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ment of a chose in action, and the assignee to sue in his own name in equity; the law does not do this, but in virtue of some statute (see also chose in action, ch. 24.) So equity relieves against penalties and forfeitures in contracts, when the law cannot without statute provisions (see also Damages, ch. 28, and Penalties, &c. ch. 148.)

37. A fifth difference. Equity examines and weighs the adequacy of the consideration of contracts much more accurately than the law can, especially of instruments under seal. (See ch. 32 a. 13, 2.)

§38. A sixth difference. Though equity will not set aside or rescind contracts fairly made, or merely because unreasonable, between the parties, or fairly made between parent and child just come of age; so guardian and ward; so contracts between master and servant; or attorney and client; nor on such mere relationship alone; yet equity looks with a suspicious eye on these contracts, where undue influence naturally exists on one side. Hence on such slight evidence of it as the law cannot act upon, equity will set them aside (see many cases collected by New. On Con. 445 to 458, and cases he cites, as 2 Atk. 85, Tendril v. Smith; 1 P. W. 639, Blunden v. Barker; 3 P. W. 156, Howe v. Wyatt ; 3 Ch. Ca. 117, Osborne v. Chapman ; 2 Vesey 259, Oldham v. Hand; 1 P. W. 118, 120; 1 Vesey 379, 400; 2 do. 549, 627; 9 do. 292; 6 do. 278, 279; 2 Atk. 25, 159, 258, 295; 2 Vesey jun. 199, 203; 1 Bro. C. C. 369; 4 do. 245.) And equity extends like attention to sailors' contracts, and other cases in this work; so equity relieves against a legal right arising on the contract. P. W. 191.

2

39. A seventh difference. In many cases equity holds the heir and remainder man to convey lands, on the ground the ancestor, or life tenant's contract to convey is a lien on the land, and passing with it, to the heir, or to him in remainder; not so by law. On the other hand, equity sets aside the unequal contracts of heirs, disposing of their expectancies, where the law cannot; and allows a non compos to stultify himself; where it cannot relieve, it decrees a re-conveyance. 2 Cruise 49; other cases Kirby 185, 356; 1 Day's Ca. 107, 156.

40. An eighth difference. Equity examines parties to contracts, and corrects their mistakes in them, or rescinds, or sets them aside in many cases, in which the law cannot; as where there is no evidence of fraud or contrivance in making them. And so if a party cannot exactly fulfil his contract, or convey an estate in the condition he has contracted to convey it, equity minutely finds the difference, and if small, &c. awards a compensation for it, and decrees a conveyance and acceptance thereof, (but none if the wrong description be an object of

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1 Vern. 227, Phillips v. Burks.-3

Atk. 382.

sense) 6 Vesey 675, Druse v. Hancock; 1 Vesey jun. 221, 226, Calcraft v. Roebuck; 10 Vesey 505, 510, Dyer v. Wargrave; 13 Ves. jun. 77; 14 Ves. jun. 144, Fenton v. Brown; 1 Andr. 80.

41. A ninth and most material difference. This is in the enforcement of specific performances. Instead of this the law always gives damages for the breach of contracts. But this power to enforce is limited. 1. Equity cannot interfere with contracts completed, where there is a clear, certain, direct, and expeditious remedy at law. 2. It is limited to executory contracts, for as to those executed, equity can only rescind them. 8. This enforcement as to time has been much limited; as late as Lord Coke's time it was zealously resisted by the courts of law on the ground, among others, the contractor had, or meant to have, his election to perform, or to pay the damages, and that this election was taken from him when compelled specially to perform; and they asked to what purpose then was the action on the case or of covenants. 4. It is limited to the purchases of lands, or to things that relate to realties, and extends not to personal property, not even to the funds, except where the contract is incomplete, and not suable at law, or where it is to indemnify, and cases of quia timet, and where legal suits afford but an inadequate remedy. 5. Extends not to the realty, where an adequate remedy is at law; never to contracts complete to repair, as on these there is such a remedy. (See also ch. 225.) 6. Extends in the personalty, as an exception to the general rule above stated, in a few cases where a legal remedy exists, but is defective; as cases of contracts, which at law produce a circuity of action, or for settling accounts. 7. Equity never enforces the specific execution of contracts, uncertain on the face of them, because they do not shew what rights are to be enforced; nor 8. Contracts not mutual, (see New. on Con. 151, 153,) nor those tainted with fraud or contrivance, partaking of champerty or maintenance, as equity never so enforces but to do equal justice; nor 9. Unless the plt. proves the very contract on which he founds his claim in his bill. This enforcement is always at the discretion of the

court.

