of the remarks of Mr. Justice Story, we cannot help thinking that upon this subject equity follows the law much more closely, than the language generally used would lead one to suppose. The contract which Lord Macclesfield enforced in the case above quoted, was perfectly good in itself at the time of its creation; it became suspended at law, because at law the wife and husband are of necessity one and the same person; but not in equity, because the same technical rule is not in force. Another case frequently quoted is, Winged v. Lefebury,1 in which a tenant in fee made a lease and covenanted for himself and his heirs to renew. He sold the reversion. The lessee died. In this position of the parties, there could be no action at law for the representatives of the lessee; but a decree for specific performance of the agreement to renew was made in equity. Sir Edward Sugden, in his work upon Vendors and Purchasers, quotes several other cases. But upon all of them there arises this remark, that the agreement was not, in itself, bad at law. That there was a difficulty in enforcing it, on account of the peculiar circumstances which had arisen, but that in itself it was a good agreement. In considering the uniformity or discrepancy supposed to prevail between law and equity upon this subject, we must pay attention to the position of parties, to the forms of pleading, and to the general machinery of the respective Courts. Just as upon the subject of evidence,3 we endeavoured, in a recent article, to show that if these peculiarities are fairly weighed, there is no difference between the rules of the two Courts. Equity," says Sir Edward Sugden, "cannot contradict or overturn the grounds or principles of law." We suggest the consideration above mentioned, as one which removes all difficulty upon the question. Equity would contradict law, if it declared that to be an agreement, which law declared to be a nullity; it does r do so by merely carrying into effect that which law does not deny to be an agreement, but is prevented from enforcing by its peculiar forms, and by the want of proper machinery. 4 The same consideration supports the harmony between law and equity, upon many other subjects mentioned in this 12 Eq. Ca. Ab. 32. 2 V. and P. p. 213. 4 V. and P. 214. chapter. A contract, not in writing, is no ground for damages at law; but why? because at law there can be no discovery. In equity, the defendant confesses the agreement in his answer, and the court acts upon the confession, which is held to be a sufficient compliance with the statute. It is enacted in the statute, not that the verbal agreement is a nullity, but only that it is not to be the subject of an action. Nor is it inconsistent with this distinction, that, if the answer sets up the statute, no decree can be obtained upon the confession of the agreement. "Quisque renuntiare potest juri pro se introducto." By confessing the agreement and omitting to set up the statute as a defence, the defendant is assumed to waive the benefit which the statute supplies. Similar observations arise upon the doctrine of part-performance. If a person were allowed to enter upon property and enjoy it, and afterwards to give it up, because the agreement under which he entered was not in writing, he would be disappointing the expectations which the vendor had justly formed from his conduct. Or if the vendor, having allowed him to enter and to spend upon considerable sums of money, could then expel him by process of ejectment, very serious injustice would be done. Courts of Equity enforce the agreement in each case; still without violating the statute, for they found jurisdiction, not upon the verbal contract, but upon the acts done, the partial enjoyment, or the outlay in improvements. The principles established upon all these questions are most carefully developed in the work before us, and the advantages, derived from equitable interference, are put into powerful contrast with the meagre relief attainable in a Court of Law. 1 it In the chapter on Interpleader our author remarks with great ability upon a leading principle which in other treatises has not been sufficiently explained. "In cases of tenants seeking such relief, (i. e. relief by interpleader,) it must appear that the persons claiming the same rent, claim in privity of contract or of tenure." Again, "let us suppose that two persons should claim the same property under independent titles, not derived from the same common source; the question would then arise, whether a third person, bonâ fide and lawfully in possession of the property as the agent, consignee, or bailee of one of the parties, could maintain a bill of interpleader against the different claimants standing in privity with one only of them. It would seem that he could not; and that the analogies of the law and the doctrines of Courts of Equity equally inhibit it, "The question which is here examined arises in this way. A person lets land to a tenant, and commits property to the custody of an agent, and, when he comes to ask rent for the one, or the restoration of the other, is met by a bill of interpleader. Then it is for the tenant or agent to show that the relation which subsisted at the time of the lease or bailment, has been changed by some subsequent act. A tenant cannot dispute his landlord's title. A servant must conform to his master's orders. These relations, and the duties belonging to them, continue unchanged until some act is done by landlord or master." We have no space for a lengthened notice of the chapters upon bills of quia timet, bills of peace, or injunction. But under the latter head there is one passage applying