was finally accepted, the courts must have realized that to carry the principle to its logical conclusion would prevent the parties to a contract from defining in advance the extent of their rights and liabilities, in case of breach. One school of thought, which, to borrow a phrase from the late Professor William James, might be described as "tough-minded," would urge that, as Sir George Jessel put it, courts "should not overrule any clearly expressed intention on the ground that judges know the business of the people better than the people know it themselves." 49 To which the "tender-minded" school would reply that bargaining is not always on equal terms, that the necessities of one party or the superior cunning of the other will frequently upset the balance of risk germane to an executory contract. An excessive sum may be named through overconfidence in the outcome or stipulated in terrorem and not as a genuine preëstimate of the obligee's probable or possible interest in the full performance of the obligation. Under such conditions, why should the state, through its courts, lend its aid to secure the fruits of a harsh bargain? In equity both views have had influence, but neither has wholly triumphed. Where the payment of a smaller sum is secured by a larger, the stipulation will be relieved against as penal, but where the agreement is for an act other than the payment of money and the injury that may result from a breach is not ascertainable with exactness, depending upon extrinsic circumstances, a stipulation for damages, not on the face of the contract out of proportion to the probable loss, may be upheld, the difficult cases turning mainly upon the interpretation of the language of the particular contract.50

Although classed by text-writers with penalties, forfeitures for acts in pais have never stood on exactly the same ground as the former. Where the forfeiture was incurred through accident or mistake and compensation could be made, equity would relieve

49 Wallis v. Smith, 21 Ch. D. 243 (1882), at p. 266.

50 Blake v. East India Co., 2 Ch. Cas. 198 (1674); East India Co. v. Mainston, 2 Ch. Cas. 218 (1676); Taylor v. Rudd, 2 Ch. Cas. 241 (1677); Astley v. Weldon, 2 B. & P. 346 (1801); Kemble v. Farren, 6 Bingh. 141 (1829); Thompson v. Hudson, L. R. 4 E. & I. App. 1 (1869); Ward v. Hudson Co., 125 N. Y. 230, 26 N. E. 256 (1891); Sun Co. . Moore, 183 U. S. 642 (1901). Equity does not relieve where a penalty or forfeiture is imposed by statute, Keating v. Sparrow, 1 Ball & Beat. 367 (1810); Clark v. Barnard, 108 U. S. 436 (1883), nor where a forfeiture of shares of stock has been incurred through failure to pay calls, Sparks v. Liverpool Water Works, 13 Ves. 428 (1807).

on principles common to all agreements. But in the absence of special circumstances, or statutory authority, equitable relief is now usually confined to cases where the forfeiture is incurred in the failure to meet what is substantially a pecuniary obligation.51 There was some fluctuation of opinion in arriving at this conclusion. As stated above, it became, before the end of the seventeenth century, the "usual equity" for chancery to relieve a tenant from the forfeiture of his lease for non-payment of rent, upon payment of arrears with interest and costs.52 This accorded with the tendency of the time to open the doors widely to equitable relief against forfeitures for breach of conditions for money payments not punctually made, and, although the distinction between conditions precedent and subsequent is often mentioned, and some diversity of opinion is indicated, the tendency was to give relief on the basis of compensation, if it could be made, without much regard to the qualities of the condition.53 On the other hand, equity, in this respect following the law, would not relieve a tenant for years from a forfeiture incurred by assigning the term without the assent of the lessor,54 nor a copyholder who had forfeited his estate by alienation. Similarly Sir Joseph Jekyll, master of the rolls,

55

"Mactier v. Osborn, 146 Mass. 399, 15 N. E. 641 (1888); Barrow v. Isaacs, [1891] I Q. B. 417.

62 Anonymous, 2 Freem. 116 (1690), and cases in note 37. Copyholders had been relieved as early as the reign of Elizabeth, Poore v. Oxenbridge, Toth. 104 (1602); Whistler v. Cage, Toth. 104 (1631). See Gravenor v. Rake, Toth. 3 (1588).

