OInntpll IGam ^rl|nnl library iMaraliall iEqutty QJoUertioit (iift of S. 31. MataljaU, C-ffi. 1. 1894 CORNELL UNIVERSITY LIBRARY The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31 92408422401 7 CASES ON THE LAW OF EQUITY JURISPRUDENCE AND TRUSTS SELECTED FROM AMERICAN AND ENGLISH DECISIONS BY N. T. ABBOTT, LL. B. PROFESSOR OF LAW IN BOSTON UNIVERSITY SCHOOL OF LAW FIRST EDITION CHICAGO : T. H. FLOOD & COMPANY 1909 Copyright, 1909 BY N. T. Abbott PREFACE THIS selection of cases upon the law of Equity Jurisprudence and Trusts has been most care- fully compiled* by the author and chosen with the aim of giving both the practitioner and student a volume for reference and study which shall prove highly valuable and beneficial by presenting logically and consecutively an array of decisions from Ameri: can and English courts which set forth the law of Equity and substantiate equitable maxims and prin- ciples. In preparing the work an extensive library has been easily accessible, and on this account the choice of the following illustrative cases has been made with a view to using only those which most clearly and accurately demonstrate the law in such a manner, through the strength of their judicial in- terpretations, that they may be relied upon for au- thority and instruction. TABLE OF CONTENTS. CHAPTER I. Page Introduction 1 CHAPTER n. Maxims of Equity 32 CHAPTER HI. Trusts 198 A. Express Trusts 198 1. Subject Matter -of a Trust 198 2. What Constitutes a Trust 200 3. Statute of Frauds 207 4. Statute of Wills 227 5. Precatory Trusts 234 6. Voluntary Trusts 262 (o) Notice to Cestui Que Trust 262 (&) Transfer to Trustee or Donee 275 (c) Gifts between Husband and Wife 321 (d) Notice to Trustee or Donee 331 B. Implied Xrusts 340 1. Resulting Trusts 340 (a) Purchase by One in the Name of Another 340 (6) Advancements 356 (c) Failure of the Trust in Whole or in Part 360 (rf) Conveyance Without Consideration . . . .^ 375 2. Constructive Trusts 379 (a) When Property is Acquired by the Wrongful Use of the Property of Another 379 (6) Statute of Frauds and Wills Not to be Used as Instruments of Fraud 412 C. Charities 450 1. What is a Charity 450 2. The Rule Against Perpetuities 513 3. Cypres Doctrine 535 4. Liability for Torts 539 D. Quantity of Cestui's Estate : 552 E. Powers and Duties of Trustees ■ 553 F. Parties 590 G. Cestui Que Trust's Right in the Trust Property ; 593 H. Purchase for Value Without Notice 596 /. Spendthrift's Trusts 608 /. Cestui Que Trust's Right to a Conveyance of the Trust Property 622 V -Vi TABLE OF CONTENTS. CHAPTER IV. Page Accident 628 A. Lost Instruments 628 B. Penalties 639 C. Forfeiture '. . .4 . 658 D. Time of the Essence of the Contract ', 664 CHAPTER V. Mistake 668 A. Of Law 668 B. Mutual Mistake ; 703 C. Mistake of Fact 723 CHAPTER VI. Specific Performance 733 A. Generally i , 733 B. Time of the Essence of the Contract 786 C. Cloud on Title 790 D. Part Performance 798 CHAPTER VII. Injunctions 807 A. Generally 807 B. Trespass 819 C. Nuisance 829 D. Water Rights : 842 1. Running Streams 842 2. Subterranean Waters 852 3. Surface Waters ; 857 E. Interference with Light and Air 862 P. Interference with Pure Air 870. G. Injury to Lateral Support 876 H. Nuisance by Noise 876 /. Infringement of Patents 893 /. Copyright 899 K. Trademarks 942 L. Contracts for Personal Service 961 M. Torts 976 CHAPTER VIII. Mortgages 994 TABLE OF CASES. Page Adams, In re " 203 Adams v. Adams 334 Adams v. Messinger 25 American Sugar Refining Co. v. Fancher 386 Ames V. Richardson 1S9 Anthony v. Valentine ' 20 Attorney General v. Glyn 537 Atwood V. Fisk 146 Badger v. Badger 87 Bailey v. Insurance Company 590 Barker, In re 594 Barnard v. Lee 786 Bartle v. Nutt 140 Baskett v. Hassell 286 Bates V. Hurd 225 Berry v. Mutual Insurance Co 107 Blakeman v. Blakeman 688 Bleakley's Appeal 144 Blodgett V. Hildreth 375 Boardman v. Jackson 18 Bond V. Moore ■ 372 Boswell V. Goodwin 1026 Boyce's Executors v. Grundy 6 Brandon v. Robinson 616 Breton, In re. Estate 321 Brewer v. Herbert 770 Broadway National Bank v. Adams 618 Bronson v. Cahill 804 Brown v. Brown 327 Brown V. Perkins 831 Burns v. Daggett 800 Bryant v. Peck and Whipple Company 149 Canal Co. v.. Clark , 948 Carey v. Brown 592 Cavin v. Gleason -. 394 Chatfield v. Wilson r .' 852 Chick V. Willetts 1018 Claflin V. Claflin 624 Clark V. Clark 262 Clarke v. Hilton 366 Clements V. Tillman 187 Cobb V. Cole 730 Coleman v. Sarrel 276 vii VUl TABLE OF CASES. Page Colton V. Colton 243 Comstock V. Johnson .151 Conger v. New York, W. S. & B. R. Co 763 Cooper V. Phibbs 680 Cornell v. Hall ,. 1001 Craig V. Leslie 163 Crump V. Lambert 873 Curdy V. Berton -. 440 Danser v. Warwick 207 Debs, In re '. 39 Dering v. Earl of Winchelsea 135 Dickerson v. De La Vergne ., 893 Dickinson, Appellant ., 585 Diggles, In re • 236 Dodge V. Essex Insurance Company 83 Donaldson v Donaldson 304 Dunscomb v. Dunscomb's Ex'rs 156 Dyer v. Dyer 346 Edgerly v. Edgerly ; 356 Edwards v. Culberson 405 Edwards v. Jones 295 Ellcock V. Mapp 368 Ellison V. Moflat 91 Episcopal Society v. Brown 793 Erkens v. Nicolin 689 Eyre v. Higbee 912 Fay V. Whitman 870 Felch V. Hooper 409 Ferris v. Van Vechten 379 Fish V. Leser 765 Forrer v. Nash 796 Fortescue v. Barnett 300 Foster v. Elsley 198 Franklin v. Greene 4 Freeman v. Freeman 798 Fuller V. Percival 22 Gardner v. Rowe 215 Gaunt V. Fynney 836 Gerrish v. New Bedford Inst, for Savings 263 Gilmore v. Driscoll 876 Glass V. Hulbert 703 Glavin v. R. • I. Hospital 543 Grace v. Denison .• 749 Graves v. Graves I99 Grover v. Grover ^ 282 Grymes v. Sanders 723 Hallowell v. Ames IOI6 Harding v. Glyn 234 Harvard College v. Amory 579 Haughwout V. Murphy gOl TABLE OF CASES. ix Page Hawthorne, In re 190 Hendricks v. S. V. M. & I. Co 884 Hendrickson v. Hinckley 807 Hill V. McNichol 596 Hill V. Stevenson 303 Hitchins v. Pettingill . .' 720 Holmes v. Dring 577 Howard v. Harris ; 179 Hunt V. Fowler 506 Hunt V. Rousmaniere's Adm'rs 668 Jackson v. Phillips 450 Jacobs V. Morange 690 Jacquet v. Jacquet ^ 202 Jones V. A. T. & S. F. R. R. Co. 5SS Jones V. Lewis 588 Jones V. Newhall .'. ; 13 Juniper v. Batchelor 233 Keats V. Hugo 862 , Kemble v. Farren 6SS King V. Talbot 578 Ladue v. Detroit 1034 Lambe v. Eames 256 Lembeck v. Nye 821 Licensed Victualer's Newspaper Co. v. Bingham 946 Lilley v. Fifty Associates 662 Lovell V. Leiand 1007 Lumley v. Wagner 961 Ljmes V. Hayden 750 McDonald v. Massachusetts General Hospital 539 McDonough v. O'Neil 352 McGowan v. McGowan -. 354 McVay v. McVay 221 Mactier v. Osborn 658 Malim v. Keighley 206 Manhattan Medicine Company v. Wood 9SS Marble Company v. Ripley 737 Marshall v. Jaquith 325 Martin v. Funk 269 Massie v. Watts . .- 184 Mead V. Parker .'. ; 751 Menendez v. Holt 942 Merchant's Trading Co. v. Banner 752 Merriam v. B. C. & F. R. R. Co 80 Milliken v. Bailey : 1021 Milroy v. Lord .' 307 Miner v. Beekman ; 153 Moore v. Cleghorn 552 Moreland v. Atchison 693 Morice y. Bishop of Durham. 360 Munroe v. Armstrong 665 X TABLE OF CASES. Page Needham v. Railroad Company 829 Newton v.- Porter 399 Nichols V. Allen 497 Nichols V. Eaton 608 Odell V. Odell 523 Old Colony Ry. Corp. v. Evans 742 OUiffe V. Wells 227 Park V. Johnson '. 756 Patton V. Campbell 631 Pegge V. Skjmner 184 Penn v. Lord Baltimore 182 Phelps V. Morrison 598 Phillips V. Pullen 733 Pickering v. Greenwood 664 Piatt Bros. v. Waterbury '., 842 Pratt V. Tuttle 200 Rasdall v. Rasdall 421 Raybould v. Turner 553 Rees V. Watertown 32 Richards v. Delbridge 315 Richardson v. Richardson 318 Riordan v. Banon 415 Roberson v. Rochester Folding Box Co 921 Rogers v. Elliott 885 Rogers v. Ingham 697 Russell V. Allen 513 Russell V. Failor 112 Ryan v. Dox 429 St. Helen's Smelting Co. v. Tipping 833 St. Louis V. O'Neil Lumber Co 127 Saunders v. Vautier 622 Scott V. Berkshire County Savings Bank 332 Searle v. Law ; <■ 275 Sherry v. Perkins 976 Slosson v. Beadle 658 Speight v. Gaunt 559 Springfield v. Harris 850 Spurr v. Scoville 194 Stead V. Mellor 259 Stinchiield v. Milliken ' 175 Stockbridge Iron Co. v. Hudson Iron Co 1 Stone V. Hackett 278 Strong V. Williams 172 Sturtevant v. Jaques 790 Sutton Mnfg. Co. v. Hutchinson 114 Tate V. Williamson 340 Taylor v. Merchant's Fire Insurance Co 777 Taylor v. Russell 92 Thetford School Case 535 Tiemey v. Wood 217 TABLE OF CASES. XI Page Tompkins v. Halleck 899 Tower v. Appleton Bank 634 Tovmsley v. Chapin 66 Trower v. Elder 653 Trull V. Skinner 994 Tuck V. Priester 815 Tuttle V. Standish : 628 Urann v. Coates 212 Vegelahn v. Guntner 981 Walker v. Brewster 888 Wall V. Hickey 412 Wallis V. Smith 639 Warner v. Bates 238 Washburn v. Miller 819 Way, In re Trusts of 331 Weall, In re 445 Webb, In re Estate of 267 Wheeler v. Worcester 857 Wych V. West India Co 593 Wilcocks V. Wilcocks 175 Willard v. Tayloe i 68 Witczinski v. Everman 1030 Woodbury Savings Bank v. Charter Oak Ins. Co 810 Wynne v. Hawkins 258 Youle V. Richards 997 ABBOTT'S EQUITY CASES. CHAPTER I. INTRODUCTION. STOCKBRIDGE IRON COMPANY v. HUDSON IRON COMPANY. (102 Mass. 45.) [Supreme Judicial Court of Massachusetts, 1869.] The first of these suits was a biU in equity alleging that the Stockbridge Iron Company conveyed land to the Hudson . Iron Company, by deed reserving to themselves certain rights of taking ore for their use, and that the Hudson Iron Company obstructed them in the exercise of these reserved rights. The second suit was a cross bill by the Hudson Iron Com- pany, alleging' that the language of the reservation in the deed of the Stockbridge Iron Company to them was inserted in the deed by the common mistake of all parties thereto, and defeated the intention of all said parties, which was, that said rights should be restricted to taking ore for use only of certain furnaces; and the Hudson Iron Company were entitled to have the mistake corrected, and the language of the deed and of the reservation therein reformed so as to conform to the true intent and meaning of all parties thereto. In both cases the Hudson Iron Company moved the court to order an issue to be framed for trial by jury whether the clause restricting the right of taking ore to a right of taking it only for certain furnaces had not been agreed upon by the parties as a term of their contract, and whether such clause had not been omitted from the deed by common mistake. Wells, J., overruled the motions; and the Hudson Iron Company appealed. Chapman, C. J. This is an appeal from an interlocutory de- 2 STOCKBRIDGE IRON CO. V. HUDSON IRON CO. [CHAP. I. cree, denying the motion by the Hudson Iron Company, that an issue be framed to be tried by a jury. It is contended by the counsel of the Stockbridge Iron Company that the motion was addressed to the discretion of the justice, and that no appeal lies from his ruling. The cases of Ward v. Hill, 4 Gray, 593, and Crittenden v. Field, 8 Gray, 621, are cited to sustain this position. But those decisions were made before the existence of the pro- vision of the Gen. Sts. c. 113, § 10. It was held in Wright v. Wright, 13 Allen, 207, that this provision authorized a party, aggrieved by any order or decree of a single judge in an equity or probate cause, to appeal. Under that section the appeal brings up the question whether the ruling shall be affirmed, reversed or modified. The Hudson Iron Company contend that the right of trial by jury is secured to them by art. 15 of the Declaration of Rights; and that it wds so decided in Franklin v. Greene, 2 Allen, 519. But it was not decided in that case that a party to a suit in equity is in all cases entitled to a trial by jury. In alluding to the fact that issues to a jury do not grow out of the pleadings, as in an action at law, but are framed by the court, it is said in that case that the court will, in framing issues, have regard to the consti- tutional provision, and will allow the parties to submit to a jury all such material facts as are proper to be decided by them. But in Charles River Bridge v. Warren Bridge, 7 Pick. 369, Parker, C. J., says that a reasonable construction of art. 15 does not require that a suit in chancery should be tried just as a suit at common law would be, and there is no necessity that the whole case should be put to a jury; and whether the facts proposed to be so tried are essential or not must of necessity be tried by the court. The dictum of Mr. Justice Merrick in Shaw v. Norfolk County Railroad Co., 16 Gray, 409, that there is no doubt that parties in equity are entitled to a trial by jury for the determina- tion of all controverted questions of fact, was an unguarded concession fiot required by the case ; for a trial by jury was there refused. The present is one of the cases where we think it was not in- tended by the framers of the Constitution to give such a right absolutely. It is a bill to correct and reform a contract. There has not been at common law any right to have a written contract corrected or reformed by parol evidence, nor any process by which it could be done. A suit in equity has been the only known remedy; and in such a suit the plaintiff never had the absolute CHAP. I.] STOCKBRIDGE IRON CO. V. HUDSON IRON CO. 3 right of trial by jury. When the Constitution was framed, no general equity jurisdiction had existed here for a long period. Charles River Bridge v. Warren Bridge, 7 Pick. 368. Nor has there been until recently any judicial power to reform a written instrument. Dwight v. Pomeroy, 17 Mass. 303. Leach v. Leach, 18 Pick. 68, 73. Babcock v. Smith, 22 Pick. 61, 69. By the common law, parties who execute written instruments are bound by them, and parol evidence is not admissible to add to or diminish or vary their terms. The rule is of great practical importance for the protection of the interests of the citizen, and it is the more so since parties and interested witnesses are per- mitted to testify. The writing must be regarded, prima facie, as a solemn and delibejate admission of both parties as to what the terms of the contracts actually were; and in Babcock v. Smith it is said that "the power of rectifying and reforming solemn written contracts is one which by courts of general chancery jurisdiction is exercised very sparingly, and only upon the clear- est and most satisfactory proof of the intention of the party." Yet if a mistake is made out by proofs that are entirely satis- factory, equity will reform the contract, so as to make it con- form to the intent of the parties. 