
    
      LYNCH vs. POSTLETHWAITE, ante 84.
    This case came again before the court, on a motion to amend the judgment.
    Amendment denied.
    
      Liver'more, for the plaintiff.
    Qur motion is fb amend the decree so as to give ¡0 the plaintiff the benefit of his contract, and the relief to which he is entitled, according to the Opinion of the court. By the contract, the defendant and his partners did covenant and agree" to pay the plaintiff 65,000 dollars in manner following, that is to say, 15,000 dollars at the time of the delivery of the boat, IS,500 dollars in three months thefeáfter* 1S,5O0 in six months thereafter, IS,500 dollars in nine months thereafter, and 4S,500 dollár#, the residues,;* iih twelve -toonth’s'thereafter with interest at six per cent upon these instalments. Then follows an additional covenant to give notes, and a-farther covenant for a mortgage; This covenant for the notes was introduced for the convenience of the plaintiff, th^t he might have a security which could be negociated, and upon which he could raise money. But there is no condition tint these notés should be .accepted as a discharge of the principal covenant in the agreement All the advantage which the plaintiff might have expected from the possession of these notes is lo$t by the delay in giving them. The covenants of the defendant in the deed are a sufficient security for the instalments; aud he has po advantage in the possession of securities of an inferior degree, , Why should he desire the notes of the defendant for sums of money already due ? On the 19th of February last, pdien the boat was tendered, and when the defendant was bound to receive her, the plaintiff «tight have waived the covenant for the notes ; inasmuch as a party may dispense with a condition introduced for his benefit. Or if he bad accepted the notes, he need not have accepted them as payment. If he had received them, and1 they had been regularly paid, it jvonld have been a payment; but if they had 4pt been jiaid, he would not have been obliged to bring his action upon the notes, but have brought it upon the covenant. Even in the case of a debt of no higher nature than a a note, the taking of a notéis not payment, unless it is specially agreed to be so staked. packford vs. Maxwell, 6 T. R. 5¾. Oitensoñ vs. Morse, 7 T. /2⅛6⅛ Tapley Vs. Macturs, 8 T. E'4M. MnrWi vs. Pedder &titei%, 4 ⅛. «¡V*. P- C. 257. By this contract it is not provided that the notes shall be a discharge of the principal covenant, and therefore I conceive that in this respect the decree should be amend, ed. In the above cases the original debts were of no higher nature than the securities given, and the case of a covenant is much stronger. In this case, the effort is to discharge a debt by specialty, by giving a mere simple contract security.
    The next point concerns the interest to be paid. I contend that we are entitled to interest at the raté of six per cent, per annum upon the whole sum, from the nineteenth of February. It is expressly provided by the contract, that Interest shall be paid upon the instalments, and as the non-payment of the Id,000 dollars ivas not then calculated upon, this shews thé intention of the parties that the vendor should have interest for all the purchase money not paid. Therefore, by the cases of Robinson vs. S Burr. 1085,andMddowes.vs. fJopkips, Dougl. 37 », he is entitled to interest at six per cent, upon the whole sum. ' .
    The contract also entitles the plaintiff to a mortgage upoii the boat as a collateral security; for the purchase -¿money unpaid. . > . .
    I Uaye considered the question respecting the rights of the plaintiff growing out of this ¡contract, according to the common law of, England, by which the nature and effects of the contract must be determined. The question, ho$v tar the court can m«|ke a decree which,will give effect to those rights, must be determined by the la.vys of this state. When we attempt to ascertain the nature and extent of the remedies pursued here, by reference to the complicated systems of practise iu the English courts of chancery and,common law, we are sure to be bewildered and led astray. We have nothing anata-goiis to the systems of those courts. In England the ordinary remedy, for a breach of con-’ tract, is in a common law eéurt, in which dam-' ages for a non, performance can alone Ae recovered. . The extraordinary yjurisd&tioa of: the* court ,of chancery, in decreeing a speciic ’per» formante, Aas been estahlished^after a severe cohiieTwith themrdiuary tribunal, but^ not ⅛>»' This extraordinary jurisdiction ex-fiill extent. tends only to cases which affect real property. Fut, in Louisiana, we have no suc h distinction between courts administering justice according to the ordinary forms of law and courts giving relief beyond the ordinary rules. Almost every action which is here brought upon a contract is in effect an action to enforce a specific performance. When a penalty is stipulated to be paid upon a breach of the contract, the party has his election by our laws to sue for the penalty, in which case the action is for damages, or upon the contract, w hich is for a specific per-fOrmancé. Pothier, des Obligations 342, 343. When the party sues upon the contract, the terms of that contract and the breach of it are stated in bis petition, and he concludes with a prayer for relief adapted to the nature of his case. When the prayer for relief is sufficient to give him an adequate remedy, it can hardly be maintained that, in our practice, his rights will be impaired by joining another prayer tor an inadequate remedy, particularly when he adds a general prayer for further relief according to the equity of his case. At all events, when the petition, and the evidence contained in the record, give a full view of the injury Which be has sustained, and of the redress to which he is entitled, the powers of this court are fully adequate to give him full relief, even if he has mistaken the nature and extent of the relief to which he is entitled. By the act of ^ iegjs|ature 0f 1813, it is provided, that “ no judgment or decree shall be reversed for any defect or want of form, but the said supreme court shall proceed and give judgment according as the rights of the case and matter in law shall appear unto them, without regarding any imperfections, or want of form, in the prucesa or course of proceeding whatever.” 1 Martin’s Digest, 444. This would seem to be conclusive. Accordingly this court decreed, in the case of Decuir vs. PacTcwood, 5 Martin, 300, that the plaintiff should recover the whole money. In that case the sugar was to be paid for by instalments, the defendant was to give notes for the instalments; the action was brought before either of them became due, and the petition prayed for notes.
    The judgment in the present case must, of course, be given as of the last term. The plaintiff was then entitled to 15,000 dollars, together with one instalment of IS,500 dollars and interest, upon these two sums, at six per cent, from the 19th day of February. He was also, I humbly apprehend, entitled to a decree, that the defendant should pay him the further sum of 12,500 dollars on the 19th of November, and the further sum of IS,500 dollars on the 19th of February, 18S0, with interest upon these three last instalments at the rate of six per cent, per annum, from the 19th of February, 1819; and also to a mortgage upon the boat. This would be a specific performance, according to the terras of the contract. defen'dant might also be required to execute trefes, in ’the form prescribed in the contract, for the last payments, but not to have these notes taken as a discharge of the judgment. Such i&4he Relief, which I have up doubt, this court has the power to grant. Nor do I doubt, that an English court of chancery would grant the same relief. Where the vendor of real estate, to be paid for by instalments, sues in chancery for a specific performance, such must be the decree. And if the defendant does not perform the decree, by making tbe payments at the times prescribed, process of attachment against his person, and sequestration against his property, would be awarded for the contempt. ,
    
