Specific Performance of Agreements.-Actions and Remedies on Agreements.

190. Courts of equity have jurisdiction to enforce a specific performance of an award, respecting real estate. But he who seeks performance, must show a readiness to perform all the award on his own part. M'Niel v. Magee, 5 Mason's C. C. R. 244.

and the obligee, and both the witnesses are rangement of the vendor for a compliance with dead. The contract belongs to the past age. It the contract. Ibid. was executed, if at all, when the country was new and unsettled, and the parties to it seem to have been illiterate men, and unacquainted with business transactions. These circumstances are referred to, not to show that this bond should be received without proof, but to show that as strict proof should be required of its execution as if it were of recent date. The law makes some allowance for the frailties of memory; and where a great length of time has elapsed since the signing of an instrument attempted to be proved, circumstances are viewed as having an important bearing upon the question. Coulson v. Walton, 9 Peters, 62.

191. After long delay and laches, a court of equity will not decree a specific performance of an award, especially where there has been a material change of circumstances, and injury to the other party. Ibid.

192. A fortiori, it will not decree it against purchasers even with notice, if their vendee is dead and insolvent, so that they can have no remedy over. Ibid.

184. Although it seems to be a general rule, that a court of chancery will not decree a spe- 193. A court of equity will not compel the cific performance of contracts, except for the specific performance of a parol contract to conpurchase of lands, or things which relate to the vey lands, in a case in which he who asks the realty, and are of a permanent nature; and that assistance of the court, is charged with unfair where contracts are for chattels, and compensa- conduct in relation to the contract which he tion can be made in damages, the parties may seeks to enforce, but will turn the party away be left to their remedy at law: yet, notwith-from that forum, and leave him to his legal restanding this distinction between personal con- medy. Thompson v. Todd, 1 Peters' C. C. R. tracts goods and contracts for lands, there 380. are ma cases to be found where specific per- 194. In a suit for a specific performance of a formance of contracts relating to personalty, parol agreement to convey lands, although the have been enforced in chancery, and courts defendant answer and admit the agreement, he will only weigh with greater nicety contracts may, nevertheless, protect himself from a perof this description, than such as relate to lands. formance of it, by pleading the statute of frauds. The Mechanics' Bank of Alexandria v. Louisa and Ibid. Maria Seton, 1 Peters, 299.

185. Both on principle and authority, a specific performance of a contract will not be decreed at the instance of the vendor, unless his ability to make a title is unquestionable. Garnet v. Macon et al., 2 Brockenb. C. C. R. 185.

186. For if no incumbrance be communicated to the purchaser, or known by him to exist, he must suppose himself to purchase an unencumbered estate; and therefore his objections to taking the deed need not be confined to cases of doubtful title, but may be extended to encumbrances of every description, which may embarrass him in the full enjoyment of his purchase. Ibid.

6. Actions and Remedies on Agreements.

195. If A agree, under seal, to perform certain work, and does part, and is prevented by B from finishing it according to contract, he cannot maintain a quantum meruit against B for the work actually performed, but must proceed upon the sealed instruments. Young v. Preston, Cranch, 239; 2 Cond. Rep. 98.

196. To charge one person with the debt of another, the undertaking must be clear and explicit. Russell v. Clark's Ex'rs. et al., 7 Cranch, 69; 2 Cond. Rep. 417.

197. It is the duty of him who gives credit to another, upon the responsibility or general undertaking of a third person, immediately to give notice to the latter of the extent of his engage

187. The English courts of chancery have never laid down the broad principle that time was never important in a contract; on the con-ment. Ibid. trary, the present doctrine there is, that where time is really material to the parties, the right to a specific performance may depend on it: and the same doctrine prevails in the courts of the United States. Ibid.

188. Although mere inadequacy of price is not a sufficient cause of refusal by a court of its assistance, yet, if an unreasonable contract be not performed according to its letter, equity will not interfere; and there is no difference between a contract unreasonable when made, or which becomes so afterwards, if the applicant be in fault. Ibid.