$42. A tenth difference material. Equity allows no estoppel, (the law does many, as ch. 160, &c.) but moulds contracts to answer the parties, real intentions, especially as to future generations.

43. An eleventh material difference. When A obtains a contract of B, and he denies its validity, the law inquires no farther than fraud extends, or as to mistakes or misrepresenta3 Ves. 168.- tions that materially affect the parties' rights; but equity push326.-Pr. Ch. 538.-1 Bro. C. C. 372, 440.-6 Ves. 467; 1 Ch. ca. 71.

2 Bro. C. C.

es its inquiries much further, even to faults not punishable, to antipathies and friendly regards; as if A wishes to purchase B's estate cheap, and knows B dislikes him, and will not sell it to him even for its full value; A employs a friend to buy it, who pretends he purchases for one B greatly regards, and to oblige him is willing to sell it to him under its value; the conveyance is contracted for accordingly; equity ascertains all these facts and refuses to decree a specific performance. In fact equity seems to require all that fair conduct and open dealing, and pure morality do, and extends its inquiries accordingly; in other words, in its narrow sphere of action, equitas de minimis curat; in its broad sphere of action, lex de minimis

non curat.

$44. A twelfth difference, and a very material one. Equity leaves all criminal proceedings, and all crimes and offences to the law courts; so in general all maritime and military matters, and all matters whatever to other courts older than that of equity, in all cases in which right and justice can be well and timely administered. Yet English equity in this very circumscribed jurisdiction in a few centuries, has, gradually, got within its reach, and under its thumb most of the property of the nation; and to examine equitably, and often morally, into most of the civil conduct of men in their dealings in it, and as they rapidly spread out, the opinions and decrees in equity evidently become more heterogeneous, various, and often contradictory, and the evil, if it be one, is much increased by the numerous reports of late years, of mere hints, and obiter dicta in courts of equity, and those too of an inferior judge as well as of the chancellor, an evil almost as great as that of the thousands of nisi prius opinions lately reported. Thirteenth material difference. Equity allows a man who agrees to purchase, and possesses and improves, for his permanent improvements, in many cases where the law does not. Sugden 424, 426, and cases.

§ 45. Some leading principles as to contracts in equity. A letter or any writing signed by the party to be charged, or such letter or writing clearly referring to a paper not signed, is a compliance with the statute of frauds, provided each contain the precise terms of the contract, ch. 11 a. 8, ch. 114 a. 27, &c. and is actually signed; this it must be. 1 P. W. 770; ch. 11 a. 6, s. 16.

$ 46. Though equity does not (as the act does not) require any but the party to be charged to sign such writing, yet equity will not enforce a contract signed only by the party applying for its specific execution, for this is no evidence the deft. called on to perform the contract ever made it; and the case is open to very evil the act was intended to prevent; and it is hardly 1 Vern. 221, Cotton v. Lea.-Ch. 225,

the

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2 Ch.Ca. 164,
Hatton v.
Gray.-1 Eq.
Ca. Ab. 20,

Hall v. But-
ler.-1 P. W.

770, Haw-
kins v.

Holmes.-
a. 6, s. 25.

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2 Bro. C. C. 564; and Ch. mon v. Motivos, 9 Ves.

11, &c. Si

234.

43, Chamber

berlain.-
2 Free. 34.-
Sundry cases

to be conceived how a doubt once existed on this point; where equity enforces parol contracts partly performed; a good rule. $47. Though the statute does not require the power to the party's agent to be in writing, yet equity requires that the fact of the agency to make the contract and sign it, distinctly appear; and the power given must be strictly pursued; and the agent's clerk may sign, if assented to by the principal; 1 Vesey 292; Amb. 495, Daniels v. Adams; I Atk. 497; but in no case is the principal bound beyond the power he gives.

