by the failure of the other side to fultil
it, more than equalled the amount of
the judgment. The chancellor as-
sented to tne general principle, that
equity would not allow one party to a
contract, to make a breach by the
other a ground of profit, or of any-
thing more than a just compensation,
but held that the case before him was
more in the nature of stipulated dam-
ages, against which no relief could be
afforded, and that he could not inter-
fere by injunction, with the judgment,
in opposition to the allegation in the
answer, that it was no more than a
fair equivalent for the breach which
constituted the true cause of action.
This decision was subsequently re-
versed by the court of errors, who
held that however the case might
have stood, had the defendant gone
on with the work, and finished the
machinery, after receiving the letter
of the complainants, asking to be re-
leased from the contract, yet that as
he had discontinued the undertaking
on his part, and sought only to en-
force it against them, the covenant
entered into on their part had ceased
to tii 1 til its original purpose, which
was that of pro rata payment, and
had been converted into a penal stipu-
lation, against which relief would be
afforded. And it was further held,
that the allegation made in the an-
swer, that the judgment did not ex-
ceed a just compensation for the loss
sustained, was not a sufficient reason
for refusing to enjoin it, because it
would not form a bar to subsequent
proceedings to recover the remaining
instalments, and the whole matter
could not be finally and completely
settled, without an appeal to equity;
Skinner v. White, 17 Johnson. 357.
A similar principle was applied by the
Supreme Court of Ohio, in the case
of Brockway v. Clark, G Ohio, 4">,
where it was decided, that although
in the absence of statutory enactments,
equitv would not set aside a contract
on the ground of usury, yet, that
when the complainant had given a
note for §130 in consideration of the
sum of §100, and conditioned to be
void on the payment of §110 at any
PEACHY V. DUKE OF SOMERSET. — SLOMAN V. WALTER. 685
time before it was due, the latter sum
should be taken as the real debt, and
the former as a mere penalty. The
general principle, however, is that
when performance of an act on a day
certain, is a condition precedent to
the acquisition of a right or privilege,
equity cannot relieve against the
consequences of a non-performance.
Thus when sale is made with a right
of repurchase during a fixed period,
the right cannot be enforced after the
period has expired ; Robinson \. Crop-
sey, 2 Edwards, 138 ; ante, 84, 634.
And when the right of the drawers of
the successful tickets in a lottery, to re-
ceive the prizes drawn, was made de-
pendent by the terms of the published
scheme, on tbeir presenting their
claims within the year, it was held to
be forfeited by a delay beyond that
time ; The City Bank v. Smith, 3
Gill <fc Johnson, 265. In like man-
ner where the vendor and vendee of
land agree, that each shall pay half
of a mortgage resting on the land,
with a proviso that if the vendor
fail to pay his proportion, he shall
have no right to compel the purchaser
to pay the residue ; the proviso will
be binding, and a compliance with
it essential to a recovery upon the
agreement; Flagy v. Manger, 5 Sel-
den, 483. But this rule, like the
others, will yield to the intention of
the parties, and the policy of the law to
prevent oppression, as in the common
case where relief is afforded to a mort-
gagor after the period has elapsed for
the performance of the condition, be-
cause the real object of the transaction
being security for the debt and not the
conveyance of the estate, if the debt
be repaid, the purpose of the contractus
effected, and neither party can be en-
titled to anything more; ante, 640.
And the decision in Brockway v.
Clark, affords a striking example of
the application of this principle to a
contract for the payment of money,
unattended by a conveyance of land.
As equity will not allow a party
who has broken a contract, to be sub-
jected to a penalty, when he proffers
compensation, it will not permit him
to make the payment of the penalty,
an equivalent for the performance of
the contract; Gordon v. Brown, 4
Iredell, Eq. 399 ; Dooley v. Watson,
1 Gray, 414 ; the penalty being con-
strued as intended to secure the fulfil-
ment of the contract, and not to de-
feat it ; The Canal Co. v. Swanson,
1 Binney, 70 ; Brown v. Bellows, 4
Pick. 179 ; ante, 666.
