
ther perfon; yet, though equity will not enforce a fpe- *
cific execution, that will not difcharge the perfon con- Cornwal!
tracting to fell, from paying damages to the other party v. Williams,
for any loſs he may fuftain by reafon of his being im-
Ꮐ
pofed
Colles's Cộ, int
Parl. 117.
OF THE SUBJECTS OF CONTRACTS
* 162. ] pofed * upon; for, although, where a perſon covenant-
ing, through remiffnefs and negligence, undertakes
an impoffibility, fo far as goes to his capacity of per-
forming, the main undertaking muſt be void; becauſe,
that the thing ftipulated is practicable to the party ftipulat-
ing to perform it, is prefumed as a tacit condition in the
contractor's mind in every agreement; the law, never-
theleſs, upon account of the neglect and default of the
undertaker, binds him to anfwer any damages as a com-
penfation for the non-performance of the thing contracted
for itself, that, as being impracticable to the party, not
requiring any.
Thornborough
v. Whitacre,
2 L. Raym.
1164. S. C.
6 Mod. 305.
Thus where A. in confideration of 2s. 6d. in hand
paid to him, and of 4l. 17s. 6d. to be paid to him upon
his performance of the agreement, contracted to deliver
to B, two grains of rye-corn on the Monday following,
and fo on progreffively, doubling the quantity on every
Monday during the year: it was objected, on an action
on the cafe brought upon this agreement, that it appear-
ed, upon the face of it, to be impoffible, the rye to be
[* 163.] delivered amounting to fuch a quantity, as all the rye
in the world was not fufficient to produce. Sed per cu-
riam, if a man will, for a valuable confideration, under-
take a thing impoffible with respect to his ability, that
will not make the contract void; for though the con-
tract be a fooliſh one, yet, it will hold in law, and thre
perſon ſo contracting ought to pay fomething for his fol-
And the caufe was compromiſed on re-payment of
the half crown with coſts.
And where the term "impoffible," in its phyfical
fenfe, is applied to an agreement, it is to be taken in
its fullest extent; and, therefore, a man may bind
himſelf to do any thing, which is not ftrictly impof-
fible, and the law will hold him to the performance of
it. The legal diftinction, therefore, between a near
and remote poffibility, is not regarded in executory
contracts. And, therefore, if A. covenant with B.
that, in cafe he die without iffue, he will give his lands
in D. to his brother; a court of equity will carry this
agreement into execution, upon the contingency hap-
pening, although a limitation in a deed" after dying
without iffue" would be void. So a covenant to fettle
lands, of which a man has only a poffibility of defcent,
เล
will
OR AGREEMENT S.
will be carried into execution * in equity: for a decree [* 164.]
of that court does not attach upon the intereft in the land
ftipulated about; but the court enforces the performance
of the agreement in fpecie, by its process against the
perfon to compel him to execute it.
And the ſubject of every contract must not only be a
thing naturally poffible to be accompliſhed, but it muſt
alfo be morally fo; for to give an agreement an intrinfi-
cal obligatory force, and fit it to produce an action in
courts of juftice, it is not enough that it be made with
the conſent of both parties, but the ſubject of it ought
to be ſuch a thing, as men have a lawful right and pow-
er of ftipulating about at their pleaſure. Therefore, to
make an agreement truly obligatory, it is requifite that
the party undertaking, have a moral, as well as a phyfical
power, of performing the thing agreed upon. It follows,
that an engagement to do a thing in itſelf unlawful muſt
be void; for it would be abfurd that an obligation,
which derives its fanction from the law, fhould put us
under a neceffity of doing fomething which the law pro-
hibits. All acts, therefore, undertaken againſt legal
conftitutions are, by virtue of the law, null and void
upon two grounds; namely, firft, * becauſe where the
object of a contract is contrary to a man's duty, it may
be prefumed that he did not give his full and free affent,
efpecially if it be to perpetrate any crime, as murder, theft,
or perjury. Secondly, becauſe the law, by forbidding
it, takes from the contractor the power of obliging him-
ſelf to do it, and, by conſequence, prevents the perfon
contracting from gaining any right of requiring it to be
done. It becomes, therefore, neceffary for us in order
to have a clear conception of the law of England as to
the fubject of contracts, to confider in what refpect
matters or things are faid to be againſt law.
Matters or things, againſt law, may be ſaid to be ſo
in two fenfes; viz. Firft, in a proper; Secondly, in an
improper fenfe.
*:
[ * 165. ]
All matters or things, againſt law, in a proper ſenſe, Vide 1 P. Will..
are reducible under three heads.
Firſt, either to do ſomething that is malum in fe, or
malum prohibitum.
Of the first kind, are all contracts that have for
their object fomething forbidden by the eternal immu-
G 2
table
189.
OF THE SUBJECTS OF CONTRACTS.
* 166.] table laws of nature and of God: *as to commit mur-
der, theft, perjury, or the like; which contracts ac-
quire no additional turpitude, from being declared un-
lawful by any legiſlature.
Fitz. tit.
Oblig. 13.
Co. Litt. 206. b.
Alleyn 67.
Therefore if I be under an obligation to pay you 201.
if
you kill or rob fuch a perfon: this is a void obligation,
and creates no right.
The fecond denomination of contracts, void on the
ground of being contrary to law, viz. thofe that are
mala prohibita, applies to things, which, though they
be not mala in fe, or contrary to the law of God and
nature, yet are bad as being against the law of the land:
becauſe they are either repugnant to the welfare of the
ftate; or againſt fome maxim or rule in law; or in con-
tradiction to fome pofitive ftatute.
Among the firit of this defcription, namely, of fuch
as are repugnant to the welfare of the ftate, all contracts
or agreements, that have for their object a restriction of
trading in any particular way in general throughout Eng-
land are ranked; all fuch contracts being void, as mili-
[167.]tating against national policy, one great object of which
is, and ought to be, to encourage and promote trade,
and, confequently, to invalidate all contracts that have a
tendency to check or reftrain the exercife of it.
f.
1. H. 5. 5 b.
Bro. tit. Oblig.
85.
#1 Co. 53. b.
*
Upon the fame principle, namely, to prevent any
fti-
pulations that have a tendency to difcourage trade, every
contract, that has for its object a general reftriction not
to exerciſe a trade within a limited period of time, is
likewife void. Therefore if a dyer enter into an agree-
ment not to uſe his craft for two years, it will be void;
for fuch reftraint must not be total, although it be tem-
porary only.
So if a huſbandınan be bound not to fow his land;
the bond is againſt common law.
#
But the fame objection does not apply, to an agree-
ment, not to trade in any particular place; for the po-
licy of the nation is not concerned in what place a
man exerciſes his calling. And there may happen in-
ſtances wherein fuch a contract may be uſeful and be-
neficial: as to prevent a town from being overstocked
with any particular trade: or in the cafe of an old
man, who, perceiving himfelf under fuch circum-
ftances
OR AGREEMENTS.
ſtances of body or mind, as he is likely to be a lofer [ 168. 1
by continuing his trade, will find it better to part with it
for a confideration, that, by felling his cuftom, he may
procure to himſelf a livelihood, which he might proba-
bly have loft by trading longer.
596. S. C.
Therefore it has been held, that an affumpfit may be Broad. v. Jolly,
&c. Cro. Jac.
maintained upon an agreement not to keep a mercer's
fhop in Newport; for the undertaking is voluntary, and 2 Bulſt. 136.
the party reftrained, may, notwithſtanding, keep a mer- Jones 13.
cer's fhop elſewhere.
Palmer 172.
Chefman v.
But a contract of the latter kind will not be binding, Nainby,
unleſs entered into for a good and fufficient confideration; 2 Strange 739.
for if it be without confideration, it will be void.
*
1 P. Will. 161.
Palm. 172.
And it is beſt that fuch good or fufficient confidera- Alleyn 67.
tion ſhould appear upon the face of the contract; becaufe, Moor 115, 242.
wherever fuch contract ftands indifferent, and, for March 17-
aught that is known, may be either good or bad, the 1 P. Will. 192.
law prefumes it prima facie to be bad. Firft, in favour
of trade and honeft induftry. Secondly, for that there.
plainly appears a mischief, but the benefit can be only
prefumed, and in that cafe, the prefumptive benefit [169. ]
fhall be overborne by the apparent mifchief. Thirdly,
for that the mischief is not only private but public. And,
fourthly, for that there is a fort of prefumption, that it
is not of any beneat to the obligee himſelf; becauſe it
being a general mifchief to the public, every body is af-
fected thereby: for it is to be obferved, that though it
be not fhewn to be the party's trade or livelihood, or
that he had no eftate to fubfift on, yet all the books con-
demn thoſe bonds on that reafon; viz. as taking away
the obligor's livelihood, which proves that the law pre-
fumes it.
But Lord C. Juft. Parker was of opinion, in the
cafe of Mitchel and Reynolds, that where it did not ap-
pear on the face of fuch a contract, whether or no the
contract were made upon good confideration, or were
merely injurious and oppreffive, that might be fhewn
by pleading; though certainly the cafe might be fettled
either way without prejudice.
Mitchel v.
Reynolds,
1 P. Will. 192.
And formerly a diftinction was taken, in the cafe of 3 Lev. 242.
ſuch a contract for reſtraining the trading in a particu- March 77, 193.
lar place, between a contract or promiſe upon good
Moore, Pl. 259
379. 2 Leon.
confideration, 210. Noy 98.
OF THE SUBJECTS OF CONTRACTS
•
[* 170.] confideration, and * a bond or a covenant to pay
Mitchel v.
Reynolds,
1
"
a fum
certain on breach of ſuch undertaking; the former being
held valid, and the latter, even although it were for a
good confideration, void. The reafon for which dif
tinction was, that, in the former cafes, the whole be-
ing to be recovered in damages, it was in the power of
the jury to aſſeſs them according to the nature of the con-
fideration, and the injury received; but, in the latter
cafes, the whole penalty or fum was forfeited, and might
be recovered in an action of debt, whatever might be the
confideration given, or however flight the injury re-
ceived.
But, in the cafe of Mitchel and Reynolds, the diftinc-
P. Will. 181. tion was over-ruled, upon the following grounds: viz.
First, that a bond is a more favourable contract for the
obligor than a promife; becauſe the penalty is a re-pur-
chafe of the obligor's trade afcertained beforehand, and
on payment whereof he may have it again; and a man
may rather chufe to be bound not to do it under a penalty,
than not to do it at all. Secondly, for that, however it
be, it is the obligor's own act. Thirdly, becauſe the
obligor can fuffer only by his knavery; and courts of
* 171.] juftice are not * concerned left a man fhould pay too
dear for being a knave. Fourthly, becauſe reſtraints,
by the custom of particular places, may be enforced with
penalties which are impofed with the parties confent,
nay, where they are impofed by the injured party with-
out the concurrence of the other; then, a fortiori, the
obligor may bind himſelf by a penalty. And, fifthly,
becauſe the queſtion, whether upon the confideration of
the circumſtances the contract be good or not, is matter
of law not fit for a jury to determine.
And, in the confideration of thefe kind of bonds,
entered into with a view to reſtrain perfons from exer-
cifing their trades within particular districts, courts of
equity advert to the object of the bond; making a
diftinction, where the penalty of the bond is merely
intended as a ſecurity for the enjoyment of the object
ftipulated for, and where it is in the nature of affeffed
damages; and, in the former cafe, theſe courts con-
fider the enjoyment of the object as the principal in-
tent of the deed, and the penalty only as acceffory,
and to enfure the damage really incurred; to afcer-
tain which, they direct an iffue to try quantum dam-
nificatus, and, thereby, give the fame remedy upon a
bond,
OR AGREEMENTS.
1
*bond, as might have been procured if the contract had [* 172. ]
refted upon a promiſe only.
Chan, Rep.
This was done by the lords commiffioners in the Hardy v. Mar-
cafe of Hardy and Martin. There A. and B. had been tin, Brown's
Chan. Rep. 419e
partners as brandy-merchants; and, on A.'s quitting the in note. Et vid.
bufinefs, and felling the leafe and good-will of the thop Errington v.
to B. for 300l. B. entered into a bond, in 600l. penalty, Anefly, Bro.
not to fell, for nineteen years, any quantity of brandy 1788. fol. 341.
lefs than fix gallons, within the cities of London and
Westminster, or five miles thereof, nor to permit any
perfon to do the fame, &c. And upon a breach of this
contract, an action was brought, and a verdict given for
the penalty; whereupon the plaintiff filed a bill, praying
that an account might be taken of the actual damage fuf
tained by the defendant, and an iffue directed for that
purpoſe; and that, on payment of the dainages, the de-
fendant might be reftrained from taking out execution
for the penalty of the bond. And it was decreed ac-
cordingly.
The next inftance that occurs to me of a contract Carter 299.
void, as being malum prohibitum, as militating againſt the 2 Inft. 212.
public welfare, is that of a bond, or an agreement for un-
*
lawful maintenance; which is an unlawful upholding in [173]
a caufe depending in fuit by word, writing, countenance,
or deed, and is void as being inequum in lege.
Upon the fame principle a bond, taken by a ſheriff 10 Mod. 159,
for fees, is void: Firft, becauſe the fheriff, by the IP. Will. 195.
common law, was to take no fees at all for diſcharging
the duties of his office; and, therefore, whatever fees
he is entitled to, being given by act of parliament, the
act must be strictly purfued, Secondly, from the appa-
rent probability, that ſheriffs would make ufe of fuch
bonds to fupport oppreffion.
12 Mod. 683.
And if a fheriff, or gaoler, take a bond of a prifoner Plowd. 68.
with condition to be a true prifoner, or to pay for his 10 Co. 100 b.
meat or drink, fuch obligation is void; the law prohi- Vin. Abr. tit.
biting it, as a means that might be made ufe of for Condition U.
purpoſes of extortion.
Pl. 10.
An obligation, entered into with an alien enemy, Bro. tit. Oblig.
has been likewife held to be void; upon the ground, 54.
that a communication between the king's fubjects and
perfons of that defcription, may endanger the public
fafety.
And,
OF THE SUBJECTS OF CONTRACTS
1
A
[* 174. ]
*And, for the fame reafon, viz. that they militate
against the general welfare of fociety, marriage brocage
bonds, given for affiftance in promoting marriages, are
void; for marriage ought to be procured and encouraged
through the mediation of friends and relations, and not
by hirelings; and fuch bonds to match-makers, and pro-
curers of marriage, are of dangerous confequence, prov-
ing the occafion of many unhappy marriages, to the pre-
judice and diſcomfort of the moſt reſpectable families.
And, therefore, the confideration of fuch bonds and fe-
curities have always been difcountenanced, and relief in
equity been given againſt them, even fo long fince as
the Lord Coventry's time, and long before: particularly
in the caſe of Arundell and Trevillian, between whom an
order was made in February, 2 Car. I. in theſe words.
"Upon the hearing and debating of the matter this pre-
fent day, in the prefence of the counſel learned on both
fides, for or touching the bond or bill of 100l. againſt
which the plaintiff, by his bill, prayeth relief; it ap-
peared, that the faid bill was originally entered into by
the plaintiff unto the defendant for the payment of 100l.
formerly promifed unto the defendant by the plaintiff,
[*175.] for the effecting of a marriage between the plaintiff
Arundell v.
Trevillian.
↑ Chan. Rep.
87. et vide Hall
v. Potter Show.
Parl. Ca. 76.
Show. Parl. Ca.
76.
and Elizabeth his now wife, which the faid defendant
procured accordingly, as his counfel alledged. But this
court, utterly difliking the confideration whereupon the
faid bill was given, the fame being of dangerous confequence
in precedent, upon reading three feveral precedents, where-
in the court hath relieved others in like cafes against bonds
of that nature, thought not fit to give any countenance un-
to fpecialties entered into upon fuch contracts. It is, there-
fore, ordered and decreed, that the faid defendant ſhould
bring the faid bill into court, to be delivered up to the
plaintiff to be cancelled.
And a decree, in favour of ſuch a bond, was reverſed
in the houſe of Lords, in the cafe of Hall and others
against Potter, reported in Shower's Cafes in Parliament.
And the fame principles that apply to contracts exe-·
cuted, as bonds or the like, extend likewife to affump-
fits, and executory agreements. On which ground it
is held, that all promifes muſt have three qualities.
First, they must be good and lawful. Secondly, they
muſt
OR AGREEMENT S.
muſt be poffible. And thirdly, they * muſt be certain, [* 176.]
and of fome fignification, and not frivolous and nuga-
tory.
I
Firft; wherever the confideration, which is the 1 Bulft. 38.
ground of the promife, or the promife, which is the
confequence or effect of the confideration, is unlawful,
the whole contract is void.
Thus, where the plaintiff declared, that, in confi- 3 Salk. 97.
deration he (the plaintiff) would diſcharge the defen-
dant from 227. due from him to W. R. his maſter; he
(the defendant) promifed to lay out 40%. in repairing
the plaintiff's barge: this was held a void promife,
and the confideration deemed illegal; for the plaintiff
could not diſcharge a debt due to his maſter.
And if a fheriff, for 10l. promife that a prifoner fhall 10 Co. 76, 102.
eſcape, this promife is not good.
Dyer, 356.
Cro. Eliz. 199.
I Cro. 230.
So, if one that is a miniſter of juftice, promiſe to
do a thing that is unlawful in his office; or another Meade v. Bigot,
promife to fave him harmleſs in fo doing; fuch pro-
miſe to ſave him harmleſs in fo doing; fuch promiſes
are void. And, therefore, where A. had levied a plaint
*in the Stepney court againſt B. and a precept to attach [177. ]
the goods of B. was directed to C. the bailiff.
The
bailiff attached corn in fhocks, and delivered them to
A. to re-deliver them at the next court, A. promifing
to fave him harmleſs. It was held, that no action lay
againſt A. for not faving C. harmlefs, because the at-
taching the corn ſhocks was unlawful.
Stile 11. 2 Bulft.
So a promife, as well as a contract, not to uſe a trade Pragnell v.
in a particular place is void, if it be without a confi- Gofie. Allen 67.
deration; and if it be a promiſe, that has in view a ge- 136.
neral reſtraint from ufing his trade, it is void, though
there be a confideration.
And a promiſe to procure one to be inftituted to a Mackallen v.
chapel, in confideration of 20%. paid to him, being Todderick,
fimoniacal and againſt law, is void.
3 Cro. 337, 351-
But, in cafes where the unlawfulneſs of the confi-
deration againſt which a perfon is indemnified, is un-
known to that perfon, the promife, founded upon it,
will be binding. Therefore, if A. bring B. to a com- Fletcher v.
mon inn, of which C. is the hoft, and affirm to C. Harcourt.
that
Hutt. 53.
Wynch 48.
OF THE SUBJECTS OF CONTRACTS
[* 178.] that he has arreſted B. by virtue of a commiſſion of
rebellion; and in confideration that C. will keep B. as a
prifoner by the space of one night, A. affumes and pro-
mifes to fave C. harmleſs. If B. recover againſt C.
in an action of falfe impriſonment, C. may have an
action againſt A. For though the keeping B. is un-
lawful, it does not appear to C. to be fo.
Arundel v.
652.
And, where a plaintiff pointed out particular goods,
Gardiner, 2 Cro. and defired the fheriff to take them on a fieri facias;
and, in confideration that the fheriff would take them,
promiſed to indemnify him, this was held a good pro-
mife; for, the plaintiff fhewing the goods, and requir-
ing the fheriff to do execution, it was reaſonable that
he ſhould fave the fheriff harmleſs. And a promiſe to
that purpoſe was held to be good.
Bendl. 59, 90,
139.
[ * 179. ]
Co. Litt. 206. b.
Perk. fec. 735
Pl. 6.
Secondly; a promiſe muſt be poffible to be per-
formed.
Therefore a promiſe to go to Rome in three days, is
void. So is a promiſe, that a man in London fhall cover
a houſe in Hampſhire, while he is there in London.
*Upon this ground, if A. the 9th of May, promife
to ftand to the award of B. fo that it be made before
the 10th of May next, and that A. have notice fifteen
days before, the promife is void.
So promifes to be nonfuited, where there is no aç-
tion; or to fpare a piece of ground, where there is
none fuch, are void.
·
But, where the matter promifed may be reduced to
a certainty, though it be upon a condition that is im-
poffible, the promife will be good, and the condition
1 Roll's Abr. 15. Only void. As if A. be indebted to B. in ten pounds,
and C. promife B. that, in confideration that he will
forbear fuing A. for the debt till fuch a day, he (C.)
will, if A. does not pay him upon that day, pay him
upon the fame day; this is a good promife, upon which
B. may have an action against C. For although A.
has the whole day to pay it, and then, it is impoffible
for C. to pay it upon that day, on default of Á.'s not
paying it upon the fame day; yet, the fubftance of
the promife being for C. to pay, in default of A.'s
paying, and the time, limited for C. to pay, being
an impoffible time, the condition, as to the time,
-
is
OR AGREEMENTS.
*is void; and then, if A. omit to pay it at the day, [* 180. ]
C. ought to pay it on requeſt.
2 Cro. 250.
Thirdly. Promiſes we have faid, muſt be certain. 1 Bulſt. 92, 97.
And therefore, if one promiſe to deliver goods, in con-
fideration that the other promiſes to pay money in a
fhort time, this promife is faid to be void, for uncertain-
ty as to the time: fo, if A. promiſe to fell a horſe to
B. for the price that B. fhall value him at, ſuch promiſe
would likewife be void.
But, where a man promiſes that he will pay a fum 10 Co. 75, 102.
of money, and does not fay when, it is a valid promiſe,
and the money muſt be paid preſently.
So, if A. promiſe to deliver B. goods, or make him 10 Co. 77.
a leaſe, or the like, and no time is fixed when it ſhall
be done, the promiſe is certain enough: but the party
has all his life-time to perform it in.
pro-
And if A. be about the buſineſs of B. and B.
miſe A. that he will repay him whatever he lays out;
this is fufficiently certain.
*
Het. 122.
[* 181. ]
Silvefter's cafe,
Again; if A. in confideration that B. will marry
his daughter, promiſe to give with her a child's part; Popham, 148.
and that, at the time of his death, he will give to her
as much as to any of his children, except his eldeſt
fon, this is a good promife; for, though a child's part
is in itſelf altogether uncertain, yet, the promiſe being
to give as much as to any of his children; it is certain
enough, it being averred what the reft of the children
had except the eldeft.
So it was held that, where A. in confideration that Pointer v. Poin -
B. would marry his daughter, affumed and promifed ter, Cro. Car.
to give B. twenty French pieces, this was a good pro- 194.
mife; for this, according to the uſual ſpeech at that
time, fhould, it was faid, be intended French crowns,
which were the common coin of France, and known
here.
And if there be an affumpfit to enter into an obli- 1 Syderf, 270.
gation for performance of a thing of certain value,
without mentioning in what fum, it fhall be intended
according to the value.
So where, in an affumpfit, the plaintiff declared, 1 Keb. 56, 65.
that
OF THE SUBJECTS OF CONTRACTS
1
[* 182.] that the defendant, in confideration, * &c. fix months
Pleas v. Palfry.
* Syd. 270.
1 Keb. 776.
Hob. 69.
I Brownl. 4.
1 Mod. 70.
[ * 183. ]
Per Lord Manſ.
39.
before the return of king Charles the ſecond, affumed
to pay 20%. to the plaintiff, if Charles Stuart (hould be
king of England within twelve months thence next fol-
lowing: this was adjudged a good promife, and that it
fhould be taken according to the fubject matter, viz.
That the king that was then out of poffeffion, fhould
be in poffeffion within twelve months.
1
But where the plaintiff declared that, whereas there
was a communication between the plaintiff and defen-
dant concerning the bark of certain wood, and that,
thereupon, it was agreed, that the defendant fhould
give to the plaintiff ten fhillings per feam for all the
bark of fuch wood as the plaintiff thould cut; and that
the defendant affumed and promiſed to have ready upon
a certain day, articles purporting the agreement, and
an obligation for performance thereof, &c. the decla-
ration was held not to be good; becauſe it was not
faid in what fum the obligation was to be, and a cer-
tain fum could not be intended, becauſe the number of
feams were altogether uncertain.
*
All contracts and agreements, the objects of which
militate against the principles of morality and public
decorum: as is the cafe with all fuch as are entered
into, to give effect to corrupt purpoſes; are by the law
of England, void, upon two of the grounds before
alluded to, namely, as being repugnant to the welfare
of the ſtate, and alſo againſt that maxim or rule of
law, which prohibits every thing which is contra bonos
mores. Therefore, all contracts that are entered into
with a view to evade the law, being in their nature
inmoral, are effentially vicious, and cannot be fupport-
ed.
Therefore, if a perfon, who wanted to be made a
field, Cowper bishop, converfing with a perſon who had most intereft
at court, upon the ſubject of a fee that was then vacant,
were to fay, I will let you fo much (naming a confide-
rable fum) that I have not the bishopric. Such a wa-
gering contract, though innocent in itſelf, if unaccom-
panied with any finifter view, yet, being a mere colour
to diſguiſe the real intention of the party, namely, to
purchaſe the bishopric, which is an illegal act, would
be clearly and manifeftly corrupt, and therefore void.
Upon
OR AGREEMENTS.
* Upon the fame principles a wager, entered into [184. ]
merely as a colour to cover ufury, cannot be recovered by Ibid. 40.
action at law; for the moment the truth appears, the
contract, whatever fhape it may affume, will remain
to be governed by the fame rule, as if the parties had
expressly entered into the illicit and corrupt agree-
ment itſelf.
;
And if a wager were made with one of the judges,
or one of the lords who are to decide upon a cauſe
this operating as a bribe, would render the contract
void.
And the fame objection would apply to a wager, laid
with a counſel or attorney on the adverfe fide, to in-
duce him to act treacherously in the cauſe.
But a wager laid between the plaintiff and defen- Jones v. Ran-
dant in a cauſe, "whether a decree of the court of dal, Cowper
Chancery would be reverfed or not on an appeal to the 37-
houfe of Lords," the parties being upon equal terms,
and the contract entered into without fraud, and with
a view only of fecuring fomething to the appellant in
cafe the decifion went againſt him, was held to raiſe a
valid contract; as not being prohibited by any pofi- [* 185. ]
tive law, nor againſt any principle of found policy, or
legal maxim.
*
All contracts that have a fraudulent object in view,
are, upon the fame grounds, void, both at law, and in
equity.
Therefore where two futlers to feveral regiments of Willis v. Bald-
militia (who as ſuch were entitled to certain forage of win, Dougl.
last edit. 450.
cats and hay for divers horfes daily out of the king's
magazine belonging to the camp) entered into an
agreement with the perfon who furnished and ſupplied
the magazine, that the futlers would abftain from tak-
ing the forage, or fuch part thereof, as they fhould
think fit, and would leave the fame to be the property
of the perfon fupplying them, and that he fhould pay
and allow them 9d by the ration, for every ration to
which they fhould be entitled, and which they ſhould
fo leave at the magazine: this was held to be a corrupt
agreement between the parties, as having for its ob-
ject the cheating of government, by taking a compo-
fition for the forage of the whole number of horſes al-
lowed, whether they were kept or not, which was a clear
fraud upon the public.
Thefe
1
OF THE SUBJECTS OF CONTRACTS
[* 186. ]
Treatife of
Equity 24.
* Theſe principles, likewife, extend to all contracts
of an unfair nature in refpect of their influence on third
perfons, although otherwife as between the parties to
them; becauſe, if their object be to impofe on third
perfons, the parties to them cannot have remedy at law
or in equity, for they are immoral.
Therefore a bill in equity for an allowance of atten-
dance at auctions, to enhance the price of goods, will
be difiniffed with cofts; for equity will never give coun-
tenance to demands of fuch a nature.
Neither would fuch an agreement fupport an action
at law.
The third head of exception, above alluded to, in-
cludes all contracts refpecting things prohibited from
being objects of contract by itatute law.
Of this nature are all bonds given in oppofition to
the third branch of the ftatute of the 23 H. 6. cap. 10.
made in avoidance of obligations taken in other manner
than is expreffed in that ftatute. Therefore if a ſheriff
[* 187.] let one, who is in his cuſtody for ſuſpicion of * felony,
Bro. tit. Oblig. go at large upon his fingle obligation; this obligation
37 H. 6. 1. b.
10 Co. 100. b.
37. Fitz. tit.
Oblig. 4.
Bro. non eft
factum 14.
is void.
So if one be in the cuftody of the fheriff by a capias
7 E. 4. 5. Pl. 15. upon an indictment for a trepaſs, and the fheriff let
Fitzh. Debt. 80. him to mainprize; and he enter into an obligation to
a third perfon, upon condition to keep his day, &c.
and this be done for the furety of the Sheriff: This obli-
gation is void; becauſe the laft branch of this ftatute.
prohibits any ſheriff from taking an obligation for any
caufe aforefaid, or by colour of their office, but only to
themselves; and then, inaſmuch as it is taken to another,
10. Co. 100. b.
Danby v. Heth-
cot, 10 Rep.
100. b. Vide
Cro. Eliz. 66.
it is void.
And this ftatute extends as well to promiſes made un-
der fuch circumftances, as to obligations. And there-
fore if a fheriff or gaoler, in confideration of the eaſe
and enlargement of any perſon that is within his ward,
take a promiſe to fave himfelf harınlefs; fuch a pro-
miſe (although the ftatute ſpeaks only of an obligation
with condition) being in equal mifchief, is void; the
words of the ftatute, viz. "And if the ſheriff takes
any obligation in any other form, that it fhall be void,”
being
ÖR AGREEMENTS.
being * fufficiently comprehenfive to bring ſuch a pro- [* 188. ]
mife within the equity of it.
So every agreement, contract, and fecurity for more
than legal intereft is void, by virtue of the ftatute of
the 12 Ann. ftat. 2. cap. 16.
736.
Therefore where L. declared againſt the acceptor Lowe, et al.
W. on a bill of exchange, as indorfees of A. and B. v. Waller,
1 Term Rep,
to whom the bill was ftated to have been indorſed by
C. the drawer and payee; and the defence was, that
the bill was given upon an ufurious contract between
A.-B. and W. whereby more than legal intereft was
fecured. It was infifted, in anfwer to this allegation,
that the bill was indorfed to L. for a valuable confide-
ration, and without notice of the fuppofed ufury; and
contended, that, although it ſhould appear that the
original tranſaction was ufurious, ftill W. was anſwer-
able to them. But it was determined, that no action
could be maintained on a note fo circumſtanced; for
that the bill, in fuch cafe, was void at firft; and, then,
a contract, void in its origin, could not be rendered
valid by any thing done to it afterwards.
*So an agreement by a bankrupt, or any perſon on
his behalf, to pay a fum of money to a creditor for
figning his certificate, is void under the 5 Geo. 2. c.
30, fec. 11. The following cafe illuftrates this propo-
fition in both inftances.
[ * 189. ]
A. having committed an act of bankruptcy, B. his Smith v. Brom-
chief creditor, took out a commiffion against him; ley, Dougl. last
edit. 696. in
but, afterwards, finding that no dividend was likely to note.
be made, refuſed to fign his certificate. Afterwards,
on frequent application, and earneſt entreating, made
by the bankrupt to O. a tradefman in town (who was
an intimate friend of B. who lived in Cheshire) he (the
tradefman) got O. to write to B. feveral times, and he
at laſt prevailed upon B. to fend him (O.) a letter of
attorney, empowering him to fign the certificate, which
O. would not do, unleſs the bankrupt, or fomebody
for him, would advance 401. and give a note for 20%.
more, which fum and note on O's. figning the certifi-
cate for B. D. (who was the bankrupt's fifter) paid and
gave to O. accordingly, who, thereupon, gave a re-
ceipt for the money, promifing to return it, if the cer-
tificate was not allowed by the chancellor. The certi-
ficate
OF THE SUBJECTS OF CONTRACTS
}
[*190.] ficate was allowed, and * O. paid the money over to
the creditor. And, on an action for money, had and
received for D.'s ufe, it was contended on the part of
B. that if D. had become fecurity for her brother the
bankrupt, before the act of bankruptcy, B. might have
received the money of her without any imputation;
and that, if a third perfon, afterwards, voluntarily
paid what ſhe might before have become bound for,
without any injury to the bankrupt's other creditors,
there was no iniquity in the creditor's taking the mo-
ney, fo as it did not amount to his whole debt. But
Lord Mansfield was of a different opinion. His lord-
ſhip ſaid, that it was iniquitous and illegal in B. to
take, and, therefore, it was fo in him to detain this
40%. If a man made ufe of a means in his own power
to extort money from one in diftrefs, it was certainly
illegal and oppreffive; and, whether it was the bank-
rupt or his fifter that paid the money, it was the fame
thing. The taking money for figning certificates, was
either an oppreffion on the bankrupt or his family, or
a fraud on his creditors. It was a thing wrong in itſelf
before any provifion was made againft it by ftatute;
for, if the bankrupt had conformed to all the law re-
quired of him, and had fairly given up his all, the
[* 191.] * creditor ought in juftice to fign his certificate: but,
on the other hand, if the bankrupt had been guilty of
any fraud, or concealinent, the creditor ought not to
fign, for any confideration whatever. If any near re-
lation was induced to pay the money for the bankrupt,
it was taking an unfair advantage and torturing the
compaffion of the family: if it was the money of the
bankrupt himſelf, it was giving one creditor his debt to
the exclufion of the others, and a fraud upon them.
His lordship, therefore, thought it neceffary, for the
better fupport and maintenance of the law, to allow the
action; for no man would venture to take, if he knew
he was liable to refund. Where there was no temp-.
tion to the contrary, men would always act right.
Jones, et al.
affignees of
Gardiner v.
And agreements of this kind are void under the ſta-
tute, although the money, .ftipulated to be paid, be for
the benefit of all the creditors.
Thus where the plaintiffs, as affignees of a bank-
rupt, were entitled to the equity of redemption of
Barkley, Dougl. 1490. bank ſtock, which was in the mortgage to L.
for fecuring a fum of money lent by him to the bank-
rupt, and the defendant was defirous that this equity
laft edit. 685.
of
OR AGREEMENTS.
+
?
CC
of * redemption ſhould be affigned to L. by the plain- [* 192. ]
tiffs, and that they fhould execute to L. a general re-
leaſe, of all claims and demands which they, as affig-
nees, had upon him; an agreement was entered into
between the affignees and the defendant, "That, on
"the bankrupt's having his certificate confirmed by
"the lord chancellor, and the affignees affigning to
"L. or any perfon he ſhould appoint, ſo far as in them
lay, the equity of redemption of the capital ftock
"mortgaged to L. and alfo executing to him a gene-
"ral releaſe of all clans and demands, which they,
"as affignees, had on him, the defendant fhould pay,
"and promiſed to pay (four months after the certi-
"ficate fhould be confirmed by the chancellor, and
"on the plaintiffs affigning the equity of redemption,
"as aforefaid, of the ſaid ſtock to L. or any perfon
"he fhould appoint, and executing and delivering
"fuch general releaſe) the fum of 611l. to the plain-
"tiffs, for the benefit of the creditors of the bank-
"rupt." The bankrupt's certificate was allowed and
confirmed, and an affignment of the ſtock prepared and
tendered to the defendant for execution. But the de-
fendant refuſed to execute it, faying, that he acted only
ว
*
}
as attorney for L. who would never pay the money. [* 193. ]
It was proved on the trial, that C. (who was one of
the plaintiffs, and was a moft obftinate creditor, and
by much the largeft) was perfuaded to fign, by being
told, that, if he did not, the money would never be
received. It was therefore objected, that this was an
agreement to ſecure the payment of money due from
the bankrupt, in order to induce a creditor to fign his
certificate, and, therefore, void under 5 Geo. 2. c.
30. fec. II. A verdict was given for the plaintiffs,
with 611. damages, but fubject to the opinion of the
court on a motion for a nonfuit. It was contended on
behalf of the plaintiffs, that this agreement was not
within the ſenſe or intent of the ftatute. The object
of that act, it was faid, like that of all other bank-
rupt laws, was to procure an equal diftribution of the
bankrupt's effects among all his creditors; that this ge-
neral object ought to be kept in view in conftruing
them all; and that the agreement in this cafe, tended
to fecure an equal diftribution, and, therefore, pro-
moted the policy of the ftatutes. Sed per Lord Manf
field. It ftruck me, in this cafe, at Guildhall, that the
agreement was with the affignees acting for all the cre-
ditors, and the benefit to go to all the creditors. I
thought
VOL. I
H
OF THE SUBJECTS OF CONTRACTS
(*194.] thought * that, between a friend of the bankrupt and
all the creditors, any agreement might be made; they
might agree to fuperfede the commiffion; they might
agree to compound. But upon fuller confideration I
am fatisfied; and the court is of opinion, that this
cafe is within the letter of 5 Geo. 2. c. 30 and within
the reafon of it. Great corruption and oppreffion might
arife from a combination of all the creditors, to exact
conditions for figning the certificate.
P. Will. 620.
But Lord Parker refuſed to extend this ftatute by
conſtruction to a cafe, which prima facie, feems to be
within the ſpirit, although it clearly is not within the
Lewis v. Chafe, letter of the act. In the inftance alluded to, a bank-
rupt endeavoured to be diſcharged with the confent of
four-fifths of his creditors in number and value, and a
creditor preferred his petition to the lord chancellor
againſt the allowance of the certificate, upon which
the bankrupt, in confideration of the creditor's with-
drawing his petition, gave him a bond for his whole
debt. And Lord Parker was of opinion, that this was
a cafe out of the words of the ftatute; for here the ob-
ject was, to withdraw a petition againſt the allowance
[*195.] of the certificate, and not to induce the creditor to
fign the certificate, which was the mifchief the ftatute
was pointed at: and his lordfhip difmiffed a bili to be
relieved from the bond with cofts.
Norton v.
Again, all contracts for infuring lottery tickets are
made void by the 14 Geo. 3. cap. 76.
Secondly, a contract is unlawful, in a proper fenſe,
if the object of it be, to induce the omiffion of fomething,
the doing of which is a duty in the perfon with whom it is
made.
As if a fheriff make an under-fheriff, provided that
Simes, Hob. 2. he shall not ferve executions above twenty pounds, without
S. C. More 856. his special warrant; this provifo or agreement will be
void; for, though a fheriff may chufe not to make an
under-ſheriff at all, or may make him at his will, and
fo remove him, yet he cannot leave him an under-
fheriff and yet abridge his power.
Ibid.
And in fuch cafes the law is the fame, whether the
contract be contained in a covenant or in a bond; there
fore, on its being argued in the laft-mentioned cafe,
that the reſtraint of executions above twenty pounds
grew
OR AGREEMENTS.
*
grew not
on the part of the fheriff, but on the part of
the under-fheriff by his covenant, which might ſtand
good, notwithſtanding the repugnancy of his office;
it was anſwered, that ſuch a covenant was void as againſt
law and justice: for fince, by being made under-fheriff,
he was liable by law to execute all proceſs, he could
not, any more than the fheriff himſelf, covenant not
to execute proceſs without another's fpecial warrant :
for that would be to deny or delay juſtice.
Thirdly, a contract or agreement is unlawful, in
the proper fenfe, if it be to encourage unlawful acts or
omiffions.
Therefore, if the proprietors of a newſpaper were to
give the editor a bond of indemnity against any in-
dictment or action, to which he might, thereafter, be
ſubjected by reaſon of publiſhing libels, or the like ;
fuch bond would be void.
[ * 196. ]
So if one enter into an obligation to the fheriff to Fitzh. tit. Oblig.
bear him harmleſs if he embezzle a writ. If the fhe- 13.
riff do ſo, and be damaged by the embezzling, yet he
fhall not take advantage of the obligation; for it is
void, becauſe * he ſhall not be protected in doing an [* 197. ]
act contrary to law.
2 Bulft. 213.
Again, if one apply to a gaoler, and make him a Beathman
promife grounded upon this confideration; namely, v. Martin,
that, in confideration that he will fuffer one charged in
execution for debt to go at large, &c. the debt not be-
ing fatisfied, he ſhall be paid fuch a fum of money.
This confideration is againft law, and, confequently,
the promiſe, founded upon it, is void by the common
law, and gives no caufe of action.
Bro. tit. Oblig.
And if the fheriff let one to mainprize who is not M. 37 H. 6. 1 b.
bailable, and take an obligation, it will be void by the Fitz. Oblig. 4.
courſe of the common law; for, in fuch cafe, the 37. I Lev. 209.
letting him go at large is a tort, and a thing contrary 10 Rep. 100. b.
to law, and, then, the obligation is made to aid the Dyer 324.
ſheriff in doing a tort, in which caſe it is void.
So if a man will take a bond, or other fecurity, to Dive verf.
be faved harmleſs of fuffering one to efcape; or for en- Maningham,
larging one out of priſon againſt law; or to fave one
harmleſs if he kill fuch an one, or do fuch a trefpafs:
H 2
Plowd. 60, 64,
Et vid. Dyer
118, 119.
Thefe 2 H. 4. fol. 9
Cro. Car. 353
354.
OF THE SUBJECTS OF CONTRACTS
[* 198. ] Thefe * contracts, upon the fame principle, will be
M. 2 H.4. 9.
Cadet
void.
Again, where the plaintiff in replevin had a wither-
niam out of the common pleas, by force whereof one of
the fheriff's bailiffs took four oxen of the defendant's
in the name of withernam, and afterwards delivered
them to the defendant again, and the defendant became
bound to him to keep him without dainage concerning
theſe oxen the obligation was held to be void; for
the writ of withernam was, capias in withernam, &c. et
ea detineas quo ufque, &c. So that the fheriff ought to
have kept the cattle, and not to have delivered them to
the party; and then the delivering them to the party
was a tort, and the obligation was made to aid him in
that tort, and, therefore, void.
Upon the fame principle, namely, that the contract
has a tendency to encourage unlawful acts, a wager be-
tween two people, that one of them, or that a third
perfon, fhall do a criminal act, will be void.
Thus, if I lay you a wager that you do not beat fuch
* 199. 1 a perſon, and you lay that you will, fuch a wager
will be void; because it is an incitement to a breach of
the peace.
Norton v.
Simes furra.
Hob. 12, 13.
Bro. tit. faits.
So, if the ſubject matter of a wager were a violation
of chastity, or an immoral action," as if one betted
that he would feduce fuch a woman," courts of juftice
would entertain no action upon fuch a wager; becauſe
it is an incitement to immorality.
But there is a diftinction where a bond is to fecure
the obligee againſt a breach of covenants in an inden-
ture, fome of which covenants are void, and fome of
which are good, where the covenants are void at com-
mon law, and where by the ftatute law; for, in the
former cafe, the bond will be good for the covenants
that are lawful, and void as to the other covenants ;
but, in the latter cafe, the whole bond will be void.
Thus, in the before-mentioned cafe of Norton
againft Simes, though the covenant from the under-
fheriff, as to not ferving executions above twenty
37. Moore 856. pounds without the ſpecial warrant of the fheriff, was
void; yet, the covenant that the under-fheriff ſhould
diſcharge and fave harmleſs the ſheriff, of all efcapes of
Plowd. 68.
prifoners
OR AGREEMENTS.
!
*
prifoners, that ſhould be arreſted by him, or any [ 200. ]
bailiff or officers appointed by him, was held to be
good, and the bond as to that valid; it being lawful
for the fheriff to take bond of the under-fheriff, to dif-
charge and fave him harmlefs of eſcapes upon arrefts
made by himself: for, fince the fheriff transfers his
authority unto the under-fheriff, it is reaſonable that
the former fhould take fecurity of the latter, to per-
form all the duties juftly and faithfully to himſelf and
others. But if a fheriff take a bond for a matter againſt
the ſpirit of the 23 Hen. ó. c. 10. and alfo for a debt
due, the whole bond is void. The reafon for which
diftinction is, that fuch is the letter of the ftatute: for a
ftatute muſt be ftrictly purfued; but the common law
diftinguiſhes according to common reaſon, and, hav-
ing made that void, which is againft law, permits the
reft to ſtand.
And here it is neceffary to obſerve, that, although
contracts or agreements, refpecting things which the
law prohibits to be the fubjects of contracts, create no right,
and, confequently, occafion no obligation on either
fide, yet the law fuffers them, in fome inftances, ne-
vertheleſs, after they have been carried into * execution, [* 201, ]
to prevail contrary to its prohibition; for, being exe-
cuted; they are valid between the parties, although the
law will not give its aid to affiſt either party in carrying
them into execution. For the parties are looked upon
to treat together as if there were no law about the mat-
ter, and fo to renounce the benefits which might ac-
crue by the law to either of them. And therefore,
though they do ill to engage themfelves, they ought in
confcience to fuffer their engagement, being executed,
to continue in force, and neither of them ought to break
it without the affent of the other. As for example; if
game with a man contrary to the law, and loſe, I
ought not to have recourfe to law to recover my mo-
ney, nor ufe any forcible way to regain it, if there be
no cheat put upon me by him that has won it,
I
".
In this view of the matter, prohibitions, enacted by
pofitive law in England, in reſpect of contracts, are of
two forts. Firft, fuch as are founded upon general
reaſons of policy, and public expedience. As, where
the act is in itſelf immoral, or a violation of the ge-
neral laws of public policy. Secondly, fuch prohibi-
tions as are intended to protect weak or neceffitous
men
OF THE SUBJECTS OF CONTRACTS
*
* 202.] men from being over-reached, defrauded, or op-
preffed. In the former cafes, both parties offending
are equally guilty; in the latter, only one of them.
The law, therefore, in the former cafes, allows no
action for the relief of the party who has performed his
part of the contract, after he has affented with full and
entire liberty the law of England, in this cafe, cor-
refponding with the maxim of the Roman law, “ That
if an agreement be diſhoneft, both in refpect to him
that gives, and him who receives, the firſt cannot re-
quire any thing again, becauſe in this cafe the poffef-
for has the advantage." Therefore, if one pay money
fairly loft at play, and do not fue for the recovery of it
within the time prefcribed by the ftatute of Anne, c.
14. he is barred.
Vide Digeft. lib.
12. tit. 5. de
conditione ob.
turb. & injuft.
caufam leg. 8.
2 Burr. 1012.
Ca. T. Talbot.
41.
Vide Browning
per 790.
So if a man, in cafes of bribery, pay money by way
of a bribe, he cannot recover it in an action; becauſe,
both plaintiff and defendant are equally criminal. The
prohibition in the lottery act, ftat. 12 Geo. 2. cap. 63.
falls within this diftinction.
*
Upon the fame principle no action lies for a lottery.
v. Morris, Cow-office-keeper for money paid by him to a perfon, in
[203.] confequence of his having infured a ticket; this fpe-
cies of contract being prohibited by the 17 Geo. 3.
cap. 46 for the money being confcientiously due in
honour and honeſty, and paid, it cannot be recovered
back; both parties are in pari delicto.
:
Money paid upon a gaming policy is in the fame
Lowry v. Bour- predicament. It cannot be recovered back.
dieu, Doug. laft
edit. 468.
Thus, where L. had lent 2600l. to H. on a common
bond, and, while he was at China, got a policy of in-
furance underwritten by B. and others. which was on
the following terms: "At and from China to London,
beginning the adventure upon the goods from the load-
ing thereof on board the faid fhip at Canton in China,
&c. upon the faid fhip, &c. from and immediately fol-
lowing her arrival at Canton in China, valued at
26,000/ being the amount of 'H.'s common bond, pay-
able to the parties as fhall be deſcribed on the back of
this policy, and it bears date the 6th day of December
1775; and in cafe of lofs, no other proof of intereft to
be required than the exhibition of the faid bond;
warranted free from average, and without benefit
of falvage to the infurer." At the head of the in-
furance
OR AGREEMENTS.
الضفة
* furance was written, " on a bond as above expreſſed."[204. ]
H. returned from China, and arrived fafe, none of the
events infured having happened. Afterwards the in-
fured brought an action for the return of the premium,
on the ground, that the policy being without intereft, the
contract was void. But it was held by three judges
againſt one, that the policy was a gaming policy pro-
hibited by the ftatute of 19 Geo. 2. c. 37. and both
parties equally guilty of a breach of the law; that the
rule, therefore, of melior eft conditio poffidentis, was ap-
plicable to the cafe, and the plaintiffs, the riſk being
run and over, could not recover the premium.
But in the latter cafes, namely, where contracts or Vide Browning
tranſactions are prohibited by poſitive ftatutes, for the v. Morris, Cow-
fake of protecting one fet of men from another ſet of per 791.
men; the one, from their fituation and condition, be-
ing liable to be oppreffed or impofed upon by the other,
there the parties are not in pari delicto; and in furthe-
rance of theſe ftatutes, the perfon injured, after the
tranfaction is finiſhed, may bring his action, and de-
feat the contract. For inftance; by the ftatutes of Bofanquet v.
ufury, taking more than 5 per cent. being declared [205.]
illegal and the contract void, the borrower, if he pays Dashwood, ca.
the illegal intereft, may recover the exceſs of intereſt
on an action for theſe ftatutes were made, to protect
needy and neceffitous perfons from the oppreffion of
ufurers and monied men, who are eager to take ad-
vantage of the diſtreſs of others; whilft they, on the
other hand, from the preffure of their diftrefs, are
ready to come into any terms, and with their eyes open
not only break the law, but complete their own ruin.
Another inftance of this kind is the beforementioned
claufe in the ftat. 5 Geo. 2. cap. 24. fect. 17. to pre-
vent bad practices on bankrupts, who have not ob
tained their certificates, and who, for the fake of ob-
taining it, will come into any terms themſelves, and
cauſe their friends to come into any terms, that a hard
creditor may chufe to impofe. Now, on this ftatute,
if the bankrupt, or a relation, pay money to a credi-
tor, who, in confequence figns the certificate, and then
the bankrupt renews his trade, and receives every ad-
vantage that he can derive from having obtained his
Certificate: he may, notwithſtanding, bring his action,
and
T. Talbot 38.
OF THE SUBJECTS OF CONTRACTS.
[* 206. ] and * recover the money back; and this, though he
[*207. ]
Walker v.
Chapman,
cited Dougl.
laft edit. 471.
Supra.
Note. The fta-
tute 9 Ann. c.
14. makes the
winning above
rol. at one fit-
ting a nullity.
has acted contrary to a law made for his own benefit:
for, in theſe caſes, the one party is urged by mere ne-
ceffity to pay what the other ought not in juſtice to
demand; therefore the maxim of volenti non fit injuria,
does not apply to him; and then, he falls within, the
reafon of the law, that, in order to prevent oppreffion
and advantage from being taken of the neceffity of
others, has made it penal for him to take.
But, if fuch illegal contract remain in an executory
ftate, and be not executed; there, if the party who
has paid money as a confideration for fomething illegal
to be done, wifhes to refcind the contract, he may do
fo, for, fo long as nothing is done by either party,
each of them is free to recant; becauſe it is to be pre-
fumed, that they have not acted with mature delibera-
tion. As if a merchant has promiſed another to furniſh
him with contraband goods, and they agree for the
price, either may refufe to ftand to this bargain, which
ought not to have been made. But then it can only be
done on the terms of reftoring the party to his original
fituation.
* Thus, where a fum of money had been paid in
order to procure a place in the cuſtoms, and the place
had not been procured; the party, who had paid the
money, brought his action to recover it back, and it
was held that he ſhould recover; becauſe the contract
remained executory. So, if the infured, in the before-
mentioned cafe of Lowry and Bourdieu, had brought
his action before the rifk had been over, and the voyage
finiſhed, they might have had a ground for their de-
mand; but they waited till the riſk (ſuch as it was,
not indeed founded in law, but refting on the honor of
the inſurer) had been completely run.
And in fome cafes the illicit nature of the ſubject
renders the contract void, and in others it invalidates
only the fecurity. This diftinction feems to have ori-
ginated on the manner of wording the ftatutes againſt
gaming, as applied to money loft, and money lent at
the time and place of play.
The ftatute of 16 C. 2. c. 7. f. 3. enacts, as to mo-
ney, exceeding 100%. loft, and not paid down at the
time of lofing it; "that the lofer fhall not be compel-
lable
OR AGREEMENT S,
lable to make it*good, but the CONTRACT and CON-
TRACTS for the Jame and for every part thereof, and all
and fingular judgments, ftatutes, recognizances, mort-
gages, conveyances, affurances, bonds, bills, fpeci-
alties, promifes, covenants, agreements, and other
acts, deeds, and fecurities whatfoever, fhall be utterly
void, &c." But the words CONTRACT and CON-
TRACTS for the fame, feem to have been induſtriouſly
avoided in the ſtatute of the 9th Anne, c. 14. the words
of that ſtatute being, "that all notes, bonds, bills,
judgments, mortgages, or other fecurities, &c. for
money won or lent at play, fhall be utterly void.
w
L
* 208.1
2 Burr. 1077.
This difference in the wording of theſe ftatutes, Robinfon
and the cafes decided thereupon, was held by the court v. Bland,
of King's Bench, in the cafe of Robinfon and Bland,
to warrant that court in determining, that, although,
by theſe ftatutes, as well a contract for money loſt at
gaming, as the fecurity given for fuch money was
void, and, confequently, no action could be main-
tained for it; yet, that, as to money fairly lent. at play
the fecurities only were void, the contract remaining
valid; the genuine, true, and found conftruction of the
9th of Anne being "to underſtand it as intended to
prevent any fecurities being taken for money won at
play, or lent to play with, when the borrower has loſt
all his ready caſh; but not to make the contract itſelf
void, where the money is fairly and bona fide lent,
though at the time and place of play." And, accord-
ingly, it was held, that an action upon the cafe on af
fumpfit on the implied contract, lay to recover money
lent by the plaintiff at the time and place of play, and
for which a bill of exchange was then given, the bill
itſelf being a void fecurity.
*
[ * 209. ]
The annuity Act appears to me, upon a full con- 17 Geo. 3. c. 25,
fideration of its feveral clauſes, to furniſh ample
grounds for a fimilar conftruction. And, indeed, if
the province of courts be to expound not to make the
law, I cannot fee any principle upon which this ftatute
can be conftrued otherwife. For every fection, ex-
cept that which relates to the purchaſing annuities from
infants, expressly confines itſelf to the fecurity without
meddling with the contract. Ex gratia, The first claufe
requires, that "a memorial of every deed, bond, in-
Atrument, or other affurance, whereby any annuity or
rent-charge ſhall from thenceforth be granted for one or
more life or lives, &c. fhall, within twenty days of the
execution
!
OF THE SUBJECTS OF CONTRACTS
[* 210.] execution of fuch deed * bond, inftrument, or other affu
rance, be inrolled in the high court of Chancery; and
that every fuch memorial fhall contain the day of the
month and the year when the dead, bond inftrument, or
other affurance bears cute, and the names of all the par-
ties, and for whom any of them are truftees, and of all
the witneſſes, and fhall foc forth the annual fum or fums
to be paid, and the name of the perfon or perfons for
whofe life or lives the annuity is granted, and the con-
fideration or confiderations of granting the fame;
otherwiſe every fuch deed, bond, inftrument, or other
affurance, all be null and void to all intents and pur
pofes." And in the third fection it enacts, "That in
every deed, inftrument, or other affurance, whereby any
annuity or rent-charge fhall thereafter be granted, or
attempted to be granted, the confideration really and
bona fide (which fhall be in money only) and alſo the
name or names of the perfon or perfons by whom, and
on whofe behalf, the faid confideration, or any part
thereof, fhall be advanced, thall be fully and truly fet
forth in words at length; and in cafe the fame fhall not
be fully and truly fet forth and defcribed, every fuch,
deed, inftrument or other affurance, fhall be null and
void to all intents and purpoſes." The fourth fection
provides, "That if any part of the confideration be
returned to the perfon advancing the fame, or in caſe
confideration, or any part of it, is paid in notes, if any
of the notes, with the privity and confent of the per-
fon advancing the fame, fhall not be paid when due, or
fhall be cancelled or deftroyed without being firft paid;
or if the confideration or any part of it, is paid in
goods; or if any part of the confideration is retained on
pretence of anſwering the future payments of the an-
nuity, or any other pretence; in all and every of the
aforefaid cafes, it fhall and may be lawful for the per-
fon, by whom the annuity or rent-charge is made pay-
able to apply to the court, in which any action is
brought for payment of the annuity on judgment entered,
by motion to ftay proceedings on the judgment or
action; and if it fhall appear to the court, that ſuch
practices as aforefaid, or any of them, have been fued,
it fhall and may be lawful for the court to order the
deed, bond, inftrument, or other affurance to be can-
celled, and the judgment, if any has been entered, to
be vacated."
[ * 211. ]
*
In each of the foregoing claufes of the ftatute it is
obfervable,
OR AGREEMENTS.
*
*
obfervable, that the attention of the legislature is [ 212. ]
cloſely confined to the deed, bond, inftrument, or other
afſurance, without any allufion whatever to the con-
tract itſelf.
But in the fixth clauſe of the ftatute the phrafeology
is altered, the fecurities are no longer adverted to, but
the legislature enacts, "that all CONTRACTS for the
purchaſe of any annuity with any perfon being under
twenty-one years, fhall be and remain utterly void, any
attempt to confirm the fame, after ſuch perſon ſhall
have attained the age of twenty-one years notwith-
ftanding." And then it proceeds to make any tran-
factions with infants reſpecting annuities penal.
Now we have ſeen that the ground on which courts
of law, in the conftruction of the ftatutes againft gam-
ing, have held that there is a clear diftinction between
the contract and the fecurity, is the different manner
of wording the ftatutes as applied to money loft and
money lent at play. Surely that argument applies with
equal, nay with greater force to the Annuity Act, the
claufes in which act are, as we have feen, differently
worded and therefore require a different expofition.
The ftatutes in both cafes; namely, thofe against
*gaming, and that refpecting the purchaſe of annui- [213]/
ties; begin with a preamble alluding to the miſchiefs
that arife from the practices meant to be regulated. In
both cafes the laws are highly remedial and penal.
They reſpectively provide for different mifchiefs, arif-
ing from fimilar cauſes, according to the degree in
which they affect fociety. The legiſlature forefaw that
there was little reafon to apprehend any danger from
third perfons advancing money to thoſe who are at play,
when any fecurity taken for it would be void under the
ftatute. But nothing less than annihilating the contract
promiſed to be a reftraint on the warmth, zeal, and
paffion of the parties actually engaged. The legiſla-
ture, thereof, fuited the remedy to the urgency of
each cafe. The fame train of reaſoning applies to an-
nuities. The purchafer, when he reflects that unleſs
the requifitions of the ftatute are compiled with, his
fecurities will be void, will not eafily be induced to dif-
penſe with thoſe forms. The feller, likewife, will
not find it worth his while to pay for fuch a risk. The
cafe will therefore rarely, if ever, occur but from over-
fight in the follicitor. The mifchiefs, therefore, arif-
ing to adult perfons are not much to be apprehended,
the
OF THE SUBJECTS OF CONTRACTS
[* 214. ]
the * remedy that will refult from cancelling the fecu-
rities is adequate to the miſchief. But the cafe is
otherwife as to annuity contracts with infants. All
dealing on contract with them is mere gambling. It
muft therefore be upon terms the inoft extortionate,
or the risk cannot be paid for. Depending upon ho-
nor only, the paffions and feelings of the man are en-
gaged, and in the unguarded moments of youth fuch
contracts would generally be confirmed. To the con-
tract, therefore, the legiſlature points the remedy, and,
to place fuch contracts in as critical a ſtate as poffible,
the legiflature has not only declared them void, but
alfo put it out of the power even of the parties them-
felves, at any fubfequent time, to give them ftability;
fince, to be equal, they must be founded on terms de-
ftructive to one of the parties, which is a mode of deal-
ing univerfally prevented in all well regulated focieties.
If thefe obfervations apply, the diſtinction taken on the
laws againſt gaming, between vacating the fecurities.
and annulling the contract, according to the degree of
mifchief incident to the tranfaction, is equally appli-
cable to the cafes of annuities; and the terms in which
215.] the legiflature has provided the remedy not only war-
rants, but, for the fake of analogy in * legal proceed-
ings, requires that it fhould be taken. And, if fo, it
appears to me, that, whatever be the nature of the
neglect of the circumftances impoſed by the ftatute,
or whatever be the nature of the misfeazance (if it be
not that of treating with perfons under years of difcre-
tion) it will only affect the fecurity, leaving the con-
tract valid, and, if capable of proof without the pro-
duction of the ſecurities, capable alſo of being inforced
by a ſuitable action.
Shove v. Webb,
1 Term Rep.
732.
I ſhould here obferve, that the opinion of the court
of King's Bench, in the cafe of Shove and Webb, con,
firms, in exprefs terms, thefe principles, although the
inference, drawn from them therein, feems to me, to
militate totally againft the conclufion they neceffarily
furniſhed in that cafe. The facts were as follow: A,
had granted an annuity fecured by bond and judgment,
and an affignment of half pay as an enfign in the army
by way of collateral fecurity for the payment of it.
Thefe inftruments had been fet afide in the court of
Common Pleas, becauſe part of the confideration, for
which the annuity had been granted, was money due
from the grantor to the grantee for goods previouſly
fold
OR AGREEMENTS.
+
fold by the grantee* to the annuitant, which fact was [* 216. ]
not specified in the memorial as registered (the memorial
ftating the whole confideration as paid in money).
The refidue of the confideration was paid in cash, at
the time of granting the annuity. Upon the fecurities
being fet afide, the purchaſer, to recover the confide-
ration paid for the annuity, brought an action of af-
fumpfit for goods fold and delivered; money paid, laid
out, and expended; money had and received, &c. ;
and had a verdict for the whole fum, as well the value
of the goods, as the money paid as the confideration
of the annuity; but fubject to the opinion of the court
on the queſtion, whether the legiſlature meant to make
it illegal to contract for the ſale of an annuity for any
other confideration than that of money. And whether
if any part of the confideration was for goods delivered,
it fo far tainted the tranfaction, that, if the fecurity
were fet afide, no right of action could ever arife as
for goods fold? and Aſhburſt, Juftice, delivered the
opinion of the court, "That the goods, in this cafe,
being really and bona fide fold, the contract was STRICT-
LY legal, and not within the miſchiefs intended to be
remedied by the act; although the SECURITIES were
properly fet afide and vacated, by reafon * of the con-
fideration not being truly ftated." But the conclufion
drawn from theſe premiſes ſeems to me to be erroneous;
for the judge proceeds thus: "And taking that to be
the cafe, when the fecurity was vacated, the original
contract revived (i. e. the contract for fale of the
goods).
Now how the vacating the fecurities could revive
the original contract for goods fold and delivered, &c.
when the contract, by which the debt due for them
was made part of the confideration for the purchaſe of
the annuity, was declared " to be a contract STRICTLY
legal, and not within the mischief intended to be re-
medied by the act," to me is inexplicable, unless it
can be fhewn that the contract and the fecurities are
convertible terms; which poſition the court itſelf denies
in this very judgment, by cautiouſly diftinguishing be-
tween the contract and the fecurities, holding the for-
mer ftrictly legal, the latter clearly void.
Perhaps it may be contended, that, in thefe cafes,
the rendering the fecurities void, renders the contract
fo eventually; upon the ground that the parol contract
[ * 217. ]
is
OF THE SUBJECTS OF CONTRACTS
{* 218. ]
is determined by being put into writing under feal.
And then, that the writings being void for the reafons
above-mentioned, the contract will be virtually fo.
Though it appears to me, that the question now in
difcuffion may be determined in favour of the argu-
ment, that the original annuity contract by parol is
fubfifting, notwithstanding the propofition put by way
of argument were true, on another ground equally
clear and decifive, which will hereafter be mentioned;
yet, as, fhould the ground alluded to fail, then the
truth or falsehood of this propofition will become ma-
terial, I fhall inveftigate the principle of it here, and
fhew that it will not hold, if applied to a cafe, where
there is a parol agreement, originally valid in law, and
fubfifting independent of the written fecurities : for it
is perfectly clear, that the mere fact of putting a ver-
bal contract or agreement into writing under feal does
not determine it, or render it void, but, on the con-
trary, leaves the party, interefted therein, at liberty to
purſue his remedy to enforce performance, either on
the parol contract or the written inftrument at his elec-
tion. This propofition will be beft illuftrated by an
example. A. inſtituted a plea of debt againſt * B. for
10. before the mayor of London, and declared upon
contract for goods fold, the value of which amounted
to that fum. B. waged his law; to which A. replied,
that, according to the cuſtom of London, if the plain-
tiff could fhew a paper or parchment, written and un-
der feal of the defendant, which proved the contract,
the defendant would be oufted of his law. And he
fhewed a writing, under feal of the defendant, to that
effect, and prayed that the defendant ſhould be ouſted
of his law. And it was contended that the plaintiff
fhould be barred, for that he ought to have brought
his action upon the writing, and not upon the con-
tract. But Prifot was of a contrary opinion, for he
faid that the contract was not the worſe becauſe of the
writing, and he compared it to the cafe of one bailing
goods by deed indented, who might afterwards bring a
5. writ of detinue for them without counting upon the in-
denture, becauſe it was only a writing proving the bail-
And he faid the law was the fame if a man
made a contract by deed indented; for, there, he was
not obliged to count upon the deed indented, for that
the contract did not determine upon the deed indented,
[219.
M. 39 H.6. 34
Bro. tit. Def.
Pl. 68.
27 H. 8. 22.
2 H. 6. 9. Pl.
ment.
but
OR AGREEMENTS.
*
but the party might elect how he would bring his [220. ]
action (to which pofition all the juftices agreed). So,
he faid, in the cafe put, the contract was not determin-
ed by the indenture under feal, which was an evidence
of the contract, &c. And, therefore, that the action
would lie notwithſtanding that objection.
It may, perhaps, be objected, that the laft-menti-
oned opinion arofe upon a queftion put to the juftices
by the recorder of London (as was the cuſtom in thofe
days) and is, therefore, not to be efteemed a judicial
decifion of it, but the fame point has been repeatedly
brought before the court. As the fubject which indu-
ces the citation is important, I fhall mention one
other cafe.
[
* 221. ]
An Abbot and his predeceffors, had ufed time out Hil. 21 H. 7. 5
of mind to find a chaplain to a church belonging to ano- Pl. 2. Bro. tit.
ther man. Afterwards, by deed indented, reciting Grant 57. Ibid.
tit. Prefcrip. 35.
that, whereas a diſpute had arifen between them re- Et vid. 1 H. 6.
fpecting this matter, &c. and for that the Abbot had 8. 2 H. 6. 9.
ufed, &c. ut fupra, the Abbot and the convent cove-
nanted and granted that they would find a prieft, &c.
And an action was brought for * a non-feazance, in
which the plaintiff, in his count, made title by pre-
fcription. Hereupon it was contended by the defen-
dant's counfel, that the action did not lie, becauſe the
preſcription was determined by the deed indented. But
it was held by Frovicke, Chief Juftice, and Fisher,
Vavifor, and Buller, Juftices, that the prefcription
remained, and the action well lay; for the deed was in
affirmation of the preſcription, and of the fame thing,
and not contrary to it, and the deed recited the pre-
fcription, ſo that the intent of the deed was to fupport
the preſcription, and not to take it way.
To apply theſe cafes (which, though of an ancient
date, yet, if applicable, muſt be confidered as un-
doubted authority, unlefs later decifions in fubverfion
of them, or of the principle contained therein can be
produced) to the queftion under our confideration. If
the conftruction of the Annuity Act herein contended
for, viz. that it applies, in the cafes alluded to, to the
fecurities, not to the contract, be the right conftruc-
tion (and it appears to me, that every argument which
fupported that conftruction of the Gaming Act, ap-
plies
OF THE SUBJECTS OF CONTRACTS
{ * 222. ] plies * with greater force to the Annuity act) the con-
fequence of making void the fecurity will be only to
make the deeds a nullity, and to leave the original con-
tract, which fubfifts independent of them, and which
they were intended to enforce in full effect between the
parties. For instance, to apply our arguments to the
cafe of Shove and Webb. The fecurity there was by a
bond and judgment, with a charge upon half pay by
way of collateral fecurity. In fuch a cafe, the bond
recites a contract before fubfifting, and is conditioned
for the performance of it. The deed, making the
charge, is upon the fame plan; that alfo recites the
contract and the bond, and imports to be intended for
further fecuring the performance of it. So that all the
fecurities recite, corroborate, and confirm the original
annuity contract, as a contract fubfifting and indepen-
dent of either of them. Upon this head, Frovicke,
Chief Juft. in the cafe before cited, Hil. 21 H. 7. fol.
6. a. puts an inftance exprefsly in point; for he fays,
that it had been adjudged in that reign, where one had
an annuity by preſcription, and alfo a grant by deed
that the grantor would pay it, and that, for default of
*223. 1 payment, the grantee fhould diftrain; the annuity
fhould nevertheleſs continue, i. e. that the rentcharge,
granted by deed, fhould not determine the perfonal
charge by preſcription, but the one fhould be confi-
dered as an additional fecurity for the other.
But perhaps it may be faid, that the cafe of Shove
and Webb is diftinguiſhable from thoſe here cited to
illuftrate the principle, " that the putting a verbal
contract or agreement into writing, does not deter-
mine or render it void," upon the ground that the
grantor in this cafe entered into a bond, and, thereby,
determined the original contract by parol: which is a
ground of diſtinction taken by Prifot, arguendo in the
cafe before cited, M. 39 H. 6. But the anſwer is ob-
vious, and applies equally to all the fecurities taken
and not regiſtered. The ftatute enacts, "that the
deed, bond, inftrument, or other affurance, fhall be
null and void to all intents and purposes." And no one
would be heard, who fhould contend that a deed,
bond, inftrument, or affurance, ipfo facto null and void
to all intents and purposes, can be effective to the pur-
pofe
OR AGREEMENT S.
pofe of determining a contract independently and [* 224. ]
previously fubfifting. If this reafoning be juft, the
confequence of cancelling the fecurities in the princi-
pal cafe was, not to revive the original contract for the
hofiery, but to revive the original parol contract for the
annuity, which remained in fufpenfe until the bond
fhould become valid by the confideration being regiſter-
ed, or be cancelled purſuant to the act.
But fhould it be adjudged that a bond, fo predica-
mented, that is an effentially null and void bond, deter-
mined the original annuity contract, the effect of ſuch
a decifion could only be, to take fuch a caſe out of the
principle of construction here attempted to be fup-
ported, leaving all cafes in which there is no bond
given, to depend upon the principles which have been
ftated and ſupported upon unquestionable authority.
Indeed, inftances may be puts in which the con-
tract is fo dependent upon the fecurity, that the can-
celling the latter will render the former unattainable.
This will happen, for inftance, in all cafes, where the
annuity is granted to iffue out of land only, and the
* grantee is reftricted from charging the perfon of the [* 225. ]
grantor for in that cafe (the ftatute of frauds having
declared, that contracts refpecting lands fhall be in
writing) if the writing be cancelled, the contract,
which cannot be made out except by the fecurity, will
become inoperative.
Then, if there be a diftinction between the caſe of
an annuity chargeable upon the perfon of the grantor,
and an annuity charged upon his eftate without refe-
rence to the perfon, as to the validity of the contract
independent of the fecurities; the queftion will be,
what fhall be the fituation of the parties in the latter
cafe, in which the proof of the contract falls to the
ground, with the fecurities which uphold it. And in
order to decide this queſtion, we muſt advert to what
was the object of the legiflature in this act of parli-
ament. The end of this law, in rendering void fecu-
rities made under circumftances prohibited by the ftatute,
is not only to avoid what has been done, but to prevent
the thing prohibited, by throwing difficulties in the
way of the purchaſer. With this view it ftrips him of
I
the
OF THE SUBJECTS OF CONTRACTS
[* 226. ] the benefit of any fecurity *which he has gotten, if
the circumſtances of the tranſaction be not conforma-
ble to the requifitions of the ftatute. But it applies
the remedy to the fecurities which are to be cancelled,
leaving the offender to make out his contract as he can.
Notwithſtanding the interpofition of the ftatute, the
contract ftill remains a fale of an annuity in fubſtance.
If the purchaſer fail in making it out, he has to thank
himſelf for it. It is his own neglect. It does not
therefore follow, even in this cafe, that becauſe the
contract is incapable of proof, the purchaſe money
fhall be recoverable upon an affumpfit, on the ground
that the cauſe or confideration upon which the money
was paid has failed, for that is not the cafe. The
confideration fubfifts, although the fecurity be can-
celled upon, application to a court authorized to vacate
it. The contract, in the eye of the law, continues,
although there be a defect in the proof of it, by reaſon
of the ftatute of frauds interfering and preventing parol
evidence of it.
*
If the law, by an implied affumpfit, gave the gran-
tee a remedy for his principal, the ftatute would be of
227. little effect in either cafe. *Men would be very in-
different whether they complied with the requifitions
of the ftatute, if the only confequence of neglecting
them were the ſetting afide the annuity, the annuitant
being left debtor for the money advanced. This would
make the ftatute felo de fe; for it is feldom that thofe,
whofe neceffities drive them to contract upon ſuch ex-
orbitant terms, are in a condition to reftore the money
they have received. The embarraſſment meant to be
thrown upon the grantee, would, if that were required,
fall upon the grantor. Perhaps it may be faid, that
this would tend to deprive the grantee of both his prin-
cipal and his annuity, which will be more than an ade-
quate puniſhment for the neglect of the requifitions of
the ftatute. It may be fo; but the legislature have
done this, not directly, but confequentially. If the
contract can be made out without the fecurities, the
law does not deny the parties the benefit of it. But
fince it is executed in a manner that the law does not
approve, it will not help the parties, but leaves them
in the ftate it finds them in, denying the contractor its
protection, which he has not deſerved.
Indeed
OR AGREEMENTS.
Indeed, in the caſe of Shove and Webb, a* diftinction [* 228. ]
is attempted between an annuity, defective by a ne- Supra.
glect as to the regifter of the confideration, and an an-
nuity, defective by reafon of the confideration being
of a nature the ftatute prohibits; and it is faid, that
the latter cafe is in the teeth of the ftatute; from
whence we are to infer, that the former is not fo. But
the ftatute makes no fuch diftinction. It declares in
the 1ft claufe, that the memorial fhall fet forth the
confideration or confiderations, otherwife the deed,
bond, inftrument, or affurance, ſhall be null and void.
And in the 4th clauſe it enacts," that if any part of
the confideration fhall be returned to the perfon ad-
vancing the fame, or in cafe the confideration, or any
part of it is paid in notes, if any of the notes, with the
privity and conſent of the perſon advancing the fame,
fhall not be paid when due, or fhall be cancelled or de-
ftroyed without being firft paid, or if the confiderati-
on, or any part of it, is paid in goods, &c. in all and
every of the aforefaid cafes, it ſhall and may be lawful
for the perfon by whom the annuity or rentcharge is
made payable, to apply to the court, &c. by motion,
to stay proceedings on the judgment or action; and,
if it fhall appear to the court that fuch practices, or
any of them, have been ufed, it fhall and may be [*229. J.
lawful for the court to order the deed, bond, inftru-
ment, or other affurance to be cancelled, and the judg-
ment, if any has been entered, to be vacated." The
ftatute, in both inftances, applies to the fecurities,
and, in effect, inforces the fame confequence. It fur
nifhes no ground from whence to infer, that the legifla-
ture intended to make the one cafe more penal than the
other.
That a contract ſhould fail of effect for want of the
party, claiming a benefit by it, being capable to ſub-
ftantiate it by legal evidence, is not unuſual. If a man
lend another money, without taking a ſecurity for it,
or calling in evidence to witness the tranfaction, and
the borrower prove difhoneft, the lender has no remedy
either at law or in equity. If a man take a bond, and
there be no witneffes to the execution of it, he will be
incapable of recovering thereupon for want of proof of
a delivery. Yet, in fuch cafe, he can have no reljef
either at law or in equity. This ftatute then, in re-
fpect of the neglect or malfeazance of the vendee, puts
him in the fame fituation as he would have been,
had he taken no fecurity, but reſted on a parol con-
urity,
2
tract.
}
OF THE SUBJECTS OF CONTRACTS
[ * 230. ] * tract. If he has any evidence competent to prove
the contract, he may recover thereupon. If he is de-
ficient in refpect of fuch evidence, it is his own fault.
But the payment of the money being upon the foot of
the contract, which contract the law leaves untouched,
it ſeems a neceffary confequence that no new contract
can be inferred repugnant to the original contract,
which an implied affumpfit to restore the confideration
would be.
[* 231.]
20.
The conftruction here contended for, agrees with
the words of the act, is conſonant to that put upon a
fimilar legiſlative interpofition againſt gaming, and
will effectually prevent the practices meant to be pro-
hibited; for as no man will lend money on fuch a parol
contract, fo neither will he place himfelf in a fituation
which will expofe him to the fame confequences as if
he had done fo. But if the conftruction of the fta-
tutes be that the contract is void, and, confequently,
that the money paid upon it may be recovered on an
implied affumpfit (which, if the cafe of Shove and
Webb is rightly determined, muſt be the cafe in all the
inftances provided againſt by the ftatute, that not hav-
ing made * the fhade of a diſtinction between them,
except by making the fecurities abfolutely void for a
fault in the inrolment, but voidable only in the other
inftances) a man may fafely adventure any of the things
prohibited by the act; as the worst that can happen to
him is, to have the fecurities fet afide, and his money
returned, which, if he has received any part of his an-
nuity, will have lain at that intereſt.
fti-
Vide 21 H. 7. If the fubject of a contract or agreement be felf evi-
dently uſeleſs, as tending to no confequence when put
in execution, this will render the contract or agree-
ment void. And the motive to confider it fo will be
ſtill ſtronger, if it be of fuch a nature as, if not per-
formed, it brings no lofs to prejudice to the party.
pulating it, and if fulfilled, will create trouble or damage
to the performer; becauſe, engagements of this kind
produce no obligation: for how can a man have a
right of requiring me to put myself to any charges, or
any toil, in doing a thing which fhall profit him no-
thing and it is, indeed, againſt reafon to under-
take an action which can produce no good, and
may produce evil. This feems to be one ftrong
ground
OR AGREEMENTS.
Vide Puff. lib,
ground for the diftinction between a contract to re- [* 232. ]
ftrain a man from trading generally, and a contract to
reftrain him from trading in a particular place; for
what can it fignify to a tradeſman in London, what ano-
ther tradefman does at Newcastle? In this refpect our
law is agreeable to the Roman law; for that law would 5. c. 2. fec. 3.
not inforce fuch contracts by an action. As if any
perſon had agreed not to wash his hands, or comb his
head, or change his linen for fuch a time, or to abftain
from eating for feveral days, or the like.
So any contract which, in its object, wantonly af-
fects the intereft, or the feelings of a third perfon, and
thereby disturbs the peace of fociety, will be reprobat-
ed in a court of juſtice; nor will any action be retained
thereupon.
Therefore a wagering contract, that a woman has Cowper 735.
committed adultery; or that an unmarried woman has
had a baſtard, would be void; becauſe fuch wagers are
not only an injury to a third perfon, but difturb the
peace of fociety. Therefore the law will not permit
third perfons, merely for the purpoſe of laying a wager,
thus wantonly to expofe others to ridicule, and libel [* 233.]
them under the form of an action.
Upon this ground it was held, that no affumpfit Da Cofta v.
would lie, upon a wager between two indifferent per- Jones, Cowper
fons, as to the fex of Monfieur the Chevalier D'Èon ; 729.
for although, whenever a queftion arifes upon a real
matter of right, it fhall be tried, notwithſtanding the
intereft of third perfons, not parties, may be affected
by it; yet two indifferent perfons fhall not, by a wa-
ger between themſelves, injure a third by trying, in
an action upon a wager, whether he is a cheat and im-
poftor; nor attempt to fhew in fuch an action that he
is a woman, and be allowed to fubpoena all his intimate
friends, and confidential attendants to give evidence to
expofe him.
And an action upon a contract that wantonly tends to
the introduction of indecent evidence, will not be retain
ed in a court of juſtice.
As if a wager were laid that a woman had a defect in
a particular part of her body; or that fuch a perfon was
an hermaphrodite, or had a particular diforder; or as
to the cafe why a woman did not breed, or the like,
[234]
1
3
[* 235.]
Of the general Nature of Contrats or
Agreements.
A
LL contracts or agreements are diftinguifhed, in
the law of England, into Excuted or Executory.
A contract or agreement is faid to be executed,
when two or more perfons make over their right to one
another, and thereby change the property therein,
either preſently and at once, or at a future time, upon
fome event that fhall give it full effect, without either
party trufting to the other: as where things are bought,
paid for, and delivered; or where a man has lands un-
der fome engagement, and difpofes thereof from the
time fuch engagement ceaſes.
Contracts executed do not, in general, retain the
name of Agreements, but are denominated by fome
particular term applicable to their respective natures.
As, a Sale, a Grant, a Leafe, an affignment, a Mort-
gage, or the like.
*
Executory contracts or agreements, according to
the ordinary acceptation of the term Agreement, are
fuch contracts as reft on articles, memorandums, parol
promiſes, or undertakings, and the like, entered into
preparatory to, and introductory of, more folemn and
formal alienations of our property or free-agency. All
promiſes or agreements to give, grant, fell, &c. be-
long to the former clafs: all promifes or undertakings
to do or fuffer, belong to the latter clafs.
A contract, therefore, is faid to be executory, either
when one party performs and the other is trufted: as a
loan of money, on a promiſe to ſecure it by a mortgage
of land; or when neither party performs, but each
trufts the other: as a promiſe to take in charge in re-
fpect of a premium to be given; or a covenant to make
a leafe in confideration of a fum ftipulated to be paid
for it.
Contracts or agreements are applicable to all rights,
real, perfonal, or mixed, which may lawfully become
the ſubject of traffic.
All
OR AGREEMENTS.
着
​.
~
*
All contracts and agreements, whether executory [* 236. I
or executed, may be confidered: firft, as exprefs, con-
ftructive, or implicative. Secondly, as fimple and
abfolute, or conditional. And, thirdly, as written or
unwritten.
Firſt, exprefs contracts or agreements are where each
party ftipulates in pofitive terms, what is agreed to be
done or omitted.
Conftructive contracts, or agreements, are thofe
where the law, in expounding the inftrument upon
which the contract arifes, raiſes a contract of a diffe-
rent nature from that which, prima facie, the inftru-
ment imports.
Thus, though a grant or leafe of tythes to a parifhi- 668. Yelv. 131,
Cro. Ja. 137,
oner for a year is not good, qua fuch, without a deed; 132. Lev. 24.
yet the law will give effect to it, though it be in form SirT.Raym. 14.
of a leafe, under the notion of its being an agreement
to be difcharged from tythes: which is an agreement
by way of contract by retainer, and not a leaſe.
Skinner 113.
[*
And the recitals in a deed for transferring property,
reſpecting the grantor's eftate in * that property, [ * 237. ]
amount, by conftruction of law, to an agreement that
the grantor is entitled as is ftated in fuch recitals.
«Ε
Swern v.
Thus where A., by his deed poll, reciting that
Clerke,
WHEREAS HE WAS poffeffed of certain lands for Leon 152.
years for a certain term, affigned the fame, by good
and lawful conveyance, to J. S. with divers covenants,
articles, and agreements in the faid deed contained,
which were or ought to be performed on his part:
the queftion was, whether this recital, viz. « Where-
as he was, &c." was an article or agreement within
the meaning of the condition of a bond which was
given to perform covenants, &c. And it was held,
that it was an agreement, becauſe in ſuch caſe the af-
fignor agreed, that he was poffeffed of it; for, every
thing contained in the deed was an agreement, and not
only that which the affignor was bound to perform as
if a man recited by his deed, that he was poffeffed of a
certain intereft in certain land, and affigned it over by
the fame deed, and thereby covenanted to perform ali
agreements in the deed; if he were not poffeffed of fuch
intereft, the covenant would be broken. And it was
clearly agreed, in the principal cafe, that if the party
had
OF THE NATURE OF CONTRACTS
*
[*238. ] had not that intereft by a good and lawful conveyance,
the obligation was forfeited.
Graves
White,
So a recital in articles made upon a marriage, "that'
whereas the defendant was to pay to the plaintiff one
2 Freem. 57. thoufand pounds for the marriage portion of the wife,
Et vid. ibid. 3. the plaintiff covenanted to fettle, &c. was held to be a
good ground to fupport an action of covenant, and the
chancellor faid, that court would decree the 1000l. to
be paid.
2 Eq. Ca. Abr.
652. I.
Cro. Eliz. 657+
Plowd. 67.
Upon the fame principle, an exception in a deed
indented is held to be an agreement: as if one let land
to another, excepting a particular cloſe; here the ex-
ception is an agreement; for the words of an indenture,
put in the generality, bind both parties, and are taken
to be the agreement of each party.
But diftin&tions have been taken as to the effect of
* Leon. 117. fuch an agreement; for it is faid by Montague, Juft.
in Dier and Manningham's cafe, that if one make
a leafe for years of a manor, except a clofe, &c. ren-
dering annually a rent, &c.-and the leffee is bound to
perform all grants, covenants, and agreements, con-
tenta, expreffa, et recitata in the indenture, and the
[* 239.] *lefice difturb the leffor in the occupation of the cloſe
excepted, he has forfeited the obligation: for, when
the grantor excepts the clofe, the grantee is content
with it, and that the leffor fhall occupy it; and then
this is an agreement; and the words, "contenta, ex-
preffa, et recitata," do each of them go, as well to the
exception as to the reft.
Cro. Eliz. 657.
But the above cafe, as put by Montague, has fince,
1 RollRep.102. in the cafe of Lady Ruffel and Gulwel, been denied to
11 Rep. 50 b. be law, fo far as goes to the application of the obliga-
tion to the excepted part, as parcel of the premiffes;
for, although it is agreed that an exception is an agree-
ment of the leffee, that the land excepted ſhall not
pafs by the demife; yet, it is faid, there, not to be any
agreement, that he fhall not occupy.
Lady Ruffel
v. Gulwel,
Cro. Eliz. 657
S. C. Moore,
Pl. 747-
The cafe of Ruffeland Gulwel, arofe on an action of debt
for 500l. conditioned for the performance of all covenants,
articles, and agreements in fuch an indenture (betwixt
the plaintiff on the one part, and the defendant on the
other part) on the part of the defendant to be performed,
In the indenture was contained a claufe, "that the
plaintiff
OR AGREEMENTS.
plaintiff let to the defendant certain lands, called E. [240]
Paftures, excepting a clofe called E. Clofe." The de-
fendant pleaded, that he had performed all the cove-
nants, &c. The plaintiff affigned for breach, that
the defendant entered into the clofe excepted, and
thereof diffeifed her, et ft, &c. The defendant de-
murred in law. And, on the part of the plaintiff, it
was contended to be a breach; for that the exception
was an agreement, that the leffor ſhould retain it, be-
caufe an indenture is the deed of every of the parties;
and that, therefore, the disturbance of the plaintiff
from the occupying thereof, was
was a breach of the
agreement. And of that opinion was Gawdy, Juſt.
But Popham and Fenner were of a contrary opinion.
They agreed, that an exception was an agreement of
the leffee, that the land excepted fhould not paſs by
the demife; but they ſaid, that it was not any agreement
that he ſhould not occupy. And, afterwards, this cafe
was at another time moved again, and Popham ſaid,
that he had conferred with the other juftices, and the
greater part of them agreed, that this exception was not
fuch an agreement, as was within the intent of the conditi-
on of the obligation; and that the obligation was not for-
feited by this disturbance.
* And Coke, Chief Juftice, in the cafe of Stampe v. [ * 241. ]
Lifford, expreffed himself to be of the fame opinion, 1Roll Rep.10%.
and denied the cafe 'as put in Plowden to be law.
But it was admitted, in the cafe of Ruffel and Gul- Supra.
wel, that fometimes an exception in a leafe amounted
to an agreement that ſhould charge the leffee: but that
was, where he agreed, on his part, that the leffor
ſhould have a thing dehors, which he had not previouſ-
ly. As if the leffor let lands, excepting a way, or any
other profit a prender; this it was faid would amount
to an agreement by the leffee, that the leffor ſhould
have the way or profit. And if the leffee were obliged
to perform all the covenants and agreements in ſuch an
indenture, and he disturbed the leffor, he would, in
this cafe, forfeit his obligation; for here the leffee
would have an intereft in the thing excepted.
So in debt upon bond where the condition was, Stevenson's
that, whereas the plaintiff had covenanted with the de- cafe, 1 Leon,
fendant, that it fhould be lawful for the defendant to 324.
cut down wood for fire-boot and hedge-boot, without
making any wafte, or cutting any more than ne-
ceffary and the plaintiff affigned the breach in this
covenant
OF THE NATURE OF CONTRACTS
}
*
242.]
Cro. Eliz. 657.
Dyer 57.1
21 E. 4. 6.a.
Pl. 18.
1 Vent. 10:
1 Roll 519. 10.
**
covenant (which was in truth the covenant of the
plaintiff) that the defendant had committed waste in
felling wood, &c. and the condition was to perform
all covenants and agreements: exception was taken,
becauſe the condition ought to extend but to covenants
to be performed on the part of the leffee: but the ex-
ception was not allowed; for it was the agreement of
the leffee, although it was the covenant of the leffor.
So a reſervation of rent is as an agreement of both
parties on the part of the leffor for the refervation, and
of the leffee to take the land at the rent propoſed.
Thus where a leafe for years was made by indenture,
Styles 407,431. yielding and paying fo much rent to the leffor: the
words "yielding and paying," though not the words
of the leffee, but the words of the leffor,' enjoining the
leffee to pay the rent, were held to make an agreement
of the leffee to pay the rent.
Cro: Ja. 399.
Pl. 5. Poph.
136, 137.
1 Roll Abr.
[* 243.]
518. C. I.
Hob. 132.
Ibid,
So theſe words in an indenture of leafe," and the
faid leffee, his executors and affigns, fhall, from time
to time, repair the faid houfe, and ſhall leave it ſo re-
* a clear agreement between
paired, &c." amount to
the parties; and bind the leffee, by his acceptation of
the leaſe.
It has been determined, upon the fame principle,
that a leafe, without impeachment of waste, gives the
leffee the trees growing upon the eftate demiſed.
So, if the leffor covenant and grant," that it ſhall
be lawful for the leffee of a term certain, to take and
carry away, to his own ufe, fuch corn as ſhall be grow-
ing upon the land at the end of the term;" although
thefe words are not words of gift of the corn, but,
merely, that it ſhall be lawful for the leffee to take it
for his own uſe, yet are they fufficient to transfer the
property.
And the reafon on which thefe cafes are fo under-
flood, feems to be, that where perfons are agreed up-
on a thing, and words are expreffed or written to make
the agreement, although they are not apt and uſual
words, or whether they proceed or not from the pro-
per party, yet, if they have fubftance in them tending
to the effect propofed, and the proper party agrees to
them,
•
}
othing
OR AGREEMENTS.
them, the law will give them effect, by conſtructi- [* 244. ]
on, according to the intent and common ufe of fuch
words; for the law always regards the intention of the
parties, and will apply the words to that which, in
common prefumption, may be taken to be their intent:
and the agreement of the minds of the parties is the
only thing the law refpects in contracts; and, there-
fore, fuch words as exprefs the intent of the parties,
and have ſubſtance in them, are ſufficient.
Fitz. Bar. 157.
'
And, therefore, if a man be bound in an obligation, 21 H. 6. 51.
which is indorfed, that the obligee wills and grants, Bro. cond. 58.
that if the obligor ftands by the arbitrament, order, 1 Leon. 246.
and judgment of A. and B. then the obligation fhall be
void it is no ground of objection, that the words are
the words of the obligee, and not of the obligor, but
the condition is good; for there is the fubftance of a
condition, and the intent of the parties appears.
And a covenant by parol, takes effect as an agree-
ment or contract.
6.
*
H.
34. 14 H. 6.
Action on the
done in perfor
Thus, wherever a man covenants by parol, without Fitz. nat. brev.
fpecialty, to do any thing for a certain fum of money,[ 245. 1
341.3 H. 6. 36.
or the like; there, if he do not according to his co- Bro. tit. Action
venant as if he either omit to do, or does in a bad fur le Cafe, Pl.
manner the thing covenanted about, an action upon 7.10.220.5.
the cafe lies; becauſe the covenant is a contract, or 15.18 H. 6.
agreement between them.
20 b. ViderH.
As if one covenant to cover in my hall or my houfe 4. 33. Pl. 60.
within a certain time, and then neglect fo to do, by cafe does not
reafon whereof the timber is damaged by the rain, an lie on covenant,
action on the cafe lies againſt the covenantor. So if
So if where nothing
one covenant to amend certain ditches on my land, mance.
and neglect fo to do, by reaſon of which the ewes, who 3 H. 6. 36. b.
ought to feed within the ditch, come upon my land Br. Ad. fur le
and deſtroy my corn, a good action on the cafe lies for this Cafe 7. Con-
nonfeazance; or if a farrier covenant to ſhoe my horſe, tract 5.
and he neglect to fhoe him, or prick him in fhoeing 14 H. 6. 18. b.
him; or if one undertake to plow my land in a ſeaſon- 21 H. 6. 55. b.
able time, and he do it in an unfeaſonable time, or ne-
glect doing it, an action on the cafe lies. And the rea-
fon of all theſe caſes is, that the res gefte amount to an
undertaking and a matter en fait, rather than a thing
founding in covenant.
Implicative contracts are fuch as do not arife from Finch's law,
the 180.
1
OF THE NATURE OF CONTRACTS
[*246.] the ſpecial agreement of the parties, * but arife by act
[*247. ]
1. Raym. 913.
and operation of law, out of the circumftances of the
cafe. As if, on a fale of goods, the buyer pay mo-
ney in part of fatisfaction, and afterwards the whole
value of the goods be recovered againſt him at law; the
money fo paid upon that account, becomes money re-
ceived for the uſe of him that paid it; and the law
raifes an implied affumpfit, upon which he may reco-
ver it in an action. So, if an hoftler give my horfe
meat, or a taylor make my cloaths, the one fhall have
his action on an implied contract for his meat, and
the other for his work. And he that receives money
for my uſe, or to deliver it over to me, is chargeable
as a receiver. So, if one enter into an infant's or
another's land, and take the profits, he is chargeable
as bailiff. And if a liberate be delivered to the clerk
of the hanaper, who has affets in his hands, an action
of debt lies against him. So does it upon every judg-
.ment.
So, wherever a man, by any means, hath the cuf-
tody of goods belonging to another; the law implies a
contract, by which he is bound to take care of them
according to the nature of the bailment.
* In order clearly to underſtand the nature and extent
of the contract the law raifes in fuch cafes, it is necef-
ſary to ſtate what are the feveral forts of bailments.
There are fix forts of bailments.
Firft. A bare naked bailment of goods, delivered
by one man to another to keep for the uſe of the bailor,
and this is called "depofitum." In this cafe the law
implies a contract by the bailee, that he will take fuch
care of them, as that they may not be damaged by any
grofs neglect of his own. For, in fuch cafe, it would
be contrary to reaſon or juſtice, that where a man is to
have no reward, but keeps the goods merely for the
uſe of the bailor, that he fhould be charged without
fome default in him; it does not feem neceffary that he
ſhould even do all he is capable of, or that a man could
do for himfeif in things he was moft concerned for. If
he keep the goods with an ordinary care, he has per-
formed the truft repofed in him. And this is going
as far as the end and nature of fuch a contract requires;
for it is not to be fuppofed, that in fuch caſes a man
engaged to take care, is to be at expences extraordinary,
:
or
OR AGREEMENT S.
meant, only to
or to neglect other affairs of his own, though perhaps [248. ]
lefs important in themfelves, to attend other men's, as
perhaps he might do if he acted for himſelf. But if
the bailee keep the goods bailed to him as he keeps his
own, it is evidence that he has difcharged his undertak-
ing. And, therefore, in fuch cafe, although he keep
his own but negligently, yet, if he keep the others in
the fame manner, he fhall not be chargeable. As if The propofi-
the bailee be known as an idle, carelefs, drunken fel- tion here put by
low, and he come home drunk, and leave all his doors Lord Holt is
open; and by reafon thereof the goods bailed to him illuftrate the
happen to be ſtolen, with his own, yet he fhall not be conclufion,
charged, becauſe it was the bailor's own folly to truft that, whatever
fuch a fellow. And this doctrine is agreeable to reaſon, of his own, that
and to the civil law. Ex eo folo tenetur fi quid dolo com- care, applied to
miferit: Culpa autem nomine, id eft, defidia ac negli- is fufficient.
fuch a depofit,
gentiæ, non tenetur. Itaque fecurus eft qui parum dili-
genter cuftoditam rem furto amiferet, quia qui negligenter
amico rem cuftodiendam tradit, non ei, fed fuæ facilitati
id imputare debet.
