fic in their nature. Equity acts both in personam and in rem; in personam by using its power to compel such course of action as will place the parties in the position in which they would have been upon a faithful performance of their obligations; in rem, by making the specific property itself amenable to the enforcement of the claims by which it should have been affected according to the intention of the parties. As long as the property remains in the hands of the person against whom the claim first arose, the enforcement of the remedy will encounter little obstacle, but it becomes complicated with other legal principles where the property has been transferred to other hands A new claim of ownership is then opposed to an equitable claim which has not yet ripened into a right of property. To make a piece of property absolutely liable to such equitable claims, would have the effect of tying it up in the hands of the first holder, and as the claims might be unknown, would impede the safety of transfers by intolerable risk and uncertainty, while on the other hand, the absolute discharge from the obligation by any, even a fraudulent transfer would render the equitable remedy nuga tory. In such a conflict the policy of the law naturally supports the facility and security of transfers, and it is therefore a fundamental principle, that a purchaser takes property discharged of equitable claims. Equity, however, qualifies this principle by suspending its operation wherever the purchaser is cognizant of the claim against the property. He is then a purchaser with notice, and equity proceeds against him precisely as if he himself had originally become liable to the claim. The doctrine of notice is thus a powerful aid to the administration of equity by specific remedies, and as such it has been developed and nursed to such an extent that its eligible operation must often appear doubtful. The difficulty is one arising from the co-existence of the two separate, and still to some extent, conflicting systems of law and equity, and while the problem of its solution is not yet finally settled, it cannot be doubted that the weight of authority and legislation at present favors the protection of equitable claims above the utmost facility and safety of transfers. (Concluded.) COLUMBIA LAW TIMES. FOUNDED BY PAUL K. AMES AND T. GOLD FROST. PUBLISHED MONTHLY DURING THE COLLEGIATE YEAR Subscription, $2.50 per year. Single Number 35 cents. EDITORS : WILLARD C. HUMPHREYS. JOHN N. POMEROY CORRESPONDENTS: John L. Quackenbush, T. R. Graham, G. H. Renfro, F. A. Hopkins, G. A. Katzenberger, C. van V Veeder, R. A. Russell, R.J McCarty, Harvard Law School. New York University Law School. University of Penn. Law School. University of Michigan Law School. Illinois Wesleyan Law School. that course was intended to comprise; but it seems to us that after the recent announcement of the curriculum it was time for all feeling of hesitation to be dispelled. We admit that the desire on the part of those among us who intend to start in their legal career outside of New York City, to locate themselves as soon as possible, has something to be said in its favor; but we speak not so much of these as of such as propose to practice in this city. These latter, we are confident, will find that an hour per diem spent in listening to distinguished specialists on important subjects, of which it has been possible hitherto for our graduates to be in complete ignorance, will not be time lost. We believe, in fact, that everything that could reasonably be expected has been done to render the additional year the most practical and the most interesting of the three. Of the new members of the faculty it is not our purpose to speak. We will only say that Prof. Keener is recognized as one of the ablest legal educators in the country, and we are assured that there is no one in the faculty of the Harvard Law School whose absence would be more keenly regretted than his will be by the students of our ancient rival on the banks of the Charles. CASE NO. 10. SARAH BENTON and JANE BENTON, Appellts. VS. WILLIAM JOHNSON, as Executor, &c., and JOHN ELMER, The following facts appeared upon the trial of this action. The grandfather of the defendant Elmer made a will by which he gave all the residue of his estate, after the payment of certain small legacies to said Elmer with remainder over to the plaintiffs herein, the daughters of the testator and also his only next of kin and heirs at law, in case said Elmer should die under the age of twenty one years, unmarried and without issue. The said Elmer, fearing that his grandfather would change his will, killed his grandfather by poison for which offence he was tried and found guilty of murder in the second degree, but, by reason of his youth, being only sixteen years of age, he was not sent to a State prison but to a Reformatory, from which he has since been released. The will of said testator was duly admitted to probate. This action is brought to restrain the executor from paying over any part of said testator's estate to said Elmer; and to restrain said Elmer from in any manner interfering in said estate and to declare PARSONS ON CONTRACTS. Section I. Appropriation of payments. There are two conflicting theories as to the appropriation of payments, when