equally in morals and law, as unjustifiable as the affirmation of what is known to be positively false. And even if the party innocently mis-states a material fact, it is equally conclusive, because it operates as a surprise and imposition upon the other party, 1 Story's Eq. Juris. sec. 193.

With regard to undue concealment, or suppressio veri to the injury or prejudice of another, Kent says: "As a general rule, each party is bound, in every case, to communicate to the other his knowledge of material facts, provided he knows the other to be ignorant of them, and they be not open and naked, or equally within the reach of his observation." 2 Kent's Com. p. 482. Story (1 Story's Eq. Juris. sec. 207,) objects to this definition as too broad; "for," says he, "many most material facts may be unknown to one party, and known to the other, and not equally accessible, or at the moment within the reach of both; and yet contracts founded upon such ignorance on one side, and knowledge on the other, may be completely obligatory. Thus, if one party has actual knowledge of an event or fact from private sources, not then known to the other party, from whom he purchases goods, and which knowledge would materially enhance the price of the goods, or change the intention of the party as to the sale, the contract of sale of the goods will nevertheless be valid." The true ground for relief in such cases seems to be, the suppression of facts, which one party, under the circumstances, is bound, in conscience and duty to disclose to the other party, and in respect to which he cannot innocently be silent. Mr. Eden discusses, at some length, the various cases of fraud, including duress, poverty and ignorance of rights, weakness of intellect, religious delusion, drunkenness, and the taking advantage of persons in fiduciary situations. As these subjects are severally treated with great fullness of detail in the notes, I shall not repeat them here.

4. DOCTRINE OF RELIEF FROM PENALTIES.

Our author next treats of the doctrine of relief from penalties. The general principle now adopted, may be stated thus: Wherever a penalty is inserted merely to secure the performance or enjoyment of a collateral object, the latter is considered as the principal intent of the instrument, and the penalty is deemed only as accessory, and consequently as intended only to secure the due performance of it or the damage really incurred by the non-performance. The ground of relief in such cases is, that compensation cannot be made. If it can be made, then, if the penalty is to secure the mere payment of money, equity will relieve the party upon paying the principal and interest. The

penalty being designed as a mere security, if the party obtains his money, or his damages, he gets all that he expected, and all that, in justice, he is entitled to. But on the other hand, the party entitled to the security of the penalty, is aided, wherever the other party has unreasonably deprived him of his right to enforce it. A common instance of this species of relief, is that which is given against a clause of reentry for non-payment of rent. This has been a ground of equitable interference from the earliest times.

In most cases, there is a full remedy at law for the recovery of rent. Not, however, in cases where it must be apportioned-where there are adverse claims-where there is a confusion of boundaries. Fonb. (Eq. b. 1, ch. 3, sec. 3,) observes, there are cases in which a resort to a court of equity may be salutary, and perhaps indispensable, as where the premises out of which the rent is payable, is uncertain, or where the distress is obstructed or evaded by fraud, or where the rent is issuing out of a thing of an incorporeal nature, as tithes, where no distress can be made; or where a discovery may be necessary, or where an apportionment may be required, in order to attain complete justice. North v. Earl of Stafford, 3 P. W. 148; Benson v. Baldwin, 1 Atk. 598; Halford v. Hatch, Dougl. 183; Goodard v. Keate, 1 Vern. 27. And where the plaintiff has been forced into an usurious penal contract, the court will hear his complaint, and will order delivered up and cancelled any security he may have given, but it will be upon condition of paying the money justly due the usurious lender, deducting the usurious interest.

As courts of equity on the one hand interpose to restrain the recovery of penalties, the principles of equal justice require on the other, that they should enforce the specific performance of the act agreed to be done, or restrain from the doing of that which it was agreed should not be done.

The necessity of some judicial authority to explain the obligations which men owe each other, and to enforce the performance of them, is obvious. Courts of common law take cognizance of the subject, and regard them as capable of being contracted in two ways, viz.: by deed, in which case they are denominated covenants; or by writing signed, but not under seal, or by word of mouth. by word of mouth. The legal remedy upon the breach of such agreements is pecuniary in the shape of damages, proportioned to the injury sustained. But such relief would often be very inappropriate and inadequate. Chancery, therefore,

being capable, by its control over the parties, of compelling execution of the contract, has assumed a jurisdiction to afford that more specific and satisfactory species of relief. Besides its being necessary that the

court should be satisfied of the plaintiff's right, it must also appear that the legal remedy, if any can be obtained, would be inadequate. In some instances, that remedy may be more appropriate than equity can afford; and, therefore, it must be assured that, under all the circumstances, it is equitable to give more relief than the applicant can obtain at law. It is where the plaintiff, to have full justice, requires that the contract should be specifically performed, and where a breach of it would be productive of irreparable injury, that equity so interferes. If it would be inequitable, on account of extrinsic circumstances, such as accident, mistake, or fraud, it would not grant a specific performance. "It is satisfactory to observe," says Jeremy, (Eq. Juris. p. 425,) "that where this court does not conceive itself justified in interfering, by its refusal so to do, it inflicts no injury on the plaintiff, for no decision is thereby made which can affect his right to any other redress by way of damages to which he may be entitled at law. Where, however, the contract is such as this court approves, and there are no peculiar circumstances attending the same, it is as much of course, in a court of equity, to decree a specific performance, as it is to give damages at law; for although it is truly said to be a matter of discretion whether this court will decree a specific performance or not, yet it is to be remarked that such discretion is not arbitrary, but is exercised in a judicial manner according to established rules."