      Hawkins, for the defendant.
    By examining the common law authorities to which thé plaintiff’s counsel have referred, in support of their motion, it is difficult t& find tlieir applicability.
    Tested by the principles of the common law the question presents no difficulty. The only remedies known to the common law are by action of covenant, where the instrument declared on is a deed or bond under seal, or action on the case where the writing declared on is not under *«eal — in both of which actions recovery of damage^,only is had. It is true, in the action at law fér damages, the plaintiff would have a right to assign as many breaches as he deemed proper; or, from time to time, to sue so often as tfre breaches on the part of the defendant gave eauseof a^tibn. Yet it is equally true that, in no action law, could the plaintiff recover damages f|^yond the breaches assigned and sustained against the defendant.
    The position contended for by the plaintiff’s counsel*that the stipulation for the delivery of the notes of the Natchez Company should be deemed a covenant for the benefit of the plaintiff, and he had a right to wave the reception of the notes and go for money, is so untenable as to need no comment. To sanction such doc* trine would be to annihilate all the principles which govern mutual or reciprocal covenants.
    It would in Tact not only authorise recovery .«the defendant, for all his breaches of the contract, but enable the plaintiff to take advantage of his own wrong, by first refusing to receive the notes of the company, which he is bound to do by the contract, and convert his refusal into new and extended grounds of recovery against the defendant for money, when he had stipulated in the contract to deliver the plaintiff the notes of the Natchez Company only.
    To occupy time in repelling a doctrine like this could be construed into little else than a want of proper respect for the tribunal we address.
    The plaintiff, not having sued in a court of common law jurisdiction, seeking his recovery, of damages only, but having appealed to a court vested with equitable jurisdiction for a specific performance of the contract; the only necessary enquiry is, has specific performance béen decreed by this court. If so the question is at rest, and the decree cannot be amended or altered.
    By the contract sued on the plaintiff sells t® the Natchez Steam Boat Company a boat for; 86ñ,000 .to be discharged by the payment of 815,000 at the time of delivery; and the residue 8 50,000 in the notes of the Natchez Company, payable in four instalments of three, six, nine and twelve months, with interest.
    jUpon this contract, the plaintiff commenced his action, alledging that ((t!ie defendant was „ , personally bound, and had refused to' comply with and fulfil the part thereof which he was bound to perform”--Wherefore the plaintiff prayed that the defendant be cited to appear, and decreed to execute the promissory notes and make the payment of 815,000 with interest and costs.
    The supreme court have decreed that “ the plaintiff recover from the defendant the suj#5t 805,000 ; to be discharged by the payment of 815,000, with interest from the inception of suit, and the delivery of the notes of the Vatchei Steam Boat Company for the sum of 850,000 in four instalments of three, six, nine and twelve months from the 19th February, 1819, the day on which the plaintiff alledged his readiness to deliver the boat.”
    If this is not decreeing performance of this contract in its broadest and most comprehensive sense against the defendant, it is difficult to conceive what performance is.
    The plaintiff obtains all that is stipulated to be given him — its execution is decreed in the fullest extent of the covenant, and in the manner claimed and prayed for by the plaintiff, and yet ttye courtls now urged to do still more.
    By this motion the court are called on to go out of the record and pleadings in the cause, to ' r a make out a new and better case for the plains tiff, whereby he is to be absolved from bis own covenants, and a new and hard covenant ím-posed on the defendant; to wit, the payment of money, when he has stipulated only for delivery of the notes of the Natchez Company.
    The efforts of the counsel to give some colour to their motion by appealing to what they call the liberal rules of practice which govern courts of equity, (to which they assimilate our own) were as unsuccessful as the ground they take in support of the motion is untenable.
    In vain were the counsel of the plaintiff appealed to for a single authority, either from the common or civil law writers, which sanction the alteration in the decree now required of the court.
    We were referred, in general terms, to the liberality of courts of equity in matters of contract. We cannot too much admire that system of jurisprudence which effects the objects of justice without regard to mere form and technicality. Yet no court, in this nor any other country, has ventured to place itself above all rule and precedent in regard to its proceedings. Go the length contended for in this motion, aad the equitable discretion, to which our admiration has been called, would sink into , -4 arbitrary oppression.
    Equity has been well defined to be th« “correction of that wherein the law (by reason of its universality) is deficient.”
    Courts of equity have grown into use, not by altering or changing the principles of law or interpretation of contracts, or established usages of other courts, but as mere helpmates to the various remedies necessary to the ends of justice.
    According to the English and Aimerican authorities, where the remedy is adequate at law a court of equity will riot interfere. But, when it does interfere, a court of equity is as implicitly bound down by established precedents, and influenced by the same just rules of interpretation, whether of law or of contract, which govern the common law judge.
    And where this not the case, courts of equity would rise above all law either common or staj|,. ute, and be a most arbitrary legislator in every case. Neither a court of law or equity can vary men’s wills or agreements; both are to understand them truly and uniformly; one court cannot abridge, nor the other extend ; and the rules of decision in both courts are equally opposite to the subjects of which they take cognizance. 1 Black. Com. 61; 3 id. 50, 429, 435, <S;c.; 2 Powell on Cont. 3.
    The principal reason urged why the court should now alter their decree is, that since the inception of this suit in the court below, some of the notes of the Natchez Company, prayed to be delivered to the plaintiff in his petition, would now be due, if they had been so delivered ; and, therefore, the plaintiff is entitled to have a decree against the defendant, Postle-thwaite, for money, in lieu of notes.
    With the same propriety could it be urged that the plaintiff, holding a covenant for four parcels of cotton, at different and distant periods, deliverable at Natchez, might (because he had one other parcel deliverable at New-Orleans) at his own option waive reception of cotton, hold on to the contract until the last period of delivery, and then demand money for the whole amount in New-Orleans. Could it not as well be urged that the plaintiff holding four several promissory notes of the defendant, pending a suit for one note another became due, and, therefore, the plaintiff would be entitled to a judgment for the amount of both notes l
    