1 Sugden on Vend. (7th Am-, ed.) 212. Townshend v. Stangroom, 6 Ves. 328 and note. But the mistake must be of both the parties, and must be about the very subject of the contract. Fry Spec. Perf. 225. Sawyer v. Hovey, 3 Allen, 332. The general rule, that equity will not aid a party who has been guilty of laches, ought also to be applied to this class of cases. In view of these and other considerations, the due protection of the rights of defendants in suits of this character requires that the court should have power in the exer- cise of its discretion, to deny the plaintiff's motion to frame an issue to a jury, and to refuse to grant the relief sought. But on the other hand, it is often proper to submit the principal question in controversy to a jury, and the English courts of chancery haive done so. 1 Sugden on Vend. (7th Am. ed.) 215. In the. present cause, the Hudson Iron Company allege that, the clause set forth in the bill having been in fact agreed upon as one of the terms of the deed, both parties intended to have it inserted in the deed, and it was left out of the deed by the mistake of both parties. On full consideration of the matter, a simple question of fact being presented, the court is of opinion, in the exercise of its discretion, that the motion be granted. The ordinary rule of evidence in civil action, that a fact must 4 FRANKLIN V. GREENE. [CHAP. I. be proved by a preponderance of evidence, does not apply to such a case as this. The proof that both parties intended to have the precise agreement set forth inserted in the deed, arid omitted to do so by mistake, must be made beyond a reasonable doubt, and so as to overcome the strong presumption, arising from their signatures and seals, that the contrary was the fact. In the case of Hudson Iron Company v. Stockbridge Iron Com- pany, an issue is to be framed to a jury. As all the rights of the parties in this respect may be tried and determined upon that issue, it is unnecessary and inappropriate to frame a like issue in the case of Stockbridge Iron Company v. Hudson Iron Company. In that case, therefore, the order of the presiding justice is af- firmed. Ordered accordingly. FRANKLIN v. GREENE. (2 All. 519.) [Supreme Judicial Court of Massachusetts, 1861.] Chapman, J. .Upon an issue framed by order of the court, a jury has found that the note of $821 was obtained by the defend- ants by fraud and misrepresentation. The defendants contend that the plaintiff is entitled to no relief, because the whole evi- dence, notwithstanding the verdict, shows that no fraud was practiced by which he has suffered injury or damage. But in this commonwealth the right of trial by jury is secured by the constitution. In suits in equity the issues do not grow out of the pleadings, as in suits at law, but are framed by the court ; yet in framing the issues the court will have regard to the con- stitutional provision, and will allow the parties to submit to a jury all such material facts as are proper to be decided by them ; and when a verdict is rendered, and not set aside for good cause shown, it will be regarded as settling the facts in issue con- clusively. The defendants contend further that the plaintifif is not entitled to relief, because they allege that he did not offer to rescind the contract after the facts constituting the fraud and misrepresenta- tion had become known to him; but proceeded to take to his own use the property conveyed to him' by the defendants. But CHAP. I.] FRANKLIN V. GREENE. 5 the court are of opinion that this position is not sustained by the evidence. After the alleged communication was made to the plaintiff, Greene assured him that the mortgage was good, and everything was as he sold it to the plaintiff, and was perfectly secure. The plaintiff had a right as against the defendants to rely on this statement. And it does not appear that he was then possessed of any proof that would have justified him in rescind- ing the contract. Nor does it appear that, after knowledge of the facts, he affirmed the contract and agreed to pay the note. The defendants contend that if the plaintiff is entitled to re- lief, it does not extend to the whole note, but only to a deduc- tion of the difference, if any, between the value of what was paid and what was received. This point relates to 125 shares of stock in the New England Mining and Quarrying Company, which the plaintiff sold to defendants, as a part of the contract, and the price of which was estimated at $875. The evidence tends to show that it had no fixed market value, and that it was worth much less than that sum. But the plaintiff practiced no fraud. Both parties had equal opportunity to judge of its value, and it does not appear to have been an unconscionable bargain in this respect. Courts never interfere with prices fixed by par- ties under such circumstances. The defendants contend that if the sale of the armory building by the plaintiff had been properly and judiciously managed, it would have brought a greater price ; and that the loss occasioned by the want of such management should fall upon the plaintiff. But it appears that, as assignee of the mortgage sold to him by - the defendants, the plaintiff sold the property under a power of sale contained in the mortgage; and that he did no more than to exercise the power thus given, openly, fairly, and in compli- ance with its terms. He was under no obligation to wait till the market should improve, and the court ought not to impose an obligation upon him that the parties did not see fit to impose by their contract. The defendants contend that he is not entitled to relief with- out first exhausting his remedies on the note against the makers. But if he had taken such a course he would have exposed him- self to the first objection taken by the defendants, viz. : That he had affirmed the contract after obtaining knowledge of the fraud. The right to rescind the contract, and tender a return of the note, is too well settled to require the citation of authorities. The defendants contend that the plaintiff is not entitled to 6 BOYCE's executors v. GRUNDY. [CHAP. I. relief, because they say he has lessened the value of the note of the Providence Artillery Company as against the makers. But the evidence does not sustain this position. All he has done is to sell the property which was mortgaged to secure the note, so far as he had title thereto. The agreement of the purchaser with the makers was not his act, and he is not responsible for it. He is therefore entitled to the relief he prays for, towit: 1. That the note which was obtained from him by fraud be delivered up to him; and the mortgage given to secure the same be discharged; and that the injunction against the sale be made perpetual. 2. To recover of the defendants the balance due to him on the rescission of the contract. It is objected that the relief cannot be extended thus far, because the specific prayer for relief only asks that the note of $821 and the mortgage be cancelled. But there is also a general prayer for relief ; and under that prayer all relief may be decreed that the nature of the case requires. BOYCE'S EXECUTORS v. GRUNDY. (3 Pet. 210.) [Supreme Court of the United States, 1830.] Appeal from the Circuit Court of the United States for the district of West Tennessee. Suit in equity brought by Grundy to rescind a contract for the purchase, by him, of Boyce, of a tract of land, and to enjoin a judgment at law obtained for the purchase money. The contract was made in July, 1818, the judgment recovered in 1821, the bill filed in August, 1823. The facts appear in the opinion of the court. Johnson, J., delivered the opinion of the court. This is an appeal from the decree of the Circuit Court of West Tennessee, rendered in a case in which the appellee was com- plainant. The bill was filed to obtain the rescission of an agreement entered into on the 3d of July, 1818, between James Boyce, the appellants' testator and devisor, and the complainant, for the CHAP. I.] BOYCe's executors V. GRUNDY. 7 sale of a tract of land lying on the Homochito River, in the State of Mississippi. The grounds set forth in the bill are fraudulent misrepresen- tations. (1) As to the testator's title to the land. (2) As to the locality of the land. (3) As to the liability of the land to inundation. (4) As to the general description of the character and quality of part of the land not examined by complainant. 'We have weighed the allegations of fraud contained in the bill, and are well satisfied that they are material, and such as entitle the complainant to relief, if substantiated. We have also considered the evidence introduced by the com- plainant and compared it with the rebutting testimony introduced . by the appellants,, and are of opinion that the testimony in sup- port of complainant's allegations is full to the purpose of sus- taining his bill, and the credibility of his witnesses fully estab- lished, wherever it has been necessary; so that in those points in which it has been contradicted by the appellants' witnesses, we cannot avoid giving credit to that of the complainant The decree below must, therefore, be sustained, unless the appellants can prevail upon some legal ground which will except this case from the general rules on this subject. The first and principal ground taken is, that the court of law was competent to give relief, and that this court should refuse relief, as well on the general principle as affirmed in the judiciary act, as because : — 1. That the complainant was not prompt in insisting upon the fraud as soon as discovered; and 2. Because he did not avail himseff of it in a plea to the action at law. This court has been often called upon to consider the sixteenth section of the judiciary act of 1789, and as often, either expressly or by the course of its decisions, has held that it is merely declar- atory, making no alteration whatever in the rules of equity on the subject of legal remedy. It is not enough that there is a remedy at law ; it must be plain and adequate, or in other words, as practical and as efficient to the ends of justice and its prompt administration, as the remedy in equity. In the case before us, although the defence of fraud might have been resorted to, and ought to have been sustained in that particular suit, and I will add, would have greatly aided the complainant in a bill to rescind, yet it was obviously not an ade- g BOYCE'S executors v. GRUNDY. [CHAP. 1. quate remedy, because it was a partial one. The complainant would still have been left to renew the contest upon a series of suits ; and that probably after the death of witnesses. That he was bound to be prompt in communicating the fraud when discovered, and consistent in his notice to the opposite party of the use he proposed to make of the discovery, cannot be ques- tioned. But we cannot concede to the appellants' counsel, that the complainant was chargeable with delay or inconsistency in the particulars. In his bill, he alleges that the fraud did not come to his knowl- edge until 1821, and that he forthwith gave notice to James Boyce, that he might resume possession of the premises, and receive the rents and profits, for that he would not comply with the contract; which notice he repeated to the appellants after Boyce's death. It has been argued that the testimony establishes an earlier notice, and even a contemporaneous notice of the facts which thV complainant alleges were concealed or misrepresented. The misrepresentations relied upon are of two classes; those which relate to the land, and those which relate to the title. As to the title, the case furnishes no ground for imputing to the complainant contemporaneous notice of the involved state it was in. The evidence of the fact of representation on this sub- ject, rests chiefly on the deed and the letters from Port Gibson. From these it clearly appears, that so far as j-dates to the two hundred acres purchased from Ellis, the complainant could not, even at the time of sale, have been put on inquiries respecting the title. For the deed expressly imports that the whole land sold was comprised within the grant to Davis. With regard to the land actually comprised within the grant to Davis, if the agreement to make a present sale of land, for which there is to be made present and successive payments to a large amount within four years, does not imply a present title or a present power to sell, it certainly amounts to a representation that, at the end of four years, the seller would be able to make a clear title. But since, upon the discovery made at Port Gibson, the notice given by the complainant was not of an intention to rescind, but of a claim for a deduction pro rata, and since time is expressly given to the extent of four years to make title to the whole tract, we will not affirm that, in the absence of any proof of positive loss from want of title in the interval, if the party had been able CHAP. 1.] BOYCe's executors V. GRUNDY. 