5. JURISDICTION OF EQUITY IN ACCOUNT.

Another ordinary head of equitable jurisdiction is that of account, upon which courts of law being unable to afford so complete a remedy as courts of equity, a concurrent, and in some respects an exclusive jurisdiction, has been assumed by the latter.

Courts of equity exercise a general jurisdiction in all cases of mutual accounts, upon the ground of the inadequacy of the remedy at law; and have extended the remedy to a vast variety of cases to which the remedy at law never was applied. So that now the jurisdiction extends, not only to cases of an equitable nature, but to many cases where the form of the account is purely legal. 1 Story's Eq. Juris.

442.

At common law, an action of account lay only in cases where there was either a privity in deed by the consent of the party, or a privity in law. There was an exception to the rule in favor of trade and commerce allowed between merchants. But in cases of this nature, there was an established privity of contract. "So strictly was this privity of contract construed," says Story, (2 Equity Juris. sections

445, 446,) "that the action did not lie by or against executors and administrators. And it was not until the 3d and 4th of Anne, ch. 16, that it lay against executors and administrators of guardians, bailiffs and receivers. And no action of account lay at the common law against wrong-doers; or by one joint tenant in common, or his executors or administrators against the other, as bailiff, for receiving more than his share; or against his executors or administrators, unless there was some special contract between them, whereby the one made the other his bailiff; for the relation itself was held not to create any privity of contract by operation of law."

6. WHERE DECREE FOR ADMINISTRATION OF ASSETS.

Another instance of interposition against the prosecution of a legal right is where there has been a decree for the administration of assets. "The word assets is derived from the French word assez, which means sufficient or enough; that is, sufficient or enough in the hands of the executor or administrator to make him chargeable to the creditors, legatees and distributees of the deceased, so far as the personal property of the deceased extends, which comes to the hands of the executor or adininistrator for administration. In an accurate and legal sense, all the personal property of the deceased, which is in a saleable nature, and may be converted into ready money, is deemed assets. But the word is not confined to such property, for all other property of the deceased, which is chargeable with his debts or legacies, and is applicable to that purpose, is, in a large sense, assets. It has been said that the whole jurisdiction of courts of equity in the administration of assets, is founded on the principle, that it is the duty of the court to enforce the execution of trusts; and that the executor or administrator who has the property in his hands, is bound to apply that property to the payment of debts and legacies; and to apply the surplus according to the will of the testator, or, in case of intestacy, according to the statute of distributions; so that the sole ground on which courts of equity proceed in cases of this kind, is to be deemed the execution of a trust." Story's Eq. Juris. secs. 531, 532.

7. DOCTRINE OF ELECTION.

As to compelling a plaintiff to elect in which court he will sue, "a question," says Mr. Eden, "has frequently been raised, whether the court would restrain the mortgagee from suing at law upon the bond after foreclosure, where the mortgaged premises have not been suffi

cient to pay the debt; and it has been insisted, that the mortgagee, by foreclosing and taking the pledge, has made his election, and relinquished his right to the personal remedy. The better opinion seems to be, that, though this proceeding opens the foreclosure, yet the court will not restrain the mortgagee from proceeding for the difference."

On this subject, Kent (4 Kent's Com. 182, 183,) remarks: "If the mortgagee proceeds by bill for the technical foreclosure, the estate becomes his property, in the character of a purchaser; and the general understanding formerly was, that by taking the pledge to himself, he took it in satisfaction of the debt. But according to the case of Took v. Hartley, 2 Bro. 125, if the mortgagee sells the estate, after the foreclosure, fairly, and for the best price, he may proceed at law against the mortgagor, upon his bond for the difference; though he cannot have recourse at law for deficiency, so long as he keeps the estate, because the value of it is not ascertained, and the mortgagee cannot say what proportion of the debt remains due. It has likewise been repeatedly held, that an action at law, by the mortgagee, after foreclosure, for the balance of the debt due him, opens it, and lets in the mortgagor to redeem. There has been some embarrassment and conflict of opinion manifested in the cases, on the point whether the mortgagee had his remedy at law after foreclosure, and without a sale of the estate. The better opinion is, that after a foreclosure, with or without a subsequent sale, the mortgagee may sue at law for the deficiency, to be ascertained in the one case, by the proceeds of the sale, and in the other, by an estimate and proof of the real value of the pledge at the time of the foreclosure. Whether the action at law will open the foreclosure in equity, and let in the equity of redemption, is an unsettled question. The weight of English authority would seem to be, that it opens the foreclosure, unless the estate has, in the meantime, been sold by the mortgagee; and then, it is admitted, that the power of re-conveyance is gone, for it would be inequitable to open the foreclosure against the purchaser."

8. RESTRAINING CRIMINAL PROCEEDINGS.

It is an established rule that an injunction, or any order in the nature of an injunction, will not be granted to restrain proceedings in a criminal matter. Accordingly, in the case of Lord Montague v. Dudman, Lord Hardwicke allowed a demurrer to a bill for an injunction to stay proceedings on a mandamus, issued to compel a lord of a manor to hold a court: "the court," he said, "has no jurisdiction to grant an in