$48. A matter will be decreed in equity to be performed, 2 Eq. Ca. Abr. though there be no writing, if the party to be charged, by his lain v. Cham-fraud or contrivance, prevents the writing, as if a father be about to secure certain legacies by his will, and his son, heir, and executor say to him if he will not do it, he, the son, will pay them; he is bound, and equity will oblige him to pay them. Sundry cases: 2 Eq. ca. abr. 43 to 52; 2 Vern. 506, Oldham v. Litchford; 1 Vesey 123; 3 Bro. C. C. 400, and ch. 93 a. 3, ch. 225 a. 7.

2 Vern. 456, Foxcraft v.

151.-9 Mod.

C. 417.

§ 49. Equity decrees parol agreements to purchase or lease Lister.-Pr. lands, to be performed, when proved, and followed by delivery Ch. 519, 561, of possession, by improvements made, or monies expended 56.-1 Vern. by the lessee, &c. on the premises; ch. 11 a. 9, &c. 2 Freem. 37.-Bro. C. 268, 6 Vesey 470; secus as to a mere holding over, 3 Vesey 379, Wills v. Stradling; this, and if barely delivering of possession be doubtful, either is valid with laying out monies under the terms of the contract, as in each case there is part performance; also it is the lessor's or grantor's fraud to stand by and see his estate improved, and then plead the statute. Earnest has no effect as to lands (only as to goods) on the 4th sect. of the act; some cases otherwise; see Earnest, ch. 11 a. 2; ch. 225 a. 6, s. 25; 1 Phil. Evid. by Dunlap, ed. 1820, p. 510.

$50. Though equity will not admit parol evidence to vary the written contract, yet it will admit the deft. to show that by fraud or mistake the one stated by the plt. did not embrace the real intentions of the parties; this evidence is not admitted to vary the contract in writing, but to rebut an equity. The statute does not exclude any exception that before existed. The deft. before and since the act passed, had and has had a right to say that the written agreement is not the one he intended to sign; Joynes v. Statham, fully stated ch. 122 a. 2, s. 9, 10, and other cases there; also parol evidence ch. 93; New. on Con. 204 to 211; and Legal v. Miller, at large. ch. 11 a. 10, s. 1 ;but some cases in which the deft. was compelled to perform a contract different from the one he signed; New. 251, 252; but 253, 254, a better rule, as in Lord Stanhope's case, in which he contracted for an estate tithe free, and was

compelled to receive one subject to tithes ; cited 6 Vesey 678; 7 Vesey 270.

51. This preliminary sketch of principles and cases in equity has been introduced since 1801, when equity decisions in America were of but little importance, which since have vastly increased. Such principles and cases, therefore, will be considered in detail, in a considerable degree in several parts of this work relating to contracts and proceedings in chancery. Except in chapters 225 and 226 especially appropriated to them, they will be found in chapters also embracing matters. in law in several instances. Law and equity in the United States are, in no small degree, mingled together, often in the same cause; except in two or three states, in the same volumes; and in several states, especially in Pennsylvania, Massachusetts, &c. equity is, frequently, administered by law courts and jurors. And in New York now, equity powers may be by the legislature vested in the circuit judges (in 8 circuits) and in the county courts, or such other subordinate courts as the legislature may direct, subject to the appellate jurisdiction of the chancellor. So in the highest and lowest courts in Virginia, law and equity powers seem to be blended in the same hands. In this work the object has been and will be, to adopt the English system of equity as far, and as far only, as it has been adopted by the highest authorities in our own country; a system highly valuable when we separated, (July 4, 1776,) and for some years after, but which now subjects a vast proportion of English property to almost total uncertainty, and lately induced one of the eminent men of England to observe, "it is a disgrace to the nation." This uncertainty is owing to several causes, but mainly to a vast number of volumes published since our separation, containing numerous decisions on equity principles, made by different men, repeatedly variant and often contradictory. Still worse, these volumes, many of them the productions of inferior lawyers, are replete with obiter opinions, dictums, seems soes, leanings, inclinings, &c. not only of high judicial officers, but, also, of inferior ones. Though this trash, (so the sound law of the land views it,) in fact, is no rule of property or conduct, yet it has a great influence; ignorant and indolent judges catch at it; and counsel, engaged in bad causes, seize on it, and with much ingenuity. make a great deal of it; a similar pernicious effect have the hasty nisi prius notions, of late years published by wholesale. It requires not the spirit of prophecy to foresee that in no very long period, the rules of property must become as uncertain, in such a state of things, as in the most despotic governments. If the minute and peculiar features of each new case must be allowed to produce new rules of property not known in law,

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