9 to make title when the bill was filed, and had so answered, and duly set out the title to be tendered, that it would have been a case for relief. But the defendants in their answers go into an exposition of the only title they can offer, and that is so involved and imperfect, that a court of equity would not even refer it. If, then, the appellants were now before this court, under a bill for a specific performance, it is clear that they must be turned out of court, being incompetent on their part to fulfil the con- tract. The rules of law relating to specific performance and those applied to the rescission of contracts, although not iden- tically the same, have a near affinity to each other. Again, if the object of the complainant's bill had been confined to obtaining an injunction until he could receive from defendant a good title to the land, can it be doubted that where the cause of action at law is a covenant in the same deed which stipulates for such a title, that he would be enjoined until he made a title? And if so, how long is this state of suspense to be tolerated? The title was to be made in four years; this certainly amounts to a representation that he would be able to make title at that time ; but twelve years have now elapsed, and still it is not pretended that a clear legal estate has been acquired. In excuse for this, it is urged that complainant committed the first fault ; that had he been punctual in his payments, Boyce would have been able to procure to be executed to himself, a title that would have enabled him to comply with his agreement. But the state of his title is before us, and a mere tender of money was not sufficient to give him a legal estate. He must still have passed through the delays and casualties incident to a suit in equity, before he could have acquired such an estate as would have satisfied the just claims of the complainant. The case, how- ever, furnishes a more conclusive answer to this argument. The two hundred acres not included in Davis's grant, valued at the average which complainant would have paid for all the good land actually contained within his purchase, would have satisfied every payment that fell due within the four years. This deduction he informed Boyce he would insist upon, and there is no evidence in the cause to make it clear that Boyce did not acquiesce in this agreement. It is argued, that of the defects in Boyce's title the court could not be informed ; that the complainant did not ask for a specific performance, and the defendants were not, therefore, called upon to set out their title. But by referring to the bill it will be seen 10 BOYCe's executors v. GRUNDY. [CHAP. I. that they are expressly called upon to set out their title, and in their Answer undertake to do so, and in the effort exhibit a title which he cannot deny is defective, but instead of setting out a title free from defects, content themselves with showing that the defects are not incurable. With regard to the misrepresentations relating to the land, the only evidence by which it is -attempted to fasten on the complain- ant a want of promptness and consistency in availing himself of the discovery when made, is that by which a kftowledge at the time of the contract is supposed to be established. Of the wit- nesses from whom this evidence has been obtained, it is enough to say, that with the exception of Mr. Poindexter, it is impos- sible to avoid putting their testimony out of the case. And Mr. Poindexter's testimony, even without his subsequent examina- tion, may, without any forced construction, be reconciled with that of the witnesses who testify to the representations made by Boyce at the time of the sale. It relates exclusively to the sub- ject of inundation, and when the complainant spoke to this wit- ness of the island's overflowing, he accompanied it with the asser- tion that the overflowing could be prevented by a levee at a small expense. This may well be confined to the representations re- ceived from Boyce, and does not necessarily imply a knowledge of its being subject to general inundation. Nor was the informa- tion received from Mr. Poindexter on this subject of such full and decided character as to amount to a communication of knowl- edge. It is said that it ought to have been put to him on inquiry ; but he was in possession of Mr. Boyce's positive assurances to the contrary, and had a right to rely upon that assurance without inquiry. The bill alleges the time of coming to his knowledge to have been that of the communication authorizing the party to take possession, and the evidence is not sufficient to prove notice at any previous time. The second ground on this head of the appellants' argument has been partly answered by the doctripe laid down upon the construction of the judiciary act, on the subject of the remedy at law. And so far as it relies on the adjudication quoted from 3 Mer. 12, 225, 226, we think it unsustained. The position is, that an injunction to restrain proceeding on a judgment at law, will be refused by the court of equity to a party who had a defence at law and neglected to plead it. The doctrine of the case quoted, we conceive, has no bearing upon the present. The question there was upon a point of practice, whether a" special CHAP. I.] BOYCE's EXECUTORS W. GRUNDY. 11 injunction should issue instead of the common injunction; there was no question about the right to the latter, but the circum- stances of the case were such, that the common injunction did not afford full relief to the party. The rule of practice, as laid down by the court, is, that the special injunction goes only in those cases in which, from their nature, the defendant can make no defence; such as judgments on warrants of attorney. This was not such a case, but the party went for an exception in his favor, grounded upon a state of facts which brought him within the reason of the rule. And it was in fact granted. It has been further argued for the appellants, that reducing the agreement to writing precludes a recurrence to all representa- tions; and to e^ablish this doctrine, a passage from Sugden has been quoted. It cannot be doubted that, in the language of the author, reducing an agreement to writing is, in most cases, an argument against fraud. But it is very far from a conclusive argument, as is previously shown by the same author on the same page. The doctrine will not be contended for, that a written agreement cannot be relieved against on the ground of false su^estions; and yet if the doctrine of this quotation were the rule, instead of an incident to it, such would be the consequence. There is no attempt, made here to vary the written agreement ; the relief is sought upon the ground, that by false suggestions and immoral concealment, the party seeking relief was entrapped into an agreement in which he would not otherwise have involved himself. This is not denying that the agreement in the record was the agreement entered into, but insisting that it was vitiated by fraud, which vitiates everything. It has been further argued that the misrepresentation, if at all established, was but of a personal character, and susceptible of compensation or indemnity, to be assessed by a jury. On this there may be made several remarks; and first, that if the facts made out such a case, yet the law, which abhors fraud, does not incline to permit it to purchase indulgence, dispensation, or absolution. Secondly, that although, locally, a misrepresentation may be partial, yet it may be vital in its effects upon the views and inter- ests of thp party affected by it. Such was the case of Fulton v. Roosevelt. But lastly, the evidence makes out a case very far removed from one of merely a partial character. North, south, east, and west, we find the misrepresentations influencing the estimate of 12 BOYCE'S executors v. GRUNDY. [CHAP. I, the value of these premises. Indeed, if we are to believe the tes- timony of Randel M'Garvick — and its clearness, fulness, and fairness speaks its own eulogium — a case of more general or more vital misrepresentation, can seldom occur, or a case of more absolute devotion to misplaced confidence. Not only for the quali- ties and incidents, but also for the lines, the representations of the seller were implicitly relied on, and certainly to the most important results as to the value of the property. M'Garvick proves that they were carried to a certain fence, which fence excluded a large knob, as it is called in that country, containing a considerable body of untillable and worthless land, and ex- pressly told by Boyce that the fence was his line. Thus explicitly declaring that that body of bad land was not included in the land sold him, whereas in fact it was included; and in another direc- tion where the land was fine, as if to make up the deficit in quan- tity to an experienced eye, he represents the land in view as being included within his survey, v/hen in fact it was not all included. And suppose the utmost effect be given to the testimony of the appellants, relative to the actual extent to which the island was subject to inundation, still, it leaves wide ground for the charge of misrepresentation. The testimony is full to establish that, in several years the whole has been overflowed. And the most favorable state of facts will leave from one hundred to one hundred and fifty acres, instead of fifteen or twenty, subject to this casualty in ordinary years. This, although partial in one sense, is total as to the dimi- nution of the value of the whole. Compared with the representa- tion proved, it certainly annihilates the very material considera- tion that it admitted of being prevented at a small expense, more especially as the chief injury was to be expected from the waters of the Mississippi. In a purchase of nine hundred and fifty acres at twenty dollars an acre, such a discrepancy between facts and representations as would add thirty-three and a third, or perhaps fifty per cent, per acre to the cost, is not a case for mere compensation. And, if not a case for mere compensation, there was no controlling necessity to send the cause to a jury. The decree must be affirmed, with costs. 9 Pet. 275; 14 Pet. 614. CHAP. I.] JONES V. NEWHALL. 13 JONES V. NEWHALL. (115 Mass. 244.) [Supreme Judicial Court of Massachusetts, 1874.] Bill by Leonard S. Jones against Benjamin B. Newhall to enforce specific performance of a contract for the purchase of all the interests of complainant in the Worthington Land Associates, and all the right and interest of Jones in any property belonging to the Dorchester Land Association, the share of said Jones con- sisting of 14 shares of stock of said land association, together with two certain mortgages. Decree for plaintiff. Case reported to the full court. Bill dismissed. Wells, J. Jurisdiction in equity is conferred upon this court by Gen. St. c. 113, § 2, to hear and determine "suits for the specific performance of written contracts by and against either party to the contract, and his heirs, devisees, executors, admin- istrators and assigns." The power extends alike to written con- tracts of all descriptions, but its exercise is restricted by the pro- viso, "when the parties have not a plain, adequate and complete remedy at the common law." This proviso has always been so construed and applied as to make it a test, in each particular case, by which to determine whether jurisdiction in equity shall be enter- tained. If the only relief to which the plaintiff would be entitled in equity is the same in measure and kind as that which he might obtain in a suit at law, he can have no standing upon the equity side of the court, unless his remedy at law is doubtful, circuitous, or complicated by multiplicity of parties having different inter- ^ ests. Charles River Bridge v. Warren Bridge, 6 Pick. 376, 396 ; Sears v. Boston, 16 Pick. 357; Wilson v. Leishman, 12 Mete. (Mass.) 316, 321; Hilliard v. Allen, 4 Cush. 532, 535; Pratt v. Pond, 5 Allen, 59 ; Glass v. Hulbert, 102 Mass. 24, 27 ; Ward v. Peck, 114 Mass. 121. In contracts for the sale of personal property jurisdiction in equity is rarely entertained, although the only remedy at law may be the recovery of damages, the measure of which is the differ- ence between the market value of the property at the time of the breach and the price as fixed by the contract. The reason is 14 JONES V. NEWHALL. [CHAP. I. that, in regard to most articles of personal property, the com- modity and its market value are supposed to be substantially equivalent, each to the other, so that they may be readily inter- changed. The seller may convert his rejected goods into money ; the purchaser, with his money, may obtain similar goods; each presumably at the market price; and the diiference between that and the contract price, recoverable at law, will be full indemnity. Jones V. Boston Mill Corp., 4 Pick. 507, 511 ; Adderley v. Dixon, 1 Sim. & S. 607 ; Harnett v. Yielding, 2 Schoales & L. 549, 553 ; Adams, Eq. 83; Fry, Spec. Perf. §§ 12, 29. It is otherwise with fixed property like real estate. Compen- sation in damages, measured by the difference in price as ascer- tained by the market value and by the contract, has never been regarded in equity as such adequate indemnity for nonfulfillment of a contract for the sale or purchase of land as to justify the refusal of relief in equity. When that is the extent of the right to recover at law, a bill in equity is maintainable, even in favor of the vendor, to enforce fulfillment of the contract, and payment of the full amount of the price agreed on. Old Colony Railroad V. Evans, 6 Gray, 25. Although the general subject is within the chancery jurisdic- tion of the court, yet inadequacy of the damages recoverable at law is essential to the right to invoke its action as a court of chancery in any particular case. The rule is the same whether applied to the contracts for the sale of real or of personal estate. The difference in the application arises from the difference in the character of the subject matter of the contracts in respect to the question whether damages at law will afford full and adequate indemnity to the party seeking relief." If the character of the property be such that the loss of the contract will not be fairly compensated in damages based upon an estimate of its market value, relief may be had in equity, whether it relates to real or to personal estate. Adderley v. Dixon, 1 Sim. & S. 607 ; Duncuft v. Albrecht, 12 Sim. 189, 199 ; Clark v. Flint, 22 Pick. 231; Story, Eq. Jur. § 717; Adams, Eq. 83; Fry, Spec. Perf. §§ 11, 23, 30, 37. The property in question in this case appears to be of such a character. It is not material, therefore, whether the interest of the plaintiff is in the nature of realty or of personalty. But the relief he seeks is not such as to require the aid of a court of equity. At the time this bill was filed the only obligation on the part of the defendant to be enforced either at law or in equity CHAP. I.] JONES V. NEWHALL. 