63 I FONBLANQUE, EQUITY, bk. I, ch. 4, § 1; ch. 6, § 4. In Popham v. Bampfeild, I Vern. 79 (1682), it was said by the chancellor, "precedent conditions must be literally performed." Accord, Feversham v. Watson, 2 Freem. 35 (1677); Falkland v. Bertie, 2 Vern. 333 (1696); Maston v. Willoughby, 5 Viner's Abr. 93, 12 (1705). But in Hayward v. Angell, 1 Vern. 222 (1683), the lord keeper said that in all cases where the matter lay in compensation, be the condition precedent or subsequent, there ought to be relief. Accord, Wallis v. Crimes, 1 Ch. Ca. 89 (1667); Bland v. Middleton, 2 Ch. Ca. 1 (1679); Woodman v. Blake, 2 Vern. 222 (1691); Cage v. Russell, 2 Vent. 352 (1681); Barnardiston v. Fane, 2 Vern. 366 (1699); Grimston v. Bruce, 2 Vern. 594 (1707), S. C. I Salk. 156; Taylor v. Popham, 1 Br. Ch. 168 (1782); Chipman v. Thompson, Walk. Mich. 405 (1844). Compare where there is a gift over, Anonymous, 2 Freem. 206 (1695); Willis v. Fineux, Prec. Ch. 108 (1699); Hollinrake v. Lister, I Russ. Ch. 500 (1826), and see Davis v. Gray, 16 Wall. (U. S.) 203 (1872).

"Wafer v. Mocato, 9 Mod. 112 (1724). See Dumpor's Case, 2 Co. 558 (1602); Northcote v. Duke, Amb. 511 (1765); Williams v. Cheney, 3 Ves. 59 (1796). Compare Cox v. Brown, 1 Ch. Rep. 90 (1656), where the executor sold the lease for payment of debts.

55 Brown's Case, 2 Co. 318 (1581); East v. Harding, Cro. Eliz. 498 (1596).

in Descarlett a. Dennett, 56 declined to relieve a lessee who had violated a covenant not to permit passage over a way. "The breach," he said, "tends to the prejudice of the inheritance, inasmuch as it may hereafter amount to an evidence for a prescription over the close."

There were other cases where equitable relief was sought against the enforcement of collateral covenants, where the proper amount of compensation could have been determined without difficulty, certainly with no more difficulty than in the case of many penal obligations relieved as of course. Here conflicting views were presented. In Thomas v. Porter and the Bishop of Worcester,57 in 1668, the bill was by a copyholder to be relieved from a forfeiture for felling trees. There was a wide difference of opinion as to the value of the timber cut, and the lord keeper directed a trial at law upon the issue whether the waste was intentional. The issue was found for the copyholder and relief was granted, but Sir Orlando Bridgeman said, "in case of a wilful forfeiture he would not relieve." Some twenty-five years later,58 upon a bill by a lessee to be relieved from a forfeiture incurred on several grounds, it was insisted by defendant's counsel, truly enough, that, "Where waste was committed by cutting down great trees, there it was impossible to set them up again." Notwithstanding, the plaintiff was relieved and a reference made to a master to inquire as to the damage by the felling of the trees. In Cox v. Higford,59 the plaintiff, a copyholder who asked for relief, had been, according to the reporter, "guilty of the greatest disobedience possible to his lord," had failed to repair after six presentments and had refused to do fealty either upon oath, or, being a Quaker, upon affirmance. The lord keeper, Sir Simon Harcourt, declared that he ought to have no relief, and, even if he were relieved, the cost of putting the estate in repair would be more than the plaintiff's interest was worth, but he further declared, "that though this were a voluntary waste and for

56

9 Mod. 22 (1722). See also as to prejudicing the inheritance, Willis v. Fineux, Prec. Ch. 108 (1699); Whetstone v. Sainsbury, Prec. Ch. 591 (1722).

57

1 Ch. Ca.95 (1668). Bishop of Worcester v. One of his Copyholders, 2 Freem. 137, s. c. 2 Eq. Ca. Abr. 225.

58 Bowen v. Whitmore, 2 Freem. 193 (1693). So, in Nash v. Derby, 2 Vern. 537 (1705), a copyholder was relieved, who had cut timber on one copyhold for repairs

on another, the timber being of small value and all employed in repairs.