with so much force to one of the crying sins of the day, that we must call to it the especial attention of our readers. It respects the publication of private letters, and the claim of the receiver to use them as he pleases : "A question has been made, and a doubt suggested, how far the like protection ought to be given to restrain the publication of mere private letters on business or on family concerns, or on matters of personal friendship, and not strictly falling within the line of literary compositions.1 In a moral view the publication of such letters, unless in cases where necessary to the proper vindication of the right or conduct of the party against unjust claims, or injurious imputations, is perhaps one of the most odious breaches of private confidence, of social duty, and of honourable feelings, which can well be imagined. It strikes at the root of all that free and mutual interchange of advice, opinions, and sentiments, between relatives and friends, and correspondents, which is so essential to the well being of society, and to the spirit of a liberal courtesy and refinement. It may involve whole families in great distress, from the public display of facts and circumstances, which were reposed in the bosoms of others, under the deepest and most 1 Perceval v. Phipps, 2 V. & B. 24, 27, 28. affecting confidence, that they should for ever remain inviolable secrets. It may do more, and compel every one in self-defence to write, even to his dearest friends, with the cold and formal severity with which he would write to his veriest opponents, or most implacable enemies. Cicero has with great beauty and force spoken of the grossness of such offences against common decency. Quis enim unquam, qui paulum modo bonorum consuetudinem nôsset, literas ad se ab amico missas offensione aliquâ interpositâ in medium protulit palàmque recitavit? Quid est aliud tollere e vitâ vitæ societatem, quàm tollere amicorum colloquia absentium? Quàm multa joca solent esse in epistolis, quæ, prolata si sint, inepta videantur! Quàm multa seria, neque tamen ullo modo divulgenda.' It would be a sad reproach to English and American jurisprudence, if Courts of Equity could not interfere in such cases."1 We have already occupied so much space, that we can do no more than mention the heads of the several subjects discussed under the latter divisions of the works. Under the head of the exclusive jurisdiction, we find trusts express and implied, trust terms, mortgages, rights of assignees, wills, testaments and legacies, election and satisfaction, charities, relief from penalties and forfeitures on the non-performance of conditions and covenants; the proceedings in respect of the peculiar relations and personal character of parties, as infants, idiots, lunatics, and married women; and proceedings upon certain writs, as the writ ne exeat regno and supplicavit. The last head is the auxiliary or assistant jurisdiction; which, our author says, is exclusive in its own nature, but, being applied in aid of the remedial justice of other courts, may well admit of a distinct consideration—as bills of discovery, and bills to preserve or perpetuate evidence. We strongly recommend the entire work to the perusal of our readers. In the work upon equity pleading we found excellent arrangement, a clear statement of cases, and a satisfactory explanation of all received doctrines. In this work, far higher qualities have been displayed. Maxims are laid down and traced in their operation. The history of the jurisdiction is stated, the principles are developed upon which it is maintained, and the entire equitable 1 Vol. ii. p. 221. 2 Vol. ii. 629. 84 Story's Commentaries on Equity Jurisprudence. system assumes a philosophical character, with which it has never been invested by any preceding author. The student finds an easy introduction to all the principal characteristics of equitable doctrines, and, while he learns to view them with interest, is invited to further and more accurate investigation. "Let not, however, the ingenuous youth imagine that he also may here close his own preparatory studies of equity jurisprudence, or content himself for the ordinary purposes of practice with the general survey, which has thus been presented to his view." It would be impossible, within the compass of such a treatise as this, to supply so elaborate a dis cussion upon the subject, as not to leave ground for this observation. But our author has unfolded the map, and has pointed out the first landmarks and the main roads. The student must take his own course in following the several byepaths and intricate windings into which men are driven by the business and vicissitudes of life. "The minute details, the subtile contrivances, and the various arrangements, which are adapted to the general exigencies and conveniences of a polished society, remain to invite the curiosity of the student, and to stimulate his love of refined justice." THERE are few branches of the law which embrace a greater variety of topics or involve a greater complication of legal principles, than that concerning the relation of landlord and tenant. At the same time there is scarcely one of which a practitioner is required to have a more accurate knowledge, or in which a more ready application of that knowledge is called for. It is proposed, at present, with a view chiefly to the convenience of our country readers, to treat generally of those points which more immediately relate to the determination of a tenancy by a notice to quit. A notice to quit is necessary wherever there is a holding as tenant for any indefinite term. This proposition involves two IV. ii. p. 747. |