•
And if a perfon, receiving goods upon fuch a bare Hob.34. 3 Cг.
naked bailment, were to enter into a written undertak- 214.2Cro.425,
ing to re-deliver them; it would not charge the party [249. ]
undertaking further than he would be charged by the
implication of law: for it would not go further than a
covenant, that the covenantee fhall have, occupy, and
enjoy certain lands, which does not bind against the
acts of wrong-doers.
The fecond kind of bailment is, where goods or L. Raym. 91 3.
chattels, that are uſeful, are lent to a friend gratis to be
ufed by him. And this is called "Commodatum;" be-
cauſe the thing is to be reftored in fpecie.
In this cafe the law implies, that the borrower con- Ibid. 915,
tracts to uſe the ftricteft care and diligence, to keep
the goods, fo as to restore them back again fafe to the
Jender; becauſe the bailee has a benefit by the ufe of
them. And, therefore, if the bailee be guilty of the
leaft neglect, he will be anfwerable. As if a man
lend another a horfe to go weftward, or for a month;
if the bailee go northward, or keep the horfe above a
month, and any accident happen to it in the nor-
thern journey, or after the month, the hailee will
be chargeable becauſe he has made ufe of the
horfe contrary to the truft he was lent to him under;
and
OF THE NATURE OF CONTRACTS
[*250.]* and it may be, that, if the horſe had been uſed no
otherwiſe than he was lent, the accident would not
Bracton, lib. 3. have befallen him. This is agreeable to Bracton, who
cap. 2.
•
fays, Is autem cui res aliqua utenda datur, re obligatur,
quæ commodata eft; fed magna differenteft inter mu-
tuum et commodatum; quia is qui rem mutuam accepit, ad
ipfam reftituendam tenetur, vel ejus pretium, fi forte in-
cendio, ruina, naufragio, aut latronum vel hoftium in-
curfu, confumpta fuerit, vel deperdita, fubtracta, vel
ablata. Et qui rem utendam accepit, non fufficit ad rei
cuftodiam, quod talem diligentiam adhibeat, qualem fuis
rebus propriis adhibere folet, fi alius eam diligentius potuit
cuftodire; ad vim autem majorem, vel cafus fortuitos non
tenetur quis, nifi culpa fua intervenerit. Ut fi rem fibi
commodatam domi, fecum detulerit cum peregre profectus
fuerit, et illam incurfu hoftium vel prædonum, vel nau-
fragio, amiferit non eft dubium quin ad rei reftitutionem
teneatur.
But if the bailee, in the preceding inftance, had put
the horſe in his ftable, and he had been ſtolen from
thence, the bailee would not have been anfwerable for
him, unless he or his fervants had left the houſe or
ftable doors open, and the thieves had taken that oppor-
[* 251.]*tunity, and had ftolen the horfe; for then he would
be chargeable becauſe the neglect gave the thieves the
opportunity to fteal it. Bracton fays, the bailee muſt
ufe the utmoſt care, but yet he fhall not be chargeable
where there is fuch a force as he cannot refift.
L. Raym. 913.
Ibid.
The third kind of bailment is, when goods are left.
with the bailee to be uſed by him for hire; this, in the
civil law, is called "locatio" et "conductio." And the
lender is called locator, and the borrower condu&tor.
In this cafe, the law implies, that the hirer contracts
to take the utmost care, and to return the goods when
the time of hiring is expired. But every man, how
diligent foever he may be, being liable to the accident
of robbery, though a diligent man is not fo liable as a
carelefs one; the bailee will not be anfwerable in this
cafe, if the goods are ſtolen.
The fourth kind of bailment is, when goods or chat-
tels are delivered to another as a pawn, to be a fecurity
for money borrowed of him by the bailor; and this is
called
OR AGREEMENTS.
1:
called in Latin, *" Vadium;" and in Engliſh, a Pawn, [*252.]
or a Pledge.
And as to this, Bracton, 99 b. points out the nature Ibid. 917.
of the implied contract. Creditor, qui pignus accepit, 29 Aíf. 28.
re obligatur, et ad illam reftituendam tenetur; et cum
hujufmodi res in pignus data fit utriufque gratia, fcilicet
debitoris, quo magis ei pecunia crederetur, et credi-
toris quo magis ei in tuto fit creditum, fufficit ad ejus
rei cuftodiam diligentiam exactam adhibere, quam fi
præftiterit, et rem cafu amiferit, fecurus effe poffit nec im-
pedietur creditum petere. So that, in effect, if a cre-
ditor take a pawn, he is bound to reftore it upon the
payment of the debt: but yet it is fufficient, if the
pawnee uſe due diligence, and he will be indemnified in
fo doing, and notwithſtanding the lofs, yet he fhall re-
fort to the pawner for his debt.
The fame law applies in relation to goods found,
the property in which continues in the owner, although
the poffeffion is in the finder. The law, therefore,
implies a contract in the poffeffor to uſe an ordinary
diligence to preferve them for the owner.
But it is obfervable, in theſe cafes, that, if the [253]
money, for which the goods were pawned, be tendered
to the pawnee before they are, loft, then the pawnee
fhall be anfwerable for them: becauſe the pawnee, by
detaining them after the tender of the money, is a
wrong-doer, and it is a wrongful detainer of the goods,
and the ſpecial property of the pawnee is determined.
And a man who keeps goods by wrong, muſt bè an-
fwerable for them at all events; for the detaining of
them by him, is the reaſon of the lofs.
The fifth kind of bailment is, when goods or chat- 1L.Raym. 913
xles are delivered to be carried, or fomething is to be
done concerning them by the bailee, for a reward to be
paid by the perſon who delivers them.
Theſe cafes are of two forts; either a delivery to
one who exerciſes a public employment, or a delivery
to a private perfon. If it be to a perfon of the firft
deſcription, and he is to have a reward, the law im-
plies that he contracts to anſwer for the goods at
all other events, except acts of God, or of, the
enemies of the king. If he be robbed, he is charge-
}
able,
OF THE NATURE OF CONTRACT'S
"
[* 254.]*able, be the force that attack him ever fo great. This
is the cafe of the common carrier, common hoyman,
mafter of a fhip, &c.
Ibid.
If the delivery be to a perſon of the fecond defcrip-
tion, of which nature are bailees, factors, and fuch
like: thefe, though to have a reward for their manage-
ment, yet are only to do the best they can. If, there-
fore, the bailee be robbed, he cannot be chargeable;
for it would be unreaſonable to ſubject him to the exe-
cution of a truft, further than the nature of the thing
puts it in his power to perform it. The law, there-
fore, in the cafe of a bailee, factor, or the like, im-
plies a contract to uſe his abilities to take care of that
with which he is entruſted.
The fixth fort of bailment is, when there is a deli-
very of goods or chattels to fome body, who is to carry
them, or do fomething about them gratis, without any
reward, for fuch his work or carriage. And this is
called, in the language of the Civilians, “mandatum.
It is an obligation which ariſes ex mandato. It is what
we call in English an acting by commiffion. And if a
[*255.] man acts by commiffion for another gratis, and in
executing his commiffion behaves himſelf negligently,
he is anſwerable.
Ibid. 916.
Keilw, 160.
2 H. 7. 11.
22 Af. 41.
Bro. Act fur
ca. 78.
* Vent. 121.
10 H. 7. 26.
29 Aff. 28.
Speck v.
Richards.
Hob. 206.
Parkifon v.
Colliford,
March 13.
But, in theſe cafes, there will be a difference in the
implied contract, on the evidence how the undertak-
ing appears to have been entered upon; whether gene-
rally or ſpecially for in the former cafe, the under-
taker only contracts in law againſt grofs neglect. And,
therefore, if one undertake to carry brandies for ano-
ther, and miſchief be done to it, by fome perfon meet-
ing the cart that it is in by the way, the bailee will not
be liable as if a drunken man come by in the ſtreet,
and pierce the caſk. And the reaſon is, that the bailee
is to have nothing for his pains. But in the latter cafe,
namely, if a man take upon himself exprefsly to do fuch
an act fafely and fecurely, if the thing come to any da-
mage by his mifcarriage, the law implies a contract that
he will be anſwerable; the reaſon for which is, that he
undertakes the task, and is entrusted upon those terms.
The law alfo implies a contract where the fheriff levies
money on a levari facias, &c. and returns paratus habeo,
and
OR AGREEMENTS.
and does not deliver it in court; and an action of [* 256.]
debt lies against him in fuch cafe; becauſe, although
there be no exprefs contract, yet there is a contract in
confideration of law; for, when the money is levied, the
action ceaſes againſt the party, and is ipfo facto, tranſ-
ferred to the ſheriff.
.
Upon the fame principle of an implied affent, the 3 Cro. 344.
law concludes that, if one man take another man's Finch. 22.
1 H. 4. 83.
wife and cloath her, he intends to give the apparel unto
her; and her huſband inay take her with the apparel,
and no action lies againſt him.
It is held, on the fame reaſon, that if a man deliver
ftuff or other wares to another man's wife (knowing
her to be a feme covert) to make apparel, without
her huſband's privity or allowance; it is a gift of the
ftuff unto her and her huſband fhall not be charged in
any action for it.
So the law implies an agreement that the grantee of
one thing, fhall have every other thing neceffary to the
full enjoyment of what is granted.
* Thus if a man grant to me all his trees growing in [* 257. ]
his woods; he is taken by implication to grant me Plowd. Comm
leave to come upon the ground, and cut them down,
and carry them through his land.
So if land be granted to a man; the law implies an
agreement that he fhall have a way to it, although it
be not exprefsly mentioned.
15.
Again, If a man licenſe another to lay leaden pipes Saund. 322,
in his land for the purpoſe of conveying water to the 323.
other's ciftern; the law implies an agreement that the
grantee may enter, and dig up the land to mend the
pipes.
And equity, alfo, in fome cafes, implies contracts,
without any exprefs agreement of the parties.
8 Dec. 1769,
Thus if A. fells lands to B. who afterwards becomes Tardiff v..
a bankrupt, part of the purchaſe money not be- Scrugham,
ing paid; here equity implies a contract or agreement, per L.Camden.
that the land fhall ftand charged with fo much Et vid. Brown
of the purchaſe money as was not paid, without any Rep. Chan.
ſpecial contract for that purpoſe: and, to give this Pollexfen
VOL. I.
conſtructive v. Moore,
3 Atk. 272.
K
423, 424.
OF THE NATURE OF CONTRACTS
[* 258.] * conftructive agreement effect, equity confiders the
purchaſer to be a trustee, to the extent of the money,
for the vendor.
Dig. lib. 19.
tit. 2.
[* 259.]
129.
2 H. 7. 12.
3 H. 7. 14.
So if, after the time ftipulated, the leffee continues
to enjoy the thing leafed without any oppofition from
the leffor; both of them are fuppofed not only to pro-
long the contract until they declare off, but for fuch a
time as the original leafe was measured by, and on the
fame conditions; for, qui impleto tempore conductionis
remanfit in conductione, reconduxiffe videbitur. And,
therefore, if there be leffor and leffee for feven years,
and the leffee hold over after the feven years deter-
mined, he is from thenceforward confidered, in law,
as tenant from year to year; for, during the feven
years, the term is executory for every year, and, in
refpect to the execution of it, it is the fame as if there
had been ſeveral contracts, one for one year, and ano-
ther for another year, and fo for every year feverally.
And the tenant holding over, is confidered as doing
Yo, upon the ſame terms as he engaged upon originally. -
Secondly, contracts and agreements, we have ob-
ferved, are either fimple and abfolute, or conditional.
* A contract or agreement is faid to be fimple and
abfolute, where one party obliges himfelf pofitively
and without condition to fuch or fuch a performance;
in which cafe the other party may require it to be car-
Fitzh. tit. Debt ried into effect: as if I make a leafe for years to another,
and he, in confideration thereof, promife to pay me a
rent by the year; this is a good contract, and upon
Keilw. 69, 77. failure in performance will fupport an action of debt
for the rent yearly. So if I fell my lands for twenty
pounds to be paid on a day certain; in this cafe, if
the money be not paid, I may, after the day, main-
tain an action for the money, though the land be not
affured; for the purchafer may compel me to affure
ic. Again, if a man take my money, and promiſe to
build me a houſe by fuch a day, this is a good con-
tract, and I may fue for breach of it.
A conditional agreement is, where the obligati-
on thereof is, in fome refpect, made to depend upon
fome particular and uncertain event; or, at leaſt,
an event uncertain at the time in the minds of the
contracting parties, proceeding either from the
act of God, or the act of the parties. As if I
agree to purchaſe an eftate of B. on condition that my
fon
OR AGREEMENTS.
:
*fon returns from India on fuch a day. This condi- [* 260.]
tion, until it happens, fufpends the obligation; and if
it does not happen, difannuls it.
So if I agree to give one thouſand pounds to A. if
he marry B. my daughter; here the obligation to pay
the money is fufpended, until the event ftipulated takes
effect.
Again; if an agreement be, that if B. deliver me 33 H. 6. fol.43
twenty pounds worth of cloaths, or affure me fuch a
piece of land, that I fhall pay him twenty pounds:
this is a good agreement conditionally; and after the
performance of the condition (but not before) B. may
maintain an action for the money.
So, if one fell cattle, upon condition that if the ven- Perk. fec. 712.
dor do fuch a thing, then he fhall have twenty pounds.
for them, elfe but ten pounds; this is a good contract,
and the fame will be more or lefs, as the condition is
or is not performed.
*
And fome contracts or agreements are conditional, 17 E. 4. 1.
with a reference; in which cafe they are imperfect, [* 261.]
until the reference made: as if A. and B. bargain and
agree, that B. fhall go upon A.'s land and fee his corn,
and, if it pleaſe him upon fight, that then he ſhall have
it, paying to A. forty pounds for every acre: here the
contract is binding upon A. if B. likes the corn,
otherwiſe not.
So if I bargain with you, that I will give you for Dyer 91 b.
your land as much as it is reaſonably worth, and refer 14 H. 8. 17.
to a third perfon to adjudge what is the value: here
the contract is incompleat, until the referee adjudge
the value; but after the value adjudged, both parties are
bound.
Conditions added to contracts, may be divided into
two kinds: namely, firft, Unlawful; and, fecondly,
Lawful.
First, as to unlawful conditions.
The effect of adding an unlawful condition to a con- Co.Litt.206.b.
tract, varies according to the nature of the contract,
and of the condition. For, if a man be bound, upon
condition that he do an act malum in fe; as that he kill
A. S. the bond is void. But if a man make a
feoffment,
་
K 2
i
OF THE NATURE OF CONTRACTS
[* 262.] * feoffment, upon condition that the feoffee ſhall kill
1
Ibid. et Cro. Ja.
596. 13 H. 7.
et vide Freeman
v. Freeman.
2 Vern. 233.
Ibid.
[ * 263.]
Ibid.
J. S the eftate is abfolute, and the condition void,
In both inftances the law aims at the fame object,
namely, the preventing the crime. For, in the for-
mer cafe, left the obligee fhould have any temptation
to do the act, the law frees him from the penalty of
the bond. And for the fame reafon the law, in the
latter cafe, fecures to the feoffee the poffeffion of the
land, without performing the condition.
All conditions that are repugnant to the nature of the
contract entered into are void, as being againft law.
And, therefore, if a man make a feoffinent in fee, up-
on condition that the feoffee fhall not alien, this con-
dition is repugnant and void; and the eftate of the
feoffee is abfolute: becauſe the power of aliening is
incident to the grantee of a fee.
Upon the fame principle it is held, that, if a man
make a feoffment in fee, upon condition that the feoffee
ſhall not take the profits of the land; this condition
is againft law, as being repugnant to the grant: for
the feoffment of the land includes the profits; and the
eftate is abfolute.
* But a covenant or bond, with a condition that the
feoffee fhall not take the profits of the land, or fhall
not alien, is good.
The reafon of theſe diſtinctions is, that in caſe of
the covenant or bond, the feoffee may alien or take the
profits, if he will forfeit his covenant or bond; confe-
quently there is no total bar to alienation or receiving
the profits but otherwiſe it is, as to fuch a condition,
added to the feoffment; for if that were good, no
alienation or taking the profits, could take effect.
Secondly, lawful conditions may be divided into
poffible and impoffible.
Lawful, poffible conditions, may be divided into
three forts, according to the effects they produce.
Firft; fuch as accomplish the contracts that depend
upon them as if a man agree with his leffee for years,
that, upon payment of 100% within the term, he will
convey to him the fee.
Secondly; fuch as diffolve a bargain: as if
a leafe
OR AGREEMENTS.
*
a leaſe be made, with a condition to be void if the [* 264. ]
leffee under-let, or, if he become a bankrupt, or the
like.
Thirdly; fuch as neither accomplish nor diffolve a
contract or bargain, only making fome change in it:
as if one agree, that if 6 per cent. (being the intereft
due upon a mortgage) be paid within three months
after it becomes due, the intereft fhall abate to 5 per
cent. Of the fame nature is an agreement, that, in
cafe an houſe that is let furniſhed, be given up to a fu-
ture tenant without certain moveables, which are pro-
miſed him, the hirer fhall have it ſo much the cheaper.
Again impoffible conditions are divifible into fuch as
are fo, at the time of entering into the contract; and
fuch as become fo by matter, ex poft facto.
*
There are ſeveral diverfities in the cafes of impoffible Co. Litt. 206.
conditions, in their effects on contracts; Ex. gratia, if
a condition, poffible at the making thereof, but becoming
impoffible by the act of God, be annexed to a contract
executed, as a feoffment, gift in tail, or the like; the [265. ]
eftate of the feoffee, &c. fhall not be avoided thereby;
as if a man make a feoffment, upon condition that the
feoffor go to the city of Paris about the affairs of the
feoffee, and preſently after the feoffor die, ſo as that
it is impoffible, by the act of God, that the condition
fhould be performed, the eſtate of the feoffee is never-
theleſs become abfolute. But if fuch condition be
added to an executory contract: as if there be a bond,
recognizance, and the like, with condition that the
obligor fhall appear the next term in ſuch a court; if,
before the day, the obligor or conufor die, the recog-
nizance or obligation is faved. And the reafon of this
diverfity is, becauſe the eſtate in the land is executed
and fettled in the feoffee, and cannot be redeemed back
again but by matter fubfequent; namely, the perfor-
mance of the condition. But the bond or recogni-
zance is a thing in action, and executory, whereof
no advantage can be taken, until there be a default in
the obligor. And, therefore, in all cafes, where a
condition of a bond, recognizance, &c. is poffible
at the time of the making of the condition, and,
before the ſame can be performed, the conditi-
on becomes impoffible, by the act of God, or of
the
OF THE NATURE OF CONTRACTS
13. Bro. tit.
faits 37.
Plowd. 32.
[* 266.] * the law, &c. there the obligation is faved. But if
the obligation of a bond, &c. be' impoffible at the time
of making the condition, the obligation, &c. is fingle:
Fitzh. Oblig. as if a man be bound in an obligation, &c. with con-
dition, that, if the obligor do go from the church of
St. Peter, in Westminster, to the church of St. Peter,
in Rome, within three hours, the obligation fhall be
void. Here the condition is void and impoffible, and
the obligation ftands good. And the law is the fame
in cafe of a feoffment in fee, with condition ſubſequent,
that the feoffee fhall go as aforefaid, the eftate of the
feoffee is abfolute, and the condition impoffible and
void.
[ * 2.67% ]
Pallerton v.
But, in this refpect, there is a diftinction between a
condition of this kind that is precedent, and fuch a còn-
dition fubfequent; for, in the former cafe, no eſtate or
intereft will grow upon it: as if a man make a leaſe
for life, upon condition that, if the leffee go to Rome,
as aforefaid, then he fhall have a fee: here the condi-
tion precedent is impoffible and void, and therefore no
fee fimple can grow to the leffee.
And a diftinction is alfo taken upon bonds, * recog-
nizances, and executory contracts, where the impof-
fible condition is part of the bond, recognizance, or
contract, and where it is indorfed or underwritten; for,
in the former cafe, the inftrument thereby becomes
void.
Therefore where, an a fcire facias againſt bail, re-
Agnew. Salk, citing a recognizance taken in the time of King Wil
172. Bro. tit. liam the Third; wherein the condition was, that the
faits 37.
defendant ſhould render his body Prifone Mar. Ma-
refch. Domina Regina nunc it was urged, that the
condition was impoffible, and in confequence the re-
cognizance fingle. Et per Holt, Chief Juftice, where
the condition is underwritten or indorfed, there that is
only void, and the obligation is fingle; but where the
condition is part of the lien itſelf, and incorporated there-
with, if the condition be impoffible, the obligation is
void.
We muſt carefully diftinguiſh between conditions
annexed to contracts or agreements, and circumftances
annexed which feem to import conditions, but which
are modal only, neither fufpending, difannulling, nor
altering the obligation of them, but only relating to
the manner of performance: as that an agreement
shall
1
OR AGREEMENTS.
* fhall be performed at a certain day, or in a certain [* 268. ]
place.
Thus, if a man have land let out on leafe, and enter
into an engagement for fale thereof, upon condition.
of its being freed at a certain day; fuch a clauſe neither
fufpends, nor difannuls the obligation of the agree-
ment, but only amounts to a ftipulation, by which the
feller puts off the delivery of the thing fold, till it is at
liberty, which he engages it fhall be at a certain time.
So, if two perfons enter into a contract for fale of an
eftate, and the conveyances are agreed to be made, and
the purchaſe money paid at ſuch a place and time: the Noy's Maxims,
obligation of the agreement binds the parties from the
89.
moment it is entered into, and the time and place are
only circumstances that affect the performance of the
engagement. Of this nature alfo are all collateral or
incidental circumftances, attending agreements for fale
of land, &c.
*
Such ſtatements do not import conditions, whereby
the parties are to be confidered as contracting on the
ground of a strict compliance; but are mere circum-
ftances that admit of compenfation. And in this re-
ſpect our law proceeds upon the fame principles as [269. ]
the Roman law. For if one had land engaged, and
fold it upon condition of freeing it at ſuch a time; in
this cafe that law allowed the buyer to have an action
againſt the feller, to force him to free his land at the
time appointed, or let him into poffeffion. Nam fi id Dig. 1. 18. tit. 1.
actum eft, ut omni modo intra Kalendas Julias venditor. De contra-
fundum liberaret, ex erupto erit actio, ut liberet; nec fub &c. leg. 41,
conditione eruptio facta intelligetur: veluti fi hoc modo init.
eruptor interrogaverit, erit mihi fundus eruptus, ita ut
intra Kalendas Julias liberes? vel ita, ut intra Kalendas
à Titio redimas? Si vero fub conditione eruptio falta eſt,
non poterit agi, ut conditio impleatur.
Thirdly., Contracts and agreements are either written
or unwritten.
hend. erupt,
Quære, if be-
This diftinction between written and unwritten con- fore ſtatute of
tracts or agreements, feems to have originated with
frauds, mere
the ſtatute of frauds and perjuries, which was paffed ments were
parol agree.
in the 29th Car. 2. and was made to prevent perfons favored? Treat.
from fwearing verbal agreements upon others, and Eq. 18, 19.
thereby charging the parties in equity to perform them,
though
OF THE NATURE OF CONTRACTS
*
*270.] though the agreements had never been made. To
28 Car, 2. c. 3. this intent the ftatute enacts, "that no action ſhall be
brought, whereby to charge any perfon upon any agree-
ment made upon any confideration of marriage, or up-
on any contract or fale of lands, tenements, or here-
ditaments, or any intereft in or concerning the fame,
or upon any agreement that is not to be performed
within the ſpace of one year from the making thereof,
unleſs the agreement upon which fuch action fhall be
brought, or fome memorandum or note thereof ſhall be
in writing, and figned by the party to be charged there-
with, or fome other perfon thereto by him lawfully
authorized."
In obferving upon the effect and operation of this
ftatute, I ſhall firft confider what has been the conftruc-
tion of the words in the order as they ftand, and, fecondly,
what are the exceptions out of the ftatute.
The firft words then are, "no action fhall be brought
to charge any perfon." And thereupon it is obferv-
able, that, although by these words, fuits in Chancery
for the ſpecific execution of contracts or agreements are
[*271.] not exprefsly prohibited, yet, courts of equity,
*
upon
a principle which will be hereafter explained, were,
for the most part, confequentially, thereby deterred
from retaining fuits upon contracts or agreements not
made conformable to the ftatute, unleſs in cafes where
fome circumſtance intervenes, whereon an equity may
be raiſed, notwithſtanding the requifitions of the fta-
tute are not complied with.
The next words that occur in this claufe of the fta-
tute of frauds, are the words, “ any agreement, &c."
And hereupon it has been held, that, although the
words of the ftatute be general, namely, " upon any
agreement made upon any confideration of marriage,
or upon any contract or fale of lands, &c." which
phrafe is fufficient, in point of extent of operation, to
comprehend all agreements, and all contracts; yet as,
in the true conftruction of this, as of every other ſta-
tute, the end and intent of the makers of it is to be
confidered, and that was to prevent frauds and perju-
ries, all contracts and agreements which, though not
in writing, are in their own nature free from all danger
of introducing fraud or perjury, are out of the purview
of this ftatute.
Upon
OR AGREEMENTS.
218.
*Upon this ground it has been determined, that a [272. ]
judicial fale of an eſtate under a decree, is clearly out
of the miſchiefs intended to be prevented by the ftatuté :
therefore, where A. being likely to die, made a con- Att. Gen. v.
veyance of a real eſtate in favour of a charity, and then Day, I Vez.
made a will, by which he gave 3000l. (the exact value
of that land) and alfo 250l. to the fame charity, and
gave the eftate to D. (wife of B) and C-A bill in
Chancery was brought for an account, and for a ſettle-
ment of the eftate under the will; and a decree was
had thereupon, and a mafter was thereby directed to
receive a ſcheme for carrying the conveyance into exe-
cution, the foundation of part of which was, to con-
fider in what way the money fhould be laid out, and a
perpetual fund created for maintenance of the charity.
The mafter reported a ſcheme for laying out the 3000l.
in the purchaſe of lands, and the 250l. in other lands
convenient for building a charity fchool. Then the
cafe was fet down for the charity to be heard on the
matter referved, and the court made a decretal order,
confirming the mafter's report, and ordering that the
ſcheme fhould be approved of, and the other matters
therein carried into execution: none of thefe direc-[*273. 1
tions were oppofed, but they were all acquiefced under
by B. and D. who furvived him. After her (D.'s)
death, an information was brought in behalf of the
charity, together with the adminiftratrix of D. to have
this purchaſe carried into execution by the aid of the
court, againſt the devifee of the heir at law of D. and
the infant fon of C. the co-devifee with D. And, it
being objected that there was no agreement figned pur-
fuant to the ftatute of frauds, one queftion was, whe-
ther the tranſactions that paffed in life of D. and C.
amounted to a binding agreement on thoſe parties for
the fale of the land? and Lord Hardwicke was of opi-
nion, that here was fuch an agreement as the court
ought to execute, notwithſtanding the ftatute of frauds;
this being a judicial fale of the eftate, which took it en-
tirely out of that ſtatute.
The principle upon which the preceding cafe refts,
is this; the order of the court was not interlocutory,
but made part of the decree, as it always does on
the matter reſerved, though made at another day;
and it includes, as well the carrying the purchaſe in-
to execution, as the eſtabliſhment of the charity,
amounting
OF THE NATURE OF CONTRACTS.
[* 274.] * amounting to a decree for the conveyance of the eſtate
on one fide, and payment of the money on the other;
Per Lord
221.
and the purchaſer may be profecuted for a contempt, in
not obeying the order.
Upon the fame principle it is held, that purchafers
Hardw. I Vez, before the mafter are out of the ftatute; and, there-
fore, the court of Chancery will, in fuch caſes, carry
into execution, against the reprefentative, a purchaſe
by a bidder before the mafter without the bidder's fub-
fcribing, after confirmation of the mafter's report that
he was the beſt purchaſer: the judgment of the court
taking ſuch caſes out of the ftatute.
Ibid.
Cox v. Peele,
Brown's Rep.
[* 275.]
Chan. 1788,
fol. 334.
1 P. Will. 714.
So, if the authority of an agent, who fubfcribes for
a bidder before a maſter, cannot be proved, yet, if
the maſter's report can be confirmed, the court will
carry it into execution, unleſs there be fome fraud; for
it is all exclufive of any defence that may ſtill be ſet up
on the other fide.
*
And Lord Thurlow was of opinion, where the at-
tornies, concerned in a fuit by a firft mortgagee for a
forecloſure, agreed, with refpect to the final decree,
that the eftate fhould be fold, the firft mortgagee paid
her principal and intereft, and the remainder paid to
the fecond mortgagee, but that the former fhould, in
the mean time, take a decree; that, if the firſt mort-
gagee made an improper ufe of the decree, this agree-
ment, though by parol, might be read, on an applica-
tion to open the forecloſure, as an agreement relative
to a decree, the attornies being competent to make
agreements relative to the order of the court.
And up-
on that ground his lordship, on an appeal from the
Rolls, admitted the evidence of it de bene. effe, although
it had been rejected by his honor, on the ground that
the agreement was not in writing, and, therefore, void
under the ftatute of frauds,
And an agreement with the court of aldermen, (who
are guardians of city orphans, and without whofe leave
no man can marry fuch orphan but under pain of im-
priſonment) though by parol only, and without writ-
ing, was held good: this being an inftitution that
exifted previous to the ftatute.
The next words that we meet with, in the claufe
now
OR AGREEMENT S.
*
now under difcuffion, furniſh a defcription of the fub- [ 276. ]
ject of an agreement, viz. " made upon any confide-
ration of marriage," or,
upon any contract or fale of
lands, tenements, or hereditaments.
CC
And, upon this part of the claufe it is neceflary to
obſerve,
Firft, That whether the contract or agreement ori-
ginate with reference to a marriage, or a fale, or the
like, the conftruction of the ftatute, as applied thereto,
will be the fame.
4.
Secondly, That the ftatute goes equally againſt an Per Lord
agreement for making a mortgage of a real eſtate with- Hardw. 3 Atk.
out being in writing, as against an agreement for a pur-
chaſe if not in writing; for as the latter can be no lien,
ſo neither can the former be a ſecurity.
(C
Then come the following words, or upon any
agreement that is not to be performed within the ſpace
of one year from the making thereof." And hereupon Hollis v. Ed-
it has been held, that this part of the claufe in quefti- wards, I Vern.
on, does not extend to any agreement reſpecting lands
or tenements.
159.
*The legiflature then proceed to the enacting the [* 277.]
provifion, made by the ftatute, for fecuring perfons
from the miſchiefs meant to be prevented, viz. “ Un-
lefs the agreement upon which fuch action fhall be
brought, or fome note or memorandum thereof, fhall
be in writing, and figned by the party to be charged
therewith, or fome other perfon by him thereto law-
fully authorized."
Theſe words of the claufe have afforded three points
for legal difcuffion, namely,
Firſt, As to what was meant by the legiſlature, when
it required "fome note or memorandum (of every
agreement) in writing."
Secondly, As to what circumftance will amount to
a figning.
Thirdly, As to what perfons must fign.
And, as to the firft point, it has been held, that, as
well marriage agreements as others, where, on a treaty
for a marriage or any other treaty, the parties come to
an agreement, but the fame is never reduced into writ-
ing,
OF THE NATURE OF CONTRACTS
*
[* 278.] ing, nor any propofal made for that purpoſe, ſo that
the parties rely wholly on their parol agreement; neither
party can compel the other to a ſpecific performance,
for the ftatute is directly in their way.
Countess Mon-
tacute v. Sir
well, I P. Will.
618. Pre. Chan.
526.
And, therefore, where a bill fet forth that the de-.
fendant, before his intermarriage with the plaintiff,
George Max- did promiſe that ſhe ſhould enjoy her own eftate to her
ſeparate uſe; that he had agreed to execute a writing
to that purpoſe, and had inftructed counfel to draw
fuch a writing; and that, when they were to be mar
ried, the writing not being perfected, the defendant de-
fired this might not delay the match, in regard that his
friends being there, it might flame him, but engaged
that, upon his honor, the lady fhould have the fame ad-
vantage of the agreement as if it were in writing drawn.
in form by counfel, and executed; and that thereupon
the marriage took effect it was held, on a bill for
fſpecific execution, that, where there was no fraud,
the plaintiff relying folely upon the honor, word, or
promiſe of the defendant, the ftatute making theſe pro-
mifes void, equity would not interfere; and that the
[* 279.] circumftance of the inftruction having been given to
counfel for preparing the writings was not material,
fince, after they had been drawn and ingroffed, the
parties might have refuſed to execute them.
:
But it ſeems to have been formerly doubted, whe-
ther, if it were charged that the agreement was ftipu-
lated to be put in writing, this circumftance would
not be a fufficient ground for excluding the ftatute
from attaching upon the agreement. For, in the cafe
Seale v. Morris,
1 Ca. Ch. 135. of Seale and Morris, which arofe on an agreement that
the defendant ſhould affign a term of years in his houſe
and plate, and certain veffels of beer for two hundred
guineas, one guinea to be paid in hand as earneſt of
the bargain, and nineteen guineas more three days
afterwards; and wherein part of the bargain was, that
it fhould be executed by writings by a certain time;
the defendant pleaded the ftatute, and that it was a
parol agreement, and that none of the goods had been
delivered; that therefore there ought to be no relief in
law or equity; but he confeffed the receipt of twenty
guineas, and offered to repay them: the Lord Keeper
faid, it was clear the defendant ought to repay the mo-
ney, for it was charged that the agreement was to have
been
OR AGREEMENT S.
been * put in writing; and his lordſhip over-ruled the [* 280, ]
plea.
I Vern. 151.
So, in the cafe of Hollis and Whiteing, which was a Hollis v.
bill to have the execution of a parol agreement for a Whiteing,
leaſe of a houſe, fetting forth that, in confidence of
this agreement, the plaintiff had laid out and expended
very confiderable fums of money; the ftatute was
pleaded, and the plea allowed. But the lord Keeper
faid he was of opinion, if the plaintiff had laid it in his
bill that it was part of the agreement that the agree-
ment fhould be put into writing, it would have altered
the cafe, and poffibly have required an anſwer.
**
Izard, I Vern.
Pl. 1, 2.
But, in the cafes of Hollis and Edwards, and Dean Hollis v. Ed-
and Izard, wherein bills were exhibited to have an exe- wards, Deane v.
cution of parol agreements touching leafes of houfes, 159. S. C. 1 Eq.
which fet forth that, in confidence of thefe agreements, Ca. Abr. 19.
the plaintiffs had expended great fums of money in and
about the premiffes; and where the agreements were
reſpectively laid to be, that it was ftipulated the agree-
ment ſhould be reduced into writing, the ftatute was plead-
ed. And the Lord Keeper faid, that the difficulty
which aroſe upon this act of parliament was, that the [ 281. ]
act made void the eftate, but did not fay the agree-
ment itſelf ſhould be void; and, therefore, though the
eſtate itſelf were void, yet poffibly the agreement might
fubfift, ſo that a man might recover damages at law for
the non-performance of it; and if fo, he would not
doubt to decree it in equity. And his lordſhip directed
that the plaintiffs fhould declare at law upon the agree-
ments, and that the defendants fhould admit the agree-
ments, ſo as to bring this point in judgment at law,
and then, he ſaid, he would confider what was further
to be done in the cafe.
There being no further proceedings on this cafe, it
is reaſonable to fuppofe that it was held, the action
could not be maintained at law.
}
Bawdes v. Am-
Chan. 402.
And the determination in the cafe of Bawdes
and Amhurst, feems in a great degree to warrant hurſt, Pre.
this conclufion for, in that cafe, the
agreement
was actually put into writing by way of memoran-
dum, and the completion thereof prevented by the
death of one of the parties. The circumstances of this
cafe were as follow: a marriage treaty was depending,
and
OF THE NATURE OF CONTRACTS
[* 282.] * and the intended huſband, and the young lady's fa-
ther, went to a counſellor's chambers to have a fettle-
ment, in confideration of the portion the father pro-
pofed to give, drawn; at this meeting, minutes of the
agreement were taken down in writing by the counſel,
and given by him to his clerk, to be drawn up in form.
The next day the father died, and the day following
the marriage was folemnized. And this agreement,
notwithſtanding the preparations, was held, by Lord
Cowper, to be within the ftatute of frauds and perju-
ries, it being no agreement, but only preparatory heads
Vide3 Atk.504. which were afterwards to be drawn into form. It might,
therefore, have received ſeveral alterations or additions,
or been entirely broke off upon fome further enquiry or
information of the party's circumſtances.
This cafe, 1e-
ferred to and
approved by
Lord Hard-
wicke, fo far as
thereafons here
Hawkins v.
Holmes, I Will.
70. et vide
And, in a fubfequent cafe, the decifion was ftill
given extend. ftronger as to this point. In the inftance alluded to,
the plaintiff agreed with the defendant to fell him a
houfe for 6401. and, by conſent of both parties, an at-
torney was employed to make a draft of the conveyan-
Lowther v. ces; which the attorney accordingly prepared and ſent
[*283.] to the defendant, who made feveral alterations therein
Carrill, 1 Vern. in his own hand-writing, and delivered it back to the
221, et Whaley attorney to be engroffed. Then a time was appointed
v. Baganal,
6 Brown's Par. for the parties to meet at a tavern to execute the writ-
Ca. 45.
Vide Buck.
ings, and for the defendant to pay the money. The
plaintiff and his attorney went to the tavern, and the
plaintiff there exccuted the writings. Then the plain-
tiff, having got the conveyance registered, the eſtate
being in Middlefex, brought his bill against the de-
fendant to compel him to pay his purchaſe money. The
defendant pleaded the ftatute of frauds. And although
the agreement was actually put into writing in the draft.
of the conveyance, which had been altered by the de-
fendant with his own hand, yet it was held that the de-
fendant was not bound, he not having figned the
agreement.
•
Secondly, As to what fhall be a figning within this
claufe of the ftatute.
And hereupon it has been faid that, if the name of
houfe v. Crolly, the party against whom the fuit is preferred, be in any
way found upon the inftrument, this will be a fuf-
ficient figning within the ftatute, if the intent of the
parties was that the person should be bound, and an
2 Eq. Ca. Abr.
32, Pl. 44
acceptance
OR AGREEMENT S.
Welford v.
Beezley, 1 Vez.
* acceptance is fhewn on the other fide. And, there- [* 284. ]
fore, where a mother was not a party to a deed of ar-
ticles made on her daughter's marriage, but was proved 6. 1 Wilfon
to have known and agreed to them, and to have been 118.
privity to the actual marriage which took place upon
them, and figned them as a fubfcribing witnefs: this
was held, by the Mafter of the Rolls, and afterwards
by Lord Hardwicke, to be a fufficient figning, within
the ſpirit, and alſo within the words of the ftatute. And
the mother was decreed to perform her part of the
agreement.
But, in the before-mentioned cafe of Hawkins and Supra.
Holmes, in which the defendant pleaded the ftatute of
frauds and perjuries, and faid, "that neither he, nor
any by him lawfully authorized, figned any writing,
agreement, memorandum, or note, in relation to this
purchaſe, or whereby the defendant in any wife agreed
thereto." It was objected, that the defendant's alter-
ing the draft with his own hand, was a figning, it not
being material to what part of the draft his hand was
fet. But the chancellor faid that, unleſs in ſome par-
ticular cafes, the parties figning the agreement, was
abfolutely neceffary for the compleating of it; and [ 285.1
to put a different conftruction on the act, would be to
repeal it.
*
I P. Will. 771,
note 1, laft
This point was fubmitted to the opinion of the court Stokesv. Moore
of Exchequer, in the cafe of Stokes againſt Moore et Uxor, et Ux. vide
and was there decided upon fomewhat narrower ground
than that taken by Lord Hardwicke, in the before- edit.
mentioned cafe of Buckhouse and Crofly. The former
caſe aroſe on a bill for the ſpecific performance of an
agreement for the renewal of the leafe of a houſe by M.
and his wife to S. There had been fome difficulty
about the terms of renewal, but at length they came to
an agreement; and M. being called upon by S. to
name a perſon to prepare the leaſe, named a Mr. T.
for that purpoſe, and wrote certain inftructions from
whence the leafe was to be prepared in theſe words,
namely," the leaſe renewed, S. to pay the king's tax,
alfo to pay M. 247. a year, half-yearly; S. to keep the
house in good tenantable repair, &c." To this bill
the defendants pleaded the ftatute of frauds; and that
plea having been ordered to ftand for an anſwer, with
liberty to except, and the defendants having then by
their
i
OF THE NATURE OF CONTRACTS
[* 286.] their anſwer admitted the written inftructions; one
queftion made on the hearing of the cauſe was, whether
there was a fufficient fignature by M. to take this agree-
ment out of the ſtatute of frauds. And it was held by
the court unanimouſly that there was not; for, that
the fignature required by the ftatute was to have the
effect of giving authenticity to the whole inftrument;
and where the name was inferted in fuch a manner as
to have that effect, it did not much fignify in what part
of the inftrument it was to be found: as in the formal
introduction to a will. But it could not be imagined
that the name inferted in the body of an inſtrument,
and applicable to particular purpoſes, could amount to
fuch an authentication as the ftatute required.
Vide Halfpen-
ny v. Ballet,
2 Vern. 373.
S. C. 1 Eq. Ca.
Thirdly, as to what perfons must fign an agreement.
And it ſeems fufficient, that the party againſt whom
the bill is brought, or fuit preferred, has figned the
agreement; if it can be proved that the party figning
had evidence in his power to fhew an acquiefcence in
the agreement by the other party, who does not ſign,
[* 287.]* either by fome writing under his hand or fome act
done from which the law will infer the agreement.
Abr. 20. Pl. 6.
et infra.
Hatton v. Gray,
x Eq. Ca. Abr.
21. 10. S. C.
2 Chan. Ca.
164.
Thus where A. fold houſes to B. for two thouſand
pounds; and A. drew up a note of the agreement in
writing, which B. figned, but A. did not fign; it was
objected, on a bill by A. againft B. to compel him to a
ſpecific execution of this agreement, that this was
within the ftatute; for, the note bound not him that
did not fign it, and they must be both, or neither,
bound in equity. But it was decreed, that B. was
bound thereby; for, A.'s drawing up the agreement in
his own hand, and procuring B. to fign it on his part,
made the figning of B. not only a figning for himſelf,
but alſo a figning as authorized by A. to cloſe the agree-
ment: and, therefore, as, if B. had come into a court
of equity againſt A. the court would have decreed the
agreement against him, fo would it likewife decree it
againſt B. on a bill filed by A.
And a letter will, in equity, amount to an agree-
ment, and be binding on the perfon figning it, if ano-
ther
OR AGREEMENT S.
.
ther perfon, by acting upon it, * fhew his acceptance of [ * 288. ]
the propofitions therein contained.
I
147. S. C.
Thus where, on a treaty of marriage between A. Moor v. Hart,
and B.-B.'s father promifed to give her 4000l. but, 2 Rep. Chan,
when he perceived A. and B. to be mutually engaged, 1 Vern. 201.
began to recede from his promife; whereupon A. got Et Warkford
a letter wrote to the father by a friend of his, defiring 2 Vern. 322.
v. Foltherly,
him to be plain and afcertain what portion he would S. C. Freem.
give A. with his daughter, and he agreed to give 1500l. 291.
down and 500l. more at his death, if he ſhould have
iffue; and the marriage was had. It was held, that
this letter was a good agreement binding upon the fa-
ther, and that A. upon his marriage, became well en-
titled to the 1500l. agreed by the father, under his own
hand, to be paid as a portion to his daughter.
So, where a father wrote a letter fignifying his affent Bird v. Bloffe,
to the marriage of his daughter with J. S. and menti- 2 Vent. 361.
oning that he would give her 1500l. And he after-
wards, by another letter, upon a further treaty con-
cerning the marriage, went back from the propofals of
his letter; and then, at fome diftance of time declared,
that he would agree to what was propofed in the first [*289. ]
letter. This letter was held a fufficient promiſe in
writing within the ftatute of frauds; the laſt declara-
tion having fet the terms in the letter up again, and J.
S. having fhewn, by his marriage of the daughter, his
acceptance of the terms.
*
5 Vin. Abr.
Again, where A. poffeffed of tythes by a demiſe for Coleman
twenty-one years, covenanted, in confideration of. Upcot,
350l. to convey them to B. his executors and affigns; 527. Pl. 17.
and then C. treated with B. for them, and B. fent his S. C. 2 Eq. Ça.
fon and two other perfons with a letter to C. wherein Abr. 45. 9.
B. faid, "that if he parted with the tythes, it ſhould
be on the conditions therein particularly mentioned."
C. accepted of the terms, and the next day fent his at-
torney to acquaint B. therewith, and B. delivered to
the attorney a copy of A.'s agreement, and appointed a
day for executing the fame; but, in the mean time,
B. went to A. and fettled a conveyance from A. It
was decreed, that B. fhould perform this agreement
with C. for the letter took the cafe out of the ftatute
of frauds, as being an agreement figned by the party to
be charged with the fame; and there was no need, the
lord keeper faid, for its being figned by both parties.
VOL. I.
Is
But
·
ן'
OF THE NATURE OF CONTRACTS
:
(* 290. ] * But a letter from a father to his daughter, by which
Ayliffe v. Tia-
he gave her 3000l. portion, but which was not fhewn
cey, 2 P. Will.
65.9 Mod. 3. to the man who afterwards married the daughter, was
not confidered as entitling the fon-in-law to a decree
for the 3000l. although he had married the daughter.
The reaſon for which feems to have been, that the fon-
in-law could not be confidered as having, by the mar-
riage, accepted an agreement of which he had no
knowledge.
Seagood v.
Abr. 49. 20.
Strange 426.
Et vide Clerk
v. Wright.
Atk. 13.
Such a letter cannot be fet up as an agreement, un-
Micale, et al. lefs it contain the precife terms of the contract at large;
Pre, Chan, 560.
S.C. 2Eq. Ca. and, therefore, on a bill for a ſpecific execution of an
agreement for the purchale of nine houfes which were
in mortgage for 150l. ftating that the vendor had agreed
to fell them to the vendee for fuch a fum of money,
and had fent a rote to the mortgagce to the effect fol-
lowing, viz. Mr. C. pray deliver my writings to the
bearer, I having agreed to difpofe of them; it was
held, upon the queftion, whether this letter or note
would bring the cafe out of the ftatute, that it would
not; becauſe it ought to be fuch an agreement as fpeci-
fied the terms thereof, which this did not, though it
[* 291. ] was figned by the party; for it did not mention the
fum that was to be paid; nor the number of houſes
that were to be difpofed of, whether all, or fome, or
how many; nor to whom they were to be difpofed of;
nor did the letter mention whether they were to be dif-
pofed of by way of fale or affignment of leafe; and,
therefore, all the danger of perjury which the ſtatute
was meant to provide againft, would be let in to af-
certain this agreement.
Supra.
So, in the cafe of Montacute and Maxwell before-
mentioned, a letter from Sir George to his lady, writ-
ten after the marriage, expreffing that he was always
willing fhe fhould enjoy her own fortune as if fole, and
that it fhould be at her command, was infifted upon as
an evidence under his hand of the agreement before the
marriage, which would take the cafe out of the ftatute.
But the chancellor, as to the latter part of the propo-
fition, faid, that the letter confifted only of general
expreffions; that, indeed, had it recited or mentioned
the former agreement, and promifed the performance
thereof, it had been material.
Having confidered the conftruction of the feveral
parts of the claufe in the ftatute of frauds relative to
agreements,
OR AGREEMENTS.
292.1
agreements, the next object * I fhall advert to is, the [*
feveral grounds upon which courts of equity have con-
fidered parol agreements binding, notwithſtanding this
ftatute. And one ground upon which this equity has
been raiſed is, that though this ftatute has provided
that no agreement on marriage, or for the purchaſe of
lands, fhall be good, unleſs figned by the party to be
bound, or fome perfon by him authorized; yet, on all
the queſtions upon a ftatute against fraud, the end and
purpoſe of making it is confidered; which, in this in-
ftance, is to prevent frauds and perjuries, and not to
vacate bargains fairly and honeftly made. Therefore
courts of equity, confidered themfelves as unrestrained
thereby in the latter cafes: becauſe the parties are in
confcience bound to perform fuch agreements, and
ought not, in fuch inftances, to be permitted to take
advantage of the want of any folemnities, whether im-
pofed by common law or ftatute: with this view courts Symondſon v.
of equity have confidered agreements, wherein there Tweed, Pie.
has been no danger of fraud or perjury, as out of this Ch. 374. S. C.
Gilb. Rep. Eq.
ftatute. And, therefore, if, on a bill, filed by either. 35. Croyfton
vendor or vendee for a specific performance of a parol v. Banes,
agreement, fetting forth the fubitance of it in the bills Lord Vaughan
the defendant, by his anfwer, admit the facts as ftated v. Morgan,
in the bill,* this takes the agreement entirely out of *
[ 293.]
the miſchief pointed at by the ftatute; and a court of Finch 138.
equity will decree it, becaufe, the defendant confeffing Etvide Hodgfon
the agreement, there can be no danger of perjury from 5 Vin. Abr. 522.
a contrariety of evidence. Befides the agreement is in
writing, the anſwer confeffing it.
Pre. Ch. 208.
v. Hutchenfon,
Pl. 34. 2 Eq.
Ca. Abr. 47.
I Vez. 441.
3
3.
And if the party himſelf die, his heir will, it feems, 3 Atk. 3.
be bound on a bill of revivor; the principle going to Mod. 4c4.
throughout, and binding the reprefentative equally as Per Lord
the principal.
Hardwicke,
And, upon this principle, equity will decree an I Vez, 222.
agreement on evidence of its having been confeffed by
a party to it, although it be denied by his anfwer.
Therefore, where an agreement was proved by one Only v. Walker.
witnefs only, and pofitively denied by the defendant's 3 Aik. 497.
anfwer, but there was the circumftance of the defen-
dant's having confeffed the agreement proved in the
cauſe the mafter of the Rolls offered to direct an iffue
to try the agreement if the defendant defired it; but he
declined that, unleſs his honor would make an order
that his anſwer ſhould be read on the trial, which his
honor refuſed to do, there being circumftances to cor~
roborate
I 20
1
OF THE NATURE OF CONTRACTS
i
Lu
[*294.] roborate the evidence of the fingle witneſs. And
Legal v. Miller,
2 Vez. 229.
his honor decreed the agreement to be carried into
execution.
And there are cafes wherein both courts of law and
equity (for the rule is the fame in both) will let in
proof of parol agreements, as circumftantial evidence
to control written ones, to prevent the fraud taking
place which would in fuch cafes arife from infifting,
that fomething had got into writing which deprived
the party of the benefit of detecting this fraud. Thus
the defendant may, on a bill for specific performance
of a written agreement, infift upon a fubfequent parol
agreement between the parties by which the former has
been fince difcharged.
Thus where there was an agreement in writing for
taking a houſe at 321. per annum to be repaired by the
owner, and, it being afterwards diſcovered that it muft
I Vern. 240. be rebuilt, that was done without cancelling the writ-
Et vide Goman
v. Saliſbury,
ten agreement; but the tenant, apprized of the great
expence the owner muſt incur, agreed by parol, that
81. per annum fhould be added to the 32. which was
to have been given in caſe it had been only repaired:
the court, on a bill by the tenant filed on the foot of
[* 295.] the * written agreement (notwithſtanding it was infifted
that the written agreement ſhould ſpeak for itſelf, and
that no evidence could be admitted to contradict it)
received evidence of the parol agreement, and there-
upon difmiffed the bill with cofts.
Ibid.
But in the preceding cafe, the court, being ſatisfied
from the parol evidence, that a fpecific perforinance of
the written agreement ought not to be decreed, would
not, on difmiffing the bill, make a decree according
to the agreement which the defendant fet up; the maf-
ter of the rolls faying, that it would be very hard upon
a defendant, if (when a plaintiff unconfcientiously
brought him into a court of equity for the fpecific per-
formance of a written agreement, and the defendant in-
fifted on an agreement different from that the plaintiff
fet up, and the plaintiff replied to his anfwer and in-
fifted on his former demand, and went into proof, and
then, finding he could not have the decree prayed by
his bill, reforted to that which the defendant fet up)
the court ſhould decree againſt the defendant.
Another ground, upon which cafes have been held to
be
OR AGREEMENTS.
2
brances not re-
be out of the purview of this* ftatute is, not fo much [* 296. ]
on the principle of there being no danger of perjury
from carrying them into execution, as that the ftatute
ought not to be conftrued fo as to create or promote
fraud. And, therefore, where an agreement has been Pre.Chan.5 19.
carried partly into execution, and one party has incur- Upon fimilar
red expence in improvements; although a controverfy principles the
may afterwards arife between the parties as to the pre- have been con-
cife terms, yet, if they can be made out fatisfactorily fidered as not
to the court, the agreement, though refting on parol protecting pur-
chafers, with
evidence will be decreed, notwithſtanding variety of notice of pre-
evidence adduced in fuch caufe: for, in fuch cafe, in ceding incum-
order to prevent one fide from taking advantage of the
ftatute to be guilty of fraud, and thereby pervert its fuch preceding
object, a court of equity confiders his confcience as incumbrances,
bound, and itſelf as, thereby, cloathed with jurifdic- although their
purchaſes be re-
tion upon the ground of the equity arifing from the giftered. First,
circumftance of performance on one part; and, upon Becaufe, fuch
that foundation, retains the fuit notwithstanding the made to pre-
ſtatute, as not within the purview of it. Therefore a vent fraud,
leffee, in the cafe of a parol leafe a of ground for a great ought not to be
number of years, having begun to build, will have his fo conftrued as
bargain completed. The reafon is, that the leaſe is in Secondly. Such
to encourage it.
part executed on the part of the leffee, and, therefore, [297. 1
the leffor fhall not take advantage of his own fraud, to ftatutes are
run away with the improvements made by another.
*
giſtered, from
confidered as
leaving the
fubjects to which they apply, open to all equity.
2 Eq. Ca. Abr. 48. 16. 5 Vin. Abr. 522. Pl. 38. Et Pre. Ch. 56. 1. Et Fozcroft's
cafe in Dom. Proc. cited Pre. Ch. 519. Gilb. Rep. Eq. 4. et ibid. 11. where faid,
that the leffor, in this cafe, when dying declared, that he ought to have made a leafe
in writing, but the heir told him he fhould not difcompofe himſelf, for he would fup-
ply it; whereby, and by other fraudulent means, the leffee was prevented from fuing
the leffor. Sed vide Floyd v. Buckland, 2 Freem. 258. This point exprefsly fo de
termined on the ground of performance.
And, under fimilar' circumftances of money laid out in
purſuance of a parol promife of a leafe, a fpecific per-
formance was decreed; although the terms were not pre-
ciſely ftipulated between the parties, at the time of the
agreement.
Thus where the plaintiff's bill was to have a leaſe Anonymous,
according to the defendant's promife, the plaintiff hav- 2 Eq. Ca. Abr.
ing laid out money upon the eftate intended to be de- 48. 17. 5 Vin.
Abr. 523.40.
mifed the defendant infifted on the ftatute, there be-
ing no agreement in writing, nor any certain terms
agreed upon; and averred, that what the plaintiff had
laid out was not on lafting improvements, but admitted
that the plaintiff had built a ftable which coft him 10/
It was proved that the defendant told the plaintiff his '
word was as good as his bond, and promifed the plain-
tiff
OF THE NATURE OF CONTRACTS
:
tiff a leafe when he ſhould have renewed his own
from his landlord. Et per curiam, the defendant is
guilty of a fraud, and ought to be puniſhed for it; and
a leaſe was decreed to the plaintiff, though the terms
[*298. ]* were not expreſſed by the parties; for then it ſhould
be in the plaintiff's election how long he would hold
it, and he elects to hold it during the defendant's term
Halfpenny
v. Ballet,
2 Vern. 373.
405.
at the old rent.
And, upon the fame principle, namely, to prevent
fraud, the mafter of the Rolls decreed an agreement and
Et vide S. C. payment of a portion in the cafe of Halfpenny and Bal-
Pre. Chan.404, let. That was a cafe wherein, on a marriage treated
upon between the plaintiff and the defendant's daugh-
ter, an agreement was reduced into writing and figned
by the plaintiff, and delivered to the defendant to be
figned by him, but denied in the defendant's anfwer to
have ever been figned by him, he having tora it, being
diffatisfied therewith in fome particulars. But his ob-
jections not being to any material parts of the agree-
ment, and he having permitted the plaintiff to court his
daughter, and the marriage having been afterwards had,
and he not having declared his diflike until aſked for
payment of the portion, and having permitted the young
perſon to live with him, the mafter of the Rolls decreed
a fpecific performance; confidering the defendant's con-
duct as founded in fraud.
[* 299.]
Wanchford v.
Fotherley,
2 Freem. 201.
}
*So, where the bill was for a portion upon marriage
of the plaintiff with the defendant's daughter, it ap-
peared that there was no note or agreement in writing
figned by the defendant for the payment of it, but that
a letter had been written to the plaintiff by a third per-
fon offering a portion, which it was in proof was done
by the defendant's confent, and that a treaty for a fuita-
ble fettlement was had with him; but the matter being
Jong in fufpence, the marriage took place in the mean
time. The court, although it appeared that the de-
fendant, before the parties went to church, declared he
would give them nothing, and the ftatute of frauds was
infifted upon, decreed for the plaintiff; confidering
the countermand as nothing after the young people's
affections were engaged.
And poffeffion, delivered in purſuance of an agree-
ment, is alſo fuch a degree of performance, as is fuf-
ficient to take a contract out of the ftatute, although
the purchaſer has not inveſted money upon the premif-
fes. Becauſe the mifchief the ftatute meant to prevent
exiſted in ſuch agreements only, no part whereof were
carried
OR AGREEMENT S.
*
carried into execution, and which were fet up merely
by parol: therefore, exccution on one part has been [ 300. ]
looked upon as fo far conclufive, as to induce the court
to decree an execution on the other part, rather than
the agreement, fo far as it has been already carried into
execution, ſhould be deftroyed.
Thus, where A. feized of lands, agreed with C. to Butcher v.
fell the fame to him, and a fhort note was drawn up of Stapely, et al.
the agreement (but not figned by either party) and, foon ² Vern. 363.
after the agreement, C. put in his cattle and made en-
croachments on A.'s other lands; whereupon A. de-
fired to undo the bargain, but C. refuſed to conſent to
that, and then A. fold the land to D. Upon a bill filed
by C. for a ſpecific performance, the ftatute of frauds
was pleaded. Et per curiam, Inafmuch as poffeffion
was delivered according to the agreement, the bargain
was executed, and the fpecific performance was decreed.
tra. 2Vern.45%.
So where A. having mortgaged the lands in queftion Pyke v. Wil-
to B. for 750%. died, leaving an infant his heir, and, it liams, et e con-
being for the advantage of the infant that the citate
fhould be fold, an act of parliament was procured for
that purpoſe, and a public furvey was held for the [* 301. J
fale of it, at which. C. bid 1250 for it, but D. bid
1350l. and figned the contract. D. foon afterwards
died, and then C. offered 1250l. again for it, which
was accepted and agreed unto; and thereupon con-
veyances were directed to be made, and poffeffion ac-
tually delivered. C. afterwards got an affignment of
the mortgage which was ante-dated, and then, pre-
tending that he took poffeffion under the mortgage
he filed a bill to compel the infant to redeem or be
forecloſed; and there was a croſs bill to compel C. to
compleat his purchaſe. And the taking poffeffion un-
der the mortgage being difproved, the fimple queftion
was, whether upon the circumftances of this cafe the
agreement, although only by parol, fhould be carried
into execution against C. And the lord keeper de-
creed that it fhould, and that C. fhould proceed in the
purchaſe, in cafe a good title could be made.
Again, where a bill was filed to have a diſcovery Borret v.
Gomeleria,
of a parol agreement for the fale of copyhold lands,
Bunbury's Rep.
and whether the defendant did not pay 2001. part 94. in feaccario.
of 2300l. being the purchaſe money, and if the 2 Eq. Ca. Abr.
plaintiff did not give the defendant a note acknow- 48. 17.
ledging the receipt of the 2001. and promife to make a
good
OF THE NATURE OF CONTRACTS
:
[* 302.] * good title, and whether he did not bring his writings
before the defendant's counſel who approved of the
title, and alfo to have a ſpecific performance. The
defendant pleaded the ftatute of frauds. But the plea
was over-ruled, and it appearing in proof, at the hear-
ing, that there was no fraud, that the lands were worth
2335%. that defendant had done feveral acts of owner-
fhip, as ordering in bricks, fifhing in ponds, &c. and
had made frequent promifes; the court decreed for the
plaintiff.
Vide fupra,
et S. C.
1 Vern. 365.
Sed note, the
chancellor
thought that
the purchaſe of
D. in this cafe
And, in ſuch cafes, the taking poffeffion under the
agreement, will be deemed notice to a fubfequent pur-
chafer. Thus it was held, in the cafe of Butcher
against Stapely before-mentioned, that C.'s putting in
his cattle and taking poffeffion, was notice to D.
Nor can fuch agreement, fo executed on one part,
was a contriv- and followed by an enjoyment accordingly on the other,
ance between be fo far impeached as to lay the party open to an ac-
him and A. to count for the profits he has received under the enjoy-
gain; fo quære? ment; becauſe, it was faid by the court, that would be
much harder than fetting afide the agreement at firſt for
want of writing.
avoid the bar-
Pre.Chan. 519.
[* 303.] * And in the cafe of Lady Herbert and the Earl of
Lady Herbert Powis and others, determined in the houſe of Lords on
v. Earl Powis,
et al. Brown's appeal from a decree of Lord Northington an agreement
Par. Ca. vol. vi. by parol, made by an agent of the earl's with Lady
102.
Herbert, that his lordſhip fhould pay her 200l. a year
by way of annuity, in confideration that fhe confented
to the appointment of a lady as guardian to her niece
Mifs Herbert, to be named by his lordſhip, with a view
to place her in a fituation wherein he might have acceſs
to her to pay his addreffes, and with a perfon who in
that character would confent to the match, whereby
his lordship's title to the Powis eftate, which was then
difputable, being held only under the will of the laſt
marquis, would be fettled, the being niece to Lady
Herbert, and heir at law to the Powis eftate, was or-
dered to be carried into execution on his lordship's
part; Lady Herbert having performed her part of the
agreement by confenting to the appointment of the
guardian, whereupon the marriage was had, and an end
put to all litigation. And fuch confent, being the com-
promiſe of an intended lawfuit, was held to be a good con-
fideration to ſupport a promiſe in law, whereof the pro-
mifee might claim the benefit either by an action at law,
or
OR AGREEMENTS.
Beach. I Vez.
297.
*or a fuit in equity, as the nature of the cafe required. [304. 1
Again; where, previous to the defendant's marriage, Taylor v.
gool. the property of his wife by a former marriage,
was agreed to be affigned to truftees for her feparate ufe
during coverture, and to be applied after her death to
fuch uſes as the fhould appoint; and after the marriage
a draft of an affignment was prepared, and corrections
made in the hufband's hand-writing; and he ſuffered
her to receive the intereft of it to her feparate ufe dur-
ing the coverture. Thefe circumftances were
fidered by Lord Hardwicke as a part performance, and
as taking the agreement out of the ftatute. His lord-
ſhip obferving that, if the ftatute were fuffered to be
pleaded to the difcovery even of a parol agreement in
fuch cafes, it would be very mifchievous.
con-
Sidney v. Sid-
ney, 2 Eq. Ca.
Abr. 29. Pl. 37.
Gilb. Chan. 23 [
Cutting down of timber likewife, is a part execution
of articles, made on marriage, for fettling an eſtate.
Payment of money is, in fome cafes, confidered by
the court of Chancery, as a part performance of an Lacon v. Mer-
agreement. Thus, where * A. having occafion for tins, 3 Atk. 2.
money, came to a parol agreement, entered into on her [* 305.]
behalf by her agent with B. that A. in confideration of 5 Vin. Abr.523.
a certain fum to be paid by B. fhould convey her lands, 40.
&c. to him and his heirs, fubject to eftätes for life of
C. and D. the purchaſe money to be applied as then
ftipulated and B. in part of the agreement, paid A.
feveral fums of money, for part of which he took her
bond, till the agreement could be completed; and
thereupon a leaſe of part of the lands purchafed was
renewed, and the life of B.'s fon inferted with the ap-
probation of B. according to the agreement, and then A.
died. On a bill to compel a ſpecific performance, filed
by a creditor by ſimple contract againſt B. and the heir
of A. the heir objected, that he was a ftranger to the
tranfaction, and that if any fuch parol agreement had
been made, he was not bound thereby, in regard it was
not reduced into writing, nor in any fort performed
by A. in her life-time. It was fworn pofitively, that
the money had been applied for, and abfolutely paid
upon the foot of the agreement, And Lord Hardwicke,
upon
OF THE NATURE OF CONTRACTS
"
[*306.] upon all the circumstances of the cafe, decreed a fpe-
cific performance.
S.L. Leake v.
23, 20. Pre.
Chan. 560.
Lord Pengall v. But where A. agreed with B. to make him a leaſe
Rofs, 2 Eq. Ca. for twenty-one years, of lands rendering rent, B. pay-
Abr. 46. 12. ing A. 150l. fine, and B. paid 100l. in part to A.'s
Morrice, 2 Ch. agent, which A. knew of, and ordered his own agent
Ca. 135. S. C. to prepare the leafe, but before it was executed, A. re-
1 Eq. Ca. Abr. pented and refuſed to grant it; B. having paid 100l.
earneſt, exhibited his bill for a fpecific performance:
it was held, that this payment was not fuch a perfor-
mance of the agreement on one part, as warranted the
court to decree an execution on the other; becauſe a
parol agreement refpecting lands cannot be good,
within the ftatute, by giving money in earneft; for
there muſt be fomething more than a bare payment on
the one part, to induce the court to decree a perfor-
mance on the other part, either by putting it out of
the parties power to undo the thing, or doing fome-
thing that would be prejudicial to the party performing
it; but the money was ordered to be refunded.
[* 307. ]
But it feems to be the better opinion, that * pay-
Bacon's Abr. 64. ment of money alone may be a part performance to take
et Ġilb. Ch.231. a cafe out of the ftatute. But the doubt in ſuch caſe
2 Chan, Ca. 36.
ſeems to have been, what ſhall be a proof of the receipt
thereof as fuch. Thus far feems certain; if the defen-
dant in his anſwer confeffes the receipt of the money for
the purpoſe charged in the bill; or if he denies the receipt.
as in part performance, and it be proved upon him by
writing, as by letter under his hand, or other written
evidence, he thall be obliged fpecifically to perform the
whole agreement, becauſe he has carried it in part into
execution. But if the defendant confeffes the receipt.
of the money, and fays that he borrowed it from the
plaintiff, and that he had it not in execution of that
agreement, there, he turns the proof of the agreement
on the plaintiff, and then, it is faid, the plaintiff muſt
prove the receipt of the money by the defendant for the
purpoſe in the bill mentioned, by ſome written agree-
!
Vide Gilb. Ch.
232. where
there is a paf-
fage which,
ment.
However, this appears to be in fome degree quefti-
onable; becauſe, in fuch cafe, the parol evidence is
applied to the act of receiving, which is a confequence
of and collateral to the act of contracting, and confe-
quently
•
•
OR AGREEMENT S.
vation,
quently * affords a further evidence of the bargain, [* 308. ]
though obfcure-
than the parol proof of fuch bargain only; namely, an ly written,
act done in purſuance of it, which furniſhes a diftinct feems to war-
fact, that appears to be the proper fubject of difcuffion rant this obfer-
before a jury, who, in fuch cafe, would be competent
judges of the credit of the parties, and might, by their
verdict, decide, whether the payment of money was in
part performance or not; and thereby determine, whe-
ther the cafe was or was not within the exceptions taken
out of the ftatute. Sed quære.
And in cafes of earneſt paid, an action of law may
be brought, and damages recovered for non-perfor-
mance, although there be no remedy in equity. The
reaſon of which is, that where equity affifts the common
law, and enforces the performance of the agreement in
fpecie, it does it upon important reafons; namely,
where otherwiſe there would be a great burthen and
penalty upon the party, if having performed part, by
which he himself has a lofs, and the other a benefit, he
fhould not have a reciprocal performance.
Lacon v. Mer-
vide Hawkes v.
But-
ter, 1 Bac. Abr.
And an agreement by parol, part* performed, will [309. ]
be decreed againſt the heir of the vendor under it.
But as the principle which governs the court is, that tins, fupra. Et
the act, done in part performance, is prefumptive evi- Hawkes, Finch
dence that the agreement was really made, it muſt be 300.
of fuch a nature, as the court is fatisfied would not Sanfum v.
have been done, unless on account of the agreement. 74. Per Lord
And, therefore, where a leffee agreed by parol to take Hardw. 3 Atk.
a leaſe for a term of years certain, and continued pof- 4.Smith v. Tur-
feffion on the credit thereof; there being no writings Chan. 561. et
to make out the agreement, it was held to be directly vide Hole et
within the ftatute.
ner, cited Pre.
White, cited
Brown's Rep.
Marriage alone is not confidered, in equity, as part Ch. 409.
performance of an agreement made between the parties vid. Vifcoun-
themſelves, although it is confidered as fuch to bind a tefs Montacute
third perfon as in the cafe mentioned before, of a letter v. Maxwell,
written by a father, promifing to give fuch a fortune fupra Sanfumv.
Butter, Bac.
with his daughter to any one who ſhould marry her, in
Abr. 74.
which cafe a man, who marries on the encouragement
of this letter, fhall recover; becauſe the agreement is
executed on his part as far as it can be, and can never v. Gilborne,
Pre. Ch. 561. et
vid. Brownfmith
be Strange. 738c
1
:
OF THE NATURE OF CONTRACTS
:
[*310.] be undone after. The reaſon why * marriage alone is
Lamasv. Bayly,
vide 5 Vin. Abr.
45. 10. both
which feern to
Vernon, and
reft the chan-
not looked upon as an execution of the one fide between
the parties, fo as to take fuch cafe out of the ftatute,
feems to be, that, if it were, the ftatute would be en-
tirely evaded; for all promifes of this kind ſuppoſe a
marriage had or to be had.
And the fact of one party purchafing, defifting from
2 Vern.627. fed his purchafe in favor of another party on certain con-
521. Pl. 32. et ditions ftipulated, is not a part performance to take
2 Eq. Ca. Abr. an agreement in favor of the party defifting, as to part
of the lands purchaſed, out of the ftatute; for, where
be the fame cafe A. being about to purchaſe a toft of ground of B. and
as reported in C. being alfo treating for the fame premiffes, met to-
gether; and it was propofed and agreed, that A. fhould
cellor's decree defift and permit C. to purchaſe, he agreeing to let A.
on the ground, have, at a proportionable price, that part of the
that there was ground he defired; and thereupon A. defifted, and B.
pofitive agree- completed his purchaſe; and afterwards A. refufed
to perform the agreement: on a bill filed by A. upon
the ground of the agreement's being in part executed,
Lanceitain; and by his defifting from profecuting his purchaſe, a ſpecific
performance was decreed at the Rolls: but on appeal
ground that the to the chancellor, the decree was reverfed.
forbearing by
no abfolute nor
ment, the
words being
ambiguous and
not on the
agreement to
and raife as
lated in return,
* Again; on a bill filed in the court of Chancery in
[* 311.] Ireland, for fpecific execution of a parol agreement for
do an act might the purchafe of an eftate, proof of the delivery of a
not be a part rent-roll to the purchaſer, altered and dated by the fel-
performance, ler in his own hand-writing; of his delivering the deeds
frong an equis to the purchafer's agent, to be compared with the rent-
ty to have the roll, and laying an abftract of his title, and a cafe
benefit ftipu- thereupon, before counfel, in which it was ftated,
as an act done. that the purchafer had agreed with the feller for the
purchaſe of the lands at twenty-one years purchaſe; of
Whaley v. Ba- his giving the purchaſer a lift of his debts which af-
geniall, fected the eftates, and authorizing him to apply to his
creditors, to feveral of whom, and to other perfons,
the feller was charged to have written letters himſelf,
informing them that he had agreed with the purchafer
to fell; and of his afterwards fending to the tenants to
treat with A. as owner of the effate, for renewal of
leaſes, and to cut down timber; and to prevent the
effect of an elegit againſt him, of his producing evidence
before a jury that fuch agreement and purchafe had been
made, was held not to be fufficient, on the ground of
a part execution, to take the agreement out of the fta-
tute of frauds: but the bill was ordered to be difmiffed,
6 Brown's Par.
Ca. 4.5.
and
,
i
OR
AGREEMENT S.
*
and that* order of difmiffal affirmed on appeal to the [ 312. ]
houfe of Lords.
And poffeffion, under a parol agreement, of how- Ireland. Rittle
ever long ſtanding, will not be a ground to eſtabliſh it, I Atk. 620.
if it appear that the perfons who made fuch agreement
had not a right to contract. As if an agreement for
partition be made by two hufbands, of land belonging
to their wives, without the confent of the wives;
for they cannot thereby bind the inheritance of their
wives.
!
[ 33 ]
Of Contraŭs or Agreements, conßdered
as fuch in Equity, arising out of In-
Gruments, &c. having a different Effec
at Law.
E &
QUITY, which adverts to the fubftantial object
of all contracts, independant of the forms which
they affume, gives effect to the intent of the parties,
by confidering their acts as evidence of fuch a contract
or agreement, as will produce what is ftipulated. Con-
cerning which two things are to be confidered. Firft,
What, in the view of a court of equity, amounts to a
contract or agreement. Secondly, How it may be
proved in equity.
Firft, It is clear that any kind of written contract, if
it exprefs the intent of the parties, to ftipulate with a
view to fome particular thing collateral to the contract
itſelf, will, in equity, amount to an agreement reſpect-
[* 314.] ing * that thing; although, in form, it affume a dif-
ferent character.
Anonym.
Mofeley 39.
I Strange,
2 Vez. 373:
" in con-
Thus where the condition of a bond was,
fideration of ſo much money in hand paid, to convey
and affure certain lands;" the mafter of the Rolls de-
10 Mod. 517, clared, that bonds of this nature were always confi-
518.9 Mod 62. dered, in equity, as articles of agreement, and decreed
the condition to be fpecifically performed.
Acton v. Pierce,
So where A. on his marriage agreed to leave B. his
2 Vern. 480. wife 1000l. if the furvived him; and the drawing the
marriage agreement was left to the parfon of the pariſh,
who made a bond from A. to B. in 2000/. conditioned
to leave her 1000l. if fhe furvived him: the queſtion
was, whether this bond, although releaſed at law by
the intermarriage, did not fubfift as an agreement in
equity, and entitle the plaintiff to a fatisfaction out of
the real and perfonal eſtate of A. And it was held
that it did fubfift, and bound both the real and per-
fonal eſtate.
And the conftruction will uniformly be the fame in
equity, although the inftrument has become void by
fome matter ex poft facto.
Thus
OF CONTRACTS, &c.
1.
Dale v. Smith-
wick, 2 Vein.
* Thus where A. lent B. ſeventy pounds, and for his [* 315. ]
fecurity took only a warrant of attorney to confeſs a
judgment in ejectment of three clofes upon a feigned 151.
demiſe for twenty years. It was held, after the death
of B. that this was a defective legal fecurity, but that
it amounted to a good agreement, in equity, to charge
the land; and it was decreed accordingly againſt the
heir.
Again, if two perfons give a joint bond, and one of Vide 2 Vez.
them (the condition being forfeited by the day being 371, 374.
paſt) pay off the money, and put the bond in fuit
againſt the other in the name of the obligee: the other
obligor may, on the act of parliament for the amendment 4Anne,cap.16.
of the law, plead, that his co-obligor has paid the prin-
cipal and intereft on the bond before bringing the ac-
tion, and this will be a difcharge of the bond. But,
although the bond be diſcharged at law, yet equity will,
upon a bill to compel the co-obligor to make contri-
bution, or to pay the whole, if he were liable to the
whole, either direct that he fhall pay the money to the
other obligor, or it will at leaft reftrain him from plead-
ing payment by the other obligor, who is fuing him at
law. And the reaſon the court goes upon is, that * the [* 316. ].
bond is confidered as an agreement in writing; and,
therefore, though the obligation and penalty is gone
by the legal demand being gone, yet the condition,
taking it altogether, is confidered, in equity, as an
agreement under hand and feal to pay the money.
243
So where a feme fole, feifed of land and defigning to Cannel v. Buc
marry, agreed with her intended hufband, that the, kle, 2 P. Will.
upon the marriage, would convey her lands to him
and his heirs; and for that purpofe fhe, previous to the
marriage, gave a bond in 200ol. penalty to the in-
tended huſband, conditioned, that in cafe the marriage
took effect, ſhe would convey her lands to him and his
heirs; the marriage was had; the hufband enjoyed
during his life; and, on his death, his heir brought a
bill in Chancery againſt the heir of the wife to compel
him to convey the lands of the wife to the heir of the
huſband. It was objected that the bond became void
by the intermarriage. Sed per curiam, The impro-
priety of the fecurity, or the inaccurate wording of it,
is not material; for it is fufficient that the bond is a
written evidence of the agreement of the parties, that
the hufband, in confideration of marriage, fhould have
the land as her portion.
So
•
:
•
OF CONTRACTS OR AGREEMENTS
*
317.]
Watkins v.
Watkins,
2 Atk: 97.
L. Raym. 683.
3
Keb. 304.
2 Vern. 540,
Rep.40. Chan.
594. 3 Chan.
* So where a woman, having a confiderable fortune,
upon her marriage trufted her intended huſband to
draw up a bond to fecure 1700l. for her, in caſe ſhe
fhould furvive him; Lord Hardwicke faid, that the
court in a caſe of this fort would interpoſe, and make
the agreement according to the intention of the parties;
and though the bond might be void in law, yet that
court would eſtabliſh it in favor of the woman. And,
for that purpoſe, his lordſhip declared the bond to be
an impoſition, and directed her perfonal eſtate to be
placed out on fecurity, the intereft to be appropriated
during the joint lives of the hufband and wife as in
the decree mentioned; and, in caſe the huſband died in
the life-time of the wife, then the 1700l. to be paid to
the wife as agreed upon in the bond.
So an affignment of a chofe in action, as a bond, or
the like, which in law is not affignable, is valid in equity
whether it be entered into with or without confidera-
tion. For a court of equity proceeds upon the princi-
Ca. 232. 2 P. ple, that the affignment, although not effectual as fuch
at law, the bond not being affignable in` point of inte-
reft, amounts, nevertheleſs, to a covenant or agree-
[* 318.] ment, that the affignee ſhall receive the money to his
own ufe; which covenant or agreement, that court
will carry into ſpecific execution.
Will. 608.
Videi Vez.
445, 450.
3 P. Will. 188.
Et vide 1 Vez.
-539.
Upon the fame principle it is held, that, although
an award or fubmiffion to arbitration is diſtinguiſhable
from an agreement, inasmuch as the former cannot be
ſupplied by interpofition and act of a court of equity;
becauſe, generally, in thoſe caſes, the time is condi-
tional, namely, fo as a determination be made by ſuch
a day, and alfo, therein, matters are left to the judg-
ment of the arbitrators; yet an acceptation of any
thing under it, is evidence, in equity, of an agree-
ment to perform it.
Hallv. Hardy,
Thus where one accepted part of money, awarded on
3 P. Will. 187. a bond to ftand to the award of arbitrators touching a
matter in difpute, he was confidered as having under-
taken to perform the award; he having thereby con-
fented to it, and made it his own agreement for a va-
luable confideration, namely, the money paid him.
And upon this ground a ſpecific execution of the award
was decreed; although his honor faid that there was,
unleſs in very particular circumftances, no inftance of
a bill
AS CONSIDERED IN EQUITY.
-\
a bill * having been brought for a performance of an [* 319. ]
award.
So where A. and B. had ſubmitted to an arbitra- No ton v. Maf-
call, 2 Vern. 24°
ment by bond, and an award was made (not binding
by form of law) by which A. was to pay B. gool. and
to feal a releaſe to him, and B. was to affign feveral fe-
curities he had from A. and A. fold fome lands to raiſe
the 900l. expecting that B. would receive it, as he had
given him intimation he would, and tendered him the
gool. and a releaſe executed: the court, though there
was no other execution of the award on A.'s part, and
though it was extrajudicial and not good in ftrictnefs of
law, decreed that it ſhould be performed in fpecie.
Secondly, Having fhewn what amounts to an agree-
ment in equity, I fhall now proceed to point out, how
an agreement may be made out in equity.
An agreement may be made out in equity, Firft, By
proof of a pofitive agreement in terms: as by the pro-
duction of an agreement in writing to do, or omit do-
*
ing, a particular thing; or, by evidence of a parol [* 320. J
agreement of the fame nature in part performed.
Secondly, by proving circumstances, from the nature
of which equity will infer an agreement.
The cafes preceding, namely, thofe that fhew what
amounts to an agreement in equity, nearly demonſtrate
the principles which courts of equity have adopted as
to proof of the circumftances from whence they infer
fuch agreements; for there is little, except verbal dif-
ference, between the proof of an agreement, and the
circumſtances which render it an agreement; for, the
circumstances which prove it fuch, conftitute it to be
But this head of our enquiry may be further il-
luftrated by the following cafes.
fo.
If a
man grant a rent-charge out of a bishop's Gilb. Chan.
leafe, and convey it by way of demife and re-demife, 244.
fo that the leafe is re-demifed fubject to the rent-
charge; a court of equity will, if the grantor agree
for the renewal of the leafe, compel the grantee to join
the grantor, the latter undertaking to convey to the
VOL. I.
grantee
M
OF CONTRACTS OR AGREEMENTS
[* 321.] grantee
[322. ]
Palkeret v.
Serjeant, et al.
Finch. 147.
the additional lives in the fame manner as be-
fore for the fecurity of the rent charge. And it was
the opinion of the court, likewife (in the cafe alluded
to by Baron Gilbert, that the grantee might have com-
pelled the grantor to have renewed, if there had been a
failure of lives or fluxion of tine; becauſe the grantee
of the annuity might have had a writ of annuity, and
thereby have continued the payment during his life, if
he had not reforted to the lands: and, therefore, when
he did refort to the lands, he fhould have all remedy.
that could be obtained to make them a fecurity to him
during his life in all events; the circumftances of the
contract warranting a conclufion, that fuch was the in-
tent of the contracting parties.
But it ſeems doubtful, whether the court would
have compelled the grantor to renew, if the biſhop had
refuſed on the common terms; for if the bishop had re-
fuſed to renew on the common terms, it would have
been tantamount to an abfolute refufal, and the grantee
must have been contented with the fecurity of the lives
in being.
Again, where A. upon a treaty of marriage * be-
tween B. his nephew and C. made propofals in writing
to C.'s father, by which A. promifed and agreed; that
if the marriage took effect, and 2500l. were paid, or
fecured to be paid, for her portion, he would fettle
200l. per annum out of certain tythes and lands for a
prefent maintenance for B. and C. and for her jointure,
if ſhe ſurvived; and that he would fettle an eſtate in
fee of all other his meffuages and lands, being of the
value of 70cl yearly, and alfo affign over and ſettle
2000/ part of the 2500/. upon his nephew for his fur-
ther maintenance after A.'s death; this marriage did
not take effect. Afterwards there was another treaty
of marriage between B. and S. and A. being acquainted
therewith, he, to induce this marriage, fent the before-
mentioned propoſals in writing to be communicated to
the executors of S.'s mother; and by another writing
under his hand, which he tranfmitted therewith, pro-
mifed and agreed that, if the marriage took effect, he
would make a fettlement according to the former pro-
pofals, with this addition, that although formerly he had
demanded 1500l. to be paid down, and fecurity for the
remaining 1000l. he would then be contented to tay
for the whole, fo that it was fecured to be paid in fome
convenient
AS CONSIDERED IN EQUITY.
convenient time* agreed upon. No anfwer was re- [* 323. ]
turned to theſe propofals; but B. was admitted, and
the marriage took place. Afterwards A. died. And,
on a bill exhibited against his reprefentatives by B. for
a specific performance, it was adjudged by the lord
keeper, that, when A. fent propofals, and defired to
have his nephew admitted a fuitor to S. although no.
anſwer was returned to A. yet the acceptance of the pro-
poſals by the friends of S. and the admiffion of B. as a
fuitor, upon which the marriage did enfue, amounted
in equity to an agreement executed, and ought to be
performed on all fides.
Thirdly, An agreement may be made out in equity,
by proving an inftrument, from the nature of which
equity will infer an agreement.
Abr. 22. Pl, 20.
*
Thus where A. feifed of a copyhold eftate, and in- Parks v. WiÍ-
tending that his fifter, who was his heir at law, fhould fon, 10 Mod.
not have his land, but that her fon fhould have it, re- 515. 2 Eq. Ca.
folved to ſurrender it to the uſe of his will, and devife Et vide 1 Eq.
it to him: but a furrender not being practicable by rea- Ca. Abr. 18, 8.
fon of ſome accident, he prevailed on his fifter to give
Ibid. 393, 5.
a bond to him, that he would, at any time, upon [ 324. ]
the payment of 2001. and upon the requeſt of her fon, 9 Moď. 62.
furrender the eſtate to him; and then A. died. On a
bill filed against the reprefentatives of his fifter, praying
a decree for a ſurrender purſuant to the condition of the
bond, it was fo decreed by Lord Parker, chancellor ;
his lordſhip ſaying, it was plain from the nature of the
tranſaction, that it was the fixed intention of A. that,
one way or other, his nephew fhould have the lands.
Not being able to furrender them, he had recourſe to
this bond, as the best method to fecure them to him;
ſo that this bond was not to be confidered as fomething
given in lieu of the land, but as another medium of
fecuring the land to him. And, on the part of the
mother, it amounted plainly to an agreement that the
fon fhould have the land.
And where there are plain footsteps of a further
agreement, which must have been entered into con-
comitant with a power to fell a real eſtate, but which
is not forthcoming, although, without inferring it,
the inftruments that are produced are unintelligible,
and the language of them abſurd; a court of
equity, to uphold the intention and meaning of the
parties
M 2
OF CONTRACTS OR AGREEMENTS
Vide Newton
v. Newton, et
[*325.]* parties in the matter of a truft, will fupport what is
wanted by intendment, and will prefume that, among
the contents of the agreement of which ſuch ſtrong
traces are found, there were thoſe ftipulations which are
abfolutely neceffary to give effect to the true and evi-
dent meaning of the parties. Ex. gratia. A court of
equity, from provifions in a fubfequent inftrument,
which plainly evinced that the money arifing by fale
of land was to be inveſted in the purchaſe of other
lands to be fettled to trufts, fimilar to thoſe to which
the lands fold were united, inferred an intermediate
agreement or article, for laying out the money, arifing
from the fale, in that manner.
al. 7 Brown's
Par. Ca. 21.
Attor. Gen. v.
Whorwood,
* Vez. 534.
And a court of equity will, from a fubfequent tran-
faction, raiſe an agreement acceffory to a precedent tran
faction, where the circumftances warrant fuch an in-
ference, and it is neceffary, in order to do juftice be÷
tween parties.
Thus where A. being, on his marriage with a
daughter of B., to receive a large portion with her,
agreed that it ſhould be fettled for her benefit for life,
*children, then on himſelf.
[*326.] and, if there were no
Afterwards, on the death of a fifter, an acceffion of.
fortune came to B. to arife by fale of her father's eſtate,
which was veſted in truſtees, who were to raiſe certain
fums of money out of the eſtate, and afterwards to
divide the refidue among his three daughters. The
wife of A. joined in levying a fine for fale of this eftate.
D. a truſtee in the marriage articles, and who had
married the third daughter, acted in the fale, and re-
ceived the whole purchaſe money. A. gave a receipt
to D. for his part of the purchaſe money paid for the
eftate, which he thereby promifed and agreed to lay out
Then A. died,
purfuant to the truft repofed in D.
having devifed his real and perfonal eftate away from
his wife. And one question, upon a croſs bill filed by
her, was, whether her fhare of the lands, which came
to her on the death of her fifter, as well as the lands and
tenements, purchaſed with the fhare fhe was entitled to
out of her father's eftate (which was agreed by the
articles to be fettled) fhould be bound by the marriage
articles. And on behalf of the husband it was argued,
shat ſhe was not entitled to have the benefit of the eftate
arifing from her fifter's death, by its being fettled pur-
fuant
AS CONSIDERED IN EQUITY.
*fuant to the articles; * becauſe it was not within the [327]
articles, and there was not fufficient proof of any fuch
agreement extending to that eſtate, as would bind thoſe
ftanding in the place of the hufband: that the wife had
levied a fine before it came into the hands of the truf-"
tee, and then the money, coming in lieu of the eſtate,
was abfolutely the huſband's, and the court would not
have fuffered the perfon, into whofe hands it came, to
have retained it, and faid, that a fettlement fhould be
made on the wife. But Lord Hardwicke was of opini-
on, that the note was fufficient to bind the teftator, his
reprefentatives and the claimants under his will, to a
performance of what was there agreed to; for a man
might, as between himſelf and his wife, make an agree
ment or declaration of truft in his life-tim", which,
though not for valuable confideration, fhould take
effect against his executors and adminiftrators, or thofe
claiming voluntarily and in reprefentation under him
after his death. Then, as to the conftruction and
extent of the note, his lordship thought that it was a
reaſonable act for him to do, and he faid, that it had
been truly infifted, on behalf of the wife, that on the
hufband's application for the money, the court would
undoubtedly have ordered a further fettlement. If, [* 328.]
then, the parties did not come into court, but acted
among themselves, and the hufband had agreed to do
that, which the court would have directed, had the
wife infifted on it in a proper fuit, it fhould have its
full effect. Though it did not appear in the caufe,
that the wife had levied a fine before this money came
into the hands of the trustee, as it had been faid; yet,
if ſhe had done fo, that must have been to fatisfy the
purchafer, as he was married: his lordship would not
divide one act from the other, but would take all as
one tranfaction; and, he ſaid, that this note, though fub-
fequent, was an evidence of what was the agreement and
intent, viz. that this money fhould be laid out in the
purchaſe of land to be fettled to the fame ufes. The
circumftance warranted that conftruction. The truf-
tee in the marriage articles being the proper perfon to
intervene and receive the money arifing by fale of that
other fhare, and to fee the articles performed for her
benefit, he had received the whole. The hufband
coming to receive it out of his hands, had received it
on fuch a promife, which was an evidence of the terms
on which the money was paid to him, and of the agree-
ment
OF CONTRACTS OR AGREEMENTS, &c.
1
[* 329,] ment and intent on which the wife joined in the fine
for fale of this eftate. It was reaſonable, and what the
court would have obliged him to, had he come before
it; for that was the diftinction. If a huſband could lay
hold of the wife's eftate without aid of a court of equity,
the court would not compel him to fettle it, as they
would where he could not come at it without ſuch aid,
which was the prefent cafe. The fum was particu-
larly afcertained, and included both fhares, as well that
which aroſe on her fifter's fhare, as her original ſhare.
And the promiſe was to lay out the whole of that fum,
which therefore his lordſhip was of opinion must be laid
out purſuant to the trust.
Of
!
[ 330 ]
Df the Confideration neceflary to fup-
port a Contra& or Agreement.
A
Confideration is the material cauſe of a contract or
agreement; or that, in expectation of which,
each party is induced to give his affent to what is ftipy-
lated reciprocally between both parties.
We have ſeen that there are two ways of making con
tracts or agreements. The one by parol, and the other
by writing. Now, fince words are frequently spoken
by men unadvifędly and without due deliberation, the
law will not bind a man to an executory contract en-
tered into by words only, if it be not founded on a
good or valuable confideration. And, therefore, if
one man promife or covenant by parol to give another
man 20% to make his (the latter's) houfe de novo; or
towards his loffes by fire, or the like; here the latter
ſhall not have an action againſt the former for the 201.
* So if one buy of me an houfe, or other thing for [331. ]
money, and no money be paid, nor earneft given, nor
day fet for payment, nor the thing delivered; here no
action lies for the money, or the thing fold, but the
owner may fell it to another if he will: for ſuch pro.
mifes or contracts are deemed nuda paɛta, there being
no confideration or cauſe for them, but the covenants
themſelves, which will not yield an action: and this
agrees with the definition of nudum pactum, as given by
the civilians, namely, nudum pactum eft ubi nulla fubeft
caufa præter conventionem.
11 H. 4. 33.
Plowd. 302,
309.
Dyer 30 b. 336.
b. Fitz debt.
126.17 E. 4 4.
3
Therefore where a carpenter, by parol without 11 H. 4. 32. ão
writing, undertook to build a new houfe, and for the Bro. act fur le
not doing it the party brought an action or covenant
cafe 40.
against the carpenter, and it did not appear that he was L.
H. 6. 36.
to have any thing for building the houfe; it was ad-
judged, that he ſhould take nothing by his writ.
So if a man by word of mouth, or by writing fealed
and not delivered, fell me his horfe, or any other thing,
and I give him or promiſe him nothing for it; the con-
tract is void, and the property in the thing fold is not
altered thereby.
But
Rayın 909.
OF THE CONSIDERATION
[ * 332. ]
የ *
*But it is otherwiſe if contracts or agreements be
by deed under feal and delivered, becaufe there is then
more time for deliberation; for when a man paffes a
thing by deed fo conftituted, there is firft the determi-,
nation of the will to do it, which is one part of delibe-`
ration; then the party caufes it to be written, which is
another part of deliberation; and, laftly, he delivers
the writing as his deed, which is the confummation of
his refolution. And by the ceremony of the delivery of
the deed from him that makes it to him to whom it is
made, the former, in confideration of law, gives his
affent freely and deliberately to part with the thing con-
tained in the deed, and that it ſhould paſs from him to
the other. Therefore, on account of this deliberation
in the making of deeds, they are in law conclufive up-
on the party executing them, and bind him, without
examining upon what caufe or confideration they were
founded. Confequently, if I by deed, bond, or cove-
nant, bind myſelf to give you 20l. to make your hall de
novo, here you fhall have an action upon this deed,
bond, or covenant, and the cause or confideration for it
is not material; for, there is a fufficient conſideration
apparent, namely, the deliberate will of the party- that
333.] made the deed. * And the law would have been the
Plowd. 309.
3 Burr. 1663.
fame in the cafe of the carpenter before-mentioned, if
the contract had been by fpecialty. And, therefore, it
is, that where a contract or agreement is by deed, the
cauſe or confideration is not enquirable into on an ac-
tion upon it; but the party ought only to anſwer to the
deed, and if he coufefs it to be his deed, he fhall be
bound for every deed importing in itfelf a confidera-
tion, namely, the will of him who made it: a contract
or agreement, where either of them is by deed, is ne-
ver confidered as nudum pactum. Thus in an action
of debt upon an obligation, the confideration upon
which the party gave the bond is not, at law, enquired
into, becauſe it is fufficient to ſay, that it was the
obligor's will to make the deed.
But, Mr. Juftice Wilmot, in the cafe of Pillans and
Rofe against Van Microp and Hopkins, went fo far as to
give it as his opinion, that the putting a contrac into
writing would alone be fufficient to take it out of the rule
nghas to nude pacts; upon the ground that this fingle cir-
cumftance would be a guard againſt furprize, which was
the occalion of that rule: it having been held by the beſt
authorities, that, according to the law of nature, the
want
OF AGREEMENTS.
want of * confideration was no radical defect in a con- [ * 334. ]
tract, if it were entered into upon deliberation and re-
Alection; for, in that cafe, it would be morally good,
and only require afcertainment. And Lord Mansfield
inclined to the fame opinion. But there being other
principles upon which the cafe in queftion might be
determined, the court avoided this point.