189. The principle is, that a very great change in the value of an article is a serious objection to a decree for a specific performance, where the vendor is in fault, as it may affect the ar

198. If a bond of conveyance in suit be assigned, and the assignor agree to refund to the assignee the value thereof, if the property should not be recovered on the bond, it is sufficient for the assignee, in a suit against the assignor, upon his promise to refund, to allege and prove that the property was not recovered in the suit, which was pending when the agreement was made. Ferguson v. Harwood, 7 Cranch, 408; 2 Cond. Rep. 548.

199. A contract for the payment of distinct sums of money, at different times, is very much in the nature of distinct contracts, and an action of debt lies for each sum as it becomes due. Faw v. Marsteller, 2 Cranch, 10; 1 Cond. Rep. 337.

200. In all cases of contract with the United

Actions and Remedies on Agreements.-Damages in Actions on Agreements.

States, through their agents, the United States have a right to enforce the performance of such contracts, or to recover damages for their violation, by actions in their own name, unless a different mode of suit be prescribed by law. Dugan et al. v. United States, 3 Wheat. 172; 4 Cond. Rep. 223.

201. When there is a special agreement open and subsisting between the parties at the time the cause of action arises, a general indebitatus assumpsit will not lie. Perkins v. Hart's Ex'r. fc., 11 Wheat. 237; 6 Cond. Rep. 287.

waiving those damages the obligee did not relinquish the right to interest, which is attached to all contracts for the payment of money, which was only displaced by the agreement to receive a larger sum in damages, and which a mere tacit implied waiver of those damages might reinstate. Ibid.

208. In action of covenant, on an agreement, under a penalty, the jury, in estimating the da mages, are not bound to give the penalty only; but if debt is brought, the plaintiff can recover no more than the penalty. Martin v. Taylor, 1 Wash. C. C. R. 1.

202. But if the agreement has been wholly performed, or if its further execution has been 209. But where the penalty is in the nature prevented by the act of the defendant, or by the of liquidated damages, the stipulated sum must consent of both parties, or if the contract has govern the jury in estimating damages. Ibid. been fully performed, in respect to any one dis- 210. If a reservation of damages in the continct subject included in it, the plaintiff may re-dition of a bond is, in law, only a double penalty, cover upon an indebitatus assumpsit. Ibid. then interest is the legal compensation for the breach of the covenant contained in it. United States v. Gurney, 4 Cranch, 333; 2 Cond. Rep. 132.

203. An action cannot be maintained on an original contract, for goods sold and delivered by a person who has received a note as conditional payment, and has passed away the note. Harris v. Johnston, 3 Cranch, 311; 1 Cond. Rep. 543. 204. Generally speaking, a court of law is competent to afford an adequate remedy to either party on a breach of contracts by the other, from whatever cause it may have proceeded; and whenever this is the case, a resort to a court of equity is improper. Hepburn et al. v. Dunlop et al., 1 Wheat. 179; 3 Cond. Rep.

529.

205. But if the contract ought not, in conscience, to bind one of the parties, as if he had acted under a mistake, or was imposed upon by the other party, or the like, a court of equity will interpose and afford relief, which a court of common law cannot, by setting aside the contract; and having thus obtained jurisdiction of the principal question, that court will proceed to make such other decree as the justice and equity of the case may require. Ibid.

211. In estimating damages for the breach of a contract to deliver flour, the jury are to ascertain the value of the flour, on the day when the cause of action arose. M'Allister v. Douglass et al., 3 Cranch, 298; 1 Cond. Rep. 537.

212. In an action by the vendee for the breach of a contract of sale by the vendor, in not delivering the article, the measure of damages is the price of the article at the time of the breach of the contract, and not at any other time. Shep herd v. Hampton, 3 Wheat. 200; 4 Cond. Rep. 233.

213. An agreement to perform certain work within a limited time, is not to be construed as liquidating the damages which the party has to pay for the breach of the contract. Tayloe v. Sandiford, 7 Wheat. 13; 5 Cond. Rep. 210.

214. In an action at law by the vendee against the vendor, for not delivering the article sold according to contract, the proper measure of damages is not the price stipulated in the contract, but the value at the time of the breach. Hopkins v. Lee, 6 Wheat. 109; 5 Cond. Rep. 23.

215. This rule applies to real as well as personal property; but query, whether it is the proper measure of damages in an action for eviction. Ibid.