    With equal justice, but certainly not less absurdity, could the plaintiff’s counsel contend, that in a suit for assault and battery, or other wrong, the plaintiff could not only recover for torts committed previous to the commencement of the suit, but for every other battery or tort between the inception of the suit and time of pronouncing final judgment.
    At the commencement of the present suit, by Jasper Lynch, had he any right of action against the defendant, Postlethwaite, for the amount of either of the notes of the Natchez Company! No such cause of action existed; none such was urged or prayed for; but the defendant was sued to compel him only to deliver the notes of the company together with the cash payment of 15,000 dollars.
    If the plaintiff is entitled to a decree now, for the amount of one note, and for which no cause of action existed, or was urged at the inception of this suit, the plaintiff had nothing to do but commence his action, delay trial until the last note arrived at maturity, and then demand judgment for the whole amount in money, when he had expressly stipulated to receive, and had sued to recover, notes.
    Was this court, or any other intelligent tribunal, ever before urged, in the rendition of their judgment, not only to award damages and recovery for all the causes of action which actually existed and were prayed for when the action was commenced but to include in their decree all damages and debts which might have arisen or accrued between the inception of the suitand rendition of judgment!
    But this court is called on to do more: to merge its appellate character; to erect itself into a tribunal of original jurisdiction; to make out a new cause of action, and found a decree upon new matter, not tried, or ever urged, before the court below. Indulge doctrine like this, and where its mischiefs would terminate is difficult to conceive. No precedent or authority from the civil law books was produced by the plaintiff’s counsel; none can be produced, sanctioning proceedings like this.
    The reference to Pothier, so far as it goes, is good authority for the defendant: for it is there declared that the “ plaintiff ought to elect either to claim the execution of the principal obligation, or the penalty: that he ought to be satisfied with one of them.” Here the plaintiff has sued for specific execution of the contract. And the court are called on to violate all the established principles of practice to give him more. Pothier Obi. 342. Civil Code accord.
    