J
I fhall, therefore, offer to the reader fome obferva-
tions thereupon.
The maxim, "quod ex nudo pacto non oritur actio," Cod. lib. 3. PL.
is derived from the civil law.
10. lib. 5 tit.
14. I.
The Roman law divided conventions or agreements
among men into two kinds; namely, Promiſes and
Contracts. A promiſe and a contract differed in this
refpect fimply; the former proceeded from the promiſer
alone who preferred it, and did not bind until accept-
ance by the promiſee, fo that the promiſer till then
was, at any time, at liberty to retract. A contract
was the confent of two or more perfons to fomething to
be given or done. It followed of courfe, that a pro-
mife accepted immediately became a contract; for, then,
there was the affent of two perfons to the thing* pro- [ * 335⋅ ).
miſed; viz. one to perform, and the other to receive.
Contracts were again divided by the civilians into
Nominate and Innomináte.
Nominate contracts were fo called, merely on ac-
count of their having had particular forms of actions.
affigned to them, from their frequency and general in-
telligibility. Of this defcription was letting, hiring,
partnership, commiffion, &c.
Innominate contracts were fuch as, being more rare,
and not of the fame defined and certain nature, the law
had not provided any exprefs or peculiar form of action
to enforce, but had left them open to fuch fuit as was
beft adopted to the occafion, which was called an action
in preſcribed terms; and feems to have been analogous
to our action on the cafe, as diftinguiſhed from actions
of debt, detinue, ejectione firma, or the like: fuch ac-
tions in preſcribed terms not being diſtinguiſhed by any
ſpecific names, but delineated by circuity and peri-
phrafe: as do ut des. I give you this that you may give vide 2 Black ſt.
me that; which was where one gave money or goods Comm. 444.
on
3
OF THE
CONSIDERATION.
**
[* 336.] * on a contract that he ſhould be paid money or good's
for them. Of this kind were all loans of money upon
bond or promiſe of repayment; and all fales of goods,
in which there was either an exprefs contract to pay fo
much for them, or elfe the law implied a contract, to
pay fo much as they were worth. Or facio ut facias, I
do this for you, that you may do that for me; this was
where one agreed with another to do his work for him,
if he would do the work of the former in return; or
to do any other pofitive act on both fides; or to for-
bear on one fide in confideration of fomething done on
the other. As that in confideration that A. the tenant
would repair his houfe, B. the landlord would not fue
him for wafte. Or it might have been for mutual for-
bearance on both fides; as that in confideration that
A. would not trade to Lisbon, B. would not trade to
Marfeilles. Or facio ut des. I do this for you that you
may give me that. As where a man agreed to per-
form any thing for a price, either fpecifically menti-
oned, or left to the determination of the law to fet a
value upon it. Thus where a fervant hired himſelf to
his matter, for certain wages, or an agreed fum, here
[* 337.] the fervant was held * to contract to do his fervice, in
order to earn that ſpecific fum; otherwiſe if he had been
hired generally, for then he was under an implied con-
tract to perform the fervice for what it ſhould be reafon-
ably worth. Or do ut facias, I give you this that you
may do that. As where one agrees with a fervant to
give him fuch wages upon his 'performing fuch work.
Theſe innominate contracts were all included by the
civil law under the general term of Patta,
Pacts were by them again divided into pacts with a
confideration or cause; and parts wanting a confideratión
or caufe. The former included all innominate contracts
where fomething was to be given or performed, or,
vice verfa, for a confideration or caufe affigned and for
thefe, as we have obferved, an action was given in
preſcribed terms; for if any one by agreement effected
any thing (whether that confifted in doing fomething,
or delivering fomething, or in omitting, or withholding
fomething) hoc animo, that another in his turn fhould
do fomething, or deliver fomething to him, or, vice
verfa; the Roman law did not permit him, in whoſe
favor the thing executed was delivered, or the like, to
be
OF AGREEMENT S.
be deficient in performing what was ftipulated on his [* 338. ]
part, but compelled him to performance. So that if
there were a caufe or confideration fati vel traditionis,
a correfpondent obligation or pact arofe.
But pacts which wanted a caufe or confideration, by
a pofitive law of the Romans, produced no action in the
civil forum, unleſs in cafes of fale, which were folemn-
ly ratified, according to a form prefcribed, when they
were called "Stipulations," from the word " Stipula,
a ftraw, in allufion to the circumftance, that in fuch
cafès a ſtraw was given to the purchaſer in ſign of a
real delivery. And fuch contracts or pacts, as were
innominate in refpect of their having no particular form
of action affigned to them, and were entered into with-
out a cause or confideration moving from the party to be
benefited, were, in refpect of thofe circumftances, called
Nuda Paca, or mere Naked Pacts.
1
It may further be obſerved, that ftipulations were
anciently performed at Rome with abundance of cere-
monies; the first whereof was, that one party ſhould
interrogate, and the other anfwer to give his confent
and oblige himſelf. Thus, "Quod inter nos convenit, [* 339 1
* (*
hoc te dare facere fpondes, fpondeo." So that by the an-
cient Roman law, ftipulations differed from promifes
and pacts, inasmuch as the former might have been
made in fimple and ordinary language; the latter only
in preſcribed and folemn language. The former might
have been made by writing between perfons abfent; the
latter by words only and between perfons preſent.
So, likewife, among the ancient Romans, all volun-
tary nominate contracts were written either by the
parties themſelves, or by one of the witneffes, or by a
domeftic fecretary of one of the parties whom they
called a Notary, but who was no public perſon as
among us; and the contract, when finifhed, was car-
ried to a magiftrate, who gave it a public authority by
receiving it inter acta under his juriſdiction, giving each
of the parties a copy thereof under his ſeal.
So that it ſeems, in both inftances, viz. as well in
the cafe of voluntary contracts, as that of ftipulations,
in order to give effect to the tranfaction, it was necef-
fary that it should be folemnly confirmed and ratified in the
prefence
:
OF THE CONSIDERATION
[* 340.] * preſence of proper perfons according to the rules pre-
fcribed by law, or it had no validity.
5 Black.
Comm. 157.
Pł 1. 2 Hard.
200.
Now it ſeems reaſonable to conjecture, that, when
this maxim of the Roman law," quod ex nudo pacto non
oritur actio," was adopted and received into our ſyſ
tém, it was accepted in its full extent; our law not re-
cognizing any ceremonies analogous to a ftipulation,
which feems to have been, not the creation, but the
ratification of a promife or contract in form before a
magiftrate.
<c
Indeed Sir William Blackstone obferves, that the rule
quod ex nudo pacto non oritur actio," does not hold in
fome cafes, where a promife is authentically proved by
written documents; and inſtances the cafes of a volun-
Et vide I Chan, tary bond and of a note of hand. But the former of
Rep. 157.1Eq. thefe inftances turn upon the ground, that it is an in-
Ca. Abr. 84. A. ftrument under feal and delivered, which binds the par-
ties and alters their property, though there be no con-
fideration; becauſe a man is eſtopped to deny his own
deed, or affirm any thing contrary to the manifeſt ſo-
lemnity of contracting by delivery: and the latter feems
a cafe of a diftin&t
fpecies, and not an exception out of this rule. For as
long as a note of hand is confined to the parties who fa-
bricate it, the want of confideration is a clear bar to
recovering any thing upon it, upon the ground that it
is nudum pactum. And when third perfons become in-
tereſted in it, the reafon why it is not open to the fame
objection is, that, after it is negotiated, its operation
Vide 3&4Ann. is governed by the fame law as a bill of exchange,
which is the law merchant; and that is founded upon
[* 341. ]. to me, fo far as it applies, to be
c. 9.
Vide thefe
cafes, and the
exceptions to
then, infra.
*
the law of nature and nations, in which the want of a
confideration is no effential defect in a contract, as it is
in the civil law.
If the obfervations, already offered, were not fuffi-
cient to fhew, that putting a nude contract into writ-
ing fimply, will not fo far alter its nature as to fupply
the want of a confideration, and render it valid with-
out that requifite; the uniform practice of the court of
Chancery in refufing, unless under particular circum-
ſtances, to aid a covenant under feal, if merely vo-
luntary, feems to me to furnish conviction upon the
fubject; for the principle upon which that court with-
holds its interpofition in thofe cafes is, that, on fuch
covenants,
OF AGREEMENTS.
1
* covenants, nominal damages only can be obtained at [* 342. ]
law; and therefore equity, which follows the law,
will not give a more fubftantial relief. Then, if our
law, even in cafes of covenants under feal, refufes its
ſubſtantial aid to the parties, either at law or in equity,
claiming under a voluntary contract, though executed
with all poffible folemnity, accompanied with a DE-
LIVERY, and under feal; which are forms as folemn
and notorious as thofe ufed in a ftipulation among the
Romans, a fortiori, will it refufe any affiftance to in-
force a voluntary contract, that wants every of theſe
ceremonies, except that of being written.
Having fubmitted to the reader the foregoing obfer- Dr. and Stu-
vations upon the ſubject of nude agreements, I fhall dent, lib. 2.
now recall his attention to that of the cauſe, or confi- cap. 24.
deration upon which a contract may be fupported.
And it is to be obferved, that fuch a cause or confide-
ration may ariſe and be created in two ways:
First, by fome act to be done by the one party, for
the benefit of the other party.
*And any thing, however trifling, to be done by [* 343.]
the plaintiff, will be a confideration fufficient whereon
ny, Cro. Eliz
to ground an action. As if A. demifes certain lands Sir Anthony
to B. rendering rent, and B. affigns the fame to D. Sturly v. Alba-
and after the affignment rent become due; and D. in 67, 150. Cro.
confideration that A. will fhew him a deed by which it Car. 70.
may appear that fuch rent is due, affumes and promifes
to A. forthwith to pay the fame: if A. fhews D. the
indenture of leafe, by which it appears that ſuch rent
is due, A. fhall have an action upon this promiſe againſt
D. the fhewing the deed being a fufficient confi-
deration.
So where G. brought an action of aflumpfit againſt Dyer 272. Pl.
R. and declared that, whereas T. was in debt to G. 31. note 31.
and C. T. appointed R. and delivered to him 50l. to
pay it to G. in part payment of his debt; upon which
G. came to R. and demanded his 50l. and he anſwered
that he had occafion for it, and was not at leifure, but
if he would come fuch a day, he would pay him; at
which day he came, and the other refuſed to pay him.
Per Popham et Yelverton, here is another confidera-
tion befides the debt: the creditor is to come to the
houfe
OF THE CONSIDERATION
[* 344.]* houfe of the defendant to fetch the money. Judgment
for the plaintiff.
1 Roll Abr. 22.
Pl. 23.
13 H. 6. 49.
Lane v. Mal-
lory, Hob. 4,5.
S. C. Cro. J.
342.
Secondly, A confideration may arife or be created,
by doing or permitting fomewhat to be done to the
prejudice or lofs of one of the parties. So that it is
not abfolutely neceffary that the confideration for a
contract imports fome gain to him that makes the con-
tract; but it is fufficient that the party, in whoſe favor
the contract is made, foregoes fome advantage or be-
nefit which otherwife he might have taken or had, or
fuffers fome lofs in confequence of placing his confi-
dence in another's undertaking: Thus, if a carpenter
promilé to repair my houſe before a certain day, and
he does not do it, by which my houfe falls, I may have
an action on the cafe againft him.
So, where A. brought an affumpfit againſt B. and
fhewed that W. B. father of B. deceaſed, was indebted
unto A. in 20cl. and that C. and D. were bound unto
W. B. by two ftatutes ftaple in 2001. and that W. B.
delivered thofe ftatutes unto A. that he might thereby
[* 345] be fatisfied the debt due unto him from W. B. and
Dyer 272. Pl.
3 in note, et
vide Cro. Eliz.
ba.
that B. pretending to be executor to his father, in con-
fideration that A. at his inftance, would deliver unto
him the faid ftatutes, promifed to pay him 50%. at one
day, and 50%. at another; and averred, that he deli-
vered the ftatutes, and that B. paid him 40%. of the firſt
50% and the reſt he had not paid; and A. had judg-
ment: the judgment on a writ of error brought, was
affirmed. For, though it did not appear that B. was,
but only that he pretended to be, executor, and fo could
make no profit of the eftate; yet, becauſe the ſtatutes
were delivered to A. with intent to procure him fatif-
faction fo as he might cancel them, or take compofition
for them and that A. at the inftance of B. and in
hope of his promife, did deliver them out, and deprived
himself of that means, it was held a fufficient confide-
ration.
At
So, on an action on the cafe fur affumpfit againſt S.
there was an agreement between A. and B. that A.
ſhould have a leafe of B. with divers covenants.
the time appointed for fealing it A. refuſed, on ac-
count of inferting a new covenant refpecting repa-
rations. Upon which S. ftanding by, took upon him-
felf that if A. would feal, he would make the repara-
tions.
OF AGREEMENT S.
*tions. And it was adjudged a good confideration to [* 346.1
fupport the action against S. although the fealing the
deed was no advantage to him.
216. et vide
So, where D. an attorney brought an action on the Bidwell v.
caſe againſt A. executor of B. and counted, that, Catton, Hob.
whereas he had in Michaelmas terin, 14 Jac. profe- Cro. Eliz. 74.
cuted an attachment of privilege againft B. returnable 75, 849, 881.
in Hilary term, B. knowing of it, in confideration that
at B.'s requeſt D. would forbear to profecute the faid
writ any further againſt B. he (B) did promiſe to pay
him 50%. and then avers, &c. After a verdict, it was
moved in arreft of judgment, firft, that it was not al-
ledged, that the plaintiff had any juft caufe of action.
Secondly, That this action ftill remained. But the
court nevertheless gave judgment againſt A.: for, firſt,
Suits are
not prefumed caufelefs, and the promife
argues caufe, in that he defired to stay off the fuit.
Secondly, Though this did not require a difcharge of
the action, yet it required a lofs of the writ, and a de-
lay of the fuit, which was both benefit to the one, and
a lofs to the other. And the court held, that an action
of debt would have lain againſt the defendant's teftator
for the 50% being a fum * of money due upon a con- [* 347. 1
tract in which he received quid pro quo; for the for-
bearing of a fuit was as beneficial in faving, as fome
other things would have been in gaining.
Again; where in an action upon the cafe the plain- Webb's cafe,
tiff declared, that whereas C. was indebted to J. S. 4 Leon, 110,
and J. S. to the defendant; the defendant, in confi-
deration that the plaintiff would procure J, S. to make
a letter of attorney to the defendant to fue C., pro-
mifed to pay and give to the plaintiff 10l. It was ob-
jected, that here was not any confideration to induce
the affumpfit; for, that the defendant, by this letter
of attorney, got nothing but his labour and travail :
but, the exception was not allowed of; becaufe, in
this cafe, not fo much the profit which redounded to
the defendant, as the labour of the plaintiff in procuring
of the letter of attorney, was to be reſpected.
So, if one board another's wife for a year, and, af- 3 Bulft. 187.
ter that year is paft, the hufband come to the landlord Roll.Rep. 381,
and promife him that, in confideration he will board his 382. 1 Roll
wife for a year longer, he will then pay him for this 10.
year
Abr. 12. Pl.
!
OF THE CONSIDERATION
where infant
bound, upon
Plowd.
[* 348. ] year and * for that which was paft before; this is a
good confideration to raiſe a contract by way of af-
Vide Cecil v. fumpfit. And the reafon is, that the landlord is at
Saliſbury, fupra, prejudice by this; for, probably he would not have
fojourned the wife for the laſt year, if it had not been
ground of fale for the promife of payment of the first money.
being delayed. If a confideration is executed, and does not go along
I Mod. Ent.88. with the contract, but is entirely paft, and the contract
Food: 5.302. is merely fubfequent; it is not a fufficient confidera-
413. Jeremy v. tion to ground a contract upon, unleſs fomething ariſe
Goochman,
between the parties that is meritorious.
As if one,
1 Roll Abr. 11. in confideration that I have built him a houfe, quitted
Q.Pl. 1. 2 Bulft. him of a trefpafs, difburfed money on his account, or
73.2 Leon.225. fuch like, promife me to do any other thing, or pay me
fo much money; thefe have been held not to be con-
fiderations: becauſe there appears nothing but the con-
fideration perfectly past, without any thing incident
thereto to continue it. This therefore is but nudum
Roll Rep.
Cro. Eliz. 442.
Dyer 272.
/
pactum.
So, where a mafter promiſed to two men, that in
confideration they had bailed his fervant out of priſon,
[349] he would fave them harmlefs; it was held that this
did not bind him: becauſe he had no benefit, nor they
prejudice by his promife,
2 Bulft. 73.
1
But we must take care to diftinguiſh this kind of
cafe from thofe, where, although fome part of the con-
fideration appears to be paft, yet it is all but one tran-
faction. As where one, being poffeffed of a ſhop,
agreed to demife it to another, paying to him 40s. by
the year, and ros. for the last quarter; and for the
perfecting thereof each gave the other is. And after-
wards, in confideration of the premiffes, the leffee pro-
miſed to give the leffor 30l. and affumed to pay it; in
confideration whereof, and in performance of the con-
tract, the leffor made a leafe to the leffee accordingly.
It was objected, that there was no good confideration
expreffed to raiſe the promife for the 30l. the fame be-
ing grounded upon a confideration that was paft, per-
fect, and executed, and fo no good confideration. Sed
per curiam. The leafe here is made after the promiſe.
The agreement is in performance of all, not of
part. It was on the leffor's part to make the
leafe to the defendant, and on his part to pay the
rent of 40s. and the 30l. in confideration of his
quiet
AS CONSIDERED IN EQUITY.
*quiet enjoyment of the fame, which is a good promife, [* 350. ]
founded upon a good and fufficient confideration.
So, where the plaintiff was poffeffed of certain lands Pearle v. Un-
for a term of years, and, in confideration that he had ger, Cro. Eliz.
occupied the lands and paid the rent, the defendant 94.
promiſed to fave the plaintiff harmleſs: the plaintiff
was difturbed, by his cattle being diftrained. Now,
though the occupation and rent was faid to be paſt, yet,
as the plaintiff continued in poffeffion, and was ftill to
pay rent, that preferved the confideration, and it was
held good.
So a contract made fubfequent by one, in confide- Cro. Car. 409.
ration of another marrying his daughter or coufin, 3 Salk. 96.
which is as a gift in frank marriage, is good.
I
Again; a contract on a confideration executed is Hodge v. Vara-
good, if there were a duty before: and, therefore, for, Roll Rep.
413. Johnfon v.
where the plaintiff declared, that ſuch a day the defen- Aftell, 1 Lev.
dant was indebted to him in fo much, and, in confide- 198.
ration thereof, afterwards, to wit, fuch a day, the de-
fendant promiſed to pay; this is not a
* confideration [* 351. ]
paft, but the continuance of the debt raifes a promife
and an action.
T. Raym. 26c.
This feems to be the principle that governed in the Church v.
cafe of Church and Church; there, in affumpfit, the Church,
plaintiff declared, that, whereas he had at his own
charges buried the defendant's child, the defendant
promiſed to pay him his charges. And judgment was
given for the plaintiff, and yet the confideration was
paft. But by the 43d of Elizabeth the father was bound
to bury his child.
So, where the plaintiff declared, that, in confide- Warren v.
ration that he had bought three parcels of land on fuch Morfe, Cro.
Eliz. 138.
a day, the defendant afterwards promifed to make him
a fufficient affurance; here the confideration was ad-
judged not to be abſolutely paſt; for the affurance was
the fubftance of the fale.
Comm. 445.
And if the thing be founded on a prior moral obli- 2 Blackſt.
gation as a promife or contract to pay a juſt debt,
though bound by the ftatute of Limitations; this will
not be nudum pactum.
And a confideration paft will be a good ground to Roll Abr. 11.
VOL. I.
N
maintain Cro. Eliz. 252.
48%.
1
OF CONTRACTS OR AGREEMENTS
;
r*
352.
2 Vent. 268.
3 Salk. 96.
I Belft. : 20.
maintain an action upon a * fubfequent promife or con-
tract, where the confideration is ftated to have been at
the defendant's fpecial fuit and request; for the pro-
Dyer272.Pl.31. mife, though it follows, yet is not naked, but couples
Cro. Car. 499. itſelf with the fuit or requeſt before, and the merits of
the party procured by that fuit or requeft. As for in-
ftance, though a promife to pay 10l. for that W. R.
was bail for my fervant is not good; yet a promife to
pay 10l. for that he was bail for him at my request
is good.
2 Cro. 18.
Cro. Eliz. 42.
Bofden v.
18.
Thus where A. requeſted B. to give his credit for
Thinn, Cro. Ja. two ton of wine, amounting to 50l. for one C. to D.
and B. thereupon gave his bond of 100l. for the pay-
ment of that 50l. and for the non-payment thereof was
fued, and enforced to pay 70%; and, fhewing this to
A. he, (A) in confideration thereof, affumed to pay
the 70l. unto B. fuch a day. It was objected, on af-
fumpfit brought on this promife, that it was not fuffi-
cient. But the court held that, becauſe C. upon B.'s
undertaking at A.'s request, had credit given him by
D. and that B. was damnified by reafon thereof, which
in conſcience A. ought to fatisfy, the confideration was
fufficient and not paffed.
[* 353.]
Bourne v.
Mafon, et al.
* Vent. 6.
Dutton v.
* A mere ftranger to a meritorious act done to a third
perſon cannot thereupon found an affumpfit applicable
to himſelf: therefore, where one in an affumpfit de-
clared that, in confideration one A. would permit the
Poole,lbid.318. defendants to fue another in his (A.'s) name, they
promiſed to pay the plaintiff a fum due from A. to him,
that was held no good confideration to ſupport the ac-
tion; for the plaintiff did nothing of trouble to himſelf
or benefit to the defendant, but was a mere ftranger to
the confideration.
Linghill v.
Broughton,
Moore Ca.
1167.
But, where a promife was made to the father, that,
in confideration he would perform fuch a cure, the fa-
ther fhould be paid fo much and the daughter fo much;
there the nearnefs of the relation carried the benefit of
the confideration to the daughter, and it was held that
the might maintain an affumpfit.
Where forbearance of fuit is the confideration of an
affumpfit or agreement, two things must be obferved:
firft, the forbearance must be general, or for a particu-
lar time certain, and not uncertain. And, therefore,
where the declaration was, that, in confideration the
plaintiff
:
AS CONSIDERED IN EQUITY.
plaintiff would abftain from profecuting the defendant [354]
for a debt, the defendant would pay it before ſuch a
feaft; there, inafmuch as it was to forbear, and neither
mentioned whether it was a total forbearance, or for
a time certain, it was held ill. ´
But where the confideration was for a forbearance Lutwitch
for a reaſonable time, it was held good; and that the Y. Huffey,
Cro. Eliz. 19.
court ought to judge whether it was a reaſonable time
Philips v.
or not fo. And, where the declaration fet forth, that Sackford,
the defendant was indebted to the plaintiff, and that, Ibid. 455.
in confideration thereof, and that the plaintiff would
not implead the defendant, the defendant promiſed to
deliver the plaintiff fourteen quarters of barley: this
was held good.
Secondly, it must be from a fuit or matter in which
the defendant, or the perfon from whom the debt or
thing is faid to be due, is chargeable.
v.
Hard. 73.
Thus, upon an action on the cafe for a promife, Hummers
fetting forth that the defendant's fon died indebted to V. Funton,
the plaintiff; and that the defendant, being his mother
(but not ftating that he was executrix or adminiftra-
trix to him, or that fhe had any effects of her fon's in
her* hands) promiſed, that, if the plaintiff would for- [* 355.1
bear to fue for his debt, the would pay it: this was
adjudged to be no confideration; becauſe fhe was not
liable to any fuit, fo that the plaintiff had no prejudice
by fuch forbearance.
But where a furety, having paid the debt of his prin- 3 Salk. 96.
cipal who was dead, told his executor that he had paid
the money, who thereupon promifed to repay him, if
he would forbear till fuch a day it was adjudged a
good confideration; for the executor was bound in
equity, though not at law, without a promiſe.
And idle and infignificant confiderations, are looked
upon as none at all; for, whenever a perfon promiſes
without a benefit arifing to the promifer or lofs to the
promifee, it is confidered as a void promiſe.
Thus, if a man be arreſted upon a void arreft, and Randall v. Har.
another, in confideration of fetting him at liberty, pro- vey, Godb. 358.
mifes to pay the debt; if the arreft be unlawful the
confideration is not good.
N 2
And
OF CONTRACTS OR AGREEMENTS
[* 356. ]
Goodwin v.
Willoughby,
Hard. 73.
Lee v. New-
14. Bro. tit.
And where a leffee promifed that, in confideration
the leffor would forbear to diſtrain his corn unfhocked,
The would pay his rent that was due this was adjudged
to be no confideration, becauſe fuch corn was not diſ-
trainable.
So where the defendant promiſed that, if the plain-
comb, Hard. 73. tiff would accept the defendant for his paymafter, for
Et vide 9 H. 5. a debt due to the plaintiff by a ſtranger, and would for-
Debt 36.
bear the defendant fix months, he would pay the debt:
it was adjudged no confideration, becauſe the plaintiff
might fue the ftranger notwithſtanding, and therefore
was at no prejudice.
Latch 142.
in note.
But, it is fufficient if there be a colour whereon to
Dyer 272, 31. found a fuit. In fuch caſe forbearance is a good con-
fideration. As in Whitpool's cafe, where an infant
bought velvet and filk and died, and the mercer caine
to his wife, being his executrix, and faid, that if fhe
would not pay him he would fue her, and the wife
promiſed in confideration of forbearance to pay him:
this was held to be a good confideration, upon the
ground of the colour for a fuit, he being executrix.
[* 357.] Where the day given is the confideration, * it need
not be fet forth how the debt accrued.
Woolafton v.
Thus, where A. brought an affumpfit againſt B. and
Webb, Hob.18. declared that, whereas B. did owe him 30l. in confi-
deration that A. the 28th day of August 1610, had
given day to B. for payment of the fame money until
the 9th of October following, B. did affume to pay it
him the fame 9th day; upon an iffue non-affumpfit,
it was found for A. and it was affigned for error, that
it was not fhewn for what the defendant was indebted:
but the judgment was affirmed; for, the debt was not
in queftion, as if it had been an ordinary indebitatus
affumpfit, where the debt itſelf is the only confideration
of the promiſe, for there it muſt appear to the court;
but, here, it was the day given, that was the exprefs
confideration. And though it were true that there
muſt alſo be a debt, yet this was allowed in the pro-
miſe, being actual, and alſo found by implication in the
verdict.
Thorpe v.
In executory contracts, if the agreement be that the
Thorpe,1 Vent. one fhall do an act, and, for the doing thereof, the
other fhall pay, &c. fo that the confiderations are mutual;
377, 214.
3 Salk. 95.
the
AS CONSIDERED IN EQUITY.
•
the doing of the act* is a condition precedent to the [* 358. ]
payment, and the party who is to pay will not be com-
pelled to part with his money, till the thing be per-
formed for which he is to pay.
But this rule admits of theſe diverfities.
Firſt, If a day be appointed for the payment of the
money, and the day is to happen before the thing can be
performed, an action may be brought for the money
before the thing be done; for, it appears the party re-
lied upon his remedy, and did not intend to make the
performance a condition precedent.
Ibid.
7
48 E. 3. 2. 3.
Co. 109. b.
Saund. 319.
1 Vent. 147.
I
Ibid. Jones 218.
Vide contra.
Secondly, Where a certain day of payment is ap-
pointed, and that day is to happen fubfequent to the Dyer 76. Pl 30.
performance of the thing to be done by the contract; 1 Roll 414,415.
in ſuch caſe performance is a condition precedent and Dyer 30. Pi.
muſt be averred in an action for the money: for every 203.
man's bargain ought to be performed as he intended
it; and when he relies upon his remedy, it is but just,
that he fhould be left to it according to his agreement:
but, on the contrary, there is no reafon that à man
fhould be forced to truft where he never meant it. And,
therefore, if two men fhould * agree one that the other [* 359. ]
ſhould have his horfe, the other that he would pay ten
pounds for him; no action would lie for the money
until the horſe were delivered..
214. Hob. 88.
But, Thirdly, If another in confideration, that I Vent. 177.
promiſe to do ſuch a thing, promife to do another thing 1 Lev. 293.
for me, or pay me money at fuch a day; here I need 3 Bulft. 187.
not alledge that I had performed what I had promiſed,
but I may have an action againſt him for his not per-
forming his promife to me; becauſe the confideration
and foundation of his promife to me was the promiſe I
made to him; it is promife for promife; and that is
the confideration and not the performance, and each
party has a right of action againſt the other for non-
performance. And it is a general rule, that, when the
defendant has a remedy for the confideration of a promife,
that confideration need not be averred to be performed :
as if, in confideration that A. promifes to deliver me
to my uſe a cow, B. promifes to deliver A. 50s. Here
B. may bring his action without averring the delivery
of the cow. So if I covenant to marry a man's daughter, 5 H. 7. 10.
and he covenants to give me a hundred pounds, either party
may
OF CONTRACTS OR AGREEMENTS
:
Haid. 102.
[*360. ] may fue the other without averment of* performance
on his part. Again, If it be mutually agreed between
A. and B. that A. fhall, before Lady-Day following,
convey over all her eftate and intereft in the real eſtate
of B. deceaſed, to C. and her heirs; and, in confide-
ration thereof, C. fhall, before that time, pay to A.
251. and convey unto her and her heirs fo much of the
ſaid real eſtate as fhall amount to 50l. per annum, and
enter into a bond of 20001. And B. at the fame time,
in confideration that A. promifes to perform her (A's)
part of the agreement, promifes to perform her (B's)
part of the fame. Here neither party, on bringing an
affumpfit, need aver performance on her part. For
the performance is not fub modo or conditional, but
abfolute and reciprocal by reafon of the agreement;
for, it is not in confideration that A. fhould convey all
her eftate, &c. but in confideration that the agrees to
do it. And the confideration upon which the action
arifes, is the mutual promife to perform the agreement.
Salk. 21. Hob.
88.
[ * 361. ]
Beard v. Nu-
427.
·
Mutual promifes muſt be both binding, as well on
the one fide as the other; and must be both made at the
fame time, or elle they will be both nuda pacta.
* A contract or agreement may be fupported either by
a valuable confideration: as marriage, work done,
c. or by a good confideration: as, that of blood or
natural affection between near relations; the fatisfac-
tion accruing from which the law efteems an equiva-
lent for whatever benefit may move from one near rela-
tion to another.
The cafe of Beard and Nuthall furniſhes an inftance
thall, Vern. of the latter defcription. There B. (whofe huſband
after marriage entered into a voluntary bond to fettle a
jointure of a certain value on her, and afterwards fet-
tled land of the ftipulated worth, whereupon the bond
was delivered up to be cancelled) her huſband being
dead and the evicted, filed a bill praying that ſhe, there
being no creditors, might, as adminiftratrix of her
huſband, retain out of his perfonal eſtate againſt the
defendants, who claimed a fhare of the perfonal eftate
under the ftatute of Diftributions, to the value of her
jointure. And the court decreed that, in regard the
wife was now become entitled to dower, ſhe ſhould
proceed at law for the recovery thereof; and that
what the fame fhould fall fhort in value of the jointure,
ſhould be retained by her out of the perfonal eſtate,
notwithſtanding
AS CONSIDERED IN EQUITY.
* notwithſtanding her bond was after marriage, and vo- [* 362.]
luntary, and delivered up to be cancelled: for the de-
livery up of the bond could no way bind her intereſt.
Various other confiderations may be made the foun-
dation of a contract or agreement, according to the
refpective objects thoſe who contract have in view:
therefore if an agreement be made to fave the honor
and reputation of a family, a court of equity, willing
to lay hold of any juft ground to uphold it, will con-
fider the eſtabliſhment of the peace of a family as a good
confideration.
*
Thus in the cafe of Stapilton againſt Stapilton, the Atk. 3.
point in which, material to our prefent purpofe,
aroſe on an agreement entered into by a father and his
fons (he having two, the eldeſt of whom was by the
fame mother, but illegitimate, being born out of wed-
lock; but that fact at the time of the agreement un-
known to the fons or to any other perfon, the father
and mother having long lived together as huſband and
wife, and being actually fo when it was entered into)
the confideration whereof was ftated to have been for
fettling and perpetuating all the manors, &c. in the [* 363.]
name and blood of the Stapiltons; for making provifion
for his two fons, &c. and for preventing difputes and
controverſies that might poffibly arife between them,
or any other perſons claiming an intereft in all or any
of the eftates therein-mentioned; for barring all eftates
tail, and for anfwering all and every the purpoſe and
purpoſes of the parties thereto, and for and in confide-
ration of the fum of 5s. It was held by Lord Hard-
wicke, in a diſpute between the eldeſt and the youngeſt
fon, that the circumstances recited in the agreement
were a proper confideration for it, and he decreed a
ſpecific execution of it againſt the legitimate fon.
So where a covenant for fettling lands, entered into Winman v.
by the uncle in favor of his nephew, who had difo- Roper, 1 Chan
bliged his father by marriage, was recited to have been Rep. 84.
made with an intent to reconcile the nephew and his
father, and for natural affection: this was held to be a
good confideration for the agreement.
And, in the cafe of Cann verfus Cann, Lord Maccles- Cann v. Cann.
field,
cited I Atk. 10.
OF CONTRACTS OR AGREEMENTS
*
[364.] field, we have feen, was of opinion, that the com-
Et fupra, et promife of a doubtful right was a fufficient confidera-
tion for, and foundation of an agreement.
vide, Gilmore
v. Battiſon, I
Vern. 4. S. C.
And the common law, in fome cafes, confiders the
2 Vent. 553. entruſting a thing with another, and his undertaking
Et vide, 2 Vez.
284.
reſpecting it, as a confideration in itſelf for his faithful
diſcharge of the truft; and, therefore, though an ac-
tion will not lie for not doing a thing, where there is
no confideration to uphold a contract to do it; yet,
where there is a delivery of goods and chattels to a per-
fon, who undertakes to carry them, or do fomething
about them gratis, without any reward for fuch his
work and carriage, an action will lie on this bailment,
if there be a neglect in the management by which the
goods are ſpoiled. The obligation in this cafe arifes
Bracton, lib. 3. ex mandato, and is called in Bracton, Mandatum. Vin-
nius, in his commentary on Juftinian, defines manda-
Vid. Supra,254. tum to be contractus quo aliquid gratuito gerendùm com-
mittitur et accipitur. This undertaking, we have ſeen,
obliges the undertaker to a diligent management.
Bracton fays, contrahitur etiam obligatio non folum fcripto
e. verbis, fed et confenfu, ficut in contractibus bona fidei;
[* 365.] ut in emptionibus, venditionibus, locationibus, conduc-
tionibus, focietatibus, et mandatis.
100.
Lib. 3. tit. 27.
684.
Vide19H.6.49. This diftinction is clearly taken in 11 H. 4. 33.
Bro. tit. ac fur where an action was brought againſt a carpenter for
Je Ca. 24.48 E. that he had undertaken to build the plaintiff a houſe
3.6.
Wheatly v.
Lowe, Cro,
Ja. 667.
within fuch a time, and had not done it; and it was
adjudged the action would not lie, there being no con-
fideration. But there the queftion is put to the court;
what if he had built the houfe unfkilfully? and it was
agreed, that in fuch cafe the action would have lain.
So on an action on the cafe declaring that, whereas
L. (being obliged to J. S. in 40%. for the payment of
201. and the bond being forfeited) delivered 10l. to M.
to the intent that he fhould pay it to J. S. in part of
payment without delay; in confideration whereof M.
aflumed, &c. It was affigned for breach that M. had
not paid the money, whereupon J. S. had fued L. for
the debt, and on non-affumpfit pleaded, there was a
verdict for the plaintiff. And it was moved in arreſt
of judgment, that here was not any confideration;
becauſe
i
AS CONSIDERED IN EQUITY.
becauſe it was not alledged that he delivered it to M. [* 366. ]
at his request; and the acceptance of it to deliver to
another without delay, could not be any benefit to M.
to charge him with this promife. Sed non allocatur; for
being that he accepted this money to deliver it, it was a
good confideration to charge him. And judgment for
the plaintiff, which was affirmed on writ of error.
Comyns 133.
This point was finally fettled by Holt and all the Coggs v. Bar-
Judges in the celebrated cafe of Coggs and Barnard; nard, L. Raym.
which aroſe upon an action upon the cafe, wherein the 909. S. C.
plaintiff declared, that, whereas the defendant affumed Salk. 26.3 Salk,
fafely and fecurely to take up ſeveral hogfheads of 1.
brandy then in a certain cellar in D. and fafely and
fecurely to lay them down again in a certain other cel-
lar in W. the faid defendant, and his fervants and
agents fo negligently and improvidently put them down
again into the faid other cellar, that, for want of care
in the defendant, his fervants and agents, one of the
cafks was ſtayed, and a great quantity of brandy was
fpilt; a motion was made in arreft of judgment, be-
cauſe it was not alledged, in the declaration, that the
defendant was a common porter, nor averred that he
had any thing for his pains. And as to the objection,
that there was no confideration to ground the promiſe [* 367. ]
upon, and that the undertaking was nudum pactum,
Holt, Chief Justice, and the reft of the court anfwered,
that the owner's trufting the bailee with the goods,
was a fufficient confideration to oblige him to a careful
management. Indeed if the agreement had been exe-
cutory, to carry theſe brandies from one place to ano-
ther fuch a day, the defendant had not been bound to
carry them; but this was a different cafe; for affump-
fit did not only fignify a future agreement, but in fuch
a cafe as this, it fignified an actual entry upon the
thing, and taking the truft upon himfelf. And if a man
will do that, and mifcarries in the performance of his
truft by reaſon of grofs neglect, an action will lie againſt
him for that, though nobody could have compelled him
to do the thing.
*
Dial 2. cap. 2
fol. 212.
29 Aff. 28.
It is held upon the fame principles, that, if I pro- Dr. and Stud.
mife another to keep him certain goods fafely to ſuch a
time, and, after I refuſe to take them, there lies no ac-
tion against me for it. But
But if I take them, and they be Owen 141.
afterwards loft or impaired through my negligent keeping,
there an action lies.
It
OF CONTRACTS OR AGREEMENTS, &c.
.
[* 368.]
I Vez, 450.
Supra.
Vide I Leon.
170. Moore
504, 570.
Cro. Ja. 819.
Pl. 14. Dyer
91. b. in note.
*It is not neceffary that, in contracts or agreements,
the confideration fhould be expreffed; it being fufficient.
if it can be collected out of them from circumftances;
and, therefore, although, in Lord Baltimore's cafe,
which arofe on an agreement concerning the bounda
ries of two provinces in America, nothing valuable was
given on the face of the articles as confideration; yet,
Lord Hardwicke held, that the fettling boundaries, and
peace and quiet, was a mutual confideration on both
fides; and would, in all cafes, make a confideration to
ſupport a fuit in the court of Chancery for performance.
of an agreement for the fettling them.
And it is faid that, if a man bargain and fell his land
by deed indented and inrolled without expreffing any
confideration, the bargainee in pleading will not be
obliged to aver payment of money, becauſe it is ne-
ceffarily implied; and a diſtinction is there taken be-
tween cafes where any other conſideration than money,
and where no confideration whatever is expreffed. Sed
quære.
*
[ * 369.] But, if an exprefs confideration appear upon the
Vide Bedell's face of a contract or agreement, the better opinion
cafe, 7 Rep. 40, ſeems to be, that, if it be infufficient to fupport the
contract, no other can be implied.
Edwards v.
And Lord Macclesfield, in the cafe of Edwards and
Lady Warwick, Lady Warwick, faid, that he took it to be clear, that
2 P. Will. 176. if one voluntarily, and without confideration, cove-
nanted to lay out the money in a purchaſe of land to be
fettled on him and his heirs: a court of equity would
compel the execution of fuch a contract, though merely
Quære, If the voluntary: becauſe in all cafes, where it is a meaſuring
intent in favor caft between an executor and an heir at law, the latter,
of the heir be in equity, will have the preference.
not a fufficient
confideration
to fupport the
covenant?
Of
Chand
[370]
Of the Interpretation of Contrats or
Agreements, &c.
CON
ONSTRUCTION is the drawing an inference,
by the aid of reafon, as to the intent of an in-
ftrument from given circumftances upon principles,
deduced from men's general motives, conduct, and
actions.
It has been already obferved, that in all contracts
and agreements, the parties ftipulating muft refpec-
tively affent to that which is concluded upon between
them, and that fuch confent must be made evident to
third perfons by certain figns, expreffing the intentions.
of the parties, and heads of the contract. And fince
thefe figns may fometimes be taken in different fenfes,
it is neceffary there fhould be fome rule to find out that
which is true and genuine. If, then, we reflect upon
the object for which contracts and agreements are en-
tered into, we fhall find, that it is to raiſe an obliga-
tion concerning that which is intended to be accom-
plished, when the parties engage in fuch contract or [* 371. ]
agreement; for that a contract or agreement, in what-
ever terms it may be exprefled, cannot be carried be-
yond the intent of the parties at the time of entering
into it, is clear from the nature of its conftitution; ;
one eflential ingredient being, "that it is entered into
freely, of the parties own accord."
Therefore, if a man grant by his deed, that if J. Co. Litt. 146,
S. be not yearly paid the fum of 10s. then he may dif- 147.
train for it in his manor of Dale; this is, by infe-
rence of law, a good rent-charge out of the manor :
becauſe he has given the grantee a power to diftrain,
if fuch a yearly fum be not paid him, and the manor
being thereby charged with the diftrefs, is, conſe-
quently, charged with the rent for which the diftreſs is
given. But no writ of annuity lies for it, becauſe there
is no grant of the rent by the grantor.
So, if a rent be granted to A. with a claufe in the 2 Roll Abr.425,
grant that if the rent be behind, a ftranger fhall dif-
train for it for the uſe of the grantee; this, in con-
ftruction of law, is a good rent-charge in A. and
a diftrefs, limited to a ftranger for his benefit, is, in
effect,
:
OF THE INTERPRETATION
[* 372.] effect, making the ftranger the grantee's fervant for
this purpoſe; and what a man may do by one fervant,
he may do by himſelf or any other.
252.
21.
Salk. 154. Pl.
The court of Chancery proceeds upon the fame
Vide 1 Vern. principle, when it holds, that if a term be raiſed for a
341. Pre. Chan. particular purpofe, in purfuance of marriage articles,
it fhall, when that purpoſe is anſwered, fall again into
the inheritance, and ſhall not be affets to pay any debts,
but what affect the inheritance: as bond debts and debts
of a fuperior nature, and not fimple contract debts.
But a contract fhall be carried in equity to the full
extent intended, if, by any conſtruction, the words can
be made to effect it.
Thus, if there be a truft to raiſe money out of the
profits of an eſtate, it implies, in equity, a fale, if the
fum cannot be raiſed conveniently within the time
limited; for the intent is, that the money fhall be
raiſed.
The intent of the parties to a contract or agreement,
is to be gathered from external figns and actions; for
[* 373.] whatever difference* there may be between a man's
internal fentiments and external expreffion, he muſt,
in his ordinary tranfactions with mankind, be con-
cluded to ufe figns according to their common accep-
tation for there could be no fuch thing as an obliga-
tion, if a man might affix what interpretation he pleaſed
to his figns, and that he meant to uſe them different
from their received fignification. Therefore he, in
whoſe favor an obligation is incurred, has a right to
compel him, from whom it is due, to perform it in
that fenfe, which the ordinary interpretation of the
figns made uſe of import.
Plowd. 169.
The figns of the intentions of men are of two forts;
namely, Words and Actions.
As to pofitive words. The rule feems to be, that,
unleſs there be the moft decifive reaſons which lead us
to conjecture the intent was otherwiſe, they are to be
underſtood in their proper and moſt known fignifica-
tion. Not the grammatical one, which regards the.
etymology and original of them, but that which is vul-
gar and moſt in uſe; for uſe is the judge, the law, and
the rule of fpeech.
Thus
}
OF AGREEMENT S.
Contract. 4.
* Thus if a man agree with B. for twenty barrels of [374]
ale, he ſhall not have the barrels after the ale is fpent. Plowd. 86. Bro.
So if one covenant with another, that if that other 27 H. 8. 27 b.
come to his houſe he will give him a cup of wine, the
covenantee fhall have the wine, but not the cup.
if the bargain were for firkins of wine, or for a hogf-
head of wine, then the vendee fhall have the firkins or
the hogfhead.
But
So words used in the prefent tenfe fhall be taken for 27 H. 8. 19.
the future, where according to their ordinary im-
port they are ſo meant: as if a man leafe a houſe for
years, upon condition that if his wife, being a widow,
will inhabit it, the term fhall ceafe; this fhall be taken
after his death for a future time.
So the words dedi et conceffi, in a deed of feoffment, 35 H. 6. 11 b.
fhall be taken for the prefent time, and yet they are in 15. 17 a.
the præterit tenfe.
A lawful age in general words (unleſs it be in a par- 1 Chan. Rep.
ticular cafe, as of a guardian in foccage) fhall be con- 53, 54.
ftrued and taken to mean twenty-one years.
Searle, Cro.
Car. 386.
And where a leafe was made for octoginta et * terdecem [* 375.]
annos, the queftion being, whether terdecem annos fhould Hopehill v.
fignify thirty, or thirteen years; it was contended,
that it fhould be expounded for thirty-years, becauſe
it fhould be taken moft ftrong against the leffor: but
the court held unanimoufly, that it fhould be taken
according to the common parlance, for thirteen years;
for terdecem and tres-decem, were all one, and fo writ
euphoniæ gratia; and it being one entire word, it could
not be otherwife taken.
So a leaſe for twelve months, is only for forty-eight 2 Black. Com.
weeks; becauſe a month, in law, is a lunar month, 141. 6 Rep. 61.
or twenty-eight days, unless otherwife expreffed. But
if a leafe be for a twelvemonth, in the fingular num-
ber, it is good for the whole year; it being generally
understood, that by the fpace of time fo called, in the
fingular number, viz. " a twelvemonth," the whole
year is meant.
Again; if a man grant one hundred acres in fuch a poph. 55.
field, and fixty in fuch a field, and twenty acres of
meadow in fuch a meadow, in which fields or mea-
dows the acres are known by eſtimation; the acres fhall
be taken as they are fo known, be they more or lefs
than
OF THE INTERPRETATION
Bu
[* 376.] * than ftatute; for they pafs as they are known, and
not according to the meaſure of the ftatute. But if I
have a clofe, containing by eftimation in the aggregate
twenty acres, and which, by the ftatute, is not eigh-
teen acres, and I grant ten of thefe acres, the grantee
fhall have them according to the meaſure of the fta-
tute; becauſe the acres of fuch a clofe are not known
by the estimation by parcels, or by metes and bounds,
though the cloſe be eſtimated in the aggregate.
Sheph. Epit.
172.
And where words ufed in a contract, expreffive of
quantity, or the like, have different fignifications in
different places; they will take effect as they are un-
derſtood where they are ſpoken.
A
Thus, if one fell todds, or pounds, bufhels, yards,
ells, or perches of any thing, they will be accounted,
meaſured, and reckoned according to the cuſtom of the
country or place where they are, and not according to
ftatute meaſure, or the cuftom of any other country.
But, when words are equivocal, or fentences are
ambiguous, and capable of feveral fignifications, con-
[* 377. ] jectures are neceffarily *reforted to, in order to difco-
ver the true meaning of the parties. And fuch con-
jectures may be made from three fources: the ſubject,
the effects, and the circumftances.
14 Af. Pl. 21.
Firft; it is a rule, that words are to be understood
according to the fubject of them, which is thus ex-
preffed by the civilians: Verba generalia reftringuntur,
ad habilitatem perfonæ, vel ad aptitudinem rei.
Therefore, if a man grant to another common within
the metes and bounds of the village of Dale, and part
of the vill is his in feveralty, and part his wafte and
common; the grantee fhall not have common in that
which is his in feveralty.
o H. 6. 35.
So, if I grant a man common out of all my manor,
Fitzh. Com- he may not, by virtue thereof, have common for any
mon. 6.12 H.8. beafts but fuch as are commonable, nor take it in my
garden, or any fuch place, but only in commonable
places. And if I grant one common for ten beaſts yearly
for three years, and he do not take his common the
first two years, he fhall not put on thirty beafts, and
take all the third year. Upon the fame principle, if a
man
OF AGREEMENT S.
!
*
man grant another common for all manner of beafts [* 378. ]
without number, the grantee may not take this, with
fo many beafts, as to leave the grantor no paſture for
his cattle.
So, if I grant a man all my trees growing upon my 14 H. 8. 2.
lands in D. it ſhall not extend to apple-trees, or other
fruit trees growing in my gardens and orchards, if
there be any other trees upon my ground.
Again, where there was a provifo in a leafe of a Pennv. Glover,
manor, wherein were divers copyholds, "that the Cro. Eliz. 421.
leffee should not moleft, vex, or put out any copyholder
paying his duties and fervices fub pœna forisfacturæ,
and the leffee entered upon a copyholder in a cow-
houſe, parcel of the premiffes, and beat him; this was
held not to be any breach of the condition: for it is to
be intended of fuch a moleftation as fhould be an
expulfion or moleftation concerning his copyhold tene-
ment, and there is not any breach by a tort done to his
perfon, or in difturbing him in any other lands, un-
lefs they were his copyhold tenements within the
manor.
So, if a man exprefsly warrant land for *
which is but a covenant, he will not thereby be
to defend againft tortious entries.
years, [*379.]
bound 26 H. 8. 3. 26.
H. 6. fol. 3. b.
425, 10. et vide
Again, where, on an affumpfit that A. fhould enjoy Brocking v.
fuch lands, according to his leafe, without the let, in- Cham. Cro. Ja.
terruption, or incumbrance of any perfon; it was fhewn Foller et al. v.
in fact, that this land was extended for debt due to the Mapes. Cro.
king by proceſs out of the Exchequer, and fo incum- Eliz. 212, 213.
bered: after verdict, it was moved, in arreft of judg-
ment, that this was not a good breach affigned; for it
was not fhewn for whofe debt, nor where, nor by
whom it was due, and it might be that it was for the
plaintiff's own debt. And it was adjudged for the de-
fendant, for to eſtabliſh a breach of the covenant, the
plaintiff muſt fhew a lawful incumbrance.
vide Hamond v.
Dod, Cro. Car.
So, where a man was bound by covenant in law, Nokes's cafe,
that his leffee ſhould enjoy his' term, and the leffor 4 Rep. 80. et
gave bond for the performance of covenants; and on an
action of debt brought upon the bond, the breach af- 5. et Cowperv.
figned was, that a ftranger had recovered the land Pollard, W.
leafed in an ejectione firma, and had execution: it Jones 197.
was held that, although this eviction was by courſe
of
.
8 Rep. gr. b.
OF THE INTERPRETATION
[* 380. ]
Co.Litt. 147.b.
[ * 381.]
Rep. 77. a.
6 Rep. 15 a Co.
Litt. 302, a.
b.
\
* of law, yet, as an elder and fufficient title was not al-
ledged upon which the recovery was had, it was no
breach of covenant.
66
And, to give effect to the intent," the conftructi-
on of a contract, as to the manner of its operation, will
vary according to accidental circumftances, affecting
the ftate of the fubject contracted about after the con-
tract entered into, and before its completion.
Thus, if A. bargain and fell land to B. by inden-
ture, and, before enrolment, they both join in a grant
of a rent-charge to C. this, after the enrolment, will be
conftrued the grant of B. and the confirmation of A.
Becauſe, when the bargain and fale is enrolled, it has
the effect of a deed enrolled from the making thereof,
and thereof it must be the grant of B. who had the
land at the time of the grant made. But, if the deed
never be enrolled, then it fhall be conftrued the grant
of A. and confirmation of B. becauſe the land never
paffed from A. the deed being ineffectual and void with-
out enrolment.
So, ut res magis valeat quam pereat, the * conftruc-
tion of the fame kind of contract, as to the manner of
its operation, will vary in different cafes, according to
the manner in which it is carried into effect: Ex gratia.
If tenant for life, and he in the remainder or rever-
ſion in fee, join in a feoffiment by deed, it is held, on
conftruction, that the livery of the freehold moved from
the tenant for life, and the inheritance from him in
the reverfion or remainder, from each according to his
eftate. But if a feoffment be made by parol, then it
is the furrender of the tenant for life, and the feoffment
of him in remainder; for, otherwife, nothing would
pafs by parol.
And where the fame words, in the fame contract or
agreement, are applicable to fubjects of different na-
tures, a different conftruction may be put upon them
according to the nature of each fubject, and to anſwer
the intent.
As if a limitation of freehold and leafehold, or
copyhold and leafehold, were comprifed jointly in
the fame form of words. In fuch caſe there could
be no reaſon why a court fhould not conftrue the
limitation, although contained in articles or an agree
ment, differently according to its application to the one
fubje&
OF AGREEMENTS.
I P. Will. 663.
ſubject or the other, as was done in the cafes of Forth [* 382. ]
and Chapman, and Glenorchy and Bofville, in the con- Ca. T. Talbot
ftruction of devifes. And of this opinion was Lord 3.
Hardwicke in the cafe of Exel and Wallace.
Secondly, the effect and the confequence that will 2 Vez. 325.
follow, from accepting words in their ordinary import,
frequently leads us to a neceffary conclufion, that the
genuine meaning of the perfon ufing them, is different
from their common acceptation; as where words, if
taken according to their ordinary fenfe, will render a
contract ineffective and frivolous. In ſuch caſe we
inay a little deviate from their received ſenſe to prevent
this inconvenience; for verba aliquid operari debent, et
cum effectu funt accipienda.
Thus if a leafe be to A. for life, rendering rent at 3 Leon. 211
Michaelmas, and after his death to his executor until
Michaelmas; the executor, notwithstanding the word
until, is, in its general fenfe, exclufive, fhall have it
for the whole day of Michaelmas; becauſe otherwiſe
no rent would be due.
So if an annuity be granted pro confilio * impendendo; [ * 383. ]
or a feoffment for inftructing a fon, or for paying of a Noy's Maxims,
fum of money; theſe amount to a condition, without 14.
conditional words; becauſe otherwiſe the party would
be without remedy.
So if A. fell to B. the fourth b part of his manor of Bacon's Max.
Dale, and fay not in how many parts to be divided, 47.
this fhall be conftrued four parts in five; but it fhall "Quære, Should
not be intended four parts of four parts, or the whole "four parts.".
of our quarters; becauſe that would render the words
idle and of none effect.
not this be
Upon the fame principle, viz. that the object intended Vide infra.
by the parties would fail of effect, fubject to any other con-
ftruction, the court of Chancery interpofes to carry
marriage articles into execution by way of ftrict fet-
tlement, notwithſtanding the articles themſelves are
not penned in that manner: for the great and imme-
diate object of fuch agreements, and confequently the
principal intention of the parties is, to make fuch a
fettlement as will contain an effectual provifion for the
iffue, which end will not be anſwered by a fettlement
that purſues the language of the agreement; becauſe the
VOL. I.
O
effect
1
OF THE INTERPRETATION
*
ག
[
*
384.] effect and confequence of * fuch a fettlement, would be
to leave the iffue at the mercy of the anceſtor, who
would have power to bar them by fine or recovery.
Stokes v.
272.
And where, in debt on an obligation, the defendant
Stokes, I Lev. pleaded a releafe; and therein it was recited," that
whereas J. S. had arrefted the defendant in the name
of the plaintiff without his knowledge, he thereby re-
leafed to the defendant all demands on his own account."
And it appeared that the obligation was taken by J. S.
in the name of the plaintiff, in truft for the children of
J. S. and thereupon J. S. caufed the defendant to be
arrefted in the name of the plaintiff, upon which the
releaſe was given; it was adjudged that the obligation
was not releaſed thereby, becaufe although it was ta-
ken in the name of the plaintiff, it was not on account
of the plaintiff, but on account of the children of J. S.
And the words " upon his own account" were put in
to ſome purpoſe, and they could be for no purpoſe, but
to diſtinguiſh the demands that he had in his own right,
from what he had in the right of, or in truſt for others.
Thirdly, The actions or circumftances-attending a
[* 385.] tranſaction, may be called in aid to * explain the na-
ture of dealings between parties, where, otherwiſe,
an ambiguity hangs over them.
41 E. 3. 6. 19.
Bacon's Max.
71.
Cook v. Booth,
Cowper 819.
•
Thus if two men fhould bargain for wheat, without
mentioning the quantity or fort, it would be an imper-
fect bargain. But if by their former dealings it ap-
peared, that fuch a fort and fuch a quantity was thought
of and defigned, it would be as good as if it had been
actually expreffed.
So if a man grant A. B. an annuity of 10l. a year
pro confilio impenfo et impendendo; if A. B. be a phyfi-
cian, it fhall be underſtood of his counfel in phyfic; and
if he be a lawyer, of his counſel in law.
Again, If I let a tenement to JS. near by my
dwelling-houſe in a borough, provided that he ſhall not
erect or uſe any fhop in the fame without my licence;
and afterwards I licence him to erect a fhop, and J. S.
is then a miller; he fhall not by virtue of theſe words
erect a joiner's fhop.
Upon this principle the court of King's Bench de-
cided the caſe of Cook and Booth.
That
OF AGREEMENTS.
*That cafe arofe upon a covenant in a leafe for three [* 386.]
lives, "that if the leffee, his heirs and affigns, fhould
be minded, at the deceaſe of the faid A. B. and C. or
any of them, to furrender that leafe and take a new
leaſe of the faid premiſes, and thereby add one new life
to the then two in being in lieu of the life ſo dying,
that then the leffor, his heirs, &c. upon requeſt, on
ſuch ſurrender of the leaſe then in being and upon pay-
ment, &c. to the leffor and his heirs, &c. for every
life fo to be added in lieu of the life of every of them fo
dying, and at the proper costs of the leffee, without
demanding any further fine for the fame, fhould and
would grant and execute unto the leffee, his heirs,
&c. a new leafe for the lives of the two perfons named
in the former leafe as fhould be then living, and of
fuch other perſon as the leffee, his heirs, or affigns,
ſhould nominate and appoint, in lieu of the perfon
named in the preceding leaſe, as the fame fhould re-
ſpectively happen to die, under the before-mentioned
annual rent, and the fame covenants therein con-
tained." There had been fucceffive renewals of this
leafe, containing the fame clauſe of renewal. At
length the leffee died. And afterwards a new leaſe was
* tendered to the heir of the leffor, who refufed to [* 387. ]
execute it, becauſe it contained a covenant for renewal
on the death of D. and E. who were not any of the
lives named in the original leafe. And one question
was, whether the heir of the leffor was bound to add
any covenant for renewal after the death of the ſurviv-
ing nominee, or, in other words, whether this were a
covenant for a perpetual renewal. And Lord Mansfield,
Willes, and Afhhurst, were of opinion that, there hav-
ing been four or five renewals, the leffors themſelves
had put the conſtruction upon the covenant: for in all
of them the covenant for renewal had been uniformly
repeated.
In fome cafes the ordinary import of words may be Vide inf
reftrained.
Firſt, where there is an original defect in the will of
the fpeaker, fo that it is not co-extenſive with his
words.
And, fecondly, where there is fome collateral acci-
dent inconfiftent with the ſpeaker's defign.
0 2
Under
,
OF THE INTERPRETATION
3
[* 388. ]
Mod. 278.
Dobfon
v. Crew,
com-
Under the firft of thefe diftinctions, we may
prife all cafes where there is good reafon to conclude,
that the perſon who fpoke was aware of certain things,
and yet did not intend to include them in the general
terms he uſed; though he did not exprefsly except
them, becauſe he fuppofed fuch an exception clear in
itſelf.
Thus if a man have goods of his teftator's, and
alfo other goods in his own right, and grant" omnia
bona fua," the goods that he has as executor do not
pafs. For though they are bona fua, in refpect of the
poffeffion that he has of them, yet they are not fo
ftrictly speaking. A man may, therefore, naturally
conclude, that when he is ufing words applicable to
things which he has in his own right, he must be taken
as meaning to except out of them things which he has
as executor, although his terms being general, might,
in fome fenfe, be applicable to them.
So if the condition of a bond be, that A. fhall not
hurt, endanger, or moleft B. in his lands or goods
Cro. Eliz. 705. upon any account: it fhall be intended of a tortious
moleftation; but not to reftrain A. from purſuing the
obligee for felony, or upon any other juſt cauſe.
{ * 389. ]
Co. Lit. fec.
535. 6. 7.
'Tifdale v. Ef-
* Upon the farne principle it is held, that the lord
by confirming the estate of his tenant, does not paſs his
right to the feigniory, although the word "eftate" be
fufficiently operative to include it: becauſe the confir-
mation or affent to the eftate, in a reaſonable conftruc-
tion of it according to the fubject, cannot be inter-
preted to pass a diftinct right in the lord ſeparate from
the eſtate in the tenant; fince his words take effect and
have a full operation, without concluding, from his af-
ſent to one eftate, that he has parted with the other.
This original defect of the will may be difcovered,
either, from the circumftance that an abfurdity would
evidently follow fuch conftru&ion, or from a defect of
matter contra&ed about.
The principle in the firſt inſtance is, that no man is
to be ſuppoſed to intend that which is abfurd.
Therefore if a man covenant that another fhall have,
fex, Hob. 34. occupy, and enjoy certain lands for feven years; an
ejectment by a ftranger will be no breach of this cove-
nant;
OF AGREEMENTS.
1
nant; and one * reaſon is, becauſe the law will never [* 390. ]
judge that a man will be ſo abfurd as to covenant againſt
the wrongful acts of ftrangers, except he covenant ex-
prefsly to that purpoſe.
So if the covenant be to fave harmleſs againſt all per- Cro. Eliz. 213.
fons, it will be underſtood againſt a lawful entry or
eviction.
But if it were to fave harmleſs againſt a perſon cer- Ibid.
tain, the covenantor ought to defend the covenantee
againſt the entry of that perfon, be it by right or
wrong; for the covenantee is damnified if he be dif-
turbed, though by wrong, and the covenant ſhall
(where it does not involve an abfurdity, as would be
the cafe were a man to covenant againſt the unlawful
acts of all the world) be taken moſt favorably for the
covenantee.
The principle in the ſecond inftance is, that the mat-
ter in hand is always prefumed to be in the mind and
thoughts of the ſpeaker, though his words feem to ad-
mit a larger fenfe: and, therefore, the generality of the
words ufed, fhall be reftrained by the particular
occafion.
cited 1 Eq. Ca.
Thus where A. had a judgment of 6000l. * againſt [* 391. ]
B.-B. gave A. a legacy of 51. and died. A. on re- Knight v. Cole,
ceipt of this 51. gave the executor of B. a releaſe in Abr. 170. Pl. 4.
this manner: I acknowledge to have received of C, note a. 1 Lev,
5. left me as a legacy by B. and do releaſe to him all 101,
demands which I, against him as executor of B. can
have, for any matter whatſoever: it was adjudged,
that the generality of the words, all demands, fhould
be reftrained by the particular occafion mentioned in
the former part thereof, viz. the receipt of the 57. le-
gacy, and fhould not be a difcharge of the judgment.
infra.
So if a man by indenture let a houſe for years, and Hancock v.
the leffee covenant to repair it well from time to time Field, Cro.
Jam. 170. II.
during the term; and at the end of the term to leave Et vide Henn
the fame well repaired to the leffor; and a breach be v. Hanfon,
affigned, for that he did not leave it well repaired at
the end of the term. And the leffee plead that the leffor,
within three days after the date of the indenture, re-
leaſed all debts, duties, and demands; and the truth
be that the leflor had recovered fix pounds damages
and cofts againſt the leffee, and made an acquittance
upon the receipt thereof, with a general releaſe of all
actions, duties, and demands. This releafe will not
be
OF THE INTERPRETATION
[*392.] be any bar, although it be
Et vide Cro.
Eliz. 606.
Vide 8 Rep.
153. b. Co.
of all demands," which
is the most general word in releaſes,
So if there be a covenant in a leafe for years to pay
Henn v. Han-
fon, 1 Lev. 99. rent reſerved; and, after the releaſe made, the leffee,
S.C 1 Sed. 141. in performance of an award of all matters in controverfy
between the leffor and the leffee, give a releaſe of all
demands at a day before any rent is due; this will not
releaſe the rent; and yet the rent, although not then
due, is a caufe of demand; and by a releaſe of all de-
Litt. 291. b. mands, not only all demands, but alſo all caufes of
demands are releaſed. And the chief reaſon is, on the
intent of the parties: becauſe the releaſe, being made
upon an award, is intended only to releafe things then
awarded, and not a growing rent. And a releaſe, and
the general words in it, fhall be reftrained and bound
to the intent of the parties.
Hetley 15.
[ * 393. ]
Dafforne v.
Goodman,
2 Vern. 362.
Et vide Salk.
54. Pl. 2.
So where, on a writ of annuity, a releafe was plead-
ed by which the plaintiff acquitted the defendant of
one payment for half a year, and releaſed to him all
actions, fuits, and demands; it was adjudged that the
releaſe does not bar him out of the arrearages of half a
year.
* Upon the fame principle, if an eſtate be given to a
man and his heirs male, his grandfons by his daughter
are not fuppofed to be meant by it; for, from the na-
ture of fuch a fettlement, males are plainly meant to be
alone included.
So where one poffeffed of a term for years, on his
marriage, affigned it to trustees in truft for himſelf for
life, remainder as to a moiety to his wife for life, re-
mainder as to one moiety to the heirs of the body of the
wife by him begotten, remainder as to the other moiety
to the children of the body of the wife. It was held
that, this being the eftate of the huſband, and the fet-
tlement to the purpoſes before-mentioned being made
upon his marriage, the declaration of truft for the be-
nefit of the children of the wife, muſt be intended the
children of that marriage, and not her children by any
other husband.
Secondly, an original defect of the will, may be dif
covered, where there is fome collateral accident falls.
out inconfiftent with the fpeaker's defign: as in a cafe.
where fomething happens that could not be fore-
feen, but is fuch as, if it had come into the mind of
him
}
OF AGREEMENTS.
*him who ſpoke, he would have excepted it: as in [* 394 ]
the cafe put in Cicero of him who falfely believing his Cicero de ora-
own fon to be dead had made another his heir.
tore, lib. 1. cap.
39.
being Subpoena 23.
daugh- fcience 1.
Statham con-
Fortefcue held, in a fimilar cafe put by him, namely, Fitzherb. tit.
that if ceftui que ufe had iffue a daughter, and,
fick, declared his intent to his feoffee, that his
ter ſhould have his land after his deceaſe, and he had 1 Rep. 100.
afterwards recovered his health and had iffue a.fon; that
it was good confcience that the fon fhould have the
fubpoena, for he was his heir. The reafon was, that
the father's intent proceeded upon the fuppofition that
he ſhould have no fon, which proving falfe, there was
no intent in favor of the daughter.
And the principle would be equally applicable in cafe
of a contract fo circumftanced.
1
Thus where A. gave bond to pay gool. to his Gibſon v. Gib-
daughter in caſe he ſhould have no fon living at the fon, 2 Freem.
time of his deceaſe, and he died his wife enfeint with 223.
fon. On a queftion whether the daughter fhould have
this gool. which if ſhe had, it would have been more
a
than his fon would have had. Per curiam, She fhall [* 395. 1
not have it for although there was no fon living at
his deceaſe, ſo that it was recoverable at law, yet it
could not be prefumed to be the father's intent, that, if
a fon were born after his deceaſe, the daughter fhould
run away with the cftate. And upon this ground the
fon was relieved in equity.
But if there be in the terms of a contract any obfcu-
rity or dubiouſneſs, which cannot be cleared up by the
intention of the contracting parties or any other cir-
cumſtance, and all other rules of expofition of words
fail, then the conſtruction ought to be againſt him who
ought to have explained himself, or made the other
have delivered himfelf fully. And, therefore, he who
is obliged ought to fpeak clearly, or otherwife, in ge-
neral, the other party has a right to explain the clauſe
for his own advantage. Therefore if two tenants in 5 Co. 7. b.
common grant a rent of ten fhillings, this is feveral Plowd. 140.
161, 171, 289.
and the grantees fhall have twenty fhillings; but if Co.Litt. 197.a.
they make a leafe and reſerve ten fhillings, they ſhall 267.b.
have only ten fhillings between them. So if a man, Co. Litt. 147
feifed of twenty acres of land, grant a rent of twenty Roll Abr. 228.
.fhillings percipiendum de qualibet acra terræ fuæ or out
of every acre of land. This is in nature of a feveral
grant
Kelw.
1
OF THE INTERPRETATION
[* 396.] * grant out of every acre; for the ſtrongeſt conſtruction
againſt the grantor is, that the grantee ſhall have twenty
fhillings out of each acre. In this rule of conftruction
the law of England agrees with the Roman law, wherein
it was a maxim that all obfcurities and ambiguities in a
bargain of fale, or letting, muft be interpreted against
Digeft. lib. 2. the feller or landlord. Veteribus placet, pactionem ob-
tit, 14. De pac- fcuram, vel ambiguam venditori et qui locavit nocere in
tis leg. 31.
quorum fuit poteftate legem apertius confcribere. In this
reſpect the determination of the common law of Eng-
land and the Roman law, are, in fome inftances, in
oppofition to the nature of things; for if the thing
contracted about be burdenfome to the party whoſe
words are to be expounded, the interpretation to be
agreeable to the intent, as the latter muſt be preſumed
from the nature of things, ought to be favorable to
him; for every one feeks his own advantage, and con-
fequently engages himſelf to as little inconvenience as
poffible; whereas, according to the conftruction al-
luded to, he is prefumed to have bound himſelf as
strictly as the words in their largeft fenfe will effect,
Therefore, perhaps, we fhould come nearer to truth,
if we were to hold, that the contracting party, for
whoſe benefit the agreement is burdenſome to the other,
[** 397.] is he who * fhould either explain himfelf, or make the
other explain himfelf, with all the clearness neceffary to
prevent ambiguity or obfcurity. Therefore the con-
ftruction fhould always go againſt him.
Dyer 17. a.
5 Rep. 22, a.
Indeed, in fome inftances, conftruction is, in the law.
of England, made according to the rule laft-mentioned.
That is, where the contract or agreement contains fome-
thing in its nature odious; of which kind are all
contracts that carry a penalty with them; or lay the charge
on one party only, or on one more than on another,
Upon this principle, words or fentences uſed in the
condition of a bond, which, confidered fimply in their
Vide exception own nature, are equivocal or ambiguous, fhall gene-
5 Rep. 23. b. · rally,, in refpect of the object of the condition, be taken
in eafe and favor of the obligor; the reafon for which
ſeems to be, that they are inferted for his advantage,
and to diſcharge him from a penalty.
Dyer 17. a.
Therefore if a man be bound to another upon con-
dition to pay 10l. before the feaft of Saint Thomas, and
there
OF AGREEMENTS.
*
there are two feafts of Saint Thomas. The money [* 398. ]
fhall be due on the laft feaſt and not on the firft, for
that is moft beneficial for the obligor.
Upon this principle it has been determined, that 5 Rep. 22.
where the condition of a bond confifts of two parts in 10 Mod. 26.
the disjunctive, and both are poffible at the time of the W. Jones 29.
bond made, and afterwards one of them becomes im- Cont.Salk.170.
poffible by the act of God, the obligor is not bound to
perform the other part; for he hath election to per-
form the one or the other for the faving the penalty of
his bond; and when one part is become impoffible by
the act of God, it is as beneficial to him as if that part
of the disjunction, which is become impoffible, had
been only the condition of the bond: and therefore,
when one alternative becomes impoffible by the act of
God, ſo that by no induftry the obligor can perform it,
the bond is faved.
( * 399.)
So where debt was brought on an indenture to re- Elwich v. Cud-
cover 2200l. whereby the plaintiff covenanted with the worth, i Lutw.
defendant to affign to him, or any other whom he 490.
fhould appoint, on the 30th January next following,
ten ſhares in the corporation of the linen manufacture;
and the defendant covenanted with the plaintiff to
* accept them the faid 30th of January, and at the ſame
time to pay the plaintiff 1100l. A queftion arofe out
of the pleadings, whether the affignment ought to pre-
cede the payment of the money? and it was argued that
it ought; becauſe the covenant was in nature of a con-
dition or defeazance to fave the forfeiture of the 2200/;
and, then, if the condition could have two intendments,
the better for the obligor ſhould be taken; and, there-
fore, the payment of the money ſhould refer to the ac-
ceptance of the affignment, and not to the day on which
the affignment ought to have been made. So that the
legal conftruction of the deed would be, that the plain-
tiff fhould affign and transfer the fhares on the 30th of
January, and that the defendant fhould accept it, and
on fuch acceptance the money be paid. And of that opi-
nion were the court.
Upon the fame principle it is faid, if one be bound
to make to a man a fure, fufficient, and lawful eftate in 7 E. 4. 13 b.
certain lands, by the advice of J. D.; if he make an Dett. 81.
Pl. 4. Fitz. tit.
eftate to him according to the advice of J. D. be it
fufficient or not, lawful or not lawful, yet is the bond
faved,
Another
;
:
OF THE INTERPRETATION
[* 400. ]
Co. Litt. 42.
Bro.Expofition
* Another exception to the rule of accepting ambi-
guous words moft ftrongly againſt the ſpeakers, is,
where fuch conftruction will work a wrong to others,
And, therefore, if tenant in fee make a leafe for life, -
without expreffing for whofe life, it fhall be intended
for the life of the leffee. Yet if tenant in tail grant a
leaſe in fuch terms, it fhall be taken for the life of the
leffor; becauſe, otherwife, it would work a wrong to
the reverfioner.
Subject to the above obfervation, words are to be un-
des terms 39. derſtood in the most comprehenfive fenſe in which they
are generally accepted; as the maſculine is to be under-
ftood as including both genders. Thus the word Men
fhall extend to women as well as men.
[* 401.]
19 H. 6. 42.
Hetley 9.
¡ And. 57.
Ibid.
Cooke v.
Founds,
I Lev. 40.
So if a licence were given to kill any beafts of chace.
in fuch a foreft except Bucks; under that name Does
alſo ought to be comprehended, for when we ſpeak of a
buck, or any other creature in the mafculine gender,
which is the more noble, it comprehends the female as
well as the male, unleſs there be fome circumftance
which fhews plainly, that we fpeak of the male in oppo-
fition to the female.
* And an indefinite expreffion fhall be underſtood
univerfally, unleſs there be otherwife fome reaſon to
reſtrain it.
Thus if two perfons have goods in jointure, and
give all their goods, not only thoſe they have in join-
ture, but their feveral goods alfo pafs. So if two grant
their rents, their feveral rents, as well as thofe which
they have jointly, pafs according to their feveral inte-
refts.
Again, if one reciting that he is poffeffed of divers
ewes, give them to me, the gift thall extend to all the
ewes which he that makes it is poffeffed of. But if one
be bound to prove that divers men were at fuch a place,
if he prove that two were there, he has performed the
condition; for he proves that two were there, in which
number is contained divers.
So if a covenant be to make an affurance of divers
lands, it fhall be conftrued of the whole or part accord-
ing to the intent.
Again, where one bargained and fold lands that he'
had purchaſed of W. and covenanted that he was ſeized
of
OF AGREEMENTS.
of a good eftate in fee according to the indenture [* 402 ]
made to him by W. In covenant it was affigned for
breach, that he was not feifed of a good eftate in fee.
The vendor pleaded that he was feifed of as good an
eftate as W. conveyed to him; upon which there was
a demurrer. And it was held good: for the covenant
was abfolute, that he was feifed of a good eftate in fee,
and the reference to the conveyance of W. imported on-
ly the certainty of eſtate, not the title.
If a man fpeak in legal language, his words ſhall be
taken in their moft comprehenfive fignification; fo as
not only to import what they do in ordinary language,
but alfo to include whatever they fignify in that fenfe,
which the law has impofed upon them.
Thus a limitation that a man's heir fhall have his Vide2Roll2535
land, as long as he pays fuch annual payments; and E. 25. 35.
that if his heir do not pay, then A. B. fhall have it, ex-
tends to all his heirs fucceffively for the grantor is
ſuppoſed to know the force and extent of the terms
and, knowing them, is concluded to have uſed them
without reftriction, unless there be fome probable rea-
fon to induce us to believe his mind did not go to their
full extent.
*
And,
in expounding contracts and agreements, [403.1
the conftruction, as has been faid, is made of them,
which is confonant to the general intent, as it appears
in the context.
240. Moore 58.
As if the vendor of a leafe covenant and grant, that Broughton v.
he has not made or done any former grant, or other Conway, Dyer
thing by which the then preſent grant or affignment
may be in any manner impaired, hindered, or fruftra-
ted; but that the affignee and his executors, by virtue
of the faid grant or affignment, may quietly have, hold,
and enjoy, all and fingular the premiffes, with their
appurtenances, during the term to come, without any
hindrance or difturbance by him, or any other perſon :
the latter words must be taken with reference to the for-
mer words; and it is no breach, if the affignee be dif-
turbed by any other perfon, if it be without the act of
the affignor.
Again, if one covenant that lands are of the value of Rich v. Rich,
1000l. per annum, and fo fhall continue, notwithftand- Cro. Eliz. 43.
ing any act done, or to be done by him; the words Et Jervis
"notwithſtanding any act," extend as well to the Peade,ibid.615.
time of the covenant made, as to the time future;
and,
1
OF THE INTERPRETATION
[* 404. ]
Dyer 255. Pl.
4.
[ * 405. ]
Bony v. Taylor,
2 Roll Abr. 253.
H. 3.
Crookhay v.
Woodward,
Hob. 217.
* and, though they be not then of that value, the cove-
nant will not be broken, except fome act done by the
covenantor be the cauſe of it.
So, if a bond be made with condition, "that, if
the leffor, fuffer the leffee from year to year during the
term, quietly and peaceably to have, hold, and oc-
cupy the tenement and land aforefaid; and that with-
out trouble, vexation, or denial of the leffor, or any
other perfon or perſons, that then, &c." This condi-
tion (notwithſtanding the generality of the latter words)
will not be broken by an entry of a ftranger; becauſe
all the fequel of the condition has reference to the firſt
word "fuffer," which is paffive: fo that no act is to
be done by the obligor, but only a fufferance of him,
his executors and affigns, and that, notwithſtanding
the words," and without trouble, &c." which only
mean, that the obligee ought to enjoy the leaſe againſt
all others, &c.; but if any procurement or occafion of
diſturbance be by the obligor, his executors, or affigns,
then he has forfeited the obligation; and "that" re-
fers to the word "fuffer."
+
<<
* So, if a man make a feoffment to the uſe of himſelf
for life, the remainder to another for life, the remain-
der to the uſe of the heir or heirs of his own body, and
to the uſe of the heir of fuch heir or heirs, and, if he
die without iffue of his body, the remainder over; in
this caſe, his heir ſhall take by deſcent: for, although
heir be a name of purchaſe, yet, the words "or heirs"
explain it, and make him in by defcent of an eftate tail.
Again; where a covenant was to fatisfy within
three months after requeft, and due proof of embez-
zlement by an apprentice," it was held, that the word
"proof," being left at large and capable of being
made in court judiciouſly, in an action brought againſt
the apprentice before the action brought upon this
covenant made by another; it fhould be taken to
mean a proof by trial in court. And it was agreed,
that the word proof, generally laid, fhould be under-
flood a proof judicial by jury, confeffion, or demurrer in
court.
And in contracts or agreements, words may be tranf-
pofed to give effect to the intent, where that is evident.
Ass
OF AGREEMENTS.
* As, if a leaſe be made the 6th of Auguft for twenty [* 406. ]
years, rendering rent annually at Lady-day and Michael- Co.Litt.217 b.
mas; the law will tranfpofe the fentence to Michaelmas
and Lady-day: becauſe otherwiſe the rent cannot be paid
yearly.
In contracts or agreements, the executors of the
contracting parties are implied in themfelves, and with-
out naming; if, from the nature of the contract, it ap-
pear that the parties fo intended.
170.
Thus fhould one, poffeffed of a term for years, leafe Hyde v. Skin-
the fame for years, and covenant for himſelf and his ner, 2 P. Will.
executors to renew the leaſe on the fame rent, upon
the requeſt of the leffee within the term; if, in fuch
cafe, the leffee ſhould die within the term, and his exe-
cutors fhould requeſt the leffor to make a new leafe
before its expiration, and they ſhould refufe, a court
of equity would compel them: for the meaning of ſuch
a covenant is, that the leffee may be reimburſed any
money that he may lay out in the improvement of the
eftate; and, therefore, it is immaterial, whether the lef
fee or his executors require the renewal of the leafe, it
not being perfonal.
]
*If money is to be paid by reafon of a contract, the [* 407. I
terms fhall be understood and accepted according to
their import where it is to be received; that is, it fhall
be paid in currency there.
And, therefore, if a contract be made in London to Davis 28.
pay a given ſum of money, as 100l. at Dublin, the
contract will be performed by a tender of 100l. Iriſh
currency; for, Confuetudo et ftatuta loci, in quem eft de-
ftinata folutio, refpicienda funt.
So if money, arifing out of an Iriſh eftate, be made Vide 2 P. Will.
payable in England, it ſeems that it muſt be paid in 88. Ibid. 696.
English money.
And if a man advance money by way of loan, or if
another detain his money unlawfully,, by reafon of which
he becomes intitled to intereft; that intereſt ſhall be
according to the value of forbearance in the country,
where the tranfaction ariſes.
Thus, where a bond was made in England, and fent Sir JohnOham-
over to Ireland, and the money was to be paid there, pant v. Lord
but Ranelaigh,Pre.
Chan, 128.
•
OF THE INTERPRETATION
}
[* 408. ] but it was not mentioned * what intereſt was to be paid;
my lord keeper was of opinion, that it fhould carry Irish
intereft.
Ekins v. India
Com. IP.
Will. 396.
Vide Dyer,
81 b. 82 b.
9 E. 4. 49 a.
[* 319.]
11 H. 7. 5.
Dyer 82 b.
note 71.
Speake v.
Speake, I Vern.
Pl. 7.
So, where the value of a fhip and cargo was recover-
ed on bill filed againſt the India Company, the tranfac-
tions having happened in India, the mafter was directed
to compute intereft on the value, at the rate money bore
in India.
And if the value of any thing be expressly ftipulated in
a contract, the value fhall be intended as things are, at
the time when the contract takes effect.
As if rent be to be paid at a given time, at which time
a thilling is of the value of twelve pence; and it after-
wards become only of the value of fix pence, as was fre-
quently the cafe in former times: if the money be ten-
dered at the time, the leffor fhall not afterwards recover
any more fhillings, than would have paid the rent at the
rate money was valued at, when the rent was due and
tendered.
* So, if one be to pay on fuch a day five quarters of
corn; and at the day of the contract entered into it is
valued at 50%. and at the day of payment at 57. he will
be intitled either to five quarters of corn,
pounds.
or five
So, on a bill to have a jointure, defective in value,
217. S.C. 1Eq. made good, the hufband having covenanted that the
Ca. Abr. 221. lands fettled were of a ſpecific annual amount, it was de-
creed accordingly; but the value of the lands was order-
ed to be eſtimated as they were at the time of the join-
ture ſettled, and not according to the value at the time
of the decree.
Gardner v.Pul-
•
But if, by reafon of improper delay, the value of the
len, 2 Vern. fubject ftipulated about is varied between the time of
394. Sed quære; the contract being made, and its being performed, the
bill was to be lofs muſt be borne by the party who was to carry the
relieved againſt contract into execution: as if one were bound under a
the penalty.
for here, the
penalty to transfer ftock at a given time, and he ne-
glected ſo to do, and the ſtock roſe in the mean time; he
Ihould transfer the ftock ftipulated in fpecie, and not fo
much as it was worth, on the day when he ought to have
transferred it.
And
OF AGREEMENTS.
* And ſeveral deeds, made at the ſame time to effect [[ * 410. ]
one object, will be conftrued as one affurance; but fo
that each fhall have its diftinct operation, to carry on the
main defign.
Thus, where a father put his fon apprentice, and Montaguev.
entered into a bond of one thouſand pounds for his fide- Tidcombe,
lity, and, at the fame time, took a covenant from his 2 Vernon 5 8.
mafter that he fhould,. at least once in a month, fee his
apprentice make up his cafh: it was held, on a bill
filed to be relieved againſt an action brought on the
bond, that the bond and the covenant ought to be taken
as one agreement; and, therefore, that the father ſhould be
anſwerable for no more than the mafter could prove the
apprentice embezzled in the first month, when the em-
bezzlement began.
So, where a man covenanted by marriage articles to Treatife of
pay the legacies charged upon his wife's eftate, and gave Equity, 49.
a ftatute, and alfo a mortgage of his own eftate, to
fecure the fame; and by an indorfement upon the
mortgage the fame was to be void, unless the wife's
eftate was fettled upon him for life, &c. according to
the marriage articles; this * indorfement, though up-
on the mortgage only, was fufficient to diſcharge the [*411. ]
ftatute and articles: for all the inftruments being exe-
cuted at one and the fame time, authenticated by the
fame witneffes, and part of the ſame agreement, are all
but as one conveyance,
Df
[412]
!
Bacon's Max-
ims of the Law
91.
[* 413.]
Ibid.
Ibid.
Lady Lanef-
borough v.
Ockfhott,
Df dilannulling, discharging,__refcind-
ing, waiving, or altering, Contracts
or Agreements.
THE
HE effence of a contract or agreement being the
right veſted in one party, and the obligation in-
curred by the other; it is clear that every contract or
agreement between two or more parties may, at any
time before it is to be executed, be refcinded by all par-
ties diffenting or receding from the bargain: for the con-
fummation depends upon the fame confent on which the
inception of the contract is founded.
Therefore if A. contract with B. that if B. lay him
into his cellar three tons of wine before Michaelmas, A.
will fend into his (B's) barn twenty quarters of wheat
before Christmas; the parties may by their reciprocal
affent, diffolve the contract at any time, before either of
thofe days.
*So, if two exchange land by deed, or without deed,
and neither enter; they may annul the exchange, by mu-
tual confent, fo it be by deed, but not by parol.
Again, if a leffee for twenty years make a leafe for
ten years, and afterwards, take back a leafe for five years,
this does not inure by way of furrender; becauſe a party
leaſe derived out of a greater cannot be ſurrendered back
again, but it inures by diffolution of the contract: for, a
leaſe of land is but a contract executory from time to time
of the profits of the land to arife; as a man may ſell his
corn or his tythe to fpring, or to be received for ſeveral
years to come.
Upon this principle an agreement may be waived
with the concurrence of all parties.
2 Brown Par. manor
Ca. 116. 5 Vi». mon.
P. 8. Ca. 31.
2 Eq. Ca. Abr.
207. Ca. 2.
Thus, where lord and tenant had entered into an
agreement for inclofing a piece of ground, parcel of a
on which the tenants had a right of com-
To effectuate this, the lord, by a feparate
inftrument, had releaſed each particular tenant from
all quit-rents and other fervices; and the tenants,
another inftrument of like date, confented to the
Et vide 3 Chan- by
Rep. 116.
incloſure,
OF DISANNULLING, &c.
* incloſure, and releafed all their right of common in [* 414.]
the ground fo to be incloſed. The inclofure was ſet
about, but the hedges being privately thrown down,
and other obftructions happening, the lord relinquished
his defign; and the tenants of the manor continued to
enjoy their right of common and to pay their quit-rents,
and do fuit and fervice at the lord's court in the fame
manner, as if no fuch agreement had ever been made;
but the inftruments, which had been reciprocally exe-
cuted in confequence of that agreement, were neglected
to be cancelled. A queftion, afterwards, arofe, be-
tween the alienee of the lord and a reprefentative of one
of the tenants, who had paid quit rent, &c. and en-
joyed the common for five-and-twenty years after the
agreement entered into, whether an inftrument, given
under this agreement, releafing the right of common,
was a good bar to an avowry made upon a diftrefs
levied for arrears of quit-rent, due from the defendant
as tenant of the manor; or, whether the fubfequent
tranſactions, viz the enjoyment of the right of com-
mon on the one hand, and the payment of the quit rent
on the other, did not amount to a waiver of the agree
ment? and it was held that they did.
*And, in fome cafes, one of the parties alone may [*415.]
refcind the contract as in fales with liberty of refufal.
Rep. 135.
Thus, if any thing be purchaſed and paid for, but Towers v. Bar-
on condition to be returned on certain events ftipulated; rett, 1 Term
there, on the event happening, the thing purchaſed
may be returned by the one party, and, upon the re-
turn, the contract is annulled by virtue of the original
terms thereof, without any actual reacceptance or ſub-
fequent affent of the other party; for he has no option
to refuſe to take the thing fo fold back. And upon the
ground that the contract is annulled, the party having
paid his money, and on fuch a contract, may, on the
return of the thing fold, recover it back on an action
for money had and received.
But, in contracts executed and confummate, if the Bacon's Max-
first parties have put it in the power of a third perſon, 91.
or of a contingency to give perfection of their acts,
they have, thereby, put them out to their own reach
and liberty. They, therefore, cannot then refcind
or revoke them: as if I contract with you for cloth at
VOL. I.
P
fuch
..
•
?
OF DISANNULLING
[* 416.] fuch a price as J. S. fhall name, there, *if J. S. refuſe
Ibid. 92.
Ibid. 91.
to name, the contract is void: but the parties connot
annulit; becauſe they have put it in the power of a
third perſon to perfect.
So if I enfeoff J. S. to the uſe of ſuch an one as J. D.
fhall name within a year; there, if J. D. name A. B. it
is not revocable: becauſe the ufe paffeth preſently, and
the contract is executed by operation of law.
After the time that a contract or agreement is ftipu-
I H. 7. 14. 15. lated to be performed is paft, there is a perfection given
Bro. tit.Bar.69. it by action on the one fide, that renders it indiffoluble,
and not to be annulled. But it may ftill be releaſed;
there being a difference between diffolving the contract,
and a releaſe or furrender of the thing contracted for.
A releaſe may be either exprefs or tacit. The for-
mer is accompliſhed by a regular acquittance or dif
charge. The latter is, where the party, in whofe fa-
vor the obligation arifes, concels the obligation, by de-
ftroying the inftrument by which it may be proved, or
the like.
*If he, who is to be benefited by another's fulfilling
[*417.] his contract or agreement, is the occafion why it is
not carried into execution; the contract or agreement
is thereby entirely diffolved, and the party bound dif-
charged from his obligation.
8 Rep. 92.
Therefore if the condition of an obligation be, that
Co. Litt. 206, the obligor fhall enfeoff the obligee of certain land be-
fore fuch a day; and then before the day, the obligee
diffeifes the obligor, and keeps the land by force until
after the day, fo that the obligor cannot enter: this will
excufe the performance of the condition.
35 H. 6. tit.
Barr. 162. cited
8 Rep. 91.
18 E. 4. 8. b.
;
So, if one leafe a houſe, by indenture, on condition
that the leffee fhall not permit any lewd woman to re-
fide within it, if he be warned thereof by the leffor
and that, if he do not turn her out within fix weeks
after warning by the leffor or his fervant, that the
leffor fhall re-enter: the leffee may plead, that the
leffor oufted him with force, and, against his will,
put fuch woman into poffeffion, and made her con-
tinue there with force, against the leffee's will, for fix
weeks, &c.
So, where one covenanted, by indenture, to
build
AGREEMENTS.
1
build him a houſe of certain dimenfions within a cer- [* 418. ]
tain time for ten pounds, and an action of covenant
was brought for non-performance of the contract; the
defendant pleaded, that he went and was ready to have
built the houſe, and that the plaintiff commanded him
that he ſhould not build it, by reaſon of which he left it
undone and, on demurrer, Littleton held this a good
plea; for, if the carpenter had come on to the plain-
tiff's premiffes after this command, the plaintiff might
have had an action of treſpaſs againſt him for his entry;
and, therefore, the commandment was a fufficient dif-
charge to the carpenter.
So where a leffee for five years covenanted to build
a mill within the term, and becauſe he had not done it,
the leffor brought an action of covenant; it was held a
good plea to fay, "that the leffor forcibly held him out
during the last three years of the term, fo as that he
could not build it."
Godb. 70.
18 E. 4. 2. b.
pl. 6.
And where a leffee for years covenanted to drain the Carrell v. Read,
water which was upon the land, before fuch a day; and, Cro. Eliz. 374.
afterwards, the leffor entered before the day and held
him out and * diſturbed him in doing it: this difannull- [*419.]
ed the covenant.
Again, it is held, upon the fame principle, that if Co. Litt.206.b.
A, be bound to B. that J. S. fhall marry G. before
fuch a day; and, before the day, B. marries her, he ſhall
take no advantage of the condition becauſe, by his
(B.'s) means, it could not be performed,
So if A. be bound to B. in a bond, conditioned to con- 18 E. 4. 9. 2.
vey to B. his manor, of Dale at fuch a day; and at the Pl. 12.
day, A. come to B. and tender him livery and ſeifin, and
he refufe: A, is diſcharged for ever.
And if one be bound to me in 20%. upon condition to
pay 10l at the feast of Eafter; and, at that feaft, he
offer me the 10l. and I refufe, the bond is diſcharged for
ever.
So if a man be bound to appear at a day, and, be-
fore the day, the obligee caft him in prifon, the bond is
void.
And, in fuch cafes, the party bound to performance
will be in the fame condition as if the agreement had
P 2
been
Ibid.
Noy's Max. 12.
;
:
.
3
OF DISANNULLING.
[ *
420. ] been fulfilled by him: for, * if he whom it concerns to
have my part of the covenant fulfilled, is the occafion why
it is not, it is the fame thing to me as if it were fulfilled.
Co. Litt. 210 b.
18 E. 4. 8. b.
Pi. £2.
Thus, if a man make a feoffinent in mortgage, up-
on condition to be void upon payment of money by the
feoffor, &c. to the feoffee, at a day; if, at the day,
the feoffee is out of the realm, the feoffor is not bound
to ſeek him, or to go out of the realm to him: and
then, becauſe the feoffee is the cauſe that the feoffor
cannot tender the money, the feoffor may enter into the
land, as if it had been duly tendered.
So, in the cafe before ftated, where a carpenter co-
venanted to build another a houſe upon his land for
Iol and came prepared fo to do, but was ordered by
him to defift: the carpenter, after fuch command to
defift, might have maintained an action for the 10l.
The right accruing by virtue of a contract or agree-
ment, may alſo be loft by abandonment.
[* 421. ] Thus, where one mortgaged lands, and, in the
Orby v. Trigg, deed of mortgage, there was a covenant to re-convey
9 Mod. 2. 3.
upon fix months notice of the payment of the princi-
pal fum and intereft; and alſo a covenant that, in cafe
the eftate was to be fold, the mortgagee fhould have
the pre-emption, (it appearing, that, after the death
of the mortgagor, an agreement had been entered into
for the fale of the eftate to another perſon, and that
neither that perfon, nor the heir of the mortgagor,
knew any thing of this covenant, the counterpart of
the mortgage deed having been delivered up to the at-
torney of the mortgagee, who had denied giving any
copy, but had infifted on payment of the principal and
intereft, on the ground that the fecurity was too narrow
for the money he had lent, and threatened forecloſure;
but had never mentioned, that the mortgagee was to
have the benefit of pre-emption, until after the eftate
was fold) it was held, that he ſhould not claim it to
the prejudice of the purchafer and the heir, after hav-
ing had fo long a time in which he might have ſo done
before the eſtate was fold. And the court decreed ac-
cordingly.
Powell v. Han-
key, et al, 2 P.
Will. 82.
And, upon this principle, it has been held, that, if a
binding
AGREEMENTS.
¹.