7. Damages in Actions on Agreements. 206. B, in Philadelphia, agreed to pay A's agent 170,000 guilders in Amsterdam, on the 1st of March, and if he should fail to do so, then to repay to Á the value of the said guilders, at the rate of exchange current in Philadelphia at the time the demand of payment should be made, 216. In estimating the damages sustained by together with damages at the rate of 20 per a breach of contract, the plaintiff is not to recent., in the same manner as if the bills of ex-cover what he might have made, should the change had been drawn for said sum, and they agreement have been literally fulfilled. Gilpins had been protested for non-payment, and lawful v. Consequa, 1 Peters' C. C. R. 85. interest for any delay of payment which might take place after the demand. B paid the 170,000 guilders on the 13th of May, instead of the 1st of March. Held, that A was not entitled to the 20 per cent. damages, but might, in a suit on the bond given to perform the contract, recover interest on the 170,000 guilders from the 1st of March to the 13th of May. United States v. Gurney et al., 4 Cranch, 333; 2 Cond. Rep. 132. 207. The acceptance of any part of the sum due, in Amsterdam, on a day subsequent to that stipulated in the contract, was a waiver of the claim of 20 per cent. damages, for that sum could not be demanded in Philadelphia. But in

217. In an action of covenant on an agreement under a penalty, the jury, in estimating the damages, are not bound to give the penalty only; but if debt is brought, the plaintiff can recover no more than the penalty. Where, however, the penalty is in the nature of unli quidated damages, the stipulated sum must govern the jury in estimating the damages. Martin v. Taylor, 1 Wash. C. C. R. 1.

218. In an action to recover damages for breach of covenant to convey land, if the covenanter had no such land, it is a fraud; and the jury should estimate the damages by the valuc of the land stipulated to be conveyed at the

time of the verdict. Overton's Rep. 464.

Damages in Actions on Agreements.—Alabama.

Wilson v. Robertson, 1

219. N. stipulated in certain articles of agreement to transport and deliver by the steamboat Paragon to R., a certain quantity of subsistence stores, supposed to amount to three thousand seven hundred barrels, for the United States; in consideration whereof, R. agreed to pay to N., on the delivery of the stores at St. Louis, at a certain rate per barrel, one half in specie funds or their equivalent, and the other half to be paid in Cincinnati, in the paper of banks current there at the period of the delivery of the stores at St. Louis. Under the agreement was the following memorandum: "It is understood that the payment to be made in Cincinnati is to be in the paper of the Miami Exporting Company or its equivalent." Held, that the circuit court erred in refusing to instruct the jury that the plaintiffs could only recover the stipulated price for the freight actually transported, and that they were entitled to no more than the specie value of the notes of the Miami Exporting Company bank, at the time the payment should have been made at Cincinnati. The specie value of the notes at the time they should have been paid, is the rule by which such damages are to be estimated. Robinson v. Noble's Adm'rs., 8 Peters, 181.

claims, different from that adopted in the parti cular case. Willings v. Consequa, 1 Peters' C. C. R. 172.

224. Damages for breach of contracts do not bear interest. Ibid.

225. The rate of damages to be recovered for a breach of contract, is part of the right to which the injured party is entitled, and is dis tinct from the remedy for enforcing his claim. In the former case, the lex loci, where the contract is made or broken, prevails; in the latter, the lex loci of the forum, where the remedy is provided, prevails. Consequa v. Willings, 1 Peters' C. C. R. 225.

226. No claim for the supposed loss on teas of inferior quality, by the difference on exchange, can be sustained. Gilpins v. Consequa, 3 Wash. C. C. R. 184.

227. The general policy of the law forbids, that a debtor should be subject to the loss of consignment on a failure to fulfil his promise to pay his debt. Such breaches are so often the consequence of events which could neither have been prevented nor foreseen by the debtor, that interest is generally considered as compen sation, which must content the debtor. Short v. Skipwith, 1 Brockenb. C. C. R. 103.

228. If a holder of a promissory note agrees for a valuable consideration to give time to the re-maker of the note, the endorser is discharged. Bank of the United States v. Hatch, 1 M'Lean, 92.

