CH. 9. Art. 1. 45, 57, 58, 59, 60, 61, 82. oaths and consciences of the parties; and in the modes of relief, in ordering agreements and contracts to be, in some cases, specifically executed. The difference between equity, as a matter of right, and law, is inconsiderable. Equity is the 3 Bl. Com. soul of all law, and all good law is made in reference to equity. 429, 438.Equity must follow and not lead the law :" it must yield to 2 Com. D. Dougl. 22.the law. However desirable, however politically and even 480 to 483.morally right it may be, to divide the estate of the intestate Dr. & Stud. parent among his children, yet if the law gives it to one alone, equity can afford no relief. "A court of equity determines according to the spirit of the rule, so does a court of law;" "both, according to the true meaning of the legislature.” Equity at most, is to temper and mitigate the rigour of the law; that is, to make the general rules of law enacted by men, to conform in certain special cases to the law of reason, an exception impliedly understood in each general rule of positive law. It follows the intent rather than the words of the law. It corrects the injustice of positive law, and supplies its defects where the collateral consequences of it were not intended. § 3. Frauds, accidents, and trusts, (except a few trusts) are cognisable in a court of law, as well as in equity. A court of equity is governed by established rules and precedents. "In fact, the courts of law and courts of equity ought to have exactly the same rules of property, of evidence, and of interpretation." The power of the law courts of late have been much extended to most matters in equity. Lord Mansfield said, "in construing agreements, I know no difference between Dougl. 277. a court of law and a court of equity. Each can only explain the true meaning of the parties, neither can make an agreement for them." Law Gr. 113, 115. 2 Bl. Com. 4. A court of law allows any thing to be averred, even against a deed, by way of fraud; as that the consideration expressed in the deed, and therein said to be paid, in fact was not paid. So the law considers a gift or conveyance of land, made with an intent in the parties to it, to defraud a pur-441-3 Co. chaser on good consideration, as void, as against him; and so 77, Farmer's as to creditors: so a fine levied by fraud is void in law. The case. marks of fraud are the same in law as in equity; equity cannot affect any matter the necessary, direct, and plain consequence of a principle of law. Swift. Cowper 432, 432.-2 Mor. 5. The law considers a deed as fraudulent, if made with Kennett.an intent, in both parties to it, to defraud creditors, though there 4 D. & E. be a valuable consideration, and possession be changed; lies R. 63. for monies paid on a compromise, and no consideration. 1 Burr. 396.4 T. R. 39. 6. Fraud and covin, in judgment of law, may avoid every 1 Wood's kind of act. So the law deems the fraud of the agent, the fraud Con. 417, VOL. I. 23 419. Сн. 9. of the principal: also the law deems it a fraud if A buy land, having notice that B has a deed of it, not recorded. 7. The actions of assumpsit are numerous; they rest on one general principle, which applies to a multitude of cases. 8. Oftentimes the reason and nature of an action is best expressed, by taking a few of the operative words in the declaration. In these the essence of the action is usually seen. 2 W.Bl. 1269, It is briefly done, and the repetition of forms is avoided. The obligor on a respondentia bond, engaged by endorsment on it to pay it to any assignee. Any assignee may have this action. Fenner v. Meares. 13 Mass. R. 284, Rider v. Robbins, in error. 9. A very usual kind of declaration in assumpsit in Massachusetts has existed time out of mind; and the cases in which this form of declaring has been used, have been extremely numerous, but rarely ever called in question. It is short, simple, and plain; and exactly suited to a great variety of cases, by means of an account annexed to the writ and declaration, in the form of a common ledger-book account in words and figures. In this form the deft. is sued to answer to the plt. in a plea of the case, [more formally, in a plea of trespass on the case,]" for that the said D (deft.) at on being indebted to the plt. in the sum of according to the annexed account, then and there in consideration thereof, promised the plt. to pay him that sum on demand; yet, though requested, the said D has never paid them, but neglects and refuses so to do." This account annexed may contain matters, usually charged on book, however many-and counts may be added in quantum meruit and quantum valebant, with like reference to the same annexed accounts; and if the said request and refusal be expressed in the first count, and omitted in the after ones, the declaration will be good, because such averment in the first count may be applied to them. In such an action, in substance, in this case there was such a declaration, and on error brought, the first error assigned was, that by the first count there was no sufficient cause of action set forth; and that in the second, the plt. had alleged no breach of the promise therein declared on. Judgment affirmed. Judgment affirmed. First error was assigned, on the ground the account or schedule annexed constituted no part of the declaration. As to the second, Lawes' Pleading in Assumpsit, 258, was relied on. For the deft. in error were cited Chitty on Pleading 324, 327, 313.