General Principles.

been proceeded against on the contract, on the law side of the court, and a judgment had been obtained against him for a part of the money to be paid on the contract. Boyce v. Grundy, 3 Peters, 210.

103. It cannot be doubted that reducing an agreement to writing, is in most cases an argument against fraud; but is far from a conclusive argument. The doctrine will not be contended for, that a written agreement cannot be relieved against on the ground of false suggestions. Ibid. 104. It is not an answer to an application to a court of chancery for relief, in rescinding a contract, to say that the fraud alleged is partial, and might be the subject of compensation by a jury. The law, which abhors fraud, does not permit it to purchase indulgence, dispensation, or absolution. Ibid.

105. No action can be maintained against a master and part owner of a ship engaged in the slave trade, by his partners in the joint concern, nor against an agent who is a party to the ori ginal traffic, and has the proceeds in his hands. Fales v. Mayberry, 2 Gallis. C. C. R. 560.

106. If a ship be sold in a foreign port, to evade a forfeiture incurred to the United States, no action can be sustained on the contract of sale for the proceeds. Ibid.

107. A bill of exchange expressed to be collateral to a ransom bill, is a contract on which an action can be sustained at common law, the plaintiff and payee being an alien friend. In an action on such bill, the capture must be taken to be justifiable and the ransom regular. Maisonnaire v. Keating, 2 Gallis. C. C. R. 325.

108. In an action between the original parties to a contract, an assignment to a third person cannot be set up to defeat the defence of illegality in the original contract. Fales v. Mayberry, 2 Gallis. C. C. R. 560.

cannot be recovered, yet the various directions given by the defendants amounted to a new contract, which may be enforced, and the ship owner was entitled to equitable compensation for his labour, and expenses incurred by him prior to the 3d of March, from that time to the 19th June, and after the last day to January, 1814, when the flour was delivered to the order of the defendants. Wilson v. Le Roy, Bayard & M'Iver, 1 Brockenb. C. C. R. 447.

110. Equity will not enforce a contract which is not definite and precise in its terms, or reform a written contract by a previous one, by parol on the same subject; any variance will be presumed to have arisen from a change of intention, in the absence of fraud, mistake, or accident. 1 Baldwin's C. C. R. 487.

111. The written contract must refer to something to reform it, or there must be some matter of higher authority than the writing to authorize it. Ibid.

112. If a paper deliberately agreed upon to effect an object fails to do so, by the death of the party who was to do the necessary act, equity will not give a remedy by setting up a previous agreement. Ibid.

113. Equity will not construe a marriage contract differently from its terms, in favour of the parties to the marriage, though it is done in a similar case in favour of the issue. Ibid.

114. By an agreement, in consideration of an intended marriage, the portion of the wife was to be raised out of her real estate, of which her father was tenant by courtesy, by a sale, after she arrived at twenty-one years of age. The marriage took effect, the wife attained twentyone, and died two months afterwards, without any act done by her towards the completion of the settlement, or any request of the husband to the father to have it done. Held, that as the act must be a concurrent one, the party who claims a remedy for non-performance, must aver and prove performance on his part, or an offer and readiness to perform. Ibid.

115. Where there is no time fixed for the performance of a contract, the party desirous of performance must hasten it by request. lbid.

109. A charterparty was entered into during the war between England and the United States, and during the blockade of the Chesapeake by the British fleet, by which the plaintiff let his ship to the defendant to carry flour from Norfolk to Cadiz, and covenanted to deliver the flour, "excepting always the restraint of princes and rulers," and the freighters covenanted to pay the 116. The official bond given by an agent of freight. The ship was provided with a Sid- fortifications, whose appointment was irregular, mouth license," but the charterparty did not but whose office is established by law, though express it, and yet the fact was well known to void as a statutory obligation, is valid as a conthe defendants, who, as well as the plaintiff, re-tract to perform the duties appertaining to the lied upon the protection afforded by the license. The charterparty was dated January 31, 1813. After the ship was loaded, it was ascertained that the license would afford no protection against the blockading squadron. The defendants, on the 3d of March, 1813, directed that the ship should not proceed to sea under such circumstances; on the 19th, they directed that she should continue ready to prosecute the voyage as soon as the blockade should be raised; and finally, in January following, the blockade still continuing, they directed that the flour should be delivered to their order, which was done. Held, that the procurement of the license vitiates the contract as much as if it had been inserted on the charterparty. That, although freight