    As to the act of our own legislature declaring “that no judgment shall be reversed for any defect or want of form,” &c.: we have not, ^ at necessary to question the soundness of this legislative enactment. No want of form is complained of in this case; the court are called to remedy no technical defect of pleading whereby injustice has been done. The plaintiff has sued for, and prayed and obtained a decree for all that his contract gave him. No principle of law or justice will justify the court in going farther. We are referred, however, to the case of Decuir vs. Packwood as conclusive in favor of the plaintiff.
    There is no analogy between the cases. In that case the plaintiff had a right to sue, and enforce either specific execution or damages for non-compliance. He did so sue; the parties appealed to a jury to award on their contested rights, and the jury awarded a verdict for damages to the whole amount due, instead of awarding specific performance.
    The jury had a right to give the one or the other; the debt, in the case of Packwood, was the individual debt of the defendant; the whole amount of the debt had become due, and the defendant did not even urge his right to a specific performance, but submitted the whole cause to the jury. In that case, there was no covenant to make payment for the sugar purchased, by the delivery of notes on a third person, and them payable in another state, at different and distant periods, as in the case now before the court.
    There is surely no ground for this additional benefit to the plaintiff, on the score of favour.
    It is admitted, on all hands, he has obtained a decree for an enormous sum of money, considered in regard to the value and condition of the subject of purchase.
    In the decree pronounced by this court, they express a reluctance at decreeing the whole amount claimed, having on the first view of the subject deemed an abatement justifiable.
    With this view of the subject, we cannot presume this court will now step out of the usual course of practice to add new benefits to the plaintiff, by imposing new penalties and ex-actions in what the court considers already a hard case against the defendant.
    As to the question of interest, it was submitted to the court. They have correctly fixed it at five per cent, on the 15,000 dollars cash payment at New-Orleans, that being the interest allowed by law in this state.
    As to the interest on the notes of the Natchez Company, that will be regulated by the laws of Mississippi where the notes are payable.
    As to the mortgage: it is an after thought altogether, to give some pretence to open the present decree. It never was demanded or re-0uire(l 5 and it would be executed as a matter 0f course whenever the plaintiff thinks proper to require it.
   Martin, J.

delivered the opinion of the court.

