McCOMAS & WIFE vs. JOHN MINOR & OTHERS.

After hearing, and decision of the court of a demurrer to a bill, for want of equity on iis face, it is too late to amend.

OPINION OF THE COURT-BY CHIEF JUSTICE TURNER. The motion to amend the bill, in this case, has been made, after the decision of the court upon a demurrer, filed by the defendant, Minor, for the want of equity on the face of the bill, which demurrer was fully argued by counsel at tne bar.

The proposed amendment alleges that the promissory note in question was endorsed by Mrs. Chotard, after it was made, and after the passage of the act of 1822, on the subject of the negotiability of notes, &c, as the complainant is iuformed and believes; and also that, in the survey of the land in question, there was mistake as to quantity.

The law, on the subject of awendments in chancery cases, has been frequently discussed at the bar, during the present term, and in the case of Vertner and wife vs. Griffith's administrators, a motion to amend the bill, by inserting a charge of fraud, was overruled, after the cause had been set down for hearing, upon a plea to the bill, and demurrer thereto,

In the case of Miles vs. Fletcher and others, a motion to amend the bill after a decree pronounced on the demurrer to the bill, was likewise overruled, and we concur in these decisions.

According to the English authorities, after a demurrer is set down and argued, the bill cannot be amended; 2 Maddock, page 288; 2 P. Williams, 300.

After witnesses are examined, the bill cannot be amended, unless the plaintiff withdraws his replication; ib. Maddock.

After a cause is set down, unless in the case of an infant, an amendment is only permitted for the purpose of making parties; and no new charges can be introduced, or any material fact put in issue, which was not so in the cause before.

The New York rules are very similar to the above. According to these, if the defendant demurs to the bill, for want of parties, or other defect, which does dot go to the equity of the whole bill, the complainant may amend at any time before the demurrer is set down for argument, on payment of costs, and, in some other cases, before a decree allowing the demurrer; Blakes Ch. 211, 212; and see our own rules, rule XIX in chancery.

Where a bill, on demurrer thereto, is dismissed for the want of equity, on the merits of the case as stated, leave to amend the bill will not be granted; and, as a general rule, in cases where amendments are allowable in the discretion of the court, the plaintiff must not only show the materiality of the proposed amendment, but also why the matter proposed to be introduced, as an amendment, was not before stated in the bill. Apply these authorities to the present application.

The complainant has been regularly heard on the demurrer to his bill for the want of equity, and has had the benefit of the opinion of the court upon it. He now wishes to amend, by inserting matters of substance in his bill, which he deems material to the maintenance of his suit. He does not show any reason for not having introduced these charges in his bill, originally. They were certainly as material then, and the facts of the case as familiar to him at that time, as at the present, for aught that appears to the court.

On referring to the deposition of George Dougherty, the umpire of the parties to the original contract, the surveyor who surveyed the land in the first and the second instance, who ascertained the quantity of acres in the Buffalo tract, and subsequently the deficiency, it is found that the question is not one of boundary, but of title. There appears, from his evidence, no mistake whatever. The Buffalo tract is the original, as granted by the Spanish government, but is found to conflict with that of the late B. Farrar. Hence, the question is, as we had all along supposed it, one of title and not of boundary.

We know not which holds the clear grant. triable at law, and not in a court of chancery. present application comes too late, and must be

That question is properly But if it were not so, the overruled.

JAMES PAYSON vs. BENJAMIN T. WEST.

A court of law cannot euquire into and enforce a parol contract for the sale of land, although performed in part by delivery of possession.

OPINION OF THE COURT-BY THE HON. J. R. NICHOLSON.

In this case the defendant pleaded payment, and gave notice that he should offer in evidence, on the trial, a parol contract for the sale of land, part executed, by delivery of possession, and, on the trial, he produced witness to prove the contract, as stated in the notice, which was objected to by the plaintiff's counsel; but the court overruled the objection, and permitted the evidence to be given to the jury, who, by their verdict, reduced the plaintiff's claim, the amount agreed to be paid for the land.The only question which we deem it necessary to decide, on the present occasion is, whether a parol contract for the sale of land, part executed, can be enforced in a court of law? And on this point, there is a considerable dearth of authority.