220. The plaintiff, the owner of the steamboat, was not entitled under the contract to cover in damages more than the stipulated price for the freight actually transported. If R. had bound himself to deliver a certain number of barrels, and had failed to do so, N. would have been entitled to damages for such failure; but a fair construction of the contract imposed no such obligation on R. Ibid.

229. An agreement to admit certain deposi tions as evidence extends to the final decision of the case. Hinde et al. v. Vattier et al., 1 M'Lean, 116.

230. An agreement under seal which compromises a suit, does not prevent either party from setting up and proving a parol undertaking that one of the parties should pay the costs. Morancy et al. v. Buford et al., 1 M'Lean, 195.

231. Such an agreement does not contradict or vary the written agreement, but is distinct and independent of it. Ibid.

221. There is no pretence that R. did not deliver the whole amount of freight in his possession, at the places designated in the contract. In this respect, as well as in every other, in regard to the contract, he seems to have acted in good faith. And he was unable to deliver the number of barrels supposed, either through the loss stated, or an erroneous estimate of the quantity. But to exonerate R. from damages on this ground, it is enough to know, that he did not bind himself to deliver any specific amount of freight. The probable amount is stated or sup- 233. But such sales may, perhaps, be distin posed in the agreement, but there is no under-guished from public sales of the public lands. taking as to the quantity. Ibid. Ibid.

232. An agreement between two or more per sons, not to bid at a sheriff's sale against each other, and that one shall purchase for the benefit of all, held to be void. Piatt v. Oliver et al., 1 M'Lean, 295.

222. The sales at Amsterdam of teas shipped 234. An agreement to pay illegal interest will at Canton, under a contract that they should be not be decreed, but under certain circumstances, prime teas, compared with the sales of similar the court will not decree the repayment of inte teas there, furnish the rate of loss, which, in rest thus paid. Longworth v. Taylor, 1 M'Lean, ascertaining the damages sustained by the 514. breach of a contract, is to be applied to the first cost of the teas so shipped at Canton; but these sales do not furnish the amount of the damages. No damages are to be allowed for any profit or gain the plaintiff might have obtained by exchange or otherwise. Gilpins v. Consequa, 1 Peters' C. C. R. 85. Willings et al v. Consequa, 1 Peters' C. C. R. 172. Youqua v. Nixon et al., 1 Peters' C. C. R. 221.

223. The adjustment of a claim of damages in a particular case, does not exclude a party from the benefit of a general rule as to such

ALABAMA.

1. The state of Alabama has not merely ac quiesced by silence, but her judicial tribunals have declared the adoption of the law of international comity in the case of a suit. The Bank of Augusta v. Earle, 13 Peters, 519.

2. The state of Alabama never intended, by its constitution, to interfere with the right of selling or purchasing bills of exchange. Ibid.

Separation of Alexandria.-Banks and Council of Alexandria.-Alien-Alienage. General Principles.

ALEXANDRIA, IN THE DISTRICT OF CO-
LUMBIA.

1. Separation of Alexandria from Virginia.
1. The separation of Alexandria from Virginia,
by the cession to the United States, did not affect
existing contracts between individuals. The in-
surance upon buildings in Alexandria, made
before the cession, did not cease on the separa-
tion, although, by the charter, the company were
authorized to insure buildings in Virginia only.
Korn & Wisemiller v. The Mutual Assurance So-
ciety against fire on buildings in Virginia, 6
Cranch, 192; 2 Cond. Rep. 345.

2. The proprietors of buildings in Alexandria, insured by the Mutual Assurance Society, were bound by the acts of the legislature of Virginia, passed in 1805, and by the subsequent regulations of the society, to pay an additional premium upon the increased rate of hazard, according to the new regulations in 1805. The Mutual Assurance Society v. Korn et al., 7 Cranch, 396; 2 Cond. Rep. 546.