It was said, however, in Perkins v.
Lyman, 11 Mass. 76, that a clause sti-
pulatingforthe payment of a fixed sum,
could not be considered as liquidated
damages in any case, where it was not
intended to limit the recovery of the
plaintiff, as well as to impose a fixed
liability on the defendant; and the
same view has been taken in some
other instances, and such stipulations
held to give the right to substitute
compensation for performance, at
pleasure; Pearson v. Williams, 26
Wend. 630; Williams v. Green, 14
Arkansas, 315, 322. There is no
doubt that the practical result of
such a clause at law, may be to give
the defendant an election, either to
perform the contract in its primary
sense, or make the stipulated pay-
ment; White x. Dinghy, 4 Mass. 433;
Main v. King, 10 Barbour, 59 ; and
that it may, therefore, have the effect
of defeating the contract, instead of
securing its performance. In Bodine
686 PENALTIES. — FORFEITURES. — LIQUIDATED DAMAGES.
v. Glading, 9 Harris, 50, the same
rule was said to prevail in equity, and
a stipulation that a vendor might re-
sell the land at the risk of the pur-
chaser, if default were made in the
payment at a fixed period, held to be
a provision for liquidating the da-
mages to which he was bound to resort,
instead of filing a bill for a specific
performance ; and a similar view has
been taken in some other instances;
Shid v. MMtt, 9 Paige, 101 ; St.
Mary's Church v. Stockton, 4 Hal-
sted, Ch. "»20. It should, however,
be remembered, that the motive with
which such clauses are usually in-
serted, is not to facilitate the viola-
tion of the contract, but to provide a
more certain and safer remedy in case
it is violated. In Clark v. Jones, 1
Denio, 516, the designation of a sum
as liquidated damages for the breach
of the conditions in a lease, was held
not to entitle the lessee to make the
payment ot the sum thus fixed, a sub-
stitute for the performance of his en-
gagements, and a consequent bar to
an action of ejectment founded upon
a breach of condition. The existence
of one remedy is obviously no reason
for shutting an injured party out from
another, and we may therefore doubt
whether equity would consider the in-
troduction of a stipulation for the pay-
ment of a sum certain, in case of a
default, as an answer under all cir-
cumstances to a bill for a specific per-
formance. And it is at all events
plain, that the rights of the parties
should not be varied, nor any remedy
which would be open to them under
ordinary circumstances, denied infer-
entially, unless there is clear proof
that such was their intention ; Fisher
v. Barrett, 4 Cushing, 8 Si • Plunkett
v. The Methodist Episcopal Church,
3 Id. 561 ; Loire v. Nolte, 16 Illinois,
475 ; Gray v. Crosby, 18 Johnson,
210 ; Dooley v. Watson, 1 Gray, 414;
Dike v. Green, 4 Rhode Island, 285.
Thus it was said in Gray v. Crosby,
that to make a stipulation for liqui-
dated damages, a bar to a specific per-
formance, it must clearly appear that
they were to be paid and received in
lieu of performance. This remark
would seem peculiarly applicable to
contracts for the purchase of land,
where the purchaser is entitled to
damages for the breach, or a decree
for specific performance at his option,
and where the liquidation of the da-
mages may be presumed to be meant
solely t<> give greater certainty to the
rights of the parties in case the former
alternative is adopted, and to have no
reference to the latter.
A necessary result of holding that
a stipulation for liquidated damages,
gives tin' party by whom it is made,
the- option either to perforin the con-
tract or to pay the damages as stipu-
lated, has been said to be, that the
other party must elect between the
right to insist on performance, and to
exact the compensation for the breach,
and will waive the one by accepting
or retaining a partial fulfilment of, or
any benefit under the other; Halde-
man v. Jennings, 14 Arkansas, 329 j
and hence a vendor takes a bond or
other security from the vendee, after
the purchase-money has become due
and payable, for an amount exceeding
the sum agreed to be paid as an equiva-
lent for non-performance, will evince
his choice to insist on the fulfilment of
the contract, and lose the right to exact
the stipulated compensation for the
default; Shielv. M'Nitt, Paige, 101.