1
1
binding agreement be entered into * by huſband and [* 422. ]
wife, previous to their marriage, refpecting her pro-
perty, the effect of which is to give her an exclufive
right to it as her feparate eftate; yet, if fhe conftantly
permit her huſband to receive the intereft of it, if it
be perfonal eſtate inveſted in the funds or fecurities;
or the rents and profits, if it be a real eſtate; the law
will intend that the confented to her huſband's receipt
of it and a contrary inference would be hardfhip on
the hufband, who probably depending upon the wife's
permitting him to receive this feparate eftate as a gift,
may, on fuch a prefumption, have lived in a more plen-
tiful manner, the comfort whereof the wife muſt have
fhared in; and if fhe, at a future period, were allowed
to make her huſband debtor for this money, this might
ruin the hufband; or, in cafe of his death, prove equally
prejudicial to his children.
But this intendment of law, may be rebutted by Ridout v.Lewis,
parol proof, that the wife had no defign to abandon her 1 Atk. 269.
right to fuch ſeparate eftate. And, therefore, where
a woman had 300l. per annum fettled upon her as pin-
money, of which 2001. per annum only had been paid
her by her huſband for fome years before his death
*before his death; [423]
fhe was, on a bill filed in Chancery for that purpoſe,
let in to have the arrears inade a charge on her huſband's
affets, on producing evidence, that often, on her com-
plaining of being paid fhort, her huſband had told her,
that the fhould have it at laſt.
'A contract of a lower degree, may likewiſe be deter-
mined or annulled, by accepting a contract of a higher
degree for the fame thing.
And, therefore, if a man be indebted to me by fim- 6 Rep.45. Dyer
ple contract, and, afterwards, enter into a bond or obli- 21 b. Bro. tit.
Contract. 29.
gation to me for the fame debt; the fimple contract is 3 H. 4. 17 b.
thereby determined for, otherwife, the debtor would i H. 6. 8. a. 10
be doubly charged.
H. 7. 21 a. Fitz.
Nar. Brev. 281.
(a) So, a judgment. obtained, determines a contract Contra, if a
for the fame fum. Therefore, if a man recover in debt ſtranger give
upon a contract, and omit to take out execution, yet he bond for the
cannot have a new action of debt upon the contract; note (d.) Fitzh.
becauſe the nature of the duty is changed by the judg- Abr. tit. Debt
ment of record..
(a) 6 Rep. 45. 9 E. 4, 50 b. 51 a.
But
debt, vide ibid.
83. Dyer 230 b.
or,
be only indent-
ed and fealed,
and not deliver-
ed or made an
efpecialty,
Fitzh. tit. Debt
68. 1 H. 6. 82.
if the deed
OF DISANNULLING
2
.
[* 424.]
ford v. Peter le
Mayre, Cro.
But contracts of equal degree do not *extinguiſh or
Vide Lutter- determine each other; and therefore, a bond given for
the fame debt for which another bond has been previ-
Jac. 579. et vide oufly given, is not fufficient to avoid the former: for
Cro. Eliz. 817. its operation is but to give another action upon a bond.
tract, &c. 38. And, a multo fortiori, a new bond is not ſufficient to dif-
21 H. 4. 79 b. charge a judgment.
Bro. tit. Con-
13 H. 4. 1.
6 Rep. 45.
And, upon the fame principle, it is held that, if the
obligee in a bond accept of a bond in nature of a ſtatute
ftaple for the fame debt, and in full fatisfaction of the
bond, yet this is no difcharge: for, a ftatute ſtaple, or
bond in the nature thereof, is but a bond recorded; and
one bond, be it of record or not of record, cannot merge
another.
Preſton v. Per- So, if two records be of equal degree, the one can-
ton, Cro. Eliz. not determine the other. And, therefore, where a
817.
fcire facias was brought in Chancery upon a reconu-
fance there, and the defendant pleaded to iffue, and the
iffue was fent to the King's Bench to be tried, and
found for the plaintiff, and judgment given for him
there and then, the plaintiff brought debt in the com-
[* 425.] mon bench upon this judgment, and had judgment
there alſo to recover; and, afterwards, brought a fcire
facias in the King's Bench, to have execution upon the
judgment; the latter recovery was pleaded in bar of
that execution, whereupon the plaintiff demurred.
And the court held that it was no plea; becauſe the
one judgment cannot determine another judgment which
is of equal nature, no more than one obligation can
determine another.
Vide fupra,
217--223.
And we muſt, carefully diftinguish between cafes
where the infertion of parol contracts or agreements in
deeds, is merely by way of recital, or with a view to
corroborate them, and enlarge the remedy for enforc-
ing them; and cafes of the nature before alluded to,
where the contract itſelf is intended to be put under
ſeal, and turned into a ſpecialty: for, in the former
cafes, the ſpecialty does not alter the nature of the
contract; but the party having a right to require per-
formance, may, at his election, proceed either on the
parol contract, or the ſpecialty.
Contracts, entered into by deed, cannot be dif-
charged or diſannulled, by act of the party, by parol :
therefore,
AGREEMENTS.
therefore, the merely delivering up of an indenture [* 426. ]
of covenant, bill, or bond to pay a fum of money, 1 H. 7. 14, 15.
will not diſcharge or avoid the obligations created by Bro. tit. Bar.69.
them. Confequently, it is no plea to an action of debt Cro. Jac. 99.
upon bond, &c. to fay, that the obligee re-delivered the Lutw. 358.
bond to the obligor in lieu of an acquittance, if the contra Roberts
obligee has regained the poffeffion of it. And, upon 2 Rolls Rep.
the fame principle, accord and fatisfaction is no difcharge 110. S. C. Pal-
of a covenant; for a covenant, being created by deed, mer 110.
cannot be diſcharged but by deed.
Nay, even payment itſelf is no plea to a bond; for
it must be difcharged by matter of as high nature as
itfelf; and, therefore, admits of no plea of any act of
the obligor, but that of a releaſe under feal.
v. Stoker.
But, where a wrong, or default fubfequent, together
with a deed, gives an action to recover damages (which
are only in the perfonalty) for fuch wrong or default;
there, the damages may be difcharged by matter of fact Snow v. Frank-
or parol: as if one by indenture of leafe, covenant to lin, Lutwich
repair and maintain houfes in reparation, from time to 358. Alden v.
time during the term demifed; in fuch cafe, accord and [* 427.]
* fatisfaction is a good difcharge for the damages de- Blague, Cro. Ja.
manded, by reaſon of the breach of the covenant: but cafe, Noy. 110.
the covenant remains.
S. C. 6 Rep.43.
99. et Blake's
Although it be generally true that, at law, a parol
agreement will not be admitted to contravene the terms
of an agreement contained in a deed, or any other
agréement in writing; yet, in fome cafes, it is other-
wife in equity: for there it is held, that parol evi-
dence may be adınitted to rebut an equity; and, a fpe-
cific execution being an equity, thofe courts will, un-
der fome circumftances, admit parol evidence to fhew,
that a written contract or agreement has been waved in
part, or in the whole, or varied in the terms of it, by
a fubfequent parol agreement. As if, after a mortgage Lord Milton v.
made with intereſt reſerved at five per centum, the mort- Edgworth, 6
gagee, upon reprefentation by the mortgagor that the Bro. Par. Ca.
eftate will not afford to pay fo high an intereft, agrees
to reduce it to fuch rate as a third perfon fhall name,
and the third perfon mentions three per centum, and that
is affented to: in fuch cafe, the latter agreement, although
by parol, will control the former. And, if there be any
denial of it, a court of equity will direct an iffue to
afcertain the fact.
Upon
580.
OF DISANNULLING
[*428.]
*Upon this ground the lord keeper, in the cafe of
Gorman v. Sa- Gorman and Salisbury, difmiffed a bill, which was
liſbury, 1 Vern.
240.
brought to have an agreement executed in ſpecie.
Legal v. Miller,
So in the cafe of Legal and Miller, it was held, that
fnpra, et 2 Vez, an agreement bearing hard upon one of the parties was
waived; a new and different agreement by parol being
fhewn.
299.
5Vin. Abr. 522.
Pl. 38. 2 Eq. Ca.
Abr. 48. 16.
And fuch new agreement by parol, if in part executed
on one fide, will be decreed to be ſpecifically performed
on the other.
Thus, where W. leafed an houfe to N. for eleven
years, and was to allow 20l. to be laid out in repairs:
the agreement was reduced into writing, and executed
by both parties. N. repaired the house; and finding
that it would take a much greater fum than the 20%
told W. of it, and that, he would nevertheleſs go on
and lay out more money, if he would enlarge the term
to twenty-one years, or add fourteen years, or as many
as N. fhould think fit. W. replied, that they would
not fall out about that. W、. afterwards declared that
he would enlarge the term, without mentioning any
[*429.] time in certain. On a bill to compel an execution
of the agreement according to thefe latter terms, the
Maſter of the Rolls faid, that, before the ftatute,
written agreements could not be controled by paroj
agreements of a contrary import, or altering them, but
that this was a new agreement; and the laying out the
money was a performance on one part, and that,
therefore, it ought to be carried into execution on the
other part.
Vidé infra.
Per Lord Hard.
in Buckhouſe v.
*
9
But we muſt carefully diftinguish thefe fort of cafes,
from cafes of fecret agreements, made to impofe upon
parties to other agreements, by altering the terms of
them.
In all cafes where parol agreements are fet up, in
equity, to fhew a waiver or alteration of contracts in
Croſby, 2 Eq. writing refpecting lands, a very clear proof of the for-
Ca. Abr. 32,33. mer will be expected; for the ftatute of frauds and
perjuries requires, "that all contracts and agreements
concerning lands, &c. fhould be in writing." Now,
an agreement to waive a contract for a purchaſe, is as
much an agreement concerning lands, as the original
contract itſelf is. And Lord Harwicke thought, that
proof of a parol waiver of an agreement for a fale
1
of
AGREEMENTS.
་
* of land by two perfons (one of whom was then tenant [* 430. ]
of the land, and paid rent to the perfon on whoſe behalf
the waiver was, and who was mortgagee of the eftates;
and the other of whoin was proved to have declared that
he was to ſhare in the purchaſe) was infufficient to dif
charge a contract in writing.
And where, a decree having been made, the defen- Wakelin v.
dant to a bill to execute the decree, by way of anfwer, 2 Chan. Ca. 8.
Wakelin,
fet forth a parol agreement in bar, to which the plain-
tiff demurred; the demurrer was allowed, though the
agreement was fubfequent to the decree: for, it was
faid, that the decree thould proceed, and if the defen-
dant would have advantage of the agreement, he muſt
bring an original bill; becauſe, if he fhould have ad-
vantage of it by way of defence, one witnefs would
ferve his turn; but, if the defendant in his anſwer to an
original bill denied the agreement, one witnefs would not
convict him fo that, by this way of anfwer, the plain-
tiff in this fuit would lofe the benefit of his anſwer in an
original fuit, inftituted upon the latter agreement.
•
تار
But, it is not only contrary to the letter and fpirit [
and ſpirit [* 431. ]
of the ftatute of frauds and perjuries, but to the rules of
the common law before that ſtatute was in being, to
add any thing to an agreement in writing which is
complete, and reduced into deeds and writings; by
admitting parol evidence to explain it to have been meant
to operate otherwife than the language in which it is con-
vinced imports: and, therefore, fuch evidence ought in
all cafes to be laid afide, and no advantage taken of it on
either fide.
:
Patericke v.
Thus, where the portion of a wife appeared by fet- Powlet, 2 Atk.
tlement, made on her marriage, to have been 5,300%. 384.
and it was proved that, at the time the fettlement was
executed, the wife gave a bond, figned by her, to the
huſband's father, in the penalty of 1400/. for fecuring
700l. but the huſband in his own hand wrote at the
bottom, I own this to be my debt: Lord Hardwicke was
of opinion, that he was obliged to lay out of the cafe all
parol evidence that had been read to explain this tranſ-
action, and that no advantage ought to be taken of it on
either fide.
So where, on a bill brought for dower the defendant, Tinney v. Tin-
the ney, 3 Atk. 8.
:
OF DISSANULLING
}
*
[* 432. ] the heir at law, infifted, on the huſband in his life-
Joynes v. Sta-
tham,3 Atk.
388.
[433.]
time gave a bond in the penalty of 1000l. in truſt to
fecure to his wife 500l. in cafe fhe furvived; and that
it was intended at that time in lieu of dower; and that
fhe acknowledged it to be fo; and offered to read evi-
dence of her acknowledgment: the lord chancellor was
of opinion, that parol evidence could not be allowed in
this cafe, it being a cafe within the ftatute of frauds and
perjuries.
But we must be careful to obferve the diftinction,
beween inftances of the nature of thofe laft-mentioned,
where the evidence offered is to explain a written agree-
ment, complete in itſelf; and cafes were parol evi-
dence is offered to fhew, that fomething, intended to
be inſerted in an agreement, has been omitted by mif-
take or fraud: for the latter is a very common defence,
in a court of equity, to a bill for a ſpecific performance;
and there is no doubt but that ſuch evidence ought to be
received; and it is quite equal, whether it be infifted up-
on as a miſtake or fraud.
Thus where a bill was brought to carry into execu-
tion an agreement for a leaſe of a houſe during the life
of the defendant's wife, which was written by the
plaintiff and figned by the defendant, the leffor only,
who could not write, but made his mark. The de-
fendant infifted by his anſwer, that there ought to have
been a clauſe inferted in the agreement, that the tenant
fhould pay the rent clear of taxes; but that the plain-
tiff having written the agreement himſelf, had omitted
it; and that the defendant, unleſs this had been the
agreement, would not have funk the rent as he had
done from 14/. to 9l. per annum; and the defendant of-
fered to read evidence to fhew that this was part of the
agreement. And it was faid, that this evidence ought
to be rejected, as contrary to the ſtatute of frauds: but
Lord Hardwicke allowed the evidence of the omiffion in
the leafe to be read.
So if, on an agreement for a mortgage drawn by the
Ibid. 389. mortgagee the mortgagor being a markfman (that is,
unacquainted with the art of writing) the mortgagee
omit to infert a covenant for redemption, the mortgagor
will, in fuch caſe, be at liberty, in a court of equity, to
infift upon reading evidence to fhew the omiffion.
So,
AGREEMENTS.
}
*
So, if a mortgage be drawn in two deeds, one an [* 434. J
abfolute conveyance, the other a defeazance, and there
be an omiffion by the mortgagee to execute the defeaz-
ance: the mortgagor fhall be permitted to fhew the mif-
take.
Again, where, by agreement, the South-fea com- South-fea com-
pany were not bound to anſwer for any irregularity by pany v. D'O-
liffe, cited
fupercargoes, unleſs information was given in two 2 Vez. 377.
months after their return home; the inftrument was
drawn up on board the fhip and in a great hurry, and
executed there by the party, who, when he got out to
fea and read it over, found it was fix months inftead of
- two, and brought a bill to be relieved againſt the va-
riation in the inftrument; Lord King fent it to an iſlue
on the queſtion, Whether it was the original agreement
that it should be two inftead of fix months? and the ver-
dict being in favor of the plaintiff, that the agreement
was defigned to be in two months, a decree was made to
relieve the plaintiff againſt any difficulty by that varia-
tion.
But the true ground upon which the laſt-mentioned
decifions appear to me to reft, is, that the proof offered is
no variation of the agreement, but confiftent therewith,
and * explanatory of it only; and that ſtrong circumftan-
ces of fraud or miſtake pervade all of them: for fuch evi-
dence is never ſuffered to contradict or explain away an
explicit agreement; becauſe that is, in effect, to vary
it in refpect of things fpecifically expreffed therein: and
courts ought to be very cautious in admitting any evi-
dence to ſupply or explain written agreements in fpeci-
fic circumſtances exprefsly ftipulated; for otherwife, the
ftatute of frauds would be eluded, and the fame uncer-
tainty introduced by fuppletory or explanatory evidence,
which that ftatute has fuppreffed in refpect to the primary
object.
[ *435. ]
Thus where M. and H. had the occupation of cer- Meres, et al. v.
tain clofes of lands belonging to M. called A. Clofe Anfell, et al.
a Will, 275.
and B. Meadow; and C. and his partner came to an
agreement with them, by a memorandum in writing
figned by all the parties, and atteſted by one D. where-
by C, and his partner agreed to exchange their copper-
mill, &c. with M. and H. in confideration of the grafs
and vefture of hay to by taken by C. and his partner off
B. Meadow, and articles were to be made accordingly;
but no mention was made in the agreement refpecting A.
Clofe,
ped
OF DISSANULLING
[* 436. ] Cloſe, and only of * a ſpecial particular intereft in B.
Meadow. Upon this tranfaction a queftion arofe at
nifi prius on an action of trefpafs, whether C. and his
partner were not entitled to the poffeffion of A. Cloſe,
as well as the hay of B. Meadow? and to fubftantiate
this claim, D. the fubfcribing witnefs,, was called, and
proved the written agreement, and further depofed that
it was, at the time of figning the agreement, agreed by
the parties by parol, that C. and his partner ſhould not
only have the hay off B. Meadow, but alfo the whole
poffeffion of the foil and produce of A. and B. And the
queftion was, whether this evidence was admiffible? Et
per curiam, We are all clearly of opinion, that no parol.
evidence is admiffible to difannul and effentially to vary
a written agreement.
Preſton v.
Merceau,
1249.
*
Upon the ground of thefe diftinctions it was alfo de-
cided in the court of Common Pleas, on an action on
Blackit. Rep. the cafe for uſe and occupation of an houfe, of which
it was agreed in writing, a leafe fhould be let by A. to
B. for twenty-one years, at 261. per annum, to com-
mence, &c.; that parol evidence, offered by the plain-
tiff on the trial, to fhew that, befides the 261. per
[* 437.] annum, the defendant had agreed to pay 21. 12s. 6d.
a year, being the ground-rent of the premiffes to the
ground-landlord (but no evidence offered of the actual
payment of fuch ground-rent) was inadmiffible. And
there upon Lord C. J. De Grey nonfuited the plaintiff.
And on motion to fet afide the nonfuit, the rule was
diſcharged, Blackstone and Nares Juft. obferving, that
this was a politive agreement that the tenant fhould
pay a ſpecific rent of 26. could the court then admit
proof that this meant 287. 12s. 6d. It was nothing to
the tenant to whom the rent was to be paid, if he was
obliged to pay more than his contract expreffed. The
court could neither alter the rent nor the term, the two
things expreffed in the agreement. With respect to
collateral matters it might be otherwife, the plaintiff
might fhew who was to put the houſe in repair, or the
like, concerning which nothing was faid; but he could.
not, by parol evidence, thorten the term to fourteen,
or extend it to twenty-five years, or make the rent other
than 267. a year. Blackstone, Juft. faid, that the cafe
of Foynes and Statham, was the cafe of a mere execu-
tory act, in which the mafter was to fettle the proper
covenants, and therefore had a right to enquire who
Supra 432.
was
}
AGREEMENT S.
was to pay the taxes. Befides, there were ſtrong [* 438. ]
fuggeftions of fraud in making the written agreement,
as one party could neither read nor write.
And, except in the inftances before-mentioned, the 2 Wilf. 276.
rules of evidence are univerfally the fame in courts of
law and courts of equity. Therefore if, in the before-
mentioned cafe of Meres and Anfell, a bill had been Supra 435.
filed in equity for a specific performance of the agree-
ment; the court would not have admitted the parol
evidence there tendered.
But to return to the fubject of difannulling contracts
or agreements.
Where the right and obligation meet, and unite in
the fame perfon, the contract, generally, is thereby
diffolved; for, fince a man cannot be his own creditor
and debtor, it follows, that if a man becomes repre-
fentative to his debtor, his action ceases, there being
no object on whom it can attach. This is termed in
the civil law confufion. Therefore, if the creditor
make his debtor his executor, the debt, as between them,
is vanished.
*
So, if a man be bound in an obligation to a feme
fole, and afterwards take her to wife; the contract is
diffolved, by act of law, by the union of the right;
and the obligation in him.
Again, if a man had been indebted by bond to a
villain, and had afterwards purchafed the manor to
which he was regardant; the obligation had, by act of
law, been gone.
I
[*439. ]
H. 7. 16. a b.
luid.
2 Geo. 2. cap.
And, fince the ftatutes for fetting off mutual debts
have been enacted, contracts creating debts, may, in 22. 8 Geo. 2
cafes where the fums are equal (provided the debts are cap. 24.
of the fame nature) be extinguiſhed by compenſation :
as by oppofing debt to debt, whereby a man ceaſes to
owe me, becauſe I owe him as much of the fame kind,
by a contract of the fame nature. For, fince, where
debts are mutual, I muſt, if I receive, immediately
refund as much; the legiſlature, to abridge fuch need-
lefs payment, allows each party to pay himſelf by re-
taining his own, and to plead the one in bar to an ac- Bell, ni pri.
tion for the other.
But where the fums are unequal, there, the leffer
must be fet off, and will be a difcharge of the contract
pro tanto.
179.
But,
OF DISANNULLING
7
[ * 440. ]
Ibid.
Ibid.
Ibid.
[* 441. ]
Dame Darcy v..
Chute, et al.
S. C. 3 Chan.
Heeding v. Da-
*But, this mode of compenfation does not take place,
except between thoſe who are creditors and debtors to
each other in their own right; and, therefore, a debt,
due to a man in right of his wife, cannot be ſet off in
an.action againſt him on his own bond.
So a fet off-cannot be pleaded to a bail bond, not
affigned to the party; becauſe it is not within the 8
Geo. 2.; for that ftatute relates only to bonds condi-
tioned to pay money, and not to bail bonds: nor is it
within the 2 Geo. 2.; becauſe the plaintiff does not
bring the action in his own right, but as truſtee for
another.
But, if there be mutual debts fubfifting between a
man's teftator and J. S. The executor will be indem-
nified in ſetting off J. S. 's debt againſt his reftator's
without bringing an action against him; for, fo far
the executor and his teftator may be eſteemed the fame
perſon: and, therefore, compenfation may take place
between him and his teftator's creditor, in like manner
as if his teftator had been living.
It was formerly doubted, whether marriage was not
an act of fuch a nature, as to* extinguifh any contract
or agreement made between the intended huſband and
wife previous thereto, where no truftee was interpofed.
Thus where B. (A. being a widow, and feifed of a
jointure worth 700l. per annum) made fuit to her to
1 Ch. Ca. 21. marry her, and, fhe agreeing to it, he, before the
Rep. 4. Et. vide marriage, agreed with her, by deed in writing, that
S. L. Pridgeon, it ſhould be lawful for her, or ſuch perſon as the fhould
Pridgeon, appoint, during the coverture, to receive and difpofe
ibid. 117. of the rents of her jointure as the pleaſed; the deed was
vis,Skinner409. put into the hands of a perſon who had formerly been
Quære, If here A 's agent, and after the marriage, A.'s agent uni-
was not an a formly received the rents of the jointured lands, and
bandonment by
the wife? conftantly, with the approbation of A. accounted for,
and paid the fame to B. but after B.'s death, A, exhi-
bited a bill againſt her huſband's executor and the
agent, charging 1000l. to have been received in B.'s
life-time, and to be refting in the agent's hands un-
accounted for, to which fhe made title under the agree-
ment made between her huſband and herfelf before
marriage upon the hearing the court declared, that
this agreement made before marriage with A. herſelf,
a-
was
1
AGREEMENTS.
was
immediately by the* marrriage extinguiſhed, and [ * 442. ]
refuſed relief thereupon.
But a diftinction was made, at law, between a pro-
miſe which was not to be executed until after the co-
verture determined, and a promiſe to be executed dur-
ing the coverture: the former having been held not to
be extinguiſhed by the marriage, as the latter was
clearly held to be.
Hob. 216.
This point appears to have been firſt agitated in the Smith, et uxor,
cafe of Smith and Anne, his wife, against Stafford; v. Stafford,
wherein the former declared that, upon fpeech of mar-
riage had between Anne and the defendant's teftator,
he promiſed if ſhe would marry him, and he died before
her, he would leave her worth an hundred pounds; and
that the did marry him, and that he died and left her
not worth an hundred pounds. And, upon non-af-
fumpfit and verdict for the plaintiff, it was moved in
arreft of judgment, that the promife was releaſed, in
law, by the marriage: againft this it was objected,
that the action could not ariſe during the coverture; for
it was not to be performed until after the death of him
who made the promife. And, on this ground, it was
held by three judges, against the opinion of Hobart,
that the action well lay.
*
[* 443.]
Clarke v.
A fimilar judgment was affirmed in a writ of error
in the Exchequer Chamber, in the cafe of Clarke and Thompfon,
Thompſon, the above cafe being there cited as in point.
Cro. Ja. 571.
And, in the cafe of Gage and Acton, it was held by Gage v. Acton,
Gould and Turton, Juftices, againſt the opinion of Salk. 325.
Holt, C. Juftice, that a bond conditioned to be void,
"in cafe the obligor and obligee intermarried, and the
obligee furvived, and the obligor left her 1000l" was
not extinguiſhed by the marriage; becauſe to avoid it
would fubvert the marriage agreement. And they
held, that the debt was only fufpended, and the rather,
becauſe it was not payable during the coverture, but
was a debt on contingency; fo that if the feme dum
fola had releafed all demands, the debt had not been
extinguiſhed.
And, in the cafe of Pridgeon and Pridgeon, a like
Pridgeon v.
diſtinction was taken in equity, between an agreement
Pridgeon.
betwixt baron and feme made before marriage; that the Ch. Ca. 117.
wife might, by will, difpofe of part of her eftate, or Et vide Smith
I
for v. Stafford,
Hob. 216.
OF DISANNULLING
!
[*444. ] for a thing *which was future to the marriage, and an
Et Cro. Ja. 571. agreement which was to be carried into execution dur-
2 Mod. 171, ing the coverture: inafinuch as, in the former cafe, the
173.
agreement was held not to be diffolved thereby, upon
the ground that it was no duty during the coverture;
whereas, in the latter cafe, the agreement was extin-
guiſhed by the marriage.
And fince agreements, for fettling eftates to the ſe-
parate uſe of the wife on marriage, have become very
frequent, courts of equity, and alfo courts of law,
have viewed the ftipulation entered into by the parties.
on the occafion of marriage in the moft liberal way;
Vide2Vex.191. and it is now undoubtedly fettled that, where there is
Ibid. 665. an agreement between husband and wife only, before
marriage, that the wife fhall have to her ſeparate ule
either the whole or particular parts of her perfonal
eftate, fhe may diſpoſe of it by act in her life, or by
will, and that by either of thefe modes, though no-
thing be faid of the manner of difpofing of it.
Contracts and agreements may also be annulled or
altered by act of the legiflature; for, in all cafes of
contracts and agreements, the parties must be fuppoſed
[* 445.] not to have confented, but under a tacit condition
that they fhall be diſcharged, if the ftate throw any
obftacle in their way.
Winnington
v. Brifcae.
8 Mod 51.
v. LordShrewf-
Et. Stent v.
Thus where A. brought 10,000l. South-ſea ſtock of
B. on the 10th of August 1720, for which he agreed to
pay 11,250%. and had paid 3000l. part of the money,
Et vide Bowes and B. promiſed to give him receipts for the 10,000!.
bury, 5 Brown ftock as foon as the books of the company were open;
Par Ca. 269. but, before they were opened, an act of parliament was
Et S. C. fupia. made, prohibiting any more receipts to be given out,
c. Whereupon A. brought his action against B. for
the 3000l. he had paid A. as fo much money received
to his ufe; the question was, whether the failure to
deliver the receipts fhould ſubject B. to this action; or
whether B. might not have an action againſt A. for
the remaining 8250/? and the court was of opinion,
that the agreement, having become impoffible to be
performed by reafon of the act of parliament interven-
ing, fhould prejudice neither party.
Bailes, 2 P
Will, 218.
But if the legiflature interfere, fo as to render a per-
formance as to part only of the thing contracted for il-
Irgal; the agreement will, nevertheless, be binding as
to
AGREEMENTS.
to the refidue, and a court of equity will enforce the [* 446.]
execution of it; for, in fuch cafe a man is bound in
confcience to do all that is in his power, the interpo-
fition of the legiflature not diſcharging the parties from
the performance of fo much of the contract as remains
lawful: therefore where a dean and chapter, before Vide Dr. Bet-
the difabling act made a leaſe of lands in London to build
on for ninety-nine years, and- covenanted to renew, at Dean and
Chapter of St.
the expiration of that term, for ninety-nine years more; Paul's, 2 Eq.
they were decreed, although the covenant was entire, Ca. Abr. 25.
to make fuch a leafe as was in their power; namely, a Ca. in Ch. 65.
leafe for forty years, which was allowed by the ftatute 3 Pro. Par. Ca.
389.
of the 14 Eliz. c. II.
tefworth v.
And a man may be diſcharged from his contract or 10 Mod. 268.
agreement by the act of God; for when a thing is
prefcribed to be done or omitted, if, by the act of
God, the thing ftipulated become phyfically impoffible,
the perfon obliged fhall not receive any prejudice for
not executing what is ftipulated, if every thing be per-
formed without laches, that the parties might perform :
becauſe it would be unreaſonable, that thofe things
which are inevitable, which no induftry can avoid, nor
policy prevent, fhould be conftrued to the prejudice [* 447.]
of any perfon in whom there was no laches: as if a 45 E. 3.6. 2.
leffee covenant to leave a wood in as good plight as it Noy's Max. 35,
was in at the time of the leafe, and, afterwards, the ¹ Rep. 98.
trees are blown down by tempeft, the covenant is dif
charged quia impotentiam excufat legem.
*
And there is no difference in this refpect between a
covenant and an affumpfit; for an affumpfit is a cove-
nant by parcl, and a covenant is an affumpfit by deed.
And the law is the fame, where a thing which is due
in fpecie, ſo that it cannot be difcharged by an equiva-
lent, is deftroyed without any default in the debtor, or
any delay in returning it.
}
Therefore, where in affumpfit, the plaintiff declared Williams v.
that, in confideration that he had lent a grey gelding Hide, et al.
Palmer 548.
to C. to his uſe to ride, &c. C. then and there pro-
mifed to re-deliver it when required, but that he had
not done fo, although he had been required; and C.
replied that the horfe, in confequence of divers diſeaſes,
died, whereby it could not be re-delivered: this, on
demurrer, was held a good plea; for, performance be-
VOL. I.
•
е
ing
OF DISANNULLING
[448. ]ing become * impoffible by the death of the horſe, the
contract was difcharged.
Fitz.Dett. 143.
77 E. 3.84.
Chapman v.
[ * 449. ]
•
So, if A. contract with B, to ſerve B for a year for
20s. to be paid at two ſeveral times, and B. die after
the firſt time paffed, and before the lait time of payment;
A. fhall be barred of the rest of the falary; for, by the
death of B. he cannot ferve him, and, therefore, the con-
tract is determined.
But although an agreement cannot, by reafon of the
act of God, be performed according to the words, the
party fhall, nevertheleſs, perform it as near the intent
of the agreement as he can.
ક્
This was fo determined in the cafe of Chapman and
Dalton, Plowd. Dalton, in Plowden. There, a covenant was made in
284.
a leafe for twenty-one years, that the feffor, after the
expiration of the faid term, fhould make, or cauſe to
be made to the leffee and his affigns, a further demife of
the lands fo letten for a term of twenty-one years,
next and immediately following the aforefaid term of
twenty-one years before named, in the faid indenture
aforefaid ſpecified and contained, &c. The leffee died
*within the first term: and the queftion was, whether
the executor of the executrix of the leffee, had a right
to call for the new leafe. And it was contended that,
by the death of the leffee, the covenant became impof-
fible to be performed by the act of God; for, that the
new leaſe ought to be made unto the leffee and his af-
figns, and he is dead before the time limited for the
making it, and therefore the leaſe cannot be made ac-
cording to the limitation; for it ought firſt to veſt in
the leffee, and the party ought not to perform it in
other manner than the agreement was made. But it
was contended on the other fide and determined, that,
admitting the meaning of affigns here to be, that it
ſhould be only to him and to his affigns, as habendum
to him and his to affigns, ſo that affigns were words of
limitation; yet the leffor ought to make the leafe to
the executor of the executrix of the firſt leffee, and that
he ſhould not be diſcharged of the covenant by the death
of the first leffee to whom it was made: becauſe the
ſubſtance of the agreement was that the eſtate ſhould
be made, and that the intereſt ſhould be had and the
perſon to whom it ſhould be made was not the princi-
pal point of the agreement. And when the leafe was
+
limited
¡
AGREEMENTS.
*
limited to be made at a day to come, it was then [450. Į
known and confidered by each of the parties, that he
to whom the leafe was made was ſubject to death, and
that it was probable he might die before the leafe was
made. And therefore it could not be prefumed that
the party intended to have the agreement diffolved by
his death, or that the other intended by fuch event to
be discharged from making the leafe; but it fhall be
preſumed that it was the intent of both the parties that
the leafe fhould be made, notwithstanding the death of
him that ſhould take it. And he has left others behind
him able to take the leafe, viz. his executors; and
he who is to make it receives no more damage by mak-
ing it to the executor, than by making it to the teftator.
Therefore, although it is impoffible for him to perform
the covenant according to the words, yet he ſhall per-
form it according to the intent.
Upon the fame principle, where a condition of a bond
was to ſettle certain lands in ſuch a manor by ſuch a day, Holtham v.
and the obligor died before the day, ſo that the bond was Ryland,
faved at law by the act of God; the lord chancellor not-
withſtanding decreed the lands to be fettled; and ſo it has
often been done.
Ca. Abr. 18.
Ca. 8.
Eq.
*The parties to a contract or agreement, may dif-
charge it by any collateral fatisfaction agreed upon. [* 451.]
As if A. be bound to B. to pay him 100l. B. may take
any collateral fatisfaction for it.
7 Mod. 144.
But the act of a third perfon will not vary a contract
or agreement as if A. bind himfelf in a bond, with a Ibid.
condition that a third perfon fhall appear to an action
upon eight days warning, and that if he be condemned,
then A. will anfwer the condemnation. If the third
perſon appear in an action without eight days notice,
and is condemned, that ſhall not forfeit A.'s bond;
for he being a third perſon, cannot do an action to
alter the terms of A.'s agreement. So, if A. be bound
to B. on condition to pay C. 100l. there C. fhall not
receive any collateral fatisfaction to fave the bond; for
he cannot alter the terms of an agreement made between
ftrangers.
So, if A. affume that, if B. who has taken out ad-
miniftration to C. will, at the inftance of D. relinquish Leate'scafe, W;
the adminiſtration, and confent that A. ſhall have it; Jones 441.
that he will fave D. harmleſs of a bond in which he
Q 2
is
OF DISANNULLING, &c.
[*452] is * indebted to C. and B. relinquifh the adminiſtration,
but not at the inftance of D. this will not entitle D. to
recover upon this affumpfit.
END OF THE FIRST VOLUME.
ESS A Y
UPON THE
LAM OF CONTRACTS
AND
AGREEMENTS.
BY JOHN JOSEPH POWELL, Esq.
OF THE MIDDLE TEMPLE, BARRISTER AT LAW.
Ifta veritas, etiamfi jucunda non eft, mihi tamen grata eft.
IN TWO VOLUMES.
VOL.
II.
}
DUBLIN:
PRINTED FOR P. BYRNE, J. MOORE, J. RICE, AND
W. JONES.
1796.
CIC.
Df the Remedy to enforce Agreements
in Law and Equity.
CON
ONTRACTS, being the fubject of both legal
and equitable proceedings, and made for the be-
nefit of certain perfons, pre-fuppofing alſo property
and price; they, if not gained improperly, nor made
in oppofition to the municipal laws, ought to be by
theſe laws enforced: For what can be more confonant
to good faith between men, than the obfervance of
thofe things which they have, themselves, ftipulated and
made a law between one another. In adjudging on
contracts, therefore, refpect ought first to be had to
carry into execution the fpecific thing agreed for, if
that can poffibly be obtained; and if the ſpecific thing
contracted for cannot be obtained, then a fufficient
equivalent.
7 Mod. 143.
But the common law of England is very defective in [* 2. ]
this refpect, where an actual performance of that
which is contracted about is obtained, which, from a
variety of circumftances, is frequently impracticable:
For executory agreements, in the eye of the common
law, were, and are ftill, looked upon but as a perfonal
fecurity; and as entitling the perfon injured by the
breach thereof to damages only, which may be pro-
cured by an action of covenant if there be a deed, or
by an affumpfit if there be no deed.
Thus if a man covenant to fettle his lands upon his
marriage, or to convey them for a valuable confidera-
tion; the covenantee, at common law, can only recover
damages for the breach of fuch covenant, and has no
remedy there to enforce the fettlement of the thing it-
ſelf.
This defect in the common law, may, perhaps, be
imputed to the genius and notions of the antient Sax-
ons, who carried the love of liberty to the utmoſt ex-
cefs, and deemed any encroachment upon it infup-
portable. It was natural for men of fuch fenti-
ments, who confidered the being compelled to do
any act at the precife time, or in the precife
manner appointed or required, as beneath the
condition
A 2
REMEDY TO ENFORCE AGREEMENTS
[* 3. ]
[*4.] ·
10 H. 6. 13.
343.
* condition of a freeman (which ſturdy difpofition of
our anceſtors, gave rife to the practice of effoins) to
hold the being obliged to deliver a thing promiſed, but
which, according to their own principles, ftill belong-
ed to them, the property not being changed by the
promife, as an infringement on liberty: They, there-
fore, thought it fufficient, in cafes of this fort, where
the buyer was fruſtrated of a thing on which he de-
pended, to allow him an adequate compenfation.
But the end of all contracts being the actual accom-
pliſhment of the thing ftipulated, this meafure of da-
mages by no means anſwered the object propofed, and
was an imperfect remedy. Upon this ground a court
of equity interfered, and dealt with the corrupt confci-
ence of the party, when he refuſed to perform what
he had ftipulated: and to make the remedy adequate
to the miſchief, that court directed that to be done
which a man in honefty and conſcience ought of himſelf
to have done: Namely, the eſtate itſelf to be ſettled; or
it decreed a delivery of the thing itſelf; or a perform-
ance of what was ftipulated according to the contract.
* However, there are ſome cafes where the common
law enforces a fpecific execution of an agreement. As
by affumpfit for money had and received, or paid, &c.
which is virtually a bill in Chancery for a ſpecific exe-
cution. So in cafes of covenants real to convey or
Fitz.Nat.Brev. difpofe of lands, for which the remedy is, by a fpecial
writ of covenant for a ſpecific performance of the con-
tract concerning certain lands particularly deſcribed in
the writ. This is the writ upon which fines were le-
vied at common law. It is faid it was alfo ufed by
termors, who were oufted to recover their terms by
Fitz Nat. Brev. virtue of their leafes, which are real covenants.
505, 506.
Fitz. Abr. tit.
Subpoena, Pl.7.
But,
fince the court of Chancery have obliged wrongdoers
by oufter to a ſpecific reftitution, courts of law have.
given an habere facias poffeffionem (founded upon the re-
covery in ejectment, which formerly was a remedy to
recover damages only) to recover the term in fpecie.
The earlieſt traces I find of the equitable jurifdic-
tion in decreeing agreements, is in a cafe ftated in the
year-book of E. 4. 4 b. where it is faid by Genny
that if I promiſe to build you a houſe, and do not
perform
IN LAW AND EQUITY.
perform my * promife, you have your fubpoena,' [* 5. ]
which lies for non-performance of a promife; for a
promiſe there amounts to a covenant.
And Fineux, 21 H. 7. 41.
Chief Juſtice, in the 21 Hen. 7. fpeaking upon the dif- Bro. tit. Ac.
ferent remedies given in the court for non-perform. Ca. 72.
ance of contracts, obferves, "that if a man bargain
with another that he hall have his land for 10/. and
that he will make him an eſtate therein by fuch a day,
and he do not make the eftate, an action upon the
caſe lies, but it is to be obſerved, in that he ſhall only
recover damages; but, by fubpoena, the chancellor
may compel him to execute the eftate, or impriſon
him. So that the jurifdiction of the court of Chancery
in theſe caſes, is clearly deducible from about this pe-
riod.
*
[ *
6.]
However, notwithſtanding theſe early inftances of
an acknowledgment of this branch of the equitable ju-
riſdiction appear in our books, yet the authority of that
court, in decreeing a fpecific performance of promiſes,
on breach of which a remedy might have been had in
damages at common law, was much queftioned fo late
as the 14th of James the Firft; for, in the cafe of Bro- Bromage v.
mage and Jenning, wherein the former fued in the Jenning, Roll.
marches of Wales against the latter, for not making
Rep. 354. 368.
a leaſe according to his bargain, a prohibition was pray-
ed in the King's Bench; becauſe an action upon the
cafe lay at common law. And it was faid by Coke, Do-
deridge, and Haughton, that, without doubt, a court of
equity ought not to enforce the making the leafè; for,
if it might, to what purpoſe was the action on the cafe,
or of covenant? And Coke faid, that this would fub-
vert the intent of the covenanter, who meant to have
an election either to pay damages, or make a leafe;
whereas this was to compel him to make a leaſe againſt
his will: And a prohibition was granted.
However, the law feems to have been fettled in fa-
vor of the jurifdiction of courts of equity to decree the
fpecific performance of agreements foon afterwards:
For, in Molineux's cafe, which arofe in the fecond of
Charles the Second, fuch fuits were faid to be common
in courts of equity.
In that cafe, A. promiſed, in confideration of, &c. Molineux's
to make affurance of certain lands to nn. which affu- ca è, Latch.
rance A. afterwards refufed to make, whereupon nn.
172. See Noy
88.
fued him in the court of Requefts to have a specific
performance
"
1
REMEDY TO ENFORCE AGREEMENTS
1
[*7.] performance of the promife. One caufe alledged, on
motion for a prohibition, was, that an action upon the
cafe lay at common law: But it was anſwered, that,
though no fuit lay at common law to acquire the thing
itſelf, yet that fuch fuit was common in a court of
equity. But Jones faid, that fuch fuit could not be in-
ftituted in a court of Requefts, although it might be
inftituted in Chancery. However, the court refufed
to grant a prohibition, becauſe the plaintiff could not
fue at common law to affure white acre, but only to
recover damages.
Penn v. Lord
Baltimore,
■ Vez. 447.
Ibid,
And, on the abolition of the court of Requefts, by
the ftatute 16 Car. 1. c. 10. the jurifdiction in theſe
cafes was left in the poffeffion of the courts of equity,
who, alone, can now decree a fpecific execution of
agreements.
The law was fo laid down by Lord Hardwicke, in
the cafe of Penn and Lord Baltimore; which was a
bill founded upon articles, executed under feal in Eng-
land, for mutual confiderations refpecting lands in
America.
In delivering judgment in the laſt-mentioned caſe,
[*8.] Lord Hardwicke faid, that there were ſeveral cafes
wherein collaterally, and by reafon of the contract of
the parties, matters, originally out of the jurifdiction
of the court of Chancery, might be brought within it.
Suppoſe there was an order of the king and council in
a caufe wherein the king and council had original ju
rifdiction, and the parties entered into an agreement
under hand and feal for performance thereof. A bill
muſt be brought in the court of Chancery for a ſpecial
performance. The reafon was, becaufe none but a
court of equity could decree that. The king in coun-
cil was the proper judge of the original right, and
whether the agreement was fairly entered into and
fign. d. The king in council might look on that, and
allow it as evidence of the original right, but if that
agreement was diſputed, it was impoffible for the king
in council to decree it as an agreement. That court
could not decree in perfonam in England, unleſs in cer-
tain criminal matters, being reftrained therefrom by the
ſtatute 16 Car. 1. cap. 10.
This equitable interpofition extends to all cafes,
where either the fubject agreed about, or the perfon
contracting, are within the jurifdiction of the court;
which
IN LAW AND EQUITY.
{
which acts in perfonam, * as well as in rem, whenever [* 9.]
the confcience of the party is bound. Indeed, the
primary decree in the court of Chancery, as a court
of equity, was in perfonam, and it was not fettled, un-
til long after its firft inftitution, that the court could
iffue proceſs to put parties into poffeffion in a fuit of
lands. That practice was firft begun and fettled in
the time of James the Firft, and has ever fince been
done by injun&tion or writ to the fheriff. Therefore,
though a court of equity cannot inforce its decree as
to the poffeffion of lands in Ireland, or the Plantations,
yet, if the perfons be within its jurifdiction, it may
properly decree a contract or an agreement to be
Specifically carried into execution, if there be a foun-
dation for it.
2 Vern. 494.,
Thus the court of Chancery, in the time when Lord Richardſon v.
Hamilton,
King prefided there, made a decree on a fuit for lands 1 Vez. 454. Et
and a houfe in Philadelphia, although it could not be vide Toller v.
inforced in rem. So Lord Hardwicke, in Lord Angle- Carteret,
fey's cafe, made a decree for diftinguiſhing and fettling
the parts of an eftate in Ireland, although it was im-
poffible for the court to inforce that decree in rem; be-
cauſe the court could inforce it by process of contempt.
in* perfonam and fequeftration; which is the proper [* 10. ]
].'
proceſs of the court. And upon the fame principle Penn v. Loid
Lord Hardwicke, in Lord Baltimore's cafe, decreed a Baltimore,
ſpecific performance of articles executed in England,
concerning the boundaries of the provinces of Penfyl-
vania and Maryland in America.
Vez. 444.
And a court of equity collaterally, and in confequence Vide 1 Vez.
of an agreement, judges concerning matters not origi- 447, 448.
nally within its jurifdiction. Ex gratia,, it will retain
and decree upon a fuit for ſpecific execution of articles
of agreement to perform a fentence in the ecclefiaftical
court, juſt as a court of law will maintain an action for
breach of covenant thereupon.
And a court of Equity will decree any contract that Gilb Hift.
ought, in foro confcientia, to be carried fpecifically into Chan. 236,237.
execution. Therefore, if a man be divorced from his
wife for adultery, and marry another, and enter into
an agreement upon fuch marriage, a court of equity
will decree a fpecific performance of fuch an agree
ment; becauſe it is a marriage according to Chriftian
law; and agreements that are made upon fuch marri-
ages
!
REMEDY TO ENFORCE AGREEMENTS
..
Ri
* II.] ages ought to * be eſtabliſhed in foro confcientiæ: For,
though fuch marriage be a nullity by the common law,
upon political reaſons, left marriages fhould be dif-
folved by frequent adulteries; yet, fince they are not
against the law of God, fuch agreements upon fuch
marriages are not contrary to natural juftice nor mala
in fe, and ought therefore to be eſtabliſhed in a court.
of conſcience. Efpecially as there is a meritorious
caufe in the agreement, fince the woman gives up her
perfon to the man, and likewife her fortune.
Eq. 152.
Augier v. Au- Again; if quarrels happen between huſband and
gier, Pre.Chan. wife, and the wife libel in court chriftian for a fepa-
96. Gilb. Rep. rate alimony, and, to quiet this fuit, the huſband en-
ter into an agreement with a third perfon to pay the
wife fo much a year, by way of a ſeparate mainte-
nance; though a court of equity will not decree ali-
mony, becauſe it belongs to the jurifdiction of the ec-
clefiaftical court to enquire into family fecrets, yet it
will decree a ſpecific execution of this agreement of
the husband: Becauſe he ought in confcience to per-
form it, and no other court has a proper juriſdiction
to decree fuch agreement.
T * 12.]
Taylor v.
Wheeler,
Et vide 2 Vez.
$33.
* And copyhold eftates are liable to agreements and
trufts, in the fame manner as freeholds are; and, there-
fore, notwithſtanding it has been urged that, if con-
2 Vern, 564. tracts for copyholds were decreed, the lords would be
defrauded of their fines, courts of equity have fre-
quently determined, that, if a copyholder enters into
an agreement for a fale of his lands, and dies before
furrender, or makes a furrender, and dies before pre-
fentment (which makes the ſurrender void) the contract
fhould, for a valuable confideration, be carried into
fpecific performance againft the heir, or voluntary
claimant ftanding in the place of the copyholder. It was
fo done in the cafe of Taylor and Wheeler, which un-
derwent great confideration. There W. being feifed
of a copyhold eftate, having borrowed money on mort-
gage, furrendered the eftate into the hands of two
cuftomary tenants. Several years paffed, but no care
was taken to get the furrender prefented; and, in the
mean time, the mortgagor became a bankrupt, and
died inteftate and infolvent. And, on a bill brought
against the affignees and the heir to be relieved, and
to fupply the defect of the furrender, it not being pre-
fented in time; the court decreed that the ſurrender
fhould
IN LAW AND EQUITY.
* ſhould be fupplied, confidering the mortgagee as in [13. ]
the nature of a purchaſer by a defective conveyance,
which a court of equity will ſupply as againſt the ven-
dor, and all claiming under him.
+
Of
* Df the equitable Jurifdi&ion in decree- (*14.]
ing executory Contrats and Agree-
ments.
T
HIS part of the jurifdiction of a court of
equity is diſcretionary, not only in cafes where
there is an election of two remedies, viz. by applying
to a court of equity for a ſpecific performance, or by
action at law, as in the common cafes of covenants;
but alſo in cafes where there is no remedy on the agree-
ment at law, ſo that unleſs a court of equity will carry
it into execution, it cannot be enforced at all. Of this
nature are caſes where the whole agreement ariſes un-
der the acts of the court itſelf, from orders amount-
ing to decrees; as a judicial fale of an eftate, or a
purchaſe before the mafter: And, therefore, whether
there be other remedy or not, ftill courts of equity
refuſe to interfere, if there be ſtrong and material ob-
jections to the carrying fuch contract into execution;
whether theſe objections be ſuch as they were not aware
1
of
EQUITABLE JURISDICTION IN DECREEING
[* 15. ] of at the time of fuch order made, or arifing from
fubfequent events and alteration of rights thereby.
Attorney Ge-
fupra.
Upon theſe grounds it was that the court, in the
neral v. Day, cafe of the Attorney General and Day, refuſed to de-
cree a ſpecific execution of an agreement founded up-
on an order made on a mafter's report, and a decree
thereupon for the judicial fale of an eftate to the truf-
tees of a charity; namely, Firft, That to decree a
purchaſe of the lands conveyed to the charity to be
made with the money devifed to it, would be contrary
to the true intent and principle of the mortmain act, and
9 Geo. 2. c. 16. make a great opening to evade it: For, by that means,
a perfon knowing that if he died within a year after
the conveyance, the ftatute would make it void, might
give the exact value thereof in money the fame way,
and, then, the one to be laid out in purchaſe of the
other; which matter, had it been fully entered into at
the making of that order, as it was at the time of the
then application, would have prevented its being made;
but it paffed fub filentio then, the parties agreeing, and
the objections not having been laid before the court.
Secondly, Becauſe it could not, from fubfequent events,
[* 16.] be executed entirely; for, on the death of W. his
part was gone over to his iſſue in tail, an infant, againſt
whom the court could not decree then, nor could they
if he had been of full age; becauſe the court had no
juriſdiction to enforce fuch an agreement against the
iffue in tail, although it might have enforced it againſt
the tenant in tail. And then, although a private per-
fon might have elected to have had it executed in part,
yet, in this cafe, it fhould not be executed at all, the
court being to judge for the charity; and it not being
for their benefit to purchaſe the undivided moiety of
an eſtate, ſuch a tenure being inconvenient and entan-
gled.
It has been obſerved, that, unleſs in particular in-
Vide fupra. Et
Sel. Ca. Chan. ftances which furniſh exceptions to the general rule,
67, 68.
the court will not decree a*fpecific execution of an
agreement on a bill, whereupon damages would not be
Cannel v. Buc- recovered at law on an action: One inftance of an ex-
kle, I P. Will. ception to this rule, was put by Lord Macclesfield, in
the cafe of Cannel and Buckle, namely, that of a co-
venant of a femne, being an infant, to convey her in-
heritance on marriage to her husband, in confideration
of an adequate fettlement.
243. Supra.
The
EXECUTORY CONTRACTS, &c.
* The true ground of diftinction feems to be this; [
fuch agreements, whereupon an action at law cannot
be maintained by reafon merely of a formal defect of
the inftrument, will be carried into execution in Chan-
cery. But that court will rarely enforce fuch agree-
ments, whereupon an action cannot be maintained, by
reaſon of events not happening as provided for by the
parties, the abſence of which render the agreement in-
effectual at law; becauſe the fame conftruction muſt
be made on an agreement in equity as at law.
**
17.
The before-mentioned cafe of Cannel and Buckle fur- Supra.
niſhes an inſtance of the former kind, and that of Whit- Whitnel v.
nel and Farrel is an inftance of the latter kind. There Farrel, 1 Vez.
A. having, at the time of his marriage, an eftate of
300l. per annum in poffeffion, and a leafehold eſtate,
out of both of which he could make a provifion for a
wife; and having alſo an eſtate tail in other heredita-
ments after the jointure of his mother determined, fet-
tled 500l. part of his wife's portion, in truft for her
and the iffue of the marriage; and alfo fettled the leaſe-
hold for the benefit of the wife for life in bar of dower,
not carrying this over to the iffue; he then took up
the confideration of an additional * portion of the wife
paid by her father, and covenanted that, within fix
months after the death of his mother, and his coming
to be in poffeffion of the eſtate ſo in jointure, he, his
heirs, and affigns, fhould fettle fo much thereof as
amounted to 100l. per annum, for every 1000l. fhe might
in future have, upon her for life, then to the iffue of
the marriage, and for want of fuch iffue, to his heirs; ;
A. died in his mother's life-time leaving no iffue, and
the eſtate came to his fifter: And upon a bill preferred
againſt her, after the death of the mother, to compel
her to execute this covenant in fpecie, Lord Hard-
wicke was of opinion, that the widow was not entitled
to fuch decree; becaufe no action could have been
brought upon this covenant at law, there being two
contingencies upon which the obligation to perform it
was to arife; namely, the mother's death, and his be-
ing in poffeffion, and one of thein only had happened;
for, though the mother was dead, the fon never came
into poffefion. Now, his lordship faid, that in an ac-
tion of covenant againſt the heir at law or executor, it
muft have been alledged, in order to affign a breach,
that he came into poffeffion after the mother's death;
[ * 18. ]
and,
EQUITABLE JURISDICTION IN DECREEING
[* 19.] and, as that could not be done, no action could be
maintained. * Then there were few cafes in which a
court of equity would decree a performance of a cove-
nant or agreement upon which, according to the words
of the articles, and the events that had happened, there
could be no action at law; for, when the inftrument
was regularly drawn, the court of Chancery could not
put a conftruction upon fuch an agreement different
from what a court of law would; and his lordship (tho'
he obſerved that the cafe was not clear of doubt) dif-
mifled the bill, ſo far as it fought a ſpecific performance.
Hinton et
Ca. 302.
1 Vez 87.
Et
He that exhibits a bill for a ípecific performance of
a contract or agreement, muft, in order to entitle him-
felf to the aid of the court, fhew that he has perform-
ed all that was contracted to be done on his part, or
that he is ready fo to do; becauſe it is a rule of equity,
in contracts and agreements, that they must be decreed
to be performed on both fides, and entirely, or not at all.
And, therefore, if it has by fubfequent events become.
impoffible for a plaintiff to perform his part of the
agreement at the time of exhibiting his bill, he cannot
be entitled to a ſpecific performance of that contract,
which he is, himſelf incapable to execute fpecifically.
[* 20. ]
* Therefore where A. agreed to pay B. 200l. within
Powell v. Fil- two years, on condition that B. married his daughter,
lett, Gilb. Eq. and fettled 600l. upon her for a jointure, to be laid out
Rep. 188. Et in land; and the m age was had, and there was if-
vide Butcher v. fue a daughter, but both the mother and daughter died
Short, 1 Chan, before the two years expired: It was contended, on a
bill preferred againſt A. for a ſpecific execution, that
A. ought to perform this contract; for that B. had mar-
ried his daughter, and had been looking out for a pur-
chafe, and it was the act of God only that had pre-
vented his executing his part of the contract. But the
court faid, that it was in B.'s power to have entitled
himſelf to the 200% when he had pleafed by laying
out the 600l. which, not having done, he had not en-
titled himself to a performance in fpecie by the other
party; therefore the bill was difmiffed with cofts.
Et vide S. L..
Skin. 287.
Lord Fever-
So, where Lord Feverfham, by his marriage agree-
fham v. Wat ment, contracted to fettle 2000l. a year on his wife in
for, Finch 445, this manner, viz. by fettling the manor of H. &c.
worth about 1100l. per annum, on his wife, and the
heirs of their bodies, and felling fome penfions, and
buying fuch other eftates with the money received by
2 Freem. 35.
Skin. 287.
the
EXECUTORY CONTRACTS, &c.
the * fale, as would make up the jointure 2000l. per [* 21.]
annum as agreed upon; in confideration whereof the
wife's father agreed to fettle 30col. per annum on his
lordſhip for life, remainder, &c. Lord Feversham fet-
tled the manor, &c. but, before he had fold the pen-
fions, or made the further provifion, his lady died with-
out iffue. Then his lordſhip preferred his bill to have
the 3000l. fettled on him during his life; but the court
refuſed fo to decree: Becaufe Lord Feverfham had not
performed the whole of his agreement, and the other
part was then become impoffible; and, as it admitted
of no compenfation, he had no title in equity to have
performance of his father-in-law's part of the agree-
ment, fince he could not perform his own part of it.
Luxton v. Ro-
In this reſpect the practice of courts of equity agrees Vide Shel-
with that of courts of law; for the latter require, that bourne
where an action of affumpfit is brought upon, or an 8 Mod. 292.
v. Stapleton,
action upon a covenant in, an agreement, wherein the S. C. 3 Brown-
ſecond thing to be done, and for not doing of which Par. Ca. 89.
the action is brought, is in confideration of fomething to binton, Dougl.
be done first; the perfon bringing the action fhould 620. But note
fhew, if the thing be done by him be fuch as he can
perform without the interference of the other con-
tracting party, that he has done the first thing; or, if
it be of fuch a nature that it cannot be done without venants, and
the concurrence of the other contracting party, that he not a ftipulati-
is ready, and has a right, at the time of bringing the
action, to do it.
the diſtinction
{
*
22. 1
where there
are mutual co-
on to do one
thing in confi-
deration of
another done;
for if there be,
action without
But, in theſe cafes, a diftinction is made in equity
(the office of which is to relieve againſt difficulties ari- then each of
fing from unavoidable accidents where that party, who the parties may
has performed part of his agreement, and is in no de- maintain his
fault for not performing the refidue, is in ftatu quo; alledging the
that is, is not under any difadvantage from what he performance
has done (as was the cafe of a Lord Feversham before- on his part, be-
mentioned, who, by the death of his wife without iſ-
fue, was in feifin of his eſtate in the fame predicament one thing, and
as before the marriage) and where he is not in ftatu another to do
quo; for, in the latter cafe, he fhall have a specific each of them
another thing,
execution of the agreement from the other party.
cauſe if one
covenants to do
may have his
Supra.
b Thus, where a veffel was let to freight to the Eaft mutual action.
India Company by charter-party, to go from port to ↳ Edwin, et al,
port, and to any port within the limits of their char- v. Eaft india
ter, but was to be difpatched for England on or before company,
the 24th of January 1684, or fo foon after as to
fave
2 Ver. 21.
1
}
EQUITABLE JURISDICTION IN DECREEING
[* 23.] * fave her monfoon for England; or, in default there-
of, the owners were to pay four months demurrage at
71. 10s. a day, for her monfoon fo loft, and her ftay
in India after the 24th of January 1684; with this fur-
ther claufe, that the company might detain the fhip in
their employment for any longer time, not exceeding
twelve months, after the rate of 71. 10s. 6d. a day de-
murrage, until difpatched from the laft lading port, or
expiration of the twelve months, which fhould firft
happen; but, after that time, the fhip was to return
to England, and the company not to be fubject to any
farther demurrage, or any damage that might accrue
by her detenfion: And the company covenanted there-
in, on the fhip's arrival in England again, to pay freight
for three hundred and one ton, and demurrage from
the 20th of January 1684, until the fhip fhould be dif-
patched, for the ſpace of twelve months after that day.
And it was thereby provided, that, until fix days after
the ſhip ſhould have returned to the port of London, and
made a right and full diſcharge of all her lading, the com-
pany was not to pay, nor to be liable to pay any of the
fums of money agreed on for freight or demurrage, or
for detaining the fhip in India; it being the intent of
*the parties, that, if the fhip fhould be loft either in
her outward or homeward bound voyage, nothing ſhould
be paid by the company for freight or demurrage. The
fhip was employed in the company's fervice, fo that
the arrived not at Surat until 1685, which was a year
beyond the time ftipulated for the company's ufing her.
She was from thence ordered to Bombay, where the
fhip, having been fo long detained in thofe feas, was
furveyed, and found not fufficient for a voyage to Eng-
land; and in confequence thereof the feamen were dif
charged, and the fhip left there. The company re-
fufed to pay any thing for freight or demurrage, be-
caufe, by the exprefs provifion of the charter-party,
they were not to pay until fix days after the fhip's ar-
rival in England, and being diſcharged of her lading;
and they ſaid, that if they were to pay any thing, yet,
they were to be charged with demurrage, until March
the 23d, 1685 only, and no longer, according to the
provifion in the charter-party: They likewife refuſed
to account for the value of the fhip, or to fhew how
In Hotham v. they had difpofed of her. But on a bill filed for relief,
Eaft india com- it was faid, per curiam, that though the charter-party
[ 24. ]
was
3
EXECUTORY CONTRACTS, &c.
do
277.
:
was fo penned that nothing could be recovered at * law, [* 25. ]
yet the owners had a juft demand, and ought to be re- pany, vid.
lieved in equity. And it was decreed accordingly, that the Dougl. Rep.
company fhould account for what they had made of the Lord Mansfield
fhip; that they should pay demurrage according to the faid in con-
rate mentioned in the charter-party; and that they ments, I know
ftruing agree-
fhould alſo be charged in reſpect of freight, according
to the quantities of the refpective commodities which between a
were ufually brought home on fuch a voyage by fuch a and a court of
fhip, and their proportions to each other.
-
no difference
court of law
equity; a court
not make an
the duty of a
court of law.
And in the laft mentioned cafe the court cited the of equity cane.
cafe of Weftland and Robinfon, where, as in moft cafes, agreement for
there was to be no freight paid for the outward bound the parties, it
cargo, but only a certain rate per ton for the home- can only ex-
ward bound cargo, and, when the fhip arrived beyond their true
plain what
fea, the factor had no goods at all to load it with, fo meaning was,
that the fhip was forced to come home in ballaft; and and that is alfo
yet the court of Chancery decreed the payment of
freight. And fo it was faid it had been done in a like And upon that
cafe, of a fhip that was hired at Newcastle for a voyage ground the
to the Duke of Courland's country, where freight was decided, that
only to be paid for the homeward bound cargo; and, circumftances
when the fhip came there, the goods had been feized fimilar in fome
and attached, by reaſon of which he was forced to
degree to thoſe
come home empty: Yet, in that cafe, the freight was in the principal
[ 26.]
decreed.
court has
*
cafe here cited,
would excufe
the owners in
h And, upon the fame principle, if a man has con-
tracted for a portion with his wife, and has agreed to an action on
fettle upon the wife and her iffue fpecific lands of fuch the charter-
a value free from incumbrances, and has fold part of party, from
his land to difincumber and fettle the reft, he fhall, if hewing a strict
ment; upon
the wife die without iffue before the fettlement be actu- of their part of
performance
ally made, have the portion notwithstanding; becauſe the agree-
he, having fold part of his lands, cannot be put in STATU the ground
QUO; and there was no default in him, fince he was that, upon the
going on to difincumber and fettle the reft: Therefore fair conftruc-
the death of his wife will not, in equity alter his right charter-party,
to his wife's portion.
tion of the
it had been
h
There is alfo a difference between carrying into ex-performed ac-
ecution agreements on marriage, and other agreements; true meaning
cording to the
for, though all other agreements are confidered as in- of the parties.
tire, and if either of the parties fail in performance of Meredith v.
the agreement in part, it cannot be decreed againſt Wynne. Gilb.
the other in fpecie, but must be left to an action at Eq. Rep. 70.
law; in marriage agreements it is otherwife: Becauſe, Eq. Ca. Abs.
although jo.
Pre.Chan. 312.
1
EQUITABLE JURISDICTION IN DECREEING
1
[27.] although either the relations of the hufband or wife
fhould fail in the performance of their part, the.
children, nevertheless, may compel a performance by
the other party. As if the wife's father, for inſtance,
had agreed to give a portion, and the huſband's father
had agreed to make a fettlement, here, although the
wife's father fhould not give the portion, yet, the
children may compel a fettlement; becauſe, non-per-
formance on one part, fhall be no impediment to the
children's receiving the full benefit of the fettlement.
So, if there be a failure on the part of the father's re-
lations, the confequence will be the fame; all the court
can do in ſuch caſes is, to lay hold of ſuch eſtate as the
huſband may claim towards making good his proportion
of the ſettlement. The reafon of this diftinction be-
tween marriage agreements and others is, that the
children, confidered as purchafers, are intitled to all
the benefit of the ufes under the fettlement, notwith-
ſtanding there has been a failure on one fide.
Supra. 20.
Upon this principle it was admitted in Lord Fever-
fham's cafe, that, if there had been iffue of the marri-
age, they would have been entitled to have been re-
lieved against the accident of the mother's death, by
which their father was rendered unable to perform part
[* 28. ] of * what he had contracted for, and to have had the
3000l. a year fettled upon them by their grandfather.
Perkins v.Lady
Thornton,
cited i Vez.
I
377, 378.
The fame principle extends to the cafe of the wife,
under fuch articles, if fie be not a party contracting
for payment of her portion.
Therefore where A. in confideration of 1000l. was,
by articles, to which the intended wife was not a party,
to fettle a jointure on his wife; and the marriage was
had, but the portion was not paid: On a bill by her
to have the jointure, it was decreed to her; for, ſhe
was not a party, but was only to perform by marrying;
and, therefore, was entitled to her jointure, on the
faith of which provifion being made her, fhe had mar-
ried.
But this exception extends only to cafes, where ſuch
contracting party is not to receive any benefit from the
other fide, or to take any advantage to themſelves:
Thus, if the wife, in the preceding cafe, had contract-
ed to pay the portion, the court would not have decreed
her to have had the fettlement if ſhe had not paid the
portion;
EXECUTORY CONTRACTS, &c.
portion; unleſs it could have been put in fuch a [*
fhape as that the huſband could have had the benefit
of the articles; for, then, the court would certainly
have decreed it.
29. ]
Thus where, previous to the marriage of A. ar- Pyke v. Pyke,
ticles were entered into, by which he agreed to fettle 1 Vez. 376.
an eſtate in Ireland firft, on his intended wife (who
was then under age) for a jointure, and then, fubject
to a provifion for younger children, on the first and
other fons in tail; and that the wife's fortune ſhould
remain in the hands of truſtees, until the conveyances
or fettlement thereby intended fhould be executed.
And it was alſo agreed, that it was the intent that, to
enable A. to execute the fame conveyances and ſet-
tlement, the wife's portion fhould be applied to the
difcharge of the incumbrances affecting the eftate, and
the overplus be paid to A. his executors and admini-
ftrators. The marriage was had, but no fettlement
was made.
The huſband afterwards went abroad,
and there died. Then the wife preferred her bill
againſt the executors of her father and her children,
for the payment of the refidue of her father's perfonal
eftate, as the right thereto ſurvived to her, upon her
huſband's death. No eftate in Ireland appeared, [* 30. ]
and it was admitted on all fides that no fettlement
could now be made; but the defendants, the children
of the marriage, infifted, that they were purchafers
under theſe articles, as an agreement by the mother
for the difpofal of her eftate, which was binding;
fuggefting, that they were equally entitled with the
mother to have the benefit of it, although no fettle-
ment had been made; and that the court ſhould decree
an equivalent to them, or that an equitable apportion-
ment ſhould be found out, this being a lofing bargain,
and both parties purchaſers. But Lord Hardwicke was
of opinion, that the children, under thefe circumftan-
ces, were not entitled; and that no court of juſtice
could take this portion out of the hands of the mother
or her truſtees, who were the reprefentatives of her
father, unless he had that part of the fettlement,
agreed for her benefit, made good to her; for, the
lofs aroſe from the fraud and miſbehaviour of the father
of the children. The mother had as good an equity
as themſelves, and had the law on her fide, having a
right to fue in the ecclefiaftical court, which was the
law of the land in this cafe; then they were all pur-
VOL. II.
chafers
B
1
:
EQUITABLE JURISDICTION IN DECREEING
chafers in equal degree, and the children had not a
(*31.] right to come against the mother, to make good the
failure on the part of the father. The agreement was
only that the wife's fortune fhould remain in truſtees,
till a fettlement fhould be made in purfuance of it,
which fettlement was to be of the huſband's eftate, and
her portion was to pay off the incumbrances thereon;
but no fuch eſtate had appeared. Then, if no fuch
eftate could be found, there could be no fpecific. per-
formance.
Dr. Bettcf-
and Chapter of
339.
[* 32. ]
And, where the one party to an agreement has per-
formed all that is requifite on his fide, and, before the
time at which the other fide is to perform his part of
the agreement, the legislature interfere, and render a
performance on his fide as to part illegal; a court of
equity ought, notwithſtanding the beforementioned rule,
to decree the other part to be performed in fpecie.
This queſtion occurred in the cafe of Dr. Bettefworth,
worth v. Dean and the Dean and Chapter of St. Paul's, and was de-
St. Paul's, Sel. cided in the houfe of Lords in favour of a part-perfor→
Ca. Ch. 66, 3. mance, on an appeal from a decree of the court of
Bro. Ca. Par. Chancery. The point arofe on a leafe made by the
dean and chapter of St. Paul's, to the mafter and
* fellows of Trinity college in Cambridge (in truſt for
Doctors Commons) of the land on which Doctors Commons
is built, for ninety-nine years, to commence after the
expiration of a leafe then in being, under a rent of 5%.
and the doctors giving their advice to the dean and
chapter gratis, and new building the houfes and refi-
dence of the doctors there. And in the leafe there was
a covenant for renewal for ninety-nine years, on fur-
render of the old leafe and payment of 20%. in which
future renewed leafe there was to be the like covenant
of renewal on furrender, toties quoties. The ftatute of
13th and 14th Elizabeth was then paffed, by which
ecclefiaftical bodies were reftrained from making leaſes
in corporations or market towns, for any greater term
than forty years. The leafe being near expiring, a
bill was filed in the court of Chancery, on behalf of
Doctors Commons, to oblige the mafters and fellows of
Trinity Hall in Cambridge, to furrender up the leafe
to the dean and chapter of St. Paul's and to procure a
leafe from them for forty years in truft, with the fame
covenants as in the former leafe. And it was contended
againſt the renewal, that this was an entire covenant,
and
EXECUTORY CONTRACTS, &c.
and could not be apportioned, and then, the act of
* parliament intervening was a releaſe of it. And fo [* 33.1
it was held to be by Mr. Juftice Price and Lord Chief
Juftice Raymond, against the opinion of the mafter of
the Rolls, and thereupon the bill difmiffed. But this
decree of difmiffal was reverſed, on appeal to the houſe
of Lords, upon the opinion of the judges feriatim;
and the dean and chapter ordered and adjudged to make
a leafe for forty years under the ancient rent, with a
covenant and conditions as in the old leafe contained,
except the covenant for renewal.
ނ
So, if the entire performance of an agreement for
a purchaſe be prevented by accident, or the act of
God, yet, if the vendee is fatisfied with à part perfor-
mance, the better opinion feems to be, that the court
would decree it. And, therefore, although, if one
enter into an agreement for a purchaſe of lands of
tenants in common in tail, and one of them die, and
then the other inftitute a fuit for an execution as to a
moiety, the court would not execute it against the pur-
chafer; becauſe what is required is different from
what was contracted for, and the purchaſer's meaning
might be to have the entire eftate; and the court pre-
tends to decree in fpecie only, which the decreeing
* half would not be. Yet, if the purchafer, on the
death of one of the tenants in common, who has con-
tracted for a fale of the eftate, fhould bring a bill
againſt the furvivor, defiring to take a moiety of the
eftate only; the intereft in the money being divided
by the intereft in the eftate, he might have a ſpecific
performance as to a moiety decreed him from the fur-
vivor, although the contract could not be executed
against the iffue of the other.
[ * 34.]
The court of Chancery will not compel a purchafer Vide Marlow
under a decree, or by agreement, to complete the pur- v. Smith, 2. P.
Will. 199.
chaſe, if there be any ſubſtantial doubts as to the good-
nefs of the title of the vendor. And, therefore, where
there were the opinions of learned men againſt a title
to an eſtate, fold before the mafter under a decree of the
court of Chancery; the mafter of the Rolls would not
compel the purchaſer to accept the purchaſe.
But this court will not ſuffer a party to defend him-
felf againſt executing his agreement in fpecie, upon
pretence of ſome formal matter being requifite to com-
pleat the title, where that circumftance is fupplied by
other matter that makes it equally fecure,
B 2
Therefore,
EQUITABLE JURISDICTION IN DECREEING
fon, 3. P. Will.
1.90.
[ * 35:] *Therefore, where one, being in debt, and enti-
Colfon v. Wil- tled to the equity of redemption of an eſtate mortgaged
nearly to the value, devifed it to his youngest brother,
and to his brother-in-law, and their heirs, in truft to
fell, and pay debts and legacies, and to pay the re-
mainder of the purchaſe money, if any, to the tefta-
tor's eldeſt brother, who was beyond fea in the ſervice
of the India company, and died; and the trustees en-
tered into an agreement for the fale, and then the
creditors filed their bill against the vendee, under the
agreement to compleat his purchafe, &c: The ven-
dee, admitting the agreement, and that the will had
been proved in the court of Chancery, objected, that
the heir, who was beyond fea, though made a defen-
dant, had not appeared or anſwered the bill, and faid,
that though he was at firft willing to purchaſe the
eftate, and had entered on good part thereof, yet,
the other part on which he had not entered being out
of repair, the tenant racked, and the rents likely to
fall, he was now defirous to be difcharged of his pur-
chafe. And it was argued that he ought fo to be, this
being a caſe founded upon a will not proved in equity
againſt the heir, and therefore a defective title; be-
* 36. ] cauſe none of the depofitions of the witneſſes that
had been examined for the will could be read againſt
the heir, and, therefore, he might lie by till they were
dead, when he might conteft it. But the chancellor,
though he admitted that it was proper that a will
difpofing of lands fhould be proved in equity, eſpecially
in cafe of a modern will, yet obferved, that he could
not ſay this was abfolutely neceffary to make out the
title, any more than it would be to prove a deed in
equity, by which an eſtate ſhould be fettled from the
heir at law after the ancestor's death, which would
certainly be no ground to object to a title. The will
prevented and broke the defcent to the heir as much
as a deed, and the hands of the witneffes to a will
might be as well proved in one cafe as in the other.
Befides, his lordship obferved, that the vendee knew
the fact of the heir's being beyond fea at the time he
entered into the agreement, and yet had not required
his joining, or the will's being proved against him;
but had admitted by his anſwer, that the will was duly
executed, and had, by entering on part of the eftate,
executed the purchaſe. His lordship therefore decreed,
1732. fol. 574. that it should be compleated.
Note. This de-
cree was on a
reheating, the
former decree
having dif-
charged the
purchaſer from
his purchaſe,
Reg. lib. A.
·
The
EXECUTORY CONTRACTS, &c.
!
1
* The reporter obferves upon the preceding cafe, [* 37. ]
that it was a great help to the title that the mortgage,
made by the teftator, and prior to the will, was for
the greateſt part of the purchaſe money, and muſt be
kept on foot for the protection of the title.
Vide Lyddai.
v. Weſton, 2
Atk. 19, 29.
And a probable certainty of a good title, is a fuf-
ficient ground for the court to found a decree for ſpe-
cific performance of an agreement for a purchaſe upon;
for it is impoffible, in the nature of things, that there
fhould be a mathematical certainty of a good title.
Therefore, it has been held, not to be an objection to
a title, that it is derived under a grant from the crown,
in which there is a refervation of tin, lead, and all royal
mines within the lands; becauſe, although grants
from the crown have, for the moft part, fuch a gene-
ral refervation, yet, there is no inftance, where the
crown has had only a bare refervation of royal mines
without any right of
any right of entry, that it can grant a licence
to any perfon to come upon another man's eftate and
fearch for fuch mines; nor has the crown any fuch
power, neither is it warranted by the royal preroga-
tive of mines: for it would be very prejudicial if the
crown could enter into the ſubjects lands, or grant [* 38. ]
a licence to work their mines unopened. But, when
they are once opened, the crown can reftrain the
ſubject from working them, and can either work
them itſelf, or grant a licence for others to work
them.
****
Neither are fuggeftions of there being old entails, bið,
or doubts what iffue perfons have left, whether more
or fewer, objections of that force as to overturn a title
to an eſtate.
The principle, upon which courts of equity decree
an agreement or articles to be performed, feeins to
be; that the purchaſer has, by the contract, an equi-
ty to recover the land, and the vendor is thenceforward
a truftee for the purchafer, or whom he fhall appoint,
till a conveyance executed.
In all cafes of covenants, the court of Chancery,
on application to have them decreed in fpecie, confi-
der what was the intention of the parties covenanting;
and, if that was, that the parties fhould rely and
depend upon the fecurity of the covenant only, equity
will not alter the fecurity agreed to be accepted
of or vary the remedy: For that would be going
beyond
і
EQUITABLE JURISDICTION IN DECREEING
[* 39.] beyond, * and, confequently, against the intent of the
parties.
Earl of War-
rington v. Sir
James Lang-
ham. Pre. Ch.
89. Et P.
P.
Will: 107. Et
vide Colmer
v. Colmer,
Mofely 118.
Colles's Par.
Ca. 149*
Collins v.
Plummer,
2 Vern. 635.
118, 121.
Therefore where A. on his daughter's marriage,
covenanted to leave her 1000l. to be paid within fix.
months after his death; and his grandfon, her repre-
fentative, filed a bill, praying that A. the grandfather
might give fecurity for a performance of this agree-
ment: The court refuſed to make fuch a decree, be-
caufe the daughter and her huſband had agreed to ac-
cept of the covenant, and equity would not alter the
contract of the parties.
So where a fettlement was made on the hufband for
life, remainder on his intended wife for life, remainder
S. C. 1 P. Will, on the heirs of the body of the huſband on the body of
104. Et Vide the wife, remainder to his own right heirs, with a co-
Whitworth
venant by the huſband, that he would not dock the
v. Haller,
Mofely 96.
entail, or fuffer a common recovery; and the husband,
Colmer v. Col- having only one daughter married to C. fuffered a re-
mer, et al, ibid. covery, and devifed his eftate to his daughter for life,
remainder to her firft and other fons in tail, remainder
to his own nephews; provided, that if his daughter
furvived her huſband, fhe fhould have the eftate in
[* 40.] fee: The court, on a bill* filed for that purpoſe, re-
fuſed to decree a ſpecific execution; becauſe it was
evident from the covenant, that the parties knew the
husband had power to bar the eftate, and yet agreed to
accept of a covenant, by which they might recover da-
mages, and not the thing in fpecie, and then to have
decreed the latter, would have been going beyond the
agreement,
Bofvil v. Bran-
note the dif
So where A. by articles entered into before marriage,
der, I P. Will. covenanted to fettle on his wife the manor of Dale, or,
461. Sed vide
Bro. Par. Ca. to leave her 1000l. to be paid within three months after
208. Where no his death; the court of Chancery would not, on a bill,
election, et
exhibited by her, compel A. to do the one or the other,
tinction. Et or to give any further or better fecurity for the pay-
vide Blaiker v. ment of the 1000l. Becaufe, by the agreement, he
Mathers, Bro. had his election all his life-time, and the had that fe-
Par. Ca. 540. curity which he at firft agreed to take, and which
general agree the court will not better contrary to the intention of
that agreement.
Where, on a
ment for a
leafe, the houſe
of Lords held
·
The intent of the parties to an agreement may be
the landlord evinced, either from the nature of the covenants com-
bound to grant pared with the fubftance of the agreement, as was
inftanced in the cafe laft put, and alfo in the preceding
one, without
inferting re-
ftrictive claufes
of an unuſual nature,
one
}
}
EXECUTORY CON
CONTRACTS, &c.
one of Collins* and Plummer; or, from the nature of [* 41. ]
the contract on which the covenant or agreement
arifes, confidering who are the parties to it, and the
Bale v. Cole-
man, P. Will.
Griffith v. Buc-
Will. 257.
object of their ftipulating. The moſt apt inftances of Trevor v. Tre-
this fort that occur, are in the cafes of marriage arti- vor, IP. Will.
622. 1 Eq. Ca.
(cles, wherein, although lands are exprefsly covenanted Abr. 387.S. C.
to be conveyed to one for life, with remainder to his 2 Brown Ca.
heirs male of his body, which, on a contract executed, Par. 122.
would give A. an eftate tail; yet, on a bill brought
for the execution of articles, the lands will be directed 145. S. C.
to be ſettled upon A. for life, with remainder in ſtrict 2 Vern. 671.
fettlement upon his first and other fons in tail male, kle, 2 Vern. 13.
&c. Becauſe, from the nature of the contract it is clear, Ofgood v.
that the iffue of the marriage are principally in the con- Strode, 2 P.
fideration of the parties, and that the contract is made Nundicke
with a view to fecure to them the eftates ftipulated v. Wilkes,
about, and of which they are purchaſers in confideration 1 Eq. Ca. Abr.
of the marriage. It is confidered, therefore, that it 593. Pl. 5.
would be a ftrange and vain conftruction of ſuch con-
tracts, if the principal contracting, and who is evidently
the perfon meant to be reftrained thereby, fhould be
intended to have fuch an eftate by them, as would
enable him the very next day after their execution to
defeat, by a fine, the limitations to his iffue, with a
*
[
view to fecure which limitations the contract was entered
into, and a valuable confideration paid for it.
And the iffue, claiming under fuch articles, will be
entitled to an execution in fpecie, purſuant to the con-
ftruction of them as already ſtated, although a fettlement
be made thereon; if the limitations therein do not
purſue that form.
42. ]
The firft cafe decided both upon articles and a fet- Honor v. Ho-
tlement before marriage, was that of Honor and Honor; nor, 2 Vern.
658. P. Will,
which aroſe on articles to ſettle an eftate on the father
123. 2 Eq. C3,
for life, remainder to the heirs of the body of the mo- Abr. Pl. 1.
ther by the father, remainder to the father in fee.
Thefe articles had been executed by a fettlement made
before marriage to the father for life, remainder to the
mother for life, remainder to the heirs of their two
bodies, which gave the father an eſtate tail; the fettle-
ment was mentioned to have been made purſuant to
and recited the articles. And it appearing that the
parties did not intend to vary the ufes of the articles,
and there being proof that a ſtrict ſettlement was in-
tended, it was decreed, on a bill brought, by the fen
of
/
f
EQUITABLE JURISDICTION IN DECREEING
[* 43.] of the * marriage, to have them executed in ſpecie,
that the eftate fhould be fettled purfuant to the articles,
by which the father was only to be tenant for life.
Weft v. Erif-
Ca. Par. 327.
So, in the cafe of West and Eriffey, which arefe
fey, 2 P. Will. on a bill to have the benefit of marriage articles, pre-
349. 3 Brown ferred by the grand-daughters of the fettler, (who
claimed under them by virtue of a limitation in re-
mainder, after two feveral limitations to the heirs
male of the body of their grandfather by his then or
any future taken wife) and conceived in the following
terms, namely, "remainder to the heirs female of
"the body of B. by his then intended wife;" which
articles had been executed by a fettlement, made
previous to the marriage but mentioned to have been
made in purſuance and performance of the articles,
in which this limitation was carried into execution by
limiting a remainder to the heirs of the body of B.
by his faid wife." B. having iffue only a daughter, and
being tenant tail by this limitation, fuffered a recovery,
fold part of the lands, devifed the refidue, and died.
The articles were made in December, and the fettle-
ment in March 1685. The fale of the lands was in
[*44.] 1698, and the will in 1722. The defendant plead-
ed the ſettlement, the recovery, the will, and the long
enjoyment; this plea was overruled, but, at the hear-
ing, the bill was difmiffed: But on appeal to the
Lords this difmiffion was reverſed, and the lands not
fold decreed to be conveyed to the granddaughters
and the heirs females of their bodies, with crofs re-
mainders to them in tail female.
;
Powel v.
Price, 2 P.
Will. 535. Et
vide Burton v.
1
But, in a fubfequent cafe, where a daughter claim-
ed under articles wherein, after a limitation therein
to the firft and other fons of the marriage in tail, re-
Haftings, Gilb, mainder to the heirs male of the body of the huſband
Eq. Rep. 113. (i. e.) by any wife, a limitation was made to the
1 Eq. Ca. Abr. heirs of his body by his faid wife; with a claufe there-
393.
in, that if the hufband fhould die without iffue male
by his faid wife, and there fhould be one daughter
fhe ſhould have 3000l. and, if more than one, they
should have 4000l. among them, which portion was
to be fecured upon fome part of the eftate. The huf
band having ſuffered a recovery, and re-fettled the
eftates on his fecond marriage, in which fettlement
part of them were fubjected to a truft for raifing
3000l. for his daughter by the firft wife, in fatisfaction
of the portion fhe was entitled to on the firft articles;
the
EXECUTORY CONTRACTS, &c.
EX
the court refuſed to decree the eftate to the daughter [* 45.1
by virtue of the articles; diftinguishing this cafe from
that of West and Eriffey, inasmuch as, in the latter
cafe no portion was provided for the daughter of the
firft marriage, whereas in this cafe portions in all
events were fecured to fuch daughters; alfo in the
latter cafe, after the limitation in the articles to the
heirs male of the body of the huſband and wife, with
the remainder to the heirs male of the body of the huf-
band by any wife, came the remainders to the heirs
female of the body of the hufband by the firft wife;
fo that the daughters were more immediately in the
view and contemplation of the parties in that than in
the prefent cafe.
1
!
But the folid ground upon which the above cafe is
diftinguifhable from that of Weft and Eriffey feems to
be the firft; for the argument founded upon the latter
ground, appears too nice to be oppoſed to the fubftan-
tial principle upon which articles fo conceived are
carried into execution by ftrict fettlement; for the
firſt limitation being to the first and other fons of that
marriage, and the next limitation to the heirs male of
the huſband, the latter remainder to the heirs of his
body by his then intended wife, muſt have been meant
as a provifion for daughters, or have had no fignifi- [* 46.]
cation at all, fince it was not to take effect but in failure
*
of fons.
Talbot, 20.
But, if the fettlement in fuch cafes, be made before Vide Logg and
marriage, and be not declared to be in purfuance of Goldwire,
the articles, this rule does not apply; becaufe, until cited Ca. T.
the marriage, all parties are at liberty; and, there-
fore, if the fettlement differ from the articles, it
will be preſumed that the alteration aroſe from a new
a Warwick v.
agreement between them, by which the articles will
Warwick,
be controuled: But that reafoning does not apply, Note; the as-
3 Atk. 291.
where the fettlement is expreffed to be made in purfu- ticles in this
ance of the articles.
cafe limited the
ellate to the
a And the court, it is to be obferved, will not re- ufe of the heir
lieve, even in the former cafes, if the application be male of the
made againſt a purchaſer for a valuable confideration. husband in the
And, therefore, where the defendant to a bill of this ber, which
fingular num-
kind was the affignee of a mortgage, and denied notice Lord Hardw.
of the articles or fettlement, and infifted on his being think would
a purchaſer for a valuable confideration; Lord Hardwicke create an eftate
difmiffed the bill, fo far as it prayed to be relieved tail in him;
againſt the mortgage.
feemed to
but it was not
neceffary to
*And, determine that
point, and there are very fliong grounds in fupport of a contrary opinion.
4
EQUITABLE JURISDICTION IN DECREEING
1.
{ * 47. ]
* And, in the cafe of Weft and Erifley, the court ob-
Weft v. Eriffey, ferved, that purchafers would not be affected, as the
fupra. plaintiff there prayed fatisfaction as to fo much of the
eftate as was fold againſt the perſonal affets of the ven-
Powellv. Price, dor only. So, in the cafe of Powell and Price, it was
fupra.
Vide 2 Vern.
admitted, that if the truftees under the fecond fet-
tlement, or the wife, had had no notice of the articles
made on the first marriage, they could not have been
affected thereby, in equity, being purchafers without
notice.
But articles fo circumftanced, were decreed to be
564.2Vez.633. executed by a ftrict fettlement against the creditors of
one bound thereby, although they had got the legal
eftate; for it is, in their hands, bound by all the equity
it was fubject to in the hands of their debtor.
White v.
Thus, where A. feifed in fee of freehold eftates,
Thornburgh,
2 P. Will. 702. Covenanted, previous to his marriage, to levy a fine
S.C. Pre. Chan, thereof to the uſe of himſelf for life, remainder to
225. Gilb. Rep. his wife for life, remainder to the heirs male of his
Eq. 107.
body by his wife, remainder to the heirs of their bodies,
remainder to his own right heirs; there was iffue a ſon
and a daughter. A. died before any fine was levied;
[* 48. ] the fon came of age, borrowed money on bond,
and procured C. D. and E. to be his fecurities, who
afterwards paid the fame. The fon, to counterſecure
and reimburſe them, covenanted to levy a fine to them
and their heirs, redeemable on payment of the money
lent, and what they fhould pay as his fureties; and,
by his will, devifed his lands to them to raise money
to pay his debts, and then died without iffue, but
without having levied a fine. And, on a bill preferred
by the fifter againſt the truſtees and creditors, to have
the eſtate conveyed according to the intent of the mar
riage fettlement, the truftees infifted that they were
honeft creditors for great fums of money, and had a
fecurity made to them by their teftator, on whom the
legal eftate had defcended, there having been no fine
levied purſuant to the covenant in the marriage arti-
cles; and they fuggefted that, if there had been a fine
levied, their teftator would have been tenant in tail,
and might have barred, as well his own iffue, as thoſe
in remainder; and that, he having the fee fimple of
the legal eſtate, and being tenant in tail of the equit-
able eftate, the deed of covenant to lead the uſes of
the intended fine (although the fine was not actually
levied)
EXECUTORY CONTRACTS, &c.
levied) was fufficient in * equity to bar it. And that,
And that, [* 49.]
although their teftator had not levied a fine, yet, they
had the legal eftate in them by the will: and, having
both law and equity on their fide, ought to prevail
againſt the daughter, who had only a demand in equity
by virtue of the father's marriage agreement.
But
Lord Harcourt confidered this deed to be in the nature
of articles, which would have been carried into
execution by ftrict fettlement, and therefore decreed
the eftate to the daughter; which decree was after-
wards affirmed by Lord Cowper, but upon different
principles.
*
333.
This rule, refpecting the conftruction of marriage
articles, being founded upon the prefumed intention of
the parties thereto, collected from the nature of the
contract and its general object, like every other rule
whofe bafis is laid in prefumptions founded on colla-
teral circumftances, yields to pofitive proof, or to the
proof of circumftances furnishing ftill ftronger pre-
fumptions, that the intention of the parties was di-
rected to a different object: And, therefore, when it Chambers v.
was by marriage articles agreed, that 6000l. in the Chambers,
hands of trustees, fhould be laid out in the purchaſe of Fitzgib. 127.
lands, to be fettled on the husband for life, remainder Abr. 35. Pl. 4,
S. C: 2 Eq. Ca.
to the wife for life for her jointure, remainder to the firft S. C. Mofeley
and other fons of the marriage in tail male fucceffively,
remainder to the hufband in fee; and the father, by the [* 50. ]
fame articles, covenanted to fettle, after his deceafe,
other lands upon the hufband and the heirs male of his
body, remainder to the heirs of the father; the huſband's
father having made a fettlement of other lands to the
huſband, and the heirs male of his body, with remainder
to himſelf in fee. One queftion was, whether this were
a good performance of the agreement; and if the limi-
tation ought not to have been to the hufband for life,
remainder in ſtrict fettlement? And Lord King was of
opinion, that the fettlement was a good execution of the
agreement; for that the lands laft fettled by the father
were not to be a provifion for the children of the mar
riage, they having been taken care of by the other parts
of the articles; but were meant for the fupport and pro-
vifion of the hufband: And his lordfhip faid, that the
different manner in penning the articles in relation to
the truft money, from that as to the lands, (the one
being in ftrict fettlement to the firft and other fons,
9. the other to the husband, and the heirs males
of
•
i
*
EQUITABLE JURISDICTION IN DECREEING
:
[* 51.]
Streatfield v.
Streatfield,
Rep. T. Talb.
176 et vide
Roberts v.
* of his body generally, without being tied up to the
iffue of the marriage) plainly fhewed, that the parties
understood, and had in contemplation, the difference
between aftrict fettlement upon the iffue of the mar-
riage, and a general fettlement upon the huſband, and
the heirs male of his body.
Again, if a huſband, bound by articles, makes a
fettlement varying from them, but, afterwards, by will,
gives other eftates to the heir entitled under the ſettle-
ment; the heir fhall be put to his election, and ſhall
not have a decree for a ftrict fettlement under the ar-
ticles, but upon the terms of abandoning what he has
a claim to under the will.
Thus where A. the grandfather of B. by articles,
previous to his marriage, agreed to fettle lands to the
ufe of himſelf and his intended wife for their lives,
and the life of the furvivor, remainder to the heirs of
Kingſby, I Vez. his body, &c. which were afterwards executed by a
238. et vide 1 P. fettlement reciting the articles, and limiting an eftate
Will. 722.
tail to himſelf; there was iffue of the marriage a fon
and two daughters. The father, on his fon's mar-
riage, fettled other lands, of which he was feifed in
[*52.] fee, to the uſe of his fon for life, remainder to the
daughters of the marriage, remainder in fee to the
fon, with power to raiſe a portion for younger chil-
dren. After the fon's death, the father levied a fine
of the lands comprized in the firft fettlement to the
uſe of himſelf in fee, and then devifed part of it to
his two daughters; and gave all other his eftates to
truſtees, in truft for his grandfon for life, remainder
to his firft and other fons in tail male, remainder tò his
own daughters. Then came this clauſe, " and his will
and meaning further was, and he did thereby authorize
and appoint the truftees, and the furvivor of them, to
receive the rents and profits of the faid eftates to them
deviſed, and out of the fame to allow and expend ſo
much as they fhould think fit for the education of his
grandſon during his minority; and that the truſtees
fhould place out at intereft fuch monies arifing out
of the rents and profits of the faid eftates, which
faid, monies, with intereft arifing therefrom, his will
was fhould be paid to his grandfon at the age of
twenty-one, if he fo long lived; or, in cafe he
died before that age, the fame to be paid to his
own two daughters, their executors," &c. The fettle-
inent being held not to be a proper execution of the
articles
}
[
EXECUTORY CONTRACTS, &c.
*articles, one queftion was, Whether the general [53]
[*
devife ſhould be taken as a fatisfaction for what the
grandfon was entitled to under the articles? Et per
curiam, if the grandſon has a lien upon the lands in the
articles, then he may ftand to them if he pleaſes; but
whẹn a man takes upon him to deviſe what he has no
power over, as well as that over which he has power,
upon a fuppofition that his will fhall be acquiefced
under, the court of Chancery compels a devifee, if he
will take advantage of the will, to take entirely, but
not partially, under it; there being a tacit condition an-
nexed to all devifes, that the deviſee do not diſturb the
difpofition which the devifor has made. Then, in this
cafe, the eſtates which the deviſor had given his grand-
fon were clearly within his power; he had given them
to truſtees until his grandfon attained twenty-one, and
had difpofed of them in fuch a manner as that there
could never be any undifpofed refidue to go to the
grandfon as heir at law; then furely it was as much in
the power of the court to make this bequeft thus limited
to be a fatisfaction, if the party would ftand to the
will, as in other caſes. And the court ſaid, that the
grandſon, therefore, muſt have fix months after he
comes of age to make his election, whether he would [* 54]
*
ftand to the will or the articles; and if he made his
election to ftand to the latter, then fo much of the
other lands devifed to him as would amount to the value
of the lands compriſed in the articles, and which were
deviſed to the teftator's daughters, muſt be conveyed
to them in fee.
