the jurisdiction of a Court of Equity is sustainable, wherever the person may be found, although lands not situate within the urisdiction of the Court may be affected by the decree. The jurisdiction is, of course, limited by the ability of the Court to rangement did not promise fairer to be beneficial to the wards, than any other that could have been made; and if it was executed in good faith; why should it be made a ground of charge? Guardians are sometimes chosen for the very reason that their qualifications are diverse, so that each may take charge of those parts of the trust for which his education has fitted him. Thus a lawyer might beneficially leave the management of his ward's furnace or forge, to a colleague, who had been bred an iron master, while he himself attended to the collection of the debts, the settling of the estate, and the preservation of the title papers. Still, it must be admitted, that a guardian commits a breach of trust when he parts, even for a time, with his right of joint control, so as to preclude him from exercising it, when necessity calls for it. Negligence is imputed to the appellant, in omitting to call his colleague to account, when fears of his solvency were actually excited in him. But the ground of these fears was very slight; and therefore, less might justify him in dismissing them. Both then, and afterwards, no one stood higher in public opinion than his colleague as a man of integrity, business, and wealth; and that the appellant had no stronger reasons for suspicion, than that he had sometimes seen him called aside on private affairs, by those who might be duns, evinces a very great degree of vigilant observation. But by these trifles, light as air, his suspicions were actually excited; and they impelled him to do, what a cautious man might be expected to do. He enquired into the disposition made of the moneys, and was told by his colleague, whose truth had never been questioned, that the whole was invested in bonds, and a mortgage on a landed, estate, which was pointed out. To require him to have dealt with his colleague as a rogue, by demanding a sight of the securities, would require of him the highest and most exact diligence; a degree of it that would ruin every guardian in the State. No rate of commission would compensate the risk incurred from such a trust; and no man of prudence in his own affairs would accept it. Again, it is insisted on the authority of Bruce vs. Stokes, 11th Ves., 319, and Walker vs. Symonds, 1 Swan's, 42, that the appellant was guilty of laches in suffering the money to remain in his colleague's hands fourteen years, especially as the statute had made it the duty of guardians to render triennial accounts, without being cited. These two cases would go far to sustain the charge; but there has at all times been more inconsistency of opinion on this subject in the English Courts, than grant the relief sought. Thus, a bill would not be entertained for the partition of lands in a foreign country, because the Court could not issue a commission. on any other, and more than is to be found in our own books on all subjects together. Perfect consistency is unattainable by any Court, and perhaps our own decisions are not free from discrepancies, in regard to principles which are not rules of property; but nothing done by any American Court will bear comparison with the sweeping alterations made by the English judges, on the common law. On the subject before us their decisions have been always loose, and we feel ourselves so far unfettered by foreign precedents, as to be at liberty to adapt the rule of a guardian's vigilance to the business habits and transactions of our own people. If he were held liable for the omission of any imaginary measure of precaution, which human sagacity might foresee, the principle of accountability, would be impracticable, in a country where counsel cannot be consulted at every step, without incurring an expense which would often swallow up the estate. Where the property is small, plain country farmers, unversed in the intricacy of the law, are generally prevailed on by the friends of the infant to take charge of it; and from them justice requires no more than good faith, and vigilance adequate, under the circumstances, to reasonable performance. It certainly does not require that the office of a guardian, should be a trap for the unwary." Similar principles have been affirmed in Alabama. In 3rd Alabama, R., N. S., 83, it was held, that trustees are responsible for their own acts, and not for the acts of each other, unless they have made some agreement, by which they are bound for each other, or have by their own voluntary co-operation or connivance, enabled a co-trustee to accomplish some known object in violation of the trust. CHAPTER XXXIV. PENALTIES AND FORFEITURES. 1. JURISDICTION OF EQUITY IN CASES OF PENALTIES. 1. When do Courts of Equity grant relief against penalties ?1 Wherever the parties to an agreement have fixed upon a certain sum, as the real amount of damages, which one of them will sustain from an act or omission of the other, this amount is not regarded by Courts of Equity as a penalty, but as liquidated damages, which if not unreasonable or extravagant should be borne by the wrong-doer. But wherever a penalty is inser 2 1 "There is perhaps no branch of the jurisdiction of a Court of Equity, more delicate, than that which goes to restrain a legal right. Where, therefore, a condition of forfeiture is annexed to an agreement, for the purpose of enforcing its performance, the Court is extremely cautious in applying relief. The principle by which it is actuated is, that " one party ought not to take advantage of a legal right, where its rigid exercise would produce loss and injury, if he can have the full benefit of his contract as originally framed; and the ground of its interference is the compensation for loss and injury arising from the non-performance which it is enabled to afford." Jeremy on Equity, page 471. 