61

feiture (against which it was objected this court never gave relief), yet he thought the rules of equity not so strict, but that relief might even be given against voluntary waste and forfeiture.” A few years later 60 ejectment was brought on a lease, and the lessor, on proving a breach of covenant for not keeping a barn well thatched, had a verdict. On bill by the lessee to be relieved, Lord Macclesfield said he could not see what damage the lessor would sustain "if the lessee suffered the buildings to be out of repair, so as he kept the main timber from being rotten, and left all in good repair before the end of the term," and referred the case to a master to see what damage was done, if any. These cases were certainly precedents in favor of Lord Erskine's judgment in Sanders v. Pope. But by that time a reaction had set in against the exercise of a discretion so unlimited in relieving against forfeitures of estates,62 and the influence of Lord Eldon, who, as already stated, strongly disapproved of the principle of equitable relief against penalties and forfeitures, was decisive in confining such relief to money covenants.63 Ultimately Parliament conferred upon the courts jurisdiction to grant relief in cases of forfeiture,64 to which Lord Eldon and his contemporaries turned a deaf ear, but their judgments have influenced American opinion, although Mr. Justice Story seriously questioned whether this narrow limitation of the doctrine was defensible upon the original principles which guided courts of equity in interfering in cases of penalties and forfeitures.65

There were, therefore, currents and cross currents of opinion when in 1721 Sir Harry Peachy brought his bill against the Duke

60 Hack v. Leonard, 9 Mod. 91 (1724). See also Webber v. Smith, 2 Vern. 103 (1698). 61 12 Ves. 282 (1806). Accord, Davis v. West, 12 Ves. 475 (1806).

62 Eaton v. Lyon, 3 Ves. 690 (1798), at p. 693; Wadman v. Calcraft, 10 Ves. 67 (1804).

3 Hill v. Barclay, 16 Ves. 402 (1810), 18 Ves. 56 (1811); Reynolds v. Pitt, 19 Ves. 134 (1812); Bracebridge v. Buckley, 2 Price 200 (1816).

$4 Power to relieve against breach of covenants to insure was given by the ACT of 22 & 23 VICT. (1859), ch. 35, § 4, and against forfeitures under stipulations in leases by the Conveyancing Acts of 1881, ch. 41, § 14, and 1892, ch. 13, § 2. Barrow v. Isaacs, [1891] 1 Q. B. 417; Dendy v. Evans, [1910] 1 K. B. 263.

I

$5 I STORY, EQUITY JURISPRUDENCE, 13 ed., § 1323; cf. Baxter v. Lansing, 7 Paige (N. Y.) 350 (1838); Munroe v. Armstrong, 96 Pa. St. 307 (1880); Hukill v. Guffey, 37 W. Va. 425, 16 S. E. 544 (1892), with Grigg v. Landis, 21 N. J. Eq. 494 (1870); Lundin v. Schoeffel, 167 Mass. 465, 45 N. E. 933 (1897).

of Somerset to be relieved from a forfeiture of a copyhold estate upon making recompense.66 It would appear that Sir Harry, and his father before him, owning freehold land adjoining the copyhold, had not observed the limitations upon their rights as copyholders; that a stone quarry had been worked from the adjoining land; that trees had been topped, hedges moved and part of the land let for seven years without the lord's license. There was some dispute as to whether all these acts were, under the circumstances, forfeitures at law, and the bill was retained until this could be decided in ejectment; the lease was admittedly a forfeiture. For the complainant it was urged that "it was a sort of maxim that all forfeitures were odious," that in copyhold cases they were intended as security and the court would relieve where satisfaction could be made. If it was difficult to ascertain damages, that was because there really was no damage. The defendant insisted that "in cases of forfeitures on conditions in law this court seldom relieves" and that all the acts in the present case were "voluntary acts." Lord Chancellor Macclesfield said that the forfeiture resulted from the "imbecility of the copyholder's estate," his tenure was upon the conditions established by the custom of the manor. Non-payment of rent or fines had been relieved, for the forfeiture in that case was only by way of security. "Cases of agreements and conditions of the party and of the law are certainly to be distinguished." It was not sufficient to say that there was no damage in this case, "for it is recompense that gives this court a handle to grant relief. The true ground of relief against penalties is from the original intent of the case, where the penalty is designed only to secure money, and the court gives him all he expected or desired; but it is quite otherwise in the present case, these penalties or forfeitures were never intended by way of compensation, for there can be none." The chancellor would have dismissed the bill if the

There are three reports of the case, a summary in 2 Eq. Ca. Abr. 228, a longer one in Prec. Ch. 568, and the most complete in 1 Strange 447, which is reprinted in the various editions of WHITE & TUDOR, LEADING CASES IN EQUITY. It would almost seem as if the reporters derived their facts from opposing counsel. According to Strange the steward's deputy engrossed and witnessed the lease and there were other extenuating circumstances. According to the editor of the Precedents, the plaintiff encouraged other copyholders "to take the same liberty, and expressed great contempt for the lord of the manor, with respect to his authority over his copyholders."