15 was his express promise to pay a definite sum of money as an installment towards the purchase of certain property from the plaintiff. That promise is supported by the executory agreement of the plaintiff to convey the property, contained in the same instrument, as its consideration; but in respect of performance the several promises of the defendant are separable from the entirety of the contract, and each one may be enforced by itself as an assumpsit. The plaintiff is not obliged to sue in damages upon his contract as for a general breach. He may recover at law the full amount of the installment due. In equity he can have no decree beyond that. He cannot come into equity to obtain precisely what he can have at law. Howe v. Nickerson' 14 Allen, 400, 406; Jacobs v. Peterborough & S. R. Co., 8 Cush. 223 ; Gill v. Bicknell, 2 Cush. 355 ; Russell v. Clark, 7 Cranch, 69. The plaintiff has no occasion for any order of the court in regard to performance by himself. At most, all that is necessary for him to do in order to recover his judgment at law, is to offer a conveyance of a portion of his interest corresponding to the amount of the installment due. We do not regard the fact, stated in the report, "that the defendant also refused to pay an assessment then due, or about to become due," for which he was bound by the contract to pro- vide, and hold the plaintiff harmless; because that is immaterial upon demurrer, there being no allegation in the bill in reference to it. And besides, there would be sufficient remedy at law for such a breach, if it were sufficiently alleged and proved. If the plaintiff will be compelled to bring several actions for his full remedy at law, it is because he has a contract payable in installments; that is, he may have several causes of action. But he may sue them severally, or he may join them all in one suit, when all shall have fallen due, at his own election. He is not driven into equity to escape the necessity of many suits at law. It is true, as the plaintiff insists, that a different rule exists in the English courts of chancery, and that in numerous cases, not unlike the present, relief in equity has there been granted by decree for payment of a sum of money due by contract, although equally recoverable at law. The maxim, which, as we apply it, makes the want of adequate remedy at law essential to the right to have relief in equity in each case, has always been attached to chancery jurisdiction. But in the English courts it has been rather by way of indicating the nature and origin of the jurisdic- tion; and defining the class of rights or subjects to which it 16 - JONES V. NEWHALL. [CHAP. I. ataches, than as a constant limit upon its exercise. Courts of chancery were created to supply defects in proceedings at com- mon law. Story, Eq. Jur. §§ 49, 54. Their jurisdiction grew out of the exigencies of the earlier periods in the judicial history of the country, and was from time to time enlarged to meet those exigencies. Its limits, having become defined and fixed by usage, have not contracted as the jurisdiction of the common law courts was extended. It has always been held that jurisdiction once acquired in chancery, over any subject or class of rights, is not taken away by any subsequent enlargement of the powers of the courts of common law, nor by reason of any new modes of rem- edy that may be afforded by those courts. Story, Eq. Jur. § 641 ; Snell, Eq. 335; Slim v. Crouther, 1 De Gex, F. & J. 518. Hence arose a wide range of concurrent jurisdiction, within which chancery proceeded to administer appropriate remedies, without regard to the question whether a like remedy could be had in the courts of law. Colt v. Wollaston, 2 P. Wms. 154; Green v. Barrett, 1 Sim. 45 ; Blain v. Agar, 2 Sim. 289 ; Cridland V. De Mauley, 1 De Gex & S. 459 ; Evans v. Bicknell, 6 Ves. 174 ; Burrowes v. Lock, 10 Ves. 470. One of its maxims was that there must be mutuality of right to avail of that jurisdiction. Accordingly, if the contract or cause of complaint was such that one of the parties might require the peculiar relief which chan- cery alone could afford, it was frequently held that the principle of mutuality required that jurisdiction should be equally maintained in favor of the other party, who sought and could have no other relief than recovery of the same amount of money due or meas- ure of damages as would have been awarded by judgment in the court of law. Hall v. Warren, 9 Ves. 605 ; Walker v. Eastern Counties Ry. Co., 6 Hare, 594 ; Kenney v. Wexham, 6 Madd. 355. In contracts respecting land there is an additional considera- tion for maintaining jurisdiction in equity in favor of the vendor as well as the vendee, which is doubtless much more influential with the English courts than it can be here ; and that is the doc- trine of equitable conversion. It is referred to as a reason for the exercise of jurisdiction at the suit of the vendor, in Cave v. Cave, 2 Eden, 139; Eastern Counties Ry. Co. v. Hawkes, 5 H. L. Cas. 331 ; Fry, Spec. Perf. § 23. In Massachusetts, instead of a distinct and independent court of chancery, with a jurisdiction derived from and defined and fixed by long usage, we have certain chancery powers conferred upon the court of common law, whose jurisdiction and modes of CHAP. I.] JONES V. NEWHALL. 17 remedy as a court of law had already become extended much beyond those of English courts of common law, partly by stat- utes and partly by its own adaptation of its remedies to the neces- sities which arose from the absence of the court of chancery. This difference in the relations of the two jurisdictions would alone give occasion for different rules governing their exercise. Black V. Black, 4 Pick. 234, 238; Tirrell v. Merrill, 17 Mass. 117, 121 ; Baker v. Biddle, Baldw. 394, Fed. Cas. No. 764. The successive statutes by which the equity powers of this court have been conferred or enlarged have always affixed to their exercise the condition that "the parties have not a plain, ade- quate, and complete remedy at the common law." This has been construed as referring "to remedies at law as they exist under our statutes and according to our course of practice." Pratt v. Pond, 5 Allen, 59. It has also been repeatedly held that, in reference to the range of jurisdiction conferred, the several statutes were to be construed strictly. Black v. Black, and Charles River Bridge V. Warren Bridge, ubi supra. No reason nor necessity remains' for the maintenance of concurrent jurisdiction, except for the sake of a more perfect remedy in equity when the plaintiff shall establish his right to it. And such we understand to be the pur-' port and intent of our statutes upon the subject. Milkman v. Ord- way, 106 Mass. 232; Angell v. Stone, 110 Mass. 54. A similar restriction upon the equity jurisdiction of the federal courts is so construed with great strictness. Oelricks v. Spain, 15 Wall. 211, 228; Grand Chute v. Winegar, Id. i7Z; Phoenix Mut. Life Ins. Co. v. Bailey, 13 Wall. 616 ; Parker v. Winnipiseo- gee Lake Cotton & Woolen Co., 2 Black 545 ; Baker v. Biddle, Baldw. 394, Fed. Cas. No. 764. See, also. Woodman v. Freeman, 25 Me. 531 ; Piscataquis F. & M. Ins. Co. v. Hill, 60 Me. 178. Even in courts of general chancery powers and of independent organization, while the power to entertain bills relating to all matters which in their nature are within their concurrent juris- diction is maintained, yet the usual course of practice is 'to remit parties to their remedy at law, provided that be plain and ade- quate, unless for some reason of peculiar advantage which equity is supposed to possess, or some other cauSe influencing the dis- cretion of the court. Kerr, Fraud & M.45; Bisp. Eq. § 200 ; also. Id. § 37; Snell, Eq. 334; Clifford v. Brooke, 13 Ves. 131; Whit- more v. Mackeson, 16 Beav. 126 ; Hammond v. Messenger, 9 Sim. 327; Hoare v. Breikridge, L. R. 14 Eq. 522, 8 Ch. App. 22. The doctrine of Colt v. Wollaston, 2 P. Wms. 154, and Green 18 BOARDMAN V. JACKSON. [CHAP. I. V. Barrett, 1 Sim. 45, though not expressly overruled, has been questioned {Thompson v. Barclay, 9 Law J. Ch. 215, 219), and does not seem to govern the usual practice of the courts. See cases above cited, and Newham v. May, 13 Price, 749. But, independently of statute restrictions, the objection that the plaintiff may have a sufficient remedy or defense at law in the particular case is a matter of equitable discretion, rather than of jurisdictional right; and is therefore not always available on demurrer. Colt v. Netterville, 2 P. Wms. 304 ; Ramshire v. Bolton, L. R. 8 Eq. 294 ; Hill v. Lane, L. R. 11 Eq. 215 ; Barry v. Croskey, 2 Johns. & H. 1. According to the practice in this commonwealth on the other hand, under the statutes relating to the exercise of jurisdiction in equity, a bill, is demurrable, not only if it show that the plaintiff has a remedy at law, equally sufficient and available, but also if it fail to show that he is without such remedy. Pool v.- Lloyd, 5 Mete. (Mass.) 525, 529; Woodman v. Saltonstall, 7 Cuch. 181; Pratt V. Pond, 5 Allen, 59; Clark v. Jones, Id. 379; Metcalf v. Cady, 8 Allen 587 ; Mill River Loan Fund Association v. ClaMn, 9 Allen, 101 ; Com. v. Smith, 10 Allen, 448 ; Bassett v. Brown, •100 Mass. 355, 105 Mass. 551, 560. The demurrer, therefore, must be sustained, and the bill dismissed. BOARDMAN v. JACKSON. (119 Mass. 161.) [Supreme Judicial Court of Massachusetts, 1875.] Bill in equity filed June 16, 1875, against Abraham Jackson, William M. Byrnes, and Ella S. Cahoon, alleging the following facts : On March 27, 1873, the plaintiff was seized in fee simple of a certain parcel of land, with the dwelling house thereon, situated on Ashland Street, in Boston. On that day, the defendant, Jack- son, intending and contriving to cheat and defraud the plaintiff of. her said estate, fraudulently made or caused to be made a deed thereof to himself, with full covenants of warranty, and forged or caused to be forged thereto the name of the plaintiff as the grantor therein, and fraudulently procured the same to be acknowledged by some person other than the plaintiff; and in CHAP. I.] BOARDMAN V. JACKSON. 19 furtherance of this fraudulent purpose, on August 7, 1874, caused the said deed to be put on record with Suffolk deeds. Jackson, in furtherance of the purpose to injure and defraud the plaintiff in the premises, for the nominal consideration of $10,000, on March 31, 1873, executed and acknowledged a deed of release of the said land and buildings to the defendant Byrnes, which deed of release was, on April 14, 1875, recorded with Suffolk deeds. The deed to Jackson was a forgery, and was made, exe- cuted, acknowledged and recorded without the plaintiff's knowl- edge, signature or consent, and the deed to Byrnes was likewise without her knowledge or consent. The plaintiff immediately upon hearing of the recerds of the deeds, towit, on or about June 8, caused a caveat to be put on record in said Suffolk Registry of Deeds, cautioning all persons from buying or interfering with the said estate. The bill further alleged that Jackson, in furtherance of the said fraudulent purpose, in his own name, on or about September 1, 1873, executed a lease for a term of years of the said dwelling house to James F. Maxwell, who, on April 31, 1875, assigned the same to the defendant Gaboon, who now holds the lease and occu- pies the_ premises, and claims to hold the same as against the plaintiff; that the lease was likewise made in fraud of the plain- tiff's rights in the premises, and without her knowledge and con- sent; and the better to conceal his fraudulent purpose from the plaintiff, Jackson, notwithstanding the forgery of the deed and the execution of the lease, continued to collect and pay over the rents, or a portion thereof, of the premises to the plaintiff until April, 1875, giving her to understand and suppose all the while that he was, by parol agreement, letting the premises and man- aging the same for her. The bill" then alleged that the plaintiff applied to Gaboon, requesting her to pay over to her the rent of the premises, which Gaboon refused and still refuses to do; that the plaintiff fears the deeds aforesaid may be vexatiously or injuriously used against her when the evidence to impeach them is lost, and that they now throw a cloud or suspicion over her title or interest in the prem- ises, and prevent her from the full and entire control and disposal of the same. The prayer of the bill was, that Jackson and Byrnes might be severally ordered to cancel the aforesaid deeds, and that the said forged and pretended deed from the plaintiff to Jackson, and the deed from Jackson to Byrnes, and the lease from Jackson 20 ANTHONY V. VALENTINE. [CHAP. I. to Cahooii, be severally and respectively annulled by a decree of this court; and for general relief. The defendant Byrnes demurred to the bill for want of equity. The case was heard by Wells, J., on the bill and demurrer, and reserved for the consideration of the full court. Gray, C. J. Upon the allegations of the bill, the defendants Jackson and Byrnes have no title in the premises, and the other defendant is in possession under no other title than a lease from Jackson. The plaintiff's remedy at law, by writ of entry against Jackson or Brynes, or both of them", is therefore full, adequate and complete, and this bill cannot be maintained. Brewer v. Stevens, 13 Allen, 346. Pratt v. Pond, 5 Allen, 59. Metcalf v. Cady, 8 Allen, 587. Bassett v. Brown, 100 Mass. 355. Suter v. Matthews, 115 Mass. 253. Swamscott Machine Co. v. Perry, ante, 123. > - Bill dismissed. ANTHONY V. VALENTINE. (130 Mass. 119.) [Supreme Court of Massachusetts, 1880.] Colt, J. This is a bill in equity alleging in substance that the plaintiff, acting as the agent of the defendant, sold certain personal property of the latter to James B. Tennant, and gave his own negotiable promissory note to the defendant for a part of the purchase money, taking at the same time from Tennant a note for the same amount payable to himself. It alleges that this was an arrangement made by all parties for the convenience of Tennant in paying his note; that the pldintiff gave his own note to the defendant without consideration, and only as a mem- orandum that 'Tennant's note belonged to' the defendant, and was held by the plaintiff only for him ; and that the latter agreed that he would make no other use of the note signed by the plaintiff. The prayer is that the defendant may be restrained from pros- ecuting his suit at law commenced for the collection of this note; and that the same may be surrendered to the plaintiff; and for such other relief as the nature of the case requires. The bill is demurred to ; and, in our opinion, it fails to state a case within the equity jurisdiction of this court. It is not a bill CHAP. I.] ANTHONY V. VALENTINE. 