INDEX
THE NOTES, ENGLISH AND AMERICAN,
FOR SECOND AND THIRD VOLS.
The numbers refer to the paging of the American Edition.
ABATEMENT OF LEGACIES,
On a deficiency of assets for debts, residuary legacies abate before pecuniary, and
general and pecuniary legacies before those which are specific, ii. 266, 493, 500,
510.
is express?;/ or impliedly charged upon or given out of them, ii. 516.
And where pecuniary legacies are bequeathed with a demonstration of a particular
fund or property, as the means of payment, they will not be compelled to abate or
contribute, until the fund or property on which they are so charged is exhausted,
ii. 511, 514.
Legacy apparently residuary, may be specific when testator contemplates a certain
overplus, ii. 252,493, 504, 511.
And will abate only with specific legacies, ii. 493, 511.
Secus, when testator does not know or assume to know amount of fund, ii. 494.
Simple pecuniary legatees, on devastavit, are not to abate as to loss with residuary
legatees, ii. 266.
Unless they have waived priority by their dealings with the executor, ib.
General legacy for valuable consideration, entitled to priority over merely voluntary
legacies, ib.
As a legacy for the relinquishment of dower, ii. 494, 511.
Or of a debt actually due, ii. 494.
Secus, where a legacy is given on condition of executing a release where no debt is
due to the legatee, ii. 495.
Annuity to executor for his trouble, not entitled to priority, ib.
Testator may prefer one legatee to another, ib.
But his intention must be clear, ib.
Specific legacies not applicable to debts until general legacies exhausted, ii. 266,
495, 506, 510.
Nor are demonstrative legacies, ii. 495, 511, 514.
Legatee of a demonstrative or specific legacy can compel contribution from devisee
of land not charged with debts, ii. 250, 251, 260, 495, 510.
General residue applicable before specific legacy charged with debts, ii. 495.
688 INDEX.
ACCORD AND SATISFACTION,
Payment of smaller sum cannot be a satisfaction of a demand for a larger, iii. 426.
Unless the latter is doubtful, and the payment made by way of compromise, ib. See
Compromise.
ACQUIESCENCE. See Trustees and Esgcutors' Liabilities of.
ADEMPTION,
General legacy, except in the case of a subsequent portion given to a child not
liable to ademption, ii. 484.
Specific legacy adeemed, if not in existence at testator's decease, ii. 484, 500, 504.
The animus adimendi not considered, ii. 485, 508, 510.
And ademption may take place in opposition to intention, ii. 509.
A contrary opinion held in some of the cases, ii. 508.
Specific legacy of goods at a particular place adeemed by removal by the testator,
485.
Or by an agent with his approbation, ib.
By loss of goods insured, daring life of, or at the same time as the death of the tes
tator, ii. 485, 486.
Temporary or accidental removal may not amount to, 486.
Nor a fraudulent or tortious removal, ib.
Lord Hardwicke'a distinction as to goods on board a ship, ib.
Removal does not effect where words of bequest have not necessarily a reference to
a particular locality, ib.
A debt generally adeemed by receiving it. ii. 487.
Although paid off compulsorily by debtor, ii. 510.
And after insanity of testator, ib.
But not necessarily by taking new security, ii. 509.
Or changing the form of the debt in any manner if debt still continues, ii. 505,
507, 509, 510.
Or investing it on another security, ii. 487, 508, 510.
Distinction between a voluntary and compulsory payment of debt of no weight, ii.
488,508,509.
Partial receipt of debt an ademption pro tanto, ii- 488, 507.
When receipt of money not an o.demption of a debt, ii. 488.