2 The distinction between a penalty and liquidated damages has been frequently discussed in the United States. Where a purchaser of In ted merely to secure the enjoyment or performance of a collateral object, the latter is considered as the intent of the instrument, and the penalty as only designed to secure its due performance, or the damage really incurred by its non-performance, and Courts of Equity will interpose to prevent its full exaction. every such case, the true test to ascertain whether relief can or cannot be had in Equity, is to consider whether compensation can be made or not. If it cannot be made, then Courts of Equity will not interfere. If it can be made, and the penalty is intended merely to secure the payment of money, then they will grant relief upon the payment of the principal and interest. fourteen city lots, covenanted, in consideration of having the property conveyed to him for only $21,000, that he would, by a certain day, erect on the lots, two brick houses of specified dimensions, or, on default thereof, pay to the grantor on demand, the sum of $4000; it was held, that the sum specified was not a penalty, but should be deemed part of the contract price of the lots, and that on failure to erect the houses, the covenantee was entitled to recover the specified sum, as liquidated damages, and could not be limited merely to actual damage, sustained from the non-erection of the houses; 26th Wend., 630. In 17th Wend., 447, and 22nd Wend., 201, it was laid down, by the Supreme Court, and also the Court of Errors of New York, that whether a sum agreed upon by the parties, as the measure of damages for the violation of covenants, shall be considered as liquidated damages, or only as a penalty, depends upon the meaning and intent of the parties, as gathered from a full view of the provisions of the contract, and the terms used to express such intent. Where it is doubtful whether the sum inserted was intended as a penalty, or as liquidated damages, it will be considered in the nature of a penalty; especially if the payment of a certain damage, less than the whole sum, is provided for by the instrument; but where the sum applies as well to stipulations, where the damages in case of breach must necessarily be uncertain, as to stipulations, where the damages would be certain, it will be regarded as liquidated damages, and not as a penalty. Where the plaintiffs gave $3000, for the patronage and good will of a newspaper establishment, and $500, for the type and printing apparatus, and the defendants covenanted that they would not publish, or aid in publishing a rival paper, and fixed the measure of damages, at $3000; the case, from the uncertainty of arriving at a correct conclusion as to the amount of damages, was a proper one for the application of the rule, that the sum agreed upon, should be regarded as stipulated damages, and not as a penalty. See also, 1 Gall. Rep., 160; 1 Wash. C. C. Rep., 1; 9th Cranch, 104; 7th Wheat., 13; 6th Black., 206. It is true, that interest for the delay of payment, may not always furnish an adequate compensation, yet it is a certain and general rule, adapted to ordinary circumstances, and prevailing as well at law as in Equity. If the penalty however, was designed to secure the performance of some collateral act or undertaking, Courts of Equity will retain the bill, and direct an issue of quantum damnificatus; and grant relief upon payment of the damages, which may be awarded. Courts of Equity proceed upon the principle, that, as the penalty is a mere security, and as the party recovering his money with interest, or his damages, obtains all he could have expected, or is entitled to, the other party ought not to be permitted to avail himself of a mere technical right for the purposes of oppression. But they administer a mutual justice, and therefore, where an obligee has been prevented by unfounded and protracted litigation, from prosecuting his claim at law, until the penalty is no longer adequate to secure his rights they will grant a relief commensurate with the original extent of his demand. Thus, when the obligee of a bond has been delayed by the obligor in obtaining a judgment at law, Courts of Equity will decree the payment of all the interest due, although it may exceed the penalty. 2. To what extent do Courts of Equity relieve against forfeitures? An equally liberal rule formerly prevailed in reference to forfeitures, although the act or omission was voluntary, if compensation could be made. It is still admitted, that wherever the condition or forfeiture, is merely a security for the non-payment of money, such as the right to re-enter for non-payment, of rent, there, it is treated as a penalty. But a distinction has been established, at least in England, (although it is condemned by high authority, both there and at home,) in the case of forfeitures arising from the breach of any other covenants of a collateral nature, and Courts of Equity will not ordinarily interfere, but will leave the parties to their remedy at law. Where a penalty or 2 2 Edw. Chy., 138; 7th Paige, 350; 6th Ohio, 50; 5 Munf., 495; 1 Call., 533; 2 J. Ch. R., 526; 4 Johns. Chy. Rep., 431; 7th Paige, 350; 8th Paige, 425. Equity will relieve against penalties and forfeitures, |