A court of chancery having been almost uniformly selected as the forum before which this class of controversies should be decided; and that tribunal having ample power to grant relief, is certainly the least exceptionable; as, before it, each party can urge many reasons which, in a court of law cannot be inquired into; such as defect of title, circumvention, combination &c.

There is authority, however, which is of so high repute, that we feel fully justified in following it, in refusing to courts of law the right to inquire into and enforce a parol contract for the sale of land, performed in part by delivery of possession or otherwise,--I mean the decision of chancellor Kent, as delivered in 2 Johnson's Reports, 223. He disapproves of the opinion of judge Buller, who delivered a different opinion, and concludes by asserting that, that was the only decision of the kind he had found. I am always unwilling to turn a litigant from court, by directing him to

pursue his remedy before a different tribunal, more pariicularly where there is apparent justice in his demands; but it is of more importance tha the jurisdiction and course of proceedings of the judicial tribunals shoul be well defined, and uniformly acted on than that individuals should be pu to temporary inconvenience by being referred from our tribunal to another to seek his rights.

This case differs from the case of J. E. Davis vs. Cornelius Haring in every respect. That case was decided to be a contract in full compliance with the requisitions of the statute of frauds. Davis had given a bond for ⚫ a title to the land sold, which, under the statute, clearly bound him, and there is no such thing known to the law as a contract which binds only one of the parties.

New trial granted.

Concurred in by Judges Nicholson and Smith.

BENJ. HUGHES vs. WILLIAM FISHER.

Where A. agreced in writing, in consideration of his own note, to B., for 2,850 dollars, due 1st January, 1830, and also of his transfer to B. of C.'s note for 2,350 dollars, to pay B. two hundred dollars, in case both notes were not paid by the tenth of January, 1830, this is not a contract to do a act, the non-performance of which would justify a stipulation for specific damages; and the rate of interest is the only legal measure of damages.

OPINION OF THE COURT-BY THE HON. A. MONTGOMERY. The action in the court below was founded upon an agreement in writ ting, by which the appellant agreed, in consideration, that he had given his own note to the appellee for $2,850, due the 1st of January, 1830, and also transferred to him William Henderson's note for $2,350, due 1st January, 1830, he, (the appellant,) would pay the appellee $200, in case the said notes should not be paid, on or before the 10th day of January, 1830. There were other conditions and stipulations, not necessary to notice, as they have no bearing on the questions involved in this case. If this was simyly a contract to pay a sum of money, as damages for failing to pay a debt when it became due, there is no doubt it would be a nudum pactum.

As the law has established the amount of damages which shall be paid for withholding the payment of a debt, from the time it becomes due, until paid, which are recoverable on the original contract, and forbids the parties to stipulate for any greater rate of damages, the collateral contract to pay a greater amount of damages on such failure, is without consideration and void; 1 Hen. Blackstone, 227.

But the contract, in this case, extends further, and stipulates for the punctual payment of the debt of a third person, and a person may, for a valuable consideration, bind himself to pay damages in case a third person shall fail to pay a debt by a particular day. And hence the question very. properly arises, under this secondary view of the case, whether this be a contract for stipulated damages, or a penalty?

It is sometimes difficult to determine the fair distinction between a contract for stipulated damages, and a penalty; but, in this case, no such difficulty presents itself, as this is not a contract to do an act, the non-performance of which could justify a stipulation for specific damages, because the law has prescribed the measure of damages, beyond which the parties are not at liberty to contract; consequently, the appellant was only liable, under this agreement, to pay the amount due on William Henderson's note, with legal interest, from the tenth of January, 1830, until the time of the judgment, and not the whole amount of the contract.

Judgment below reversed, and cause remanded for further proceedings.

The judgment on demurrer should not have been rendered for the full amount of plaintiff's claim, but a writ of inquiry should have been executed, and judgment rendered for the damages assessed by the jury.

Judges Turner, Nicholson and Smith concur.