Bequest of debt may comprehend it in its altered state, ii. 4S9.
Specific legacy of stock adeemed by sale, not revived by re-purchase, ib.
A mere nominal chancre may not amount to, ii. 489, 505, 507.
As if stock be converted by Parliament into a different species, 489, 505.
Or by transfer from trustee to testator, ib.
Or by railway shares being converted into consolidated stock, ii. 490.
Or by transfer by fraud, ib.
Or without authority, ib.
Or if testator dies before authority to sell be carried into effect, ib.
Where things bequeathed are disposed of by others after the insanity of the testa-
tor, ii. 491.
Specific bequest of share of profits of partnership, not adeemed by new articles of
partnership, ib.
Bequest of leaseholds adeemed by taking a new lease, ib.
Semble, not where legal estate is in a trustee, ib.
Takes place where lease is after the will assigned upon other trusts, ib.
But nut where intention appears to pass subsequently acquired interests in lease, ib.
Takes place by underlessee taking assignment of the original lease, ii. 491, 492.
And see now 1 Vict. c. 26, s. 23, ii. 492.
A general legacy made specific by a subsequent instrument, not set up by ademp-
tion of the specific legacy, ib.
Specific legacy not adeemed by being pawned or pledged, ib.
Legatee will be entitled to have it redeemed, ib.
Or to compensation out of the general assets, ib.
How far specific legatee of shares entitled to have calls paid out of testator's per-
sonal estate, ib.
INDEX. 689
ADEMPTION, continued.
Result of the cases according to Sir J. Romilly, M. R., ii. 492.
When bequest of shares includes moneys paid in advance beyond calls, ib.
Parol evidence admissible to show what property answers to a specific bequest, ii,
493,501. l ' '
Not to show that other property was intended, ii. 494, 502.
Demonstrative legacy not adeemed by non-existence of the fund out of which it is
primarily payable, ii. 494, 512, 513.
But testator may show his intention that legatee is only to be paid out of a particu-
lar fund, ib.
Adeemed legacy not revived by codicil confirming a will, ii. 494.
Ademption of a legacy by a portion. See Satisfaction.
ADMINISTRATOR, no allowance to, for his care and trouble.
Secus, in this country. See Tkustee.
APPOINTMENT,
By person having a general power makes property appointed assets, ii. 103, 104.
See Assets.
ASSETS,
Distinction between legal and equitable, ii. 291, 305.
Equity follows the law in administration of legal assets, ii. 305.
Distributes equitable assets equally, ib.
But trill give full effect to specific liens or pledges in the distribution of assets,
whether legal or equitable, ii. 312.
Legal assets, what are, ii. 291.
Are assets recoverable by executor virtute officii, ii. 291, 292.
Although they are recovered in equity, ii. 292.
Personal estate, including leaseholds, legal assets, ib.
Equity of redemption of sum of money charged on land is legal assets, ib.
Reversionary annuity, ib.
Real estate, how far liable by common law to debts, ii. 293.
By statute law. ib.
Equity of redemption of mortgage in fee made legal assets by Sir J. Romilly's Act,
ii. 294.
Real estate assets for payment of debts as against lord claiming by escheat, ib.
Creditors by specialty in which heirs are bound have priority over those where the
heirs are not bound, ib.
Ordinary course of administration of legal assets, ii. 294 ; see ii. 307.
Equitable assets, what are, ii. 295.
Devise of lands, though to executors as trustees for payment of debts, equitable
assets, ii. 295, 300, 307.
Or a devise, or a descent to the heir charged with debts, ib.
Not necessary that descent should be broken, ii. 295, 309.
Distinction between an express devise, and a charge for payment of debts, ii. 295.
A devise of part of estate for payment of debts, if it be sufficient is within Statute
of Fraudulent Devises, ii. 295 ; see ii. 309.
If insufficient is fraudulent, ib.
Or if a devise be not for payment of all debts, ii. 295.