But it was held, in the preceding cafe, that the fet-
tlement, made upon the fon's marriage, would have
been no fatisfaction for the eftates meant to be limited
by the articles; becauſe that deed proceeded upon a
confideration quite different from thofe of the articles,
the perfons claiming under them being purchafers for a
confideration entirely new, the limitations being totally
different. It would, therefore, have been abfurd to
have called that a fatisfaction for another thing it had
nothing to do with, and to which it was no way relative.
But if fuch articles be carried into execution by a Reeves v.
ſettlement made after the marriage, and fubfequent to Reeves,
the birth of a fon, and an eftate for life only be limited 9 Mod. 128.
to him in the fettlement, with power to make a join- thews's cafe,
ture, although by the articles the fon would have been cited ibid.
tenant
Et vide M2.
1
EQUITABLE JURISDICTION IN DECREEING
1
[*55.] tenant in tail of the lands bound thereby, * yet, if ſuch
Wakely v.
Wakely, cited
9 Mod. 130.
fettlement be made with the concurrence of the truſtees,
being a family fettlement, and therefore agreeable to
the fubftantial object of the articles, it will be valid
as a full execution of the articles; and a court of equity
will not fet it afide in order to make the fon tenant in
tail, although he be thereby prevented from incumber-
ing any part of the lands fettled, otherwife than as he
is thereby enabled.
But where there were fuch articles and no fettlement,
but the father by his laft will, which he mentioned to
be in execution of the articles, devifed the eftate to his
2 Vez. 639.
fon for life, remainder to his firſt and every other fon,
Note. Sir Jof. &c. in tail male, with remainders over; it was held that
Jekyl ſpeaking the execution being by laft will, without the confent,
of the truftees, and without the confent of the fon, who
ought to be was then of age, and by that means deprived of the
taken as done," power of making a jointure, or charging the lands
emphatically for provifion for younger children, the devife fhould be
of the rule,
"that what
done fhould be
obferves, that a ſet aſide.
of things, to
rule fo powerful • Courts of equity, in the conftruction of executory
it is, as to alter
the very nature contracts or agreements, confider them as executed
[* 56. ] from the time of their being entered into, unleſs ſome
other time be appointed for executing them; it being a
make money principle of thofe courts, that where one, for a valuable
the contrary, confideration, agrees to do a thing, fuch executory contract
to make land is to be taken as done; and, that he who made the agreement
money, 1 Salk. ſhall not, by neglecting to perform it, be in a better plight,
applying it to than if he had fairly and honestly performed, without delay,
what he agreed to.
land, and, on
154. And,
of trustees, ei-
ther by doing,
to affect the
the cafe of
truſtees, he a Thus, where A. fon of B. being about to marry
fays, that, were
it not for that an orphan of the city of London, with conſent of parents
rule, it would on both fides, feveral fettlements of real and perfonal
be in the power effate were made by B. thereupon; but, the licence
of the court of aldermen, who are the guardians of the
or delaying to city orphans, being neceffary, they were applied to for
do, their duty, their confent, which they gave upon condition that the
right of other fettlements fhould be made with the approbation of
perfons, vide 3 the common ferjeant, A. promifing and agreeing, and
P. Will. 215. B. undertaking on his behalf, to take up his freedom
of the city within one year next enfuing; of which.
v. Frederick,
1 P. Will. 70.
agreement an entry was made in the court-books. No
4 Brown's Ca. part of this agreement was performed. And A. made
his will and died. His widow then brought her bill to
compel a performance in fpecie of the agreement, it
a Frederick
Parl. 7.
* having
EXECUTORY CONTRACTS, &c.
E
#having been entered into for a valuable confideration, [* 57.]
namely, that of marriage; the confequence of which
would be, that A.'s perfonal eftate would become.
diftributable, one third to the widow, another third
to the children, and the remaining third only would
paſs by the will. And it was, after mature confide-
ration, decreed accordingly; for A. having, upon
good confideration, made the agreement to become
a freeman, and having furvived the year, in which he
ftipulated to carry it into execution, muft, in equity,
be taken to have been a freeman from the time of the
agreement entered into, and his perfonal eftate be dif
tributable accordingly. And this decree was, on an
appeal, confirmed by the houfe of Lords.
And not only the vendor, but all who come in his Hinton v. Hine
place, and take in right of him, are bound by his agree- ton, fupra.
ment; as his widow, where the eftate is copyhold
and ſhe entitled to free bench, that being a branch of,
and ariſing from, the eſtate of the huſband; or a man's
heirs; or his executors; the latter of whom are bound Vide 1 P. Will.
of courſe without being named.
721.2 P. Will,
19.
Upon this principle, namely, that the whole eftate is
by the agreement parted with in equity* (courts of equity [* 58. ]
confidering the thing as done from the time it ought to
have been done, and, confequently, confidering the ven-
dor from thenceforth as a trustee for the vendee, and
all who come in his place as bound thereby) a bond
creditor, who has a lien upon all his debtor's lands of
which he dies feifed, will, if the debtor article to con-
vey his eſtate, loſe thereby his right; for, from the
time of the articles executed, it is the eftate of another,
and not of his debtor.
cited 10 Moa,
And the fame rule of equity applies in the cafe of Per Lord Cow-
a creditor by judgment, if it be entered up after arti- per, Peach v.
cles entered into for fale of the debtor's lands, &c. for
Winchelfea,
a valuable confideration and the money paid; for the 468.
articles bind the eftate in equity, and, therefore,
muſt prevail against the claim of any judgment
creditor mefne betwixt the articles and the convey-
ance.
But in fuch cafe the confideration paid muſt be
adequate to the thing purchaſed; for if the money paid
be but a ſmall fum in refpect of the value of the land,
the purchaſer will not prevail againſt a meſne judgment
creditor.
There
:
?
.
[* 59. ]
Finch, et al,
v. Earl of Win-
chelſea, 1 P.
Will.277. laft
edit. et 283.
note I.
EQUITABLE JURISDICTION IN DECREEING
*Therefore, where A. was jointrefs for her life of
certain lands, remainder in tail to B. her husband,
remainder over; and B. entered into an agreement
with A. that in cafe he would make to him a condi
tional furrender of her eftate for life, in order to
enable him to charge part of the lands with 6000!. -
after the jointrefs's death, he would fettle the refidue,
together with the equity of redemption, upon himfelf
for life, remainder to his firft and other fons, &c. re-
mainder over; A. furrendered the lands accordingly;
B. fuffered a recovery, charged the eftate with the
6000l. and died without ever fettling the lands purfu-
ant to his agreement, being at his death indebted by
bond and judgment: The agreement was decreed in
fpecie by Lord Harcourt, and that decree was affirmed
in the houſe of Lords. A queſtion then aroſe before
Lord Cowper, Whether the judgment creditors of A.
who were puifne to the agreement, fhould be paid
their debts? And his lordship decreed that they fhould;
for A.'s equity to have the agreement performed, was:
not ſtrong enough to ftand in the way of the creditors,
who had a legal lien on the eſtate; for that, if all
60.] the creditors of B. fhould come in and be paid * their
debts, the eſtate to be fettled would be an overvalue for
what A. parted with.
It is obfervable, on the preceding cafe, that Lord
Cowper faid he knew the inducement to the Lords to
affirm the decree for the fpecific execution of the
agreement, was the propofal of the plaintiffs in the
fuit to pay the debts by judgment and bond, though
that claufe had been left out in the decree below;
which was a ftrong motive to his lordfhip to lay
hold of this objection of inadequacy of confiderati-
on.
But it ſeems that a mortgagee for a valuable confi-
deration, and without notice, would not be bound by '
articles of agreement made previous to his mortgage;
becauſe, being a purchafer under a contract executed
of a truſtee in poffeffion without notice, he may plead
his mortgage against the intended purchafer, or ceftui-
que truft: For his cafe is diftinguiſhable from that of
a judgment creditor, inafmuch as he lends his money
upon the title and credit of the land, and is under no
obligation to enquire, while he has no reaſon for
fufpicion, whether
whether the mortgagor has previouſly
* trans-
EXECUTORY CONTRACTS, &c.
* transferred his right to another; and, therefore, [* 61. ]
the money attaches upon the land: Befides, a mort-
gagee has no other remedy, but a judgment creditor
may take out execution againſt the perfon or the goods.
of the party giving it, and his judgment is only a general
fecurity, not a fpecific lien upon the land.
Upon this ground, namely, that the property in an
eftate contracted for is transferred from the time of
the articles made; it is held, that the vendee fhall be
liable, if there be no laches on the part of the vendor
in fulfilling his part of the contract, to all contingen-
cies happening to it, in the intermediate ſpace between
the agreement and the conveyance.
Thus, where A. on the behalf of B. articled to Cafs v. Rudele.
purchaſe, &c. feveral houſes at Port Royal in Jamaica, 2 Vern. 280.
by which articles C. covenanted to convey, and A. on
behalf of B. covenanted to pay 8ool. for the purchaſe;
one hundred pounds whereof was afterwards paid in
part and then C. filed a bill for a fpecific perform-
ance of the articles. A. the defendant, infifted, that
he had not fufficient effects of B.'s in his hands, and
that C. had not made out a good title to the houſes,
by which means the agreement had not been per- [* 62. ]
formed, and that, pending this fuit, the great earth-
quake happened at Jamaica, and the houſes in queſtion
were entirely deftroyed and fwallowed up; and that,
therefore, this agreement ought now to be decreed
in fpecie. But the court of Chancery, notwithſtand-
ing the eſtate pendente lite was deftroyed and gone,
decreed a ſpecific execution of the articles: Which
decree, it is faid, was affirmed in the houſe of
Lords.
Ca. 137. in
note.
But Lord Apfley, fpeaking of this cafe in that of Brown's Ch.
Pope and Roots, obferved, that it was mif-reported;
for that it appeared by the printed cafes in the houſe
of Lords, in December 1692, that a title was made by
C. in January 1691, by conveyance executed, and
the earthquake did not happen till July 1692; that A.
admitted he had the 700l. in his hands; and that the
decree was founded on a good title to the premiffes
having been conveyed to A.
However, although the preceding cafe, as ftated
by Lord Apfley, does not fupport Vernon's re-
port of it, yet, the general principle feems founded
VOL. II
C
in
EQUITABLE JURISDICTION IN DECREEING
[* 63.] in reafon, and is fupported by * other authorities
equally refpectable. For it is clear, that property
abftracted from poffeffion, being a moral right, may
pafs by a bare agreement, and that the vendor's re-
taining the poffeffion of a thing under contract of
fale until a future time, does not prevent the right of
property from being inftantly transferred to the ven-
dee. The right, and the enjoyment of the right,
are two diftinct things, as is the contract and its exe-
cution. Nothing more is requifite for transferring
the right of property but the affent of the proprietor,
and that affent has its full effect the moment the con-
tract of fale is made, and divefts the vendor of his
right of property in favour of the vendee, unless it be
etherwife agreed. But the enjoyment of the right,
which relates to the execution of the contract, may
be fufpended until the vendor has laid down the mo-
ney agreed on, or on any other account, and the
vendee will not thereby be lefs the proprietor of the
thing fold. In fuch cafe the feller, from the time of
the bargain made, is, as it were, indebted to the
buyer for a thing in kind, and therefore cannot be
affected by any accidents arifing without any fault in
him.
[ * 64. ]
Reeves's Hift.
2 P. Will. 411.
* The courfe of authorities, fo far as they go, are
agreeable to the principles above ſtated.
Thus, where a man feiled of land in jure uxoris
Comm. Law, fold four handred caks for 201. and half were taken
373,374. Man- during the life of the wife, and then fhe died, and
ning's cafe,
the baron not being tenant by the curtefy, the heir
entered, and the husband brought an action of debt
for the remaining half of the money (the other half
having been paid in the wife's life when the trees
were removed), it was held by the whole court, that
the action lay: Becauſe the contract was good at the
time of the bargain.
Ibid.
18 Ed. 4. 5.
1
In like manner it was held, that, fhould a horſe,
after being fold, die in the ftable of the vendor between
the fale and the delivery, the vendor might have debt
for the price. It was at the pleasure of the vendor to
retain the horſe till he was paid the price, and yet he
could not have an action of debt till the horfe was
delivered; the property, however, was in the buyer
by the bargain, fo that if he tendered the price, and
it was refufed, he might take the horfe, or have deti-
nue for it.
So
EXECUTORY CONTRACTS, &c.
* So where one by articles, reciting that he had an [*65.]
eftate in a church leafe, covenanted to convey his White v. Natt,
1 P. Will. 61.
title to the fame by fuch a day to another, as the cove-
nantee's counfel fhould advife, and it happened that,
after the articles, and before the time appointed for
the conveyance, one of the lives dropt; the queſtion
was, Upon whom the lofs fhould fall? And it was
decreed by the lord keeper, that, in regard here was
no default in the feller in making the conveyance, the loſs
of the life ought to be borne by the purchafer: Upon
the fame principle on which it would be held, that if
the reverfioner had articled to fell the reverfion expec-
tant upon two lives, and one of them had died before
the conveyance, the purchaſer fhould then have the
benefit of it.
agree
And where the bill was to be relieved againſt a con- Stent v. Fallis,
tract in writing, on which a judgment had been ob- 2 P. Will. 217.
tained, and damages given, and which was for the
fale of eleven fhares of the Luftring Company, at 581.
a fhare, with the 10l. per cent. which the company
had called in, and which the feller had agreed to pay;
the articles were dated the 10th of August 1720, and
the money was ftipulated to be paid on the then next
opening of the company's books, * at which time the [66. ]
defendant was to transfer the fhares to the plaintiff;
the fcrivener drew the articles according to thefe in-
ftructions; but at the meeting of the parties in order
to feal, the defendant, the feller of the stock, infifted
that he would not fell, unless the plaintiff would
to pay the purchaſe money at all events at fuch a day
certain, whether the books did then open or not; and, the
flock being then rifen, the plaintiff confented to exe-
cute an indorſement on the articles to that purpoſe;
which articles and indorſement were executed at the
fame time in a tavern: On the 20th of Auguſt, a fcire
facias iffued to repeal the patent granted to this com
pany, and at the fame time a proclamation was pub-
lifhed to forbid proceeding in transfers; and an act of
parliament afterwards paffed, making it a premunire
to have any dealings with thefe bubbles; the company
remitted the call of 10l. per cent. and, in lieu thereof,
accepted 21. per cent. but never afterwards opened their
books; nor, as their own fecretary depofed, were they
ever likely fo to do: Although the Mafter of the Rolls
confidering it as against natural justice that any one
hould pay for a bargain that he could not have, and
C 2
that
EQUITABLE JURISDICTION IN DECREEING
!
"
*
[*67.] that there ought to be a quid pro quo, whereas, in
this cafe, the defendant had fold the plaintiff a mere
bubble or moonshine, and a thing which it was impoffible
fhould ever be made good to the plaintiff, it being
clear that the company could not juftify any more
transfers) held, that the money could not be faid to
be due in confcience, fuppofing the plaintiff incapable
of coming at that which he had contracted for, and
in confideration whereof he was to pay his money,
and thereupon decreed a perpetual injunction and fatis-
faction to be entered upon the judgment; yet Lord
King, on a re-hearing, recommended the parties to
fhare the lofs, and it was agreed accordingly.
Mortimer v.
Et vide Bald-
cited ibid.
And in the cafe of Mortimer and Capper, where
Capper, Bro. C. contracted to fell M. a piece of ground for 200%
Rep. Ch. 156. and 50% a year annuity to the vendor for life, the vendee
win v. Boulter, to pay M. a mortgage thereupon; and C. was found
drowned two days after the contract was reduced into
writing; a bill was filed againft the heirs at law of Ca
for a ſpecific performance. The agreement appeared
to have been fairly made, with the approbation of C.'s
family; but it was objected, that no payment of the
[*68.] annuity having been ever made, the contract was
void. Sed, per Lord Chancellor, To decree for you.
I must lay down as a rule, where a bargain depends.
upon a contingent event, which chance both the par-
ties know; that, if the chance turns out against one
of the parties, he must be difcharged from his contract.
This contract cannot be impeached on any other
ground, than that the annuitant died before payment
that the bargain has turned out all advantageous to one
party, which was fuppofed to have been fortuitous.
Enquiry muſt be made as to the value of an annuity
for the life of C. in order to introduce the question,
Whether an eftate being, difpofed of for an annuity,
which is a contingency, the contract fhall fall to the.
ground if no payment of the annuity fhall be made ?
I think, if the price was fair, the contract ought not
to be cut down, merely becauſe the annuity, which is
a contingent payment, never became payable.
Supra, P.
Will. 62.
!
But Wright, Lord Keeper, feemed to be of opinion,
in the cafe of White and Nutt, that if, in that inftance,
all the lives had dropt before the execution of the
conveyance, it might have been another confidera-
tion; for, that the money was to be paid upon the
*
conveyance ;
EXECUTORY CONTRACTS, &c.
conveyance; and, as no eftate would then have been [* 69. 1
left, there could have been no conveyance.
And
Sir Joseph Jekyl, Maſter of the Rolls, put a fimilar
inftance in the cafe of Stent and Bailis; for he obſerved Supra, 2 Will.
that, if he ſhould buy a house, and, before fuch time 220.
as he, by the articles, was to pay for the fame, the
houſe ſhould be burnt down by cafualty of fire; he
would not in equity be bound to pay for the houſe,
and yet the houſe might be built up again.
*
Now it is obfervable upon the preceding dieta, for
they amount only to inftances put by way of illuftra- ·
tion, that the validity of Sir Jofeph Jekyl's decifion,
in conformity to the cafe he here puts, was doubted
of by Lord King, in confequence of which a compro-
mife took place; and that Sir Nathaniel Wright
founded his obfervation on the ground, that the money
was expressly ftipulated to be paid on the conveyance
being made, but this feems not to be putting the cafe
fairly; for the fame obfervation would have applied
with equal force to the cafe there in queftion: Be-
caufe, if the contract be to be viewed in that light,
the ftipulation was, to convey the eftate in the
condition which it was in at the time of the
* bargain made; and I fhould apprehend that, to have [0. ]
maintained an action upon a covenant to pay on con-
veyance actually made, it muſt have been averred,
that the vendor had conveyed an eftate for three lives,
and that the lives were in effe. But the true principle
ſeems to be, that, in equity, if the party agreeing to
convey have a good title, and be able fo to do at the
time of the bargain entered into, and be clear from the
imputation of delay in performing his part of the
agreement, the contract is there confidered as then
executed; the fubfequent conveyance being only
matter of form, the fubftance being the bargain.
From that inftant then the property is changed, and
whatever cafualties fall thereupon fhould, it feems, be
borne by the new owner. Suppofe the money, to be
paid for the bargain, be in fuch a predicament as to
be clearly identified; as if it were, by confent of both
the parties to the agreement, depofited with a third
perfon in two or three bags, to make good the pay-
ment on conveyance made, and any cafualty happen to
it, as if for inftance, one of the 'bags were ſtolen;
it feems clear that, upon the principle of the
cafe of White and Nutt, the vendor must be
the lofer, for the fubject feems immaterial if
the
EQUITABLE JURISDICTION IN DECREEING
:
%
j
[**1.] * the agreement attaches upon it, and it be bound by
the bargain. Suppofe the conveyance were made,
and the holder of the money refuſed to deliver it, would
not the vendor be the proper perſon to bring trover for
it? for, in confideration of the conveyance made, it is
become his money in law; therefore what the actual
conveyance effects, at law, the agreement effects in
equity. If this reatoning be. juft, what difference
could it make if two bags were loft and the third re-
maining? it is fubmitted it could make none; for it is
not the quantum of lofs that muft decide who is to bear
it, but the ownership. The majus or minas muſt be
immaterial. Then, if the whole money were loft,
being actually identified and proved to be that bound
by the contract, the principle would not be thereby
altered. The vendor would be the fufferer. Is it not
equal equity then, that, if the lands were loft, the ven-
dee fhould ftand to the damage? This is precifely
agreeable to the reaſoning of Sir Nathaniel Wright in
the fame cafe; for he fays, the vendee fhall take it,
though a life be fallen, in like manner as, if the arti-
cles had been for fale of a reverfion expectant upon
two lives, and one of them had died before the con-
[* 72. ] veyance, the purchaſer ſhould have had the * benefit
of that; for, fays he, in fuch cafe, in equity, the
eftate is as conveyed from the time of the articles fealed.
Why then, if that be true, and both lives upon which
the reverfion was expectant had fallen, the vendee muft
have had the benefit? becauſe the number of lives
cafe, 2 P. Will. falling could not have altered the principle, that the
eftate was, in equity, as if conveyed ab initio.
Manning's
4II.
Lord Thurlow, fpeaking to the defendant's counfel,
in the caſe of Mortimer and Capper, fays, " to decree
for it must be laid down as a rule, that where a
you,
bargain depends upon a contingent event, which chance
both the parties know, if the event turns out againft
one of the parties, he must be diſcharged from his con-
tract. Then it is to be impeached upon this ground,
namely, that the bargain has turned out all advantage-
ous to one party which was fuppofed to be fortuitous;
and the Chancellor concludes with faying, " that if the
price be fair, the contract ought not to be cut down
merely becauſe the annuity, which was a contingent
payment, never became payable.' Would not the
fame reaſoning have applied to the cafe of White
and Nutt, fuppofing all the lives had died? That
22
bargain
EXECUTORY CONTRACTS, &c.
*bargain was, for an eftate determinable upon the [73]
contingency of three lives being exhauſted, which
chance both the parties knew. Why then ſhould the
contingency of all the lives dying in one cafe vary the
contract, more than the contingency of the annuitant's '
life failing in the other; or, why fhould the fact of
there being no eſtate to convey at the time of convey-
ance, in one cafe, affect the principle more, than the
fact of there being no annuity to pay at the time of the
conveyance ſhould affect it in the other?
But, it may perhaps be faid, that there is an evident
diſtinction, not only between a contract for fale of an
annuity, and one for fale of an eftate for lives, but alfo
between thofe contracts and a contract for fale of an
abfolute eftate; for the former are, upon the face of
them, contracts for contingencies, the latter is not fo.
I confefs fuch an obfervation would not furniſh in my
mind any ground for a diftinction. An annuity is de-
terminable by the cafualty of the life during which it is
payable falling in; an eftate for lives is in its nature to
ceafe, when the lives during which it is to continue no
longer exiſt; an abfolute eſtate in lands is alſo expofed
to thofe convulfions of nature to which the land that is
the ſubject of * it is liable; and a houfe may be confumed [*74.]
by fire. Every one who treats refpecting either of
thefe fubjects must be aware of thefe chances, and
being aware of them must be confidered as making his
bargains with the full knowledge of the poffibility of
their happening; the only difference feems to be, that
fome of the cafualties are more probable to happen than
the others: But all are equally incidental to the feveral
ſubjects expofed to their influence.
If
any diftinction can be made in the cafes put, it
feems to me that it must be in favour of the vendor of
the abſolute eftate in lands fwallowed up by an earth-
quake, or of the houſe deftroyed by fire, and not in
favour of the purchaſer in confideration of a contingent
payment (as of an annuity) whereon, by reafon of the
death of the annuitant, nothing becomes due; for fuch
a cafe, it appears to me, might be fairly contended to
fall within the diftinctions I have before mentioned,
where that party who has performed, and by the farne
reafon where that party, who is ready to perform his
part of the agreement, is in ftatu quo: As in the cafes
of Lord Feverfham and Watſon, and of Powell and
Pellet;
EQUITABLE JURISDICTION IN DECREEING
.
[*75.] Pellet; becauſe the feller of the annuity has paid
nothing; he has done nothing towards performance of
his part of the agreement; and it is become impoffible,
as to part, that he fhould: The 'contingent payment
never commenced nor can commence, neither does it
admit of compenfation; where then is the equity of
his cafe? If he brought an action upon the agreement,
he could fhew no real damage; he could therefore reco-
ver only a nominal one. We are to recollect, in con-
fidering theſe kind of cafes, that the interpofition of
the court is difcretionary, and the title to demand it,
is to be raiſed on an equity derived from circumſtances.
That, therefore, although that difcretion be not arbi-
trary, fo as for the court to be warranted to deny its
interpofition where that equity is to be found, yet, it is
abfolutely arbitrary, when all the circumftances of the
caſe do not concentrate to raiſe that equity. Minute
incidents then may, in fome cafes, turn the balance
either way. Nothing can afford a ftronger ground to
refufe the aid of the court, than that it is impoffible
for the one party to have a compleat performance, and
that the other, who feeks for it, is in precifely the
fame predicament as he was at the time at which he
entered into the agreement.
[* 76. ]
* But the cafe is different as to the vendor of an
eſtate ſwallowed up, or houſe burnt down; becauſe,
had he not been bound by the agreement, he might
have fold this property, to others, and the conveyances ·
might have been fooner compleated; the parties con-
tracting are not in the fituation they were in at the time
of the contract made; it ought therefore, in equity,
to be rendered efficacious ab initio, thereby to deter-
mine on whom the caſualty fhall fall. If, after fuch a
contract, and before its completion, an accident hap-
pened favourable to the holder of the lands; as if an
earth uſeful in a particular manufactory were diſcovered
in the neighbourhood, or any other collateral caſualty
of the like nature, the vendor would notwithstanding be
bound to his bargain; furely then it is confiftent with
equity, that he ſhould not fuffer by a cafualty operating
against the vendee.
Pope v. Roots,
As to the cafe of Pope and Roots, that feems to me to
7 Brown's Par. fall within another principle of equity. There A.
Ca. 148. feized in fee of certain tenements then in mortgage,
being fixty years of age, and in perfect health, with a
view to increaſe his income for his life, in July 1770,
by
1
!
:
EXECUTORY CONTRACTS, &c.
by agreement in writing, contracted with B. * in con- [*77.1
fideration of Is. and of an annuity of 70l. payable by
B. as therein mentioned on or before the 1st day of
October then next enſuing, to convey thoſe tenements
to him and his heirs free from incumbrances; and it
was agreed, that A. fhould receive the annuity from
the 5th of April then laſt paſt, and B. ſhould take the
rents and profits of the tenements from the fame day.
This agreement could not be performed at the day, by
reafon of the indifpofition of the mortgagee, and two
days after, viz. the 2d of November, A. met with a hurt
on horſeback, that occafioned his death on the 12th of
the fame month: Then B, inftituted a fuit againſt the
repreſentative of A, for a ſpecific performance of this
agreement, offering to allow them the half yearly pay-
ment of the annuity of 70%, that became due on the 5th
of October preceding A.'s death. It was objected, that
the agreement was unfair and unreafonable, it being
proved that, at the time of making, it was a very hard
bargain; for the eftate was then worth upwards of
800l. and the annuity might have been bought for lefs
than 590%. And that an annuity of 951. for the life
of A. inſtead of an annuity of 781. fuppofing him to
have been in full health, would have no more than a
* reaſonable confideration for the purchaſe of the eftate *78. ]
in queftion. Befides, it was faid, that B. had not car-
ried the agreement into execution on his fide, by paying the
annuity on the 5th of October, when it became due; and
on thefe grounds the plaintiff's bill, fo far as it fought
a ſpecific performance, was, difmiffed, and that difmiffal
affirmed on appeal to the houſe of Lords.
Now, although inadequacy of price alone is not,
when all parties are informed refpecting that about which
they are contracting, a fufficient ground for a court of
equity to refufe to give its fanction to a contract, unleſs
the confideration be inadequate in a degree that will
warrant the court to conclude fraud from the internal
evidence the tranfaction itfelf furniſhes, yet it is a ſtrong
inducement to a court of equity to feize upon any other
ground that the cafe may furnish; which, coupled
with that, may warrant it to refuſe its interpofition.
And, therefore, the court of Chancery, and alfo the
houfe of Lords, coupling together the inadequacy of
the price, and the omiffion on the part of the purchaſer
of the eſtate to perform his part of the contract by
payment of the annuity, when the first half year be-
came
EQUITABLE JURISDICTION IN DECREEING
[* 79. ] came due, * confidered him as not intitled to the favour
of a court of equity; in which way of taking up the
queſtion they were warranted, as well by the principle
that governed Lord King in the cafe of Powell and
Rep. Eq. 188. Pillet, as by that which influenced Lord Cowper in the
cafe of Finch and Lord Winchelfea.
Supra, Gilb.
Supra, 1 P.
Will. 277.
But if the tranſaction be not a contract of ſale, pro-
perly fo called, but an agreement which obliges the
parties to make fuch a contract at a certain or uncer-
tain time, then the feller remains proprietor of the
thing fold, and is confequently liable to accidents and
cafualties. The effect of fuch an agreement being
merely, that the feller engages, Firft, Not to make a
contract of fale with another, in regard to, the thing
bargained for, before the time limited is paſt;
and, Secondly, To deliver the thing at the price
agreed on, when the contract of fale fhall be com-
pleated by the performance of the obligation on both
fides.
Where money is appropriated to be invefted in
lands, and, by unforeſeen accidents arifing from no
[* 8c. ] neglect of any party interefted, it * fuffers a lofs,
the parties intitled and interefted therein muft contri-
bute equally.
Chambers, et
al. v. Cham
bers, et al.
Thus where A. on marriage of his fon I. with E.
covenanted, by articles, in 1718, to add 3000l. to the
Mofeley 333. portion of E. which was 3000/.; and that the 6000%.
S. C. Fitzgib. fhould be paid into the hands of trustees to be inveſted
137. 1 Eq. Ca. in a purchaſe of lands to the uſe of I. for life, remainder
Viner tit. Con- to E. for life, remainder in ftrict fettlement; and two
tract 513. Con- terms were to be limited to truſtees, one to raife 2000/.
tribution 567, for the portions of younger children, payable at twenty-
Ab. 115, 116.
568.
one or marriage, or 1000l. for the portion of a younger
child, the other for raifing 3000l. for the portions
of daughters in cafe there was no iffue male of the
marriage; and the money was to be put out on govern-
ment or other fecurities, at the difcretion of the truftees,
until a proper purchafe could be found; and the
intereft of the money was to go as the lands when
purchaſed: The money, which ftood out in South
Sea annuities, was, in 1720, fubfcribed by the truf-
tees into the South Sea Company, and by the lofs of
that year was reduced to about 3000l. Then the
eldeft fon filed his bill against the truftees, his father,
mother,
EXECUTORY CONTRACTS, &c.
2
¿
1
*mother, brothers, and fifters, to have the money laid [* 81. ]
out in a purchaſe of lands, to be fettled purſuant to
the articles; and that the fhares of the younger chil-
dren might abate in proportion to the lofs. And it
was argued, that this lofs could not fall upon the truf-
tées, for not only the act of parliament refpecting the
South-fea company indemnified the truftees, but the
articles alſo authorized them to place out the money as
they pleaſed. That therefore the juftice of the cafe
was, that the younger children fhould abate in pro-
portion with the elder fon; and as by the articles they
were, if there was a fon to have one-third of the
whole money, fo they ought to have the fame propor-
tion of what was left. On the other hand it was con-
tended on behalf of the younger children, that there
was no cafe in which fuch a lofs had been decreed to
fall on one that had a charge on the inheritance; that
the charge was certain, the value of the lands to be
purchaſed was uncertain; the charge remained the
fame, whether the lands to be purchafed were of more
or lefs value; and that the money being to be laid out
in lands was to be confidered as a real eſtate, and if
the lands had been purchaſed and fallen in value, yet
this certain pecuniary charge muft have been * raiſed; [ * 82. 1
that the money, at the time of the articles entered into,
was inveſted in South-fea annuities, which might fall in
value, yet the parties had not provided for an abatement
if fuch a cafe happened; that, fuppofe the ftock had
rifen according to the expectation of the parties, the
younger children would have been no gainers by the
rife, but the plaintiff would have had all the benefit,
fo by parity of reafon he ought to bear the lofs;-fo if
the money had been laid out in lands, the mines, ef-
cheats, and other cafual profits, would have been his.
But the court diftinguished between cafes where the
money had been invefted, and this cafe. Here the
money had not been laid out in a purchafe, and a defici-
ency had happened by placing it out in a lawful way
allowed by act of parliament, which includes the con-
fent of every one; and the truftees had the authority
of the parties to difpofe of it at their pleafuse. If any
gain had been made it would have gone to all the chil-
dren in proportion, as had been judged in the court;
then, if a lofs had happened, if the, fame proportion of
what remained were given to the younger children,
they had all that was defigned them; the parties to the
}
articles
]
EQUITABLE JURISDICTION IN DECREEING
¡
articles never defigned that the younger children fhould
[83] have two-thirds of the money, but one-third only;
and they defigned to provide for all the children, and
therefore the younger children muſt abate in proportion
to the lofs.
Having confidered the principles by which courts of
equity govern themſelves in the exercife of their jurif-
diction in decreeing contracts in fpecie; I fhall next
call the reader's attention to the effects and confequences
which flow from this head of equity.
The principle, upon which this equity is founded,
being the rule, that whatever is ftipulated to be done
1 Vez.175,196. ſhall be there confidered as done; it follows, as a ne-
ceffary confequence, that money contracted to be laid
out in lands, being from the time of the contract bound
thereby, muft, from thenceforth, be taken as land.
243, Lord
Pembroke v.
Boden,
Ch. Rep. 115.
[ 84 ]
**
*
And the fame principle will equally apply vice versa;
Gilb. Hift. Ch. namely, that lands, by agreement ftipulated to be turned
into money, fhall from thenceforth, being bound there-
by, be taken as money; and, therefore, if a man by
articles agree to fell his eftate, and part of the money
be paid, and then he die before the conveyances are
perfected, and the vendee is willing to be off his bar-
gain and lofe the money already paid, and the heir
of the purchaſer likewife defires that the bargain may
not proceed; yet, if the executor of the vendor prefer
his bill against the purchaſer and the heir of the ven-
dor to have the conveyance compleated, and the refidue
of the money paid to him, a court of equity will de-
cree it: Becauſe, from the time of the bargain, the
land of the vendor is to be looked on in a court of
equity as money, and to belong to his executors; for
he by his bargain has turned it into money.
But this rule of equity only applies, where the con-
tract to turn land into money, or money into land, is
pofitive; for, if a power of election be left in one of
the parties, there, he muft, by fome act, fhew his
intention to change the fubject from what it is, or a
court of equity will not confider it otherwife, than as
Curlingv.May, in its proper fhape: Therefore, where A. gave B.
500/. in truft, that B. fhould lay out the fame upon a
cited3Atk.256, purchase of lands, OR put the fame out on good SECURI-
et videKettleby TIES for the Separate ufe of his daughter H. (the plain-
tiff's then wife) her heirs, executors, and adminiftra-
tors, and died in 1729, and H. the daughter died in
ivi, term,
8 Geo. IL
v. Atwood,
! Vern. 298,
173
EXECUTORY CONTRACTS, &c.
*
1731, without iffue, before the money was vefted [85.]
[*
in a purchaſe; and the hufband, as adminiftrator to his
wife, brought a bill against the heir of H. for the mo-
ney, the money was decreed to him: For it was faid,
that, the wife not having fignified any intention of
preference, the court would take it as it found it; that,
if the wife had fignified any intention, it ſhould have
been obferved, but it was not reaſonable then to give
either her heir, or adminiftrator, or the truftee liberty
to elect: For, Lord Talbot faid, it was originally per-
fonal eftate, and yet remained fo, and nothing could be
collected from the will, as to what was the teftator's
principal intention.
And to entitle the heir to claim money as land, or the
reprefentative of the perfonal eftate to claim land as
money, or, to ſpeak more properly, to claim money
arifing by fale of lands as perfonal eftate, one or other
of the contracting parties in the agreement for purchaſe
or fale muſt be entitled to carry it into execution in a
court of equity; for where fuch court holds, that the
agreement ought not to be executed, there is no con-
verfion of perfonal into real eftate, or real into perſo-
nal eſtate in confideration of the court: Becauſe, * if
the fubject being land be not effectually converted
into money, or being money be not effectually con-
verted into land, it must be confidered according to its
original nature; and the executor in the former cafe,
and the heir at law in the latter, muft have the benefit
of it. Now, whether there be any fuch converſion de-
pends on there being an effectual agreement, binding
on all parties; fo that, under all the circumftances, it
ought to be carried into execution upon the general
principle of equity before alluded to, that what is
contracted for valuable confideration to be done,
will by courts of equity be confidered as done; all the
confequences following, as if it had actually been ſo,
and as if a conveyance had been made of the land at
the time to the vendee. But, if the circumftances be
fuch, that the agreement cannot, when application is
made to a court of equity, though once it might have
been, or ought not to be carried into execution, theſe
confequences cannot follow; for the court must then
confider the fubject to be land or money, as it is in its
proper and original fhape.
Money to be laid out in lands, may be in three pre-
dicaments.
First,
1
[* 86. ]
*86.]
į
EQUITABLE JURISDICTION IN DECREEING
[* 87,]
Infra.
Infra.
t
Infra.
Per Lord Par-
ker, Chan.
afterwards
First, It may confift of a particular fund placed
in the hands of trustees in truft for third perfons, ac-
cording to the limitations ftipulated in the articles or
agreement refpecting it. Of this kind is the caſe of
Kettleby and Atwood.
Secondly, It may confift of a particular fund, re-
maining in the hands of the perfon bound by the limi-
tations ftipulated in the articles or agreement refpect-
ing it, and by covenants therein. Of this kind are the
cafes of Knights and Atkins, Lancy and Fairchild, Scuda
more and Scudamore, Disher and Difher, Furham and
Jones, Edwards and Lady Warwick, and Letchmere and
the Earl of Carlisle.
Thirdly, It may confift of money vefted in no fe-
parate or particular fund, but mixt with the general
fund belonging to the contractor refpecting it, or of
the perfon claiming by virtue of the ftipulation in
the articles. Of this fort is the cafe of Chaplin and
Horner.
In which ever of the laft mentioned predicaments
money to be laid out in lands is, it is nevertheleſs a
declared rule of the court of Chancery, acknowledged
[* 88.] as fuch as early as the year 1720, that it is to be
created Lord looked upon as land; and, therefore, if the grantee
Maclesfield, thereof die before a purchafe made, or payment to
vide Pre. Chan. him of the money, fo that it becomes a queftion be-
544. Chaplin v.
tween his heirs and executors, which of them fhall
Horner, 1 P.
Will. 483. have the money? the heir fhall be preferred, and it
fhall, for his benefit, be confidered in a court of equi-
ty, as if the purchaſe had been actually made in the
life of his anceſtor for two reafons: Namely, Firſt,
Becauſe the heir is favoured in all cafes rather than the
executors. Secondly, Becauſe, if the executors fhould
have it, it would be against the intent of the grantor,
who meant to give it to the heirs.
Kettleby v. At-
Thus, where, by articles made upon marriage, it
wood, 1 Vern. was agreed, that, the wife having 1500l. portion, the
298. Hill. 1684. husband fhould add 500l, more to it, and that the fame
Ibid 471. Mich.
1687. S. P. in fhould be depofited in truftees hands, until a conve-
Lingen v. Sow- nient purchafe could be found out for inveſting it in
ray, as to part land; which land, when purchaſed, was to be fettled
to the uſe of the husband and wife for their lives, re-
Vide infra, et mainder to their firft and other fons in tail, re-
1 P. Will. 172. mainder, &c. remainder to the right heirs of the buf-
Mich. 1711. band. And, in the articles, there was a provifo that,
of the fecurities
for money.
in
EXECUTORY CONTRACTS, &c.
Hill. 1707.
the money was
had iffue,and it
* in cafe the hufband died without iffue, the wife might [* 89.]
make her election whether he would have the land or Vide Hancock
money, and had fix months time to make her election v. Hancock,
in. The hufband died before a purchaſe made, leav- 2 Vern. 605.
ing the wife enfeint of a daughter born foon after his where the wife
death, and who died at a month old. The wife was aćtually haďan
adminiftratrix to both husband and child, and made her election,andyet
election within fix months to have the money; and directed to be
gave notice thereof to the brother of the husband who laid out in land;
was his heir. He thereupon filed a bill to have the becauſe the then
2000% invested in land, and fettled according to the was more bene-
articles. h Lord Keeper North difiniffed the bill with ficial for them.
cofts, faying, that had a bill been brought in the life- Note. The cafe
time of the infant, it being better and fafer for the in- Clarke, 1 Sid.
fant to have the land than money, he would have de- 102. was cited,
creed the money to have been laid out for the benefit per curiam,
of the infant; but that he did not fee what equity ham, Juft. cited
the heir had against the adminiftratrix. But on a re- the care of Bret
hearing this decree was reverfed; becaufe, the huf- and Pildridge,
band having ifiue at his death, he could not be faid to a provifo,
die without iffuc, and, therefore, no election
arife to the wife.
of Goodiar v.
wherein Wind-
on a deed with
could that if a man's
daughter fhould
die without if-
husband fhould
* So, in the cafe of Lancy and Fairchild, *
money, [* 90. ]
1 being by marriage articles to be laid out in land, and fue within two
fettled on the hufband and wife and their illue, re- years from her
mainder to the heirs of the wife, was, the wife dying in marriage, her
the life-time of the hufband, decreed to go to the heir
of the wife, and not to her adminiftrator; m the money her portion;
being bound by the articles, according to the refolution the daughter
in the cafe of Kettleby and Atwood.
ก
repay part of
bad iflue, and
the, and her
ille, died with
re-
paid, becauſe
Again, where D. a freeman of London, being pof-
felled of a certain fum per annum upon bankers affign-
in two years,
and adjudged
ments (which were eſtabliſhed by act of parliament, that no part of
and were therefore to go to the executor) previous the portion
to his intermarriage with E. and in confideration fhould be r
thereof, affigned over thefe annuities to truftees in by her having
truft that they fhould pay and apply thefe yearly an- had iflue, the
nuities to fuch perfons as fhould be entitled to the condition was
profits of his lands, which he had conveyed to the
k Lancy v.
fame truftees to the ufe of himſelf for life, remain- Fairchild,
der to his wife for life, remainder to his firft and 2 Vern. 101.
Eaſt. 1687.
other fons, &c. remainder to himfelf in fee;
m Supra.
directed that, in cafe the principal fhould be
according to the act of parliament in that
fulfilled.
1
n
and
paid in Dither v.
behalf Dither.
made,
I P. Will. 204.
Trin. 1712.
7
1
In the cafe of
Carmarthen, a
the revenue of
EQUITABLE JURISDICTION IN DECREEING
[* 91.] made, that then the truſtees* fhould lay out the mo-
nies in the purchaſe of freehold or copyhold lands to be
the Countess of fettled to the fame uſes. Afterwards D. died without
Holderneſs v. iffue. And, on a bill brought by the brother and heir
the Marquis of of D. against his widow and executor, it was decreed,
perpetual an- that theſe annuities, being redeemable by parliament,
nuity of 4000l. were as a mortgage affigned to trustees and directed,
iffuing out of when paid in, to be inveſted in a purchaſe, and fettled.
the poft-office as the fee-fimple lands were above fettled; and, there-
(but redeem- fore, though the wife was to have an eftate for life in
able upon the
the annuities by her jointure deed, yet, after her death,
100,000l. out of the annuities fhould not be looked upon as perfonal
the exchequer, eftate, a moiety of which, on fuch conſtruction, would,
when the ſtate by the cuftom of London, go to her reprefentatives, but
permit, which as money directed to be laid out in lands, and to be as
fum,when paid, a real eftate, which, after the wife's death, would go
to the heir of D.
payment of
of affairs would
was to be laid
out in the pur-
chafe of lands
And the law will be the fame, if the perfon appointed.
to be fettled in to lay out the money die before it be done, and neither
manner therein the executors, nor any other perfon, be named by the
mentioned) was
not confidered grantor to inveft it; becauſe, otherwiſe, it would put it
as money to be into the power and election of the truftee to decide who
laid out in land, fhould have the benefit of it: For, if the purchaſe were
[* 92. ] made, it must go to the * heir, but if the truſtee, by de-
but merely as a laying the purchaſe, might alter the right and give it to
perpetual an-
nuity,inafmuch the executors, it would be governed by his will and in-
as there was no clination, and not by the will and inclination of the
certainty of the
tor, which would be very unreaſonable and inconveni-
redemption.
Bro. Chan. ent. And, therefore, although the truft for laying out
Rep. 377. the money be perfonally confined to the grantee, with-
out naming executors, yet, they fhall be confidered as
implied and included in it.
Scudamore v.
Scudamore,
Mich. 1720.
gran-
Thus, where A. by her will in 1696, gave the fum of
8000l. to her daughter B. to be laid out by her in a pur-
Pre. Ch. 543. chafe of lands, to be ſettled to the uſe of herſelf for life,
remainder to C. and his heirs, and, in cafe he died in
the life-time of B. to D. his heirs, executors, and ad-
miniſtrators. C. died in the year 1714, and in the life-
time of B. and D. in the year 1716, living B. having,
about three months before his death, made his will, and
E. his lady, executrix, and having given feveral lega-
cies, and leaving F. an infant, his only daughter and
heir at law. In the year 1717, B. died. The money
had never been laid out. A bill was brought by E.
againſt F. and againſt the executors of B. to have the
money for the benefit of the executors and legatees
of
EXECUTORY CONTRACTS, &c.
!
* of D. and that no purchaſe might be made for the [93. ]
benefit of F. the heir at law of D. And the lord chan-
cellor was clearly of opinion, that the money belonged
to F. the heir at law, as the lands would have done,
if a purchaſe had actually been made as it ought to
have been by B. the truftee. And his lordfhip decreed
accordingly.
In the preceding cafe the court obferved, that the
cafe was the ſtronger becaufe F. the heir at law, was
an infant; and as B. furvived D. two years, the infant
heir might have brought her bill againft B. herſelf,
the trustee, to have had the purchafe made; and her
laches in not doing fo, was not to turn to her prejudice,
being an infant.
And, although the limitations in marriage articles go
no further than to the heirs of the body of the huſband
and wife, yet, courts of equity confider what is the
effect and confequence of the fettlement; namély, that
it is to give to money the properties of land, and as,
had it been land, it would defcend to the heirs general
of the hufband (i. e.) fuppofing it came from his ancef-
tors; fo, although in fact it be money, yet being in
equity as land it will defcend in the fame courfe as [* 94. ]
land would.
And, although money to be laid out in land come,
in truth, wholly, or in part, from the wife, yet, if no
provifion be made in what channel it fhall go after
failure of iffue of the marriage, courts of equity will
give it to the heir of the hufband, upon a preſumption,
founded on the general practice in fuch cafes, that it
was fo intended.
The following cafe will illuftrate both the foregoing
propofitions.
Upon the marriage of A. with B. daughter of C. it Knights v. At-
was agreed, that C. fhould give B. a portion of 1500l. kyns, 2 Vern,
and that A. fhould put 1500% more to it, and that both 20. 1687.
fums ſhould be laid out in the purchaſe of lands to be
fettled on A. for life, remainder to B. for life for a
jointure, and on the heirs of their two bodies. A. died
without iffue, and B. married P. and died. Then the
heir of A. brought his bill to have the money owing
by B. (together with 1500l. more which he offered to
lay down) laid out in a purchaſe according to the mar-
VOL. II.
riage
D
EQUITABLE JURISDICTION IN DECREEING
!
[* 95.] riage agreement. It was contended on the part of
P. the hufband and adminiftrator of B. that, as there
was no mention in the marriage agreement how the
remainder in fee ſhould go, and as, the wife's portion
being equal to the money laid down by the hufband, it
would have been reaſonable, if a queftion had been
made in this court, how the remainder fhould have
been limited in the life of the parties, to have decreed
it for the right heirs of the furvivor, therefore, the
purchaſe having never been made, and the wife ſur-
viving, fhe was entitled, in equity, to the whole
money, and that her huſband, as her adminiftrator,
had the fame right, if not to the whole, at leaſt to a
moiety which was her own proper portion. But it was
decreed, that what remained due from C. fhould be
paid to the heir of A. the firft huſband.
[ * 96. ]
Symons v. Rut--
ter, 2Vern. 227.
Eaſt. 1691.
And the better opinion feems to be, that, although a
purchaſe be to be made with the confent of the huſband
and wife, and one of them die before the money be
inveſted; yet it ſhall be ſubject to the limitations in
the agreement, and, in default of iffue, go to the re-
préfentative of the hufband.
Thus, where, on the marriage of S. with R. * it
was agreed, by articles, that 500l. part of the portion
of S. fhould be placed in truſtees hands to be inveſted in
a purchaſe (with the conſent of S. and R.) of houſes or
lands of inheritance, to be fettled on the hufband and
wife, and the iffue of the marriage, remainder to the
heirs of the body of S. remainder to her brother and
his heirs. The intereft, until a purchaſe had, to go as
the rents and profits would go afterwards. S. died
without iffue before the money was laid out, then R.
died, and afterwards the brother of S. claimed the
500l. by virtue of the remainder to him and his heirs.
Et per Trevor and Rawlinson, the 500l. muft, in this
cafe, be looked upon as money, and not as land, and
go to the adminiftrator of R. the hufband, who furviv-
ed. First, Becauſe there was no politive covenant
that it ſhould be laid out in land. Secondly, Becauſe
it was to be laid out in land, but by confent of R. and S.
and there had been no purchaſe inade or confented to,
and, therefore, it remaining as money, the intereft by
the articles was only appointed to the furvivor, and no
difpofition was made as to the principal; that, there-
fore, must go to the adminiftrator of the huſband who
furvived, and who, if it had been fettled, would have
}
been
EXECUTORY CONTRACTS, &c.
been tenant * in tail, and might have barred the iffue. [* 97. ]
And the bill was difmiffed
cafe of Colwal
has been held,
ther, as he
But, Hutchins was of a contrary opinion in the pre- Note this was
ceding cafe; for he faid the intention was plain that previous to the
the money fhould be inveſted in a purchaſe, and it was and Shadwell.
plain that a purchaſe might have been made after the i P. Will. 471.
death of one of them, becauſe the furvivor, by the Since which it
articles, was to have only the intereſt for his life; and that tenant in
though, if fettled, the huſband might have been tenant tail remainder
in tail, yet, he having no iffue, would have been only in fee to ano-
tenant in tail after poffibility of iflue extinct; and, cannot bar by
therefore, this caufe must be governed by the rule that fine at law, nei-
had been taken in the feveral cafes of Whitwick and ther can he be
entitled to mo-
Fermin, Lawrence and Beverly, Annand and Honeywood, ney fo fettled in
and Kettleby and Atwood, and money must not, in this equity. Befides,
cafe, be taken as perfonal eftate, upon the fame cir- thefe articles
cumftances which, in other cafes, had made money be quired a
confidered as land, and to go as real eſtate.
would have re-
quired a fict
fettlement, in
band would
*
98. ]
And the opinion of Hutchins, in the preceding cafe, which the huf-
has been fince approved of by Sir Jofeph Jekyl and have been only
Lord Talbot, in their judgments on the cafe of Letch- tenant for life.
mere and Lord Carlile; the former of whom ſaid, “he Vide 3 P. Will.'
* obſerved it was admitted there, that if there had not 219.
been the claufe in the articles, that the purchaſe fhould l
be made with the confent of the huſband and wife, the
money must have been taken as land: Now, fuch
claufe made no matter of difference; for, upon a con-
venient purchaſe being propofed, the court of Chancery
would have taken upon itſelf to have judged thereof,
and without fome reafonable obje&ion made, would
have ordered the money to have been laid out in it: So
that fuch claufe feemed to have been immaterial in the
marriage articles, and the opinion of Hutchins to have
been well-founded.
·
Lord Thurlow alſo, in delivering his judgment in the
cafe of Pultney and Lord Darlington, faid, that he
thought Hutchins was right in the cafe of Simons and
Rutter.
So, where C. covenanted, on his marriage, to lay Chaplin v.
out 2000l. (then in the hands of trustees) in the purchale Horner,
of lands, to be fettled on himfelf and his heirs; 650 Mich. 1718.
P. Will. 483,
part thereof being, at the time of his death, in the S. L. Scuda-
hands of the truftees, it was infifted in a cauſe in Chan- more v. Scuda-
cery refpecting this fund, that this 650/. ought not to more, fupra.
D 2
be
1
1
EQUITABLE JURISDICTION IN DECREEING
*
[*99.] be laid out in lands, but ought to be looked upon as
perfonal eftate, and the widow to be entitled to a third
part of it. The ground for which was, that C. being
to be tenant in fee of the land when purchaſed, and
having an abfolute power over it by will, or otherwiſe,
and it being then actually but money, it fhould be ef-
teemed in no other light than as money. Sed, per
curiam, it ought to be taken as land, and to go to the
daughter as heir; the difpute in this cafe not being
between C. and the truſtee, but between the heir
and the executor, who became entitled to the
money fubject to the covenant. And it was decreed
accordingly.
Edwards v.
2 P. Will. 171.
Trin. 1723.
Again, where A. on his marriage with B. who had
Lady Warwick, a portion of 16,000/-10,000l. whereof was agreed
to be laid out in the purchaſe of lands of inheritance, to
be fettled on the iffue of the marriage, with remainder
to A. in fee. A. died leaving iffue one fon, who after-
wards died. The money not having been invefted, but
being out on mortgage, the heir general of A. filed
a bill to have it affigned to her. This was oppofed
by A.'s mother and adminiftrator on the ground, that
being then in itself money, it ought, by the ftatute
of Diftributions, to be divided between her and
[* 100.] * A.'s fifter. But it was decreed to belong to the
heir 07 which decree was afterwards affirmed in the
houfe of Lords.
C
No difference has ever been made as to the confe-
quences that flow from confidering money as land,
whether it be circumftanced in the one or the other of
3 P. Will. 218. the before-mentioned predicaments; for the rule of
equity will be precifely the fame, whether the money
be depofited in the hands of a third perfon to be laid
out, or be refting in the hands of the covenantors, or
in the hands of a perfon into whofe poffeffion it comes
as land.
3 P. Will. 224,
91, 92.
Mich. 1733.
Letchmere v. It was objected, indeed, in the cafe of Letchmere
Lord Carlife, and Lord Carlisle, where Lord Letchmere had covenant-
Ca. T. Talbot, ed for himfelf and his heirs, to lay out 26,000% in the
purchaſe of lands, and to fettle the fame on himſelf
and his wife, remainder to fi.ft and other fons &c.
Lafter 1735. reinainder to his own right heirs, on an application by
the heir general for a specific performance, that this
cafe differed from all that had preceded it: For that
the money was never depofited, but remained in Lord
Letchmare's own hands; and that he only was the debtor,
and
EXECUTORY CONTRACTS, &c.
and confequently his heir: So that the heir was the [*101. ]
debtor as bound in the covenant, and yet claimed as a
creditor under the covenant. And it was faid to be
inconfiftent for the fame perfon to be both debtor and
creditor: Befides, that, as far as the heir had real
affets, the affets were at home already, and could not
be fued for. But it was held by Sir Jofeph Jekyl,
Mafter of the Rolls, and his decree affirmed as to this
part of the cafe by Lord Talbot, that this would make
no difference; an heir could no more be looked upon
as a creditor against his anceftor, than he could be
looked upon as a purchafer under him; he took with
the feveral burdens that his anceſtor laid upon him;
and, as on the one hand Lord Letchmere bound himſelf
by his covenant to lay out this fum of 30,0004, in land,
he on the other hand acquired a right to an eftate for
life, and to a remainder in fee, which, by his death,
were fevered, and the remainder only defcended upon
his heir. Thus, if a man articled for a purchaſe and
bound himſelf, his heirs, executors, and adminiftrators,
he might as well be called in that caſe both covenantor
and covenantee, as in the prefent cafe; but the heir
was nevertheleſs entitled to have the purchaſe com-
pleated, and might compel the executor to do it, be-
caufe their rights' were different; and where a man's [* 102. ]
defign appeared to be to turn his perfonal eftate into.
land, that gave his heir an advantage which a court of
equity would never take from him. None of the caſes
cited warranted this diftinction that was endeavoured at,
and in reaſon there was nothing to warrant it, the intent
and agreement of the parties being the fame in both
cafes, which, if effectual in one cafe, there could be
no reaſon why it fhould not be ſo in another. The
cafe therefore fell within the common known rule, that
money, articled to be laid out in land, was to be looked
upon as land. Lord Letchmere was bound at the time
of his death to lay out the money in land, by which he
gained a right to an eftate for life, with a remainder in
fee; and the eftate for life being determined by his
death, the right which he had to the remainder defcend-
ed upon his heir.
It is true, there was a cafe in Chancery in Lord
Somers's time, on articles made on the marriage of A.
with B. by which it was agreed, that B.'s father
fhould pay 1500/. in part of her portion, which, toge-
ther with a like fum to be advanced by A. within THREE
YEARS
Chichefter v.
Bickerkaff,
2 Vein. 295.
Trin. 1693.
:
EQUITABLE JURISDICTION IN DECREEING
i
[* 103. ] * YEARS after the marriage, was to be invefted in lands,
and fettled on the iffue of the marriage, remainder to
A.'s right heirs. A. died, and then 3. died, both within
a year after the marriage, and without iffue. A. had
made a will and devifed the refidue of his perfonal
eftate, after debts paid to his fifter, making his heir at
law his executor. And, on a bill filed by the heir at
law to have the 1500l. paid him, it being to be confi-
dered and looked upon in equity as land, and therefore
belonging to him as heir at law to his brother, the
court decreed, that the money, though once bound by
the articles, yet, when the wife died without iffue be-
came free again, and was under the power and diípo-
fition of A. (as the land would likewife have been in
cafe a purchaſe had been made pursuant to the articles)
and therefore would have been affets to a creditor, and
have gone to the executor or adminiftrator of A. and
the cafe was, much ftronger where there was a refiduary
legatee. And the bill was difmiffed.
Vide contra,
Kettleby v.
Atwood, Lancy
v. Fairchild,
Scudamore v.
Scudamore, all
of which are
cafes where
there was no
But, a remarkable circumftance in this cafe, and
what diftinguishes it from all others which have as yet
truffee, Supra. occurred is, that the wife died within three years after
[* 104. ] the marriage, during which period the purchaſe was
to have been made; fo that the time was not come
within which the money was to be laid out, and till
then it continued money; and both Lord Talbot and
Sir Joseph Jekyl, in fpeaking of this cafe in that of
Letchmere and Lord Carlife, in which all the cafes on
this head were collected and difcuffed, agreed in opi-
Sed v. Brown's nion, that the judgment in this cafe could not be main.
Ch. Ca. 238; tained in oppofition to fo many decrees the other way,
unleſs upon the foundation of this diftinction; or under
firmed and ap an idea that the court, in that cafe, had fome evidence
proved by Lord
to induce them to believe, that the huſband looked upon
Thurlow.
the money as perſonal eſtate.
the doctrine of
this cafe con-
Vide Holt v.
2,22,223.
2 Vern. 322.
It is neceffary here to obſerve that, in theſe cafes of
Holt, 3P. Will. final limitations under articles, it is immaterial whe-
ther the claimants under them be purchaſers for a va-
luable confideration or not; the foundation of their
title not being in refpect of the articles, as being
parties within the meaning of them, but as heirs (by de-
fcent) of lands, the remainder in fee in which were
vefted in their anceflors, and which in courfe of de-
ſcent fell upon them.
And this rule of equity, as to money articled
to
་
EXECUTORY CONTRACTS, &c.
*to be turned into land, is recognized and admitted
in courts of law; for which reafon where money, by
marriage agreement, is articled to be invested in land,
that money is held, at law, not to be aflets for payment
of debts.
[* 105.]
Vide 3 P. Will.
217. Lawrence
Beverleigh
C. cited
Thus, in debt upon obligation againſt B. as an exe-
cutor and plene adminiftravit pleaded, on a ſpecial ver-
dict, the jury found a leafe for years to truftees to raiſe 2 Keb. 481.
roool. and articles of marriage, whereby a daughter Mich. 1672. S.
was to have 1000l. to remain in trustees hands for a 2 Vern. 35.
year, unless the husband purchaſed, &c. and, if he
did purchaſe, then the father-in-law covenanted to pay
the fum of 1000l. to the huſband, his executors, ad-
miniſtrators, and affigns, and to pay intereft until the
purchaſe. They find that the land was not purchaſed,
that the huſband died, and that the wife received 300l.
due for intereft after the death of the husband. And
hereupon it was contended on behalf of the plaintiff,
that this was aflets; for, though the wife in equity was
to have the benefit of the land, yet, at law, till the
fund was changed, it was affets, as an obligation to
the huſband. The receipt of money, it was faid,
followed the fecurity, the money coming in lieu of [*106.]
the debt which was here due to the husband: But
the court was clearly of a contrary opinion; for this
was no affets, the original money not being, in law,
due to the husband or wife; and the covenant on the
articles did not alter the former truft, nor did it take
notice how the intereft fhould be paid; nor was there
any contract to pay intereft after the death of the
huſband, but it was the refult of natural juftice, that
he, in whofe hand the money was, fhould pay intereſt
to him to whom it was due. And judgment was given
for the defendant.
And in the caſe of Whitwick and Fermin, wherein Whitwick v.
money was by a marriage agreeinent to be laid out in Jermin. Vern.
land, the court of Chancery would not let that money, Vern. 58.
as perſonal affets, be liable to other debts.
This principle, that money to be invefted in land
fhall be confidered as land, has been, in the application
of it, purſued through all the variety of legal confequen-
ces which naturally flow from it. It has, therefore,
been decided that there may be a tenancy by the curte-
fy of it.
Thus,
471. cited 2
EQUITABLE JURISDICTION IN DECREE ING
Bindon, 2 Vern.
536. Hill. 1705.
!
[* 107. ] * Thus, where one devifed 300l. to her daughter to
Sweetapple v. be laid out by her executrix in lands, to be fettled to
the only use of her and her children, c. and the
daughter married, had iffue, and died, living her hufe
band, and before the money was laid out in land; it
was held, that, as, if it had been an immediate deviſe
of land, the daughter would have been, by the words
in the will, tenant in tail, and the husband, confe-
quently, tenant by the courtely; fo, the money being
to be confidered as lands, the hufband fhould have the
intereſt or proceeds thereof for his life, as tenant by the
curtefy.
et vide P.
Will. 176:
So it was held by Lord Hardwicke, in the cafe of
Cunningham v
Moody, fupra Cunningham and Moody, that, as the eldest daughter,
by the first wife, would have been tenant in tail of the
lands to be purchafed with the 500% there fettled to
be laid out in lands, fhe fhould have the fame intereft.
in the money: The confequence of which was, that
the huſband fürviving was entitled to be tenant by the
curtely thereof.
Ibid.
?
*
1
And, in the fame cafe, it was questioned, whether
the fifter of the half blood would be entitled to the
[* 108. ] reverfion in fue of the money after the death of te-
nant by the curtefy, not as claiming from her fifter; for
in that right fhe could not have it, becaufe, being but
of half blood to her, he could not be her heir; but, as
claiming it from her father by defcent, who by the fame
fettlement took an eftate for life in the money, with a
remainder in fee to him, his heirs and affigns for ever,
which, according to the ordinary rules, vefted in him,
and, then, whoever took afterwards must take through
him: Becauſe a perfon, claiming by defcent after an
eſtate tail, muſt make himſelf heir to the first pur-
chafer if it were a remainder, or to the donor if a re-
verfion, and not an intermediate perfon to whom it de-
fcended, notwithſtanding that perfon might have done
what he would with it, as the fifter, being tenant in tail,
might have done here. And it was held by Lord Hard-
wicke, that the reverfion in fee, fo vefted in the father,
defcended to the fifter of the half blood; for, when not
clothed with poffeffion, it followed the rule of poffeffio fratris,
although it was not exactly the fame cafe. And his lordship
faid, the cafe of Kellow and Rowden came up to this; for it
was there held to be fufficient for a claimant, in fuch caſe, to
make himſelf heir to the perfon in whom the reverfion
first vefted, without mentioning the intermediate per-
3 Mod. Ca.
126.
fons
EXECUTORY CONTRACTS, &c. [ # 109. ]
:
fons who never had the actual poffeffion of the fee,
but barely the reverfion, although they might have
charged, conveyed, or aliened it; And it was de-
creed, that the daughter of the half blood was enti-
tled to the money after the death of the tenant by the
curteſy.
-
And money, fo predicamented, will pafs in a will,
under general words, as part of the teftator's real
eftate.
Will. 172.
Thus, where money in truftees hands was bound by Vide Lingen v.
articles, whereby it was agreed to be turned into land, Sowray, I P.
and fettled on the iffue of a marriage, remainder to Mich. 1711.
the right heirs of the husband; and he, there being no S. C. 1 Eq. Ca.
iffue, devifed certain lands to his wife, and the rest of Abr. 175, Pre.
Ch.400.
his real eſtate in the county and city of York and elfe-
where in Great Britain to another perfon, and gave his
perfonal eftate, and all his fecurities for monies to his
wife, whom he made executrix: It was refolved, that
the articles having in equity changed the nature of the
money, and turned it as it were into land, it fhould
be confidered as real eftate, and pafs under the defcripti-
on of lands elsewhere in England, and not as part of the
perfonal eſtate.
1745.
So, where the remainder-man in fee of 68col. [110. ]
vested in truſtees, and bound by marriage articles to Guidot v. Gui
be laid out in the purchaſe of lands in Great Britain, dot, 3 Atk.
or of fome church, college, or other renewable leafe, 254. Trin.
by his will deviſed all his freehold, leafehold, and copy-
hold lands lying in Iflington, Elsfield in Hampſhire, or
elfewhere to A. and, after her death to B. and his heirs;
and, as to his perfonal eftate of what nature and kind
foever, he gave the fame to C. paying his debts and le-
gacies, and made C. executor. C. infifted, that the
6800l. ought to be taken as part of the teftator's pur-
fonal eftate, and as fuch paſs to him as part of the refi-
duum thus bequeathed by the teftator's will. Sed per
curiam, the articles fay it fhall be laid out in the pur-
chaſe of lands of inheritance, or in church and leafe-
hold eftates. Then the court must take it to be the one
or the other of thefe, and, during the life of the huf-
band and wife, if laid out, it must have been in one or
the other of them. No fort of election was made by
the hufband. Then, at the time of the will and of his
death, it ftood in equity as it did in the articles, either
to be laid out in freehold or leafehold, and, there-
fore the court would call it the one or the other of
thofe
' EQUITABLE JURISDICTION IN DECREEING
66
[* 111.] * thoſe eftates, according to the rule in equity, that what
is agreed to be done must be confidered as done. If it
had not been for the locality, viz. eftates in Middlefex
and Hampſhire, no doubt could have arifen; but there
follows, or elsewhere," which is the most compre-
henſive word he could have ufed. It had been faid,
that the lands did not lye any where, for they were not
yet purchafed when people made fuch defcriptions as
the teftator had done here, they intended to paſs every
thing they had in the world. Now the money was
fomewhere. It was, by the tranfmutation of the court,
changed into land. Money was in England like bona
rotabilia in the ecclefiaftical court, which must be either,
in the dioceſe of the bifhop where the perfon dies, or,
in the dioceſe of the metropolitan, if he was poffeffed
of monies in different places. So here, it was either in
money or on a mortgage, and, therefore, the word "elfe-
where" certainly took it in. Then the teftator muit
have confidered it as laid out in either one or the other.
If there had been only a general devife of his lands, this
money would certainly have paffed.
But, although money fo circumftanced be as land to
Brown's Chan.
Rep. 236. many purpoſes, yet, it is not ftrictly fo* within the
[112. ] ftatute of wills; for it will pafs by a will unattefted by
witneffes. The reaſon of this feems to be, that, when
the owner gives it by a will not attefted purſuant to
the ftatute, without any thing further faid, he thereby
fhews his intention that it ſhould be confidered as
money, and not as land; in either of which lights
it may be viewed by him, if it be abfolutely vefted in
Sed quære, if
exprefsly de-
vifed and limit-
ed as land.
nant in tail,
vide fupra.
him.
And although, prima facie, fuch money is, in equi-
ty, confidered as land, and that idea is there followed.
Contra of te- up in all its confequences, fo as to give it all the pro-
perties and qualities of a real eſtate, yet, a tenant in fee
thereof may have it retained as money at his election;
becauſe, being abfolute owner thereof, he might, if
it were actually made land, turn it into money again
immediately by fale; and a court of equity will not do
fo uſeleſs an act as that of compelling the owner to
invest it in land, when he has the power of turning it
Warwick, 2 P. the next inftant into money again. But in order to
make this equitable fund to be confidered as money
again, the owner muft do fomething to fhew that he has
made that election.
Edward v.
Countess of
Will. 179.
a Ferrers v.
Ferrers, 1 Ch.
I
Rp. 17. 1629.
ว
Thus, where a remainder-man in fee of 4000% in
甫
​the
!
EXECUTORY CONTRACTS, &c.
F
* the hands of his father-in-law, being his wife's por- [* 113.]
tion, and which was agreed to be laid out in lands
(accounting the 4000/ and intereft, as part of his per….
fonal eftate, fhe being dead, and no iffue living) de-
clared, that it ſhould go to his executors to pay his
debts and legacies, and died, leaving F. his executor:
It was determined by the court of Chancery and judges,
that, as if the land had been purchaſed, yet, the wife
being dead, and there being no iflue living, the huf-
band might have conveyed away the fame from the
heir at law, notwithstanding the agreement; fo 4000% Crofs v. Ad-
being to be paid by the bond to the fon, his executors, denbroke,Hill-
or adminiftrators, the fame in law and equity belonged 1719. Fulham
to his executors. And the money was decreed to the v. Jones, Mich.
defendant, as the law had appointed, with intereft. termined by
↳
·
1720, both de
b So, if the teftator devife ; under the defcription of Lord Parker,
So much money agreed to be laid out in land; this will be vide 3 P. Will.
fufficient to make it pafs as perfonal estate, and by a will
not attefted by three witnefles.
*
221, note C.
L
* 114. ]
And, it being merely a matter of election in the 3 Atk. 256.
remainder-man in fee, in what light fuch a fund ſhail
be confidered, the only object of enquiry is, what
was his intent, which, being a matter of fact, lies in
parol proof, and may be deduced from any act of the
party, entitled to make the election, tending to evince
his intent either way.
1
172, 176.
Thus, in the before-mentioned cafe of Lingen and Lingen v. Sou-
Sowray, it was held that, (the remainder-man in fee ray, P. Will
having called in a part of the money laid out upon ſecu-
rities, and agreed to be invefted in lands to be ſettled
on the iffue of the marriage, remainder to himſelf in
fee, and put the fame out upon other fecurities menti-
oned to be in truft for himſelf, his executors, and admi-
niftrators) fo much of the original fum as was fubfifting
on the ſecurities upon which it was originally placed,
or, on any other fecurities, where no new trufts had
been declared, ought to be confidered as real eſtate.
But, as to fo much of it as had been called in by the
remainder-man in fee, and afterwards placed out on
fecurities on a different truft, that ſhould be taken to be
perſonal eſtate; for, there being no iffue of the marri-
age, it was in the power of the huſband to alter and dif-
poſe of it as againſt the heir at law, though not againſt
his wife; and the placing it out upon different trufts was
an
1
EQUITABLE JURISDICTION IN DECREEING
Grade and
* 115. ] * an alteration of the nature of it, fince the teftator's
Chaplinv. Hor
per, P. Will.
483. Mich,
771&
Bowes y. Lord
Shrewſbury,
declaring the trust to his executors, feemed tantamount
to his having declared, that it fhould not go to his heir,
So, in the before-mentioned cafe of "Chaplin and
Horner, where the tenant in fee of the 2000l. there
covenanted to be fettled, having then a daughter, had
received 1350%, part thereof, and laid it out on a pur-
chafe for his life. On a bill, brought by the daughter
after his death as heir to her father, to have the cove-
nant in the marriage fettlement performed in fpecie,
it was infifted, on the part of the perfonal reprefenta-
tive, and held by the Mafter of the Rolls, that the
payment of the 1350l. to the father, who would have
had an abfolute power over the land, if purchaſed
and fettled, was a good payment; and that the money
ought not to be refunded by his adminiſtrator, in or-
der to be invefted in land for the benefit of daughter
and heir.
*
And, where 12,000l. was articled on a marriage
to be laid out in land, and, fubfequent to the articles,
5 Bro. Ca. Par. the ftatute of the 11th and 12th of William the Third,
269.
difabling perfons making profeffion of the Popiſh reli-
[* 116.] gion from purchafing lands was paffed (it being ad-
mitted in the caufe, that, at the time of the articles
being entered into, the parties were Roman Catholics,
and fo continued to the time of their deceaſe) the
lords commiffioners of the great ſeal, on a cauſe before
them, were of opinion, that the 12,000l. ought to
be confidered as money and not as land, and decreed
accordingly; and this decree was affirmed on appeal
to the houſe of Lords: One ground of which decifion.
was, that it was not neceffary to fhew any exprefs de-
claration of the party to the agreement, to whom the
remainder in fee of the land to be purchafed was
limited, that the 12,000l. fhould be confidered as
money and not as land, the legiflature having in effect
enacted, that it fhould fo remain and be confidered,
and ſhould not be invefted in, or confidered as land."
But if it had been neceflary to fhew any fuch confent
or intention in the remainder-man in fee, in the eye.
of the law, his confent, as well as that of all other
fubjects, was fuppofed and confidered as given to every
act of parliament; and, therefore, he, by paffing this
act, confented in the most binding manner, that the
12,000/ fhould not be laid out in land, but fhould re-
main in money.
The
EXECUTORY CONTRACTS, &c.
*The remainder-man in fee, entitled to a fund fo [* 117. ]
circumftanced, may make his election, as well whilſt
the preceding particular eftates are in effe, as after-
wards, to have it confidered as money or land.
Ac- Supra.
cordingly it was held, in the cafe of Lingen and Sow-
ray, that the hufband's taking fresh fecurities as to
a part of the monies, which fecurities were mentioned to
be to trufts different from thofe in the articles, fhewed
his election to alter the nature of the fund, and was
valid for that purpofe as againft the heir at law, though
not against his wife.
And, in thefe cafes, even a parol declaration or Per Lord Mace
direction from the remainder-man in fee will be re- clesfield, 2 P..
Will. 174.
garded; for thefe cafes do not fall within the purview
of the ftatute of Frauds with relation to declarations of
truſt Becauſe the truft of the money is declared by
the articles, the declaration is only in which fhape the
owner of the truft fund confiders it. Prima facie,
equity prefumes it land; but that equity may be rebut-
ted, by a parol declaration of the owner that he confi-
ders it money. He may elect, being abfolute owner,
which it fhall be, it being privileged in equity to be
taken as land or money at his option.
* And very flight circumftances are fufficient to [* 118. ]
thew an intention in the owner to have, fuch a fund
confidered as a perfonal eſtate. As if a man entitled
to money fo circumftanced, and having the fame in
his own hands, but on fecurities in other names, trans-
fers them into his own; for his fo doing furniſhes a
ftrong ground to prefume, that he means to take pof-
feffion of thofe fecurities in the fhape in which they
are at the time of the transfer; and, in this respect,
the cafe of fecurities fo credited in the hands of a man's
felf, is diftinguifhable from the cafe of fuch fecurities
in the hands of trustees; for, in the latter cafe, a
transfer from one truftce to another, without an alter-
ation of the uſes, it is apprehended, would not furniſh
a ground to prefume an intent to confider the fund other
than as it exiſts in equity, namely, as land.
Bro. Ch. Rep.
The cafe of Pultney and the Earl of Darlington, Pultney v. Earl
was decided on this ground. In that cafe 23,4881. of Darlington,
was bound by will to be laid out in the purchaſe of land,
to be fettled on W. P. the elder, for life, remainder
to his firft and other fons in tail male, remainder to
H. P. for life, remainder to his firft and other fons
in
22130
་
EQUITABLE JURISDICTION IN DECREEING.
}
[* 119.] * in tail, remainder to D. P. in like manner, remain-
der to W. P. the elder, father of W. P. in fee. D. P.
died without iffue male. W. P the elder, changed
all the fecurities in which the money was invefted into
his own name, and afterwards by his will, without
taking notice thereof, gave his lands and his perfonal
eftate to H. P. in fee, and alfo died without iffue male.
Whereby H. P. became entitled to an eftate tail, with
a remainder in fee in this truft money. H. P. after-
wards made his will, and, after difpofing of fome par-
ticular eftates in Middlefex, gave all his other eftates
in Middlefex, and his eftates in Somerset, Montgomery,
Salop, and York (except the reverfion of Lord B.'s
eftates) ſubject to a trust term to F. P. his heir at law
for life, remainder to her firft and other fons, &r. and
gave all his money, fecurities for money, goods,
chattels, and perfonal eſtate, not before difpofed of,
to his executors, in truft, after payment of his debts,
to lay out the rest in the purchaſe of lands, to be
fettled as therein mentioned, the ultimate remainder
in fee to F. P. and, upon his death-bed, gave F. P.
his heir at law, 2000/. in bank bills. On a bill filed
by F. P. as heir at law to H. P. to have his. truft mo-
ney laid out in land and conveyed to her in fee, the
[* 120. ] * caufe was heard before Lord Chancellor Bathurst,
Lord Chief Juftice De Grey, and Mr. Baron Eyre,
who difmifled the bill, and, on re-hearing before Lord
Thurlow, that decree was affirmed.
•
The principal argument in behalf of F. P, was, that
H. P. had died inteftate as to this property, and that,
not having been in his contemplation, it muſt deſcend
upon her as heir at law. But it was contended on the
other fide, and held by the court: Firft, That cir-
cumitances of demeanor in the perfon entitled to the
remainder in fee, though flight, were fufficient, in
cafes like this, to decide the fund to be money again
and not land. Receiving it from trustees would un-
doubtedly be ſufficient. Then H. P. did receive this
money, and had it in his hands. Secondly, That
H. P. certainly did not mean to die inteftate as to any
thing. Then he had diſpoſed of that part of his for-
tune that was actually land by local deſcription, that
part then that was not actually land, muit. have been
meant to be compromifed as perfonal eftate. Thirdly,
What rendered this more certain was, the circum
ftance of his giving F. P. 200cl as it was improbable
1
he
EXECUTORY CONTRACTS, &c.
1
·
!
1
he could have any idea at that time that he would { * 121. ]
become immediately entitled to 23,000l.; for he could
not think that, in that cafe, fhe would want an imme-
diate fupply.
1
But it is obfervable, upon comparing the circum- Supra.
ftances of the preceding cafe with thofe that occurred
in the cafes of Lingen and Sowray, and Guidot and
Guidot, and applying the principle that governed thoſe
cafes to the cafe laft-mentioned, that the circumſtances
of the funds having been taken in, and of the gift of
2000l. to the heir at law, were extremely material;
for, otherwife, it might have been contended with
fome confidence of fuccefs, that, as the truft money
was inveſted in fecurities in Middlefex, and as H. P.
clearly meant not to die inteftate as to any part of his
property, the truſt fund ought to paſs as land in Middle-
fex, and not as perfonal property; for, in the cafes
of Lingen and Sowray, and Guidot and Guidot, it was
held in fimilar circumftances, that fuch a fund would
pafs, by a devife, under the general defcription of
"lands elſewhere," coming after particular lands 'de-
fcribed locally. Now, it feems a neceffary confe-
quence of the principle which fupports that conclufion
as to "lands elsewhere," after a local defcription of [ 122. ]
particular lands, that, under a local defcription which
embraces the local fituation of the money, it ſhall
paſs as land there locally fituated. So that either the
doctrine of theſe cafes, founded upon the maxim of
equity, approved and fanctioned ever fince that branch
of our law has been formed into a ſyſtem, "that money
to be laid out in land fhall be confidered as land," and
confequently treated as fuch in all relative fituations,
muſt be fubverted and rejected, as decided againſt
law; or money thus predicamented muſt be ftill con-
fidered as land, whether it be actually in the hands of
the remainder-man in fee thereof (if he acquire it
without any act done by him merely in its legal.courfe
of deſcent) or of a truftee, until fome declarations made
or act done from whence a contrary intent may be
prefumed to be entertained by the owner, who has
a right to give to it either the one or the other cha-
racter.
And if all parties, entitled to the beneficial intereſt
in money directed to be invested in land, agree to
take it as money, a court of equity will permit them to
take it in its then ſtate.
Thus
*
2
"
"
EQUITABLE JURISDICTION IN DECREEING
117.
[#123.]
*Thus where the hufband, by articles previous to
Badger v. Bad. his marriage, covenanted to purchaſe lands of 80%
ger, Mofely
a year value, in truft for the iffue of that hiarriage,
as tenants in tail in common, remainder in fee to his
own right heirs; and on a bill filed for that purpoſe,
a decree was made, that the huſband fhould perform
the articles; the hufband died, and the younger chil-
dren joined in a petition with the eldeft fon, to have
the money paid to them and not inveſted in a purchaſe,
and an order was made accordingly.
Oldham v.
Hughes,
2 Atk. 452.
[* 124. ]
Oldham v.
Hughes,
2 Atk. 452.
Cunningham
But where there was a provifo in a fubfequent
agreement relative to money entitled in equity to the
character of land, upon this contingency, that, if the
tenant for life thereof died before the money was in-
veſted in land, then it should be divided and go a-
mong the feveral claimants thereof, their executors
and adminiftrators; it was held by Lord Hardwicke,
on a queſtion refpecting it which arofe before that
event, that, as that contingency had not happened,
and the tenant for life was then living, the original
truft was ſtill fubfifting for the money to be confidered
as realized.
* If the perfon entitled to the remainder in fee of
a fund fo circumftanced, be under any incapacity of
affecting his real eſtate, he cannot, by any act, alter
the nature of fuch money realized. Therefore, if it
belong to a feme covert, being confidered as a real
eftate, ſhe cannot alter the nature of it barely by a
Contract or deed; for, if it were actually land, to
alter the courfe of defcent a fine must be levied, a
March, i Vez. feme covert being under difability to paſs her real
eftates by any other affurance.
v. Moody,
1 Veż. 176.
Et vide Pea-
cock and
190.
So, if the owner be an infant, no change can
be effected as to the character of ſuch fund, by
any act or declaration done or made before he comes
of age.
Seeley v. Jago, Thus, where one deviſed that 1000l. fhould be
* P. Will. 389. laid out in a purchaſe of lands in fee, to be ſettled
upon A. B. and C. and their heirs, equally to be divided.
A. died leaving the infant heir, and B. and C. toge-
ther with the infant heir, brought a bill for this 1000l.
Et, per curiam, as to the fhare of the infant, that
must be brought before the mafter and put out for the
benefit of the infant, who, by reaſon of his infancy,
is incapable of making an election.
But,
A
EXECUTORY CONTRACTS, &c.
Oldham v.
176.
*But, in the cafe of a feme covert, the money [*125. I
may be got at without laying it out in land, by her Hughes,
coming into the court of Chancery and confenting to 2 Atk. 452.
take it as perfonal eftate: Becaufe, upon her being Et vide i Vez,
prefent in court and examined, as a feme covert is
upon a fine, as to fuch confent, the money articled to
be laid out in land will be bound, in equity, as much
as the land would be by a fine at law; and fhe may
thereby difpofe of it to her huſband, or any body elfe.
A devife of an equivalent intereft of the fame na-
ture as is contracted by an agreement, or articled, to
be given or ſettled, may, in fome cafes, be taken as
a performance thereof. But as every devife, prima
facie, imports a bounty, it is incumbent on the parties,
claiming to be diſcharged by a devife from the articles
or agreement, to fhew that it was fuch teftator's) in-
tention, when he made his will, thereby to perform
the articles or agreement on his part; and fuch inten-
tion must appear either from the exprefs words of the
will, or the clear and manifeft intention of the teftator
evident upon the face of it, or be extracted out of it
by neceffary implication. Therefore, in order to
make a devife, or bequest a performance * of a prior [* 126. }
contract, it must be ejufdem generis, and not land for
money, or money for land; or muft, at leaft, be of
fuch certain and known value or eftimation, and fo
far of the fame nature as the thing to be fatisfied there-
with, as to appear indifputably to be equivalent or
fuperior, not only in grofs value, but in annual income
to the thing to be performed. The following cafes
will illuftrate thefe propofitions.
If lands, of precifely the value covenanted on
marriage articles to be purchaſed by the huſband, be
by him fuffered to defcend' in fee, they will be con-
fidered to be intended as a performance of the co-
venant.
Thus, where W. upon his marriage, covenanted Wilcox v. Wil-
to purchaſe lands of the value of 200l. per annum, and cox, 2/Vern.
to fettle them upon himfelf for life, remainder to his 558. Mofeley
167, 168. Ec
wife for her jointure, remainder to the iffue of the vide Blandy
marriage in tail. And W. (who was a freeman of v. Widmore,
London) died inteftate, having purchaſed lands of 2001. 2 Vern. 709.
Abr. 341. Et
per annum, but not having made a fettlement thereof, vide Mafcal v.
permitted them to defcend upon his eldeft fon; this Mafcal, 1 Vez.
was held to be a performance of the covenant, for the 323. where the
VOL. II.
E
covenantor de-
value vifed an intereſt
EQUITABLE JURISDICTION IN DECREENG
I
[127] value of the lands correſponding exactly with that
fquaring with of thofe covenanted to be purchaſed, plainly fhewed
that he had
agreed to give; that the lands were bought with an intention to fatisfy
and the devifee the covenant.
held to an elec-
tion; not that
a So if money be fubjected to a truft, and laid out
one was a fatif- upon fecurities; and tenant for life of it, under the
faction for the limitations, call in a part thereof with the conſent of
other, but as a the trustees, and re-inveft it in his own name without
completion of
the act, the
the interpofition of truſtees, and then die, leaving real
agreement be- eftates, of which he was abfolute owner, to defcend
ing a corrobo- to his heir, who would have been entitled to the mo-
ney or land purchaſed therewith as tenant in tail; fuch
eftates defcended will be confidered as a compenfation
for, or a performance of the truft, except as to fo
much of the money as ftill remains on the old fecu-
rity, and in the names of the truſtees; for, the pre-
fumption of compenfation or performance, will not
ration of the
will.
Vide Davys
v. Howard, et
ux, 5 Bro. Ca.
Par. 552.
3 P. Will.
"
225. 1 Vez,
541.
[ * 128. ]
Vide1 Bro.
Ca. Par. 351.
1 Vez. 225.
Vide Bro. Ca.
Par. 551.
reach that.
But where the lands, covenanted to be bought,
are exprefsly ftipulated to be lands of inheritance and
in fee fimple, the purchaſe of copyholds, leaſeholds,
eftates for lives, or reverfions expectant on eftates for
lives, will not be confidered as a part performance of
* fuch a covenant; b Becauſe copyholds are ſubject to a
different kind of tenure, and terms are not deſcendable
to the heir, nor can an immediate profit be had from
reverfions, eſpecially if they do not fall within the co-
venantor's own life.
So money, though of much greater value than land
2 Vern. 298. agreed to be purchafed, given to the claimant under
an agreement, cannot be confidered as coming in lieu
of the land; becauſe money and land being of a quite
different nature, the gift of the one can never be
taken as a performance of a prior contract to fettle the
other.
Letchmere v.
Lord Carlile,
, P. Will.
225. Ca. 'T.
Talb. 80.
We have obferved that, in cafes of implied perform-
ance, the intention ought to govern, and that there
muft, in all inftances of this kind, be fome pofitive
evidence, or at leaft, fome circumftance, furniſhing
a ftrong and neceffary prefumption, that whatever is
taken to be a performance, was clearly and manifeftly
intended as fuch by the perfon effecting it. Upon
that ground it has been held, where one, bound by a
covenant made on his marriage, to lay out 30,0col.' in
the purchaſe of lands, was feifed of land in fee at that
time
EXECUTORY CONTRACTS, &C.
time of the value of 300l. per annum, and afterwards [* 129. ]
died inteftate without itfue, and without having made
a fettlement of any eftate; that the covenant did not
relate to the lands which were the covenantor's at the
time of entering into the articles, the words being fu-
P
ture, viz. that he would purchaſe. And then, as the Vide Took v.
intention of the party did not plainly appear, that his Haftings, infra.
eftate, which he permitted to defcend, and which did
+
not amount to the value of what he articled to pur-
chafe, fhould be for or towards a performance, it
fhould not be fo confidered: Befides, it was faid that
fuch inference would be to difinherit an heir by an
implication not neceffary, contrary to the known max-
im of law.
Ca. T. Talb.
But lands, purchaſed at different times, but ſub-
fequent to fuch articles entered into or covenant made,
will be confidered (although not purchaſed in truſtees
names, nor declared to be to the trufts of the cove-
nant) as bound thereby; not in the light of a fatisfac-
tion, but, under the notion of being a part perform-
ance, founded upon a prefumed intent of the covenan-
tor, at the time of the purchaſe made, to purchaſe
purſuant to the covenant he was bound by, and, con-
* perform. w
fequently ought to
And, therefore, [* 130. ]
Lord Talbot, in the cafe of Letchmere and Lord Car-
life, held, that, as under the covenant then under 92, 93.
confideration, there was no obligation on the covenan-
tor, as to purchaſes of lands in fee fimple in poffeffion,
to lay out the whole fum at one time; and, as there
were lands in poffeffion of inheritance purchaſed,
which, though not purchaſed with the privity of the
truſtees, yet it was natural for the covenantor to fup-
poſe that the trustees would not diffent from thoſe
purchaſes, being entirely reaſonable (the deſign of
interpofing truſtees being not to prevent proper but
improper purchaſes) and as, though thefe lands were
not purchaſed within the time limited in the covenant,
yet nobody fuffered by it, and therefore that circum-
ftance could not vary the intent of the party in a court
of equity (which intent feemed to be, that, as foon
as the whole money was laid out, the lands fhould be
fettled together, and not to make half a ſcore fettle-
ments) it was reaſonable to fuppofe, in the prefent
cafe, that theſe purchaſes were intended to fatisfy the
covenant. And, as to theſe purchaſes, the decree of
Sir Joseph Jekyl, that they were not made in perform-
E 2
ance
·
1
EQUITABLE JURISDICTION IN DECREEING
[* 131.]ance of the covenant, and therefore could not be taken
as fuch, fo far as * concerned them, was varied by his
lordſhip on the re-hearing.
Smith v. Dea-
con, cited i
Vez. 540. in
March 26,
£756.
* Vez, 540.
[* 132.]
Tooke v. Haf-
tings, 2 Vern.
97.
Plowman v.
The fame principle of a prefumed intent, (as to
purchaſes made by the covenantor after an agreement
to convey and fettle houfes, lands, &c.) to carry the
agreement into execution, was recognized by Lord
Hardwicke, in the cafe of Smith and Deacon, and go-
verned the decifion of the court in that cafe. And the
point being re-agitated in the cafe of the Attorney
General and Whorwood was given up, as decided in
the two cafes before-mentioned: And it was admitted
by all parties to be then fettled, that if a perfon, oblig-
ed under articles to purchaſe, did purchaſe, though
not to the extent the articles required, fuch purchaſe
fhould go to make good the articles, fo far as it could
be applied.
But, as the ground, upon which fuch after-pur-
chafed lands are confidered as purchaſed in part per-
formance of the agreement, is the prefumed intention
that the party purchafed them with that view, in
confequence of which the covenant or agreement at-
taches upon theſe eftates as a lien on them in the hands
of the purchaſer and his heirs; that lien will not
follow them into the hands of fubfequent purchaſers
or mortgagees: Becaufe, whether the covenant or
agreement fhall attach upon them depends upon the
intention of the purchafer, and the prefumption that
a performance is by him intended ftands only till the
contrary is proved; therefore any act, fhewing he had
not a part performance in view, as a mortgage or fale
afterwards, will take away the preſumption..
But it ſeems, that the prefumed intent would be
a lien upon the lands againſt a devifee; for the court
faid, in the cafe of Tooke and Haftings, that if a man
covenanted or entered into a bond to fettle land of
fuch a value, or an annuity out of land of fuch a value,
and had no land at the time of the fettlement, but after-
wards purchafed land, that land fould be liable
against a voluntary devifee; and fuch devifee fhould be
reimburſed out of lands left to defcend to the heir, if
there were any fuch..
And fuch after purchaſe, it feems, will not be liable
to the debts of the purchafer.
Thus where, on the fon's marriage, the father
fettled
EXECUTORY CONTRACTS, &c.
•
Vern. 289,
•
fettled, and
fettled a leaſe for two years (held of the * Queen Dow- [* 133- ]
ager) on the fon for life, and then on the iffue of that Plowman, 2
marriage; the fon covenanted to renew the leafe from Sed note,
time to time, and to affign the renewed leaſe to truf- the leafe itfelf
tees to keep the fame on foot as long as the wife, or was fpecifically
any child of the marriage fhould live; and the fon then the re-
renewed the leafe in his own name, and made no newal is only
affignment thereof to trustees, and died greatly indebted a continuation
without affets: It was held per curiam, that the leaſe
was bound by the marriage articles, and fhould not be
affets, nor liable to debts.
If one covenant to fettle lands of a certain value on
his heir, not ſpecifying any lands in particular, and
then die, and lands of greater value defcend upon the
heir, they ſhall be bound by the covenant.
of it.
Thus, where B. on the marriage of his fon, cove- Roundell,et
nanted for himſelf, his executors and adminiftrators, to al, v. Breary,
fettle, n within one month after the marriage, lands 2 Vern. 482.
of the value of 150l. per annum to the ufe of the huf- Not to pur-
band, and firft and other fons, and for raifing portions chafe.
for daughters; but no lands in particular were men-
tioned in the articles. And B. afterwards died having
never made any fettlement, and his fon thereupon
entered upon the lands whereof his father * died feiſed [* 134. ]
as heir, and married a fecond wife, and fettled part
of theſe lands upon her and her iffue. It was objected,
on a bill filed to have 150l. per annum fettled purſuant
to the articles on the firft marriage, that, no lands in
particular being mentioned in the articles, there was
no lien upon any particular lands; and that therefore
the only remedy was against the affets of the covenantor,
and even that muſt be confined to his perfonal affets
and would not reach his real aflets; becauſe, the cove-
nant was only for him, his executors and adminiſtra-
tors, and not for him and his heirs; befides which it was
urged, that the ſecond wife was a purchaſer without no-
tice, and could not be affected by the articles: But the
Lord Keeper was of opinion, that, although no lands were
mentioned by the articles, yet, the covenant ſhould be a
lien upon the land whereof the father was, at the time of
entering into it, feifed, unleſs he had purchaſed or ſettled
other lands within the time limited by the articles.
But the ground of the preceding cafe feems rather to
have been the prefumed intent of the father, that the eſtate
defcending ſhould be, to the extent of the covenant, a
performance thereof, than that the covenant was a
fpecific
EQUITABLE JURISDICTION IN DECREEING
Dedire, P.
Will: 429.
Note, the dif-
tinction be
tween thefe
ance of cov e-
convert money
[* 135.] * ſpecific lien; and this obfervation feems warranted by
Freemoult v. the following cafe, the only diftinction between which
and the preceding cafe appears to be, that the deviſe in
the following cafe removed the poffibility of a prefump-
tion, that any part of the teftator's eftate, not ſpecifi-
cally bound, was intended by the covenant, to go in
cafes of a pre- performance of it. In the cafe I allude to there were
fumedperform-feveral demands of feveral natures affecting the eſtate
nants and of a teftator, he being indebted by bond and by fimple
agreements to contract, and having upon his marriage covenanted to
into lands, &c, fettle fpecific lands, and alfo land that ſhould be of the
which do not value of 60l. per annum upon his wife for her life: k His
ſtand upon the will charged all his eftate, real and perfonal, with the
ground of fatis-
faction; and payment of his debts. And it was held that, as to the
covenants as to ſpecific lands, the covenant was a lien upon them; but,
the precife va- as to the fettling lands of the value of 60l. a year, it did
tled in jointure not bind fpecifically any lands; wherefore, as touching
or the like: For, that, the wife muft come in only as a specialty credi-
as to them, a tor; and, in order to fettle the quantum of the demand,
money legacy the mafter must make an eſtimate of the value of the
ter amount wife's eftate for life, and the muft come in as a creditor
than the defici- by fpecialty to that amount.
lue of lands fet-
to a like or grea-
ency, will be
confidered as a
Montaguc v.