office of agent of fortifications, and is binding on his sureties. Contract is one of the means necessary to establish the institutions of government, and the capacity of the United States to contract is co-extensive with the duties and powers of government. Every contract which subserves to the performance of a duty may be rightfully made. The United States v. Maurice, 2 Brockenb. C. C. R. 96.

117. It is not essential to the validity of a contract between an individual and the government, that it should express the circumstances under which it is made, so precisely and distinctly as to show the motives which induced it, and the ob. jects to be effected by it. These are matters of evidence. Ibid.

R

Admission of Parol Evidence in Actions on Agreements in Writing.

2. Admission of Parol Evidence in Actions on Agreements in Writing.

118. It is a general rule, that an agreement in writing, or an instrument carrying an agreement into execution, shall not be varied by parol testimony. Hunt v. Rousmanier, 8 Wheat. 174; 5 Cond. Rep. 401.

written instrument, and to impose upon it a sense which its terms not only do not imply but expressly repel. Shankland v. The Corporation of Washington, 5 Peters, 390.

127. A party to a negotiable instrument, shall not be permitted, by his own testimony, to invalidate it. The Bank U. S. v. Dunn, 6 Peters, 51.

128. Parol evidence may be admitted to explain a written agreement, where there is a latent ambiguity; or a want of consideration may be shown in a simple contract; or to defeat the plaintiff's action, it may be proved by parol evidence that the note was assigned to the plaintiff in trust for the payor. Ibid. 57.

119. Parol evidence cannot be given to explain the terms used in written papers, which were set up to prove an undertaking of guarantee. Clarke v. Russell, 3 Dall. 415; 1 Cond. Rep. 193. 120. A parol exchange of lands, or parol evidence that a conveyance of land would operate as an exchange, will not convey an interest in land. Clarke v. Graham, 6 Wheat. 577; 5 Cond.ments must be ascertained by the tenor of the Rep. 192.

121. It has been decided, that in cases not within the statute of frauds, evidence may be given to contradict a written simple contract. But it may be doubted whether the safest rule is not to apply the reason and policy of the statute to all cases of written contracts. M'Culloch v. Girard, 4 Wash. C. C. R. 289.

122. Parol evidence is not admissible in an action of covenant of seisin, to prove prior claims on the land. Pollard v. Dwight, 4 Cranch, 421; 2 Cond. Rep. 157.

129. The meaning of parties to written instruwriting, and not by looking at a part of it; and if latent ambiguity arises from the language used, it may be explained by parol evidence. Leland et al. v. Wilkinson, 6 Peters, 317.

130. In the case of the Bank of the U. S. v. Dunn, 6 Peters, 51, the court decided that a subsequent endorser was not competent to prove facts which would tend to discharge the prior endorser from responsibility of his endorsement. By the same rule, the drawer of the note is equally incompetent to prove facts which tend to discharge the endorser. Bank of Metropolis v. Jones, 8 Peters, 12.

123. In an action upon a written contract, said to have been lost or destroyed, and not for de- 131. The United States instituted a joint acceit and imposition; the plaintiff's right to re- tion on a joint and several bond, executed by a cover is measured principally by the contract, collector of taxes, &c., and his sureties. The and the secondary evidence must prove it as laid defendant, the principal in the bond, confessed in the declaration. The conversation which pre-a judgment by a cognovit actionem, and the ceded the agreement forms no part of it, nor are the propositions or representations which were made at the time, but not introduced into the written contract, to be taken into view in construing the instrument itself. Had the written paper, stated to be lost or mislaid, been produced, neither party could have been permitted to show the party's inducements to make it, or to substitute his understanding for the agreement itself. If he was drawn into it by misrepresentation, that circumstance might furnish him with a different action, but cannot affect this. Tayloe v. Riggs, 1 Peters, 591.