But a direction to pay simple contract before specialty creditors is good, ii. 296 ;
see ii. 308.
Remedies given to specialty creditors by 3 & 4 W. & M. c. 14, confined to sums
certain due in testator's life, ii. 296.
Remedy extended by 1 Will. 4, c. 47, ib.
Charge of debts in equity comprise damages for a breach of covenant after testa-
tor's death, ib.
A direction that produce of real estate shall form part of personalty will not con-
vert it into legal assets, ib.
Nor will a sale by the direction of the court, ib.
VOL. III. — i4
1590 INDEX.
ASSETS, continued. .
3 & 4 Will. 4, c. 104, not applicable to estates charged with or devised, subject to
payment of debts, ii. 296.
Real estates in the West Indies cannot be devised so as to make them equitable
assets, ii. 297.
What amounts to a charge of debts, ii. 297 ; see ii. 2G7, 2G8. _
As a o-eneral rule a mere general direction by a testator tbat his debts shall be paid,
is sufficient, ii. 297.
Although there is no devise or mention of the realty, ib. ; see ii. 268.
First exception where after a general direction for payment of debts a particular
fund is specified, ii. 298.
But not where there is a subsequent charge on the residuary personal estate, ib.
An express charge not affected by the appropriation of particular lands for pay-
ment of debts, ib.
Nor by a qualified charge in the same will, ib.
Second exception where debts are directed to be paid by executors, ib.
Unless they are devisees of the real estate, ii. 299.
Secus, where one only of them is a devisee,, ib.
Unless intention of testator otherwise appears that he intends to charge the land
devised to cne executor, ib.
Where charge of debts is a mere form, land not rendered equitable assets, il>.
As to whether expressions which are sufficient to charge veal estates with debt-
will charge legacies, ii. 299, 266-269.
A direction to raise money for payment of debts out of rents and profits a sufficient
charge, ii. 299.
A charge of debts contracted includes those due at the death, ib.
Lieu on land not affected by charge, ib.
Debts by specialty or simple contract not a lien on lands in the hands of the debtor,
his heir, or devisee, ii. 300.
Lands in the hands of the alienee, though with notice that debts were unpaid, not
bound, ib. ,
Mere deposit of title deeds of land not a sufficient alienation to defeat creditors, :!'.
Nor a covenant to settle it, ib.
Nor a judgment entered up against the heir or devisee, ib.
lity of redemption of an estate in fee formerly considered equitable assets, ilx
Except where a term was mortgaged and the reversion in fee was left in the mort-
gagor, ib.
Equity of redemption of mortgage in fee now legal assets, ib.
Equity of redemption of a term of years held in some cases to be equitable w
' ii. 301.
Doubts thrown on those cases by Mr. Cox, ib.
According to Sir R. T. Kindersley, V. C, they are not to be followed, ib.
Trusts of°a chattel held to be equitable assets, ib.
But not equitv of redemption of sum of money charged on land. ib.
Judgment-creditor is eulitled to priority of payment out of equity of redemption
over simple contract-creditors, ii. 302.
Separate property of married woman equitable assets, ib.
Debts paid first where lands are charged with debts and legacies, ib.
Personalty primary fund for payment of legacies as well as of debts, ii. 263.
Even when charged on the realty, ii. 265, 266,
What will operate as a chargi of legacies, ii. 266,. 267.
Intention to impose charge must be clearly apparent, ii. 2G6.
Intention mmi be deduced, inferentially, ii. 266, 267.
W '<< n implu d from blending n al and personal property as residue, in on bequest,
ii. 269-271. ' , ..... ...
Order in which assets, partly legal and partly equitable, are administered, n. lo\,
303.
1. Personal estate not specifically bequeathed, ib.
Or as pecuniar)/ legacy, ib.
Unless exempted, ib
INDEX. 691
ASSETS, continued.