3. The right of Virginia to legislate for that part of the District of Columbia which was ceded by her to the United States, continued to the 27th February, 1801. Young v. The Bank of Alexandria, 4 Cranch, 384; 2 Cond. Rep. 150. 4. A mere change of the sovereignty produces no change in the state of rights existing in the soil; and the cession of the District of Columbia to the national government, did not affect the lien created by the act of Virginia, of 22d December, 1791, on property pledged to the Mutual Assurance Society, in the town of Alexandria, although the personal character or liability of a member of the society could not be thereby forced on a purchaser of such property. The Mutual Assurance Society v. Watt's Ex'rs., 1 Wheat. 279; 3 Cond. Rep. 570.

2. Banks in Alexandria. 5. The act of Virginia, incorporating the Bank of Alexandria, is a public act. Young v. The Bank of Alexandria, 4 Cranch, 384; 2 Cond. Rep. 150.

bank shall in no other case be liable for any contract or agreement, does not extend to contracts and undertakings implied by law. The Mechanics' Bank of Alexandria v. The Bank of Columbia, 5 Wheat. 326; 4 Cond. Rep. 666.

3. Common Council of Alexandria. 9. The power to license auctioneers, and to dental to a corporation, but was conferred on the take deeds for their good behaviour, is not incicommon council of Alexandria by a law of Virginia, with a certain limitation of the power. Fowle v. The Common Council of Alexandria, 3 Peters, 398.

the charter of Alexandria, does not make a ge10. The act of congress of 1804, to amend neral transfer to the common council of Alexandria, of the powers of the mayor, &c., but only of specially enumerated powers. Ibid.

11. The common council are not liable for

damages, for having appointed an auctioneer without receiving a bond from him, as required by the law of Virginia, for his good conduct, the auctioneer having defrauded his employers. Ibid.

1. General Principles.

1. Villato, a Spaniard by birth, came to Pennsylvania in 1793, and took an oath of allegiance before the mayor of the city of Philadelphia, under the provisions of an act of the legislature of that state, passed on the 13th of March, 1789. The first naturalization act was passed by congress in 1790. By the operation of the constitution of the state of Pennsylvania, adopted after the law of 1789, and the naturalization law of 1790, the Pennsylvania law was abrogated; and at the time of the taking of the oath of alle6. The Bank of Alexandria may maintain angiance by Villato, the law under which it was action against the endorser of a note, made negotiable therein, without first suing the maker or proving him insolvent, although it is different in Virginia. Yeaton v. The Bank of Alexandria, 5 Cranch, 49; 2 Cond. Rep. 186.

7. The 3d and 21st sections of the act incorporating the Mechanics' Bank of Alexandria, do not import that the stock shall be deemed to belong to the persons in whose names it stands on the books of the bank. The bank is bound to recognise the interests of cestui que trusts, and cannot refuse to permit the stock to be transferred while the nominal holder is indebted to the bank. Mechanics' Bank of Alexandria v. The Bank of Columbia, 1 Peters, 209.

8. The 17th section of the act incorporating the Mechanics' Bank of Alexandria, which provides that all bills, notes, &c., and every other contract or undertaking on the part of the bank, shall be signed by the president and courter signed by the cashier, and that the funds of the

12*

administered did not exist. Villato, after taking the oath in 1793, went to the West Indies, entered on board a French privateer, and acted as prize-master of the American brig John, of New York, which had been captured by the privateer while he was on board of her, and he procured the John to be libelled and condemned as prize at Cape François. He was indicted for treason against the United States, in the circuit court of Pennsylvania. The court held, that the law under which Villato took the oath of allegiance not being in force, he could not be guilty of treason. U. S. v. Villato, Circuit Court of the United States for Pennsylvania, 2 Dall. Rep. 370, 373.

2. Alienage may have been a good cause of challenge before a juror was sworn; but an omission to make the challenge cannot be taken advantage of after verdict. Hollingsworth v Duane, Circuit Court of the United States for Pennsylvania, 4 Dall. Rep. 354.

General Principles.—Alien Enemy.

3. The children of persons duly naturalized were escheated to the commonwealth by an before the act of congress of 14th April, 1802, office found, applies to an equitable as well as being under age at the time of the naturalization to a legal estate in land. Robertson v. Miller et of their parents, were, if residing in the United al., 1 Brockenb. C. C. R. 466. States on the 14th of April, 1802, to be consi dered citizens of the United States. Campbell v. Gordon, 6 Cranch, 176; 2 Cond. Rep. 342.