124. When a written contract is to be proved, not by itself, but by parol testimony, no vague uncertain recollection concerning its stipulations, ought to supply the place of the written instrument itself. The substance of the agreement ought to be proved satisfactorily, and if that cannot be done, the party is in the condition of every other suitor in court, who makes a claim which he cannot support. Ibid. 600.

125. When parties reduce their contracts to writing, the obligations and rights of each are described by the instrument itself. The safety which is expected from them would be much impaired, if they could be established upon unknown and vague impressions, made by a conversation antecedent to the reduction of the agreement. Ibid.

126. It is certainly very difficult to maintain, that in a court of law, any parol evidence is admissible to change the purport and effect of a

United States issued an execution against his body, on the judgment, upon which he was imprisoned, and he was afterwards discharged from confinement, under the insolvent laws of the United States. The United States proceeded against the other defendants; and on the trial of the cause before a jury, the principal in the bond having been released, was offered as a witness by his co-obligors, and admitted by the circuit court, to prove that one of the co-obligors had executed the bond on condition that others would execute it, which had not been done. Held, that the evidence was legal. U. S. v. Leffler, 11 Peters, 86.

132. The principle settled by the supreme court in the case of the Bank of the United States v. Dunn, 6 Peters, 51, goes to the exclu sion of the evidence of a party to a negotiable instrument, on the ground of the currency given to it by the name of the witness called to impeach it, and does not extend to any other case to which the same reasoning does not apply Ibid. 94.

133. Where a contract is in writing, conversations previous to, and leading to it, cannot be given in evidence. Gilpins v. Consequa, 1 Peters' C. C. R. 85.

134. In a suit by the assignee of a bond against the assignor, upon a written assignment, parol evidence is not admissible to show that the assignor had expressly guarantied the payment of the bond, this being no part of the written contract. O'Hara v. Hall, 4 Dall. 340.

Parol Agreements.-Illegal Consideration of Agreements.

strong v. Toler, 11 Wheat. 258; 6 Cond. Rep.

298.

144. If A, during the war, contrive a plan for importing goods from the enemy's country on his own account, by means of smuggling, or a collusive capture, and goods should be sent in the same vessel for B, and A should, at the request of B, become security for the payment of the duties, or should undertake to become answerable for the expenses on account of a prosecution for an illegal importation, or should ad

3. Parol Agreements. 135. An agreement, by parol, between two proprietors of adjoining lands, to employ a surveyor to run the dividing line between them, and that it should be thus ascertained and settled, which was executed, and the line accordingly run and marked on a plat by the surveyor, in their presence, as the boundary, was held to be conclusive in an action of ejectment, after a correspondent possession of twenty years by the parties, and those claiming under them respect-vance money to B to enable him to pay those ively. Such an agreement is not within the statute of frauds, as being a contract for the sale of lands, or any interest in or concerning them. Boyd's Lessee v. Graves, 4 Wheat. 502; 4 Cond. Rep. 398.

expenses, these acts constituting no part of the original scheme, there would be a new contract, unconnected with the original act, although remotely caused by it, and such contract would not be so contaminated by the offensive act, as to preclude A from recovering. Ibid.

136. The parties to a parol agreement, which, by the understanding between them, is to be 145. But if the importation was the result of reduced to writing, canpot escape from its obli- a scheme between the plaintiff and the defendgations by refusing to execute the written agree-ant, or if the plaintiff had an interest in the ment, or proceed further with it. Blight, Ex'x. goods, or they were consigned to him, with his v. Ashley et al., 1 Peters' C. C. R. 15. privity, and that he might protect and defend them for the owner, a bond or promise given to repay any advance made in pursuance of such agreement or understanding, would be utterly void. Ibid.

