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attention; and I can say, with those who say there is a moral excellency in the whole code, it has 'a sacred regard for private property and public order. It enjoins the faithful performance of contracts, ordains the prompt administration of justice, and requires the unsullied purity of the mercantile character. As to its severe treatment of insolvents and bankrupts, and the rights allowed to married women, we are to consider they are calculated for France, are the old French law improved, and are not calculated for Federal America.

This ninth volume is made up almost entirely of decisions in law and equity, American and English, made in supreme courts within the last nine years, and is taken from more than thirty volumes, among others, of the latest reports of which there is no other abridgment. The author has found no occasion to add any new chapters, and but very few new articles; hence the parts of this ninth volume are almost invariably additions to the articles and sections in the eight volumes. In the eight volumes, the author copiously included ancient law, because now found in but few law libraries, and yet is law, and a large portion of Maine and Massachusetts law. He, in this additional volume, has found room to include a larger portion of the laws of other States in the Union, as far as judicial decisions have been reported. After all, as formerly observed, the enactment of near thirty legislatures, and the decisions of as many supreme courts, are so extremely numerous in nine years only, that a large volume can be but a mere sketch of them; and this with a view mainly to show the spirit and principles of the laws in our several States. As the union of our States, on republican principles, is the first object, and the sameness of leading principles throughout the whole, are essential to that union, the author often takes occasion to notice and enforce those principles; and, of course, to select largely from those laws and constitutions best calculated to bind the States together on federal and republican principles. He can hardly realize that one sister State in this Union ought to view another as a foreign State. In this ninth volume, as in the others, the more important cases are abridged, the less important are often only digested. In it are a suitable index and table of cases, but no table of contents; as, to most of the matter in it, the table of contents in the first volume applies.

'This volume is formed so as to be used by itself, but to the best advantage with the other eight, as each part in it is in continuation of the corresponding part in them, and to them expressly refers in each case; and in them all the heads of the law were so included, that it has been found necessary to introduce but one new one in this volume.

General Abridgment




$i Continued. See Art. 54, this chapter. This subject, Art. 1. as to impairing the obligation of contracts, continued on new Continued. and late authorities, in which eminent judges have differed as to what constitutes the binding force or obligation of contracts made in society; hence, when do State legislatures impair them or not. The latest decision is this, a State legislature impairs a contract when it enacts a law affecting it after it is made; otherwise, if the contract is made after the law is enacted, for then the parties know the law, and inake their contract subject to it. See a. 2, s. 5 con.

2 Con. The legality or illegality, as well as construction Art. 2. of contracts, must depend on the lex loci where executed, Con. unless it appears from the contract itself, that it was the under-1 Nott and standing of the parties that it was to be executed elsewhere,

overwted alsouboro M'Cord, 173page 142, a sound price requires a sound commodity. This is the rule of the civil law adopted in South Carolina and some other States, but not in a majority of these.

$ 5. A. D. 1828. Impairing contracts. It will be observed that the article in the territorial ordinance, makes provision that no law shall be passed that shall affect private contracts previously made; that is, contracts made before the passage of the law, not those made after. This provision does not contain the distinction between a contract and its obligation. It is a matter of history, that pernicious tender laws had been made in most

1. Ch. 1. of the thirteen States before July, 1787, empowering the debtor

Art. 2. to tender depreciated paper money, pine barren lands, and Continued, other property of little value, in discharge of his debt and con

tract. These gave rise to this provision. This enormous evil was in each of these laws, in general; so discharging debts and contracts made before it was enacted, as well as those made after. As this was a new provision of the kind, it was thought best not to extend it further than that evil required.

It will also be observed, a similar provision in principle, in the 1st article and 10th section of the federal constitution, is very general, which is, that "No law shall be passed impairing the obligation of contracts.' This differs from the ordinance in two material points; one, this section makes the distinction between the contract and its obligation; the other, it does not make the distinction between contracts made before and after the passage of the law. Every day this provision in this 10th section is becoming very important; already discussions and opinions have grown out of it, that fill hundreds of pages. It is desirable to learn, if possible, why the Federal convention distinguished between the contract and its obligation, and why it did not distinguish between contracts made before, and those made after, the enactment of the law, meant to be inhibited. It is believed the public records can throw some light on this interesting subject. The Federal convention sat in Philadelphia from May to September 17th, 1787, and was in session there when this ordinance was passed in New York, and made public

in July that year. The members of the convention saw it, no 12 Wheat. 219. doubt, in that month. It is stated, that the first draft of this