Sed vide
*
{ * 136. ]
A court of equity will decree the ſpecific execution
of an agreement, notwithſtanding the infertion therein..
fatisfaction, of a penalty in caſe of a non performance; for, though
vide Viſcount it was anciently held, where there was a bond to per-
Sir George
form any thing, that the obligor was obliged to the
Maxwell, Bro. alternative either to perform the thing or pay the mo-
Parl. Ca. 553. ney, and, therefore, that the obligation was difcharged
Broughton v. by paying the penalty; yet, it is not now taken as an
Etrington,ibid. agreement in the alternative, in which the obligor may
vol. 7. fol. 12. either pay the money or perform, but the penalty is
et Lee v. underſtood only as an enforcement of the agreement,
Bland v. Wid- and as giving a remedy at law for a certain fum, inſtead
of uncertain damages: And the party by providing his
Duffield v. remedy at law, does not take away his remedy in
Smith, 2 Vern. equity; for it would be hard, that a man's enlarging
258. The dit his fecurity at law fhould make him in a worfe condition
tinction ſeems in equity than he could otherwiſe have been; 1 nor can
whole is fatis- it be inferred, that the parties, by adding a bond to
fied, and where enforce the performance, intended to weaken the lien
legacy, or what they had under the agreement.
D'Aranda, and
more, cited
1 Vez. 521. et
to be where the
it is not. If a
is fuffered to
m Thus, where articles were executed for performance
defcend under of an agreement for purchaſe of an eſtate, with a pro-
the ſtatute of
1
diſtributions be lefs than what is due by covenant, it cannot operate as a fatifaction,
vide Kerman v. Kerman, Brown's Chan. Rep. 1786, fol. 95. Vide Bagg, v. Foster,
Ch. Ca. 188. S. C. 3 Chan. Rep. 50. m Howard v. Hopkins, 2 Atk. 371. et vide
Hopfon v. Trevor, Strange 533 et 2 Eq. Ca. Abr.
EXECUTORY CONTRACTS, &c.
:
the [*137.]
The 55. 3. S. C.
2 P. Will. 192.
who Nandike v.
As to
vifo therein, that, if either fide fhould break
agreement, he ſhould pay 100l. to the other.
vendor, meeting afterwards with a third perfon,
offered him two years purchaſe more than the vendee, Wilkes, 1 Eq.
immediately accepted of it. And one ground of argu- Ca. Abr. 393.
5 Gilb. Rep.
ment on behalf of the vendor againſt a ſpecific perform- Eq. 113-
ance was, that it was the intention of the parties,
that, upon payment of 100l. by either of them, the
agreement fhould be void. Sed per curiam.
the defence on the foundation of the ſum ftipulated,
the court cannot confider that as a ground to let off
either party when they pleaſe; it being no more than
the common cafe of a penalty, which might be inferted
by the vendee in order to be paid for his trouble of
viewing and meaſuring the eftate, taking plans, &c.
fuppofing the defendant fhould not be able to make
out a title.
But ftill, this depends upon the nature of the agree-
ment; for where the object of the agreement is da-
mages only, there the penalty fhall be the criterion
of the injury.
Curtis.
Thus, were D. executor of C. employed as a maſter Davis v.
of a fhip by the East India Company, covenanted with Ch. Ca. 226.
them, that he ſhould pay a certain mulet for
*
every cloth [ * 138. ]
carried &c. in the fhip; and C. took D. as his mate,
who made an agreement mutatis mutandis with D. and
gave a bond in the penalty of 50l. for due performance
on his part; and E. without D.'s knowledge, carried
fo many clothes as the mulet thereof came to 70%. which
the company deducted out of the mafter's wages: It
was held, on demurrer to a bill filed againſt the mate
for relief, that the executrix of the mafter could not
have relief againſt the mate beyond the 50l. fecured by
the bond,
If new matter come out refpecting an agreement,
againft which a decree has before been made in a cauſe
between other parties, the court will, notwithſtanding,
fupport the agreement, although it has before decreed
otherwife For the perfon, not party to the original
fuit, is not bound thereby, and then, without any
regard to a former decree, the court will judge upon
the cafe before them.
Natchbolt v.
Thus, where a leffee of a houſe affigned his term to
B. who covenanted, in the affignment, to indemnify Porter,
ths affignor againſt the covenants in the original leaſe; 2 Vern. 112.
C. bought
EQUITABLE JURISDICTION IN DECREEING
}
*
E* 139.] C. bought the reverfionary intereft of the leffor, and
then treated with B. for a furrender of the term; and
an affignment was made between them, and the key
delivered and accepted: But, afterwards, C. altering
his intention of living in the houſe, it ftood empty for
fome years, and then C. brought a bill againft A. the
original leffee to compel him to admit an attornment,
in order to his bringing his actions at law for the rent;
but B. was made no party to that fuit. A, in his de-
fence, infifted upon the agreement between B. and C.
for the furrendering of the leafe, and upon the delivery
of the key purſuant thereto. But he was overruled in
this at the hearing, and it was decreed, that he ſhould
go to a trial at law, and admit an attornment; but A.'s
attorney pleading that he never attorned, upon the
cauſe coming back into Chancery, it was decreed that
A. fhould pay the rent arrear. Then A. being dead
his executor filed a bill to be reimburſed againſt B. ac-
cording to his covenant upon the affignment, upon
which he could not recover at law, by reafon that C.
could not, at law, have recovered of A. for want of
an attornment. B. by anſwer fet forth,
B. by anſwer fet forth, the agreement
made with C. for furrendering his term, the delivery
[* 140. ] of the key, and C.'s acceptance of it, and therefore
infifted, that he ought not to be charged. And upon
the hearing of the caufe, the court was of opinion that
the agreement was well proved, and a good diſcharge,
and that B. was not liable to anſwer any rent after that
time; and the court faid, that though the court had
decreed otherwife againft A. yet B. being no party to
that ſuit was not bound thereby.
Vide Plunket
2
If any question of fact arifes on a bill for fpecific
v. Lord Kingf- execution of an agreement, a court of equity will direct
land, 4 Brown an iffue at law thereupon: As if it were contended,
Par. Ca. 567. where an agreement for making a leaſe was by parol,
that it was part of the agreement that a third perfon's
confent or approbation ſhould be had to make fuch leaſe
valid, and whether (fuppofing the obtaining fuch con-
fent or approbation was part of the agreement) it were
given or not; Or, as to whether another party (ſtipu-
lating after fuch conditional agreement as above-menti-
oned made) had notice of that conditional agreement;
and the reaſon is, that, in fuch cafes, whether the
agreement was conditional, whether the condition was
performed, whether there was any notice, or the
like, are queftions of fact which must be afcertained
by
EXECUTORY CONTRACTS, &c.
*by a jury, before the court can decree as to the princi- [* 141.]
pal queſtion.
If, on a bill for execution of articles, or of an agree-
ment in fpecie, it appears that the one party, againſt
whom the ſuit is preferred, infifted to have had clauſes,
uſual in agreements of the nature of that on which the
cauſe arifes, inferted, and that the other party refuſed
to infert them; the court will fend the articles, if they
relate to a purchaſe of land, to the mafter, to ſee if
there are the ufual covenants: Becauſe the court, hav-
ing a diſcretionary power, will not exercife it, unleſs
the agreement be proper, and agreeable to the nature
of the fubject contracted about. But, if the contract
be refpecting a perſonal thing, it is different; becauſe
fuch things being to be had at one place as well as ano-
ther, when the parties contracting for a purchaſe find
that the parties, contracted with, will not infert the
uſual covenants, they have no occafion to wait the event
of a Chancery fuit, but may go to another market to
fupply themſelves. As if the contract be for a purchaſe Burton v.
of timber growing, and the purchaſer had infifted to Lifter, et al,
have the ufual claufe inferted in the articles, relating 3 Atk. 383.
to the buyer's horfes being permitted to graze on the
* land where the timber ftands; and likewiſe for indem- [* 142. ]
nifying him in falling the timber, (that is, if it grow
in hedge rows, and one fide belong to a ſtranger, be-
cauſe they will be liable to trefpafs if it fall on the
ftranger's lands) and this be denied by the vendor; this
will not be a ground to refer the cauſe to a maſter, the
contract being perfonal, and the ſubject to be purchaſed
elſewhere.
As a beneficial bargain will be decreed in equity, ſo Vide 2 Vern.
likewife will one that happens to be a lofing bargain; for 398, 423.
the fame reaſons and principles apply to both caſes,
}
[ * 143. ]
* Df the equitable Jurifdi&ion in reliev-
ing again unreaſonable Contraŭs or
Agreements.
UPC
PON this head of enquiry it is obfervable, that
a court of equity will much more eaſily be pre-
valled upon to difmifs a bill which has for its object the
1pecific execution of an unreaſonable agreement, than
to fet afide an agreement, though it be not strictly
equitable, on a bill for that purpofe; for the latter is to
deprive the party, against whom it is preferred, of
that to which, by law, he has a right: And if a court
be prevailed upon to fet afide fuch an agreement, it will
be on refunding what has been bona fide paid, and mak-
Dashwood. Ca. ing allowances for improvements, &c.
Vide infra.
Bofanquet v.
7. Talbot 38.
[* 144. ]
Whitfield et
ux, v. Paytor,
et ux, Show.
Par. Ca, 20.
Vide infra,
Keene v.
Stukeley,
Subject to the foregoing general obfervation, I fhall
now confider the principles on which courts of equity
have exerciſed this branch of their jurifdiction.
* The better opinion feems to be, that the mere fact
of a bargain being unreaſonable, is not a ground to fet
it afide in equity, if the parties are of age, perfectly
acquainted with their refpective rights, each of them
aware of what is done, free from any deception, and
ſpeak what they reſpectively mean: For, contracts
are not to be fet afide, becauſe not fuch as the wifeft
people would make; but there must be fraud to make
void acts of this folemn and deliberate nature, if entered
into for a confideration.
Therefore where A. having an eftate of 1000l. per
annum, was a fuitor to M. daughter of B. who was
reputed very rich; B. upon propoſal of a marriage
made by A. agreed to give her 5000l. certain, but
infifted on having a jointure of 5000l. fo fettled, that
his daughter fhould have the inheritance thereof, if
et Vide Squire A. died without iffue. Thefe terms A. refuſed at firft
v.Baker, 5. Vin.
Abr. 549. P. C. to affent to, but afterwards agreed to accept of. There-
32. 2 Ed. Ca. upon a fettlement of a jointure of 500l. a year was
Abr. 58. Pl. 9. made, and a deed was likewife executed in the
nature of a mortgage of all A.'s eftate, for fecur-
ing the payment of 5000. to M. in cafe A. died
without iffue. A. died within a fortnight after the
marriage
EQUITABLE JURISDICTION, &c.
*marriage without iffue. Then M. preferred her bill to [145]
foreclofe the equity of redemption. It was objected, on
behalf of the heir at law of A. that he was a weak and
fickly man; that the agreement was in its own nature
unreaſonable, it being that M. ſhould have both portion
and jointure, whereas one was the confideration of the
other; and it was faid, that both ſhould be veſted in
the fame perfon, the portion returned, and the jointure
enjoyed, was very hard, and conftituted an agreement
that ought to be ſet aſide. But, upon the hearing, a de-
cree was made in favour of the agreement by the Mafter
of the Rolls. And his decree was affirined by the Lord
Keeper on re-hearing on an appeal.
Clarkſon v.
But, if there be any fraud in the tranfaction, then Vide infra,
unreaſonableneſs in the bargain, whether it be on the Hanway et al,
fide of the vendor or 'vendee, will be a good ground, 2 P. Will 203.
upon which a court of equity may be applied to, to fet Cole v.
it afide.
*
Gib-
bons, et al,
3 P. Will. 290.
infra.
And agreements that are not properly fraudulent, in
that fenfe of the term which imports deceit, will, ne-
vertheless, be relieved againft on the ground of ine-
quality, and impofed burden or hardship on one of
the parties to a contract; which is confidered as a [* 146. ]
diſtinct head of equity, being looked upon as an of-
fence against morality, and as unconfcientious. Upon
this principle, fuch courts will, in cafes where con-
tracts are unequal, as bearing hard upon one party
(though perhaps in themfelves, and abftractedly upon
general principles, equal; becauſe, as to outward
actions, the inequality to which both parties to a con-
tract have confented, where there has been no lying
nor concealment of any thing that ought to be dif
covered, is an inequality that paffes for equality) fet
them afide: As if a covenant be inferted in a mort-
gage that, if the intereft be not paid punctually at the
day, it fhall, from that time, and fo from time to
time, be turned into principal, and bear intereſt. This
covenant will be relieved against as fraudulent, becauſe et Mofely 247,
unjuft and oppreffive in an extreme degree.
Sir
Thomas
Meere's cafe,
cited Ca. T.
This Talbot 41
Lord Offulfton
v. Lord Yar-
And the rule of equity applies equally, although the mouth, 2 Salk.
mortgage be of an eftate in reverfion, and not in pof- 449.
feffion. For the mortgagee knows his fecurity to be
a reverfion, and he may bring a bill of forecloſure,
or,
if there be a bond, he may put it in fuit.
{
Thus
EQUITABLE JURISDICTION IN RELIEVING
!
{ * 147. ]
Broadway v.
Morecraft,
Mofeley 247.
Cole v.
*Thus where, in 1693, a reverfion was mortgaged,
and the mortgagor never paid the intereſt money; but
in 1711, the mortgagor and the mortgagee came to an
account of what was due for principal and intereft,
and a new mortgage was made for the whole, with a
covenant that, at the end of every year, if the intereſt
was not paid within three months after it became due,
it fhould bear intereft: It was held, by the Maſter of
the Rolls, that this was a void covenant, and the mort-
gagor might redeem on the common terms.
Again, Where A. made his will, and thereby gave
Gilborne, &c. a legacy payable to M. (a young man of about twenty-
3 P Will. 290. four years of age, who had led an extravagant life,
and had lain for fome time in Newgate) if he ſhould
furvive C. the teftator's wife, who was about fixty-
four years old, and was to have it in cafe fhe ſhould
furvive M. Afterwards D. entered into an agreement
with M. for the purchaſe of this contingent legacy,
and contracted to give him 100l. for it, to be paid by
51 per annum, at every Christmas; with a provifo, that
if M. fhould furvive C. then what ſhould remain due
of the col fhould be paid within a year after her
death; but if M. fhould die in the life-time of C. then
the 5l. per annum to continue until the 100/. fhould be
[* 148. ] paid to the executors, adminiftrators or affigns of M.
Lord Talbot, on a bill filed by D. on the death of C.
again M, to have the 500l. paid him, faid, that, had
the cafe turned upon M.'s affignment, he would have
fet it-afide; not on the ground of its being a bargain
with a young heir, which ſtood upon a different prin-
ciple, nor on the ground of fraud or ſurpriſe, for no-
thing of that kind appeared; but merely as being an
unreaſonable advantage made of a neceffitous man.
Bofanquett v.
Dashwood, Ca
Temp. Talb.
3B.
This being the rule of equity even in tranfactions
which, ftrictly fpeaking, may be conftrued as lawful;
the principle applies ftill more ftrongly where the co-
venant or agreement is against an exprefs law: As, if
it be against the ftatute of ufury.
Thus where A. in 1710, lent to B. and C. traders,
feveral funs upon bond, bearing 6. per cent. intereſt,
which was then lawful ufage; but A. taking advan-
tage of their neceffitous circumftances, compelled
them to pay at the rate of 10l. per cent: They ſub-
mitted to this impofition, entered into other agree-
ments
AGAINST UNREASONABLE CONTRACTS, &c.
1
ments for fecuring the fame, and continued paying [149. ]
10l. per cent. from the year 1710 to the year 1721.
Then B. and C. became bankrupts, A. died, and the
affignees fued A.'s executors upon this tranfa&ion: It
was decreed, at the Rolls, that the executors ſhould
account, and that legal intereft ſhould be computed
and allowed for what had really been lent, and that
what had been paid over and above legal intereft, fhould
be deducted out of the principal, and that the
affignees ſhould pay what ſhould be due on the account.
And this decree was, on appeal, affirmed by the
chancellor.
An agreement, infected with fraud upon the face of it,
will be void in law, as well as in equity.
pra.
The above-mentioned cafe of Willis and Baldwin, Willis v. Bakš-
in which an agreement between two futlers of militia, win, Doug.
and the contractor for forage by the ration, that the Rep. 450. Su-
latter might reftrain the rations paying and allowing
the futlers nine-pence half-penny by the ration for
every ration left, was held infufficient to fupport an
affumpfit as founded an fraud, is in inftance of this
fort.
In cafes of fraud, or impofed hardship on one Bofanquett v.
* party by another, it is no anſwer to the relief prayed, [* 150. ]
to fay, "that the party applying was particeps crimi- Dashwood, Ca,
nis" for it cannot be faid, in any cafe of oppreffion, 40, 41 .et fup.
Temp. Talbot
that the party oppreffed is particeps criminis; fince it is et Twifleton
that very hardship that he is obliged to fubmit to (it v. Griffith,
being impoſed on him by another, and not voluntarily
r P. Will. 310.
acceded to) that conftitutes the crime. Therefore a Ibid.
compliance with terms impofed that are illegal, as the
payment of money with ufurious intereft thereupon,
will not alter the relief in a court of equity; for the
money ought not to have been paid. Confequently:
the maxim, that "volenti non fit injuria," does not hold
in any cafes of fraudulent or hard bargains impoſed
upon one party, against which equity relieves. It is
only the corrupt confcience of the perfons which im-
pofed fuch bargains that is to be confidered; that
corruption alone entitles the party oppreffed thereby to
relief.
But where both parties are criminal in equal degree, Ibid. 41,
there the maxin of "volenti non fit injuria" applies:
As in the cafe of gamefters; for, if two perfons will
fit down and endeavour to ruin one another, and one
pays the money won, if, after payment, he cannot re-
cover
:
:
EQUITABLE JURISDICTION IN RELIEVING
[*151. ] cover it at law, a court of equity has nothing to do
but to ftand neuter: there being in that caſe no oppref-
fion on the one party, as there is in the inftance before-
mentioned.
Ibid. et vide
in note.
If fuch inequitable advantage be taken of a man's
Burney v. Pitt, neceffities, and the fecurities procured from him be
3 P. Will, 294 outstanding, fo that the party holding them is to be re-
deemed; a court of equity will decree, that, if the
party holding them has received more than was due
with legal intereft, the furplus fhall be refunded, and
the fecurities delivered up; which is agreeable to the
common direction in all cafes where fecurities are
fought to be redeemed; namely, "that if the party
has been overpaid, he ſhall refund." Thus it was de-
creed, in the before-mentioned cafe of Bofanquett and
Dashwood, that, if the teftator had received more than
was due with legal intereft, his executors fhould re-
Vide fupra. Ca. fund it, and deliver up the bond. For the chancellor
T. Talbot 38. faid, that the party fhould not keep money that he
had no right to merely because he had got it into his
hands.
[* 152. ]
Ibid.
y Wils. 230,
231.
2
Vez. 518.
Brown's Rep.
But if the tranfaction were at an end, and all * the
fecurities were delivered up, the equity might poffibly
be otherwife.
1
Inadequacy of price, abftracted from all other confi-
derations, feems of itſelf (upon revifion of the beſt au-
thorities) to furnifh no ground on which a court of
Chan. Ann. equity can ſet aſide, or rather relieve a party to a con-
1787, fol. 175. tract; the law of England having never fixed any cer-
Et Griffith v. tain proportion, that the price fhould bear to the thing
179 in note, et purchafed.
Spratley, ibid.
vide r Vez. 155.
et Wood v.
Fenwick, Prec.
Chan. 206.
Abr. 170. 2.
Nicols v.
;
But if the cauſe of the inequality of price be found-
ed in circumſtances, from whence a court of equity
may conclude, that the confent of the party to accept
S. C. 1 Eq. Ca. fuch price either was not free, or was conditional
being had under an impreffion that circumftances were
otherwife than they were reprefented to the party con-
fenting to fuch unequal terms; fuch a cafe, if the
party contracted with be acquainted and take advan-
tage thereof, will furnish adequate grounds for a court
to fet afide a contract fo circumftanced.
Gould, 2 Vez,
422,
Under the first of the diftinctions above alluded to,
viz
1
AGAINST UNREASONABLE CONTRACTS, &c.
a
viz. the one party not giving
* free confent; [* 153.]
thoſe contracts may be arranged, which are entered
into under the impulfe of diftrefs in the one party
known to the other party: And indeed, in fuch caſes,
the obſervation made on the operation of fear in one
of the parties to a contract applies; namely, that, al-
though the party may be faid freely to elect the hard
bargain offered in preference to his then ftate, and ſo
to contract an obligation; yet, the other party, who
takes advantage of his circumftances to force him to
enter intò ſuch obligation, acts frequently, and, there- Vide infra this
doctrine fur-
fore, wants the power of creating in himſelf a right, ther explained.
and thus the obligation fails for want of a correfpond-
ing right.
Meeres,
I
This was the true principle that governed the court Herpe v.
in the caſe of Herne v. Meers; where A. and B. (father Vern.' 465.
and fon) being indebted to C. by bond, C. fued them Brown's Chan,
thereupon, and was proceeding to outlawry, when Ca. 176 in
they returned, and C. got poffeffion of fome part of note.
their eftate. Then B. who had divers eftates, fold
them to C. for leſs than half their value.
confideration.
Afterwards
B. filed his bill for a difcovery of all the eftates of A.
and B. and of what money was due to C. on the fecuri-
ties. C. infifted, that he was a purchafer for a valuable * 154.7
*At the hearing, the plaintiff's counfel
relied upon the inadequacy of the price paid. And by
the decree the lord chancellor declared, that the bar-
gain made by C. with B. was not fairly obtained in re-
Spect to the circumstances B. was in, but ought in con-
fcience to be made void, the premifes purchafed by him
being more than double the value of the money paid
by him.
It is hardly neceffary to obferve, that the fact the
chancellor refted upon was, "the bargain not being
"fairly obtained in refpect of the circumstances B.
was in," which let in an equity, whereon the bar-
gain, being unfairly obtained, ought to be made void,
being for lefs than half the value.
66.
The principle eſtabliſhed in the last-mentioned cafe,
has, of late, being followed up by that profound lawyer,
Lord Kenyon (when Mafter of the Roils) in his decree
in the cafe of Heathcoate against Puignon: which
decree was afterwards, on appeal, affirmed by Lord Heathcoate v.
Thurlow.
Paignon, Bro.
Rep. Chan.
vol. ii. 167.
The facts in the cafe were as follows: A lent to
B. 100l. on bond. A fhort time afterwards A. agreed 1787, Eaft.
to Term.
EQUITABLE JURISDICTION IN RELIEVING
**
་
[* 155.]* to the purchaſe of B. (being then thirty years old, but
occafionally afflicted with the gout) an annuity of 50l.
for the life of B. (to be fecured by a bond and judgment,
together with an affignment of B's falary as a com-
miffioner of the Tax Office) for the fum of 2007. The
writings were accordingly executed, and the purchaſe
money paid. The bond debt remained undifcharged
until after the Death of A. It was then paid, and, im-
mediately thereupon, a bill was filed by B. againſt the
repreſentatives of A. to be permitted to redeem upon
payment of the 200l. with intereft at 51. per cent. per
annum. On the hearing it was referred to the mafter
to enquire, what was the value of the annuity on the
day on which it was purchaſed, and alfo what was the
market price, all circumftances of the ftate of health
of the grantee being confidered. The mafter reported,
that he had been informed that the annuity was worth
ten years purchaſe; but that the market price was
about fix. Whereupon his honour declared, that he
was of opinion the purchaſer, taking advantage of the
feller's diftrefs, purchafed the fame under the market
price, and that, therefore, fuch purchaſe ought to be
fet afide.
[* 156.]
*The circumftances, which furnifhed evidence of
the feller having been diftreffed, and that his diftrefs
was taken advantage of in this cafe, feems to have
been the buyer's having been acquainted with the
feller's want of money; and his having enthralled him
(the feller) by fuffering him to contract a debt upon
bond, by which means the buyer had him fo far within
his power, as that he might have diftreffed him on
his non-compliance with his own terms, by ſuing him on
his bond.
It is obfervable, on this cafe, that the quantum of the
inadequacy is immaterial; if the caufe that produces it
arifes from undue advantage taken of the circumſtances
of the feller.
The other inftance, wherein inadequacy of price.
will be a ground to fet afide a contract, is, where it
is caufed by the feller having been led by the buyer to
conceive the existence of fomething, that leffens the
value of his property, for which there is no fufficient
grounds; for, in fuch cafes, the caufe why the feller
contracts at an inadequate price, is the apprehenfion,
that his property is in a different ftate from what is
really
AGAINST UNREASONABLE CONTRACTS, &c.
really the cafe. The confent to accept fuch terms, [157. ]
therefore, ought to be confidered as given upon condi-
tion that the circumftances are as ftated; and if they
be not ſo, and that to the knowledge of the party con-
tracting, the bargain is fraudulent on his fide, and
fuch from whence he can derive no right; confe-
quently fuch as cannot induce any obligation in the
other party.
This principle may be extracted from the cafe of Baldwin v.
Baldwin and Rochford, where the purchafer of fome Rochford,
I Wills. 229,
fhares of a prize which was infured, knowing that the
fellers had been refufed any advance thereon by their
captain, and threatened by him with being pricked as
ran away from the fhip, in which cafe they would have
forfeited their fhares, took advantage of thefe circum-
ftances; reprefenting to them the danger they were
in of lofing their fhares, either in cafe they were pricked
by the captain as ran away, or if the prize fhould
happen to be retaken, at the fame time telling them
that the adverfe fleet was out; under which circum-
ſtances he bought the failor's intereft for one-fourth of
their value, Upon which grounds, principally, the
court of Chancery fet afide the contract.
And although inadequacy of price, * confidered ab- [ * 158. ]
ftractedly qua fuch, is not a ground to invalidate a con-
tract; yet, there is a great opinion (and which I truſt
will not be ſuffered to lye dormant, when occafion offers
to give effect to it) that, taken in another light, and
not merely in the view that the price is inadequate,
the circumftance of inadequacy alone can be made a
ground for fetting afide a contract. I mean, in the
light of furnishing felf-evident demonftration, from the
intrinfic nature and fubject of the bargain itfelf, of
fraud; evincing that the party who fuffers the lofs muft
have been impofed upon, and cannot be confidered as
having been in poffeffion of an underflanding adequate
to render him capable of contracting; in which caſe no
obligation could be incurred by him.
Thus, Lord Thurlow oblerves, upon the cafe of
Heathcoate and Paignon, that, where there is fuch
inadequacy as to evince, that the perfon did not under-
ftand the bargain he made, or must have been fo op-
preffed as to be glad to make it, knowing its inade-
quacy, it will fhew a command over him, that will
amount to fraud. If the tranfaction be fuch as marks
over-reaching on one fide, and imbecility on the other,
VOL. II.
F
it
:
EQUITABLE JURISDICTION IN RELIEVING
*
159.1 it puts the parties in a fituation, that fhews it could not
have taken place without fuperior powers of the one
fide over the other.
Vide James v.
Morgan,
1 Lev. 11, as
alluded by Lord
Hardwicke,
2 Vez. 155.
Et vide Earl
Aiglaffe v.
Mufchamp,
1 Ver. 237.
[* 160.]
*
And, even at common law, contracts, from which
it is, prima facie, felf-evident, that one of the parties
muſt have been entrapped, will not fupport an action.
Thus, where one agreed to pay for a horfe at the
rate of a barley corn for the firft nail, and fo on in a
duplicate ratio to the extent of all the nails in his ſhoes,
which were thirty-two, and would have amounted to
five hundred quarters of barley. Hide, chief juſtice,
on an affumpfit, directed the jury to give the value of
the horfe, which was 87. in damages.
And, in cafes of the nature now under confideration,
courts of equity, when applied to on behalf of the party
impofed upon, and courts of law on affumpfit, adini-
nifter the fame meaſure of juftice; for, in both jurif-
dictions, the contract is confidered as a fecurity to the
extent of the real value of that, refpecting which the
of parties ftipulate. Thus, in the before-mentioned cafe
of Heathcoate and Paignon, the court decreed that the
purchaſer fhould receive all fums advanced by him for
purchaſe money, infurance, deeds, * &c. with 57.
per cent. per annum thereupon, giving credit for whatever
fhould have been received on the annuity, beyond that
rate of intereft, as part payment of the principal.
And, in the laft-mentioned cafe of James and Mar-
gan, the contract was confidered as evidence of
an affumpfit, to the extent of the real value of the
horſe.
Fear, occafioned by fome unlawful violence of one
party to a contract towards the other, furniſhes, like-
wife, a good ground for equity to fet afide an agree-
ment. First, Becaufe, according to natural right, all
undue force, violence, or menace, that obliges men,
contrary to their inclination, to give their affent, which'
otherwife they would not do, takes away that liberty
which is of the effence of a valid engagement, and,
confequently, renders all agreements, in fuch cafes,
null and void. Secondly, Becaufe, although it were
admitted, that an agreement entered into under the
impulſe of fear, might be accounted fpontaneous, in
as much as a man fo circumftanced voluntarily engages
in a leffer evil to avoid a greater, yet, there is not fill a
ground whereon to raiſe an obligation: Becaufe, every
obligation
AGAINST UNREASONABLE CONTRACTS, &c.
*
obligation on one fide must be accompanied with a [* 161.]
correfpondent right on the other; for, there can be no
obligation unleſs a right anfwer to it, or be confequent
upon it. Now, no injurious action can produce a
right without a manifeft contradiction; therefore,
although the party engaging may be capable of con-
tracting an obligation, the author of the violence is in-
capable to obtain any right by fuch extorted engage-
ments.
Accordingly, an agreement procured through fear,
though it be entered into with a view to render fatis-
faction for the groffeft injury that the civil rights of
fociety can endure, will be fet afide in equity.
Thus, where a man caught another in bed with his Anonym. cited
wife, and the huſband having a ſword in his hand, and 3 P. Will. 294.
being about to kill the aggreffor; and the latter, being
naked, and in his power, implored the husband not to
take advantage of him, promifing that he would make
him reparation; upon which they went into another
room, where he gave the husband a note for 100%.
payable at a certain time: Lord Cowper declared, on
a bill brought to be relieved, that, if the matter had
refted on the original note, which had been gained [*162. ]
by a man armed from one naked and by dureſs, though
it happened to have been given in fatisfaction for the
greatcft injury, he fhould have made no difficulty of
granting relief.
And it would make no difference, if a contra were
entered into through fear arifing from an unlawful caufe,
whether that fear were occafioned by a third perfon,
or by the party to the contract, that is, provided the
latter were cognizant of it.
But, if the fear ariſe from a juft awe or dread of a
third perfon, who is a lawful fuperior, and who exer-
cifes his authority for a juft end, the contract will be
nevertheless binding; becauſe, as has been faid, the
perfon, acting under the influence of fear, confents
ſpontaneouſly to fubmit to what is required, of him,
rather than take the confequences that may enfue a
refufal; and the party, with whom the engagement is
made, does nothing to prevent himfelf from acquiring
a right. This feems to be the principle upon which
Lord Hardwicke founded his obfervation, in the cafe
of Cory and Cory, that a reaſonable agreement made Vez. 19.
:
F 2
I Atk. 1, vide
between fupra.
EQUITABLE JURISDICTION IN RELIEVING
[* 163:] between a father * and fon, with a view to provide
fomething for younger children, ought not to be fet
afide, on the ground of its having been entered into un-
der the influence of paternal authority.
Vide 2 Vez.
152.
Cole v. Gib-
bons, fupra,
294, et vide
P. Will. 727.
[ * 164. ]
in note.
Bargains, originally oppreffive, as well as thofe gain-
ed through fear, may, by fubfequent acts of the party
(dealt hardly with, or acting under compulfion) fit to
create a right in the other party, be rendered binding;
for, where a man is fully apprifed of his right, and
underſtands what he does, whatever may be the nature
of the original tranfaction, a fubfequent confirmation,
when fully apprifed, will make it good: Becauſe if
men, who are free agents, will with open eyes ratify
invalid agreements, a court of equity will not relieve
them. As if, in either cafe, the party on whoſe behalf
the equity would otherwife arife, having fuch relief in
his power, and being acquainted with the then ftate of
facts, confirms the tranfaction.
*
Upon this principle it was held by Lord King in the
cafe of Cole and Gibbons, and affented to on a re-hearing
5 P. Will. 293, by Lord Talbot, that the vendor, in this cafe, having,
by a deed of confirmation of the former affignment
(made after he was in poffeffion of the fact of the
teftator's being dead, of the bill's having been filed,
and of the grounds of the executors refifting it) ratified
3P. Will. 294 the contract, was bound thereby, and could not be
relieved. So it being proved, in the laft-mentioned.
cafe of the note given to the huſband by the perſon.
detected in bed with his wife, that the latter, on the
husband's coming for the money, and his excufing
himſelf from payment, gave his bond for it; it was
held, he ought not to be relieved, as he had coolly,
and without any pretence of fear or duress, entered
into a bond to the husband, and, thereby, himſelf
afcertained the darnages which the hufband ought to
be paid, which muft otherwife have been aſcertained by
a jury.
But, if fuch confirmation were obtained fraululently,
a court of equity would break through it, and impeach
the original contract, however deeply intrenched behind
fortifications of this kind.
Another head of equity, under which agreements
or contracts are relieved againft, is, that of fraud,
colle&ed or inferred, in the confideration of courts of
this
AGAINST UNREASONABLE CONTRACTS, &c.
this deſcription, from the nature and circumftances [* 165. ]
of the tranfaction, as being an impofition and deceit on
other perfons parties to the original contract, but not
parties to the fraudulent agreement: Of this kind are
marriage brocage contracts, wherein neither of the
parties contracting have been deceived; but which
tend neceffarily to the deceit of fome party to the
marriage, or of the parent, or of the friend. On this
equity, a clandeftine private agreement to return part
of the portion of the wife, or provifion ftipulated
for the husband, to the parent or guardian, will be
void.
Coleman,
1 Salk. 156.
Redman v.
Vern. 348.
* 166. ]
Redman,
I
[
Thus where, on the marriage of the fon of A. with Sir Nicholas
the daughter of B. it was agreed, that the young couple Butler v. Sir
fhould have fo much for their prefent maintenance, cey, 1.Eq. Ca.
Henry Chan-
and the fon privately agreed with the father to releaſe Abr. 88.
part of it: This agreement was fet afide as an impofi- Kemp v.
tion upon B. though in that cafe the fon, as was faid,
gave nothing but his own, and he was at liberty to dif-
pofe of his prefent maintenance as he thought fit.
So where, upon a treaty of marriage between A. and
B.-B.'s father would not confent to the match, by
reaſon that A. owed two hundred pounds to C. for
which he and his mother ftcod bound; the brother and
the mother of A. to remove this objection, gave a new
bond to C. for the payment of the debt, and thereupon
A.'s bond was delivered up to be cancelled; but A.
gave his brother a fecret bond to indemnify him againft
the debt and intereft: It was proved that B. the wife,
was privy to this tranfaction. Per curiam, this is a plain
fraud; for, by this contrivance, the father of B. (which
B. was the plaintiff, as executrix to the huſband) was
drawn in to give a greater portion: befides, he abſo-
lately refuſed to marry his daughter, unleſs A. was
made a clear man, and, in particular, relieved from this
debt.
Another head of equity alfo, particularly applicable
to the cafes now in difcuffion, is drawn from public
utility, and is a part of the national policy, in that ſenſe
in which the word Policy is applicable to every thing
that concerns the government of the country, of which
the adminiſtration of juftice makes a principle part;
and is that, whereby a court of equity, with a view to
public utility, requires that particular perfons, in con-
tracts, ſhould not only tranfact whatever is ftipulated,
tona
A
EQUITABLE JURISDICTION IN RELIEVING
[* 167.] bona fide, * between themfelves, but alfo, that they
fhall not tranfact mala fide, in refpect of other perfons,
who ftand in fuch a relation to either of them,
as to be affected by the contract, or the confequencés
of it.
Pitcairne
v. Oiboine,
2 Vez. 375,
•
Thus, where an annuity-bond was entered into by
the huſband's father to the wife's uncle as a truftee (he
having a mother living) that he, during his own life,
would pay 150l. per annum to the husband and wife
during their joint lives, and to her, if fhe furvived him
(the huſband) which the did; afterwards a bill was
brought to be relieved againſt this bond, on payment
of 100l. a year, upon the foundation of an agreement,
faid to have been made between the huſband and wife
and father previous to the marriage, whereby it was
ftipulated, that although the bond was to import pay-
ment of 150l. per annum, yet the actual agreement was
for fool. per annum only. The baſis of this fecret agree-
ment was ſtated to have been, that the original agree-
ment was for 100l. a year, but that the wife had ex-
pectations from her uncle, and nothing of her own,
and, therefore, had fuggefted that her uncle would be
induced to do more for her, if the father did more for
[*168. ] his fon; that, in this expectation it was agreed, the
huſband ſhould let the bond run as if it were for 150l. a
year inftead of 100l. which would be for the advantage
of the wife and children; that the father at firſt refuf-
ed, but was afterwards prevailed upon to confent to this
propofal; that, accordingly, the husband and wife had
received 100l. per annum, and he had infifted upon no
more, after ſhe became entitled to it in her own right;
there was a letter, during the treaty, from the father
to his fun, wherein it appeared, under his own hand,
that the uncle had promifed to do fomething on his
part, though the father thought it better not to have it
inferted, but to truft to his generofity; concluding with
bidding his fon go on to marry, and leave the manage-
ment of the uncle to him; the uncle, on his death, gave
every thing to his nieces.
It was attempted, in argument, to diftinguifh the
laft-mentioned cafe from the general clafs of thoſe on
this fubject, on the ground that the uncle, whom it
was calculated to deceive, having neither contracted,
nor given any thing on his part, it differed in the mate-
rial circumftance on which they all turned, namely,
that it was a deceit practifed on a party;" for the
uncle
*
་
AGAINST UNREASONABLE CONTRACTS, &c.
uncle could not be faid to be a party deceived.. Sed per [* 169. ]
*curiam, laying all the tranfaction together, efpecially
the father's letters, the uncle must be confidered as a
material party to the agreement on the marriage, and
as one intended to be impofed upon by the private
agreement of the others; the wife's dependance was
upon her uncle, ſo that he, notwithſtanding her mother
was alive, muſt be confidered in loco parentis. It was
true, he was only named as one of the two obligees;
but he could be no otherwiſe a party from the nature of
the inftrument, nor could the affent of an obligee be
fhewn otherwife: But he must neceffarily be appriſed
of it. The father's letter to his fon during the treaty,
fhewed beyond doubt, that he confidered himſelf as treat-
ing with a perſon who was to provide for his niece out
of his own pocket; that the uncle was to do fomething;
and that it was the father's choice that it ſhould be left
out of the agreement, and that the uncle's honor fhould
be trusted to. The uncle had fulfilled his expectation.
If the uncle had contracted to give ever fo little, the
fecret agreement could not have been fupported. Then
the father fhould not avail himself of its being left out
of the written agreement, when it was done by his own
choice. The whole muſt be confidered, in equity, as
an open tranfaction between four parties for a treaty of
marriage, and a fecret tranfaction between three of them
only in deceit of the fourth. The agreement then was
fraudulent, and could not be ſupported.
*
[* 170. ]]
upra.
Upon the fame principle, namely, that an agree- Small v. Brack-
ment is a deceit upon third perfons interefted, although
not parties, it is held, that if a man, being indebted,
make a compofition with his creditors, by which they
all agree to accept of a certain given fum for their debts,
provided they all fign within a time limited; and one of
the creditors refufe to fign, unless the creditor will pay
him one hundred pounds down, and three fhillings in
the pound over and above the nine fhillings; the debtor
fhall himſelf be relieved againſt this agreement: It
being fraudulent, by deftroying that equality, which
was the inducement to the other creditors to come
into it.
Neville v.
Wilkinſon,
And, in the cafe of Neville againſt Wilkinſon, Lord
Thurlow faid, that he would not lay it down as a rule, Novem. 184.
that fraud, in cafes of this nature, must be upon an Et vide 3 P.
article contracted for exprefsly; but that any reprefen- Wr. 75. laft
tation misleading the parties contracting on the fubject notes,
of
edition, in
EQUITABLE JURISDICTION IN RELIEVIN
[* 171.] of the contract, was within the principle of the cafes.
And his lordship" relieved, by injunction, againſt a
bond entered into by the plaintiff to the defendant be-
fore the plaintiff's treaty of marriage; the defendant
having, by the plaintiff's defire, upon the occafion of
fuch treaty, mifreprefented to the wife's father the
amount of the plaintiff's debts, and particularly con-
cealed from him the bond in queftion: And this relief
was given, although it did not appear that there was any
actual ftipulation on the part of the wife's father, in re-
fpect of the amount of the plaintiff's debts.
Yelverton Pey-
ton, et al, v.
Bladwell, et al,
I Vern. 240.
And an underhand agreement, although procured af
ter marriage, if made in fraud of a third perfon, will be
fet afide in equity.
Thus where A. promifed to fettle certain eftates on
B. if a convenient match could be found for him;
and, accordingly, treated on a marriage for him with
the niece of C. and D. It was agreed between him and
them, that C. fhould give his niece 2500l. portion, to
be laid out in lands after his death, and that A. fhould
fettle lands of 300l. a year, whereof 2001. a year ſhould
be for a jointure; and that he fhould alfo fettle other
[* 172.] lands of the value of 100l. per annum, on himſelf for
life, remainder to B. and his heirs. A fettlement was
made by A. and a bond was given by C. accordingly.
After the marriage, A. prevailed upon B. on promifes
of leaving him a greater eftate by his will than he had
agreed to fettle upon him, and by other infinuations,
to execute a writing, whereby A. was to receive the
profits of the whole eftate, allowing B. only 120/ a
year, and B. was to affigu over to him C's bond, and
alfo to releaſe or difcharge the agreement for the fet-
tling the 100l. per annum on himſelf and his heirs after
the death of A. The bill was filed by B. in order to
be relieved against thefe agreements. It was inſiſted,
against the prayer of the bill, as to the 100l. per annum
to be fettled on B. and his heirs, that B. had power to
releaſe and diſcharge it, and that there was no benefit
thereby intended to the wife or illue of the mar-
riage; for B. might have fold or given away
thoſe lands. But the court
court declared its abhor-
rence of fuch underhand agreements, that it was
a deceit and fraud as to C. who was drawn in to
give a greater portion with his niece, in expectation
of a fettlement adequate to it, which expectation,
by this means, was fruftrated; for, though B. might
have
AGAINST UNREASONABLE CONTRACTS, &c.
*have difpofed of the lands which were to have been [* 173]
fettled on him and his heirs, yet that was frequently
done in many fettlements; the father being, by that
means, left at liberty to provide for his younger chil-
dren, and to reward them moft that behaved them-
felves beft; but ftill there was a benefit intended to
the iffue of the marriage, and it was part of the confi-
deration for which the portion was given. And the
underhand releaſe and agreement was held to be frau-
dulent, and decreed to be fet afide, and the original
agreement decreed to ſtand in toto.
The equity will be the fame in favour of a wife de-
ceived by her huſband.
on
Thus where the mother joined in a fettlement Lambev. Han-
her fon's marriage, and accepted 151. per annum in man, 2 Vern.
lieu of her jointure and claims; but, the day before vide Turton,
466, 499. Et.
the fettlement was executed, took fecurity from her v. Benfon,
fon for 10l. per annum out of an eftate not compromif- 2 Vern. 764.
ed in the marriage fettlement, which the fon covenant- 496.
ed to pay.
The covenant was, after the huſband's
death, fet afide by the wife, as a fraud upon the marri-
age agreement.
1 P. Will.
*So, if the fraud be practifed on the huſband, he [* 174]
alfo will be relieved: Therefore, where a marriage
was treating upon between G. and a fifter of P. and : Gale v. Lin-
fhe, not having fo great a portion as G. infifted upon, do, i Vern.
prevailed with her brother to let her have 160l. to 475.
make up her portion, and gave him a bond for re-
payment of it, and thereupon the marriage was had:
This bond was fet afide as a fraud upon the huf-
band.
And, in theſe inftances alfo of underhand agree-
ments in caſes, of marriage, a perſon, though particeps
criminis, and not urged to what he does by neceffity, will,
nevertheleſs, be allowed to avoid his own acts: For
the fraud infects the agreement throughout, and fo
doing vitiates it, fo as that it binds none of the parties
to it.
v.
Thus, in the cafe of Redman and Redman, the Redman .
widow, by whom the fuit was preferred, was reliev- Redman, fu-
ed; although it was in proof that he was privy to pra, 1 Vern.
the whole matter, and contrived the mode purſued to
fatisfy her father, in order that the marriage might
take effect.
348.
So,
EQUITABLE JURISDICTION IN RELIEVING
(* 175]
do, fupra, I
Vern. 475.
*P So, in the cafe of Gale and Lindo, where the bond
Gale v. Lin- was put in fuit by the executor of the brother againſt
the executrix of the fifter who furvived her huſband;
it was urged that, although the bond given in that caſe
might be a fraud. against the hufband or his iffue,
who were to have the benefit of the marriage agree-
ment, yet, the husband being dead, and there being
no iffue, it was good against the woman herself, and,
by confequence against her executor: Sed per curiam,
that which was once a fraud must be always fo, and the
accident of the woman's furviving her huſband would
not better the cafe.
Gifford v.
Gifford, I Eq.
Ca. Abr. 88,
99.
[* 176]
Gale v. Lindo,
I Vern. 475,
47€, et vide
Turton v.
Benfon, 1 P.
Will 496. S.
But a diſtinction was taken where the agreement is
made between the hufband and wife only, and no third
perfon is impofed upon.
Thus, where a fon, in confideration of 3500%
which he was to have as a marriage portion with his
intended wife, covenanted that his father fhould fettle
300l. per annum on her as a jointure, and the father
fettled it upon her accordingly, and the fon alfo gave
a bond to leave his wife 1000l. if the furvived; the
fon died, his wife furviving, and the father pretended
that the wife ought not to have any benefit of this
bond, for, that it was in fraud of the marriage agree-
ment; and the cafe of Buller and Chancery was cit-
*
But the court diftinguifhed this cafe from that,
the father having been in that cafe a party to the
articles, and deceived by the underhand agreement
contrary thereto: whereas here, the fon only was par-
ty to the articles, and was to have all the portion, and
might give it as he pleafed: And, therefore, it was
decreed, that there ſhould be no relief.
Agreements in fraud of a third perfon, that is,
fuch wherein there is actual fraud, cannot be rendered
binding by a fubfequent promife or ratification, even
of the parties to them, as agreements fraudulent in
the eye of a court of equity, as impoſing hardſhip on
C. 2 Vern. 764. one party, may. Therefore, although, it was ftated
So refolved as in the cafe of Gale and Lindo, that, after the death of
the huſband, the wife agreed to repay the money,
and actually paid part of it, yet, that was confidered
as of no avail; for, the original contract being actually
fraudulent in the fenfe of deceit, no fubfequent act
could purge it of that quality.
to an agree-
ment on mar-
riage, Shirley
v. Martin,
Exch.
14 Nov. 1779,
vide 3 P. Will,
75, in note,
edit 1789.
Affigning
AGAINST UNREASONABLE CONTRACTS, &c.
*
Lord
Affigning the benefit of fuch an agreement [ *177. }
over to creditors will not give it a validity; Becauſe Sed per
the act is not, in equity, confidered as an affignment, Parker, a bond
the fubject being in truth a chofe in action, but is fo given is not
taken as an agreement only that the affignee fhall have fo abfolutely
all the fair and equitable advantage and benefit of the may not upon
agreement that the affignor hinifelf is entitled to; and fome new con-
if nothing be bound by the agreement, nothing can be
affigned over.
void, as that it
fideration or
deliberate act
be made good,
123.
I
Nor would the equity of creditors be bettered, 1 P. Will. 499.
though it were fhewn that they were in danger of Turton v.
lofing their debts through a deficiency, of affets; for, Benfon,
ftill they must be paid out of the affets of their debtors, I P. Will. 499.
and not out of the eſtate of another man: For, when et vide i Vez.
it is faid that creditors are to be favoured, this is
meant with regard to the rightful affets of the debtor,
not to any effects belonging to another, which the deb-
tor has wrongfully taken away, or poffeffed himſelf of
tortiouſly.
But the equitable juriſdiction of courts of this nature
of fetting afide agreements, as well as that of decreeing
them being in a degree difcretionary, circumftances
may occur, even in cafes of agreements, fraudulent in
*themſelves, in the fenfe of deceit, which will induce
courts of equity not to relieve againſt them, or ſet them
afide.
• Vide P.
Will. 499.
[* 178. ]
fupra,
Thus, in the cafe of Small and Brackley, where the Small v.
plaintiff, having been intrufted to receive the intereft Brackley,
due upon tallies, had pledged or mortgaged them to 2 Vein. 602,
the défendant, and had received the intereſt two or
three times, and paid it to her, and brought back the
tallies and orders; and, at laft, wanting money, he
had not only received the intereft, but alſo the prin-
cipal, and fhortly afterwards failed; and then, the
creditors of the plaintiff figned a deed to accept a
compofition of 9s. in the pound, fo as all the creditors
figned the deed within the time limited, or otherwiſe
the fame to be void; but the defendant refuſed to
fign and accept the compofition, unless the plaintiff
would pay her 100l. down, and 3s. in the pound over
and above the gs. in the pound; and the 100l. was
accordingly paid, and fecurity given for the 75%. the
refidue of the compofition money: The plaintiff
brought a bill to be relieved against the agreement as
fraudulent, being to blind the other creditors, but his
bill was difmiffed by the chancellor, his Lordship
obferving
EQUITABLË JURISDICTION IN RELIEVING
[*179.]* obferving that, as the plaintiff had been guilty of
as great a fraud and breach of truft as could be without
being criminal, and had agreed to make fome fatisfaction,
he ought not to be relieved in equity.
Roberts v.
Roberts, 3 P.
Will. 66,
Again, where a private agreement was made in
fraud of a public contract upon a marriage, the fet-
ting afide of which would have been injurious to a
former agreement alfo made upon a marriage; the
court confidered the first agreement as entitled to the
preference, and therefore refuſed interpofing to fet aſide
the laft.
Thus, where A. fon of B. intermarried with C.
who had a portion of 4000l. and B. (who was tenant
by the curtefy) joined in fettling a good part of his
eftate on A. and his wife in poffeffion, the remainder
having been previously limited to A. by his mother's
marriage fettlement, with a power to B. (first paying
or fecuring 1000l. to his fon) to fettle 200l. per annum
out of the eſtates upon any other wife he fhould mar-
ry.
B. afterwards propofed to marry D. who had
3000l. portion, and, previous thereto, offered to ſet-
tle 2001. per annum upon her. But, it appearing that
[180.] the 1000l. muft* be paid to A. which would greatly
embarraſs him (B), D.'s relations would not confent
to the match. Upon this B applied to A. to releaſe
the 1000l. which he, by letter to his father, agreed to
do; but neither his wife, nor any of her relations,
were confenting to fuch releaſe. However, previous
to an actual releafe executed, the. fon infifted that
his father ſhould give him a bond for the payment of
the 1000% within a fhort time after his marriage, to
which the father confented; but that was done alfo
without the privity or confent of the intended wife,
or her relations. Then the releaſe and bond were
mutually given, the marriage was had, and the porti-
on of 3000l. paid. Afterwards A. fued his father upon
the bond, and the father preferred his bill againſt the
fon to be relieved against this bond, on the ground of
its being a fraud upon the fecond wife, and her relati-
ons, who would not have confented to the match had
they known of this under-hand bond. But the court
was of opinion, that the bond must be paid; becauſe,
whatever arguments might be made ufe of in favour of
D. the father's fecond wife, or of himſelf, to prove
that he ought to be difcharged of the bond for payment
of the 1ocol. the very fante arguments might be
•
urged
AGAINST UNREASONABLE CONTRACTS, &c.
* urged on behalf of the fon and his wife, to prove [* 181.]
that it ought to be paid; for, fuppofe it to be a hard-
hip upon the father's fecond wife, that her huſband
fhould be forced to pay this 1000l. in breach of the
public and open agreement made by the fon, was it
not equally an hardship, upon the fon's wife, and as
much a violation of the open and fair agreement made
on her marriage, that the 1000l. fhould not be paid
upon the father's making a fecond jointure? The con-
fequence of which was, that as the agreement on the
fon's marriage was the firft, it ought to have the pre-
ference. Qui prior eft in tempore, potior eft in jure.
Wherefore, tince the payment of this 1000l. by the
father, might as much contribute to the comfortable
fubfiftence of the fon and his wife, as the non-payment
of it might conduce to the comfortable living of the fa-
ther and his wife: and as, by means of this bond, the for
had the law on his fide, the bond, it was determined,
muft be paid.
I
2 Vern. 14.
terfield v. Jan-
Upon the fame principle of national policy (to pre- Vide Fail of
Arglafs v.
vent catching bargains with heirs, reverfioners, or Mulchamp,
expectants, which have a tendency to feduce them 1 Vern. 75-
from a dependance on * their anceſtors, who, it is [ * 182. ]
prefumed, will fupport them properly, by feeding Nott v. Hill,
their extravagancies, and tempting them, in their ibid. 167. Eail
of Arglaſs v.
father's life time, to fell their reverfion of eftates fetiled Pitt, ibid. 239.
upon them, or to barter away their expectancies on Berny v. Pitt.
terms manifeftly ruinous) a court of equity uniformly Twifleton v.
fets its face againft all bargains made with perfons fo Griffiths, 1 P.
circumftanced. And the court of Chancery has at Will. 310.
length, not without great difficulty, put a stop to fo Earl of Chef-
deftructive and mischievous a practife, by fetting afide fen, 2 Vez.
all contracts made with heirs or expectants for the 125.
difpofal of their expectancies; confidering them as
intrinfically corrupt, fraudulent, and unconfcionable,
encouraging difobedience and extravagance in heirs
and expectants on one hand, and avarice, fraud, and
impofition on the other. And indeed, in moſt of theſe
cafes, deceit and illufion on other perfons, not privy
to the fraudulent agreement, has concurred; the
father, anceſtor, or relation, from whom the expecta-
tion of the eftate has fprung, have been kept in the
dark; the heir or expectant has been prevented from
difclofing his circumftances, and reforting to them for
advice, which might have tended to his relief and
reformation; by this the anceftor alfo had been miſled,
and
EQUITABLE JURISDICTION IN RELIEVING
[* 183. ] and * induced to leave his eftate, not to his heir or fa-
mily, but to a fet of artful perſons who have divided the
fpoil before hand.
*
Curwyn v.
Milner, 19th
June 1731,
3 P. Will. 292
in notes.
[* 184. ]
Berny v. Pitt,
2 Vern. 1, 4.
ibid. 27.
And, although fuch bargains be actually carried
into execution, courts of equity will, nevertheleſs, if
the performance be occafioned by the apprehenfion of
compulfion, fet them afide, and decree the vendee to
reinftate the vendor in his expectations, on payment
of what was actually advanced and
and legal inte-
reft.
Thus, where an heir about twenty-feven years of
age, and who had a commiffion in the guards, borrow-
ed 500l. on condition that he fhould pay 100ol. if he
furvived his father and father-in-law; but if he died
before his father and father-in-law; then that the
- lender fhould lofe the 500l. The heir furviving his
father and father-in-law, was relieved by Lord
King against this bargain, although he had paid the
money, the payment having been made for fear of an
execution.
And relief was decreed in equity, on a rehearing,
upon a contract of a fimilar nature, after the money
had been paid, in compliance with a former decree,
made in fupport of the contract.
In the cafe alluded to A. had fupplied B. an heir
in his father's life time, with the two feveral fums of
3 P. Will. 294. 1000l. and 1000l. on condition to have 2500l. for each,
Knott. et al, v.
Johnfon, et al, if B. furvived his father, or elfe the principal to be
loft; and A. had obtained from B. two judgments of
5000l a piece defeazanced for the payment of the faid
2500/. for each; and Lord Nottingham, on the firft
hearing (9 Feb. 33 Car. 2.) granted relief only againſt
the penalties; but, on a rehearing before Lord Jefferys
(27 Jan. 2 Jac. 2.) the former decree was difcharged
(though B. had been conftrained, in obedience to the
decree, to pay A. 539cl. and B. was ordered to be
reſtored to the money paid ultra the 2000l. originally
lent and the intereft for the fame, with intereft from the
time A. had received it.
1
And no fubfequent acts of the heir, though voluntray,
and not under any apprehenfion of legal durefs, will
help ſuch a contract, if the heir at the time be under any
mifapprehenfion, and not fully apprised of the nature
of his right: As if the heir write letters after the
death
f
*
AGAINST UNREASONABLE CONTRACTS, &c.
* death of his anceſtor, approving of the bargain as fair; [
or fuffer the vendor to lay out money afterwards in beau-
tifying and improving an eftate, purchaſed under fuch
circumftances.
[
*
185.1
* 186.]
Thus, where T. B. the fon of R. B. (which R. B. Baugh v. Price,
was tenant in tail, remainder to himfelf in fee of an Wils. 320.
eftate, worth about 3000l. and about feventy-two years
old, afflicted with the gout and a rupture, and his life
not worth above one year's purchaſe) being heir expect-
ant in tail, and in neceffitous circumftances, by articles
of agreement in October 1739, in confideration of
1500l. to be paid to him by P. (who was an attorney
concerned for R. B. and converfant with his family
fettlements) within a year; and of an houfe worth
200l. to be conveyed to T. R. covenanted, without
the knowledge of his father, to convey to P. this eftate
in fee fimple, fubject to the eftate of his father for life;
and foon after the figning theſe articles, T. B. was
defirous to be off the bargain, but P. would not let him.
In November 1739, a leafe and releaſe was prepared
by P. and executed at P.'s houfe, where nobody but
P. his fon, and another perfon were prefent. T. B.
therein, among other things, covenanted that he was
feifed in fee, and that there was in the deed a clauſe of
warranty against R. B. and his heirs, and the ufe of a
fine formerly levied by T. B. was declared to enure to
P. in fee; and in confideration hereof, P. conveyed to
T. B. the houſe, but in the latter conveyance there
was no fuch covenant or claufe of warranty as in the
former.
The 1500/. in money was to be paid. P.
made out that he paid it thus, viz. to Lord O. 550%
owing to him by T. B. on a mortgage of another eftate;
2001. T. B. owed to P. himfelf; 250l. which P. pre-
tended he paid him in cafh; and for the remaining
500/. P. gave T. B. a bond, to pay it within a limited
time after T. B. fhould have fuffered a recovery to
P.'s ufe. All the writings were drawn by P. and T.
B. had no copy of them, or was any counfel or attor-
ney concerned for him. R. B. the father, died in
July 1740, nine months after making the articles.
T. B. immediately wrote to P. acquainting him of his
father's death, and informing him that he fhould act
in all reſpects agreeable to his wishes; and in another
letter he told P. that he fhould always act justly, and
faid that P. has got a good bargain of him, and that he
could afford to give him a buck, but that he ſhould
{
not
1
EQUITABLE JURISDICTION IN RELIEVING
:
ستان
[ * 187. ] not touch one without P.'s * confent. After this T.
B. filed a bill in Chancery, to fet afide thefe articles
and conveyance, and to be relieved; to which P.
put
in an anſwer denying the fraud, &c. charged. T. B.
being at this time indebted to P. was, by being threa-
tened to be ſued and other acts, intimidated from pro-
ceeding in Chancery, and prevailed upon to execute
another deed, dated in October 1741, reciting the pro-
ceedings in Chancery, and that the purchaſe was a fair
one, and confirming the eftate to P. afterwards T. B.
and P. fettled all accounts. In 1743, T. B.'s bill in
Chancery was difmiffed, and in 1746 he died. Soon
after which T. B.'s fon preferred a bill in the Exche-,
quer to be relieved from this bargain, upon paying to
P. the purchaſe money and intereft, and for all neceffary
and permanent repairs. And it being held, firft, that
this tranſaction, under all the circumſtances of it, was
clearly fraudulent, and fuch as the court of Chancery
would have relieved againft in the firft inftance; the
next queſtion was, whether T. B. by any act, fubfe-
quent to the bargain, had purged the fraud and impofi-
tion? And the court were of opinion unanimously, that
he had not, and that the fon ought to be relieved; for
[* 188. ] that, as to the letters, which had been relied on as
fhewing that T, B, thought the bargain a fair one, they
availed nothing, being written before he knew the real
value of the eſtate; and that the arts and threats uſed
by P. to get rid of the firft fuit, were as fraudulent as
the original bargain, and the recital in the releaſe exe-
cuted thereupon was falfe; for the bargain was a very
unfair one, and fuppreffio veri, ar fuggeftio falfi, had
always been held fufficient to fet afide a releafe. And,
as to the charge that T. B. had ftood by during his life,
and feen P. lay out great fums in repairs, ornamental
additions, &c. T. B.'s acquiefcences were founded on
a miſtake into which P. led him. And the articles and
deeds were decreed to be fet afide, on the plaintiff's
paying the defendant his principal and intereft, and
allowing for all needful repairs.
Cheflerfield .
159.
*
*
But, if a contract for an expectancy be expressly
Jaufen, 2 Vez. fhewn to have been free from fraud or impofition, and
the vendor, being fully informed and with his eyes
open, ratify the contract, he will, by fuch new agree-
ment, bar himſelf of the relief he might otherwife have
had in a court of equity. But fuch ratification muſt be
after
AGAINST UNREASONABLE CONTRACTS, &c.
after full information, freely, without compulfion, * and at [* 189. ]
a time when the vendee is free from all restraint or ap-
prehenfion from the perfon on whom the expectancy refts;
and when it cannot be faid, that there is any perſon on
whom any deceit can be committed by reafon of fuch new
agreement, and there is no impediment against the party,
Supposed to be imposed upon, ſeeking relief, by difclofing his
cafe to a court of justice.
1
Duke of Ha-
milton v. Lord
And, if an agreement be entered into under an un-
due influence, and in circumstances of fuch a nature as Mohun, 1 P.
furniſh a fair inference, that one of the parties had an Will. 118.
advantage over the other, it will be fet afide in equity.
Therefore, where A. married the heiress of G. and
the marriage articles were agreed on with great deli-
beration, and one of them was, that A. fhould, within
two days after marriage, for the peace of the family,
releaſe to the mother and guardian of the lady all ac-
counts of the mefne profits of the eſtate; it being in-
fifted upon by the mother, and admitted by A. that the
charge of the education of the young lady, and the in-
tereft paid by the mother upon the mortgage of a good
part of the eftate, which had been difcharged by her
as guardian, would come to as much as the * profits [* 190.]
of the eftate. The lord chancellor faid, on making
the decree upon a bill in equity filed by A. to be re-
lieved from this agreement, and for an account of the
mefne profits of the estate, that, admitting there was
no ſurpriſe in obtaining this covenant from A. (and
there feemed to have been none, it having been agreed
upon after great deliberation and advice by confent on
both fides) and admitting there had been no conceal-
ment of the matters to be accounted for, this cove-
nant to make fuch releaſe ought nevertheleſs to be fet
afide; as it ſeemed to be extorted from A. by one who Sid note, fuch
had power over the young lady courted by him, as her been given
parent, which power ought not to have been made ufe by the huſband,
of in this manner; that it was as if the mother ſhould after marriage,
fay, you ſhall not have my daughter unleſs you will been good; the
might have
releaſe all accounts: That brought the cafe within reafon of the
the fame reafon as marriage brocage agreements; for becaufe, being
a bond to give money if fuch a marriage could be given after
obtained was ill, and, by the fame reafon, a bond to marriage, it
forgive a fum of money, muſt be ill. And the covenant
was relieved againſt.
A court of equity will rectify errors in their pro- freely,ibid 20.
VOL. II.
{
G
ceedings
releaſe, had it
difference is,
must be pre-
fumed to have
been given
EQUITABLE JURISDICTION IN RELIEVING
[* 191.]*ceedings, although there be an agreement entered into
by the parties to a fuit, to abide, by the decifion of the
court on the merits, notwithſtanding any miſtake in
form.
Buck v. Faw-
243.
Thus where, upon a bill brought in equity, the
cett, 3 P. Will, parties or their clerks in court entered into and figned
an agreement, which was afterwards by confent,
made an order of court; that both parties would fub-
mit to ſuch decree as the court ſhould make in the
caufe, provided it fhould be on the merits, and not on
any mistake in the pleadings, and that neither party
hould bring an appeal; an order for a re-hearing
was directed to ftand, although a motion was made,
upon the ground of the preceding agreement, to dif
charge it: The chancellor obferving that, had the
agreement been diſcloſed to the court, fuch order
would not have been made; for, until a decree was
figned and inrolled, all matters were open; and if there
was any error in a decree, it was fitting the court ſhould
have an opportunity of amending it.
Where an eftate is directed to be fold before a
[* 192. ] mafter, any agreement refpecting it, to take it
out of the ordinary courſe of ſale, in fuch cafes, will
be void.
Annefley v.
Ahurft, 3 P.
Will, 282.
2 P. Will. 156.
220.
Therefore, where a truſt eftate was decreed to be
fold for the payment of debts and legacies to the beſt
purchaſer before the rafter, and A. contracted for
the purchaſe, and entered into articles with the truf-
tees for that purpoſe; and it did not appear that the
purchaſe was an unfair one, but this method feemed
to have been taken to avoid the charge and trouble of
bidding before the mafter, and of the mafter's report,
and of getting it confirmed; the court, (on a bill
against the truſtees to compel them to convey, which
they were willing to do on being indemnified) would
not make a decree; faying, this was all going out of
the way; the former decree muſt be purfued, and
one decree could not be made to contradict another.
If A. wished to purchaſe the eftate, he muſt go before
the mafter, and get himſelf reported the best pur-
chafer; and, though nothing unfair appeared, yet
there was every occafion to fufpect when people were
going out of the way.
An agreement to stifle a profecution of felony
IS
AGAINST UNREASONABLE CONTRACTS, &c.
* is not lawful, and cannot be executed in equity; [*193. ]
but where there is a fraud, and the party wronged by
the fraud comes to an agreement whereby he is to be
fatisfied for ſuch injury (as in confcience he ought to
be) this agreement, it is faid, is lawful, and may be en-
forced in equity; matters of fraud being cognizable and
relievable, as well in equity as at law.
But the diftinction above-mentioned, between an
agreement refpecting fraud, and one refpecting felony,
and which is ſtated by Peer Williams as an obfervation
made by himſelf in the cafe of Johnfon and Ogilby, does
not ſeem warranted by the event of that cafe in which
the point occurred.
279,
[ * 194. ]
There A. (appearing to be a fingle woman) and B. Johnfon v.
had fome differences as to feveral freehold houſes; 3 P. Will, 29.
Ogilby, et al,
and, upon compromiſing thoſe differences, it was
agreed between them, that A. and B. fhould join in a
fine and recovery, which fhould be as to two of the
houſes to the uſe of A, and her heirs; and as to the
other two houſes, to the uſe of B. and his heirs. A
fine and recovery were accordingly levied and fuffered.
After this A. pretended that ſhe was, at the time of
theſe tranſactions, a married * woman, and wife to C.
Hereupon B. brought a bill against C. and his wife to
diſcover whether he was married, when ſhe levied
the fine, and fuffered the recovery, and to be re-
lieved againſt the fraud. To this bill C. and his wife
put in their anſwer, infifting on her being then a feme
covert, and that ſhe was not bound by fuch fine and re-
covery. Upon this B. preferred a bill of indictment
againſt A. for a cheat, and for the fraud in levying a
fine, and fuffering a recovery as a feme fole, when at
the fame time the was under coverture. The indict-
ment being found, upon not guilty pleaded, was brought
to a trial; but juft before the trial was to come on, the
parties came to an agreement, that B. fhould affign
over his right to the premiffes, and that C. and A. fhould
pay kim 580. Afterwards, the money not being paid,
B. filed a bill for a fpecific performance. And the lord
chancellor ſtarted the objection, that this agreement be-
ing to ftifle a criminal profecution, ought not, therefore
to be executed in equity. In reply to which, Peer
Williams ftates himſelf to have fuggeſted the diftinction
before alluded. But it appearing by the reg. book that
the cauſe coining on to be heard, . his lordſhip declared, 279 note 1.
G 24
❝ the
Vide 3 P. Will
4th edit, fol.
EQUITABLE JURISDICTION IN RELIEVING
[ * 195. ]
Gould v.
Fleetwood,
the Rolls, cited
3 P. Will, 251
in note.
CC
*
"the agreement in the bill mentioned, was not fuch
an one as ought to be carried into execution in that
"court, and that, the plaintiff not paying a forecloſure,
"the bill was difmiffed;" it feems a neceffary inference,
that the diſtinction taken was over-ruled.
All bargains by trustees, made in behalf of them-
felves, and tending to eat up the truft property, are
Mich. 1732, at difcouraged in equity. Therefore, where an execu-
tor in truft, who had no legacy, and where the execu-
tion of the truſt was likely to be attended with trouble,
at firſt refuſed, but, afterwards, agreed with the re-
fiduary legatees, in confideration of one hundred gui-
neas, to act in the executorfhip; and, he dying before.
the execution of the truft was compleated, his execu-
tors brought a bill to be allowed theſe two hundred gui-
neas out of the truft money in the hands of the refiduary
legatees, infifting, that the refiduary legatees might as
well make a contract with the executor touching the
furplus which was their own property, as the teſtator
himfelf; and that no harm could happen thereby to the
truſt eſtate: The court faid, that all bargains of this
kind ought to be difcouraged, as tending to eat up the
truft; and that here the executor * had died before he had
finished the affairs of the trust. Wherefore the plaintiff's
demand was difallowed.
:
* 196. ] An agreement may be ſet aſide by reaſon of a mif-
Quære? If this take in the parties making it, if the point mifconceived
accident affects be the caufe of the agreement; for, if an agreement
the principle as be entered into upon the prefumption by one of the
againſt truſtees. parties of a fact, that is not really fo as that party be
lieves, the agreement as to him is of no force; becauſe
he did not give his affent to what is agreed upon abſo-
lutely, but upon fuch and ſuch conditions, which are not
verified by the event.
Lanfdown v.
Lanfdown,
Thus, where there were four brothers, and the fe-
cond died, and the elder brother entered upon his
Moſely 364. lands, and the younger brother claimed a title, upon
which they applied to B. a fchoolmaster, their neigh-
bour in the country (who often acted as an attorney) for
his opinion, who, upon confulting a book called the
Clerk's Remembrancer, gave it in favour of the young-
eft brother, becauſe lands could not afcend; upon
which the eldeſt brother agreed to divide the eſtate
with the youngeft, and declared, he would rather do
▼
fo
AGAINST UNREASONABLE CONTRACTS, &c.
!
fo* than go to law, though he had the right. Deeds of [* 197. ]
leaſe and releaſe of the moiety, were accordingly pre-
pared by the ſchool-maſter, which were executed by
the eldest brother, and alfo bonds given in the penalty
of 300l. which was computed to be the value of the
moiety, conditioned for quiet enjoyment of their re-
ſpective ſhares. Then the youngest brother died, and
the moiety defcended to the defendant, an infant, his
fon and heir. And, on a bill filed to fet afide theſe
writings, the lord chancellor decreed, that the bond,
and deeds of leafe and releafe, fhould be delivered
up to the plaintiff (the eldeſt brother) they having
been obtained by miftake and mifreprefentation, and
that the defendant, the infant, fhould, when he came
of. age, convey nifi.
Upon the fame principle it has been held, that if a
party, at the time of entering into an agreement re-
ſpecting a claim, capable. of being precifely afcer-
tained, be, at the time of contracting, ignorant of the
preciſe value of it, but ftipulates under an idea, and
with an intent, that what he is to receive ſhall be
equal in value to that which he has a claim to; this
will furnish a fufficient ground to a court of equity to [* 198.]
fet afide the agreement, if the thing to be received
*
turn out not adequate to the price of the claim, when
its value is accurately adjuſted.
Thus, where one died inteftate, leaving a widow Cocking v.
and a daughter, the latter being of age, and they en- Pratt, i Vez..
tered into an agreement concerning the diftribution of 400.
the perſonal eftate. A bill was afterwards filed by
the huſband and reprefentative of the daughter, who
was dead, to fet afide this agreement, and to have a
diftributive ſhare of the father's perſonal eftate, to the
amount of what his wife was entitled to. The mother
infifted upon the agreement, as a defence againſt go-
ing into an account of the father's perfonal eftate.
But the court held, that the bill was proper, and the
rights of the parties the fame as when the wife was
living. The queftion was, what was in view on each fide?
the daughter clearly did not intend at the time of the
agreement, to take leſs than what by law fhe was entitled
to, though what that amounted to did not clearly ap-
pear: But fhe then thought what was ſtipulated for her
was her full fhare. It was a fufficient foundation, there-
fore, for a court of equity to interfere, in fuch cafe, if it
appeared
EQUITABLE JURISDICTION IN RELIEVING
Ibid.
199.] * appeared that the perfonal eſtate amounted to confi-
derably more than what the conceived, and the party
fuffering might apply to fuch courts to avail himself of
want of knowledge of that fact, not, indeed, in the cafe
of a trifle; but the daughter here would be entitled
to five or fix hundred pounds more than was ftipulated
for, which was a material fum in a ſmall concern, and
a ground for the court to fet it right. The daughter
did not act on the ground of a compofition, as wanting
to marry, and to have ready money, but took what
was agreed to be paid her as amounting to her full
ſhare of her father's effects; and, if it appeared not
to be fo, the court could not fuffer the agreement to
ftand. The eftate, therefore, must be divided as the
law directed, and the agreement ſet aſide.
Griffith v.
*200.
Trapwell,
1 Vez. 491.
Vide fupa.
142-146.
+
It is obfervable that, in the preceding cafe, the
daughter's huſband had ratified the agreement, and re-
leafed to the mother: But as his intent was the fame
as the daughter's, and he was equally in the dark,
that was confidered as making no difference in the
equity.
:
And, where one died inteftate, leaving two fifters,
one of whom got adminiftration, and prevailed on
the other to accept of an agreement for her ſhare; and
there was a further agreement that the fhould have
a further ſhare, reciting alfo, that it was intended
that ſhe ſhould have an equal fhare, and that there
fhould be a decree for that, which was accordingly
had It being afterwards difcovered that the eftate
was a great deal more than it was then valued at, both
the agreements, and the decree thereupon, were ſet
afide on a re-hearing.
We must be careful to diftinguifh cafes of the na-
ture laſt-mentioned, from thofe where the right or
thing ftipulated about is of itſelf doubtful, and no igno-
rance or want of information can be pretended reſpect-
ing it; for, in cafes of that kind, it is not neceffary
for a court of equity, after an agreement, if there be
not a plain miſtake, contrary to the intent of parties,
fhewn, to refort to the original right of the parties:
"That the right is doubtful," is a fufficient ground to
ſupport an agreement refpecting it.
An agreement for fale of an eftate, which, from
the nature of it, when compared with the circumftances
of
AGAINST UNREASONABLE CONTRACTS, &c.
:
!
:
*
of either of the parties to it, furniſhes decifive evi- [* 201. ]
dence of his being ſurpriſed, will be ſet aſide in equity,
although there be no furprife, fraud, or circumvention
actually proved, and though a conveyance have been
made purſuant thereto.
2
•
Thus, where a fteward, that had been for many Whorwood
years employed in the management of an eftate, arti- Vern. 185.
cled with a perfon, employed by the owner thereof,
to become the purchafer at 15,000l.; and by the arti
cles it was ftipulated, that he ſhould either pay the
whole in money, or might return lands to make up
what he paid fhort in money of the 15,000l. Purſuant
to theſe articles, the purchafer obtained a conveyance
of part to himself at an under-value, alledging, that
it was not material what fum was mentioned to be the
confideration of the conveyance, in regard he was to
make up the whole 15,000l. and had fold other par-
cels and paid the money, amounting to 4500l, as the
vendor appointed, and would now return fo much land
as fhould make up the 15,000/ The court, on a
bill brought by the vendor for that purpoſe, ſet aſide
the articles and the conveyance made to the vendee,
except as to fo much as he had fold to other purchaſ
ers; declaring, that they looked upon the vendee [202. ]
but as an agent for the vendor, and one in whom he
had repoſed great truſt and confidence, which the ven-
dee had deceitfully abuſed; and that the articles them-
felves ſeemed to manifeſt ſurpriſe, the vendor having
occafion to fell to raiſe money, and yet the articles
left the vendee at liberty to pay as ſmall a fum of
money
as he pleaſed, and return what of the lands he thought
fit to make up the value. And this decree was affirmed
on appeal.
*
But, in the foregoing cafe, the court affumed to Ibid.
itſelf a greater latitude; becauſe the vendor had
clapſed the time prefixt by the articles, in which he
was to make good the entire payment by money, or to
return the lands.
Again, Where a leafe for three lives came to a Gee v. Spen-
man's three daughters, as co-heirs and ſpecial occu- fer, 1 Vern, 32.
pants; there being a fuit in Chancery touching this
leaſe, the huſband of one of the daughters, fearing
to be in law, and being made to believe that he ſhould
be forced to pay cofts, releaſed the arrears that ſhould
be coming to him for his fhare of the rectory to the
other
t
EQUITABLE JURISDICTION IN RELIEVING
[203] other fifters, who were to bear the charge of the
fuit: And his fhare of the arrears amounting to one
thousand pounds, this releafe was fet afide on the-
ground, that a mifapprehenfion of the party ſhould
avoid it.
}
Vide Meade v.- If, in entering into a treaty for an agreement, there
Webb, Brow. be a wilful and induſtrious concealment of the truth
Ca. Par. 407. in a material point by one party, in order to keep the
rick v. Brode- other in ignorance, and to profit thereby; that will be
rick, 1 P. Will. confidered as a grofs fraud, and be a ground, in equity,
et vide Brode-
241.
to fet afide the contract; efpecially if fuch concealment
be accompanied with mifreprefentation, and a preme-
ditated intention to deceive: As if a man's agents, on
a treaty for a leaſe, mifrepreſent the quantity of land
propoſed to be demifed, to be one hundred acres more
than what it really is; and this miſrepreſentation being
made in the prefence of the principal, he, by not
contradicting, in effect confirms the truth of what they
fay; and it be in proof that this is done before the
execution of the agreement, and at a time when the
leffor has caufed a furvey to be taken, which aſcertains
the exact meaſure and limits of the premiffes, and
yet he does not think proper to undeceive the leffee,
but purpoſely conceals the true meaſure and quantity
[* 204.] from him, this will be a fufficient caufe for a court of
equity to fet afide the agreement.
Vern. 60.
Strode v. Par-
ker, 2 Vern.
If a bill be brought for performance of a thing, for
the non-performance of which a penalty is recoverable
at law, the plaintiff muft, by his bill, waive all bene-
fit of forfeiture, or it will be a good cauſe of demur-
rer.
A court of equity will not fuffer any advantage to
be taken of a penalty or forfeiture annexed to an agree-
ment, where the fubftance of the contract may be
obtained, notwithſtanding the penalty be not levied.
Therefore where, on a bill to foreclofe a mortgage,
it appeared, that the intereft was, by the deed, agreed
316. Holles v. to be 51. per cent. per annum, payable half-yearly; and
Wyfe, 2 Vern,
289. Nichols if not paid by the fpace of two months after the time
v. Maynard, of payment appointed, then to be raiſed to 51. 10s. per
3 Atk. 520. cent. for increaſe of intereft; the intereft being in
arrear, the queftion was, at what rate it ſhould be
computed? And it was decreed to be computed at the
rate of 51. per cent. per annum only: For the increaſe of
intereft on non-payment at the day, operated in na-
ture of a penalty, and therefore was relievable in equity.
Nor
AGAINST UNREASONABLE CONTRACTS, &c. .
* Nor will equity permit any advantage to be taken [* 205.]
of a penalty or forfeiture, where compenfation can be
made.
But, in cafes where the covenant or agreement Wafer v. Mo-
actually operates by way of penalty, the court, to avoid cato, 9 Mod.
being arbitrary, will not relieve, unlefs in cafes where 112, 113.
it can give fome compenfation in damages, and where
there is fome rule to be the meaſure of thoſe damages.
And, therefore, if a leffee for years covenant not to
alien without licence of the leffor under penalty of for-
feiting the leafe, and afterwards affign or alien with-
out licence; equity will not relieve againſt this forfei-
ture, becauſe there is, in fuch cafe, no rule whereby
to meaſure the damages.
1
So, where marriage articles provided, that, in Vernon 63,69.
cafe the hufband did not, within two years after the Vide fupra.
marriage, fettle fuch a jointure on the wife, as 19-21.
thereby was agreed to be fettled, then the huſband
fhould only have the intereft of the wife's portion paid.
him during his life; and the wife died within the two
years, he not having fettled the jointure, which by the
articles he was obliged to fettle: A bill brought by the
huſband to be relieved againſt * the articles, and to [* 206.]
have the portion (infifting that if he at any time fet-
tled fuch jointure upon his wife, though not within
the time prefcribed by the articles, he would have
been relieved againſt the articles, and have had the
portion decreed him) was difmiffed. The reaſon for
which difmiffal feems to have been, becauſe no com-
penfation could be made after his wife's death, fince no
jointure could then be ſettled on her.
}
So, where one by articles made upon his marriage Colonel
was to receive 4000l. portion with his wife, viz. 1500l. Cheek's cafe
in hand, and 2500l. more, if he made a fettlement in cited ibid.
the space of three years: The marriage took place,
and the wife died within two months, and before the
huſband had made a fettlement purſuant to the articles.
And a bill exhibited by him to be relieved, was dif-
· miffed.
Again, where one being employed by the East India Blake v. Eaſt
Company as their chief agent in India, covenanted that India Compa-
he would not trade for himſelf, or any other, in ny, 2 Chan.
feveral commodities, under penalty of fo much per This cafe may
Ca. 198.
pound; and the penalties greatly exceeded the va- likewife be
lue of the commodities. The covenantor having fupported, on
the ground
purchaſed
}
t
EQUITABLE JURISDICTION IN RELIEVING
.
that it was a
national cauſe
and concern-
ment, and if
not upheld,
the company
might have
been ruined.
ny
[* 207.] * purchaſed the prohibited commodities, the compa-
fued for the penalty in an action of debt for 26,000%.
The defendant filed his bill to be relieved; and though
he proved, that it was for the benefit of the company
that he fo traded, for whatever he bought he fold to
them at a juft and market price; and that if he had not
provided fuch goods, the company could not have
been ſupplied; and that fuch dealings were neceffary
for the ſupply and benefit of the company, with other
favourable circumftances, yet the bill was difmiffed:
The reaſon for which feems to have been, that no
compenfation could have been made, it being impoffi-
ble to aſcertain what damages might arife to the com-
pany from ſuch trading, by the encouragement it would
give to other people.
Small v. Lord
$
Equity will not relieve against an agreement, al-
though from the terms of it, it feems to be in the nature
of a penalty, if it be not really fo.
Thus, where A. fold an eftate to B. covenanting
Fitzwilliams, againſt incumbrances, and particularly against his
Prec. Ch. 102. wife's dower. Afterwards B. * articled to fell to C.
[* 208. ] and in the articles it was agreed, that C. fhould retain
400% of the purchafe money in his hands for two years
without intereft; and if, in that time, the wife of A.
releaſed her dower, C. was to pay the 400l. or elſe
to retain it abfolutely. A. died; his widow did not
releaſe her dower within two years, on the contrary,
ſhe brought her writ of dower, but died before a
recovery of it. Then the vendor filed a bill to have
the 400l. paid, urging, that it was but in nature of a
penalty to fecure against the dower, which was then
at an end.
But it was alledged on behalf of the vendee,
and the court coincided in opinion, that the money
retained here was not in nature of a penalty, but the
retention was part of the terms of the agreement, and
the meaſure of the fatisfaction for the contingent
incumbrance of dower, And as, had the wife re-
covered the dower, and lived feveral years,
years, the
vendee could have had only the 400l. and would
not have been permitted, at leaft in equity, as affignee
of B. to fue the covenant of A. againſt his
own agreement in writing, which took notice of the
dower, and the covenant and agreement to retain
the 400!. as a recompenfe for it; fo that the
vendet
AGAINST UNREASONABLE CONTRACTS, &c.
?
1
* vendee ran the hazard of her living, he ought to have [209. ]
the advantage of her dying. And no relief was given.
Adams, et al.
417, et vide
6 Bro. Par. Can
So where, among other claufes and covenants in a Ponfonby v.
leaſe of lands, in Ireland, for lives, renewable for ever, 6 Bio. Par. Cap
dated in 1719, there was one that the leffee and his
heirs, with all their family, fhould, within one month Rolfe v.
from the commencement of the leafe, live on the ef- Peteifon,
tate during the continuance of the leafe, and of every 470.
other to be made purſuant to the intent thereof; and
that, when he or they fhould fail fo to do, the rent of
1257. 18s. 9d. therein reſerved, ſhould rife to the fum of
150l. and fo continue yearly to the end of the then de-
mife, and of any other demife thereafter to be made
purſuant to the covenant for renewal, &c. In 1729
the leafe was renewed. Then thefe leafes were affign-
ed, and the affignee in 1748 quitted the premiſes and
never refided upon them afterwards.. In Auguft 1751
the agent for the head landlord demanded the increaf-
ed rent of the affignee of the leffee, who freely paid
it, being a year and a half's arrear; but, at demand-
ing, on the 5th of November following, another year's
arrear, the leffee refufed to pay it: whereupon the [* 210. ]
leffor diftrained for it, and the tenant replevied, and
the landlord avowed, and proceedings at law were go-
ing on for recovery of the rent, Then a bill was filed
by the affignee to be relieved from this covenant, and,
on his behalf it was urged, that this covenant for the
perpetual refidence of the leffee and his heirs, with all
their family, was repugnant to the nature of the ef-
tates demifed, contrary to reafon, in reſtraint of natu-
ral liberty, and againſt the policy of the realm; that,
if good in law, yet, being inferted only for the fake
of improvement, and to fecure the rent referved, the
fame had been fubftantially performed, and the defign
thereof anſwered to the head landlord, as the lands had
been always kept well stocked with more than fufficient
to anſwer the rent; that the large fine paid by the under
leffees fhewed the lands to be of confiderable value
above the head landlord's rent; and that the additional
rent was in the nature of a penalty, and relievable a-
gainſt in equity. But, on the other fide, it was urged,
that there was no ground for the interpofition of a court
of equity to prevent the queſtion being tried at law,
where it was difputable; and that the leffees fhould
have eſtabliſhed their titles there before they came
into
EQUITABLE JURISDICTION IN RELIEVING
•
[* 211.]* into a court of equity for relief; that, had the imme-
diate leffee applied to a court of equity for relief
againſt the covenant objected to, he must have been
fent to law to try how far that covenant was or was
not reaſonable: For, fuppofing it unreaſonable, un-
lawful, or waived by any act of thoſe under
whom the leffor claimed, all theſe were mere legal
queftions no way cognizable in equity; that the
benefit was claimed as appendant to the inheritance,
and, as fuch, being a matter of freehold, was triable
at law only. But it was faid, that the covenant in
queftion was founded on the trueft principles of law
and policy. The former fuppofed the leffee refident
upon the demifed lands, manuring and improving
them for his own and his landlord's benefit, whofe rent
aroſe from fuch induftrious manurance and improve-
ment of the tenant; that a claufe of refidence on the
queftion arofe demifed premifes, with an increaſe of rent attending
the failure, was not a penalty, like the forfeiture of a
man's eftate upon non-payment of a fum at a certain
day, but was a mutual agreement for public benefit;
ance's, &c. no
the landlord letting his land at an eaſy rate, whence the
opportunity
had been given tenant, by raifing a comfortable fubfiftence for him-
{212.] felf, would confequently benefit the community by
for improving fupplying it with the produce of that land: But, upon
the country by neglect of fo important a confideration, he justly fub-
agriculture.
Note. The
On an eftate
fituate in Ire-
land, where,
from difturb
the arrears of
increafed rent,
*
jected himself to an advanced rent, as a compenfation
for the breach of both a private and public truſt repoſed
in him by the landlord. And upon thefe grounds the
bill was ordered to be difmiffed.
It was contended in the preceding cafe, that, as no
demand for the advanced rent had been made from
the commencement of the non-refidence in 1748, until
Note, The af- August 1751, although the head landlord and his
fignees paying alienees well knew of it; and, as he had accept-
ed the referved rent, given receipts for it in the
when demand ufual manner without demanding any additional rent,
ed, ſeems to ob- and twice renewed the original leafe without ma-
elufion to be king any claim of the fame, this acquiefcence and
thefe acts of the leffor amounted to a waivor of the
penalty and covenant; efpecially as against the affignee,
omition previ- who was a purchafer for a valuable confideration, and
ought not then to be reforted to.
Sed non allocatur;
this being part of the original agreement, which muft
continue as long as the leafe, how often foever renewed,
unlcfs difcharged by mutual confent.
viate any con-
drawn from
the leffor's
ous thereto.
In
AGAINST UNREASONABLE CONTRACTS, &c.
}
* In all caſes where an agreement is voluntary, and in [ * 213. ]
favor of one of the parties; the condition, although
penal in its effect, will be binding on the favored par-
ty, if the agreement be not strictly performed.
Thus, where a creditor agreed to take a fum of Vern. 220,
money leſs than his debt, ſo as it were paid precifely
by fuch a day, and the debtor failed of payment; a
bill filed by the debtor, fuggefting fome equitable
caufes why he did not pay precifely at the day, and
ſtating that he tendered the money a day or two after-
wards, was difmiffed as containing no equity.
Nichols v.
a ◄ Jury v. Cox.
d So, where a mortgagee lends money at five per cent. Pre. Chan. 160.
bût agrees in the deed, that if the money be paid within Barnard 481.
three months after it becomes due, he will accept of
four per cent.; if the mortgagor does not pay the money 3 Atk. 520.
within the time fixed, he will be decreed to pay the et vide Barrel
intereft at five per cent.
Maynard,
v. Sabine,
I Vern. 268.
* 214. ]
And, where a father made a voluntary fettlement on Vern. 456.
his eldeſt ſon, with a provifo, that if he did not pay to
his younger brother 600l. at his age of twenty-one,
then the eſtate of the eldeſt fon, both at law and in
equity, * ſhould ceaſe, and, if the money was not [
paid, the father granted away the eftate: The court
would not relieve the fon, in regard the conveyance
was purely voluntary, and the father might put what
conditions and reftrictions he thought fit upon the eldeſt
fon.
But, if (on an agreement by a creditor to take a lefs
fum than his original debt, provided it be paid on a
day certain) the original fecurity be bettered by the
addition of other perſons added thereto; it feems quef-
tionable whether equity will not relieve, on default of
payment of the leffer fum at the time ftipulated.
And equity will give relief againſt the penalties of
bonds for performance of covenants, &c. and for that Vide 1 Sid 442,
purpoſe fuch courts frequently fend the parties to a trial
at law, to afcertain the damages in a quantum dam-
nificatus.
}
i
Ì * 215.] * Df the Principles on which Courts of
Equity refuse to interfere in Cales of
Agreements.
Vide1 Ch.Rep.
84, 85.
1 Vez. 447.
Armiger v..
Clerk, Bunb.
T
HE principle, upon which courts of equity
retain bills for the ſpecific performance of agree-
ments, being, their having power to give a more com-
plete remedy, and render more adequate justice, ac-
cording to the intent of the parties, than courts of law;
not by binding the intereft in the lands, but by enfor-
cing the party by fubpoena to carry the contract specifi-
cally into execution; it is a general rule, that where-
ever a matter refpects perfonal things, and lays merely
in damages, there the remedy is at law only: As well
Pl. 13, in note, becauſe courts of law can give as full and effectual a
P. Will. 570. reparation in ſuch caſes as courts of equity, as becauſe
the afcertainment of damages is the proper buſineſs of
a jury, and cannot be adjufted by the confcience of a
chancellor.
111. et 2 Eq.
Ca. Abr. 19.
Cudd v.Rutter,
[* 216.]
Thomas Gilb.
Rep. Eq. 227.
et Dupins v.
flon, there
cited..
*But although, in cafes where the relief may be as
Vide Allport v. effectually had at law as in equity, the court will, if
the agreement be denied, and the relief demurred to,
difimifs the bill; becauſe the agreement must be efta-
Duke of King- blifhed by a jury before it can be carried into effect,
and, after it is eftabliſhed, lays in damages only: As,
if a bill be brought on a covenant to pay a certain fum,
and the deed is denied; yet, if the relief be not demur-
red to, but the defendant anſwers (whether he denies
the agreement or not) the court will decree thereupon
on the hearing; becaufe the defendant admitted the
juriſdiction, by anſwering and putting the agreement
in iffue, and not demurring.
1 Eq. Ca. Abr.
17. 1 Bac. Abr.
69. Chan. Rep.
158.
But in fuch cafe, if the agreement be denied by the
anfver, and be not proved in the caufe by two wit-
neffes, but only by one; the court will make an order
to try it at law, and retain the cafe upon the equity
referved.
Another exception to this rule, as to cafes laying in
damages only, is taken, where any matter of fraud is
mixed with the damages; for this brings the cafe with-
1
in
PRINCIPLES ON WHICH COURTS OF, &c.
..................
*
in the proper jurifdiction of a court of equity, which [* 217. ]
will then retain the bill, and direct an iffue to afcertain
the damages upon a quantum damnificatus. As if A.
bring an action of covenant at law for damages, and B.
file a bill for an injunction, upon the equitable fuggef
tion, that the covenant was obtained by fraud, there
if A. file his crofs bill for relief upon that covenant, the
court will retain it; becauſe the validity of the covenant
is brought into difpute in that court, and on a ground
properly cognizable there: And therefore, if the vali-
dity of the deed be eſtabliſhed, the court will direct an
iffue to aſcertain the quantum of the damages.
[218. ]
Nanderne
v. Wilkes,
And, even where no fraud is fuggefted, if, from the
nature of the agreement, a fpecific execution is necef-
fary to do effectual justice, and anfwer the fubftantial
intent of the parties; courts of equity will decree the
agreement ſpecifically, though, otherwife, the proper
remedy would be the recovery of damages: As if the
contract be to perform fomething relating to perfonal
things at feveral diftinct times, or at a future period.
Thus, where A. affigned ſeveral fhares of the Ranelaigh
excife in Ireland to B. and B. covenanted to fave A.
v. Hays,
I Vern. 189.
harmleſs in reſpect of that affignment, and to ftand in S. C 2 Chan.
his place touching the payment to the king, and other Ca. 146
matters that were to have been performed by him
1 Bac. Abr. 69.
; et vide Buxton
A. in a bill filed, fuggefted that he was fued by the v. Lifter,
king for 20,000l. and that B. by agreement, ought to 3 Atk. 383.
have paid it, and therefore prayed a decree againſt B.
to perform the agreement in fpecie: It was objected, i Eq. Ca. Abr.
that this was no proper fubje& for equity, nor any 393. Pl. 5.
thing that the court could decree; for here was no Moore v, Hart,
ſpecific covenant, but a general and perfonal covenant i Vera. 201.
for indemnity, which founded only in damages, and Et vide another
could not be afcertained in equity (efpecially in this fra, Dr. Bet-
caſe, there being no breach of the covenant affigned tefworth v.
in the bill) for, a fuit having been brought by the king, Dean and
was not in itſelf any breach. But the lord keeper de- Paul's.
creed, that B. fhould perform his covenants, and di-
rected it to be ſent to a maſter; and that, toties quoties,
any breach fhould happen, the mafter fhould report it
ſpecially, that the court, if occafion fhould be, night
direct a trial on a quantum damnificatus: His lordship
conceiving it confcionable, that B. fhould be decreed
to clear A. from all theſe fuits and incumbrances with-
in a reaſonable time.
