Pledger v. Mandeville ( 1803 )

Ghhhke, Watíiss, and TJ’-ksziíivant,. Justices,

were of opinion, that it ought‘id be cottfi ted to such cases ; a-.tl that the legislature might have good reasons for restraining the benefit of th.e provision rijade by the clause in question, to such cases' only in which the'parlies should he caielul enough' (o' reduce to writing, and .specify particularly, the terms and-conditiinis of their contract: agid that parol contraes undo-- like circumsfauces,'and with similar conditions, might he considered as not entitled to equal favor; especially as it might have a tendency to induce parties to put their contracts iii writing, which is in all cases to be encouraged, as tooie certain, and less Hablo to misconception, -misconstruction, and to objections-on the ground of fraud.

Johnson, J„

agreed with the construction given by the district court. lie thought a verbal contract, of the same kind, was entitled to the same favor as a written one ; that the contract was the same, and only the evidence to prove the contract was different: as botli cases were within the sámé mischief,' a right of redemption in equity without limitation of time, he thought that by au * . équitable and liberal construction', a' contract with a proviso allow. ing a party tó redeem his pledge within a cértain time, although not reduced to writing, arid'iu the form of a' bill of sale, was within, the act, being within the sanie mischief,' and within the spirit and intention of the act; for that a different' construction would give the mortgagor by parol an indefinite time of redemption, which is limited to two years itr.cases where the terms of the mortgage are put in writing

Falconer; for the plaintiff. Wilds, for the defendants. Present,' Grímice, Waties, Johnson, Tkezevant, and Bke.' yard, Justtces;• Bay, J. absent.

Motion for a new trial discharged.'

Note. The equity of a statute, is a construction made by the judges, that cases out of the letter of a statu'e, yet being within the same mischief, or cause of the making of the same, shall be within the same remedy that the statute provideth: and the reason hereof is, for that the law makers could not possibly set down all cases in exnress terms Co Litt. ¿4 b. Twenty years possessionin England, bars an equity of redemption, by presumption'! See 2 Ves. jr.