-Ld. Ray. 284.-5 East 270.-1 Wils. 33.-1 Saund. 228. As to the first, the court decided the declaration was good on immemorial practice. As to the second, the court said, the authorities shew clearly, that one averment of request and refusal to pay is sufficient for any number of counts in assumpsit; bringing the action too, is a request in law, 1 Wils. 33. See Stennett v. Hogg, Ch. 184, a. 5. 2. 5. However, there are some dic tums in the books, on the ground each count must be complete in itself; and no doubt this rule holds, when each count contains substantive independent matter in fact. CH. 9. Art. 1. Ed. 1808. Dy. 50. § 10. Another important rule in suing on contracts &c. A Noy's Max. man is bound to sue, or take his remedy, on his highest secu- 15, Connect. rity; and things of a higher, determine things of a lower nature, as a matter in writing determines an agreement in words; this further proves where the plt. has a written contract he must sue upon it. On the above ground, if one have liberties by prescription, and afterwards takes a grant by patent, Noy's Max. this determines the prescription; for matter in writing deter- 15, cites mines matter in pais. If one has an assumpsit and a deed, he Finch 22.must sue on his deed. See Ch. 31, s. 10. So majus continet Co. L. 115. minus; the higher contract, in substance, absorbs the lower, --5 Co. 41. the greater the less. But if a man offer to do more than his con- Noy's Max. tract requires, his act is good for what it requires. As if he 16, cites 5 tender more than he owes, his tender is valid for what he Co. 11. owes. 2 Stra. 1027. -11 Co. 48. 11. In bringing actions there is another rule, somewhat of Co. Lit. 125. the same kind. If a matter be within two jurisdictions, the plt. must sue in the highest, as if within a franchise and the common law, the latter has cognisance. 12. A receives monies of B to account, he cannot have indebitatus assumpsit, unless A expressly promised to pay particular sum. 3 Day's Ca. 506, Collins a v. Phelps. § 13. Where the deft. may retain monies æquo et bono, as 4 Day's Ca. were awarded to A, under the British treaty of 1794, for his 42, Alsop v. vessel and cargo condemned, as prize, also for expenses of B, Magill & al. A's agent, in endeavouring to prevent a condemnation. A, for a valuable consideration assigned all his right in the award to C. Held, B could not recover the sum allowed for his expenses, from C, who was a bona fide purchaser of the whole. 14. So this action lies, though the deft. gives a written 4 Day's Ca. 175, Pettipromise to account on demand; as where B had a note bone v. Petagainst C, and A received it of B to collect or return it, and tibone. gave B such a promise, and received the money due on it. It seems by the decision in this case, that B could waive his special promise, and sue and recover for money had and received generally. 15. Whenever A is liable to pay monies for B's benefit, 3 Day's Ca. and pays them, A has this action. 465. 16. One may receive of me a bill &c., as a matter of 2 Johns. courtesy to use for my benefit, yet be liable to my action if he cases 92, promise to return it on demand, or pay the amount, and do Lucet. not. Rutgars v. 17. A mere agent, or attorney, who has no beneficial 10 Johns. R. interest in a contract, cannot sue upon it in his own name. 387. Сн. 9. Art. 5. 2 Burr. 1012. -1 Esp. 2, 4. -Imp. M. P. ART. 2. For money had and received, when due in equity and good conscience. This action, for money had and received, lies wherever the deft. is bound in equity, and by the ties of natural justice, to refund the money; but not when the plt. was bound in honour and honesty to pay it, though not in law, as if a debt be barred by the statute of limitations, or contractAnd privity ed by an infant, or fairly won at play, or the legal debt and between plt. interest on a usurious contract be paid, the same shall not be seems not to recovered back. So a breach of trust may be the ground of be necessary. assumpsit. 136. and deft. See Ch. 20, a. 21, 19, 22, &c. a. 18, 6, 9. ART. 3. Monies paid by mistake. 1. As if an underwriter See Ch. 9, supposes a vessel is lost, and pays the loss, when in fact, she is not lost, he may recover back the monies paid. So if by 5D. & E.603, mistake in settling an account, one pays too large a balance, he may in this action recover back the excess paid. Smith v. Jameson. rance, a. 24. 2. So money paid by mistake of the law or fact may be recovered back in this form of action. There is some doubt, 1010, Moses however, as to a mistake of the law, though the better opinion v. Macferlan, is, that money paid by mistake of the law may be recovered back, as will appear in several of the cases following, and ch. 75, a. 18, s. 8.