21 for the regulation or enforcement of a trust. It does not state that any trust was created, or was intended to be created, be- tween the parties. The note was delivered and was made payable to the defendant. There is no allegation that it was obtained by fraud, accident or mistake, and, if founded on a good considera- tion, it is a valid contract. So far as the bill sets up a want of consideration, the difficulty is that it states a defence which can be availed of as effectually in the pending suit at law, as in this suit in equity. Slade v. Hood, 13 Gray, 97. Corlies v. Howe, 1 1 Gray, 125. And see Hodgkins v. Moulton, 100 Mass. 309. It is well settled that the rule which excludes parol evidence, when offered to change an unconditional written promise into, a conditional or qualified undertaking, is applied with the same • force and effect b6th in law and equity, and prevents the plaintiff in either court from showing, contrary to the terms of the note, that the defendant agreed not to collect it until the note held by the plaintiff had been paid by Tennant. There is a ground of equity jurisdiction, which supports a bill brought for the purpose of protecting a plaintiff against an in- valid contract in the possession pf a defendant, when the invalid- ity is not apparent on the face of the instrument, and when there is danger that the evidence to support a defence to it in a court of law may be lost by the delay of the other party to pros- ecute his claim. In Hamilton v. Cummings, 1 Johns. Ch. 517, Chancellor Kent inclines to the opinion that the jurisdiction is to be upheld, whether the instrument is or is not void at law, or whether it be void from matter apparent on its face, or from proof taken in the case ; but he adds, "While I assert the author- ity of the court to sustain such bills, I am not to be understood as encouraging applications where the fitness of the exercise of the power of the court is not pretty strongly displayed." What- ever may be the precise limits of this jurisdiction, however, it is plain that the present case is not brought by proper allegations within it. The charge that the defendant is now proceeding to enforce his note in a suit at law, is entirely inconsistent with the charge that by his unreasonable delay there is danger to the plaintiff of the loss of evidence necessary to a legal defence. Fuller V. Percival, 126 Mass. 3S1. When this element does not exist, and the defence is one which may be made equally effectual in a suit at law, it cannot be said that the plaintiff is without a plain, adequate and complete remedy. Two cases are cited by the plaintiff in support of the jurisdic- 22 FULLER V. PERCIVAL. [CHAP. I. tioH in this case. In Atlantic De Laine Co. v. Tredick, 5 R. I. 171, it does not appear what the allegations of the bill were; the bill was not demurred to; and the case may have been fairly brought within the jurisdiction of the court as a bill to enforce a trust or to procure the cancellation of an invalid writ- ten instrument. In Ferguson v. Fisk, 28 Conn. 501, the suit was plainly maintained on the ground that it stated a case for the cancellation of an acceptance within the authority of Hamil- ton V. Cummings, above cited, and also cited in the Connecticut case in support of the decision then made. Demurrer sustained. FULLER V. PERCIVAL. (126 Mass. 381.) [Supreme Judicial Court of Massachusetts, 1879.] Colt, J. These are two bills in equity, originally brought by Henry D. Fuller. On his death his administrator was admitted to prosecute them. ^ In both of the bills it is alleged that the notes to which they relate were given by the defendant Gustavus Per- civalj who with Henry D. Fuller composed the firm of Percival, Fuller & Company; that they were given in the name of the firm, by Gustavus, without the knowledge of his copartner, in fraud of the firm ; and that Ihis fraud was known to and par- ticipated in by the defendant John P. T. Percival. The two notes for $2,500 each, for relief against whicji the first suit is brought, were notes payable on demand, and are still retained . by John. The note for $5,000, to which the second suit relates, was payable in ninety days, and was passed by John to third parties, Who claim to be, and upon the allegations in the bill must be taken to be, innocent holders. The latter have brought an action at law upon the note against the firm, which is now pending, but they are not made parties to the bill. The oath of the defendants in each case is waived. The prayer in the first case is, that John may be ordered to produce and cancel the two first-named notes, and may be restrained from enforcing them; and in the second, that he may be, ordered to pay, take up and cancel the larger note, and be restrained from enforcing it. In each case, a demurrer for want of equity was CHAP. I.] FULLER V. PERCIVAL. 23 overruled, and the order appealed from, and a decree for the plaintiff on the final hearing was also appealed from. The weight of modern authority supports the jurisdiction in equity of suits for the cancellation of written instruments ob- tained by fraud. It is exercised for the purpose of affording relief against invalid executory contracts in the possession of another, where the invalidity is not apparent on the instrument itself, and where the defence may be nullified by intentional delay to sue until the evidence in support of it is lost. Adams Eq. 174. In Hamilton v. Cummings, 1 Johns. Ch. 517, Chancellor Kent, after a full and critical examination of the English cases, de- clares that he is inclined to the opinion, that the jurisdiction is to be upheld wheth%r the instrument is or is not void at law, and whether it be void from matter appearing on its face, or- from proof taken in the cause. But further on he adds, that "perhaps the cases may all be reconciled on the general prin- ciple, that the exercise of this power is to be regulated by sound discretion, as the circumstances of the individual case may dic- tate; and that the resort to equity, to be sustained, must be expedient, either because the instrument is liable to abuse from its negotiable nature, or because the defence not arising on its face may be difficult or uncertain at law, or from some other special circumstances peculiar to the case, and rendering a resort here highly proper, and clear of all suspicion of any design to promote expense and litigation." This doctrine was recognized by this court in Commercial Ins. Co. V. McLoon, 14 Allen, 351, where a bill alleging that the defendant had obtained a policy of insurance by fraud, which gave him an apparent cause of action, from which the plaintiff was in danger, and praying that the policy might be given up and cancelled, was sustained. See also Martin v. Graves, 5 Allen, 601 ; Peirsoll v. Elliott, 6 Pet. 95 : Story, Eq. Jur. §§ 694, 700. As to -the first case, the plaintiff upon the allegations in the bill comes within the recognized jurisdiction of the court. The notes are in the possession of a fraudulent holder, who has demanded payment of the plaintiff; they are negotiable, and although overdue may be sued by such holder, or by others to whom he may hereafter transfer them, to the embarrassment of the plaintiff, and no suit at law has yet been commenced upon them. The partnership is dissolved and its affairs are in course of settlement in this court, its effects being in the hands of a receiver. The plaintiff cannot try the question of the partner- 24 FULLER V. PERCIVAL. {CHAP. I. ship liability at law until such time as John P. T. Percival may see fit to bring his action. The settlement of the affairs of the firm must be delayed until the question is settled. And, upon the whole, we are of opinion that the plaintiff is entitled to relief he seeks. It is more .effectual than it can be at law, because it is more speedily afforded, and enables the plaintiff to protect himself before the evidence is lost. In this case the entry must be Decree affirmed. But different considerations apply to the second suit. An action at law is now pending against the firm, upon the note to which the second suit relates, in favor of the present holders .of that note. It is not alleged in this bill that the . plaintiff has any defence which can be availed of against the holders of that note. Jhe allegation is that John P. T. Percival fraudulently nego- tiated it to the present holders for the purpose of enabling them to collect it out of the property of the firm. The plaintiff cannot escape his liability to the holders. Upon "the payment of the note he may at once commence an action at law in his own name alone to recover for the fraud alleged to have been practiced upon him, and in that action his remedy is fuU, adequate and complete against the parties to the fraud. Longman v. Pole, Mood. & Malk. 223; Story Part. § 256. The remedy at law would be as speedy and as effectual as a remedy by decree in this suit requiring the defendant John P. T. Percival to give bond for the payment of the judgment to be recovered in the pending action at law, or to pay the note and surrender it for cancellation. And in this second case the entry must be Bill dismissed. CHAP. I.] ADAMS V. MESSINGER. 2S ADAMS V. MESSINGER. (147 Mass. 185.) [Supreme Judicial Court of Massachusetts, 1888.] Bill in equity, filed March 15, 1887, alleging that the de- fendant, who was the owner of letters patent of the United States, and the plaintiff j ^yho was the owner of similar letters patent of the Dominion of Canada, executed the following instrument under seal. "Memorandum of agreement made this sixth day of May, 1886, between William T. Messinger and George B. Adams, both of Cambridge, Massachusetts, which, witnesseth as follows : "Said Messinger agrees to furnish and deliver to said Adams, within three months from this date, one perfect working injec- tor of the sizes one, two, three, four, five, and six, in place of the same number of said machines now in possession of said Adams, the said injectors to be tested under the following con- ditions, viz. : To be connected with street water main and steam pressure varying from twenty to one hundred and fifty pounds; to lift from four to twenty feet steam pressure varying from twenty to one hundred and fifty pounds. Upon delivery of said injectors, so tested, said Adams agrees to pay said Messinger ($500) five hundred dollars in cash. "Said Messinger further agrees to furnish and deliver to said Adams, within six months from this date, one perfect working injector of sizes seven, eight, nine, ten, and twelve, which shall be tested under the same conditions as numbers one, two, three, four, five, and six, and also to permit said Adams to copy any drawings which said Messinger may make, or have made, of any of said sizes of injectors or alterations therein. Upon the delivery of said injectors, so tested, said Adams agrees to pay said Messinger for said sizes, seven, eight, nine, ten, and twelve the list price according to catalogue now printed, with eighty per cent discount, and surrender to said Messinger his prom- issory note for $181.13, to order of George B. Adams, dated of even date herewith. The foregoing tests shall be made in pres- 26 - ADAMS V. MESSINGER. [CHAP. I. ence of said Adams, or some person appointed by him for that purpose. "By the term 'injector' in this agreement is meant the W. T. M. injectors for steam boilers made under and according to letters patent of the Dominion of Canada issued to said Messinger, dated August 1, 1884, and numbered 19,876, dated September 8, 1884, and numbered 20,162, and dated September 8, 1884, and num- bered 20,164, and similar letters patent of the United States. "Any and all improvements that said Messinger may make in injectors, for steam boilers shall be, so far as the Dominion of Canada is concerned, for the benefit of said Adams, and when- ever said Messinger shall take out any letters patent of the United States for said injectors for steam boilers, he or his heirs or assigns shall forthwith apply for letters patent of the Dominion of Canada, and upon receiving the same shall immediately, with- out any further consideration, assign and convey the same to said Adams or his legal representatives, and further that in any busi- ness or operation he may engage in under letters patent of the United States, or in any other business, he will not directly nor indirectly do any act to the prejudice of the said letters patent of the Dominion of Canada, or the monopoly thereby secured. "Witness our hands and seals the day and year first above written. Wm. T. Messinger. (l. s.) Geo. B.Adams. (l. s.)" The bill also alleged that the defendant, since the date of the agreement, had taken out letters patent of the United States for improvements- in such injectors, viz.: Letters Patent No. 350,545, No. 350,546, and No. 350,547, all bearing date October 12, 1886; that the plaintiff had always been ready, and had offered spe- cifically, to perform the above agreement on his part ; that the plaintiff had frequently applied to the defendant, and requested him to perform the agreement on his part, but he had refused and neglected to perform the same, or any part thereof; and that by reason of the peculiar nature and construction of such injectors, of which the defendant was the inventor, the plaintiff had been unable to supply himself therewith elsewhere, but could only obtain them at the hands of the defendant, and had suffered great and peculiar and unusual damage by reason of the defend- ant's refusal to furnish them, and by reason of the defendant's refusal to apply for and assign to him Canadian letters patent. The prayer of the bill was : 1st, that the defendant might be decreed specifically to perform the agreement, and that for the CHAP. I.] ADAMS V. MESSINGER. 27 purposes aforesaid all proper directions might be given and in- quiries made; 2d, that there might also be an assessment of the damages sustained by the plaintiff by reason of the defendant's neglect to perform his agreement, and that the defendant might be ordered to pay the same ; and, 3d, that in the meantime the defendant might be restrained from alienating or encumbering his right to letters patent of the Dominion of Canada. The defendant demurred to the bill on the following grounds : "1. That the plaintiff has not stated such a. case as entitles him to any relief in equity against the defendant. 2. That the plain- tiff has a plain and adequate remedy at law. 3. That the agree- ment, specific performance of which the plaintiff prays may be decreed, is a contract for personal services. 4. That the specific performance, which the plaintiff prays may be decreed, requires the exercise of mechanical skill, intellectual ability, and judgment. 5. That the specific performance of said agreement involves the building of a machine embodying a patent. 6. That the securing of letters patent in Canada involves the actions of officers of a foreign government, and cannot be the subject of an order for specific performance. 