2. Real estate devised for payment of debts, ii. 251, 303.
3. Real estates descended, ib.
4. Real estate devised charged with debts, ii. 251, 2G0, 303.
5. General pecuniary legacies, ib.
6. Real estate devised not charged with debts, and personal estate specifically be-
queathed, ii. 251, 303, 304.
And they must contribute rateably the debts due by specialty, ii. 251, 250 260
304. "" '. '
Unless one is made primarily liable, ii. 257, 304.
Whether specific legacies entitled to contribution from devisees, for the payment
of debts due by simple contract, ii. 260.
7. Personal property appointed by person having a general power forms part of h ; s
assets, ii. 302, 304.
But there must be an actual execution of the power, ii. 304.
Since Sir J. Romilly's Act, freeholds appointed by persons having general power
are assets, ib.
Even for payment of simple contract debts, ib.
But assets, become such by an appointment, only applicable after the assets
really the property of the appointer, ib.
But a bona tide purchaser from appointee will be preferred to creditors, ib.
Reason given by Sir \V. Grant, M. R., ii. 304, 305.
Creditor having a preference on legal assets, postponed until other creditors are
put upon an equality out of equitable assets, ii. 305, 312. See Marshalling.
Assets of dit-etis, il partner equitable assets, as between his executor or administra-
tor and creditors of firm, ii. 314-316. See Partnership.
ASSIGNMENT. See Equitable Assignment — Mortgage.
BOUNDARIES,
Jurisdiction of the court to issue commission to ascertain, ii. 618.
Origin of it, ii. 618, 619.
Mere confusion of boundaries not sufficient ground for commission, ii. 619.
Refused in the case of parishes and manors, ib.
Some equity must be superinduced, ii. 620, 624.
Fraudulent encroachment of one of the parties, ii. 621, 624.
Tenant neglecting to preserve the boundaries between his own aiid his landlord's
lands, ib.
Or tenant for life, ib.
Semble, even in the case of tenant or lessee of one manor being owner of another, ib.
One individual holding lands belonging to several offices, ib.
Relief granted against volunteers, ii. 622.
Or purchasers with notice, ib.
Principle of the cases, ib.
Plaintiff must show that some portion of the lands are in possession of the de-
fendant, ib.
And plaintiff's title to some lands in possession of the defendant must be estab-
lished by admission or evidence, ib.
Commission or issue directed, ii. 623.
Necessity for the court's assistance must be shown, ib.
Equity also interposes to prevent multiplicity of suits, ib.
Review by Lord Cottenham of the doctrine laid down in the principal case, ib.
Semble, court has jurisdiction as to lands in our colonies, ib.
Relief when lands, out of which rents are payable, caunot be discovered, ii. 624.
CHARGE OF DEBTS. See Assets.
What amounts to charge of debts, ii. 267, 297.
of legacies, ii. 266, 277.
CHARITY,
No marshalling of assets for, ii. 215, 265. See Marshalling.
G92 INDEX.
CHOSE IN ACTION. See Equitable Assignment.
COMPENSATION,
Specific performance with. See Specific Performance, 1 — Penalties and For-
feitures, Belief Against.
COMPROMISE,
In the nature of a family arrangement, to save the honor of a family, generally
maintained, iii. 388, 389, I"-.
Of doubtful claims npheld, iii. 389, 406, 407.
Bv the civil law, iii.
Law of Scotland, ib.
Our own law, ib.
Adequacy of the consideration immaterial, iii. 389, l 11 ?, 408, 117, 418.
Distinction between mistake of law and mistake of fact, iii. 390, ill.
In the case of compromises, esp< cially in the nature of a family arrangement, ignor-
ance of fact or law, common to all parties, immaterial, iii. 300, 391, 30'2, 411-
II I. U9-421.
Doulitful question of construction may be Bettled by compromise, iii. 302, 111.
As to payment made under mistake, ii. 390, 392, 411-414.
Lord King's decision in La ■■t ■•' ignorance of the law was a