So,
I
exception in
Chapter of St.
PRINCIPLES ON WHICH COURTS OF EQUITY
!
[ * 219.]
Taylor v.
Neville, cited
3 Atk. 384, et
Ward cited
ibid.
* So, where a bill was founded upon articles for
fale of eight hundred ton of iron, to be paid for in a
certain number of years, and by inftalments, a fpecific
vide Duke of performance was decreed.
Buckingham v. Again, fuppofe that two partners fhould enter into an
agreement by a memorandum to carry on a trade toge
ther, and it fhould be fpecified in the memorandum,
that articles ſhould be drawn purſuant to it, and before
they were drawn one of the parties fled off, and a bill
were filed: There could be no doubt, but that a court
of equity would decree a ſpecific execution, although
the contract related to a chattel.
لحمة
*
And it is obfervable, that in all cafes of agreements
reſpecting things real, where the bill is filed on behalf
of the vendor, in which cafe the relief prayed is appli-
cable to money only, courts of equity do nevertheleſs
decree a ſpecific execution: The principle upon which
fuch courts govern themſelves in this cafe is, that upon
mutual articles there ought to be mutual remedies: but,
if the vendee had a remedy both at law and in equity,
220.]* the vendor would not be upon a par with him, unleſs
he also had the fame remedies. Befides, the remedy
the vendor has at law, is not a remedy adequate to that
which he has in equity; for, at law, he can only re-
cover the difference between what he actually fells for,
and what he agreed for, in damages; whereas equity
will give him the whole fum.
Thus much having been obferved, upon the general
principles on which courts of equity retain or difmifs
bills for the fpecific execution of agreements, upon
matters apparent upon the face of them; the next
object of our attention feems to be, what circumftan-
ces, connected with, or arifing out of the contracts
themſelves, will be a reafon for refufing the aid of the
court upon the general merits. And in the purfuit of
this enquiry I fhall confider,
Firft, What circumftances furnish a ground, for
courts of equity to refuſe interfering in cafes of agree-
ments. And,
Secondly, What circumftances have been confi-
?
dered
REFUSE TO INTERFERE WITH CONTRACTS &c.
* confidered às not furniſhing a ground for courts [* 221. ]
of equity to refuſe the exerciſe of this power in fuch
cafes.
On the firft of thefe heads of enquiry, it is obferv-
able, that courts of equity, having neceffarily a dif-
cretion (not an arbitrary difcretion, but a difcretion
founded upon certain grounds, and governed by fixed
rules of equity) in the exercife of their jurifdiction,
in making decrees for carrying contracts into execution
in fpecie; becaufe, were it otherwife, they might
be obliged to make decrees tending to the ruin of
one of the parties to a contract, which would be repug-
nant to the end of their inftitution: Therefore, no
rule is better eſtabliſhed than, that every agreement, to
merit the interpofition of a court of equity in its favour,
muſt be fair, just; reaſonable, bona fide, certain, in all
its parts, mutual, ufoful, made upon a good or valuchle
confideration, not merely voluntary, confiftent with the
general policy of a well-regulated fociety, and free from
fraud, circumvention, or furprize; or at least fuch
agreement, muft, in its effect, ultimately tend to
produce a juft end. If any of thefe ingredients are
wanting, or that object be not in view, courts of [* 222. ]
equity will not decree a ſpecific performance.
༣
Therefore, if there be any concealment of a cir-
cumſtance diſadvantageous to one party to an agree-
ment, by the other, fo as to lead the former into
a mifconception; that, when fuggefted and proved,
will be a folid objection to decree a performance in
fpecie.
Shirley v.
Stratton, L
Bro. Rep.
Clerk, pre.
Chan. $39.
Thus, where the defence to a bill, for compelling
the execution of an agreement for purchaſe of an
eftate, and payment of the purchafe money, was, Chan. 440. et
that the eftate had been reprefented to the defendant, vide Young v.
as clearly a neat rent of gol. per annum, and no notice
had been given him of the neceffary repair of a wall
to protect the eſtate from a river, which would occa-
fion an outgoing of 50l. per annum; and it appeared
Bro. Par. Ca.
96. Vin. vol. v.
upon evidence, that there had been an induftrious con-
553. Ca. 34.
cealment of this circumftance during the treaty: The Fran. Max.
court difmiffed the bill.
Rochfort v.
Creſwick, 2.
Eq. 6.
Upon the fame principle of unfairness mifreprefenta- Buxton v.
tn is held a good objection to a ſpecific perforinance. Lifter, et al.
VOL. II.
There- 3 Atk. 383.
H
!
PRINCIPLES ON WHICH COURTS OF EQUITY
}
i
Ca. 535. et
Fink v.
Frank, infra.
"
[* 223. ] Therefore, where an * agreement had been made'
et vide Breie for the fale of timber trees, and a bill inftituted to
ton v. Cowper,
2 Brown's par. carry it into execution, it was objected, that there
had been misreprefentation; for the purchafer had
been induced to give 3050l. for the trees, by being told
by the vendor, that two timber merchants had valued
it at 2800l. which he faid was true upon his honor,
and that when he faid upon his honor the vendor ought
to believe him;" when, as it came out, the timber
merchants, upon whofe judgment the vendee bought,
did not fet any greater valuation than 2500/. upon the
timber: Lord Hardwicke thought this fuch an ingredi-
ent in the contract, as fhould induce the court not to
decree a specific performance.
Per Lord King,
1 Vern. 229,
[
*
So, no equity would arife, if the miſrepreſentation
were, as to the identical perfon on whofe behalf the
contract was entered into. And therefore, if one,
being about to fell an eftate, fhould be informed by A.
that the vendor's brother defired to be the purchaſer;
and, thereupon, the vendor fhould declare, that his
brother ſhould have a better pennyworth than another
perfon, and ſhould article with A. for the fale of it
at an under value: If it ſhould turn out that the pur-
224. ] chafe was in truth * made for a ftranger, equity would
not decree an agreement fo procured to be executed in
fpecie.
Philips v.
Duke of Buck-
ingham,
Vern. 227.
■
And in the cafe of Philips againſt the Duke of Buck-
ingham, which arofe on an agreement between Lord
Nottingham's ſecretary and the Duke, who was led by
him to conceive that he was treating for Lord Notting-
ham, or for his for; and thereupon declared himſelf
willing to oblige any of that family, and faid, that if
the chancellor would take any way to fatisfy himſelf of
the value, he ſhould fet his own price; but it turned
out, that in truth, the chancellor's fecretary was
employed for the plaintiff, who had formerly been in
treaty with the Duke, which was broke off on a difa-
greement in price; and the Duke, afterwards difco-
vering this deception, refuſed to proceed in the fale,
and a bill was filed to compel him to execute the agree-
ment: The lord keeper faid, that there not having
been fair and open dealing in managing the affair,
and the duke appearing to have been misinformed and
drawn in, he would not, in equity, carry it into,
execution for the benefit of a ftranger; and difmiffed
the bill.
But,
REFUSE TO INTERFERE WITH CONTRACTS, &c.
**
*But in the laft cafe the Lord Keeper declared, [ 225. ]
that if the bill had been brought in the name of the
Lord Chancellor or his fon, and he would have
patronized the purchaſe, the articles must have been
decreed.
;
And where, by a fortuitous concurrence of circum-
ftances, a misconception arofe, without any actual
mifrepreſentation or deceit, and the fale of an eſtate
by auction was hurt by the act of an agent for the
vendor in conjunction with the vendee; the Maſter of
the Rolls confidered that as a ground to refuſe the inter-
poſitions of the court to carry the agreement into exe-
cution, although he did not deem it a ground to ſet it
afide.
The material facts of the cafe above alluded to Twining v.
Morrice,
[* 226. ]
were theſe. A. B. and C. (truſtees under a will for Taggert v.
the fale of eftates) put them up by auction. Previous Twining,
to the fale it was agreed, that the firft lot fhould not Brown's Rep.
be fold under a certain price; but if that was fold, fol. 326.
Chan. 1788.
the reft was to go at what they would fetch. The
agent for the vendor attended, and was acquainted
with this arrangement.
He being an attorney, a
client of his came up to him, and directed him to
bid for him, which he did, and the firft lot was
knocked down to him at the price fixed. The others
were alfo bought by him. The principal part of the
eftates turning out afterwards to be freehold, and not
copyhold, as fuppofed, the truſtees refufed, to com-
pleat the contract; and thereupon a bill was filed by
the vendee to have a ſpecific performance, and another
bill by the truſtees to fet afide the contract. And Sir
Lloyd Kenyon, then Mafter of the Rolls, was of opi-
nion, that although no fraud was imputable to any
of the parties, yet, as by an inadvertent act, the
agent for the vendor was in a fituation that hurt the
fale, and was put in that fituation by the vendee, it
was therefore not fuch a cafe as he could decree to.
be fpecifically carried into execution, though he would
not fet the contract afide. He, therefore, difiniffed both
bills, leaving the parties to their remedies at law.
•
1
Ca. 202.
If a contract be entire, and inequitable in part, Rich v. Syden-
equity will not apportion relief Therefore, where ham, 2 Chan.
one, upon the loan of 90% had got a bond from the
borrower of 1600l. conditioned for payment of 8col
and judgment thereupon; and the latter was in
right of his wife entitled to certain lands, of which
H 2
other
1.
PRINCIPLES ON WHICH COURTS OF EQUITY
[*227] * other perfons were feifed in truft for her: The court
would not, on bill for that purpoſe, fubject thoſe lands
to the fatisfaction of the obligation; becauſe the fecuri-
ty was gotten when the obligor was drunk, and there-
fore the Lord Keeper would not give the obligee any
relief in equity, not fo much as for the principal he had
really lent.
Edwards v.
Heather, Sel
Ca. Ch. 3. et
Par. Ca 415.
425. Max. Eq.
vide 2 Brown's
5, 6.
An agreement, unreaſonable, exorbitant, and made
with a perfon of weak intellects, although in part exe-
cuted, will not be fpecifically decreed.
Thus, where A. fold B. a copyhold eftate of the
yearly value of 16. on which there was timber to the
value of 150% for 630l, and covenanted to furrender it
on or before the enfuing Michaelmas; and B. paid 10s.
in part of the purchaſe, entered on the premiſes, cut
down timber, ſtocked the land, and acted as owner.
A. proved he had given notice in writing, that he
would furrender next court day, and attended accord-
ingly. On the behalf of B. there were feveral proofs
that he was difordered in his fenfes, and it was alledg-
ed, that as no cuſtom was fhewn whereby the tenant
was authorized to cut timber, it must be confidered
[* 228.] that, according to the common law, he had no fuch
Keen v.
Stukely, Gilb.
Rep. Eq. 155.
power, and therefore a plain impofition. And the
chancellor being of opinion that here was a great over-
value, and that the vendee's cutting down timber was
a proof of his folly, becauſe a direct forfeiture; and
allo obferving, that it was a matter merely at law, as,
if the furrender had been had, an action would have
laid, difmiffed the bill.
But exorbitancy of price, uncoupled with circumftan-
ces of fraud, has not yet been determined to be a
ground, for the court of Chancery to refufe its inter-
pofition on behalf of the vendor of an eſtate.
The firft cafe that occurs of this kind is that of Keen
and Stukely, which arofe in the court of Exchequer, on
a bill filed to compel the fpecific execution of an agree-
ment for a fale of land at forty years purchaſe,
which was decreed accordingly in the court of Ex-
chequer: But on appeal to the lords, this decree was
reverſed on another ground, which will preſently be
ftated.
But although exorbitancy of price has not yet been
held
REFUSE TO INTERFERE WITH CONTRACTS, &c.
*held a ground to refufe the interpofition of a court [* 229. ]
of equity, to decree the execution of an agreement free
from any imputation of fraud practifed upon the oppo-
fite party; the reafon for which feems to be, that
laying afide all fraud and inftitutions of pofitive law,
it is the confent of parties alone, that fixes the juft
price of any thing, without reference to the nature of
things themſelves, or to their intrinfic value; and that,
therefore, a man is obliged in confcience to perform a
contract which he has entered into, although it be a
hard one: Yet a court of equity will not decree a ſpe-
cific execution of a bargain, having this quality impu-
table to it, unless the party, applying for its affiftance,
be capable of performing ftrictly whatever is ftipulated
to be done on his part. For, in fuch cafes, thoſe
courts, confidering a bargain as an entire thing, which
ought to be performed in toto on both fides, or not per-
formed on either; and that the party calling for its aid
in a cafe of hardfhip has no ground to require it, when
he himſelf cannot perform his bargain, unleſs he be
permitted to difcharge it in part by compenfation, af-
fume a difcretion to refufe interfering. Upon this
principle the Houfe of Lords, in the beforementioned
cafe of Keene and Stukely, reverfed the judgment of [ * 230, ]
the court of exchequer; becauſe by the agreement,
the vendor ftipulated that he would, on or before the
29th of September then next enfuing, at the proper cofts
and charges of the vendee, make to him, his heirs,
and affigns for ever, a good eftate in fee fimple, to the
fatisfaction of the appellant and his counfel; and the
title could not be proved to have been made out by
that time, by reafon of a flip in form; without which
being done, the vendor could not entitle himſelf to the
purchaſe money.
So, where the plaintiff, in a bill for fpecific perfor- Hanger v.
mance, agreed to fell his manor and lands to the de- Eyles, 21 Vin.
fendant, by, a particular or rental, wherein the manor 2 Eq. Ca. Abr.
Abr. 540, Pl. r.
and royalties were mentioned, but no value fet upon 20, Pl. 16.
them therein; and it happened, that the plaintiff had
no title to the manor, but had been in poffeffion of
the royalties for feveral years: It was objected, Firft,
That the contract was at the rate of forty fix years pur-
chafe, which was an exorbitant price; and Secondly,
That though no value was fet upon the manor and
royalties in the particular, yet they were valuable in
themſelves; and that, therefore, fince the plaintiff
could
PRINCIPLES ON WHICH COURTS OF EQUITY
*
[*231.] could not perform his part of the agreement, by con-
veying the manor, he ought not to have the aid of a
court of equity to compel the defendant to pay the money,
fince the defendant could not have the full benefit of the
agreement: And upon this ground the bill was difïiff-
ed, although it was acknowledged that the manor was
of little or no value.
Hicks v.
Chan. 575.
et vide 2 Chan.
Ca, 17.
5,6.
So, where lands, of 180l. value yearly, were bar-
Philips, Pre. gained for at thirty-five years purchafe, and the vendor
covenanted to convey freehold, and about thirty acres
proved to be copyhold; the court of Chancery, this
Max. in Eq. being then deemed an exorbitant price, refuſed, on a
bill for that purpoſe, to decree a ſpecific performance,
even though the vendor offered to procure an enfran-
chifement of the land, or to make any compenfation in
the price: For, per curiam, this is a cafe proper for a
jury at law to confider of, who may mitigate the da-
mages according to what the circumftances fhall ap-
pear to be; but a court of equity can take no advan-
tage of fuch circumftances, but muft either decree an
execution of the agreement or difmifs the bill. And,
therefore, as the plaintiff cannot perform his part of
the agreement, becauſe part of the lands being * copy
hold cannot be conveyed within the meaning of theſe
articles, the words thereof being all of them proper
for conveyances at common law, only, the plaintiff
ought to be left to make the not of it he can at law,
and not aided by a court of equity.
[* 232. ]
Thompſon v.
Harcourt,
415.
But, if a contract be upon equal terms at the time at
which it is entered into, however unequal it become
2 Bro. Par. Ca, at a future period on fubfequent circumſtances, a court
of equity will nevertheless carry it into execution.
Therefore, where, during the execution of the South
Sea fcheme, A. agreed with B. to pay him 920l. per
cent. for South Sea ftock, the court of Chancery, al-
though that ſtock fell, between the time of entering.
into the contract and. performing it, to par, decreed, it
to be carried ſpecifically into execution; and that decree
was affirmed on appeal to the House of Lords.
/
Upon the fame principle, if A. were bound to tranf-
fer ftock, on or before fuch a day to B. and A. fuffer-
ed the time to elapfe, and then the ftock rofe; A.
would ftill be obliged to transfer fo much ſtock in
fpecie, at the price it bears, and to account for all the
dividends
REFUSE TO INTERFERE WITH CONTRACTS, &c.
* dividends from the time at which it ought to have [* 233. 1
been transferred.
2 Vern. et
That an agreement is not made bona fide, is cónfi- Child v.
dered, in equity, as a good objection to its being car- Danbridge,
ried into execution in fpecie. Therefore, where one, vide Small v.
failing in his trade, compounded with his creditors at Brackley,
fo much in the pound to be paid at the time therein infra.
mentioned; and, he having failed in payment at the.
precife time, fone of the creditors refuſed to ſtand to
the agreement: The court, on a bill for a ſpecific per-
formance, would not decree an execution fpecifically,
it appearing in the caufe, that the trader, to draw in
the rest of the creditors, had made an underhand agree-
ment with fome of them to pay them their whole debts,
though apparently they were to accept of the compo
fition; which was a fraud and deceit on the rest of the
creditors.
Again, uncertainty and want of mutuality are deci-
five objections, in equity, to the ſpecific execution of
an agreement.
ma
2 Vern. 415.
et vide Gilb.
20 7.
Thus, where A. fettled a manor on truſtees, to be Bromley v.
by them fold after his death, and * directed the Jefferies,
money thereby arifing to be difpofed of as in the fet-[* 234. ]
tlement mentioned, &c. with a power of revocation;
and afterwards A. on the marriage of B. with one of Chan. 242. et
his daughters, covenanted, that, if B. furvived him, Hall v. Butler,
and had iffue by his daughter, he ſhould have the Eq. Ca. Abr.
nor for 1500% leſs than any other purchaſer would give
for the fame, and A. afterwards revoked the ſettlement,
and difpofed of the land to other ufes than thoſe there-
in: The court, on a bill filed for a fpecific perfor
mance of the covenant, refufed, upon the hearing, to
decree it; firft, on the ground of the uncertainty of it,
becaufe, if the eftate was not to be fold, but B. was to
have it, it was not practicable to know what a purchaſer
would give for it. Secondly, becauſe it was not mu-
tual; for B. was not bound to take it at any price, and,
as the covenant was worded, if B. had died in the
life time of A. the covenant would have been of no
effect.
But it is fufficient, if there be mutuality at the time
the agreement is entered into. And, therefore, in the
before mentioned cafe of Stapilton and Stapilton, where Stapilton v.
an agreement was had between two brothers, the elder of Stapilton,
whom I Atk. 10.
PRINCIPLES ON WHICH COURTS OF EQUITY
[*235.]
• Benfon v.
Benfun, 1 P.
Will. 130.
* whom was fuppofed to have been tenant in tail under
an old fettlement, but, in fact, was not fo, being ille-
gitimate; after the agreement entered into the elder
died; it was objected, on a bill filed by his heir for a
Pre. Ch. 544. fpecific execution, that it was not mutual and equal,
for that an alteration as to their mutual benefit had hap-
pened by the death of the elder; it being faid, that, if
the elder had been legitimate, his heir (the plaintiff)
Short v. Wood, would not have been compelled to fuffer a recovery,
vide Goylmer becauſe the iffue in tail was not compellable to perform
the covenants of his ancestor, tenant in tail. But Lord
Hardwicke obferved, on this objection, that during both
their lives, the benefit and objection, was mutual, and
Diflinction be- the elder would have been equally compellable to fuffer
tween money a recovery with the younger; and, the chance being at
cumſtanced. first equal which died first, it would be hard to ſay,
that the act of God fhould hinder the agreement from
King in Eyres's being carried into execution.
ibid. 470. et
v. Paddifton,
2 Vent. 353.
S. C. 2 Vern.
48. Et note,
and land fo cir-
Note Lord
cafe, 3 P.
cafe, cited ibid.
et 3 P. Will. 8.
refuſed to
make fuch
"
#
Will. 13; and A court of equity will not make a decree that will
afterwards in be vain and nugatory; and, therefore, will not direct
Mr. Ondow's any thing to be done that must be ufclefs. It is, confe-
[*236.] quently, a rule of equity, that, if money be devifed to
be laid out in the purchaſe of lands to be fettled on
one and his heirs, "the perfon, for whofe benefit the
purchaſe is to be made, may come into court, and pray
to have the money itfelf, and that no purchaſe may
tail, with re-
be made: Becaufe no one has an intereft in it but
mainder in fee himſelf.
in himself, on
the ground that
decree in favor
of tenant in
a fine was a
And the fame rule prevails in equity, where the ap-
plicant is tenant in tail of money, if the remainder in'fee
thing that took be limited to himſelf.
up time; but,
notwithstand-
this, Loid
Parker's rule
in Short and
Wood, confo-
nant to the
• Thus, where 2000l. were, before marriage, agreed
by articles, to be invefted in a purchaſe of lands, to
be fettled to huſband and wife for their lives, remain-
der to the heirs of the body of the wife by the huf-
band, remainder to the heirs of the hufband; the
principal cafe, hufband received the money, then the wife died, leav-
has been gene- ing a fon and three daughter, and afterwards the huf-
and is now the band died inteftate: Then the eldest daughter took out
law. 'T'hefe adminiſtration to her father, and the fon inftituted a fuit
cafes feem to be against her to have the money paid to him, electing that
the ground,
it fhould not be laid out in land. It was objected, that
that the flatute this might be a prejudice to the fifters, who, if the lands
zut extend to were to be ſettled, and afterwards the fon fhould die with-
rally followed,
founded on
de Donis does
out
REFUSE TO INTERFERE WITH CONTRACTS, &c.
..
.
entails under
creatures of a
out* ifiue and without levying a fine, would be entitled [237. 1
to them under the contingency; and it was faid, there them, being
could be no reafon. to deprive the fifters of that con- agreements,
tingency: But the court faid, that a fine could not be and, confe-
levied of money agreed to be laid out in land to be fet- queatly, mere
tled in tail, but a decree would bind fuch money equally court of equity,
as a fine would have bound the land, if bought and which holds,
fettled; and, in regard the fon would have the entire that the perfon-
intereft in the land when purchafed and fettled, and of fuch an in-
the abfolute power over it, and that a court of equity teret fhall, in
would not decree a vain thing, namely, a purchaſe and equity bind it
fettlement to be made, which the fon the next mo- fale, or the like
by bargain and
ment by a fine only, which might be levied in vacation without fine;
time as well as in term, might cut off, it was decreed, becauſe no in-
that the fon fhould have the 2000l. and the adminiftraz jury is thereby
trix be indemnified.
that is malter
done to tenant
in tail; as a fiue
◄ And, if a feme covert is intereſted in money articled would not re-
to be laid out in land and fettled, fhe may, by coming time, or give
quire more
into court and confenting, give effect to a difpofal of him a better
her intereft. So, if the party applying for the money chance: But as
were married, and his wife, confequently, entitled to
dower; it would, without doubt, be expected, * that
the wife fhould appear in court, and give her affent to
the husband's receiving it.
a recovery takes
up time, the
court will not
[* 238. ]
take that ad-
vantage from
the remainder-
will ing his intereft,
even in an equi-
table eftate, to
But a releafe by husband and wife (the wife being
entitled to an eftate in tail in lands purchaſed with mo- man, by ſuffer-
ney fo circumftanced) to the truftees of the land,
not bind her intereft therein.
Therefore where, in confideration of a marriage, be barred by a
5ool was agreed to be laid out in the purchafe of lands, more expedi-
tious process.
to be fettled to the ufe of the hufband for life, then 4 3 P. Will. 14
to the wife for life, then to the child or children Cunningham
to be begotten by the hufband on her body for v. Moody,
fuch eftate, and in fuch proportion, &c. and, in de- 1 Vez. 174-
fault of iffue, to the hufband, his heirs, and affigns för
ever; they had iffue one daughter, who married A.
There was no appointment, and the truffee paid
the 500l. to A. and his wife, who received it as mö-
ney, and gave a releaſe. A bill was afterwards
brought by a daughter by a fecond marriage againſt
A. as reprefentative of his wife, to have the money.
as land. And one queftion was, whether the acts
done by A. and his wife were fufficient to veft the
money in them qua money. Et per Lord Hardwicke,
certainly
PRINCIPLES ON WHICH COURTS OF EQUITY
[* 239.] certainly A.'s wife was tenant in tail, reverfion in fee,
in a moiety to herfelf, and, therefore, if fhe had been
fui juris, and had brought a bill for the money, a
moiety would have been decreed to have been paid to
her, and the other moiety been decreed to be put out
at intereft to go as the profits of the land would have
done. But here the was a feme covert, and then the
rule is, that, although he has the reverfion in fee of
the whole, it fhall be laid out as directed, unleſs fome
further act be done, by her coming into the court to
be folely and feparately examined, analogous to the
form of a fine at law: And, in fuch cafe, if the, with-
out the influence of her huſband, declare her confent
to have it in money, the court will decree it fo; and if
fhe is in the country, and cannot come, there will be
an order, in the nature of a dedimus poteftatem, to exa-
mine her there, which will take up time. The pay-
ment of the money, therefore, to them in the princi-
pal cafe, fhe not being fui jur's, is not equal to a de-
cree of this court, nor is the releafe fufficient to cauſe
it to be taken otherwife than as land, not being equal
to a fine, or fole and feparate examination, declaring
her free will. Nor can it change the equitable * qua-
[240. ]lity this money has gained, of being confidered as
Vide P. Will.
land.
And if tenant in tail, with remainder in fee in him-
go. et ibid. 389. felf of money fo circumstanced, were an infant, the
court probably would not decree the money to be paid
to him; becauſe, during his infancy, no fine could be
levied, and he might die before he came of age.
Vide Legate v.
Sewell, I P.
Will. 807.
Caldwell v.
Shadwell, cited
ibid. 485. et
Formerly the practice of the court of Chancery was,
to make a fimilar decree upon a bill preferred by tenant
in tail, with remainder over to another or others; and
fo it ftood until the cafe of Caldwell and Shadwell,
wherein Lord Cowper decreed the truft money to be
vide ibid. 471. laid out in a purchaſe of land, and fettled on the
firft tenant in tail, remainder over in tail; to the in-
tent that the remainder-man might have the benefit
of the chance intended him by the perfon creating the
truſt, in caſe the tenant in tail fhould die before fuf-
fering a recovery to bar it, which required time, and
could not be done in vacation: And the accident
of the death of tenant in tail in this cafe, before a reco-
very fuffered, fhewed the remainder-man's intereft in fo
i Vez. 176.
glaring
REFUSE TO INTERFERE WITH CONTRACTS, &c.
glaring a light,
ever fince.
*
that it has eſtabliſhed the precedent [* 241.]
But ftill where there is tenant in tail, remainder
in fee in another, the court will decree the ino-
ney to be paid them, if they agree together upon di-
viding it.
but 271.
Thus, where 8000l. was devifed to be laid out in Carter v. Car-
land, and fettled to the uſe of B. in tail, remainder to ter, Ca. T.Tal-
C. in fee, B. and C. agreed by articles to divide the
money in the manner therein mentioned; and foon af-
ter the entering into the articles, and before they were
executed by a divifion of the money, B., the tenant in
tail, died without iffue: And, on a bill filed for that
purpoſe, a fpecific performance of thefe articles was
decreed at the Rolls, in favor of the executor of B.,
and that decree affirmed afterwards on appeal to the
chancellor,
I P. Will. 485.
But the principle upon which courts of equity pro- --v. Marfb,
ceed in theſe cafes, being the right of the remainder- Eafter Term
man to the chance of what the time neceflarily taken 1723. Vide
up in fuffering a recovery may produce, they do not in note.
regard whether the purchafe be bona fide or not, if the
main object be anſwered; and, therefore, where [* 242. ]
money was articled to be laid out in land, and fettled
on the firſt and other fons in tail, the court of Chance-
ry, in order to preferve the chance to the fecond fon,
would not decree the money to the eldeft fon, but or-
dered the fame to be invested in a purchaſe purſuant to
the articles; whereupon the eldeſt fon got one to lend
him a purchaſe, and to fettle it, with an intention forth-`
with to fuffer a recovery, and to reconvey the eftate,
back to the feller; yet the purchaſe, though all this ap-
peared by the mafter's report, was allowed.
v. Gilborne,
It is a good anfwer to a bill in equity for an execution 1 Vez. 450.74.
in fpecie, to fay, that the agreement upon which it is Brownfmith
founded is merely voluntary, and without confideration. Strange 738.
The reafon is, that a court of equity, unleſs in particu- 1 Atk. 10.
lar inftances that furnish exceptions to the general rule upon
Vide fupra.
its own particular principles, never decrees a fpecific.
execution of an agreement, unleſs it be fuch an one where-
upon real damages might be recovered at law. And, although
there be, as we have feen, a diftinction at law between a
bare agreement, and an agreement or covenant under
hand and feal, having the folemnities of a deed; inafinuch
as,
PRINCIPLES ON WHICH COURTS OF EQUITY
[*243.] as, in the latter cafe, the contract* will fupport an action
at law, though without confideration, the form of the
inftrument being rather confidered there, than the caufe
of its being made: Yet as, at law, a covenantee, fo
circumftanced, would recover only mere nominal
damages, as a fhilling, or the like, courts of equity,
that attend to the fubftantial confideration, and found
their jurifdiction on that, and do not notice matters of
fo flight a value, refuſe their interpofition in the latter
inítances, as well as in the former.
Furfaker v.
Rep. 139.
Therefore, where a man covenanted to convey his
Robinfon, Eq. Copyhold to his baftard daughter, and to make further
Ca Abr. 123. affurance, and fhe was admitted accordingly, but with-
S.C. Pre. Chan. out a furrender, whereby the copyhold did not legally
475. Gilb. Eq.
pals, and then the father died; a bill brought by her
againſt the heir at law of her father to fupply the de-
fective conveyance was difmiffed: Becaufe the daugh-
ter was, in confideration of law, a mere ftranger,
being nullius filia, and then, there being no confidera-
tion for the conveyance, it was merely voluntary, in
which cafe a court of equity, it was faid, had no foun-
dation to decree againſt the heir.
[* 244.]
Coventry,
}
* Where a fettlement or articles are made by the
Per L. Keeper, father, or other lineal anceffor, in confideration of the
marriage of his fon, &c. all the remainders limited to
Mod. 132. his children and their pofterity, are within the confide-
vide 2 Vez.
ration of that ſettlement, or thofe articles: But where
671. A strong
cafe in favor of the fettlement or articles are made by a brother, or other
children as pur- collateral rélation on his intermarriage, then, after the
limitations to his own iffue, all the remainders limited
to his collateral kindred are voluntary, and not within
the confideration of the marriage fettlement or ar-
ticles.
chafers under
articles.
Billingham
v. Lowther,
1
Thus where L. on his marriage with B. covenanted
to fettle certain freehold lands to the uſe of himſelf and
2 P. Will. 249. his intended wife for their lives, remainder to the heirs
Ch. Ca. 243. male of his body by her, remainder to his brother in
tail, &c. and to fettle copyhold eftates to the fame uſes;
but died before any fettlement was made, and on his
road to furrender the copyhold: It was held, on a bill
filed by the brother, to have this covenant executed
by the heir at law as to the copyhold; that, as to the
brother, it was voluntary, he being no party to the
articles, nor within the confideration of the marriage
ΟΙ
REFUSE TO INTERFERE WITH CONTRACTS, &c.
or marriage portion; and that a voluntary conveyance [* 245. ]
to a younger brother ought not, if defective in law, to
be made good in equity againſt the heir. And the bill
was difmitled.
But, although the rule, that no one can come to a
court of equity for a specific performance, who does
not come under the confideration of the agreement,
ftill holds good; and, confequently, a fpecific perfor-
mance is not now decreed for the benefit of collateral
branches in marriage articles: Yet, as agreements are
entire, and the feveral branches of the family may
have been in view of the parties at the time of their
being entered into, courts of equity have, in latter
cafes, laid hold of any circumftances that afford a ground.
to 'diftinguish them from the cafes already decided on
that head, ftill adhering to the rule, where fuch cir-
cumſtances do not occur.
Upon this principle, if any kind of confideration can
be collected from the terms of the contract, the court
will lay hold of it to fupport the claim of remote re-
mainder men.
*
2
I Vezi
Thus, where A. feifed in fee of lands, had iffue Ofgood v.
two fons, B. and C. and one daughter D. married Strode, et al.
to O. and feveral other fons and daughters; and, upon P. Will. 245
[ * 246. ]
the marriage of B. he fettled part of his eftates upon B. S. C. 10 Mod.
and his wife, and the iffue male of the marriage, with 533. Stephens
a power, if there ſhould be no iffue male, and but two v. Trueman,
daughters, to raife 1300l. thereupon. B. and his wife
died without iffue male, leaving two daughters; A.
the father, afterwards fettled the eftates to ſeveral ufes,
with power of revocation, but fubject to the charge
for his grand-daughters. Afterwards A. by indorfe-
ment revoked thefe ufes, and limited a new uſe to his
fon C. in fee, but the father continued in poffeffion;
then A. paid the two daughters of his eldeſt fon 650%
apiece, making 1300l. being their portions under the
firft fettlement, and took a receipt from each of them
in writing. Afterwards, on a treaty of marriage be-
tween C. with P. in confideration of the intended mar-
riage, and 600l. portion paid to C. both A. and C. by
marriage articles, covenanted to convey, within a
month after the marriage, the faid eftates to truftees
and their heirs, to the intent that P. the intended wife,
ſhould have a rent-charge of 60l. per annum for life for
a jointure, and that A. fhould have a rent charge of
50%
PRINCIPLES ON WHICH COURTS OF EQUITY
"
[* 247. ] 50% per annum for life; and that the eftates fhould,
fubject thereto, be fettled on C. for his life, re-
mainder to his firft and other fons in ftrict fettlement,
with a proviſion for daughters, remainder to E. a grand-
jon to A. by another deceafed fon (fince dead without
iffue) and his heirs male, remainder to his grandfon F.
fon of his eldest daughter, and his heirs male, remain-
der to the right heirs of A. the father. A. died before
any fettlement made, the wife of C. died without iffue,
then C. died without iffue, having deviſed the eftates
to his heirs at law. And, on a bill filed by F. againſt
the heirs at law, as well of A. as of C. to have a per-
formance of thefe articles in fpecie, it was objected
that, although the limitations in the articles to Č. and
P. and their iflue, were all on a valuable conſideration,
having been ftipulated for by the friends of the wife, or
by the wife, in confideration of the marriage; yet,
the fubfequent limitations, and, among the reft, that
to F. were merely voluntary, and out of the confide-
ration of the marriage or portion, being purely the
bounty of him from whom the eftate moved; and that
it had been often determined, that one and the fame
fettlement might be on good confideration in part, and
[* 248.] voluntary and fraudulent as to the reft, and fo* might
articles be. Sed per Lord Macclesfield, Chan. the mar-
riage and marriage portion fupported only the limita-
tion to the huſband and wife and their iffue; this was
all that was prefumed to have been ftipulated for by the
wife or her friends; but, by the appointment of the
eftate by A. by the indorfement, to his fon C. in fee,
which gave C. the legal eftate, and alfo by A.'s having
paid to his own grand-daughters their portions of 650l.
each, and taking their receipt for the money, he ob-
tained an intereft in equity in the eſtate, or, at leaſt,.
a truſt for the raifing 1300l. upon it; and it could not
be intended but that there was fome truft between A.
and C.; for, that the former would not otherwife have
parted with all he had in his life-time to C. and this was
rendered ſtill clearer by his continuing in poffeffion after
his appointment to his fon, and by his fon's fubmitting
to accept fuch limitations as were made him by the arti-
cles; wherefore each of them, viz. A. and C. having
an intereft in the premiffes, fo that the one without the
other could not make a fettlement thereof,- here was
now a proper perfon for A. to ftipulate with, nainely
C. his fon, that he (A.) would come into thofe articles
and
REFUSE TO INTERFERE WITH CONTRACTS, &c.
and join therein, on condition that the* eftate fhould, [* 249. ]
in cafe of C.'s dying without iffue of that marriage, and
E.'s dying alfo without iffue male, then go to F. And
this probably was part of the marriage agreement, and
of the terms on which it was made, though the leaving
out the fons of C. by any other marriage, might be a
miſtake. And, therefore, fince this might be, and
probably was, nay appeared to have been, the terms of
this marriage agreement, and the inducement to A. to
join therein, equity ought to decree a performance of
it, and the decree, carrying the articles into execu-
tion, was afterwards, on rehearing before Lord King,
affirmed.
So, where, in confideration of a marriage to be had Neeve v.
between F. N. and L. a daughter of S. who was his Keck, 9 Mod.
ſecond wife, O. N. S. N. and F. N. agreed to fettle 106.
their eftates in manner following.
The eftate of O. N.
was to be fettled to the uſe of himſelf and his intended
wife for life, remainder to the firft and every other fon
and fons of the body of the faid O. N. on the body of
L. his intended wife to be begotten, with feveral re-
mainders over, remainder to the right heirs of the ſaid
O. N. for ever. And S. N. agreed to fettle his eftate
to the uſe of himfelf for life, and after his deceaſe to [
the uſe of O. N. and L. his intended wife for life, re-
mainder to the fons of that marriage in tail male, &c.
And F. N. agreed to fettle his eftate to the ufe of him-
felf and his wife for life, with like remainders to the
fons of O. N, in tail. And purſuant to this agreement
the eftates of O. N. and S. N. were fettled to thefe ufes.
And F. N. in order to keep his eſtate in his name and
blood, and in confideration of the marriage, and of the
natural love and affection which he did bear to his
coufin O. N. and in confideration of 5s. covenanted for
himſelf and his heirs to ftand feifed, &c. to the ufe of
himſelf for life, remainder to his wife for life, remain-
der to the first and other fon and fons of the ſaid O. N.
in tail male, remainder to the right heirs, of O. N. for
And for the confideration aforefaid, he cove-
nanted for himſelf and his heirs to furrender his copyhold
lands to the fame ufes, before Michaelmas following.
F. N. and his wife died. And a bill was brought by
the daughters of O. N. against his heir at law, to have
a specific performance of the aforefaid covenant, he
having bound himſelf and his heirs to perform the fame.
It was objected, that the plaintiffs, being the daugh-
ever.
י
ters
[* 250. ]
PRINCIPLES ON WHICH COURTS OF EQUITY
I
Bad
*
**
251.] ters of O. N. were not likely to continue the eſtate
of F. N. in his name, nor were they within any of the
confiderations of the fettlement; that, therefore, in
refpect of them, the covenant flood merely on the foot
of a voluntary conveyance, which a court of equity
would not carry into execution. But the court was of
opinion, that there were feveral confiderations in theſe
fettlements, fufficient to raife and fupport the ufes of
them: Firft, it was probable, that O. N. would not
have fettled his own eftate in the manner which he had
done, but in profpect of the eftate in queftion, for by
that fettlement, there was no proviſion made for youn-
ger children; to that if there had been a ſon of the
marriage, the younger children would have had no-
thing Secondly, that O. N. who married the daugh-
ter of S. was made richer, and that might be a confi-
deration for fettling his eftate as he did, and the widow
of F. enjoyed this copyhold during her life by virtue of
this covenant, by which her husband had bound this
eftate. And the court decreed a furrender purfuant to
the covenant.
Another circumftance that has been laid hold of by
[*252] courts of equity, to take cafes out *of this rule is, that
the agreement is fuch as that an action may be
brought thereupon in the name of the truſtees for the
recovery of damages; for then, as that remedy may
be had at law, the ground upon which a court of equity
refuſes to execute a voluntary agreement, namely, that
nothing can be recovered upon it at law, fails. The
court, therefore, being capable of giving a remedy
more compleat, and without the circuity of going into
a court of law, inforces fuch an agreement; as being
attended with circumftances that make it an exception
out of the general rule, and bring it within the ordi-
nary courfe of proceeding of the court.
a Vernon v.
Will. 594.
a
The leading cafe upon this diftinction is that of
Vernon, 2 P. Vernon againſt Vernon, which was a bill for a ſpecific
performance of marriage articles, whereby A. cove-
S. C. 1 Fq. Ca. nanted to purchaſe lands of the value of 350l. per an-
Abr. 28. Pl. 33,
num, and fettle them on himfelf for life, remainder to
his wife for life, remainder to their firft and other fons
in tail, remainder to the heirs male of A. by an other
wife, remainder to B. brother of A. for life, remain-
der to his firft and other fons, &c. remainder to
his. fecond brother in like manner.
4 Brown, Par.
Ca. 26.
And the question
was,
REFUSE TO INTERFERE WITH CONTRACTS, &c.
*
was, whether B. was entitled, by the interpofition [*253]
of the court of Chancery, to have a ſpecific execution
of thefe articles? The objection was, that, as to him,
they were merely voluntary; and that, therefore, the
utmoſt the court could do, would be to decree that the
brothers fhould have liberty to bring an action of cove-
nant in the truſtees names, against the perfonal repre-
fentative of A. in order to recover damages.
But
Lord King, chancellor, faid, that as to what has been
obferved of putting the plaintiffs to fue the covenant in
the names of the truſtees in the marriage articles, for
the recovery of damages, he did not think it an ade-
quate remedy; the party who would be entitled to the
greateſt ſhare of the damages would (in cafe any fuch
were living) be the fon of B. as having the first eſtate
tail, but, there being then no fuch fon, he did not fee
how he could have any part of the damages given in
the action of covenant, were it to be brought: Alfo
B. might die without iffue, and then his younger bro-
ther might be entitled to the firſt eftate of inheritance
in the lands to be purchaſed, who, yet, could not come
in for any part of the damages to be recovered on the
covenant. But, he faid, that if he decreed a fpecific
performance, and a fettlement to be made according [*254.]
to the agreement, then each party entitled, or to be
entitled, would have right and juftice done them, if not
before barred by a legal conveyance, viz. a common
recovery. And his lordship decreed the articles to be
fpecifically performed, which decree was afterwards af-
firmed on appeal to the houſe of Lords.
*
And Lord Hardwicke, in the cafe of Goring and 3 Atk. 186.
Naſh, recognized the principle that governed, and ap- v. Trueman,
etvideStephens
proved the decifion, in the laft cafe, relying upon it as 1 Vez. 73.
one ground for the decree he then made; obferving, et Whitmel v.
that, in ſuch caſes, if the truſtees recovered in an ac- 256. where this
Farrel, 1 Vez.
tion at law out of the real affets of the covenantor, the diftinction
covenantees might come into a court of equity to have taken, and the
the aflets laid out in the purchaſe of lands: Now, that court refused to
decree a ſpeci-
would be fuch a circuity as ought not to be allowed in fic execution,
equity, as it would be more adequate juftice to decree becaufe no acti-
it immediately.
on would lie by
the truſtees.
But it is neceffary here to obferve, that there are
circumftances, under which a court of equity will in-
force a specific performance of agreements, on which
no action can be maintained at law; of this nature are
VOL. II.
conditions
Ι.
PRINCIPLES ON WHICH COURTS OF EQUITY
}
[* 255.] conditions * of bonds extinguiſhed and gone, by reaſon
of the obligees becoming executors to the obligor; or
by the obligor's marrying the obligee, by which the
obligation becomes fufpended, and confequently not
actionable afterwards, becaufe a perfonal action once.
fufpended is extinct. Several inftances of which we
have already ftated; but, in theſe cafes, the court
does not proceed upon that part of its jurifdiction which
authorizes it to carry agreements fpecifically into exe-
cution; for if it did, the objection that there was no
confideration, confequently no ground to maintain an
action for damages at law, and therefore no foundation
for the court of Chancery interpofing, on the principle
that it can give more effectual relief than the remedy a
court of law affords (equity in this as in all cafes fol-
lowing the law) would apply. But equity takes cogni-
zance of fuch caufes, upon the ground of its own pro-
per jurifdiction over trufts, fraud, or accident; in
which inftances its jurifdiction is not enthralled by a
reſpect to legal niceties of the nature alluded to.
et videChannel
v. Buckle,
2 P. Will. 343
Alifon's cafe,
9 Mod. 62.
*
Therefore, where A. and B. being brother and
[* 256. ] fifter, and B. the fifter having iffue two daughters
Park v. Wilfon, and one fon, A. intending that his fifter's fon fhould
10 Mod. 515. have his copyhold land, refolved to furrender it to the
ufe of his will, and to devife it to him; but not being
able to effectuate this intention, by reafon of the of-
ficers of the court being out of the way, and fo the
furrender not practicable, his (A.'s) fifter confented to
enter into a bond to her fon, that fhe would at any
time, upon payment of 200l. and upon the requeſt of
her fon, furrender the eftate to him. Then A. the
brother died, and afterwards the fon died. Then the
mother died, having devifed this copyhold to one of
her daughters. Upon which the other daughter
brought her bill, praying a decree for a furrender, and
proper conveyance of a moiety of the land, which the
would have been entitled to as heir to her brother, had
her mother ſurrendered it to him according to the con-
dition of the bond. One ground of argument offered.
againft this claim, was, that the brother having died
inteftate, the mother, the obligor, had taken out ad-
miniſtration to him, and that there had been no requeſt
nade by Anthony during his life for the furrender; by
which circumftances the bond was become extinguiſh-
ed at law, and therefore ought not to be fet up in
equity.
REFUSE TO INTERFERE WITH CONTRACTS, &c.
*
equity. Sed per curiam. It is plain, from the nature [* 257. ]
of this tranſaction, that it was the fixed intention of
the uncle, that one way or other, his nephew ſhould
have the land. Being diſappointed in his intention of
furrendering it, in order fo to devife it, he had re-
courfe to this bond to fecure it to him, which, there-
fore, on the part of the mother, amounts to an agree-
ment that the fon fhall have the land. Then the mo-
ther muſt be confidered as a truſtee for her fon; in
which cafe the court will have no regard to the nice-
ties of law, of the bond being extinguifhed and gone,
either by the obligor being adminiftratrix to the obligee,
or for want of a requeft: And a furrender and convey-
ance was decreed accordingly.
:
That the principle above mentioned, is the true
ground upon which courts of equity proceed in theſe
cafes is clear, from the circumftance, that agreements
of this nature, which are in fact trufts, although not
in writing, will be decreed to be fpecifically executed,
notwithſtanding the ftatute of frauds and perjuries;
which we have feen agreements, in the nature of trufts,
depending fimply upon their own intrinfic circum-
ftances, will not. It was fo determined in the caſe of
Thynn and * Thynn, where T. deceafed, having made [* 258.1
a will and his wife fole executrix, his fon, hearing Thynns v.
thereof, came to his mother in the lifetime of his fa- Thynns, I
Vern. 296.
ther, and perfuaded her, that, there being many debts,
the executorship would be troubleſome to her, and de-
fired that he might be nained executor, for that he, by
reafon of his privilege in parliament, could ftruggle
better with the creditors; and he procured her to move
his father in it, declaring that he would only be an
executor in truft for her: She accordingly prevailed
with the father that it might be fo; and a new will was
made, and the fon appointed fole executor, and only
a legacy of 50l. given to the mother. The father died,
and the fon fet up for himſelf, and denied the truft for
the mother. And, on a bill filed by her, it appearing,
upon the whole matter, to be as well a fraud as a truft,
the lord keeper, notwithſtanding the ftatute of frauds
and perjuries, decreed the agreement in favor of the
mother.
Thoſe cafes, likewife, in which the court of Chancery 2 P. Will. 245.
has carried into execution agreements entered into with
infants, wherein it is alfo clear that an action cannot be
brought at law for damages, appear to be founded on the
exclufive
I 2
PRINCIPLES ON WHICH COURTS OF EQUITY
·
[ * 259. ] * excluſive jurifdiction the chancellor poffeffes, as
the guardian of infants, over their acts, by virtue of
which, he affumes the power of reftraining them from
refcinding contracts, and alfo of carrying into execu-
tion contracts entered into by them, where the object
is clearly for the benefit of the infant concerned: And
permitting fuch contracts to be infringed, would tend
to the injury of infants in general, by difcouraging the
contracting with them, even upon the fairest and moſt
beneficial terms to themſelves.
Methwold v.
Walbank,
2 Vez. 238. et
vide 3 Atk.
389.
The power of decreeing agreements being difcretionary;
if an agreement be to do a thing, which in its tenden-
cy would encourage extortion or promote inebriety,
a court will not decree it in fpecie. Therefore, Lord
Hardwicke difmiffed a bill brought, to carry into
execution an agreement for the affignment of the
fees and profits of the office of keeper of Bridewell,
and of the profits of the tap-houſe: Obferving, that
he never would fuffer the keeper of a houſe of correc-
tion to affign over the profits and fees of his office;
for it muſt plainly lead to oppreffion and extortion,
and ought not to receive countenance. And, as to the
[* 260.] latter part of the agreement, his * lordſhip faid, that
it tended to increaſe riot and debauchery amongſt the
priſoners.
Hayes v. Cary,
1 Brown's
And, where one party has trifled, or fhewn a back-
wardnefs in performing his part of the agreement;
cafes, Par. 27. equity will confider this as a good objection to a ſpecific
execution being decreed in his favor, eſpecially if cir-
Ground of law cumftances are altered in the mean time.
5 Vin. Abr.
538. Pl 18.
and equity,
18. c. 6.
k Wingfield v.
Whaley, 5 Vin.
Abr. 534. Pl.
38.
1 Vide Treat.
of Equity 37.
k Where a contract has lain dormant for many years,
there ſhall be no ſpecific performance.
1 But fpecial circumftances may alter the cafe: As
if there be articles on marriage to purchafe lands, and
to fettle them within three years; theſe fhall not be
waved by length of time, if the covenantor happen
to have been in trade, and could not fpare the
money.
i
Having gone thus far in explaining the principles,
upon which a court of equity refufes its interpofition,
I fhall now, Secondly, endeavour to point out prin-
ciples, by which we may judge when a court of equi-
ty will not refuſe its aid in decreeing a ſpecific exe-
cution
REFUSE TO INTERFERE WITH CONTRACTS, &c
* cution of agreements; or what cafes furniſh excep- [* 261.]
tions to the before-mentioned rules of equity.
I Chan, Ca.
It is no objection to the ſpecific performance of an Parker v.
agreement, that it operates in nature of a wager; and, Palmer,
in that light, is rather the ſubject for damages:
42. S. C. 1 Eq.
Therefore, where A. having a leafe from the dean and Ca. Abr. 17, 2.
chapter of
fold it to B. and it was agreed, that
upon A.'s abating part of the money, B. fhould, upon
the reſtoration of the king, and of the dean and chap-
ter, reconvey it to A. a fpecific performance of the
agreement was decreed, notwithſtanding it was ob-
jected, that being in nature of a wager, it was a
fubject more adapted to the jurifdiction of a court of
law.
Though an agreement be founded in mifrepreſen-
tation, as on a falfe fuggeftion: As if one party agree
upon an opinion (raiſed by falfe impreffions, that he
has not, when, in truth he has a title) to permit ano-
ther to enjoy lands; this will be no objection to its
being decreed, if there be a ground of equity more
favorable in fupport of it, than this furnishes in dero-
gation of it: As if it give efficacy to the intention of a
teftator.
[
* 262.]
Ca. 84. et vide
Thus, where one (feifed in tail of freehold lands, Frank v.
with remainder to his elder brother, and of copyhold Frank, I Ch.
lands in fee) deviſed his freehold lands to his younger Cann v. Cann,
brother, and the copyhold lands to his elder brother, P. Will. 723.
and died; and the devifees agreed, by writing under
their hands, that the lands fhould be enjoyed by each
of them accordingly; which agreement the elder was
induced to enter into by the younger pretending that
the devifor had fuffered a recovery, and produced an ex-
emplification thereof: The agreement, although, on
investigation, it turned out that no complete recovery
had been fuffered, was decreed to be fpecifically
carried into execution, being confonant to the tella-
tor's intention; and a bill of review was difiniffed with
cofts.
587.
And a court of equity would decree an agreement, Vide Pullen v.
notwithſtanding the plea of its having been entered into Ready 2 Atk.
under a mistake, if the effect of it were to difpenfe
with a forfeiture; becaufe courts of equity always
favour any contract, which reftrains its meddling in
cafes of that kind.
But,
PRINCIPLES ON WHICH COURTS OF EQUITY
Broderick v.
* But, unleſs in cafes, circumſtanced as thofe laſt
[263. ] mentioned, wherein the effect of the agreement is
IP. Will. 239, equitable as between the parties in the particular predi-
et i Vern. 20. cament in which they ftand, ignorance in a party
Broderick,
vide infra,
Per Lord
Hardwicke,
2 Atk. 592.
Vide Pullen v.
591.
of
his right, or its being concealed from him by the per-
fon with whom he ftipulates, will, it feems, be a
fufficient inducement for denying fuch perfon, at leaſt,
the affiftance of a court of equity; for fuppreffio veri,
or fuggeftio falfi, each of them furniſh not only a ſolid
objection in equity to give effect to, but fufficient
grounds for fetting afide, any inftrument.
But in cafes, where, if there be any miſtake, it is
the miſtake of all the parties to the agreement, and no
one is more under an impofition than another; courts
of equity hold, that to fhake them on that account
would be mifchievous, tending to make all agreements
vain and nugatory. And in fuch cafe the miſtake
not the occafion of the promife, therefore the act is
valid, there being nothing wanting of the true affent on
all fides.
And if parties are entering into an agreement, and
[*264.]. the inftrument containing information refpecting
Ready 2 Atk. that, in which the miftake is faid to be, is lying before
them and their counfel, while the draughts of the
agreement are preparing; the parties will, in equity,
be fuppofed to be acquainted with the confequences. of
law as to thoſe points, and none of them will ever be re-
lieved under pretence of miſtake or furprife, when fuch
circumstances attend the cafe; for it is each of their
bufinefs to fearch out the truth.
1 Atk. 11.
Cory v.
Cory,
1 Vez. 19.
A court of equity will carry an agreement between
a father and his children, made with a view to a juſt
and proper family arrangement into execution, al-
though it be objected, that the father has made uſe
of his coercive power over one of his fons to force him
into it; for although equity does not favour agreements
made by compulfion, yet it always confiders the rea-
fonableness of the agreement. As if a fon, tenant
in tail, and a father, tenant for life, agree on fome-
thing for the benefit of the younger children, and
afterwards the fon complains of paternal authority being
exerted; though there may have been fomething of
that fort, yet, if the agreement be reaſonable, a court
of equity will not fet it aſide: And upon this ground
Lord
REFUSE TO INTERFERE WITH CONTRACTS, &c.
Lord Hardwicke * thought that, where an agreement [ * 265. ]
was made to ſettle difputes in a family, and reaſonable
in itſelf, it was no folid objection, that one of the par-
ties was drunk at the time of entering into it.
A court of equity will decree a ſpecific performance,
notwithſtanding it be objected, that the party ftipulat-
ing had no intereft in the thing ftipulated for at the
time of the contract made; and the fubject be of a
nature that no contract, strictly legal, will attach upon
for want of poffeffion, on a diftinction founded on the
different modes in which courts of law and of equity
enforce their decifions.
*
Pitt, Infra.
[* 266.]
Thus where A. by articles between him and B. Wifeman v,
the plaintiff's father, reciting a marriage lately had Roper, 1 Ch.
Rep. 84, 85.
between the plaintiff, nephew of A. and C. his wife, Et vide Hobfon
without the privity, confent, or good liking of B. did, v. Trevor, 2
for the confiderations therein mentioned (amongst other P. Will. 191.
et Longford v.
things) covenant with B. to convey
to convey within one
month after the death of D. who was A.'s brother, un-
to the plaintiff and his wife, or the furvivor of them,
and the heirs of the plaintiff, the manor of H. with
the appurtenances, referving an eftate to himſelf for
his life, and gave a ftatute of 5000l. for performance;
and D. died, and the manor of H. defcended to A.
but charged with great debts; the plaintiff's bill was
to compel B. to perform the articles: And one objec-
tion was, that this was a covenant of one, not in
poffeffion, nor having any eſtate in the manor at that
time, to fettle; and refpecting lands over which, at
the time of the covenant entered into, the party con-
tracting had no power whereby he might charge the
fame, but a bare poffibility, in cafe D. did not alien
them. But the court, after great deliberation, and
fearching for precedents, was of opinion, that the agree-
ment ought to be decreed in fpecie, the decree not
binding the intereft in the lands, but affecting the con-
fcience of the party.
And it will make no difference in refpect to per-
formance in fpecie, although it be evident, from the
perfon's own fhewing who inftitutes the fuit, that he
had not, at the time of entering into the agreement,
reſpecting which the fuit is preferred, a good title. to
the hereditaments which are the ſubject of it.
Therefore, where articles. were entered
in November 1725, for fale of, and to
into Longford v.
convey Pitt, 2 P. Will.
629.
an
PRINCIPLES ON WHICH COURTS OF EQUITY
"
[*267.] * an eſtate, upon which conveyance the vendee was to
Lord Stourton
pay 1500l. to the vendor; and, on a bill preferred by
the vendor against the reprefentatives of the vendee to
be paid the 1500l. the vendor's own witnefs proved,
that, in 1728, the vendor had paid money to his eldeſt
brother's daughter, being the heir general of the fa-
mily, for her joining with her huſband in a deed and
fine to the uſe of the vendor and his heirs; it was urged as
a reaſon for refufing to decree the money, that it was
evident, by the vendee's own fhewing, that, at the
time of entering into the articles, he had not a good
title to the premiffes: But the mafter of the Rolls faid,
that it was fufficient, if the party entering into the ar-
ticles to fell, had a good title at the time of the decree;
the direction of the court in all theſe cafes being to
enquire, whether the feller can then, not whether he
could at the time of executing the agreement, make a
good title.
And the court of Chancery, in the cafe of Lord
v. Sir T. Meer, Stourton againſt Sir Thomas Meer, more than once in-
2 P. Will. 630. dulged the former (who, at the time of the articles for
a fale of land, and even when the decree was pronounc-
ed, could not make a title, the reverfion in fee being
in * the crown) with time for getting in this eftate, which
could not be effected without an act of parliament for
that purpoſe.
[*268. ]
Vide Sidney v.
Sidney, 3 P.
A charge of adultery or elopement, pofitively made,
is not a ground for a court of equity to refuſe a decree
for a fpecific performance of marriage articles: Be-
2 Eq. Ca. Abr. caufe, the import of them being generally, that the
Will, 276.
29. Pl. 37.
Feaubert v.
Turft, Pre.
Chan. 207.
3 Bro. Par. Ca.
19.
hufband fhall fettle fuch and fuch lands on his wife for
her jointure, they take effect as giving an intereft in
the nature of a vefted jointure; inafmuch as what is
covenanted to be done for a good confideration, is con-
fidered in equity as done: Confequently the wife's right
under them being, in effect, a jointure, is not forfeit-
able either for adultery or elopement.
A court of equity will decree an agreement, al-
though it be objected, that it refers to foreign cuftoms;
provided the diftinct quantum of intereft each perſon is
to have in that which is the ſubject of the contract, be
capable of being aſcertained.
Therefore where, on a marriage in France it was
ftipulated, that the hufband furviving the wife, fhould
have
REFUSE TO INTERFERE WITH CONTRACTS &c.
*have three hundred livres by way of a prefent, and [* 269. ]
alſo two-thirds of her fortune for life (whereas by the
cuftom of Paris, where they married, he would have
had but a moiety) and that the reft fhould go accord-
ing to the cuſtom of Paris: It was determined, on ap-
peal to the houfe of Lords, from a decree of the lord
keeper, that this contract fhould be carried into exe-
cution in toto, and not reſtricted only to the fum ftipu-
lated: For the faying the reft fhould go according to
the cufton of Paris, was, in effect, the fame as if the
circumſtances of that custom had been recited at large
in the inftrument.
Lord Hardwicke, in the cafe of Hinton againſt Hin- Hinton v. Hin-
ton, where an agreement was entered into between a ton, 1 Vez. 631.
father and a fon while the father was in goal, thought
that circumftance an objection to the court decreeing a
ſpecific performance; unleſs all the facts attending it
were preciſely ftated, and the agreement cleared from
the fufpicions of impropriety, which that accident
threw upon it prima facie: But his lordſhip had no
doubt but that a man might make an agreement in
goal, provided he had proper affiftance and advice,
and that it were done in a fair manner, and for a full
confideration. And all thofe circumftances being made
out to his fatisfaction in this cafe, his lordſhip decreed
the agreement, though made under that predicament,
to be carried into effect.
Where the public intereft is concerned, the court of
Chancery will decree a fpecific performance of an
agreement, although there be perfons concerned in
the fubject contracted about, who are not parties to
the fuit.
[ * 270. ]
Thus, where the bill was to have a decree for an Thirveton
incloſure, upon the foundation of an agreement en- v. Collier,
tered into: It appearing by the bill that there were, Et vide Lady
3 Ch. Rep. S.
by the agreement, to have been eighteen allotments, Widrington's
and that there were but fifteen parties to the fuit, it cafe, cited
was objected, that all the parties to the agreement Sed vide
were not parties to the fuit. But the court decreed 2 Vern. 103.
the agreement to be performed, faying, that it fhould where this was
not be in the power of one or two wilful perſons to
oppofe a public good.
2 Vern. 225.
denied to be the
rule on a bill for
an inclofure.
Delabeer v.
So, if an agreement be made between a lord and
his tenants touching the fint of common, and one or Beddingfield,
two 2 Vern, 103.
1
1
PRINCIPLES ON WHICH COURTS OF EQUITY
[* 271.] two capricious tenants will not come in; a ſpecific ex-
ecution will nevertheless, be decreed, founded on its
being proper on principles of natural equity.
Barrington v.
Horn, 2Eq. Ca.
Abr. 17. 7.
5 Vin. Abr.
547. 15.
[ * 272.]
Cleaton v.
Gower, et al,
Finch 164.
Gibſon v. Pat-
One of the parties to a contra& being by himself
incapable of performing it, furniſhes no ground for dif-
penfing with a ſpecific execution.
Thus where, on a bill to compel the defendant and
his wife to join in a fine to the plaintiff, purſuant to
the covenant of the former in a conveyance, the de-
fendant, his wife, and fon, fet forth in their answer,
that the huſband was tenant for life, remainder to his
wife for life, remainder to the heirs of the huſband
begotten upon the wife, remainder to the hufband's
heirs; and infifted, that nothing paffed by the con-
veyance, but an eftate for life of the huſband, and
that the wife did not feal the deed: Lord Cowper,
Chancellor, decreed notwithstanding, that the hufband
fhould procure his wife to join with him in a fine ac-
cording to his covenant; fince he had taken upon him-
felf fo to do, and the plaintiff had paid the full value of
the eftate.
•
* So, where A. tenant for life, agreed with B. that
B. paying a certain rent, ſhould open mines in his fet-
tled eftate, and fet on foot works at his own charge,
and ſhould enjoy the fame for ten years, if A. or any
of his iffue male fhould fo long live, and B. entered
accordingly, and expended money in building works,
and paid the rent until he was interrupted: On a bill
filed by him to have an execution of the agreement
in fpecie, A. by his anſwer, alledged, that he was
only tenant for life, and fubject to be called to ac-
count for wafte, and could not execute this agree-
ment, becauſe it was inconfiftent with his power fo to
do. But the court, nevertheleſs, decreed, that A.
ſhould execute his agreement in fpecie, as far as he
was capable of doing it. And directed him to feal a
leafe for ten years.
Again, That the time limited for performance of
terfon, 1 Atk. an agreement is lapfed, is no folid objection to a de-
12.1 Vez. 450. cree for performance of it: For it is the buſineſs
of a
court of equity to relieve againft lapfe of
time in the performance of agreements; efpecially if
the non-performance does not arife by default of the
Bro. Ca Par,
$to.
party
REFUSE TO INTERFERE WITH CONTRACTS, &c.
* party feeking to have a ſpecific performance. There- [*273. ]
fore a bill brought for a ſpecific performance, was de-
creed in favor of the plaintiff, without any regard had
to the lapfe of time, by reafon of the plaintiff's ne-
gligence in not producing his title deeds, and not ten-
dering a conveyance within the time limited for that
purpoſe by the articles: The lord chancellor obferv-
ing, that moſt of the cafes which were brought in that
court, relating to the execution of articles for fale of
eftates, were liable to this objection, but that he
thought there was nothing in it.
82.
The change of the condition of a perfon entering Owen v.
into an agreement: As if he become lunatic; will not Davies, 1 Vez.
affect the right of the parties, but that will be the
fame as before, provided they can come at the remedy.
This is confonant to a common maxim of the civil
law, that madness coming upon a man, deftroys not any bu-
finefs which he had before duly performed. Thus, if the
legal eftate is veſted in the truſtees of a lunatic, a court
of equity ought to decree a performance, and the act
of God will not change the right of the parties. But
if the legal eftate be vested in the lunatic himſelf, that
may prevent the remedy in equity, and reduce the
parties to the neceffity of proceeding at law, where the [*274. ]
lunacy of the party will be an impediment, by fuf-
*
pending the contract till he recovers the government
of himſelf and of his actions.
It is no objection to a decree for an execution in Moor v. Ry-
fpecie to fay, that the agreement was voluntary, if it cault, Pre. Ch.
be an agreement to do that, which the court would 22.
have required to be done on application to them: As
if a man, having run away with a girl poffeffing a
good fortune in truſtees hands, after marriage agree to
lay it out in lands to be fettled in ftrict fettlement;
this will be binding; nor will a court of equity relieve
a man's creditors againft this agreement: Becauſe, had
the huſband himſelf applied to the court for the money,
the court would not have decreed it to him without fuch
a fettlement.
INTRODUCED
[ 275 ]
INTRODUCED
CIT E D
OR
CASES.
A.
ACTON v. Peirce, 314.
Alden v. Blague, 426.
Aliſon's cafe, 2 vol. 256.
Allport v. Thomas, 2 vol. 216.
Allen v. Papworth, 62.
Anneſley v. Afhhurst, 2 vol. 192.
Arglaffe v. Muſchamp, 2 vol. 159. 160. 181.
v. Pitt, 2 vol. 181.
Armiger v. Clerk, 2 vol. 215.
Arundel v. Gardiner, 178.
Arundel v. Trevillian, 174.
1
Attorney General v. Whorewood, 102. 325-329.
2 vol. 131.
v. Day, 272, 3.
v. Parkhurst, 12. 26.
- v. Woolrich, 28.
Augier v. Augier, 109. 2 vol. II.
Ayliffe v. Tracey, 290.
Backhouſe v. Croſby, 429.
B.
Baden v. Countefs of Pembroke, 115.
Badger v. Badger, 2 vol. 123.
Bagg v. Fofter, 2 vol. 136.
Baldwin
[276]
Baldwin v. Bolter, 2 vol. 67.
-- v. Rochfort, 2 vol. 157.
Bale v. Coleman, 2 vol. 41.
Baltimore's (Lord) cafe, 368. 2 vol. 7.
Barington v. Horn, 2 vol. 271.
Barwell v. Brooks, 79, 8c. 86. 100.
Baſkerville v. Baskerville, 123.
Baugh v. Price, 2 vol. 185-188.
Bawdes v. Amhurſt, 281, 2.
Beard v. Nuthall, 111. 361.
Beathman v. Martin, 197.
Becket v. Cordley, 135.
Bedell's cafe, 368.
Bell v. Hyde, 63.
Benfon v. Scott, 130.
v. Benfon, 2 vol. 236.
Berny v. Pitt, 2 vol. 180. 184.
$
Bettefworth v. Dean and Chapter of St. Paul's 446.
2 vol. 31-33. 218.
Beverley's cafe, 18.
Bidwell v. Catton, 346, 7.
Billingham v. Lowther, 2 vol. 244, 5.
Bird v. Bloffe, 288, 9.
Biſhop of Bath and Wells v. HypЛley, 48, 57, 8.
Blake v. Eaft India Company, 2 vol. 206, 7.
Blake's cafe, 426.
Blaiker 2 Mathers, 2 vol. 40.
Blandy v. Windmore, 2 vol. 126. 136.
Blois v. Lady Hereford, 46, 7.
Bony v. Taylor, 405.
Borrett v. Gomeferra, 301.
Bofanquet v. Daſhwood, 204, 5. 2 vol. 143. 148, 9.
150, 151.
Bofden v. Thinn, 352.
Bofvil v. Brander, 2 vol. 40.
Bowes v. Lord Shrewsbury, 445, 2 vol. 115, 116.
Bourne v. Mafon, 353-
Brereton v. Cowper, 2 vol. 222.
Broad v. Jolly, 168.
Broadway v. Morecraft, 2 vol. 147.
Brocking v. Cham, 379.
Broderick v. Broderick, 141, 2. 2 vol. 203, 263.
Bromage v. Jennings, 2 vol. 5.
Bromley v. Jeffries, 2 vol. 233, 4-
Broughton
[ 277 ]
Broughton v. Conway, 403.
v. Etrington, 2 vol. 136.
Browning v. Morris, 202. 204.
Brownfmith v. Gilborne, 309.
Buck v. Fawcett, 2 vol. 191.
Buckhouſe v. Croſly, 283, 4.
2 vol. 242.
Buckingham (Duke of) v. Ward, 219.
Burney v. Pitt, 2 vol. 151.
Butcher v. Stapely, 300. 302.
v. Hinton, 2 vol. 20.
Butler (Sir Nich.) v. Sir Henry Chancey, 2 vol. 165.
Buxton v. Lifter, 2 vol. 141. 218. 222.
C.
Caldwall v. Shadwell, 2 vol. 97. 240.
Calmady v. Calmady, 109.
2 vol. 16, 17. 255.
Cann v. Cann, 142. 363. 2 vol. 262.
Cannel v. Buckle, 316.
Carrell v. Reade, 418, 9.
Carter v. Carter, 2 vol. 241.
Cafs v. Rudele, 2 vol. 61, 2.
Cecil v. Saliſbury, 48. 57. 348.
Chambers v. Chambers, 2 vol. 49-51. 80-83.
Champant (Sir John) v. Lord Ranelaigh, 407, 8.
Chaplin v. Horner, 2 vol. 87, 8. 98, 9. 115.
Chapman v. Dalton, 448-450.
Cheek's (Colonel) cafe, 2 vol. 206.
Chefman v. Nainby, 168.
Cheſterfield v. Lady Cromwell, 42.
Janfen, 2 vol. 182. 188, 9.
Chetwynd v. Fleetwood, 115-123.
Chichefter v. Bickerstaff, 2 vol. 102, 3-
Child v. Danbridge, 2 vol. 233.
Church v. Church, 351.
Clare v. Earl of Bedford, 132.
Clarke v. Thompſon, 443.
Clarkſon v. Hanway, 2 vol. 145.
Clayton v. Afhdown, 39.
Cleaton v. Gower, 2 vol. 272.
Clerk v. Wright, 290.
Cocking v. Pratt, 2 vol. 198, 9i
Coggs v. Barnard, 366.
Cook v. Booth, 385-387.
Cooke
[ 278 ]
Cooke v. Founds, 401, 2.
Cole v. Gibbons, 2 vol. 145. 147. 163.
Coleman v. Upcot, 289.
Collins v. Plummer, 2 vol. 39, 40.
Colmer v. Colmer, 2 vol. 39.
Colfon v. Wilfon, 2 vol, 35-37.
Colwal v. Shadwell, 2 vol. 97.
Corbet v. Poelnitz, 81-89.
Cornbury v. Middleton, 112, 113.
Cornwall v. Williams, 161.
Cory v. Cory, 29. 2 vol. 162, 3. 264, 5-
Cowper v. Pollard, 379.
Cox v. Peele, 274, 5.
Crookhay v. Woodward, 405.
Crofs v. Andrews, 18.
v. Adenbroke, 2 vol. 113.
Croyſton v. Baynes, 292.
Cud v. Rutter, 2 vol. 215.
Cunningham v. Moody, 2 vol. 107, 8. 124. 238-240.
Curling v. May, 2 vol. 84, 5.
Curwin v. Miller, 2 vol. 183.
D.
Da Cofta v. Jones, 233.
Dafforne v. Goodman, 393.
Dale v. Smithwick, 315.
Danby v. Hethcot, 187, 8.
Darly v. Duchefs of Mazarine, 77-
Darcy v. Chute, 441, 2.
Davis v. Curtis, 2 vol. 137, 8.
Davys v. Howard, 2 vol. 127.
Deane v. Izard, 280, 1.
Delabeer v. Beddingfield, 2 vol. 270, 271.
Difher v. Difher, 2 vol. 87. 90, 91.
Dive v. Maningham, 197, 8.
Dobfon v. Crew, 388, 9.
Drury v. Drury, 53, 4.
Duffield v. Smith, 2 vol. 136.
Dupins v. Duke of Kingſton, 2 vol. 216.
Durnford v. Lane, 49, 50. 55.
Dutch v. Warren, 137, 8.
E. Edwards
[ 279 ]
-
E.
Edwards v. Heather, 2 vol. 227.
v. Lady Warwick, 369-2 vol. 87. 99. 112.
Edwick v. Cudworth, 398, 9.
Edwin v. Eaft India Company, 2 vol, 22-25..
Ekins v. India Company, 408.
Eyres's cafe, 2 vol. 236.
-F.
Farneham v. Atkins, 36. 38.
Feaubert v. Turft, 2 vol. 268, 9.
Ferrers v. Ferrers, 2 vol. 112, 113.
Feverfham (Lord) v. Watfon, 2 vol. 20, 21, 22. 27:
Finch v. Earl of Winchelfea, 2 vol. 59, 60. 79.
Fletcher v. Harcourt, 177, 8.
Floyd v. Buckland, 297.
Forth v. Chapman, 382.
Foſter v. Mapes, 379.
Foxcroft's cafe, 296.
Frankland v. Thornbury, 55.
Frank v. Frank, 2 vol. 222. 262.
Frederick v. Frederick, 2 vol. 56, 7.
Freeman v. Hurst, 36.
v. Freeman, 262.
v. Sir Cleve Maſon, 64.
Freemoult v. Dedire, 2 vol. 135.
Fulham v. Jones, 2 vol. 87. 113.
Fufaker v. Robinſon, 2 vol. 243.
Gage v. Acton, 443.
G.
Gale v. Lindo, 174, 175, 176.
Gardiner v. Pullen 409.
Gee v. Spencer, 2 vol. 202, 3.
Gibfon v. Gibſon, 394.
- v. Patterfon, 2 vol. 272.
Gifford v. Gifford, 2 vol. 175, 6.
Gilmore v. Battiſon, 363, 4.
Glenorchy v. Bofville, 382.
Grantham v. Hawley, 156-158.
VOL. II.
K
Graves
[ 280 J
!
Graves v. White, 238.-
".
Greenwood v. Hare, 114, 115.
Griffith v. Spratly, 2 vol. 152.
v. Buckle, 2 vol. 41.
v. Tapwell, 2 vol. 199, 200,
Grigby v. Cox, 61. 107.
Goodiar v. Clarke, 2 vol. 89.
Goodright v. Strathan, 74.
Goodwin v. Willoughby, 355-
Gorges v. Chancey, 111.
Gorman v. Saliſbury, 428.
Gould v. Fleetwood, 2 vol. 195, 6.
Goylmer v. Paddifton, 236.
Guidor v. Guidot, 2 vol. 110, IIJ. 121
H
Halpenny v. Ballet, 286, 7. 298.
Hall v. Potter, 174, 5.
v. Hardy, 318.
v. Butler, 2 vol. 234.
Hamilion (Duke of) v. Lord Mahon, 2 vol, 189, 190.
Hamond v. Dod, 379.
Hampfon v. Sydenham, 37.
Hancock v. Field, 391.
-¿- V.
v. Hancock, 2 vol. 8g.
Hanger v. Eyles, 2 vol. 234.
Harris v. Lee, 59.
Hatchett v. Baddeley, 88, 95.
Hatton v. Gray, 287.
Hawkes v. Hawkes, 309.
Hawkins v. Holmes, 282, 3. 284.
Hayes v. Caryl, 2 vol. 260.
Heathcote v. Paignon, 2 vol. 154–156.
Heeding v. Davis, 441.
Henn v. Hanfon, 391, 2.
Herbert v. Earl of Powis, 303, 4.
Herne v. Meers, 2 vol. 15, 4.
Hicks v. Philips, 2 vol. 231.
Highter v. Sturman, 123.
Hinton v. Hinton, 130, 2 vol. 57. 269, 270.
Hobson v. Trevor, 2 vol. 136. 265.
Hodge v. Vavafor, 350.
Hodgfun v. Hutchenſon, 292.
Holderne
[281]
Holderneſs (Counteſs of) v. Marquis of Carmarthen,
2 vol. 91.
9!
Hole v. White, 309.
Holles v. Wife, 2 vol. 2^4.
Hollingshead v. Hollingshead, 52; 3.
Hollis v Edwards, 276. 286, 1.
Holt v. Clarencieux, 39.
--- v. Holt, 2 vol. 104:
Holtham v. Ryland, 450, 1.
Honor v. Honor, 2 vol. 42, 3.
Hopehill v. Searle, 3:4, 5.
Hotham v. Eaft India Company, 2 vol. 24.
Howard v. Hopkins, 2 vol. 136, 7.
Hulme v. Tenant, 105.
Hummers v. Hunton, 354, 5.
Hunfden v. Cheyney, 132, 3.
Hyde v. Skinner, 406.
Ireland v. Rittle, 312.
James v. Morgan, 2 vol 159.
Jeremy v. Goochman, 348.
Jervis v. Peale, 403.
Johnfon v. Medlicott, 29.
-- v. Ogilby, 128. 2 vol. 193-5.
v. Aftell, 350, 1.
Joines v. Statham, 432-434.
Jones v. Randall, 146, 7. 184.
194.
et al, Affignees of Gardiner v. Barkley, 191-
Jory v. Cox, 2 vol. 213.
K
Keen v. Stukely, 2 vol. 144—228.
Kellow v. Rowden, 2 vol. 108.
Kenge v. Delavall, 102, 3.
Kerman v. Kerman, 136.
Kettleby v. Atwood, 2 vol. 84. 87, 88, 9. kaš.
Kirton v. Eliot, 35.
Knight v. Cole, 390, I.
Knights v. Atkins, 2 vol. 87, 94.
Knott v. Johnſon, 2 vol. 184, 5-
K. R
L. Lacon.
[ 282
L.
Lacon v. Mértins, 304-306. 308, 9.
Lamas v. Bayly, 310.
Lambe v. Hanman, 2 vol. 173.
Lanev. Mallory 344, 5.
Lanesborough's (Lady) cafe, 86.
--- v. Ockſhott, 413, 4.
Laney v. Fairchild, 2 vol. 87. 89, 90. 103.
Lanfdown v. Lanfdown, 2 vol. 196, 7.
Lawrence v. Beverley, 2 vol. 105, 6.
Leake v. Morris, 306.
Lean v. Schutz, 100.
Leate's cafe, 451, 2.
Lee v. Newcomb, 356.
---- D'Aranda, 2 vol. 136.
Legal v. Miller, 294, 5. 428.
Legate v. Sewel, 2 vol. 240.
Letchmere v. Farl of Carliſle, 2 vol. 87. 97, 8. 100-
102. 104. 128. 130.
Lewis v. Chafe, 194.
Lingen v. Sowray, 2 vol. 88. 109. 114. 117. 121.
Linghill v. Broughton, 34, 35.
Logg v. Goldwire, 2 vol. 46.
Longford v. Pitt, 2 vol. 265. 266, 7.
Lowe et al v. Waller, 188.
Lowry v. Bourdieu, 203, 204. 207.
Lowther v. Carrile, 282.
Lutterford v. Peter le Mayre, 423, 4.
Lutwich v. Huffey, 354-
Luxton v. Robinſon, 2 vol. 21.
Lyddal v. Wefton, 2 vol. 37, 38.
M
Mackallen v. Todderick, 177.
Manley v. Scot, 97.
Manning's cafe, 2 vol. 64. 72.
Marlow v. Smith, 2 vol. 34.
Martin et Ux. v. Nutkin, 114.
Mafcal v. Mafcal, 2 vòl. 126.
Mafon v. Mafon, 124.
Meade v. Webb, 2 vol. 203, 4.
Meade
[ 283 ]
Meade v. Bigot, 176, 7.
Meers's (Sir Thomas) cafe, 2 vol. 146.
Meredith v. Wynne, 2 vol. 26.
Meres et al v. Ánfell et al, 435, 6. 438.
Methwold v. Walbank, 2 vol. 259, 200.
Milton (Lord) v. Edgworth, 427,
Mitchell v. Reynolds, 169. 170.
Molineaux's cafe, vol. 2. 5.
Montacute (Countess of) v. Sir George Maxwell, 278
9.291. 309.
Montague (Vifcount) v. Sir George Maxwell, vol. 136.
v. Tidcombe, 410.
Moor v. Rycault, 2 vol. 274.
v. Hart, 288. 2 vol. 218.
Mortimer v. Capper, 2 vol. 67, 8. 72, 3,
Mofeley's (Sir Edward) cafe, 74.
Mulgrave v. Dashwood, 129, 130.
N
Natchbolt v. Porter, 2 vol. 138–140,
Neeve v. Sheck, 2 vol. 249-251.
Neville v. Wilkinfon, 2 vol. 170,
Newfome v. Bowyer, 100.
Newton v. Newton, 325.
Nicolds v. Gould, 2 vol. 152.
Nichols v. Maynard, 2 vol. 204. 213.
Noke's cafe, 379.
Norton v. Turnfell, 64. 90, 104.
-
v. Mafcall, 319.
v, Suries, 195. 199, 200.
Nundike v. Wilkes, 2 vol. 41. 137, 218,
О
Oldham v. Hughes, 2 vol. 123, 4. 125,
Only v. Walker, 293, 4.
Onflow's cafe, 2 vol. 236.
Orby v. Trigg, 420, 1.
Ofgood v. Strode, 2 vol. 41.245–249.
Ofmond v. Fitzroy, 30, 31.
Offulfton (Lord) v. Lord Yarmouth, 2 vol. 146..
Owen v. Davies, 2 vol. 273, 4.
1
P. Park
[ 284 ]
:
P.
Park v. Wilfon, 2 vol. 255-257.
Parker v. Palmer, 2 vol. 261.
Parkifon v. Colliford, 255, 6.
Parks v. Wilfon, 323, 324.
Parrot v. Wells, 128, 9.
Partericke v. Powlett, 431.
Paſkeret v. Serjeant, 321-323.
Peach v. Winchelſea, 2 vol. 58.
Peacock v. March, 2 vol. 124.
v. Monk, 63, 4.
Pearle v. Unger, 350.
Pembroke v. Boden, 2 vol. 83, 4.
Pengall v. Rofs, 306.
Pen v. Glover, 378.
v. Lord Baltimore, 368. 2 vol. 7. 10.
Perkins v. Lady Thornton, 2 vol. 28.
Philips v. Sackford, 354.
v. Duke of Buckingham, 2 vol. 224.
Pigott v. Ruffell, 59.
Pike v. Williams, 300, 1.
Pillars et Rofe v. Van Mecrop et Hopkins, 333, 4.
Pitcairne v. Oſborne, 2 vol. 167-170.
Pleas v. Palfry, 182.
Plowman v. Plowman, 2 vol. 132, 3-
Plunket v. Lord Kingfland, 2 vol. 140.
Pointer v. Pointer, 181.
Pollexfen v. Moore, 257, 8.
Ponfonby v. Adams, 2 vol. 209-212.
Pope v. Roots, 2 vol. 62. 76.
Portland (Counteſs of) v. Podgers, 76.
Powell v. Hankey, 421.
v. Powell, 125.
v. Pillet, 2 vol. 20-79.
v. Price, 2 vol. 44, 5. 47.
Pragnell v. Gofle, 177.
Preſton v. Merceau, 436-438.
v. Perton, 424, 5.
Price v. Seys, 44—46.
Pridgeon v. Pridgeon, 441. 443.
Pullen v. Ready, 143, 144. 2 vol. 262, 263.
Pullerton v. Agnew, 267.
1
Pultney
[285]
Pultney v. Lord Darlington, 2 vol. 98. 118–121.
Pufey v. Diſbouvèrie, 144-146.
Pyke v. Pyke, 2 vol. 29-31.
Randall v. Harvey, 355-
R.
Ranelaigh v. Hays, 2 vol. 217, 18.
Raw v. Pole, 133, 4.
Redman v. Redman, 2 vol. 165, 6, 174,
Reeves v. Reeves, 2 vol. 54.
Rennington v. Cole, 130.
Rich v. Rich, 403, 4.
Rich v. Sydenham, 2 vol. 226.
Richardſon v. Hamilton 2 vol. 9.
Ridler v. Ridler, 27.
Ridout v. Lewis, 422, 3.
Ringſtead v. Lanesborough, 78. 86, 87.
Rippon v. Hawdin, 73.
Roberts v. Roberts, 2 vol, 179-181.
v. Stoker, 426.
v. Kingfley, 2 vol. 51.
Robinſon v. Bland, 208, 9.
Rochfort v. Crefwick, 2 vol. 222,
Rolfe v. Peterſon, 2 vol. 209.
Rofs v. Rofs, 112. 125, 126.
Rothwell v. Widrington, 108, 9.
Roundell v. Breary, 2 vol. 133, 4.
Ruffel (Lady) v. Gulwel, 239, 240, 24.x.
Sangen v. Williams, 125.
Sanfum v. Butler, 307.
S.
Scudamore v. Scudamore, 2 vol. 87. 92, 3. 99. 103,
Seagood v. Meale, et al, 290, 1.
Seale v. Morris, 279, 280.
Sealy v. Jago, 2 vol. 124.
I
Shelburne (Lord) v. Stapleton, 2 vol. 21, 22.
Shirley v. Martin, 2 vol. 176.
Shirley v. Stratton, 2 vol. 222.
Short v. Wood, 2 vol. 235.
Shove v. Webb, 215-217. 223. 227.
Sidney v. Sidney, 304. 2 vol. 268.
}
Small
2
[ 286 ]
Small v. Brackley, 2 vol. 170. 178, 9. 233.
--- v. Lord Fitzwilliam, 2 vol. 207-209.
Smith v. Bowin, 38.
-- v. Neffen, 139.
v..Stafford, 442, 3.
v. Deacon, 2 vol. 131,
v. Bromley, 189.
v. Turner, 309.
Snow v. Franklin, 426.
South Sea Company v. D'Oliffe, 434.
Sparrow v. Caruthers, 76.
Speake v. Speake, 409.
Speck v. Richards, 255.
Squire v. Baker, 2 vol. 144.
Stampe v. Liford, 241.
Stanford v. Marfhal, 64.
Stanning v. Style, 110.
Stapilton v. Stapilton, 362, 3. 2 vol. 234, 5.
Stent v. Bailes, 445. 2 vol. 65-67. 69.
Stevens v. Trucman, 2 vol. 254.
Stevenſon's cafe, 241, ?.
Stokes v. Moore, 285, 6.
v. Stokes, 384.
Stourton (Lord) v. Sir T. Meer, 2 vol. 267.
Streatfield v. Streatfield, 2 vol. 51-54.
Strode v. Parker, 204.
Stroud v. Marſhal, 18.
Strickland v. Coker, 52.
Sturley (Sir Anthony) v. Albany, 343.
Swern v. Clerke, 237, 8.
Sweetapple v. Bindon, 2 vol. 107.
Sylvefter's cafe, 180, 181.
Symondfon v. Tweed, 292.
Symmons v. Rutter, 2 vol. 95-98.
T.
Taggert v. Twining, 2 vol. 225,
Tardiff v. Scrugham, 257, 8.
Taylor v. Beach, 304.
-
v. Wheeler, 2 vol. 12, 13.
v. Neville, 2 vol. 219.
Theobald v. Duffay, 46.
Thirveton v. Collier, 2 vol. 270.
Thompion
[287]
:
Thompſon v. Harcourt, 232.
Thompfon v. Leach, 12.
Thorpe v. Thorpe, 157, 8,
Thornborough v. Whitacre, 162, 3-
Thynns v. Thynns, 2 vol. 357,
i
Tindal v, Brown, 135, 6.
Tinney v. Tinney, 431, 2.
Tifdale v. Effex, 389, 390.
Toller v. Carterett, 2 vol. 9.
8.
Took v. Haftings, 2 vol. 129. 132,
Towers v. Barrett, 415.
Trevor v. Trevor 2 vol. 41.
Turton v. Benfon, 2 vol. 173. 176, 7,
Twining v. Morrice, 2 vol. 225.
Twifleton v. Griffiths, 2 vol. 182.
Vaughan v. Morgan, 292.
V.
Vernon v. Vernon, 2 vol. 252-254,
Vizard v. Longdale, 54,
4
W.
Wakelin v. Wakelin, 430.
Wakeley v. Wakeley 2 vol. 55.
Walker v. Chapman, 207.
Wafer v. Mocato, 2 vol. 205.
Wanchford v. Fotherley, 299.
Ward v. Bowyer, 109.
Warford v. Fotherley, 288.
Warren v. Morfe, 351.
Warrington (Earl of) v. Sir James Langham, 2 vol,
39.
Warwick v. Warwick, 2 vol. 46.
Watkins v. Watkins, 317. .
Wayland's cafe, 91.
Webb's cafe, 347.
Welford v. Beezley 134, 5. 284.
Weftland v. Robinſon 2 vol. 25. 6.
Weft v. Eriffey, 2 vol. 43, 4. 45. 47.
Whaley v. Bagnal, 282. 311, 312.
Wheatley v. Lowe, 365, 6.
White v. Nutt, 2 vol. 65. 68.
White
[ 288 ]
White v. Thornborough, 2 vol. 47-49.
Whitfield v. Paytor, et ux, 2 vol. 144.
Whitnel v. Farrel, 2 vol. 17-19, 254.
Whittingham v. Hill, 36.
!
Whitwick v. Jermin, 2 vol. 106.
Whitworth v, Hallet, 2 vol. 39.
Whorwood v. Simpſon, 2 vol. 201, 2.
Widrington's (Lady) caſe 2 vol. 270,
Wilcox v. Wilcox, 2 vol. 126,
Williams v. Williams, 50.
v. Hyde, 447, 8.
v. Pike, 300, I.
Willis v. Baldwin, 2 vol. 149.
-- v. Baldwin, 185.
Wingfield v. Whaley 2 vol. 260,
Winman v. Roper, 363.
Winnington v. Briscoe, 445.
Wiſeman v. Roper, 2 vol. 265, 6.
Wood v. Fenwick, 2 vol. 152.
Woolafton v. Webb, 357.
Wright v, Lord Cadogan, 67-73.
Y,
:
Yelverton, et al, v. Bladwell, 2 vol. 171-173-
Young v. Clerk, 2 vol. 222.
1
INDE X.
!
I
N
DE X.
ACCORD
and fatisfaction, no diſcharge of a covenant, 425, 6.
}
ACCOUNT.
Vide PAROL AGREEMENT.
ACQUISITION,
original, founded on occupancy, I-5
derivative, as well as original, founded on occupancy, 5-
how effected, 6.
when effected by contract, 6.
A CRES,
where to be taken by eſtimation, 375, 6.
according to ftatute meaſure, ibid.
ACT of God.
Vide EQUITY, Courts of
ACTION at Law,
will not lie to recover money for puffing at an au&ion,
186.
ACTION
ན་
INDE X.
1
1
ACTION in prefcribed Terms,
analogous to an action upon the caſe, 335.
ACTION upon the Cafe
lies upon a parol covenant, taking effect as a contract
or agreement, 244, 5.
for money had and received, lays to recover money paid
upon a contract refcinded, 415.
AGE,
lawful, what meant thereby, 374.
may
AGREEMENT
(vide CONTRACT)
}
be waived with the concurrence of all parties, 413,
414.
between baron and feme made before marriage, as to a
thing future to the marriage, not diffolved thereby,
443,. 4.
entered into after marriage, to lay out wife's fortune
in trustees hands in the purchafe of lands, will be
decreed ſpecifically in equity, 2 vol. 274.
ALIMONY,
Vide EQUITY, Court of
ANCESTOR,
may bind his heir by his agreement to furrender and
affign copyholds, 115.
feifed in fee, may, by his agreement to fell lands, bind
his heir, ibid.
Vide TENANT IN TAIL.-
ANNUITY
1
}
INDE X.
ANNUITY.
(vide FEME COVERT)
purchaſed for an inadequate confideration of a man
labouring under diftrefs in the knowledge of the pur-
chafer, fet afide in equity, 2 vol. 154-156.
ANNUITY AE
ſeems to warrant a diftinction between the contract and
the fecurity, 209–281.
ARTICLES
making a provifion for a feme covert in lieu of her
jointure, made duriug coverture, will become effici-
ent by an acquiefcence after coverture, 74.
Vide CONTRACT.
ASSEN T
of all parties effential to a contract, 9.
Exception in the caſe of acquifition by one non com-
pos, 12.
fignifies the acquiefcence of the mind to fomething pro-
pofed or affirmed, 10.
Vidé PERSONS capable of contracting,
at a ſubſequent period may give effect in equity, to a
a contract previously entered into, 55.
after an infant comes of age, to a contract made be-
fore, may be inferred, in equity, from circumftances,
55, 56.
And fuch implied affent may be permanent or
temporary, 56.
may be grounded in equity, or mere acquiefcence,
56, 57.
by
+
1
INDE X.
by an infant to take an eſtate with a condition, binds
him to performance, 58.
to an act amounting to a forfeiture, pre-
cludes him from taking advantage of it,
59-
to a legacy binding at ſeventeen, 59.
of the huſband, exprefs or implied, is neceffary to render
the wife's contract binding upon him
93-100.
Facts which may furnifh fuch prefumption of
affent ibid.
may be prefumed to be given to a con-
tract for neceffaries entered into by a
married woman having a feparate main-
tenance, fo as to bind the feparate pro-
perty, 101.
Vide FEME COVERT, TENANT IN TAIL, Infant,
CESTUIQUE TRUST, CHURCHWARDENS.
to a contract or agreement, may be either expreſs or
tacit, 131. 256.
exprefs, how given, 131. 256.
tacit, may be in two ways, ibid.
may be inferred from inaction or forbearance;
131-139.
Vide MORTGAGEE, LESSEE, WITNESS.
A
}
--- to diſcharge the indorfer of a note, prefumed from
the omiffion of the holder, to give notice to the
indorfer, 136.
of mafter to the contracts of his fervant prefumed
from the former ftanding to the bargains of the
latter, 138.
of a party benefited, to a contract in his favor, prefumed
until the contrary proved, ibid.
of heir to accept the inheritance prefumed, 139.
of the drawer of a bill to pay thoſe who pay it for his
honor, prefumed ibid.
of a huſband, turning his wife out of doors, to her
contracts for neceffàries, prefumed, ibid.
to a contract may be invalidated, by having been
given under ignorance or error, auifing from fraud
or impofition, 139. 142.
Contra,
INDE X.
Contra, if both parties under the fame mifappres
henfion, 142-144
Vide CONTRACT, WAGER CONTRACTS.
of the proprietor alone, is neceflary for transferring
the right of property in any thing; delivery is not
neceffary, 2 vol. 62-64.
ASSIGNMENT
of a chofe in action, although not effectual at law,
amounts to a covenant or agreement in equity,
which will be there carried into fpecific execution,
317, 318.
ASSUMPSIT
for a price for admittance to a copyhold, lies againſt
an infant, 35.
will not lie upon a promiſe founded upon an unlawful
confideration, 176.
Vide INSTANCES ibid.
See EXCEPTION, 177, 178.
not to uſe a trade in a particular place, void, if not on
an adequate confideration, 176.
muſt be for a poffible thing, 178, 9.
as to a matter certain, though upon a condition impof-
fible, will be good, and the condition void, 179,
180.
muſt be certain, 180.
to pay money in a ſhort time, void, ibid.
to fell a horſe to B. for what B. fhall value him at,
void, ibid
to pay money, without faying when, good, 180.
to deliver goods, or make a leaſe to B. is valid, ibid.
to pay another what he lays out for him, good, ibid..
to give with his daughter in marriage a child's part, is
good, 180, 181.
to
INDE X.