7. That it does not appear by said bill what relief the plaintiff prays for, and the plaintiff's bill is entirely indefinite and uncertain." W. Allen, J., sustained the demurrer; and the plaintiff ap- pealed to the full court. Devens, J. It is the contention of the defendant, that the plaintiff has a full, complete, and adequate remedy at common law by an action for damages, and that the court sitting in equity cannot grant the relief sought by the prayer of the bill. The controversy arises from the failure to perform an execu- tory written contract. So far as this relates to personal prop- erty, the objections arising from the statute of frauds, which have sometimes been found to exist when oral contracts were sought to be enforced, have of course no application. The general rule that contracts as to the purchase of personal property are not specifically enforced, as are those which relate to real property, does not rest on the ground of any distinction between the two classes of property other than that which arises from their character. Contracts which relate to real property can necessarily be sat- isfied only by a conveyance of the particular estate or parcel con- tracted for, while those which relate to personal property are often fully satisfied by damages which enable^ the party injured 28 ADAMS V. MESSINGER. [CHAP. I. to obtain elsewhere in the market property precisely similar to that which he had agreed to purchase. The distinction between real and personal property is,entirely subordinate to the question whether an adequate remedy can thus be afforded. If, from the nature of the personal property, it cannot, a court of equity will entertain jurisdiction to enforce the contract. Story Eq. Jur. § 717. Clark v. Flint, 22 Pick. 231. A contract for bank, rail- way, or other corporation stock freely sold in the market, might not be tlius enforced, but it would be otherwise where the stock was limited in amount, held in a few hands, and not ordinarily to be obtained. White v. Schuyler, 1 Abb. Pr. (N. S.) 300; Treasurer v. Commercial Mining Co., 23 Cal. 390; Poole v. Mid-, dleton, 29 Beav. 646; Doloret v. Rothschild, 1 Sim. & Stu. 590. See Chaffee v. Middlesex Railroad, 146 Mass. 224. Where articles of personal property are also peculiar and indi- vidual in their character, or have an especial value on account of the associations connected with them, as pictures, curiosities, family furniture or heirlooms, specific performance of a contract in relation to them will be decreed. Lloyd v. Loaring, 6 Ves. 773 ; Fells V. Read, 3 Ves.' Jr. 70 ; Lowther v. Lowther, 13 Ves. 95 ; Williams v. Howard, 3 Murphey, 74. An agreement to assign a patent will be specifically enforced. Binney v. Annan, 107 Mass. 94. Nor do we perceive any reason why an agreement to fur- nish articles which the vendor alone can supply, either because their manufacture is guarded by a patent or for any similar reason, should not a'lso be thus enforced. Hapgood v. Rosen- stock, 23 Fed. Rep. 86. As the value of a patent right cannot be ascertained by computation, so it is impossible with any approach to accuracy to ascertain how much a vendee would suffer from not being able to obtain such articles for use in his business. The contract of the defendant was twofold, to furnish and de- liver certain described working steam injectors within a speci- fied time to the plaintiff, and also that, if the defendant shall make improvements in injectors for steam boilers, and shall take out patents therefor in the United States, he will apply for let- ters patent in Canada, and on obtaining them will assign aqd convey the same to the plaintiff, and that he will not do any act prejudicial to these letters patent of Canada or the monopoly thus secured. It is said that the court will not enforce a contract for per- sonal services when such services require the exercise of pecu- liar skill, intellectual ability, and judgment, and therefore that CHAP. I.] ADAMS V. MESSINGER. 29 the defendant cannot be ordered to ma,ke and deliver the injec- tors contracted for. But the principle on which it is held that a court of equity cannot decree one to perform a personal service involving peculiar talent or skill, because it cannot so mold its order and so supervise the individual executing it that it can determine whether he has honestly obeyed it or not, has no appli- cation here. The defendant has agreed to furnish and deliver certain in- jectors, which the contract shows to be patented articles. It does not appear from the bill that they were yet to be made when the contract, was executed. But if it be assumed that they were, there is nothing from which it can be inferred that any skill peculiar to the defendant was required to construct them. For aught that appears, they could be made by any intelligent artificer in the metals of which they are composed. The details, of their manufacture are given by reference to the patents which are referred to in the agreement, so that no difficulty such as has sometimes been experienced could have been found in de- scribing accurately, and even minutely, the articles to be fur- nished. Nor are there found in the case at bar any continuous duties to be done, or work to be performed, requiring any per- manent supervision, which, as it could not be concluded within a definite and reasonable time, has sometimes been held an ob- stacle to the enforcement of a contract by the court. Agreements to make an archway under a railway, or to con- struct a siding at a particular point for the convenience of the landowner, have been ordered to be specifically enforced. Al- though the party aggrieved might have obtained damages which would have been sufficient to have enabled him to pay for con- structing them, and although the work to be done necessarily involved engineering skill as well as labor, he was not bound to assume the responsibility or the labor of doing that which the defendant had agreed to do. Storer v. Great Western Railway, 2 Yo. & Col. Ch. 48 ; Greene v. West Cheshire Railway, L. R. 13 Eq. 44. The case at bar is readily distinguishable from that of Wollensak v. Briggs, 20 Bradw. (111.) SO, on which the defendant much relies. In that case, the defendant was to construct for the .plaintiff certaih improved machinery for a particular purpose, but no details were given as to the form, structure, principle, or mode of operating the proposed machine. It was obviously a contract too indefinite to enable the court to order its specific enforcement. It is urged that specific performance of a part only of a con- 30 ADAMS V. MESSINGER. [CHAP. L tract will not be ordered when it is not in the power of the court to order the enforcement of the whole, and that it would not be possible to enforce that portion of the contract which relates to the application for letters patent in Canada, and the subsequent assignment of them. But where two parts of a contract are dis- tinctly separable, as in the case at bar, there is no reason why^ one should not be enforced specifically, and the plaintiff com- pensated in damages for the breach of the other. When a contract relates to but a single subject, and it is im- possible for the defendant to perform it, except partially, the plaintiff 'is entitled to the benefit of such partial performance, and to compensation, if it be possible to compute what is just, so far as it is unperformed. It was therefore held in Davis v. Parker, 14 Allen, 94, that where one had agreed to convey land with release of dower, and was unable to procure a release of dower, the purchaser was entitled to a conveyance without such release, with an abatement from the purchase money of the value of the wife's interest at the time of the conveyance. See also Milkman v. Ordway, 106 Mass. 232, 253 ; Curran v. Holyoke Water Power Co., 116 Mass. 90. We have assumed, in favor of the defendant's contention, that the only relief that the plaintiff could obtain for the breach of that portion of the agreement which relates to the application for a patent in Canada, for the improvements which the defend- ant had made, would be in damages. We have not intended thus to decide. That equity, by virtue of its control over the persons before the court takes cognizance of many things which they may do or be able to do abroad, while they are themselves personally here, will not be controverted. One may be enjoined from prosecuting a suit abroad. He may be compelled to con- vey land situated abroad, although the conveyance must be ac- cording to the laws of the foreign country, and must be sent there for record. Pingree v. Coffin, 12 Gray, 288 ; Dehon v. Fos- ter, 4 Allen, 545 ; Cunningham v. Butler, 142 Mass. 47 ; Newton V. Branson, 13 N. Y. 587 ; Bailey v. Ryder, 10 N. Y. 363. There is nothing to show that the defendant, in making his application in Canada for the patent, is compelled to leave the State, any more than he would be compelled to do so if he was an applicant at Washington. The grant of such a patent is an act of administration only. If it were to be granted here, the party would be ordered to make application. It was held in Runstetler v. Atkinson, MacArthur & Mackey, 382, that where CHAP. I.] ADAMS V. MESSINGER. 31 a formal assignment of an invention had not been made, but a valid agreement had been made to assign, equity would order the party to make the formal assignment, and also to make appli- cation for the patent which, in such case, would issue to the assignee. The laws of Canada, which we can know only as facts, are not before us by any allegations as to them. If all that is required by them is a formal application in writing by the in- ventor, there would seem to be, from the allegation of the bill, sufficient reason why the defendant should be required to make and forward it, or place it in the hands of the plaintiff to be forwarded to the Canadian authorities. In any event, as the application is preliminary only to obtain- ing letters patent forthe purpose of assigning them to the plain- tiff, the averments of the bill taken in connection with the terms of the agreement set forth a good reason why the plaintiff may ask an assignment of his title to the improvements in question from the defendant, so far as the Dominion of Canada is con- cerned, and also why the defendant should be restrained from alienating or in any way incumbering any right he may have to letters patent from Canada, if the plaintiff should decide to seek his remedy in this form, rather than in damages for breach of this part of the contract. Demurrer overruled. 32 REES V. CITY OF WATERTOWN. [CHAP. II. CHAPTER II. MAXIMS OF EQUITY. REES V. CITY OF WATERTOWN. (19 Wall. 107.) [Supreme Court of the United States, 1873.] Mr. Justice Hunt delivered the opinion of the court. This case is free from the objections usually made to a recov- ery upon municipal bonds. It is beyond doubt that the bonds were issued by the authority of an act of the legislature of the State of Wisconsin, and in the manner prescribed by the statute. It is not denied that the railroad, in aid of the construction of which they were issued, has been built, and was put in operation. Upon a class of the defences interposed in the answer and in the argument it is not necessary to spend much time. The the- ories upon which they proceed are vicious. They are based upon the idea that a refusal to pay an honest debt is justifiable because it would distress the debtor to pay it. A voluntary refusal to pay an honest debt is a high oflfence in a commercial community and is just cause of war between nations. So far as the defence rests - upon these principles we find no difficulty in overruling it. There is, however, a grave question of the power of the court to grant the relief asked for. We are of the opinion that this court has not the power to direct a tax to be levied for the payment of these judgments. This power to impose burdens and raise' money is the highest attribute of sovereignty, and is exercised, first, to raise money for public purposes only; and, second, by the power of legisla- tive authority only. It is a power that has not been extended to the judiciary. Especially is it beyond the power of the Fed- eral judiciary to assume the place of a State in the exercise of- this authority. at once so delicate and so important. The ques- tion is not entirely new in this court. In the case of Supervisors v. Rogers, 7 Wall. 175, an order CHAP. II.] REES V. CITY OF WATERTOWN. 33 was made by this court appointing the marshal a commissioner, with power to levy a tax upon the taxable property of the county, to pay the principal and interest of certain bonds issued by the county, the payment of which had been refused. That case was like the present, except that it occurred in the State of Iowa, and the proceeding was taken by the express authority of a statute of that State. The court say: "The next question is as to the appointment of the marshal as a commissioner to levy the tax in satisfaction of the judgment. This depends upon a pro- vision of the code of the State of Iowa. This proceeding is found in a chapter regulating proceedings in the writ of mandamus, and the power is given to the court to appoint a person to dis- charge the duty enjpined by the peremptory writ which the de- fendant had refused to perform, and for which refusal he was liable to an attachment, and is express and unqualified. The duty of levying the tax upon the taxable property of the county to pay the principle and interest of these bonds was specially en- joined upon the board of supervisors by the act of the legislature that authorized their issue, and the oppointment of the marshal as a commissioner in pursuance of the above section is to provide for the performance of this duty where the board has disobeyed or evaded the law of the State and the peremptory mandate of the court." The State of Wisconsin, of which the city of Watertown is a municipal corporation, has passed no such act. The case of Su- pervisors V. Rogers is, therefore, of no authority in the case before us. The appropriate remedy of the plaintifif was and is a writ of mandamus. This may be repeated as often as the occasion requires. It is a judicial writ, a part of a recognized course of legal proceedings. In the present case it has been thus far una- vailing, and the prospect of its future success is, perhaps, not flattering. However this may be, we are a^vare of no authority in this court to appoint its own officer to execute the duty thus neglected by the city in a case like the present. In Welch v. St. Genevieve, 10 Am. Law Reg. (N. S.) 512, at a Circuit Court for the district of Missouri, a tax was ordered to be levied by the marshal under similar circumstances. We are not able to recognize the authority of the case. No counsel ap- peared for the city (Mr. Reynolds as amicus curiae only) ; no authorities are cited which sustain the position taken by the court; the power of the court to make the order is disposed of in a single paragraph, and the execution of