-See 15 Mass. R. 207. but see Kirby 127.-Imp. M. P. 173. 2 W. Bl. Rep. 824, Farmer v. -- Arundell 3 Maule & S. &c. Salk. 28, 3. In the law of France an error in calculation in a settlement must be corrected; but otherwise, as to an error in law, though much is said as to equity and conscience, it is clear, "conscience must always be grounded on the law," and so equity. Hence no room for either where the law is clear and certain. ART. 4. Monies obtained by deceit. 1. As where the deft. had a wife living, married another woman, and received Wallis, & Bull, her rents, she may have this action; for she is deceived, and N. P. 133.- her pretended husband shall not avail himself of his own fraud. 1 Esp. 3.-11 So if the deft. receives the premium on a fraudulent representation of a sea risk. So in any other case, where a man obtains monies by fraud or deceit, or by any imposition, monies 143, 447.815. paid knowing facts, but mistaking the law, not demandable, cannot be recovered back. Mod. 146. Imp. M. P. 172. 5 Taun. R. 1 Esp. 8, Shove v. Webb. 1 T. R. 732, Webb.-6 Mod. 161, ART. 5. When the consideration fails. 1. As title, &c. as if the plt. pay monies on an annuity, the title to which fails 735, Shove v. by an innocent mistake in registering the memorials, he may recover it by this action; but not if he be guilty of any fraud, or it should seem culpable negligence, quod maleficio non oritur actio. But in the case of the annuity, it was held that though the surety joined in the receipt for the money, he was not liable to this action, when in fact he received no part of it; for this being an equitable action, it is unjust and contrary to the principles of it, to hold one to pay money who never received it, and to estop him by a receipt, in which he joins for form sake only. . Rastob. 4 Bos. & P. 34, 351, Cooke v. Munstone. CH. 9. Art. 5. 2 Esp. 3, § 2. So where the plt. paid monies to the deft., on his promise to make a lease of land to the plt., and before it was made, the deft. was evicted, the plt. recovered back the money he had paid. So where the money is paid, and the thing contracted for Briggs' case. 2 Esp. R. 522. is not delivered, this must be repaid, for the consideration of -Powell on the payment fails. As where A paid monies to B to have Contracts, certain shares transferred to him, and this was not done: but 141, 142.otherwise if the shares had been transferred, though to a less Dutch v. value; for then repaying the money would not be final and Warren.Cowp. 296. complete justice between the parties, and the plt. by accepting Imp. M. P. the transfer, waives his election to sue and recover back the 174.consideration money-so by accepting any performance, or part performance, for one cannot confirm the act in part, impeach it as to the rest. and 1 Stra. 409. Bul. N Bul. N. P. 31. D. & E. 184. Towers v. Dougl. 23, 3 So if a sea risk be not run in any part, the insurer is held, in this form of action, to refund the premium, though Weston v. not run even by the fault of the assured, if this fault be mere Lowrey. negligence and not fraud. And so for part where the risk is 173 Imp. M. P. by settled usage divisible. Show. 136, Setwell.-2 -5 Burr. § 4. So this action lies against an auctioneer for a deposit, Mortyn v. if there be any defect in the thing sold; but the deposit is on- Burr. 1240.ly recoverable with interest, not damages for the loss of the Comber. 341. bargain. And it may be doubted if the deposit can be re- 2639, Burcovered back, if the buyer accept the thing after he has dis- rough v.Skincovered the defect in it; for then, fairly understanding the ner.-2 W.BI. case, he ratifies the contract of sale by his acceptance, and if Bl. 19.--Imp. he sustains any loss, he must be made whole in an action for M. P. 174.damages, adequate to the defect in the thing. to 2 1078.--1 H. Holt's R. 35. East. 37, 47, Watson v. Faxon. A receives money of B for a specific purpose, and fails to apply it, this action lies, 3 § 5. In this case the plt. sued for money paid by him the deft. for land, and the question was, if the deft. could make a title to real estate. The deft., thinking he was tenant in fee, contracted to sell and convey the estate, and received £161, and on examination it was found he was not able to perform his contract; and judgment for him. It is to be observed that no exception was taken to the form of action. § 6. So if money be paid for a horse warranted sound, and he is unsound, and there is an immediate return of him, but otherwise the action must be on the warrantee. having the stipulated consideration, and not its want of value, 161, Johnson which the doctrine respects." Day's Ca.752, Wales v. Wetmore."It is not 3 Bos. & P. v. Johnson. 161. § 7. Title to lands in question in this action; as where A 3 Bos. & P. devised two parcels of lands to B, C, D, and E, in trust to sell Johnson v. and divide the monies among his brothers' and sisters' chil- Johnson. dren. E was one of twenty-four persons, entitled to the monies. The four trustees were proceeding to sell, when it was agreed by B, C, and D, and the other twenty-three legatees, that E |