137. Representations accompanying a verbal contract, will receive the same construction in equity as if, had the contract been reduced to writing, they had been introduced into its coveThompson v. Todd, 1 Peters' C. C. R.

nants.

380.

146. The use of a license to pass from the enemy being unlawful, one citizen has no right to sell to another such a license, or pass, to be used on board of an American vessel, and no recovery can be had in a suit instituted on such an illegal contract. Patton v. Nicholson, 3 Wheat. 204; 4 Cond. Rep. 235.

138. An opinion prevailed at one time, that in a suit for a specific performance of a parol agreement for the sale of lands, the defendant must either confess or deny the agreement, and that in the former case the plea of the statute of frauds would not avail. But the doctrine has 147. A contract founded on transactions in been repeatedly overruled; and it is now the fraud of the laws of the United States, can fursettled rule of this court, that although the de-nish no lawful cause of action, and the courts of fendant should answer and admit the agreement as stated in the bill, he may still protect himself from performance, by pleading the statute.

Ibid.

139. The same construction will be given, and the same consequences will follow, from verbal representations made at the time of a parol agreement, as, had they been inserted in the agreement, a court of equity would assign to them. Ibid.

140. A parol agreement as to the distribution of prize-money is void. The Dash, 1 Mason's C. C. R. 4.

4. Illegal Consideration of Agreements. 141. The courts of the United States will not enforce an agreement, not in itself immoral, but a stratagem authorized by the laws of war, entered into in fraud of the laws of the United States, though made between persons then enemies of the United States, and the suit instituted on the agreement after the restoration of peace. Hannay v. Eve, Cranch, 242; 1 Cond. Rep.

512.

142. An agreement in a court of common law, chancery, or prize, made under a clear mistake, will be set aside. The Hiram, 1 Wheat. 440; 3 Cond. Rep. 615.

143. Where a contract grows immediately out of, and is connected with an illegal or immoral act, a court of justice will not enforce it. Arm

this country will not lend their aid to enforce a contract thus tainted. Executors of Cambioso v. Assignees of Maffit, 2 Wash. C. C. R. 98.

148. This general principle is not affected by the circumstance that the plaintiff is a foreigner, nor is it important whether he had notice that the acts contemplated in the contract were illegal. Ibid.

149. In some cases a foreigner is not bound to take notice of foreign revenue laws; for, if he make a fair and final contract in his own country, it is immaterial to him what use shall be made of it in violation of foreign revenue laws. But in similar cases, if a citizen be knowingly instrumental in a breach of the laws of his country, the tribunals of that country will not afford him a remedy, as if he sells goods for the purpose of smuggling. Ibid.

150. But if the contract of a foreigner is to be completed in, or has reference to the laws of this country, and it is repugnant to those laws, he is bound by these laws, and must take notice of them. Ibid.

151. A contract was made for rebuilding fort Washington, by M., a public agent, and a deputy quartermaster-general, with B., in the profits of which M. was to participate. False measures of the work were attempted to be imposed upon the government, the success of which was prevented by the accounting officers of the treasury. A bill was filed to compel an

Illegal Consideration and Specific Performance of Agreements.

alleged partner in the contract to account for, and pay to one of the partners in the transaction one-half of the loss sustained in the execution of the contract. The court said, to state such a case is to decide it. Public morals, public justice, and the well-established principles of all judicial tribunals, alike forbid the interposition of courts to lend their aid to such purposes. To enforce a contract which begun with the corruption of a public officer, and progressed in the practice of known and wilful deception, can never be approved or sanctioned by a court. Bartle v. Coleman, 4 Peters, 184.

152. The law leaves the parties to such contracts where it finds them. If either has sustained a loss by the bad faith of the particeps criminis, it is but a just infliction for premeditated and deeply practised fraud. He must not expect that a judicial tribunal will degrade itself, by an exercise of its powers to shift the loss from one to another, or to equalize the benefits or burdens which may have resulted from the violation of every principle of morals and of law. Ibid.

cree, although he had not a good title at the time when, by the contract, he ought to have conveyed. Hepburn et al. v. Auld, 5 Cranch, 262; 2 Cond. Rep. 247.