the order suspended 34 REES V. CITY OF WATERTOWN. [CHAP. II. for three months to give the corporation an opportunity to select officers and itself to levy and collect the tax, with the reservation of a longer suspension if it should appear advisable. The judge, in delivering the opinion of the court, states that the case is without precedent, and cites in support of its decision no other cases than that of Riggs v. Johnson County, 6 Wall. 166, and Lansing v. Treasurer. The first case cited does not touch the present point. The question in that case was whether a mandamus having been issued by a United States court in the regular course of proceed- ings, its operation could be stayed by an injunction from the State court, and it was held that it could not be. It is probable that the case of Supervisors v. Rogers was the one intended to be cited. This case has already been considered. The case of Lansing v. Treasurer (also cited), arose within the State of Iowa. It fpU within the case of Supervisors v. Rogers, and was rightly decided because authorized by the express statute of the State of Iowa. It offered no precedent for the decision of a case arising in a State where such a statute does not exist. These are the only authorities upon the power of this court to direct the levy of a tax under the circumstances existing in this case to which our attention has been called. The plaintiff insists that the court may accomplish the same result under a different name, that it has jurisdiction of the per- sons and of the property, and may subject the property of the citizens to the payment of the plaintiff's debt without the inter- vention of State taxing officers, and without regard to tax laws. His. theory is that the court should make a decree subjecting the individual property of the citizens of Watertown to the payment of the plaintiff's judgment; direct the marshal to make a list thereof from the assessment rolls or from such other sources of information as he may obtain; report the same to the court, where any objection should be heard; that the amount of the debt should be apportioned upon the several pieces of property owned by individual citizens ; that the marshal should be directed to collect such apportioned amount from such persons, or in default thereof to sell the property. As a part of this theory, the plaintiff argues that the court has authority to direct the amount of the judgment to be wholly made from the property belonging to any inhabitant of the city, leaving the citizens to settle the equities between themselves. This theory has many difficulties to encounter. In seeking to obtain for the plaintiff his just rights we must be careful not to CHAP. II.] REES V. CITY OF WATERTOWN. 35 invade the rights of others. If an inhabitant of the city of Water- town should own a block of buildings of the value of $20,000, upon no principle of law could the whole of the plaintiff's debt be collected from that property. Upon the assumption that indi- vidual property is liable for the payment of the corporate debts of the municipality, it is only so liable for its proportionate amount. The inhabitants are not joint and several debtors with the corporation, nor does their property stand in that relation to the corporation or to. the creditor. This is not the theory of law, even in regard to taxation. The block of buildings we have supposed is liable to taxation only upon its value in proportion to the value of the entire property, to be ascertained by assess- ment, and when the. proportion is ascertained and paid, it is no longer or further liable. It is discharged. The residue of the tax is to be obtained from other sources. There may be repeated taxes and assessments to make up delinquencies, but the principle and the general rule of law are as we have stated. In relation to the corporation before us, this objection to the liability of individual property for the payment of a corporate debt is presented in a specific form. It is of a statutory character. The remedies for the collection of a debt are essential parts of the contract of indebtedness, and those in existence at the time it is incurred must be substantially preserved to the creditor. Thus a statute prohibiting the exercise of its taxing power by the city to raise money for the payment of these bonds would be void. Van Hoffman v. Quincy, 4 Wall. 535. But it is other- wise of statutes which are in existence at the time the debt is contracted. Of these the creditor must take notice, and if all the remedies are preserved to him which were in existence when his debt was contracted he has no cause of complaint. By section nine of the defendant's charter it is enacted as fol- lows : "Nor shall any real or personal property of any inhabitant of said city, or any individual or corporation, be levied upon or sold by virtue of any execution issued to satisfy or collect any debt, obligation, or contract of said city." If the power of taxation is conceded not to be applicable, and the power of the court is invoked to collect the money as upon an execution to satisfy a contract or obligation of the city, this section is directly applicable and forbids the proceeding. The process or order asked for is in the nature of an execution; the property proposed to be sold is that of an inhabitant of the city ; the purpose to which it is to be applied is the satisfaction of a 36 REES V. CITY OF WATERTOWN. [CHAP. II. debt of the city. The proposed remedy is in direct violation of a statute in existence when the debt was incurred, and made known to the creditor with the same solemnity as the statute which gave power to contract the debt. All laws in existence when the contract is made are necessarily referred to in it and form a part of the measure of the obligation of the one party, and of the right acquired by the other. But independently of this statute, upon the general principles of law and of equity jurisprudence, we are of the opinion that we cannot grant the relief asked for. The plaintiff invokes the aid of the principle that all legal remedies having failed, the court of chancery must give him remedy; that there is a wrong which cannot be righted elsewhere, and hence the right must be sustained in chancery. The difficulty arises from too broad an application of a general principle. The great advantage possessed by the court of chancery is not so much in its enlarged jurisdic- tion as in the extent and adaptability of its remedial powers. Gen- erally its jurisdiction is as well defined and limited as is that of a court at law. It cannot exercise jurisdiction when there is an adequate and complete remedy at law. It cannot assume control over that large class of obligations called imperfect obligations, resting upon conscience and moral duty only, unconnected with legal obligations. Judge Story says, "There are cases of fraud, of accident, and of trust which neither courts of law nor of equity presume to relieve or mitigate," of which he cites many -instances. Lord Talbot says: "There are cases, indeed, in which a court of equity gives remedy where the law gives none, but where a particular remedy is given by law, and that remedy bounded and circumscribed by particular rules, it would be very improper for this court to take it up where the law leaves it, and extend it further than the law allows." Generally its jurisdiction depends upon legal obligations, and its decrees can only enforce remedies to the extent and in the mode by law established. With the subjects of fraud, trust, or accident, when properly before it, it can deal more completely than can a court of law. These subjects, however, may arise in courts of law, and there be well disposed of. A court of equity cannot, by avowing that there is a right but no remedy known to the law, create a remedy, in violation of law, or even without the authority of law. It acts upon estab- lished principles not only, but through established channels. Thus, assume that the plaintiff is entitled to the payment of his judg- CHAP. II.] REES V. CITY OF WATEETOWN. 37 ment, and that the defendant neglects its duty in refusing to raise the amount by taxation, it does not follow that this court may order the amount to be made from the private estate of one of its citizens. This summary proceeding would involve a viola- tion of the rights of the latter. He has never been heard in court. He has had no opportunity to establish a defence to the debt itself, or if the judgment is valid, to show that his property is not liable to its payment. It is well settled that legislative exemp- tions from taxation are valid, that such exemptions may be per- petual in their duration, and that they are in some cases beyond legislative interference. The proceeding supposed would vio- late that fundamental principle contained in chapter twenty-ninth of Magna Charta, and embodied in the constitution of the United States, that no man shall be deprived of his property without due process of law — that is, he must be served with notice of the proceeding, and have a day in court to make his defence. "Due process of law (it is said) undoubtedly means in the due course of legal proceedings, according to those rules and forms which have been established for the protection of private rights." In the New England States it is held that a judgment obtained against a town may be levied upon and made out of the property of any inhabitant of the town. The suit in those States is brought in form against the inhabitants of the town, naming it ; the indi- vidual inhabitants, it is said, may arid do appear and defend the suit, and hence it is held that the individual inhabitants have their day in court, are each bound by the judgment, and that it may be collected from the property of any of them. This is local law peculiar to New England. It is not the law of this country generally, or of England. Russell v. Men of Devon, 2 Term R. 667. It has never been held to be the law in New York, in New Jersey, in Permsylvania, nor, as stated by Mr. Cooley, in any of the Western States. Emeric v. Gilman, 10 Calf. 408. So far as it rests upon the rule that these municipalities have no common fund, and that no other mode exists by which demands against them can be enforced, he s£tys that it cannot be considered as applicable to those States where provision is made for compul- sory taxation to satisfy judgments against a town or city. The general principle of law to which we have adverted is not. disturbed by these references. It is applicable to the case before us. Whether, in fact, the individual has a defence to the debt, or by way of exemption, or is without defence, is not important. To assume that he has none, and therefore, that he is entitled 38 REES V. CITY OF WATERTOWN. f CHAP. 11. to no day in court, is to assume against him the very point he may wish to contest. Again, in the case of Emeric v. Gilman, before cited, it is said : "The inhabitants of a county are constantly changing ; those who contributed to the debt may be non-residents upon the recovery of the judgment or the levy of the execution. Those who opposed the creation of the liability may be subjected to its payment, while those, by whose fault the burden has been imposed, may be en- tirely relieved of responsibility. . . . To enforce this right against the inhabitants of a county would lead to such a multiplicity of suits as to render the right valueless." We do not perceive, if the doctrine contended for is correct, why the money might not be entirely made from property owned by the creditor himself, if he should happen to own property within the limits of the cor- poration, of sufficient value for that purpose. The difficulty and the embarrassment arising from an appor- tionment or contribution among those bound to make the pay- ment we do not regard as a serious objection. Contribution and apportionment are recognized heads of equity jurisdiction, and if it be assumed that process could issiie directly against the citizens to collect the debt of the city, a court of equity could make the apportionment more conveniently than could a court of law. We apprehend, also, that there is some confusion in the plain- tiff's proposition, upon which the present jurisdiction is claimed. It is conceded, and the authorities are too abundant to admit a question, that there is no chancery jurisdiction where there -is an adequate remedy at law. The writ of mandamus is, no doubt, the regular remedy in a case like the prespnt, and ordinarily it is adequate and its results are satisfactory. The plaintiff alleges, however, in the present case, that he has issued such a writ on three different occasions; that, by means of the aid afforded tiy the legislature and by the devices and contrivances set forth in the bill, the writs have been fruitless; that, in fact, they afford hini no remedy. The remedy is in law and in theory adequate and perfect. The difficulty is in its execution only. The want of a remedy and the inability to obtain the fruits of a remedy are quite distinct, and yet they are confounded in the present pro- ceeding. To illustrate: The writ of habere facias possesionem is the established remedy to obtain the fruits of a judgment for the plaintiff in ejectment. It is a full, adequate, and complete remedy. Not many years since there existed in Central New York combinations of settlers and tenants disguised as Indians, CHAP. II.] IN RE DEBS. 39 and calling themselves such, who resisted the execution of this process in their counties, and so effectually that for some years no landlord could gain possession of his land. There was a per- fect remedy at law, but through fraud, violence, or crime its exe- cution was prevented. It will hardly be argued that this state of things gave authority to invoke the extraordinary aid of a court of chancery. The enforcement of the legal- remedies was temporarily suspended by means of illegal violence, but the reme- dies remained as before. It was the case of a miniature revolu- tion. The courts of law lost no power, the court of chancery gained none'. The present case stands upon the same principle. The legal remfedy is adequate and complete, and time and the law must perfect its execution. Entertaining the opinion that the plaintiff has been unreason- ably obstructed in the pursuit of his legal remedies, we should be quite willing to give him the aid requested if the law permitted it. We cannot, however, find authority for so doing, and we acquiesce in the conclusion of the court below that the bill must be