:
to give twenty French pieces with his daughter, good,
181.
to enter into an obligation for performance of a thing
of a certain value, good, 181, 2.
Contra, if value not afcertainable, 182.
by fheriff, in oppofition to the ftatute 23 H. 6. cap.
10. void, 187.
to indemnify gaoler for fuffering one charged in exe-
cution to go at large, void, 197.
that another fhall quietly enjoy, is not broken, unleſs
a lawful incumbrance be fhewn, 379.
may be diſcharged by the act of God, 447, 8.
ATTORNEY
having authority, undertaking for his client, may bind
him, and will not be himſelf liable thereby, 128.
Contra, if not authorized, 128.
AUCTION
(vide EQUITY, Court of.)
fale by, not decreed in equity to be fpecifically exe-
cúted, by reafon of an accidental mifconception of
parties, 2 vol. 225, 6.
AWARD
after an acceptation of any thing under it, is evidence
in equity, of an agreement to perform it, 318, 319:
BAIL BOND
does not admit of a fet off, 440.
BAIL.
INDE X.
ל.
BAILMENT,
its feveral nature and effects, 247-255.
BANKRUPT
(vide CONTRACT)
may, by action, recover money paid by him to a cre-
ditor for figning his certificate, 205, 6.
BARGAIN
contingent, where the chance is known to both par-
ties, binds, although the chance turns out all againſt
one of them, 2 vol. 67, 8.
catching, 72.
!
Vide CATCHING BARGAIN.
BARGAIN and Sale
by one joint-tenant, will not paſs the ſhare of the other,
though he die before inrolment, 160.
implies a confideration, 368.
BARGAINS
by trustees, made in behalf of themſelves, tending to
eat up the truſt, diſcouraged in equity, 2 vol. 195, 6.
BOND
(vide NON-SANE MEMORY)
(vide INFANT)
by an infant may, by circumstances ex poft facto, be-
come binding, 37-
VOL. II.
L
with
.
INDE X.
with a penalty, void, if given by an infant, 54 of a
feme covert, decreed in equity to be diſcharged out
of her ſeparate eftate, 63, 64.
to truſtees, conditioned that a feme covert fhall have
power, by will, to difpofe of her eftate, will be en-
forced in equity, 73.
annuity, vide FEME COVERT.
to reftrain trading,
vide CONTRACT.
for unlawful maintenance, void, 173.
taken by ſheriff for fees, void, ibid.
to be a true prifoner, &c. void, ibid.
entered into with an alien enemy, void, ibid.
Vide MARRIAGE, BROCAGE, BONDS
given in oppofition to the third branch of the ftatute
23 H. 6. cap. 10. void, 186, 7.
to indemnify against the confequences of publiſhing
libels, void, 196.
to indemnify a fheriff againſt embezzling a writ, void,
196, 7.
for letting one not bailable to
mainprize, void, 197.
to fave one harmleſs if he kill another, or do a tref-
paſs, void, ibid.
to indemnify againſt a breach of the covenants in an
indenture, fome of which are void and fome good,
operates differently where the covenants are void by
common law, and when by ſtatute law, 199.
Examples of this diftinction, 199, 200.
ſhall receive a conftruction according to the intent of the
parties, and the words therein fhall be applied to
the obligor or obligee accordingly, 244.
from feoffee in fee, that he fhall not alien to take pro-
fits of the land, good, 263.
}
diftinguiſhed, in this refpect, from a con-
dition of a fimilar nature annexed to the feoffment,
ibid.
{
Vide
INDE X.
1
Vide CONDITION.
condition to convey and affure lands, or to do any
other ſpecific thing, confidered in equity as articles
of agreement; and the condition, as fuch, decreed to
be fpecifically performed, 314. 323, 4.
releafed or difcharged at law, will, in equity, fupport
a bill for a ſpecific execution of a contract implied in
it by the intent of the parties, 314-317.
although given without confideration, being fealed and
delivered, alters the property of, and binds the ob
ligor, and is not nudum pactum, 340.
determines a fimple contract for the fame debt, 423-
Vide STATUTE STAPLE.
will not be discharged by merely delivering it up, with-
out a releaſe under feal, 425, 6.
Vide PAYMENT.
cannot be explained to have been taken to any other uſe
than it imports, by parol evidence, 431, 2.
is difcharged by the obligee marrying the obligor, 439-
to a villain, had been diſcharged by obligor purchaſing
the manor to which he was regardant, ibid.
given to a wife before marriage, conditioned to leave her
a fum, if the furvive, fufpends the debt, but does not
extinguiſh it, 443.
the condition of which has been faved at law, by the
act of God, fhall be enforced in equity according to
the intent, 450.
may be diſcharged by a collateral fatisfaction, 451.
fraudulent, as impofing upon third parties, vol. 2.
165, 6.
for a large fum, accompanied with an agreement to
receive a lefs, entered into in order to impofe upon
a third perfon, not relieved againſt in equity on the
agreement, 167-170.
extinguiſhed by an accident at law, made good in
equity, if meant to inforce a truſt, 2 vol. 254–258.
L 2
BOND
$
INDE X.
:
BOND CREDITOR
lofes his lien upon lands, if his debtor enter into an
agreement for ſale of them, vol. 2. 58.
Contra, if the confideration inadequate, ibid.
58-60.
CATCHING BARGAINS.
with heirs, reverfioners, or expectants, will be fet afide
upon a principle of national policy, 2 vol. 181.-
183.
notwithſtanding they have been carried into execution,
if done under the apprehenfion of compulfion, fet
afide on payment of what was advanced and legal
intereft, 2 vol. 183.
And fo done, notwithſtanding the money had been
paid under a former decree in fupport of the
contract, ibid. 184.
And no fubfequent act of the heir, though voluntary,
will help fuch a contract, if he be under any
miſapprehenfion, and not fully appriſed of the
nature of his right, ibid. 184-188.
But, if fuch contract, being free from fraud or im-
pofition, be afterwards ratified, this will bar the
relief in a court of equity, ibid. 188, 9.
CESTUIQUE TRUST
may, by his affent on an agreement, bind his trustees,
II2.
CHANCELLOR,
his authority in cafes of ideots and lunatics, is, by vir-
tue of a peculiar jurifdiction, granted under the royal
fign manual, 25.
And upon this ground he retains bills brought on
behalf of, or by lunatics, to fet afide conveyances
made by them, 27, 28.
CHANCERY
{
INDE X.
CHANCERY, Court of,
on which the cuftody of infants officially devolves, in-
terpoſes, and in many cafes reftrains infants from
refcinding their contracts, 40, 41.
Vide CONTRACT.
will decree tenant in tail, agreeing that others fhall
enjoy his tail lands, to levy a fine, 112.
Vide TENANT IN TAIL.
will decree an heir to perform the agreement of his
ancestor, though the latter only tenant for life,
where it was advantageous to the heir when entered
into, 115-123.
Vide MOTHER,
CHOSE in Action.
Vide ASSIGNMENT.
CHURCHWARDENS
may, by their affent, bind the pariſh to a reaſonable
contract or agreement, 114.
COMMUNITY
of goods, diftinguiſhed from excluſive property in
them, 4.
CONCEALMENT
wilful and induftrious, of the truth in a material point
by one party to a contract, in order to keep the
other in ignorance, and to profit thereby, will furniſh
a ground to ſet aſide a contract under the head of
fraud, 2 vol. 203, 4.
і
of
INDE X.
:
of a circumftance difadvantageous. to one party to an
agreement, ſo as to lead him into a misconception,
is a folid objection to decree a performance in fpecie,
2 vol. 222.
}
1
CONDITION
annexed to a contract, binds an infant.
Vide ASSENT.
s, are either unlawful, or lawful, 261,
unlawful, added to a contract, varies in its effect upon
it according to the nature of the contract, and of the
condition, 261.
Examples, 261, 2.
repugnant to the nature of the contract to which it is
added, is void, 262.
Examples, ibid,
Vide BOND.
*
s, lawful, are of three kinds, 263.
their natures exemplified, 263, 4.
impoffible, annexed to a contract divifible into fuch as
are ſo when the contract entered into, and ſuch as
become fo by fubfequent matter, 264.
264.
affect them in different ways,
Examples, 264-266.
s, impoffible, precedent or fubfequent affect a contract,
to which they are annexed differently, 266.
5,
in bonds, operate differently where they
are part of the bond, and where they are indorfed or
underwritten, 267.
Example, ibid.
s, to be carefully diftinguifhed from circumftances
annexed which feems to import them, but are modal
only, 267-9.
Vide TIME.
may ariſe by conftruction, without conditional words,
where
INDE X.
where a party would otherwiſe be without remedy on
a contract, 382.
that A. fhall not hurt, endanger, or moleft B. will not
be broken by A.'s purfuing B. for felony, or other
juft caufe, 388.
to avoid a bond, conceived in equivocal or ambiguous.
language, fhall be construed in eaſe and favour of
the obligor, 397-399.
prevented from being performed by the party in whoſe
favour it is made, is difcharged, 417.419.
of bond faved at law, when enforced in equity not-
withſtanding.
Vide BOND.
{
CONFIRMATION
fhall receive fuch a conftruction as will not work a
wrong to him who confirms, if it may have an ope-
ration otherwife, 389.
of a bargain originally oppreffive.
Vide CONTRACT.
CONFUSION
in the civil law, what it is, 438.
CONJECTURES
muſt be reforted to, in order thereby to diſcover the
true meaning of parties to contracts, where words
are equivocal, or fentences ambiguous, 376, 377.
may be drawn from three fources, 377.
Firft, From the ſubject to which the language is
applied, ibid.
Examples, 377-380.
Secondly, From the effect or confequence that
follow from this or that acceptation of words,
382.
Examples, 382--384.
Thirdly
INDE X.
!
Thirdly, From the actions or circumftances at-
tending a tranfaction, 384.
Examples, 385-387.
CONSIDERATION.
defined, 330.
Vide CONTRACT.
good or valuable,. muſt be the bafis of an executory
contract or agreement, or it will not be valid either
at law or in equity, unless it be by deed, 330, 1.
of a contract under feal, not enquired into at law, in
an action upon it, the deliberation with which the
inftrument is made being of itfelf fufficient to fup-
port it, 332, 3.
1
1
Vide NUDUM PACTUM,
may be in two ways, 342.
by fome act to be done by the one
party for the benefit of the other party, 342.
Inftances of this, 342.
however trifling, is fufficient whereon to ground an
action, 344:
of a contract, may be the doing or permitting fome-
thing to be done to the prejudice or lofs of
one of the parties, 344.
Inftances of this, 344-348.
executed, and entirely paft, is not ſufficient to ground
a contract upon, unleſs fomething meritorious
arife between the parties, 348, 9.
Contra, if all but one tranfaction, 349, 350..
executed, will fupport a contract, if there was a duty
before, 350, I.
paft, will be a good ground to maintain an action upon
a ſubſequent promiſe or contract, where the con-
fideration is ftated to have been at the defendant's
fuit and requeft, 351, 2.
will not fupport an action by a perfon who is a mere
ftranger to it, 353.
moving from a father, will fupport a contract made in
favor of a child, 353.
of
!
ÍNDE X.
i
of forbearance of fuit muſt have two properties, 353.
Firſt, It must be either general, or for a particular
time certain, and not uncertain, 353, 4.
Second, It muſt be from a fuit or matter in which
the defendant is chargeable, or, 354, 5.
At leaſt there must be a colour whereon to found a
fuit, 356.
that is idle and infignificant is as none at all, 355-
Examples, 355, 62.
being "the day given," the declaration need not fet out
how the debt accrued, 356, 357.
s, being mutual, the thing ftipulated muſt be done, be-
fore the confideration for it is paid, 357, 8.
Diverſities in the application of this rule, 358-
360.
valuable may be marriage, or money.
Vide MARRIAGE,
good, is that of blood or natural affection, 361, 2.
Vide EQUITY, Courts of.
will arife at law, from one man entruſting a thing with
another, coupled with that other's undertaking re-
fpecting it, 364–367.
need not be expreffed in a contract, it being fufficient
if it can be collected out of it, from circumftances,
368.
implied from the fact of bargaining and felling, fed
quære, 368.
expreſs appearing, no other can be implied, 369.
of a marriage fettlement, or articles made by a father or
other lineal anceſtor, extends to all the anceſtor's
children, and their pofterity, 2 vol. 244.
Contra, if made by a brother or other collateral re-
lation, ibid. 244, 5.
Exceptions to the laft mentioned rule, where any
circumſtances occur, which furniſh a ground to
prefume a distinct confideration, 2 vol. 245.
Inftances, ibid. 245—254.
Vide COVENANT, EQUITY, Court of;
CONTRACT.
INDE X.
defined, 6.
CONTRA C T.
includes, a feoffment, gift, grant, leafe, loan, pledge,
bargain, covenant, agreement, promife, &c. 7.
has, for its ingredients, parties, confent, an obligation
to be conftituted or diffolved, 7.
neceffarily involves the free affent of the parties to it, 8.
Vide ASSENT.
PERSONS capable to Contract.
entered into by an ideot or lunatic, as to their own pro-
"perty, inoperative ab initio, II, 12.
Vide SURRENDER, CONTINGENT REMAINDER.
as to the acquifition of
property, if agreed to in a lucid interval, binds, 13.
lucid interval, may be avoided by heirs or reprefen-
tatives, 13.
if not agreed to in a
cannot be avoided by
may be rendered inef-
themſelves, when they recover their intellects,
14-23.
fectual in reſpect to themſelves, after office found
upon the writs de idiota, or, de lunatici inquirendo,
23, 24a
Vide CHANCELLOR. DRUNKENNESS.
binding, though entered into by a perfon of a weak un-
derſtanding, 30, 31.
Unleſs there be fraud in the tranſaction, 31.
Vide EQUITY.
made by an INFANT to turn intereft into principal,
eſtabliſhed in Chancery, being for his benefit, 41, 42.
made by infants on their marriage, decreed to be bind-
ing
INDE X.
ing in equity, 42.-the principle upon which courts of
equity proceed, difcuffed, 42-44. 2 vol. 258, §.
Vide MARRIAGE contract, MARRIAGE articles.
1ade with an infant, without femblance of benefit to
him, void, 54.
Vide BOND.
may be made binding in equity by
affent, when of age, 55.
Vide FEME COVERT.
between huſband and wife, impracticable at law, 109.
may be efficient in equity,
ibid.
And will bind his executors and adminiftrators,
III, 112.
Vide TENANT in Tail, CESTUIQUE TRUST,
CHURCHWARDENS, ANCESTOR, HEIR, Mo-
THER, COVENANT, EXECUTORS, ATTORNEY,
STEWARD, JOINT-TENANT.
of a woman, made before marriage, binds her after
taken huſband, 123.
by a copyhold far life, where the widow entitled to
free bench, that another ſhall hold and enjoy during
his own and the life of his wife, decreed in equity,
129-131.
not performed by one party, he ought at law to pay
the other fuch damages, as he fuftains by the ne-
glect, 137.
entered into upon a fuppofition of a right, or of a
doubtful right, will be binding in equity, although
the right turn out to be on the other fide, 142-144.
But the parties must be acquainted with the na-
ture of the information they call for refpecting
fuch right, 144-146.
Vide WAGER CONTRACTS.
for purchaſe, not invalidated by reaſon of a variation in
circumſtances
'
INDE X.
circumftances, if not fuch at which the party par
ticularly aimed, and for which he ftipulated parti-
cularly, 147.
Examples, 148-151.
executed and executory, are diftinguiſhable in reſpect
of the ſubjects they may affect, 152.
executed, will not attach upon things of which the
perfon contracted is not in poffeffion, actually or
potentially, 152-158.
Examples, 153.
executory, requiring fome new act to give them per-
fection, will attach on a fubject wherein the perfon
contracting, has, at the time, no vefted intereft, 159.
Contra, if no new act to be done, 159.
Vide GRANT, LESSEE, COVENANT.
to perform things naturally impoffible, is void, 160, 161.
Diftinction between things naturally impoffible,
and thoſe which are only impoffible, to the par-
ties contracting, by reafon of their particular
circumftances, 161.
DAMAGES.
Vide COURT of Equity,
« impoffible," its fignification in equity, 163.
muft be not only naturally poffible, but alfo morally
ſo,. 164.
to do a thing in itſelf unlawful, is void, 164, 5.
In what ſenſe things may be deemed unlawful,
165-175
's reftrictive of trading in any particular way in gene-
ral throughout England, are unlawful, and therefore
void, 166.
not to exerciſe a trade within a limited period, void,
167.
Contra, if, not to trade within a certain place,
167, 8.
But it must be entered into for a fufficient confi-
deration, which it is best fhould appear upon
the face of it, 168, 9.
and
IN DE X.
and a bond if for theſe purpoſes, analogous, 170, 1
Vide EQUITY, Court of ASSUMPSIT.
fimoniacal, void, 177.
s, militating against the principles of morality and pub-
lic decorum, are void, 182, 183.
Vide WAGER.
s, having a fraudulent object in view, are void, 185.
As to cheat government, 185.
s, to impofe upon third perfons, though fair between
the parties, are unlawful, 186.
Vide AUCTION.
reſpecting things prohibited from being fubjects of
contract by ftatute law, void, 186.
Vide BOND.
for more than legal intereft, is void by 12 Anne, ſtat. 2.
cap. 16. 188.
by a bankrupt, or any perfon on his behalf, to pay a
creditor for figning his certificate, void, 188, 9.
Although the money paid be for the benefit of
creditors, 191-194.
Exception, 194, 5.
for infuring lottery tickets, void, 195.
to induce the omiffion of fomething, the doing of
which is a duty in the perſon with whom it is made,
is unlawful and void, 195.
Vide SHERIFF.
to encourage unlawful acts or omiffions, is void, 196.
Vide BOND, ASSUMPSIT, WAger.
reſpecting things prohibited to be contracted about, are,
in fome inftances, fuffered to prevail, after they have
been executed, 201.
Vide
INDE X.
Vide PROHIBITIONS, GAMING, MONEY,
BANKRUPT, LOTTERY.
to do unlawful act may be refcinded, 207.
diftinguiſhed from the fecurity for performance of it
207-209.
Vide ANNUITY ACT.
or agreement verbal, not determined or extinguished by
being put into writing, 218–221.
the object of which is ufelefs, is void, 231.
wantonly affecting the intereft or feelings of a third
perfon, are void, 232, 3.
Vide WAGERING, CONTRACT.
wantonly tending to the introduction of indecent evi-
dence, void, 233.
s, diftinguiſhed into executed and executory, 234.
s, their feveral natures defined, 234, 5.
s, applicable to all rights, real, perfonal, and mixt,
235.
s, their feveral natures, 236.
s expreſs, defined, 236.
s conftructive, defined, 236.
!
Vide TYTHES, RECITALS, EXCEPTION,
COVENANT, LEASE.
Vide INTENTION, COVENANT, ACTION
upon the Cafe.
s implicative, defined, 245-258.
Vide BAILMENT, GRANT, LESSEE.
s, are either fimple, or abfolute, or conditional, 258.
fimple, its nature, 259.
conditional, its nature and effect, 259, 260.
conditional, with a reference, 261.
Vide CONDITIONS.
s, are written, or underwritten, 269.
Foundation of the above diftinction, 269, 270.
the
INDE X.
the confideration of which is an act that will produce
the compromiſe of an intended law fuit, will fupport
an action at law, or a fuit in equity, 303, 4.
s, confidered as fuch in equity, ariling out of inftru-
ments having a different effect at law, 313-329.
Vide EQUITY, Court of.
may be made out, in equity, by proving it poſitively,
319.
circumftances, from the na-
ture of which equity will infer an agreement, 320.
Vide EQUITY, Court of.
may be made out in equity, by proving an inftrument,
from the nature of which, equity will infer an agree- .
ment, 323, 4.
Vide CONSIDERATION.
as it was defined by the Roman law, what, 334, 5.
s divided, by that law, into nominate and innominate,
335.
founded upon a prior moral obligation, is not nudum
pactum, 351.
Vide NUDUM PACTUM.
may, at any time before it is to be executed, be re-
fcinded by the parties, if no third perfon concerned,
412.
Vide EXCHANGE, LEASE, AGREEMENT.
i.
may, in fome cafes, be refcinded by one of the parties,
alone, 415.
executed and confummate, if in the power of a third
perfon, or contingency to give it perfection, cannot
be refcinded by the parties, 415, 416.
cannot be annulled after the time for performing it
paffed, but it may be releaſed, 416.
Vide RELEASE.
is diffolved, and the party under obligation diſcharged,
if
INDE X.
if the perfon to be benefited is the occafion why it is
not carried into execution, 417.
Vide CONDITION, COVENANT.
And the party bound to performance, will be in
the fame condition, as if the agreement had been
fulfilled, 419, 420.
Vide RIGHT.
of a lower degree, may be determined or annulled,
by accepting a contract of a higher degree for the
fame thing, 423.
Vide BOND, JUDGMENT.
s of equal degree, do not extinguiſh or determine each
other, 423, 424.
Vide STATUTE STAPLE, JUDGMENT, RECORD.
A diftinction to be obferved between reciting and
corroborating a parol contract, and putting them
under feal, 425-
entered into by deed, cannot be diſcharged or annulled
by parok 425, 6.
Vide BOND, COVENANT.
Contra, where a wrong or default fubfequent,
together with a deed, give an action to recover
damages, 426, 7.
Vide PAROL AGREEMENT, PAROL EVIDENCE.
is, generally, diffolved by the right and obligation
meeting in the fame perſon, 438.
Examples, 438. 444.
Vide BOND, MUTUAL DEBTS, MARRIAGE.
may be annulled or altered by act of the legislature,
444, 5.
Examples, 445, 6.
may be diſcharged by the act of God, 446, 7.
1.
Examples,
INDE X.
Examples, 447, 8.
upon, 451.
by any collateral fatisfaction agreed
But the act of a third perfon will not vary
it, ibid.
how enforced.
Vide EXECUTORY CONTRACTS.
not properly fraudulent, in the ſenſe of deceit, may
be relieved againſt on the ground of inequality and
impoſed hardſhip on one party, 2 vol. 145-149.
Vide COVENANT, NECESSITY.
infected with fraud on the face of it, is void at law, as
well as in equity, 2 vol. 149.
Vide PARTICEPS CRIMINIS, Maxim,
INADEQUACY OF PRICE.
from which it is prima facie felf evident, that one of
the parties muſt have been entrapped, will not fup-
port an action, 2 vol. 159.
void, on the ground of fraud, is both at law and in
equity confidered as a fecurity, to the extent of the
real value of the thing contracted about, 2 vol. 159.
160.
entered into under the impulfe of fear.
Vide FEAR.
s originally oppreffive, as well as thofe gained through
fear, may, by fubſequent acts of the party impoſed
upon, be rendered binding, 2 vol. 163, 4.
As by confirmation, ibid.
Contra, if confirmation fraudulently obtained,
ibid. 164.
fraudulent, as againſt third perſons, parties to an origi-
nal contract, but not fo to the fraudulent agreement.
Vide FRAUD.
or agreement underhand, although procured after mar-
riage, if made in fraud of a third perfon, will be ſet
afide in equity, 2 vol. 171, 3.
VOL. II.
M
Same
:
INDE X.
Same law as to a wife deceived by her husband,
ibid. 173.
Or on the huſband, ibid. 174.
And in theſe cafes of underhand agreements, in
caſe of marriage, a perſon, though particeps
criminis, and not urged to what he does by
neceffity, will nevertheleſs be allowed to avoid
his own acts, 2 vol. 174, 5.
But a diftinction is taken where the agreement
is made between the hufband and wife only,
and no third perfon is impofed upon, ibid. 175, 6.
in fraud of a third perfon, i. e. where there is actual
fraud, cannot be rendered binding by a fubfequent
promiſe or ratification, ibid. 176.
- is not bettered by being affigned over
to creditors, 2 vol. 176, 7.
Exception to the above rule, ibid. 177-181.
Vide CATCHING BARGAINS.
entered into under an undue influence, and under cir-
cumſtances from whence it may be inferred, that one
party had an advantage over the other, will be ſet
afide in equity, 2 vol. 189, 190.
to abide by the decifion of a court of equity on the merits.
Vide COURT OF EQUITY.
reſpecting an eftate directed to be fold before a mafter,
will be void, 2 vol. 191, 2.
to ftifle a profecution for felony unlawful, and cannot
be executed in equity, 2 vol. 192, 3.
Contra, as to an agreement refpecting fraud,
ibid.
Sed quære, for the caſe ſtated in fupport of this
diftinction, does not go that length, 2 vol. 193
-195.
entered into by truſtees in behalf of themſelves.
Vide BARGAINS.
may be ſet aſide, in equity, by reafon of miſtake,
where the point miſtaken is the cauſe of the agree-
ment, 2 vol. 196, 7.
Vide IGNORANCE of Value, SURPRIZE,
MISAP-
INDE X.
MISAPPREHENSION, CONCEALMENT.
reſpecting perfonal things, and laying in damages, is
remediable in law only, and not in equity, 2 vol. 215.
Vide EQUITY, Courts of
to merit the interpofition of a court of equity in its
favor, muſt be fair, juft, reaſonable, bona fide,
certain in all its parts, mutual, ufeful, made upon
a good or valuable confideration, not merely volun-
tary, confiftent with the general policy of a well
regulated ſociety, and free from fraud, circumvention,
or furprize, 2 vol. 221.
Vide CONCEALMENT, MISCONCEPTION,
entire, and inequitable in part.
Vide EQUITY, Court of
unreaſonable, exorbitant, and made with a perfon of
weak intellects, will not be fpecifically decreed in
equity, 2 vol. 227, 8.
Vide EXORBITANCY of Price.
upon equal terms at the time when it is entered into,
will be carried into execution fpecifically in equity,
however unequal it may become afterwards, 2 vol.
232, 3.
not being made bona fide, is, in equity, a good objec-
tion to its not being carried into execution in fpecie,
2 vol. 233.
Vide UNCERTAINTY, MUTUALITY.
merely voluntary, and without confideration, will not
be executed in fpecie, in equity, 2 vol. 242, 3.
Contra, if it be for a juft caufe, ibid. 274.
Vide COVENANT, CONSIDERATION.
parol, and without confideration, importing a truſt,
ſpecifically carried into execution in equity, 2 vol.
257, 8.
M 2
tending
INDE X.
tending to encourage extortion, or promote inebriety,
will not be decreed in fpecie, in equity, 2 vol. 259,
260.
Vide SPECIFIC EXECUTION.
not waived by laying dormant, if a good reafon af-
figned, 2 vol. 260.
by tenant for life, though fubjecting him to be called
to an account for wafte, decreed, in equity, to be
by him fpecifically executed, 2 vol. 272, 3.
CONSTRUCTION
of contracts and agreements, defined, 370.
ought not in any cafe to carry either
beyond the intent of the parties to them, at the
time of their entering into fuch contract or agree-
ment, 370-372.
*
Vide RENT CHARGE, TERM, INTENTION.
of the words of a contract, fhall, in equity, be fuch as
will give it effect to the full extent intended, if they
will in any way bear it, 372.
Vide TRUST.
of a contract, as to the manner of its operation, may
vary according to accidental circumftances falling
out after it is entered into, and before its com-
pletion, 380.
may vary, according to the manner in
which it is carried into effect, 380, 1.
the fame words in the fame inftrument may be
various, if they are applied to different fubjects, ac-
cording to the nature of each ſubject, 381, 2.
Vide WORDS.
~
which ſuppoſes the maker of the inftrument expounded
to intend an abſurdity, is not to be favoured, 389.
Vide COVENANT, MONEY, VALUE, DEEDS.
CONTINGENT
INDE X.
CONTINGENT REMAINDER.
Vide SURRENDER.
COPY HOLD.
Vide ANCESTOR, CONTRACT, COVENANT,
EQUITY, Courts of.
}
COPY HOLDER
's widow bound by his agreement, and may, in confe-
quence thereof, lofe her free bench, 2 vol. 57.
1
CORN
cannot be attached in fhocks, 176, 177.
unfhocked, not diftrainable, 355, 356.
COURT of Chancery.
(vide CHANCERY, Court of.)
as court of equity, primarily decreed in perfonam only,
12 vol. 9.
firſt began to iffue proceſs in rem, in the time of James
the Firſt, ibid.
will proceed to a decree, if either the perfon or eſtate
are within its juriſdiction, 2 vol. 9, 10.
Vide EQUITY, Court of
COURT of Equity.
Vide EQUITY, Court of
COURTS of Law.
Vide Law, Courts of.
COVENANT.
INDE X.
COVENANT.
(Vide INFANT.)
entered into by a woman, before marriage, binds her
after taken huſband, 123-
that leffee fhall have the corn growing on the land at
the end of the term, is a good covenant, 156, 157.
to ftand feiſed of lands to be after purchaſed to the ufe
of another, is void, 159, 160.
of the leffor may take effect as a conftructive agree-
ment by the leffee, 241, 242.
parol, taken as an agreement, 244, 5,
for quiet enjoyment, covers only lawful incumbrances,
379.
the import of which is doubtful, may receive a conftruc-
tion from the acts of the covenantors, 385-387.
for quiet enjoyment will not be broken by any ejectment
brought by a ſtranger, for fuch conftruction would
be to intend an abfurdity in the covenantor, 390.
to fave harmleſs againſt all perfons, underſtood againſt a
lawful entry, upon the fame principle, 390.
Contra, if againft a perfon certain, ibid.
in a deed to fave a forfeiture, in nature of a condition
or defeazance in a bond, fhall be conftrued favorably
for the covenantee, 398, 9.
conftrued according to the general intent, as it appears
in the context, 403-405.
the performance of which is prevented by the com-
mand of the covenantee is difcharged, 418, 419.
not diſcharged, by delivering up the deed, if not re-
leafed, 425, 6.
Vide ACCORD.
if becomes impoffible by the act of God, difcharged,
446-8.
But if the intent can be performed, it fhall, 448
-450.
at common law, entitled the covenantee on breach to
damages only, 2 vol. 2.
}
!
as
INDE X.
as to ſpecific execution thereof in equity.
Vide EQUITY, Court of.
to invest money in land, may be fatisfied by a deviíe
of equal eftimation, 2 vol. 125, 6.
-
- by the covenantor
fuffering lands of equal value to defcend, 2 vol.
126, 7.
Further obfervations on this head, ibid. 127—129.
But the lands purchaſed muſt be of the fame
nature as thoſe ftipulated to be bought, 2 vol.
127, 8.
Money devifed, no fatisfaction for fuch land,
2 vol. 128.
to invest money in land, will attach upon lands bought
at feveral times, under the notion of being purchaſed
in part performance, 2 vol. 129–131.
But this lien will not follow fuch purchafed lands
into the hands of purchafors or mortgagees,
2 vol. 131, 2.
Contra, in the hands of a devifee, 2 vol. 132.
And fuch purchaſed lands will not be fubje&t to
the debts of the covenantor, 2 vol. 132, 3.
to fettle lands on the covenantor's heir, will attach
upon lands defcending upon him from that anceftor,
2 vol. 133, 134.
Quære, if not as an intended performance, and
not as a lien, ibid. 134, 5.
to turn intereft, on a mortgage, not paid into principal,
relieved againſt in equity as fraudulent in the fenfe
of impoſed hardſhip, 2 vol. 146, 7.
againſt the ſtatutes of ufury, will be relieved againſt in
equity, 2 vol. 148, 9.
operating by way of penalty.
Vide CONTRACT.
in a leafe, that leffee fhall refide on the estate, will
not be relieved againſt in equity, as penal, 2 vol.
209-212.
to convey copyhold to a baſtard child, will not be car-
ried into ſpecific execution in equity, being merely
voluntary, 2 vol. 243.
on
INDE X.-
on which, an action at law will lie to recover real
damages, not deemed voluntary in equity, ibid.
251-254.
by huſband, that he and his wife fhould levy a fine,
decreed, in equity, to be executed ſpecifically by the
huſband, 2 vol. 171, 2.
CREDITOR
agreeing to take less than his debt, if paid at a day,
his debtor will not be relieved againſt paying the
whole, if the debtor fails of payment at the day,
2 vol. 213.
Contra, if any new fecurity given, ibid. 214.
CREDITORS.
Compofition with.
Vide FRAUD CONTRACT.
DAMAGES
may be recovered againſt a man undertaking fomething
morally not within his power, 162, 163.
{
DAY
given for payment of a debt.
Vide CONSIDERATION.
DEED S.
(vide NON-SANE MEMOIRE.)
feveral, made at the fame time, to effect one object,
fhall be conftrued as one affurance, 410, 411.
1
DEVISE
INDE X.
1.
DE VIS E.
(vide WILL.)
by infant of his perfonal eſtate, may make his bond
good, 37.
made in execution of marriage articles, muft purſue
them ftrictly according to their legal conftruction,
2 vol. 55.
DISTRESS, Power of,
(vide RENT-CHARGE)
DO UT DE S,
in the Roman law, defcribed.
DO UT FACIAS,
in the Roman law, defcribed, 336, 7.
DRUNKENNESS
no ground for refcinding a contract or agreement, 29.
Vide EQUITY, Courts of
Contra, if occafioned by management or contriv-
ance of the perfon contracted with, 30.
ELECTION.
Vide HEIR.
EQUITY.
}
INDE X.
1
EQUITY, Courts of,
will relieve a weak man from his contract, if practifed
upon by impofition, 31.
or haraffed, or rendered uneafy, 32.
will affift creditors in making the feparate property of
the wife, liable to the fatisfaction of their debts,
102, 103.
will not make a decree against a feme covert, having
feparate eftate, for payment of a fum of money
generally, 104, 105.
will decree the heir of tenant in tail having power to
leafe, to carry into execution a covenant for a leaſe,
127, 128.
Vide JOINT-TENANT, CONTRACT.
carry into execution a contract for lands ftated
to be tythe free in particular, although the lands be
fubject to tythes, on an abatement of price, 148.
So, if the particular ſtate a manor, and there be
not one, 149.
Contra, if exprefsly ftipulated that the lands are
tythe free, or that there is a manor, 150.
will not decree a ſpecific execution of a contract by a
man, to ſell eftates that are the property of another,
161.
in deciding on bonds to reftrain trading, advert to the
object of the bond, whether damages or a penalty
was intended, 171, 2.
will not retain a bill for an allowance for attending as
a puffer at auctions, 186.
Vide FRAUDS Statute of, MASTER in Chancery,
PURCHASER, SALE, SOLICITORS, SPECIFIC
EXECUTION.
confider themſelves as not reſtrained by the ftatute of
Frauds, from carrying parol agreements fpecifically
into execution, when there is no danger of fraud or
perjury, 292-312.
will carry an agreement into ſpecific execution, though
not in writing, if it be confeffed by the defendant,
202-294.
Vide
INDE X.
:
-
Vide PAROL AGREEMENT.
not decree the ſpecific execution of a parol agree-
ment, given in evidence to rebut fraud attempted to
be practifed in enforcing a written agreement, 294, 5.
will decree the fpecific execution of a parol agreement
part performed, 295-312.
Vide PERFORMANCE.
of a marriage
treaty, for payment of a portion, written but not
figned by the parent of one of the parties, who
holds back fraudulently with intent to entrap the
parties into a marriage without the portion, 298,
299.
will decree the fpecific performance of an agreement
made out by a letter under the hand of a third per-
fon, if proved to be written with defendant's af-
fent, 299.
will infer an agreement, from any written inftrument,
expreffing the intent of the parties to ftipulate for
fomething collateral to that which the inftrument
itself, prima facie, imports, 313, 314.
Vide BOND, WARRANT of Attorney.
will imply an agreement, from a fecurity releaſed,
difcharged, or defective in law, where fo to do,
will produce juftice between the parties, 314—317..
Vide ASSIGNMENT, CHOSE in Action,
AWARD.
will imply an agreement, by one holding a benefit
under a leffee, to join him in renewing, the leffee
undertaking to fecure to him who holds under him
the fame benefit under the new leafe, 320.
Vide CONTRACT.
will, by intendment, prefume circumftances to have
conſtituted part of an agreement, the exiftence of
fuch circumftances being abfolutely neceffary to have
effected
INDE X.
effected the manifeft intent of the parties, although
no pofitive evidence of their exiſtence is extant,
324, 5.
will, from a fubfequent tranfaction, raife an agree-
ment acceffory to a precedent tranfaction, where cir-
cumſtances warrant fuch an inference, 325-329.
Vide RECEIPT.
will not, unleſs under particular circumftances, decree
the ſpecific execution of a covenant under feal, if
merely voluntary, 341, 2.
confider the eſtabliſhment of the peace of a family,
as a good confideration to fupport an agreement,
362, 3.
the compromife of a doubtful right, a good
foundation of, and confideration for, an agreement,
363, 4.
will compel the execution of a voluntary contract, when
it is a meaſuring caft between an executor and heir
at law, in favor of the heir, 369.
Vide INTERPRETATION.
will relieve parties against their words ufed in contracts,
when they would otherwife operate in events, which,
could they have been foreſeen, would have been
excepted, 393, 4.
will decree the fpecific execution of a parol agreement,
in part executed, the object of which is to alter a
written agreement, 428, 9.
But a very clear proof of fuch parol agreement
will be required, 429, 430.
Further obſervation on this fubject, ibid.
Vide PAROL EVIDENCE.
began to affume a jurifdiction as to the fpecific perfor-
mance of agreements in Edward the 4th's time,
2 vol. 4, 5.
But their jurifdiction therein was not fettled until
Charles the 2d's time, 2 vol. 6, 7.
alone, can decree a specific execution of agreements,
2 vol. 7, 8. ·
Vide
INDE X.
Vide COURT OF CHANCERY.
collaterally, and in confequence of an agreement,
judges concerning matters not originally within its
jurifdiction, 2 vol. 10.
will decree any contract that ought in foro confcientia to
be performed, 2 vol. 10, 11.
an agreement with a fecond wife, notwith-
ſtanding there be a firſt wife living, 2 vol. ibid.
will not decree alimony, but will decree an agreement
for a ſeparate maintenance in nature of it, 2 vol. 11.
will decree an agreement refpecting copyholds, 2 vol.
12, 13.
in fome cafes, where there is no remedy
at law, 2 vol. 14, 15.
exerciſe a difcretion, in cafes of agreements, and con-
fequently if there be any material objections to car-
rying an executory contract into execution, 2 vol.
14—16.
will not, unleſs in particular inftances, decree a ſpecific
execution of an agreement whereon damages cànnot
be recovered at law, 2 vol. 16.
Inftance of an exception, ibid.
Farther obſervations on this head of Equity, 2 vol.
17-19.
require, that he who applies for their aid, fhall have
performed all that was contracted for on his part,
2 vol. 19.
Nor will his having been prevented by the act of
God, be any excufe for not having done fo, if
he had time to accompliſh it, 2 vol. 20, 1.
The practice of courts of equity and of law,
fimilar in this reſpect, 2 vol. 21, 22.
Exception, where the party coming for aid has
performed part of his agreement, and is in no
default, is not in ftatu quo, 2 vol. 22-26.
take a difference, in refpect to carrying into execution
agreements on marriage, and other agreements, in
refpect of the rule above-mentioned, as to perfor-
mance being fhewn on the part of the perfon applying,
2 vol. 26–28.
Exception to this exception as to marriage agree-
ments, 2 vol. 28–38.
will
INDE
X.
will decree part of an agreement, where other part
of it is rendered illegal by the legiſlature, between
the time of entering into it, and its performance,
2 vol. 31-33.
will, where the entire performance of an agreement
is prevented by the act of God, or accident, decree
a part performance, if the vendee is fatisfied therewith,
2 vol. 33, 34-
Vide PURCHASER.
decree a specific execution of contracts and agree-
ments for fale, &c. upon the principle that the ven-
dor, &c. is, by virtue of the contract, become a
truſtee, 2 vol. 38.
on application for a ſpecific performance of covenants,
decree it or not, according as the intention of the
parties appears to have been to rely and depend upon
the fecurity of the covenant only, or otherwife,
2 vol. 38-40.
Vide INTENT.
confider a vendor under an executory agreement, as a
truſtee for the vendee; and all perfons having claims
upon him (the vendor) as fubject to the confequences
that follow from that inference, 2 vol. 57, 8.
Vide BOND CREDITOR, JUDGMENT CREDI-
TOR, MORTGAGEE, VENDEE, MONEY,
LAND.
money contracted to be laid out in land,
as land, and vice verfa, 2 vol. 83, 4.
Vide EXECUTORS.
But this rule of equity only applies where the con-
tract to do either is pofitive; for if there be a
power of election in one of the parties, fome
circumſtance must be that evinces an election
made, or the fund will be taken in its proper
fhape, 2 vol. 84, 5.
And
INDE X.
And the agreement which effects the tranfpofition,
muſt be fuch as the parties are entitled to carry
into execution in a court of equity, 2 vol.
85, 6.
Vide MONEY, COURTS of LAW.
will decree the fpecific execution of an agreement,
notwithſtanding the inſertion therein of a penalty
in cafe of non-performance, 2 vol. 136, 7.
Exception, if the object of the agreement be da-
mages only, 2 vol. 137, 8.
>
if new matter come out refpecting an agree-
ment, againſt which a decree has been made, fup-
port the agreement on an application by other
parties not bound by the former decree, 2 vol.
138-140.
if a queftion of fact ariſes on a bill for ſpecific exe-
cution of an agreement, direct an iffue at law to
aſcertain it, 2 vol. 140, 1.
will, on an agreement for a purchaſe of land, take
care that there are uſual covenants in the convey-
ances, if fo ftipulated, 2 vol. 141, 2.
Contra, if the contract refpect a perfonal thing,
ibid.
-
decree a loſing as well as a beneficial bargain,
2 vol. 142.
relieve againſt unreaſonable contracts or agree-
ments, 2 vol. 143.
On refunding what has been bona fide paid, and
making allowances for improvements, &c. ibid.
Vide UNREASONABLENESS, FRAUDULENT,
CONTRACT.
will, on relieving againſt an inequitable advantage
taken in a bargain by one party, decree fuch party
to refund what he has received more than is due,
2 vol. 151.
will not fet afide a bargain on the ground of inadequacy
of price.
Vide INADEQUACY of Price.
will relieve againſt a contract entered into under the
impulfe of fear.
*
Vide
INDE X.
J
Į
Vide FEAR.
will rectify errors in their proceeding, notwithſtanding
any agreement of the parties refpecting them, 2 vol.
190, I.
require the party filing a bill for performance of a
contract, for non-performance of which a penalty is
recoverable at law, to waive it, 2 vol. 204.
will not fuffer any advantage to be taken of a penalty,
if the fubftance of a contract may be obtained with-
out levying it, 2 vol. 204.
be made, ibid. 205.
where compenfation can
Contra, where the agreement, operates by way of
penalty, unless compenfation can be made in da-
images, ibid. 205-207.
Same rule, where contract, though it feems to
operate by way of penalty, does not really do
fo, ibid. 207-212.
So it is where a condition, though penal in effect,
is voluntary, and in favor of the party to fuffer
by it, 2 vol. 213, 214.
Vide CREDITOR.
will relieve against the penalty of a bond for perfor-
mance of covenants, after fending the parties to a
trial at law, to afcertain the damages, 2 vol. 214.
cannot decree the performance of a contract refpect-
ing perfonal things, if the agreement be denied, and
the relief demurred to, 2 vol. 216.
Vide CONTRACT.
¡
Contra, if the relief be not demurred to, but the
defendant anſwers, 2 vol. 216.
And if the agreement be denied in the anfwer,
and proved by one witnefs only, the court will
make an order to try it at law, and retain the
cafe upon the equity referved, ibid.
Exception alfo to this rule, where the matter of
fraud is mixed with the damages, 2 vol. 216,
217.
!
Or
INDE X.
Or a fpecific execution is neceffary to do effectual
juftice, ibid. 217-220.
Vide CONTRACT.
will not apportion relief, where a conduct is entire,
and inequitable in part, 2 vol. 226, 7.
will not make a decree, that will be vain and nugatory,
or direct that which will be ufelefs, 2 vol. 235.
Vide MONEY.
will, in cafes of trufts, fraud, and accident, carry con-
tracts into ſpecific execution, which are extinguiſhed
and gone at law, 2 vol. 254-258.
"
carry an agreement between a father and his chil-
dren, made with a view to a juft and proper family
arrangement into execution, although the father ufe
his coercive power to procure it, 2 vol. 264, 5.
will decree a ſpecific execution of an agreement, not-
withſtanding it be objected, that the party ftipulating
had no intereft in the thing contracted about, at the
time of entering into the agreement reſpecting it,
2 vol. 265, 6.
Notwithstanding it be evident from the parties own
fhewing who files the bill, that he had not a
good title to the thing to be conveyed, ibid.
the fpecific performance of marriage articles,
notwithſtanding a charge of adultery or elopement
pofitively made, 2 vol. 266, 7.
of an agreement, al
though it refer to foreign cuftoms or uſages, 2 vol.
267, 8.
though one party be
in goal, if it be done in a fair manner, 2 vol. 268.
will, when the public intereft concerned, decree a ſpeci-
fic execution of an agreement, although all perfons
concerned are not parties to the fuit, 2 vol. 268, 9.
will decree a ſpecific execution of a contract, notwith-
ſtanding it appears that the party bound cannot alone,
and without the aid of others, perform what he has
ftipulated, 2 vol. 271, 2.
VOL. II.
Vide COVENANT, CONTRACT.
N
not-
INDE X.
:
notwithſtanding the
time limited for performance of it is elapſed, 2 vol.
272, 3.-
will decree the fpecific execution of a contract made
with a perfon who afterwards becomes a lunatic,
againſt the truſtees of an eftate contracted about by
him, 2 vol. 273, 4.
Contra, if the legal eſtate in himſelf, ibid.
Vide CONTRACT, VOLUNTARY, SPECIFIC
EXECUTION.
ERROR
effential in contracts, its nature, 150, 151.
EVIDENCE
of an agreement in equity.
Vide EQUITY, Court of CONTRact.
at law, and in equity, generally governed by the fame
rules, 438.
EXCEPTION
in a deed indented, is an agreement, 238-240.
Obfervations hereon, ibid.
EXCHANGE
of land, by deed, may, before entry, be annulled by
deed, 413.
;
EXCHANGE of Goods,
whence it aroſe.
EXECU-
INDE X.
EXECUTORS
of every perfon implied in himſelf, 128. 402.
and teftator eſteemed fo far the fame perfon, that the
former may permit a fet-off to a debt due to the
latter, 440.
of the vendor of an eſtate, may, by bill in equity,
compel an agreement for fale to be fpecifically exe-
cuted by the heir of the vendor, and the purchaſer,
2 vol. 83, 84.-
included in a truft to lay money out in land although
not named in the truft, 2 vol. 92-93.
Vide BARGAIN by Trustees.
EXECUTORY CONTRACTS
at common law, were in general confidered only as
perfonal fecurities, and the non-performance thereof
entitled the party injured thereby to damages only,
2 vol. I.
Vide COVENANT.
fell under the jurifdiction of courts of equity, which
deal with the corrupt confcience of the party refuſ-
ing to perform what he has ftipulated, 2 vol. 3.
¿
were, in fome cafes, enforced fpecifically at common
law, 2 vol. 4.
Vide EQUITY, Courts of.
7
are confidered in equity, as executed from the time of
their being entered into, unleſs fome other time
appointed for execution, 2 vol. 55-57.
And this rule extends not only to a vendor, but to
all claiming in under him, ibid. 57.
Vide COPYHOLDER, EQUITY, Courts of.
EXORBITANCY of Price,
N 2
uncoupled
INDEX.
uncoupled with circumftances of fraud, has not yet.
been determined to furnish a ground for a court of
equity to refuſe to decree a fpecific execution of a
contract, 2 vol. 228.
Exception, if the party in whofe favor the price
is taken, is incapable of performing his part,
both literally and effectively, ibid. 228-232.
FACIO UT DES,
in the Roman law, defcribed, 336.
FACIO UT FACIAS,
in the Roman law, defcribed, 336.
FEAR,
occafioned by unlawful violence by one party to a con-
tract towards another, is a good ground of equity for
fetting afide an agreement, 2 vol. 160-162.
Or, by a third perfon, if the party were cogni-
zant of it, ibid.
arifing from a juft awe or dread of a third perfon,
being a lawful fuperior, and exercifing his authority
for a juft end, will not invalidate a contract, 2 vol.
162, 3.
Vide CONTRACT.
FELON Y.
Contract to ftifle a profecution for it.
Vide CONTRACT.
FEME
.*
INDE X.
FEME
COVERT
cannot avoid fine on ground of dureſs, 22.
cannot, at law, bind herſelf on her husband, by any
contract or agreement for money borrowed, or the
like, 59, 60.
Contra, in equity, if it be for neceffaries, &c. 60.
Or, if ſhe has feparate property in truft, in real
or perſonal eſtates; of which a court of equity
will take notice, and give effect to her con-
tracts refpecting it, ibid.
Although her truftees do not join, unleſs their
affent be made effential by the deed creating the
truft, 60, 61.
But to confult the truſtees is always prudent, 62.
's acquiefcence in a court of chancery, will operate as a
virtual appointment of fuch truft fund, ibid.
's engagement affecting the truft fund, may be enforc-
ed in equity, although her huſband out of the reach
of proceſs, 62, 63,¨
and her truſtees will be compelled, in equity, to apply
the produce of ſuch trust fund to the diſcharge of
her general engagements, 63, 64.
's agreement with her huſband refpecting this truft pro-
perty, operates as an appointment, 64-73.
And the law is now held to be the fame, although
no truſtees are interpoſed.
Vide BOND.
may, by acts done after coverture determined, render
her contracts, pending her coverture, efficient, 73
-75-
may, if her huſband has abjured the realm, fue or be
fued at law, 75, 76.
And the law is the fame if he be tranſported, 76.
Or, if the marry an alien enemy, 77.
living as a feme fole on a feparate maintenance allowed.
her on a feparation after marriage, may be fued on
a contract for goods fold to her, 77–80.
having ſuch a ſeparate eftate, and living apart from her
huſband, has a moral capacity of contracting in the
fame extent at law, as if fole, 81.
As
INDE X.
і
As by bond and judgment to fecure an annuity,
81-89.
The principles of the adjudication in which this
point has been decided, difcuffed, 89-108.
may bind her huſband by her contracts, where his affent
may be prefumed, 93, 94.
's difability to contract, a first principle of the common
law, 97.
Vide EQUITY Courts of, LAW Courts of, SEPA-
RATE ESTATE, SEPARATE MAINTENANCE,
CONTRACT.
entering jointly with her huſband into an agreement for
the benefit of her eftate, will be bound thereby, 108.
may difpofe, by will, of her favings out of property,
fhe has a feparate intereft in by affent of her huf-
band, 111.
affenting in chancery to an agreement by her huſband
to convey her lands, will be decreed to carry it into
execution, 124.
But the money arifing therefrom in truſtees hands,
will not be liable to her huſband's debts, ibid.
permitting her huſband to receive the intereft of her ſe-
parate eftate, is confidered in equity as having aban-
doned it to him, 421, 2.
But this may be rebutted by parol proof to the
contrary, 423, 4.
cannot, by a bare contract or deed, alter the nature of
money realized, 2 vol. 124.
may come into the court of chancery, and confent to
take it as perfonal eftate, 2 vol. 125.
and confent to
the diſpoſal of money to be laid out in land, and fet-
tled on her in fee, &c. 2 vol. 287, 8.
and conſent to
the difpofal of her huſband's money to be invested in
land, 2 vol. 238.
Vide RELEASE.
FE OFF MENT.
Vide NON-SANE MEMORIE.
FORFEITURE.
INDE X.
1
7
FORFEITURE.
Vide LESSEE, CONTRACT,
FRAU D.
Vide LESSEE, MORTGAGEE.
collected or inferred from the nature and circumftances
of the tranſaction as being an impofition and deceit
upon other perfons, parties to the original contract,
not parties to the fraudulent agreement, furniſhes a
head under which contracts are relieved againſt in
equity, 2 vol. 164-176.
Vide CONTRACT.
in a contract, in respect of perſons who ſtand in a re-
lation to be affected by it, or the confequences of it,
furniſhes a head of equitable relief, 2 vol. 167–170.
on a compofition with creditors, by deftroying the equa-
lity, which was the inducement to the creditors to
come into it, relieved againft in equity, 2 vol. 170.
in ſuch caſes, need not be upon an article contracted
for exprefsly, 2 vol. 170, 1.
, agreement refpecting it, in the fenfe of impofed
hardſhip, a diſtinct head of equitable relief, 2 vol.
145-149.
Vide CONTRACT, CONCEALMENT,
FRAUDULENT.
FRAUD S, Statute of,
its object, 269.
deterred courts of equity from retaining fuits for the
ſpecific execution of parol agreements, 270, I.
conftrued not to attach upon parol agreements, which
are in their own nature free from all danger of fraud
and perjury, 271.
Examples, 272-275. 291.
Vide SALE judicial, PURCHASERS, MASTER in
Chancery, SOLICITORS, EQUITY, Courts of
held
INDE X.
1
held not to attach upon an agreement refpecting city
orphans, 275.
in conſtruction, applies to all agreements, as well thoſe
made on marriage, as thofe on fales, &c. 276.
- as well to agreements refpecting
fecurities upon, as fales of land, ibid.
as to agreements not to be performed within a year,
does not affect agreements refpecting lands or tene-
ments, ibid.
provides, that an agreement or memorandum thereof
fhall be in writing, &c. 277.
Vide WRITING, SIGNING, LETTER, EQUITY
Courts of, PAROL AGREEMENT.
FREE
BENCH.
Vide COPYHOLDER.
GAMESTERS
not relieved, in equity, as to money loft and paid,
2 vol. 150, I.
GAMING
when money loft at play not recoverable, 202.
Policy,
Vide MONEY.
1
contract, diſtinguiſhed from fecurities given at gam-
ing, 207-9.
GAO LE R.
Vide ASSUMPSIT.
GRANT.
}
IN DE X.
1
/
GRAN T.
(vide NON-SANE Memory)
will not attach upon things which are not in the poffef
fion of the grantor, either actually or potentially,
!
153,
Vide DISTRESS.
to attorn for lands to be purchaſed, a void attornment,
153, 154.
will not transfer any right which the grantor has not at
the time of the grant, 154.
that an obligation to be hereafter made fhall be void, is
not good, 155.
will not transfer or incumber that, in which a man has
only an inchoate title or intereft, 155.
Vide INDUCTION, INSTALMENt.
of all the tythes that the parſon fhall have in ſuch a year,
is a good grant, 156.
of authority to demife for years lands, the grantor fhall
afterwards acquire, is a good grant, 159.
or a leaſe of tythes to a pariſhioner for a year, not good,
qua fuch, unleſs by deed, but may be ſupported as an
agreement, 236.
of a thing, fhall, by implication, include whatever is
neceffary for the enjoyment of it, 256.
of trees, includes leave to come and fetch them, 257.
of land, implies a grant of a way to it, ibid.
to lay leaden pipes, includes the right to enter and dig to
mend them, ibid.
ſhall receive a reaſonable conftruction, 377, 8.
although conceived in general terms, fhall, in conftruc-
tion, be applicable only to things in which the grantor
has a right of diſpoſal, 388.
HALF
!
7
INDE X.
1
1
HALF BLOOD
is an equal objection to being heir to money agreed to
be laid out in land, as to being heir to the land itſelf,
2 vol. 107-109.
HEIR
of a copyholder, where bound by act of his ancestor.
Vide ANCESTOR.
in borough Engliſh (i. e. youngeſt ſon) bound by the act
of his ancestor, and decreed in equity to convey pur-
fuant to his ancestor's agreement, 115.
>
where his anceſtor was only tenant for life, decreed to
perform an agreement clearly beneficial to himſelf
when entered into, 115-123.
}
Vide TENANT IN TAIL.
claiming under articles which have been executed by a
fettlement varying from them, taking other eftates
of his anceſtor by devife, fhall be put to his election,
2 vol. 51-54.
of the huſband entitled to money of the wife, ftipulated
to be inveſted in lands, although no provifion made
reſpecting it in failure of iffue of the marriage,
2 vol. 94.
of the half blood.
Vide HALF BLOOD.
奮
​HEIRS
MA L. E.
in a fettlement, do not include grandfons by the ſettlor's
daughter, 393.
!
IDEOTCY.
1
+
:
INDE X.
IDEOTCY
may be taken advantage of on the general iffue, 11, 12.
IDEOTS
incapable of entering into contracts or agreements to
bind themselves or their own property, II.
are competent to acquire property by a derivative
title, 13.
Vide CONTRACT.
bound by acts done in court of record as fines, recove-
ries, &c. 21.
Vide LUNATIC.
IGNORANCE of Value
reſpecting a claim, capable of being preciſely afcer-
tained, is a ground, in equity, to fet afide a contract,
entered into under an idea to part with ſuch claim,
upon confideration of having the full value in ex-
change, 2 vol. 197–200.
And a ratification of fuch a contract made under
the like conception, will not alter the cafe,
ibid. 199.
Vide CONTRACT.
IMPOSSIBILITY.
Vide CONTRACT.
INADEQUACY of Price,
a ftrong inducement to a court of equity to feize upon
any other circumftance, as a ground for refufing
}
their
}
INDE X.
*
靠
​their aid to enforce the execution of a contract,
2 vol. 76-79.
abſtracted from all other confiderations, is no ground,
in equity, for fetting afide or relieving againft a
contract, 2 vol. 152.
Contra, if it be an inadequacy founded on cir-
cumſtances that fhew the party not to have
contracted freely, 2 vol. 152,
As, if it were entered into under the impulfe of
diſtreſs in one party, known and taken advan-
tage of by the other party, 2 vol, 152-156.
Vide ANNUITY.
founded upon an impofition, practifed by the buyer
on the feller with regard to the value of the thing
in contract, is a ground to fet afide the bargain,
2 vol. 156, 7.
furniſhing felf-evident demonftration, from the intrinfic
nature and fubject of the bargain itſelf, of fraud,
ſeems to furniſh a ground to invalidate a contract in
equity, 2 vol. 157—159.
Vide CONTRAct,
INCONVENIENCE
general, a fufficient reaſon in law, for admitting a mif-
chief in particular, 23.
INDUCTION
gives the feifin of ecclefiaftical promotions, previous to
which no grant can be made by the owner to transfer
or incumber it, 155.
INFANT
1
cannot avoid a fine, recovery, or fecurity of record,
after he comes of age, 21.
1
under
1
INDE י.
X.
[
under an incapacity to grant or convey his property by
deed, not of record, 32, 33,
Such deed, therefore, abfolutely void, ibid.'
But conveyances by act of law, void or not as
againſt an infant according to their effect; if
there be a femblance of benefit, then they are
only voidable, otherwiſe void, 33.
Vide SURRENDER.
his incapacity of a mixed nature, partly phyfical, and
partly moral, 34.
bound by his contract for diet, apparel, &c. ibid.
ibid.
promiffory note for board and lodging,
as a leffee, if he enter, provided the rent not of
greater value than the leafe, 35.
covenant to ſerve in huſbandry, ibid.
fingle obligation for a fum actually
laid out in neceffaries, ibid. \
a preſumed agreement, ibid.
his power of contracting at law, does not extend further
than for neceffaries, education, and lodging, 36.
not fubject to debt contracted as a trader, ibid.
or,
for repairing houfes, ibid. or,
by a ſtated account, ibid. or,
by a covenant to ſerve, ibid.
Vide BOND, and fee exception DEVISE.
bound in equity to pay money lent to him, and applied.
by him to pay debts for neceffaries, 37.
fhall have the benefit of all contracts entered into with
him, for the incapacity is confined to him, 38, 39.
Vide MARRIAGE CONTRACT.
may make his leffee his tenant, or at his election, a
diffeifor, 40.
Vide CHANCERY, PORTION, MARRIAGE,
1
ARTICLES.
covenanting,
1
1
+
1
:
INDE X.
covenanting, with confent of her guardians, in confi-
deration of a fettlement to convey her inheritance,
ſhall be bound in equity, 48.
Vide MARRIAGE ARTICLES.
female may, by her marriage agreement, wave her
right to dower and thirds, 53, 54.
Vide CONTRACT.
being a mortgagee, engroffing a fettlement of the fame
lands without giving notice, reftrained from getting
poffeffion by a perpetual injunction, 134.
cannot effect any change in the character of money
realized, 2 vol. 124.
tenant in tail, remainder in fee to himſelf of money to
be laid out in land, would not probably be decreed to
have the money paid him, 2 vol. 240.
INROLMENT.
of an annuity, not ftating the confideration truly, how
it operates, 215-231.
1
INSTALMENT.
Vide INDUCTION.
INTENTION
of parties, is the principal key to the conftruction of
inftruments, and the claufes therein, 243, 4-
Vide BOND.
to a contract or agreement, is collected from
external figns and actions, 372, 3.
The figns of the intentions of men are words or
actions, 373.
Vide WORDS.
to
INDE X.
to an agreement, may be evinced either from
the nature of the covenants compared with the ſub-
ftance of the agreement, or from the nature of the
contract on which the covenant or agreement arifes,
confidering who are the parties, and the object of
ftipulating, 2 vol. 41.
Vide MARRIAGE ARTICLES.
INTEREST
referved upon the loan of money, and not ſpecified,
fhall be according to the value of forbearance in the
country where the tranſaction ariſes, 407, 8.
on a mortgage, may be reduced by parol agreement,
427.
INTERPRETATION
of contracts.
Vide CONSTRUCTION.
JOINT-TENANT
furviving, will not be compelled, in equity, to per-
form the agreement of his co-joint-tenant deceaſed,
129.
Exception, if the agreement amount to a parti-
tion, ibid.
Vide BARGAIN AND SALE.
JOINTURE.
Vide PORTION, VALUE.
JUDGMENT
obtained determines a contract for the fame fum, 423.
in one,court, is no bar to judgment in another,
424, 5.
1
1
JUDGMENT
1
1
1
INDE X.
JUDGMENT CREDITOR,
lofes his lien upon lands, by his debtor entering into an
agreement for the fale of them, 2 vol. 58.
Contra, if the confideration of the agreement ina-
dequate, ibid. 58-60.
}
LABOUR,
its effect on the antient community of things, ¨3.
LA Ń D.
1
directed to be turned into money, is taken, in equity;
as land, 2 vol. 83, 4.
i
LAW, Courts of,
diftinguish between the feparate maintenance, and ge
neral property of the feme covert, 102.
recognize the principle of equity, that money articled
to be turned into land, is land, 2 vol. 104-106.
LEASE
(vide TYTHES)
without impeachment of wafte, amounts to a gift of
the trees, 243.
for twelve inonths, is only for forty-eight weeks, 375-
for a twelvemonth, good for the whole year, ibid.
may be diffolved, 413.
Vide COVENANT.
LEGACY.
INDE X.
LEGACY
payable by infant executor.
Vide ASSENT.
LESSE E
for life, joining infant reverfioner in alienation, will not
thereby expoſe himſelf to a forfeiture, 59.
of a prior leafe, witneffing a fubfequent one, without
difcovering his own, concluded thereby, as affenting
to give the former the preference, 133.
for a year holding over, is confidered as tenant for a
year, 135. 258.
may plead, "that leffor had nothing in the land at the
time of the leaſe made," 153.
Vide EQUITY, Court of.
LETTER
will amount to an agreement, and bind the perfon
Signing it, if another act thereupon, 287-289.
Contra, if the party claiming the benefit of fuch
letter, was ignorant of its exiftence at the time
when he did that on which he founds his claim
to the benefit of it, 290. '
to be fet up as an agreement, muft contain the precife
terms of the contract at large, 290, I.
written by a third perfon, with confent of a party, will
bind the latter under particular circumftances, 299.
LOTTERY
office-keeper, paying money to the infuree, cannot re-
cover it back, 202, 3.
LUNACY
may be taken advantage of on the general iffue, 11, 12,
VOL. II.
O
after
INDE X.
after a contract entered into reſpecting an eftate of the
lunatic vefted in truſtees for him, no bar to a bill for
ſpecific execution against the trustees, 2 vol. 273.
LUNATIC
incapable of entering into contracts or agreements to
bind himſelf or his own property, 10, 11.
competent to acquire property by a derivative title.
Vide CONTRACT.
bound by acts done in a court of record, as fines, re-
coveries, &c. 21.
may be a party with the attorney general, or his own
committee, to a bill for avoiding his own acts, 27.
ought to be a party where the bill is to compel the per-
formance of an agreement made with him, 28.
bound by acts done in lucid intervals, 29.
MARRIAGE
alone is not confidered, in equity, as a part perfor-
mance of an agreement made between the parties
themſelves, although it is fuch to bind a third per-
føn, 309.
Vide CONSIDERATION.
formerly, was by fome confidered, as fuch an act, as
extinguished any contract or agreement previouſly
exifting between the husband and wife, 440, I.
Contra, if as to a matter to take effect after it is
determined, 443, 4.
So a diftinction was taken at law between a pro-
mife, which was not to be executed until co-
verture determined, and a promiſe to be execute
ed during coverture, 442—444•
Vide PROMISE, BOND, AGREEMEnt.
MARRIAGE
INDE X.
MARRIAGE ARTICLES.
binding on an infant, 44.
Vide PORTION.
entered into by an infant for ſettlement of her own real
eftates not binding, unleſs ſhe has a fettlement, of
which fhe takes poffeffion, and avails herſelf, 50.
precluding an infant from acquiring to herſelf any
property, real or perfonal, would be void as unrea-
fonable, 50.
will be enforced by chancery against an infant, in fa-
your of his wife, bringing an adequate portion,
51-53
Vide INFANT, FRAUD, Statute of
WRITING,
carried into execution by ftrict fettlement, though not
penned in that manner, becauſe other wife they
would be frivolous, 383, 4.
diftinguiſhed, in equity, from other agreements, in re-
ſpect to the rule that the party applying for fpecific
performance, muft fhew that all that was ftipulated
for has been performed on his part, 2 vol. 26-28.
Exception, ibid. 28-31.
conftrued, in equity, to import a ftrict fettlement,
though in terms they limit an intail, upon the ground
of the manifeft intention of the parties, deduced
from the nature and objects of the contract, 2 vol.
41, 2.
executed in ftrict fettlement, although a fettlement
made thereon, if the limitations therein do not pur-
ſue that form, 2 vol. 42—44.
Exception to this rule, ibid. 44-46.
executed before marriage, and not faid to be in pur-
fuance of articles, will not be fet afide as not purſuing
the articles, though there be articles, 2 vol. 46.
1
Contra, if the ſettlement faid to be in purſuance of
articles, ibid.
No relief in either cafe againſt purchaſers for a
valuable confideration, ibid. 46. 47.
O 2
But
INDE X.
But fpecialty creditors are not confidered as pur-
chafers, ibid. 47—49:
Exception to the principle as to the conftruction
of marriage articles, where there is either po-
fitive or ftrong prefumptive proof, that the in-
tention of the parties was otherwife, ibid. 49-
51.
Vide HEIR.
Exception, where the fettlement in effect purſues
the fubftantial object of the articles, and is made
with the confent of trustees, though varying
from them, ibid. 54, 5.
Contra, if the articles executed by a will, to.
which the truſtees are no parties, ibid. 55.
to what perfons the confideration thereof extends.
Vide CONSIDERATION, AGREEMENT.
not waved, by laying dormant, if a good caufe can be
affigned, 2 vol. 260.
MARRIAGE BROCAGE BONDS
are void, as militating against the general welfare of
fociety, 174, 5.
MARRIAGE CONTRACT,
entered into with an infant, binds an adult perfon, 39
-50, 51.
equity, 39, 40.
will be decreed in
for the fettlement of the property of the parties, is ac
ceffory to the principal contract, the marriage, 42.
Vide EQUITY, Courts of CONTRACT.
MARRIAGE SETTLEMENT
reftrained, in the conftruction of equivocal words to
the children of the then marriage, 393,
to
IN DE X.
to whom the confideration thereof extends.
Vide CONSIDERATION.
MASTER in Chancery
(vide PURCHASE)
's report, as to a purchaſe before him being confirm-
ed, the court will carry into execution the contract,
although the authority of an agent bidding cannot
be proved, 274•
- MAXIM
Volenti non fit injuria, is not applicable to cafes of frau-
dulent or hard bargains impofed upon one party,
againſt which equity relieves, 2 vol. 150.
applies, where parties are
criminal in equal degree, 2 vol. 150, 1.
Vide GAMESTERS.
MISAPPREHENSION,
by a party of the value of his right, is a ground to ſet
afide a contract in equity, 2 vol. 202.
MISCONCEPTION,
arifing from a fortuitous concurrence of circumftances,
furniſhes a ground to refuſe the interpofition of a
court of equity, in decreeing the execution of an
agreement, 2 vol. 225, 6.
Contra, if there be a ground of equity, to counter-
balance that defe&t, 2 vol. 261, 2.
MISREPRESENTATION,-
either as to the thing agreed about, or perfon on whoſe
behalf the agreement is made, is a good objection
to
.”
ÍNDE X.
to a court of equity decreeing a ſpecific execution
of an agreement, 2 vol. 222–224.
Contra, if there be an equity to counterbalance
that defect, ibid. 261, 2.
Vide CONCEALMENT.
MISTA K E,
where it furniſhes ground to fet afide a contract, 2 vol.
196, 7.
Vide CONTRACT.
if the effect of it be to difpenfe with a forfeiture, is
no plea in equity to a bill for ſpecific execution of an
agreement, 2 vol. 262.
if equally fo of all the parties, does not furniſh
ground to impeach a contract in equity, 2 vol.
263.
if wilful, and arifing from neglect, will be no
ground for relief in equity against a contract, ibid.,
264, 5.
MONEY,
how it came firft to be introduced into ufe, 4. 5.
Vide GAMING.
paid on a gaming policy, cannot be recovered back,
203, 4.
by way of intereft on an ufurious contract, may,
as to the excess, be recovered by action, 205.
Vide BANKRUPT.
paid on an illegal contract, may, if it be refcinded, be
recovered back, 206, 7.
to be paid by reafon of a contract, fhall be paid in the
currency of the place where it is to be received,
407.
Vide INTEREST.
to
INDE X.
C
to be inveſted in lands, fuffering a lofs, the parties in-
tereſted therein must contribute equally, 2 vol.
79-83.
to be laid out in land, is, in equity, taken as land, 2
vol. 83.
ibid. 86.
may be in three predicaments,
In the hands of the perfon bound by the truft,
ibid:
Mixt with the general fund of the perfon con-
tracting to alter its nature, ibid.
In a particular fund in the hands of trustees,
ibid. 87.
by the truft, ibid.
- the perfon bound
In no particular fund, but mixt with the general
fund of the perfon contracting, ibid.
in either of theſe predicaments, is, in equity, in favor
of the heir of the perfon entitled to it, as againſt
his executors uniformly confidered as land, 2 vol.
87-91, 100-104.
Notwithſtanding the perfons appointed to lay out
the money die before it be done, 2 vol. 91, 2.
Although the limitations in a marriage fettlement,
go no further than to the heirs of the body of
huſband and wife, 2 vol. 93---95·
Or the money be to be laid one with the confent of
the huſband and wife, and out of them dies
before the money is invefted, 2 vol. 95-98.
Contra, if the truft determines before the period
at which the tranfpofition is to be made, 2 vol.
102---104.
Nor is it neceffary that the confideration of the
fettlement ſhould extend to the heir claiming the
money, 2 vol. 104.
to be turned into land, recognized as land in courts of
law, 2 vol. 105, 6.
not liable to debt, as per-
fonal affets, 2 vol. 105.
Vide TENANT BY THE CURTSEY.
will pafs in a will, under general
words,
INDE X.
*
1
words, as part of the teftator's real eftate, 2 vol.
109---III.
Vide WILL, TENANT in Fee.
may be taken as money, by the
agreement of all parties entitled to the beneficial in-
tereft therein, 2 vol. 122, 3.
Exception, 2 vol. 123.
the remainder in fee, in which
is veſted in a perſon under an incapacity of affecting
his real eſtate, cannot be retranfpofed during fuch
diſability, 2 vol. 124.
Vide FEME COVERT, INFANT.
may be fatisfied by a devife of an equi-
valent intereſt of the fame nature as is contracted or
articled to be given or fettled, 2 vol. 125.
But there muſt be fuch circumstances accompany-
ing the devife, as evince the intention of the te-
ftator was to fatisfy the claim, 2 vol. 126, 7.
Vide COVENANT.
to be laid out in land to be fettled in fee, will, on ap-
plication to a court of equity, be paid to him who
will be entitled to the land in fee, 2 vol. 235.
Same rule in equity, where the perſon to have it
is tenant in tail, remainder in fee to himſelf,
ibid. 236, 7.
Vide FEME COvert, Infant.
- to be fettled in tail, formerly
decreed to be paid to tenant in tail, 2 vol. 240, 1.
Contra, according to the prefent practice, ibid.
241.
Vide PURCHASE.
MORTGAGE
?
1
INDE X
MORTGAGE
by huſband and wife of her eftate, made during co-
verture, will be made effective by her acquiefcence
after coverture determined, 74.
Vide FRAUDS, Statutes of, INTEREST,
COVENANT.
MORTGAGE E
prior, being witneſs to a fubfequent mortgage deed,
without giving notice, affents tacitly that the latter
mortgage fhall be preferred, 132.
contracting for pre-emption of the mortgaged eftate,
may lofe it by abandonment, 420, 1.
for a valuable confideration, not bound by articles of
agreement for fale of the eſtate mortgaged, previou-
fly entered into, 2 vol. 60, 1.
lending money at five per cent. but agreeing to take four
on punctual payment, will, on non-payment, be
decreed the five per cent. 2 vol. 213.
MOTHER
acting as adminiftratrix for her husband, may bind her
children, 123.
and guardian, decreed, in equity, to execute articles
for fale of timber, 124.
MUTUALITY
wanting in a contract, furniſhes a decifive objection to
the ſpecific execution of it in equity, 2 vol. 233, 4.
But it is fufficent, if it be mutual at the time when
it is entered into, 2 vol. 234, 5.
MUTUAL DEBTS
where the fums are equal, provided the debts are of
the
INDE X.
1
the fame nature, may be extinguifhed by reciprocal
compenfation, 439.
when the fums are unequal, may be fet off, the leffer
againſt the greater, 439.
Contra, if the parties be not debtors and creditors
to each other in their own right, 440.
Vide BAIL BOND, EXECUTOR.
NECESSITY,
if taken an unreasonable advantage of, furniſhes a good
ground in equity for relief againſt a contract, 2 vol.
147, 8.
NON-SANE MEMORY,
no plea by one non compos himself to an obligation, 18.
to an action upon the
cafe, 18.
or grant, 18, 19.
to a deed, feoffment,
NOTE.
Vide ASSENT.
NOTE of Hand,
without confideration, is as between the parties to it,
nudum pactum, 341.
But ceaſes to be fo when negociated, being then
not governed by the municipal law, but by the
law merchant, in which the want of confider-
ation is no effential defect, ibid.
given under the impulfe of fear, created by the perſon
receiving it, will be relieved againſt in equity, 2 vol.
161, 2.
But may be made valid by a fubfequent confirma-
tion, 2 vol. 163, 4.
Contra,
IN DE X.
Contra, if confirmation fraudulently obtained,
ibid.
NOTIC E.
Vide. PURCHASER.
NUDUM PACTUM
defined by the Civilians, 331.
not applicable to a deed under feal, 333.
Vide WRITING.
is a term derived to us from the civil law, 334.
Its origin and application among the Romans, 334.
338-340.
Vide BOND, NOTE OF HAND.
\.
OCCUPANCY
gave a right of uninterrupted enjoyment to the firſt
taker, I, 2.
explained by a fimile, ibid.
OFFICE.
as to purchaſe of one, 207.
PACTS
INDE X.
:
PACTS
in the Roman law, were innominate contracts, 337.
divided into thofe with a confideration, and thofe with-
out, 337.
Vide NUDUM PACTUM.
PAROL AGREEMENT
permitted to be proved, both at law and equity, as
circumftantial evidence to controul a written agree-
ment, where to reject fuch evidence, would prevent
the detection of fraud, 294.
for purchaſe of eftates, in part performed, cannot be
fo far impeached as to lay the party open to an ac-
count for the profits received under the enjoy-
ment, 302.
will be admitted, in equity, to rebut an equity arifing
out of a written agreement, 427, 8.
will be admitted, in equity, to fhew that a written
agreement has been waved or varied in the terms of
it, 427, 8.
Vide INTEREST, EQUITY, Court of.
PAROL EVIDENCE
not received to add any thing to an agreement in writ-
ing which is complete, 431, 2.
Vide BOND.
may be given, in equity, on a bill for fpecific perfor-
mance, to fhew that fomething intended to have
been in an agreement, has been omitted by miſtake
or fraud, 432.
examples and obfervations, 432-437-
Vide EVIDENCE.
PARTICEPS
INDE X.
PARTICEPS CRIMINIS,
is no answer to the relief prayed againſt a contract, in-
fected with fraud or impofed hardſhip on one party
by another, 2 vol. 149, 150.
Vide MAXIM.
PART PERFORMANCE.
Vide EQUITY, Court of.
PAYMENT
is no plea to a bond, 426.
PENALTY.
Vide EQUITY, Court of.
PERFORMANCE
ས་ཀ
in part, of an agreement, to take it out of the ftatute
of frauds, may be by beginning to build under a
parol leafe, 296, 7. or
By laying out money on an eftate intended to be
demifed, 297.
by poffeffion delivered in pur-
ſuance thereof, is fufficient to take a contract out of
the ftatute of frauds, 299-301.
Vide POSSESSION.
-
by confenting to the appointment of
a guardian to a young lady, with a view to fuch
guardian confenting to a match, 303.
in part, of a marriage agreement by hufband's per-
mitting his wife to receive the intereft of her for-
mer property to her feparate ufe during coverture,
304.
- by
{
INDE X.
..
3
-
by cutting down timber, ibid.
by payment of money upon the foot of an agree-
ment, 304-6.
Contra, if paid by way of earnest, 306.
Obfervations on this head, 306–308.
of an agreement for fale of an eftate, binds the
heir of the vendor, 308, 9.
muſt be by doing fomething, that the court is
fatisfied would not have been done unleſs upon ac-
count of the agreement, 309.
Vide POSSESSION, MARRIAGE.
of an agreement to let in a perſon to a ſhare of
houſes purchaſed, not confidered as eſtabliſhed by
a parties defifting from an intended purchaſe, in
order thereby to let in the actual purchafer to a bet
ter bargain, 310.
Inftance of a variety of circumftances not amount-
ing to a part performance, 311.
PERSONAL CONTRACT
diftinguiſhed from real, in refpect of execution of ar-
ticles as to covenants, 2 vol. 141, 2.
PERSONS capable of contracting,
Vide IDEOTS, LUNATICS, INFants,
PERSONAL THINGS,
Vide EQUITY, Courts of, CONTRACT,
PLACE
appointed for performance of a contract, not a material
part of it, 268.
Vide TIME.
PORTION
INDE X.
PORTION
of a female infant, with whom her huſband enters
into articles for making a fettlement, will belong to
the huſband, as if a fettlement had been actually
made, 44-46.
And the equity would be the fame, whether the
portion were in poffeffion or contingency, 46.
--bound by a marriage agreement,
inferred from circumftances only, ibid.
But the jointure or fettlement must be adequate,
and not collufive, 47.
POSSESSION
delivered and taken under an agreement for fale of an
eftate, will be notice to a fubfequent PURCHASER
of fuch agreement, 302.
retained by a leffee, not a part performance, to en-
title him to a ſpecific execution of a further paro!
leafe, 309.
under a parol agreement, no ground to eſtabliſh it,
if the perfons that made it had no right to con‐
traЯ, 312,
1
t
PREBEN D.
Vide INDUCTION. INSTALMENT.
PROHIBITIONS,
in reſpect of contracts, are of two forts in England,
201.
Viz. ſuch as are founded on general reaſons of po-
licy, ibid.
intended to protect the weak
or neceffitous from being over-reached or defraud-
ed, 201.
effects
t
1
INDE X.
Effects of this diftinction, 202–204.
PROMISE,
(vide ASSUMPSIT)
how diftinguished from the contract by the Roman law,
334.
made before marriage, to an intended wife, to leave
her worth a given fum, is not extinguifhed by the
marriage, 442, 3.
PROPERTY
original, whence derived, and how exercifed in an
uncivilized ſtate, 1.
exclufive, what it is, 3, 4.
is a moral right, and paffes by a bare agreement, 2
vol. 63.
!
PURCHASE
before a mafter, out of the claufe of ſtatute of frauds,
refpecting parol contracts and agreements, 274.
PURCHASER
(vide POSSESSION)
will not be deemed in chancery to complete a purchaſe
under a decree or agreement, if there be any fub-
ſtantial doubts as to the goodneſs of the vendor's
title, 2 vol, 34.
Contra, if the objection be formal merely, ibid,
34-37.
Vide TITLE.
RECEIPT
i
ÍNDE X.
RECEIPT
by huſband for money belonging to his wife, produced
by fale of her eftate, wherein he promiſed to lay
out the money purſuant to the truft repofed in her
truſtee, will bind lands in which it is inveſted by
him, and in his hands, or in the hands of thoſe
who claim under him, with the fame trufts, 323
-349.
RECITALS
in a deed, may amount to an agreement, 236-
238.
1
RECORDS
not to be avoided by any averments, 22.
of equal degree, do not diſcharge each other, 424, 5.
RELEASE
fhall be expounded according to a reaſonable intent,
384.
reftrained to the particular occafion, although the
words admit of a larger fenfe, 390-392.
may either be exprefs or tacit, 416.
Each kind explained, ibid.
fraudulent, as againſt third perfons, 2 vol. 165.
by huſband and wife, to the truſtees, of money to be
laid out in land and fettled on her in tail, will not
bind her intereft therein, 2 vol. 238-240.
1
VOL. II.
P
RENT
1
INDE X.
RENT CHARGE
inferred, to be granted by conftruction from power
given to diftrain for a fum of money granted, 371, 2.
It is immaterial, whether the power of diſtreſs be
vefted in the grantee, or in a ſtranger.
REQUEST.
Vide CONSIDERATION.
REQUEST S, Court of
when aboliſhed, 2 vol. 7.
RESERVATION
of rent, is an agreement of both parties, 242.
RIGHT
i
accruing by virtue of a contract, may be loft by aban-
donment, 420, 2.
Vide MORTGAGE, FEME COVERT.
SALE,
on condition of future payment of confideration, is a
bar to a ſubſequent fale made before the time of pay-
ment, 154, 155.
judicial
INDE X.
judicial of an eftate, not within the ftatute of Frauds,
fo as to require a written contract, 272, 3.
Vide FRAUDS, Statute of.
with liberty of refufal, may be refcinded by party
having that liberty, 415.
SATISFACTION
by one thing for another thing, not prefumed, unleſs
both move on the like confideration, 54.
Vide MONEY, COVENANT.
SECURITY.
Vide CONTRACT.
SEPARATE ESTATE
(vide FEME COVERT, EQUITY, Courts of,
LAW Courts of)
of feme covert, not within the ftatute of Limitations
as to debts, 104.
diftinguiſhable from feparate property.
SEPARATE MAINTENANCE,
diftinguishable from ſeparate property, in refpect of
the nature of the contracts which ought to receive
affiſtance in a court of equity, 105---107.
SERVANT,
his affumpfit to diſcharge a debt due to his maſter, will
not ſupport an action, 176.
P 2
SET-
INDE X.
:
SET OF F.
-
Vide MUTUAL Debts.
SHERIFF
's promiſe to let a prifoner eſcape, will not fupport an
affumpfit, 176.
's bond given in oppofition to 23 H. 6. cap. 10. void,
186, 187.
Vide ASSUMPSIT.
appointing an under-fheriff, cannot reſtrain him from
ferving executions in general, or abridge his power,
195, 196.
SIGNING,
Le
within the clauſe reſpecting written agreements in the
ftatute of Frauds, what deemed fo, 283-286.
as a ſubſcribing witneſs, where the intent of the par-
ties is, that the perfon fo doing fhall be bound, fuf-
ficient within the ftatute, 283, 4.
a written agreement, required in the ftatute, not fa-
tisfied by the party to be bound, altering a draft,
284, 5.
required by the ftatute of Frauds, meant by way of
giving authenticity to the inftrument, and therefore
not complied with by the name of a perſon being in-
ferted in the body of it, 285, 6.
within the ftatute, fatisfied by the party against whom
a fuit is preferred having put his name to it, if it
can be fhewn that the latter has a remedy alfo
against the former, although he has not figned,
286, 7.
by one party, where the agreement drawn up by the
other, held to be fufficient, 287.
Vide LETTER,
SOLICITORS
INDE X.
}
SOLICITORS
in a fuit for forecloſure, agreeing that the eſtate ſhould
be fold, the agreement will be fpecifically carried
into execution in equity, although not in writing
274, 5.
SPECIALTY CREDITORS
are not confidered as purchaſers in equity.
Vide MARRIAGE ARTICLES.
SPECIFIC EXECUTION
of agreements, in equity, is by virtue of diſcretionary
power in the court, 2 vol. 259, 260.
of an agreement, will not be decreed in equity, if the
party who ſeeks it, has trifled or fhewn a backward-
nefs in performing his part, 2 vol. 260.
many years, ibid.
where it has lain dormant for
Exception to the laft cafe, ibid.
of an agreement, will be decreed, in equity, although
it operates in nature of a wager, 2 vol. 261.
Vide MISREPRESENTATION, MISCON-
CEPTION, MISTAKE, EQUITY, Court
of, CONTRACT.
STATU QUO.
Vide EQUITY, Courts of.
STATUTE OF FRAUDS.
Vide FRAUDS, Statute of
STATUTE
INDE X.
STATUTE STAPLE
will not diſcharge a bond for the fame debt, 424.
STATUTES.
23 H. 6. cap. 10
186.
12 Anne, ftat. 2. cap. 16.
5 Geo. 2. c. 30. fec. 11.
14 Geo. 3. cap. 76.
188.
189-195. 205.
195.
9 Anne, c. 14.
202.
17 Geo. 3. c. 46.
203.
19 Geo. 2. c. 37.
204.
16 Car. 2. c. 7.
17 Geo. 3. c. 28.
29 Car. 2. 269.
2 Geo. 2. cap. 22.
8 Geo. 2. cap. 24.
209.
439.
ibid.
16 Car. I. c. 10.
2
vol. 7.
:
STEWARD
cannot, by virtue of a general authority to make con-
tracts with tenants, bind his lord by an executory
contract, 129.
STIPULATIONS,
in the Roman law, whence fo called, 338.
how entered into, 338, 9.
SUBJEC T,
to which ambiguous fentences or equivocal words are
applied, furniſh grounds from whence conjectures
may be made as to their meaning, 377, 8.
SURPRIZE
INDE X.
SURPRIZE,
deduced from the nature of a contract, compared with
the circumftances of the parties, will be a ground to
fet it afide in equity, 2 vol. 200-203.-
SURRENDER
by a perſon non compos, will not deftroy a contingent
remainder, 12.
by an infant leffee by deed, void, 33.
- in law, void, or not, according to
its effect, ibid.
TENANT BY THE CURTESY
may be of money agreed to be laid out in the purchaſe
of lands, 2 vol. 107.
TENANT FOR LIFE
may fell the profits of his lands, for years to come,
156.
will be decreed to execute a contract specifically, al-
though the confequence will be to expofe him to
an action of waſte, 2 vol. 272.
TENANT IN FEE,
making a leafe for life, intended for life of leffee,
400.
of money to be laid out in the purchaſe of land, may
have it retained as money or land at his election,
2 vol. 112, 113.
devifing it under the de-
fcription of money, will be fufficient to make it
pafs as fuch, 2 vol. 113.
And
INDE X.
And whether it fhall be land or money, being a
matter of election in him, his intent refpecting it
lies in parol proof, 2 vol. 113-116.
1
may make his election, as to
which ſhape he will have fuch fund continue in, not-
withſtanding there be preceding particular eftates in
effe, 2 vol. 117.
And this lies in parol proof, ibid.
The flighteft circumftances are fufficient to fhew
an intention in the owner to have ſuch fund con-
fidered as perfonal eftate, 2 vol. 118-122.
Inſtances, ibid.
TENANT IN TAIL,
agreeing that others fhall enjoy his lands, bound there-
by, 112.
Vide CHANCERY, COURT OF EQUITY.
cannot, by his agreement to alien, bind his iffue with-
out fine or recovery, 125.
Contra, if iffue partake of the recompence for
fuch agreement, 126.
Exception, if there be no intail de facto, but only
an agreement in tail, ibid.
Or if it be copyhold, for that is not within the
ftatute de donis, ibid.
improvements, 127.
charge or difpofe of laſting
making a leafe for life, intended for his own life, 400.
of money to be laid out in land.
i
Vide MONEY.
TERM
1
of years raiſed for a particular purpoſe, in purſuance
of marriage articles, fhall not be affets to pay debts
that do not affect the inheritance, 372.
TIME
annexed to the performance of a contract, not effen-
tial, but modal only, confequently a breach in re-
ſpect
INDE X.
fpect of it does not affect the fubftance of the contract,
267, 8.
R
TITLE
Vide PURCHASER.
under a will of lands may be good, although the will
be not proved in Chancery againſt the heir, 2 vol.
35, 36.
good, to a probable certainty, if fufficient ground for
a decree in equity for a ſpecific performance, 2 vol.
37, 8.
TRAD E.
Vide CONTRA c t.
TRAFFIC,
à neceffary confequence of property and reciprocal ace
commodation, 4.
TREES,
on lands entailed, cannot be fevered after death of te-
nant in tail, by a purchaſer from him, 127.
TRUS T,
to raiſe money out of the profits of an eftate, implies a
fale, if the fum cannot otherwiſe be raifed in time
372.
TRUSTEES.
ار
Vide BARGAIN.
во
TRUSTS.
}
INDE X.
९
TRUST S.
Vide CONTRACT, voluntary, &c,
TY THE S.
Vide GRANT.
t
UNCERTAINTY,
is a decifive objection to the fpecific execution of an
agreement in equity, 2 vol. 233.
UNREASONABLENESS,
in the terms of a bargain, is no ground to fet it aſide
in equity, if the parties are competent to contract,
and no fraud is practiſed, 2 vol. 144, 5.
Contra, if there be any fraud in the tranſaction,
ibid.
USURY.
Vide CONTRACT, MONEY, Covenant,
VALUE
of a thing exprefsly ftipulated in a contract, fhall be
intended as things are, when the contract is to take
effect, 408, 9.
VENDEE,
1
INDE X.
VENDE E
liable to all contingencies affecting an eſtate, purchaſed.
under executory articles in the intermediate time
between the agreement and the conveyance, 2 vol. 61,
2. 64.
The principle upon which this rule is founded,
ibid. 63, 4.
Examples and obfervations with respect to the
principle of equity on which this conclufion is
founded, ibid. 63-79.
Vide BARGAIN, Contingent.
Quære, if it would be fo where the money was
expressly agreed to be paid on the conveyance being
made, ibid. 68, 69.
or the parties are in ftatu quo, ibid. 74, 5.
Or, if the contract be not a contract of fale, but
an agreement to make ſuch a contract at à f■-
ture time only, 2 vol. 79.
Vide MONEY.
VILLA I N.
Vide BOND.
WAGERING CONTRACT
s' not invalidated, on the ground of not being in them-
felves contingent, if the event equally uncertain to
the parties, 146.
s' entered into, with a view to colour an immoral pur-
poſe, are void, 183, 4.
As to conceal fimony, ibid.
To cover ufury, ibid.
To bribe a judge, ibid.
To induce a counfel to act treacherously, ibid.,
entered
INDE X.
entered into with a view only of ſecuring fomething to
the lofing party in a caufe, is lawful, 184.
that a perſon ſhall do a criminal act, void, 198.
Inftances, 198, 199.
affecting the intereft or feelings of a third perfon, void,
232, 3.
Vide SPECIFIC EXECUTION.
WAIVER.
1
Vide MARRIAGE ARTICLES.
WARRANTY
(vide GAMING)
of lands for years, does not extend to tortious entries,
379.
WARRANT of Attorney,
to confefs a judgment in ejectment for fecuring money
lent, confidered in equity on the death of the de-
fendant, as an agreement to charge lands, 315
3
1
WASTE.
Vide LEASE.
WEAK UNDERSTANDING.
Vide CONTRACT, EQUITY.
WILL
(vide FEME COVERT)
difpofing
1
1 NDE X.
!
difpofing of money, under an agreement to be laid out
in the purchaſe of lands, need not be attefted by three
witneſſes, 2 vol. 112, 113.
Quære, if limited as land, ibid.
fo circumſtanced, under the de-
ſcription of ſo much money, agreed to be laid out in
land, will make it paſs as perfonal eſtate, ibid.
".
Vide MONEY.
WITNESS
to a deed, having a prior claim in what is conveyed
thereby, not giving notice of it, bound by the alien-
ation, 133.
Vide INFANT.
But he muſt know that what is conveying belongs
to him, 134, 135.
WORDS
pofitive, uſed in contracts or agreements, are to be ac-
cepted in their moſt common and vulgar uſe and
fignification, unleſs there be decifive reafons for con-
jecturing that the intent was otherwiſe, 373.
Examples, 374-376.
ufed in the preſent tenſe, taken for the future, 374.
in a contract, expreffive of quantity, &c. fhall take
effect as they are underſtood where ſpoken, 376.
Vide CONJECTURES.
ought to be taken out of their ordinary acceptation,
where receiving them in that fenfe, will render a con-
tract ineffective and frivolous, 382, 3.
exclufive, may be taken to be inclufive to ſerve the in-
tent, 382.
Vide CONDITION.
may
INDE X.
!
may be accepted in a more narrow fenfe than that which
they ordinarily import:
Firſt, where the will of the fpeaker is not coexten-
five with his words, 387.
Secondly, where fomething exifts inconfiftent with
the ſpeaker's defign, ibid.
Examples in both the preceding inftances, 387-
395.
Vide GRANT, CONDITION, CONFIRMATION.
ought, in conftruction, to be reftrained to the matter in
hand, though they admit a larger ſenſe, 390---393.
Vide RELEASE, HEIRS MALE, MARRIAGE
SETTLEMENT.
in their conftruction, fhall not be taken to conclude
things, that, could they have been foreſeen by the
fpeaker, would have been excepted, 393---395.
in a contract, of obfcure and dubious import, which
cannot be cleared up by reference to the intention of
contracting parties, or other circumftance, and where
all other rules of expofition fail, fhall be conftrued
in that fenſe which is moſt againſt him who uſes
them, 395---397:
Quære, as to the equity of this rule, ibid.
Exception to the above rule, where the contract
or agreement contains fomething in its nature.
odious as a penalty, &c. 397.
Vide CONDITION, COVENANT.
where fuch conftruction will work
a wrong to others, 400.
Vide TENANT IN TAIL.
!
fubject to the above exceptions, are to be underſtood in
their moft comprehenfive fenfe, 400.
Examples, 400---403.
in contracts or agreements, expounded in that ſenſe
which is confonant to the general intent, as it ap-
pears in the context, 403.
Examples, 403---405.
1
in
IN DE X.
in contracts or agreements, may be tranfpofed to give
effect to the intent where that is evident, 405, 6.
Vide EXECUTORS, MONEY, Value.
WRITING
neceffary, under the ftatute of frauds, to entitle per-
fons claiming by virtue of marriage agreements, as
well as others, to a fpecific execution, 277, 8.
Example, 278; 9.
Doubts formerly entertained, whether it was fuf-
ficient to entitle a party to a ſpecific execution,
"that the agreement was ftipulated to be put
into writing," 279---281.
preparatory heads of an agreement, to be drawn into
form at a fubfequent period, will not take the tranf-
action out of the ftatute, 281---283.
Vide FRAUDS, Statute of
·
alone without ſealing, ſeems not ſufficient to take a con-
tract out of the rule, "quod ex nudo paɛto non oritur
actio," 333---342.
FINI S.
A 543189
UNIVERSITY OF MICHIGAN
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