The plaintiff prays that the judgment of this court, pronounced in this case, at last July term, may be amended. An amendment can only take place on account of some error of the court in rendering the judgment. If the principles of the case have been misunderstood, if the court has mistaken the law, in other words, has erred in forming their judgment, a remedy must be sought in a rehearing, so that the whole case may be re-examined, and the judgment rather changed than amended.

In the present case, the court is not sensible of any thing in the judgment rendered that requires, or is even susceptible of amendment; nor that any other judgment might have correctly been given.

The petition called upon the court a quo, not to award damages against the defendant for failing to perform his part of a contract, but to enforce a specific performance. This decree was, according to the provisions of the contract, for the payment of 15,000 dollars, and the execution and delivery of four notes of the Natchez J Steam Company of 12,500 each. The prayer of the petition was for the payment of that sum, and the execution and delivery of these notes, or in the alternative, the payment of 65,000 dollars.

The district court could not have decreed copulatively what was asked only in the alternative. It would have been monstrous to have given judgment for the notes and their amount. For, after the judgment might be satisfied by a levy of the 65,000 dollars, the defendant would have remained liable to pay his notes, in the hands of an indorsee, without the possibility of legal relief against them.

If it had given judgment for 65,000 and interest against the defendant, without its having been prayed for in the alternative, it would have done an injustice to both parties, in the interpretation of the contract: to the plaintiff in withholding from him the benefit of the greater security, which he had contemplated in notes, binding the defendant and all his copartners; to the defendant in making him liable alone, and aloof from his copartners, as to the deferred instalments, for which he had expressly and tenaciously stipulated that he should not give a note, which might be tendered as a set off against any private demand of his, and on which he had right to command the aid of his copartners, . . according to the law of his domicil and the ° piaCe of contract, by resisting the plaintiff’s suit, till all his debtors within the state were made parties.

Whether a judgment for the sum of 65,000 dollars, with interest, the execution of which should be partially suspended to meet the terms of the contract, ought not to have been decreed, if the plaintiff had not prayed for a specific performance, but sought his relief in damages, is a question which made no part of our inquiry in the present case.

The judgment of the district court appeared, therefore, to us perfectly correct, except in the deduction of 20,000 dollars, and ours has rectified this error.

It is true, since the judgment of the district court, one of the instalments had become due at the time that the judgment of this court was pronounced, and two have become due since. If the amount of the instalment which had become due when we gave judgment, had been a sum of money which might have been opposed by the creditor of it, as a set-off against a claim of the debtor, if the latter had been alone absolutely bound therefor, perhaps that the imme-díate pay meat of it would have been ordered. ■r. ' ,. . - ? , ’ 1 . ' . ■ :• 1- . Hut tlus is not the case; the suin is one for which he is solidarity bound sub modo only.

We, therefore, conclude, that the judgment cannot be so amended as to substitute the absolute payment of ⅜¾,500 dollars, in lieu of the note decreed to be executed.

As to the other two instalments, which were then not yet payable, there is not any semblance oi reason, in the proposition that the judgment ought to be amended. .

It is said that .the judgment ought to be amended, and six instead of five per cent, allowed for interest on the sum of 15,000 dollars, the first payment. We allowed the legal interest of this state, for the failure of the timely pay» merit of a sum stipulated to be paid therein. But it is said that, as to the deferred instalments to be paid at Natchez, six per cent, was agreed to be paid, and consequently the presumption is, that six percent, was intended by the parties, as the just indemnification, in case of a failure of payment of the first sum. Had this first sum been made payable in New-York, where seven per cent, is the legal rate of interest, it would have been contended, and it is believed with success, that as the contract was silent, as to the interest to be paid on the first sum, the law must regulate it, and that law must be that of the place of payment. In this respect the judgment needs'no amendment.

As to the interest on the instalments the contract and the law of Mississippi are sufficiently explicit.

We are requested to amend the judgment hy declaring that the notes decreed to be given are not those of the incorporated company. We have decreed what notes are to be given j we need not say waat are not to be given.

A mortgage of the boat was not prayed for jn the petition ; a general performance was not there demanded; its not being denied by the district court was not presented to us as a ground of complaint against the judgment; our attention was not drawn to this part of the case, which was entirely overlooked by the plaintiff’s counsel, and it did not appear our duty to consider it.

It is ordered that the plaintiff take nothing by his motion.  