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. 2 CH. 1. Art. 7. Hall v. But $46. Though equity does not (as the act does not) require any Ch.Ca. 164, but the party to be charged to sign such writing, yet equity will Gray-1 Eq. not enforce a contract signed only by the party applying for Ca. Ab. 20, 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 the very evil the act was intended to prevent; and it is hardly 1 Vern. 221, Cotton v. Lea.-Ch. 225, 1 P. W. 770, Hawkins v. Holmes.- Сн. 1. 2 Bro. C. C. 564; and Ch. 11, &c. Si mon v. Motivos, 9 Ves. 234. berlain. 2 Free. 34. 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; 1 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 43, Chamberlain 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, Öldham v. Litchford; 1 Vesey 123; 3 Bro. C. C. 400, and ch. 93 a. 3, ch. 225 a. 7. Sundry cases 2 Vern. 456, Foxcraft v. Lister.--Pr. § 49. Equity decrees parol agreements to purchase or lease 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 151.-9 Mod. C. 417. 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, CH. 1. Art. 7. Сн. 1. 2 Day's Ca. 24.-Powell & P. 247 to v. Adney. and against law, where is such an equity system to end? It is also absurd to publish thousands of mere dictums and leanings, &c. when there are published more legal decisions of high and full courts, than any man can read to good purpose. As to equity cases, they have become almost infinitely numerous, and but a small part of them are of much value, or use in the United States; hence they are in this work very briefly stated, except Federal cases in ch. 225. But references to equity cases are very numerous, so that when one shall have occasion to use or study them, he will find them largely referred to; and if each equity case be decided on the minute and peculiar circumstances of it, equity cases must increase a vast deal more than law cases, and when each case is so decided it can be of but little use in other cases; cases in law, and especially in equity, varying as human faces vary. ART. 8. Considerations when good or not. It has already been observed, that contracts and agreements affect almost all the concerns of men with each other; and that the basis of each one is a proper consideration. It is so as well in a moral as a legal view; for either on moral or legal principles, this consideration is the cause or motive that induces a man to act, and to bind himself, by his agreement or contract; and morality no less than law, decides that men ought not to act or bind themselves to do this, or not to do that, without reasonable motives or causes moving them so to do. So is the experience of mankind; for in no age or country has a rational man been expected to act without a reason, or to make promises or engagements, without motives, reasons or causes, or in other words without a proper consideration. If, as to this, there has been any difference in the eyes of morality, and in the eyes of the law, it has been, merely, as to the quantity or degree of this consideration. In some cases morality may measure its adequacy more nicely than the law does, as the law considers it impracticable to measure it very accurately; but natural affection will not support assumpsit, nor will love between the sexes. A written promise requires consideration as much as a parol one. § 1. The law, founded in reason, will not enforce a promise on Con. 330, made by one, or imply he makes one, when there is no law368.-3 Bos. ful sufficient consideration. It is intended in the residue of 256, Vennal this chapter, briefly to examine when there is or is not, this consideration; and, generally, it must be a benefit to the deft. or a trouble or prejudice to the plt.; and the law holds a consideration sufficient, which is a legal inducement to one to make the agreement or contract. Hence one's being a member of a society is a sufficient consideration for the law's implying his promise to pay a judgment rendered against him. 10 Johns. R. 249, 250. 3 Bl. Com. 258. CH. 1. Saunders, 2. Lord Mansfield, in this case said, "where a man is under a legal or equitable obligation to pay, the law implies a Art. 8. promise, though none was ever actually made; a fortiori, a legal or equitable duty is a sufficient consideration for an ac- Cowper 290, tual promise. Where a man is under a moral obligation, which Hawkes v. no court of law or equity can enforce, and promises, the hon- and 1 Esp. esty and rectitude of the thing is a consideration; as if a man Ca. N. P. promises to pay a just debt, the recovery of which is barred 279, 723.—1 by the statute of limitations; or a man, after he comes of age, El. 741, Barpromises to pay a meritorious debt contracted during his mi- ker v.Halifax, nority, but not for necessaries; or if a bankrupt, in affluent 15 eircumstances after his certificate, promise to pay the whole Civil law. of his debts; or if a man promise to perform a secret trust, Dig. 44, 7, or a trust void for want of a writing, by the statute of frauds." See 1 Hen. and Mun. 213; 3 do. 144 to 199. Stra.237.Cro. ple of the 10.-Dig. 12, 1, 14. [Nuda pacta, Submission tion for a 3. By the law merchant, want of a consideration is no esare found sential defect in a contract. While a note remains between in the civil the maker and payee, it is governed by the civil or municipal law, also in Bracton.] law, and the want of a consideration is a clear bar to recovering any thing on it, on the ground it is nudum pactum; but when third persons become fairly interested in it, it is not open to this objection; because after it is negotiated, its operation is governed by the same law as a bill of exchange, which is the law merchant. Exceptions if negotiated after due, &c. Powell on Con. 341, see Art. 46; Chitty on bills, 3— the contract being in writing does not make a consideration unnecessary; 1 Caines R. 387; 4 Johns. R. 235, 236, 296, 304. $4 So wherever a man is bound, in honor and conscience, to do a thing, and promises to perform, he is held to do it. to arbitrators But another principle, also, is to be regarded in considering is a good the foundation of contracts; in forming and enforcing which, considerano man, against his will or consent, or in other words without note.-3 his request expressed or implied, is to be laid under an obliga- Caines R. tion to perform, by reason of an act of another. But a stranger to the consideration cannot have an action. 1 Stra. 592. § 5. In this case it was decided, that a mere general promise, without benefit to the promiser or loss to the promisee, was a nudum pactum; as a past consideration, &c. 2 Strange 933. 6. If one promise to pay for goods delivered to a third person, it is good at common law, and on the statute of frauds, if in writing; but where one undertakes to pay the debt of another, the action will not lie, if the consideration be past 2 Morg. Ess. at common law, nor if not in writing, by the statute of frauds. 69, 86. ART. 9. "The law does not measure the quantum of the consideration;" therefore, "the least spark of a consideration will 3 Burr. 1663 be sufficient." As when A gets a judgment against B, and to 1676Cro. El. 67, Sturtin's case.-Cro. Car. 70, 77,Rolle v. Thorp.-Pow. on Con. 343.-3 Wood's Con. 223.Salk. 387. 166. Crow v. Ro gers.-3 Burr 1663 to 1676, osv. Van Murop and Hopkins. Pillans and Same case |