159. But a court of equity will not compel a specific performance, unless the vendor can make a good title to all the land contracted to be sold. Ibid.

160. After a lapse of seven years, the court will refuse to decree a specific performance of a contract, in the part execution of which the complainants, or those under whom they claim, have expended large sums of money, although the first default was on the part of the defendants, and although it is probable that the failure of the defendant in that respect has prevented the completion of the execution on the part of the complainants, circumstances being so changed, that neither party could derive from the execu tion of the contract all the benefits which were first expected. Pratt v. Carroll, 8 Cranch's Rep. 471; 3 Cond. Rep. 222.

161. If a bill by the vendor of land, seeking a specific performance of the contract, be dismissed 153. It has been long settled, that a promise on account of a defective title, the complainmade in consideration of an act which is forbid-ant cannot again come into equity, notwithstandden by law, is void in law. It will not be ques-ing he may afterwards have it in his power to tioned that an act forbidden by the constitution of the United States, which is the supreme law, is against law. Craig v. The State of Missouri, 4 Peters, 410.

154. It is a salutary rule, founded on morality and good policy, and which recommends itself to the good sense of every one, that no man ought to be heard in a court of justice, who seeks to enforce a contract founded on, or arising out of moral or political turpitude. Toler v. Armstrong, 4 Wash. C. C. R. 297.

make a good title, unless, perhaps, in a case where an original bill, in the nature of a bill of review, could be entertained. Hepburn et al. v. Dunlop & Co., 1 Wheat. 179; 3 Cond. Rep. 529.

162. There are many cases in which a court of equity, although it will not decree a specific performance, will refuse to order a contract to be cancelled. Ibid. 197.

163. The inability of the vendor at the time of the decree to make a good title, is a good reason for excluding him from relief in a court of equity; and yet it does not follow that for this reason merely the contract will be rescinded. Ibid.

155. The rule itself has sometimes been carried to inconvenient lengths; the difficulty being not in any unsoundness of the rule itself, but in its fitness to the particular case to which it has 164. The alienage of the vendee is not a sufbeen applied. Does the taint in the original ficient ground to entitle the vendor to a decree transaction infect and vitiate every contract rescinding a contract for the sale of lands; yet, growing out of it, however remotely connected perhaps it might be a sufficient reason for deny. with it? This would be to extend the rule being a specific performance as against the vendee. yond the policy which produced it, and would Ibid. lead to the most inconvenient consequences. Ibid.

156. The rule is now clearly settled, that where the contract grows immediately out of, or is connected with an illegal or immoral act, a court of justice will not lend its aid to enforce it. And if the contract be in part only connected with the illegal transaction, and growing immediately out of it, though it be in fact a new contract, it is equally tainted by it. lbid.

157. But if the promise be unconnected with the illegal act, and is founded on a new consideration, it is not tainted by the act, although it was known to the party to whom the promise was made, and although he was the contriver and conductor of the illegal act. Ibid.

5. Specific Performance of Agreements. 158. A vendor may compel a specific execution of a contract for the sale of land, if he is able to give a good title at the time of the de

165. A court of chancery may decree a specific performance, as against a party who would not be permitted himself to demand it. Ibid.

166. It is a universal rule in equity, that he who asks for a specific performance must be in a condition to perform himself. Morgan's Heirs v. Morgan, 2 Wheat. 290; 4 Cond. Rep. 120.

167. Where the complainant filed his bill for the specific performance of an alleged agreement to convey to him one-third of a tract of land belonging to the defendant, as a compensa tion for surveying and locating the same, and the foundation of the claim rested not on any particular stipulation respecting the compensation he was to receive, excepting that the general custom of the country, and the general tenor of the complainant's contracts with other persons for such services, were to furnish the rule of compensation; the bill was dismissed. Colson v. Thompson, 2 Wheat. 336; 4 Cond. Rep. 143.

168. The contract which is sought to be spe

Specific Performance of Agreements.