no action has been taken either by debtor or creditor. One is that the court should regard the interest of the creditor, on the principle that the money having been paid in by the debtor is now the creditor's money and it should be applied presumably for his benefit. This view is represented by decisions in the Supreme Court of the United States. Field vs. Holland, 6 Cranch, 8. This case is also reported in Ist American Leading Cases, 281, with an elaborate note. The other theory is that of the Roman Law, presented by the great Roman jurist Ulpian. His argument was that the debtor's interest should be mainly regarded under the Christian maxim, that one should do unto others as he would like under similar circumstances, to have done to himself. This was followed in Pattison vs. Hull, 9 Cow., 747-755. It is not deemed, however, to be a perfectly sound basis for the rule, since it might be just as well applied in favor of a creditor. The question has also been raised, where the right of third person involved, e. g., a surety. On the one hand it may be claimed that the payment should be used in his exoneration. On the other hand it may be well argued that such an appropriation would be greatly to the prejudice of the creditor, since an unsecured debt might be uncollectable. There appears, however, to be a conclusive argument against the claim of the surety on the ground that no one has any voice in the appropriation except the parties, that is the debtor or creditor. There may sometimes be special circumstances to overcome this doctrine, but this is the general rule. There is a treatise called Munger on Application of Payments where this subject is treated. See page 74. The rule for computation of interest in the case of part payment, is clearly stated in note to 3 Cow., 86. The rule is to "calculate interest on the principal up to the time when the payment has been made. Add this interest to the principal and then deduct the payment, without regard to the time when made, whether before or after the expiration of the year." This rule is only to be adopted in cases where the payment equals or exceeds the interest due. When the payment falls short of the interest due, interest must be calculated on the principal up to the time when the payments will overrun the back interest, and then deductions will be made. Section II. Breach of contract by a refusal to perform, or by incapacitating oneself to perform before the day of performance arrives. There is a class of cases where a party to a mutual contract announces to the other party his intention, before the time for the performance arrives, not to perform the contract. It is held that such a renunciation gives the opposite party an election to bring an immediate action for a breach of contract, or to hold the party to the contract until the stipulated time arrives. This view when first announced was much criticised, but it is now settled that, even before breach, there is a contract obligation by each party not to do anything inconsistent with the existence of the relation. This is illustrated by an engagement to marry at a future day. In the interim, the parties impliedly agree that no act shall be done by either of them towards the other, inconsistent with the existence of the relation. The pioneer case is Hochster vs. Delatour, 2 E. & B., 678. In this case the principle is not so fully disclosed as in the latter case of Frost vs. Knight, L. R. 5 Ex. 329, same case, 7 Still Ex. III. See also Wilkinson vs. Verity, L. R. 6 C. P., 206; 34 Barb., 378; 42 N. Y., 246; Howard vs. Daly, 61 N. Y., 362; 32 Law Times, N. S., 310. The same rule applies to a case where goods are deliverable by installments. A positive refusal is a breach of the whole contract. in estimating the damages, reference is to be had to the estimated market price of the goods when they should have been delivered. L. R., 8 C. P., 167. It will lie with the defendant to introduce evidence mitigating the damages. 13 C. B. N. S., 824. If the plaintiff elects not to treat the contract as broken, then it continues subject to all the rules that would have applied to it in case there had been no refusal. The defendant may then take advantage of any supervening circumstances which would, in ordinary cases, justify him in declining to complete the contract. 5 E. & B., 714; 6 E. & B., 953; 2 C. B. N. S., 563. In Johnston vs. Milling, L. R. 16 Q. B. D., 460, the point was considered as to what statements would amount to a repudiation of the contract. This case also held that the other party must elect to put an end to the contract, except for the purIt is doubtpose of an action for breach. ful how far the rule is applicable to a contract containing various stipulations. Performance or payment is of course an answer to an action of this kind. If the defendant has made tender of payment, costs cannot be exacted from him. A debtor cannot compel his creditors to give him a receipt in case of payment or tender; his only way to secure evidence is to take a witness. Tender after suit brought is now usually allowed, the creditor then paying the cash up to the date of tender. Impossibility of performance caused before breach by the promisor. This case closely resembles in principle that of a refusal before breach. It is an act done |