10th section omitted this provision as to impairing the obligation of contracts, and that in an after draft it was inserted. Is it not the fair inference that the provision in the ordinance gave rise to that in the constitution ? Might not the Federal convention well think it was best to look to the obligation of contracts rather than to the contracts ? as this obligation and binding force of contracts, in its true and broad sense, is founded in reason and conscience, in moral principle, in men's intuitive perceptions, and in natural law, as well as in the municipal, of course universal; and because the obligation exists only in valid contracts, is a single universal principle in all valid contracts; hence expressed in the singular number, though properly the binding force of contracts in the plural; whereas numerous contracts exist de facto, which are void in law and even in equity, so in which there is no binding force or obligation, natural, civil, or municipal, in conscience or on moral principles; as usurious contracts, and thousands in fact made, but obtained by fraud or deception, or of persons incapable of contracting, or without consideration, &c. Might not the convention well think many contracts are made in society, the performance whereof is never I. Ch. 1. enforced in courts of law or of equity, on municipal obligation Art. 2. merely; as when a contract is made in one nation and its per- Con. formance enforced in another. For instance, A of London and B of Boston meet in China, do business there, and A, getting fairly in debt to B in $1000, gives him a note for that sum, to pay on demand ; no place of payment is named ; they meet in New York; B there sues À; the contract appears a fair one, for value received; what court in law or equity in that State, or any other, would ever think of even attempting to compel performance on the municipal law of China, as constituting its binding force or obligation, or even to inquire after that municipal law? When, too, it is probable that neither China or any other nation ever enacted a law to give binding force to such a contract, or thought to distrust its natural, inherent, intrinsic obligation, far more permanent, universal, and invariable than human legislation or law enacted. In fact the civil or municipal obligation is a human work; the natural one is a divine work. Might not the convention well mean so to establish this constitutionally, as that it should never be impaired by State enacted law, which had done but little for several years, but wrong creditors and favor debtors, men whose habits or management too often make them embarrassed debtors, defending themselves, and defended, under the compassionate plea of the unfortunate, not often a plea for the creditor.

As to the other distinction, might not the convention well think the restraint too limited, if confined to contracts previously made, that is, to those only made before the passage of the insolvent or other impairing law, as it was clear such contracts would soon be very few; for instance, a State passed an insolvent act before or when the convention was sitting, as some States did, to restrain such act to the contracts made before it was passed, these obviously in a few years would be performed, outlawed, or otherwise cease to exist in any number deserving notice, much less such a solemn constitutional provision. Therefore the convention omitted the distinction, previously, made in the ordinance; and provided the whole American people might establish forever the natural obligation of contracts founded in the correct moral law of mankind, not merely the municipal or enacted obligation, that could so easily and almost entirely be modified by State legislatures. Admit the correct legislation of the State generally, still, if there be but one bad legislation in fifty, such a constitutional restraint on that is necessary and proper.

$ 6. All contracts must be good, or valid, at their original creation, and must not depend on subsequent contingencies. The law will not suffer a gratuitous act of kindness or benevo


1. Ch. 1. adjudged bad; but a plea of this act of limitation of MassaArt. 7. chusetts may be good. In this case the principles of the ler Con. fori were discussed and examined at large, and scores of au

thorities cited. 1 Hop. Ch. R. $41 Con. Equity never compels a conveyance of a doubt436—450. ful title ; and the chancellor says, the equitable jurisdiction is 530, 551.

not to make or to vary contracts, but to carry them into effect, and to do substantial justice between the parties by measures and methods of relief, which the courts of law do not afford.' This was an ordinary contract for the sale of lands, part paid, notes given for the balance. Vendor made and delivered his

deed as an escrow, and retained the title till paid. Performance Leggett v. . decreed on terms after long delay. He added, "It is a rule of Edwards & al.

equity, that when time is not of the essence of a contract, and just compensation may be made for delay, the party omitting to perform at the time appointed, shall not forfeit his rights, but shall have relief upon terms of indemnity to the other party.' Terms, usually, payment with interest and all equitable costs. There are numerous authorities to support these general prin

ciples. 1 Jacob & W. Specific performance decreed without costs, the abstract

delivered not containing a satisfactory title ; and p. 263: P. 74. if trustees make an agreement by mistake, to sell for an inadequate consideration, the court will not compel them to perform : P. 422, the motive inducing a party to enter into a contract is not to be considered, unless in the contract itself expressed : P. 569. in compelling a purchaser to take a title, the court formerly acted on its own opinion, but now it will not compel him to take it if the point be doubtful.

$ 52. A contract tainted in part by misrepresentation is void

in toto : As where A obtains an agreement by a partial misre- 1 Jacob & W. presentation, he is not entitled to a specific performance on

112-121, Cler- waiving the tainted part—the effect is not to modify the agreemont o. Tas-mont na burgh.

18. ment pro tanto, but destroys it entirely. 1 Jacob & W. Equity does not interfere in every breach of contract, though 370, 371. a party may be entitled to large damages ; cases of specific

performance or irreparable damage excepted. 2. Courts of law and equity can only enforce the rights of parties under acts of parliament by applying their known rules and principles : if inadequate to that purpose, the legislature alone can supply the defect.

53. So a contract is void if the parties to it bind them

selves to invade the rights of others. As where the plts. owned Ard & al. v. nine sixteenths of a ship and were managing owners, by Hope, 2 Barn. deed sold five sixteenths to the deft. : the plts. covenanted the

deft. should be master of her, and he covenanted the plts. should 676.

continue managers and choose the tradesmen and appoint all

& Cres. 661.

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