dismissed. Judgment aMrmed. (Copyright, 1895, by the Banks Law Publishing Company.) IN RE DEBS. (158 U. S. 564.) [Supreme Court of the United States, 1895.] On July 2, 1894, the United States, by Thomas E. Milchrist, district attorney for the Northern district of Illinois, under the direction of Richard Olney, attorney general, filed their bill of complaint in the Circuit Court of the United States for the North- ern district of Illinois against these petitioners and others. This bill set forth, among other things, the following facts : It named 22 railroad companies, and it alleged that they were engaged in the business of interstate commerce, and subject to the provisions of the act of Congress of February 4, 1887, known as the "Inter- state Commerce Act," and all other laws of the United States relating to interstate transportation of passengers and freight; 40 IN RE DEBS. [CHAP. II. that the number of passengers annually carried by them into the city of Chicago from other States than Illinois, and out of Chi- cago into other States than Illinois, was more than 12,000,000, and in like manner that the. freight so carried into and out of the city of Chicago, from and into other states than Illinois, amounted to many millions of tons ; that each of the roads was under contract to carry, and in fact carrying, the mails of the . United States; that all were by statute declared post roads of the government ; that many were by special acts of Congress required, at any and all times, to carry the troops and- military forces of the United States, and provisions, munitions, and general sup- plies therefor ; and that two of them were in the hands of receiv- ers-appointed by the courts of the United States. It stated at some length the necessity of the continued and uninterrupted run- ning of such interstate railroads for the bringing into the city of Chicago supplies for its citizens and for the carrying on of the varied industries of that city. The bill further averred that four of the defendants, naming them, were officers of an association known as the "American Railway Union;" that in the nionth of May, 1894, there arose a difference or dispute between the Pullman Palace Car Com- pany and its employes, as the result of which a considerable por- tion of the latter left the service of the car company ; that there- after the four officers of the railway union combined together, and with others, to compel an adjustment of such dispute, by creating a boycott against the cars of the car company ; that, to make such boycott effective, they had already prevented certain of the railroads running out of Chicago from operating their trains, and were combining to extend such boycott against the Pullman sleeping cars by causing strikes among employes of all railroads attempting to haul the same. It charged knowledge on the part of the defendants of the necessity of the use of sleeping cars in the operation of the business of the railroads as common carriers, of the contracts for such use between the railroad com- panies and the car company, of the contracts, laws, and regula- tions binding the railway companies and the receivers to the car- rying of the -mails ; also of the fact that sleeping cars were, and of necessity must be, carried upon the trains of said carriers with cars containing the mails; that with this knowledge they entered into a combination and conspiracy to prevent the rail- road companies and the receivers, and each of them, from per- forming their duties as common carriers of interstate commerce, CHAP. H.] IN RE DEBS. 41 and in carrying into execution that conspiracy, did induce various employes of the railway companies to leave the service of the companies, and prevent such companies and the receivers from securing other persons to take their places ; that they issued orders, notifications, etc., to the members of the railway union to leave the service of the companies and receivers, and to prevent the companies and receivers from operating their trains; that they had asserted that they could and would tie up, paralyze and break down any and every of said railway companies and receiv- ers which did not accede to their demands ; that, in pursuance of the instructions, commands, and requests of said officers, large numbers of the employes of the railway companies and receivers left their service. Then followed these allegations : "And your orator further charges that said defendants aimed and intended, and do now aim and intend, in and by the said conspiracy and combination, to secure unto themselves the entire control of the interstate, industrial, and commercial business in which the population of the city of Chicago and of the other communities along the lines of road of said railways are engaged with each other, and to restrain any and all other persons from any independent control or management of such interstate, indus- trial, or commercial enterprises, save according to the will and with the consent of the defendants. "Your orator further avers that in pursuance of said combi- nation and conspiracy, and to accomplish the purpose thereof as hereinbefore set forth, the said defendants Debs, Howard, Rogers, Keliher, and others, officers of said American Railway Union, issued or caused to be issued the orders and directions as above set forth, and that in obedience of such orders, and in pursuance of said conspiracy and combination, numerous employes of said railroad companies and receivers unitedly refused to obey the orders of said employers or to perform the usual duties of such service, and many others of such employes quit such service with the common purpose and with the result of preventing said rail- road companies and receivers from operating their said i-ailroads and from transporting the United States mails, and from carrying on or conducting their duties as common carriers of interstate traffic. "Your orator further avers that, pursuant to said combination and conspiracy, and under the direction as aforesaid of said offi- cers and directors of said American Railway Union, said other 42 IN RE DEBS. [CHAP. II. defendants, and other persons whose names are to your orator unknown, proceeded, by collecting together in large numbers, by threats, intimidation, force, and violence, at the station grounds, yards, and right of way of said railroad companies, respectively, in the State of Illinois, to prevent said railroad companies from employing other persons to fill the vacancies as aforesaid; to compel others, still employes of said railroad companies, to quit such employment, and to refuse to perform the duties of their service, and to prevent the persons remaining in such service, and ready and willing to perform the duties of the same, from doing so. "Your orator further avers that said defandants, in pursuance of said combination and conspiracy, acting under the direction of said officers and directors of said American Railway Union, did with force and violence, at divers times and places, within said State of Illinois and elsewhere, stop, obstriict, and derail and wreck the engines and trains of said railroad companies, both passenger and freight, then and there engaged in interstate commerce and in transporting United States mails, by locking the switches of the railroad of said railroad companies, by remov- ing the spikes and rails from the track thereof, by turning switches and displacing and destroying signals, by assaulting and inter- fering with and disabling the switchmen and other employes of said railroad companies having charge of the signals, switches, and tracks of said companies, and the movement of trains thereon, and in other manners, by force and violence, depriving the em- ployes of said railroad companies in charge of such trains of the control and management of the same, and by these and other unlawful means attempted to obtain and exercise absolute control and domination over the entire operations of said railroads." The bill further set forth that there had become established in the city of Chicago a business conducted under the- name of the Union Stock Yards, at which for many years immense numbers of live stock from states and territories beyond the State of Illi- nois had been received, slaughtered, and converted into food products, and distributed to all quarters of the globe, atid that all the large centers of population in the United States were in a great degree dependent upon those stock yards for their food supply of that character ; that for the purpose of handling such live stock and the product thereof, the company conducting such business operated certain railroad tracks, and that in pursu- ance of the combination and conspiracy aforesaid the four de- CHAP. H.] IN RE DEBS. 43 fendants, officers of the railway union, issued ordei-s directing all the employes handling such railroad tracks to abandon such service. To this .was added the following : "And your orator further alleges that, in pursuance of the like combination and unlawful conspiracy, the said defendants, and others combining and conspiring with them, for the purpose of still further restraining and preventing the conduct of such busi- ness, have by menaces, threats, and intimidation prevented the employment of other persons to take the place of the employes^ quitting the service of said company so operating said Union Stock Yards. "And your orator further charges that by reason of said unlaw- ful combination and conspiracy and the acts and doings aforesaid thereunder, the supply of coal and fuel for consumption through- out the different states of the Union, and of grain, breadstuffs, vegetables, fruits, meats, and other necessaries of life, has been cut off, interrupted, and interfered with, and the market therefor made largely unavailable, and dealers in all of said various prod- ucts and the consumers thereof have been greatly injured, and trade and commerce therein among the states has been restrained, obstructed, and largely destroyed." The bill alleged that the defendants threatened and declared that they would continue to restrain, obstruct, and interfere with interstate commerce, as above set forth, and that they "will, if necessary to carry out the said unlawful combination and con- spiracy above set forth, tie up and paralyze the operations of every railway in the United States and the business and in- dustries dependent thereon." Following these allegations was a prayer for an injunction. The bill was verified. On presentation of it to the court an injunction was ordered commanding the defendants "and all persons combining and con- spiring with them, and all persons whomsover, absolutely to de- sist and refrain from in any way or manner interfering with, hindering, obstructing, or stopping any of the business of any of the following named railroads [specifically naming the various roads named in the bill] as common carriers of passengers and freight between or among any states of the United States, and from in any way or manner interfering with^ hindering, obstruct- ing, or stopping any mail trains, express trains, or other trains, whether freight or passenger, engaged in interstate commerce, or carrying passengers or freight between or among the states; 44 IN RE DEBS. [CHAP. 11. and from in any manner interfering with, hindering, or stop- ping any trains carrying the mail; and from in any manner interfering with, hindering, obstructing, or stopping any en- gines, cars, or rolling stock of any of said companies engaged in interstate commerce, or in connection with the carriage of passengers or freight between or among the states; and from in any manner interfering with, injuring, or destroying any of the property of any of said railroads engaged in, or for the pur- pose of, or in connection with interstate commerce, or the car- riage of the mails of the United States, or the transportation of passengers or freight between or among the states; and from entering upon the grounds or premises of any of said railroads for the purpose of interfering with, hindering, obstructing, or stopping any of said mail trains, passenger or freight trains en- gaged in interstate commerce, or in the transportation of passen- . gers or freight between or among the states, or for the purpose of interfering with, injuring, or destroying any of said property so engaged in or used in connection with interstate commerce, or the transportation of passengers or property between or among the states ; and from injuring or destroying any part of the tracks, roadbed, or road or permanent structures of said railroads; and from injuring, destroying, or in any way interfering with any of the signals or switches of any of said railroads; and from displacing or extinguishing any of the signals of any of said railroads; and from spiking, locking, or in any manner fasten- ing any of the switches of any of said railroads; and from un- coupling or in any way hampering or obstructing the control by any of said railroads of any of the cars, engines, or parts of trains of any of said railroads engaged in interstate commerce or in the transportation of passengers or freight between or among the states, or engaged in carrying any of the mails of the United States ; and from compelling or inducing^ or attempting to compel or induce, by thfeats, intimidation, persuasion, force, or violence, any of the employes of any of said railroads to refuse or fail to perform any of their duties as employes of any of said railroads in connection with the interstate business or commerce o'i such railroads or the carriage of the United States mail by such railroads, or the transportation of passengers or property between or among the states; and from compelling or inducing, or attempting to compel or induce, by threats, intimidation, force, or violence, any of the employes of any of said railroads who are employed by such railroads, and engaged in its service in the CHAP. II.] IN RE DEBS. 45 conduct of interstate business or in the operation of any of its trains carrying the mail of the United States, or doing inter- state business, or the^ transportation of passengers and freight between and among the states, to leave the service of such rail- roads; and from preventing any person whatever by threats, in- timidation, force, oi" violence from entering the service of any of said railroads, and doing the work thereof, in the carrying of the mails of the United States or the transportation of pas- sengers and freight between or among the states ; and from doing any act whatever in furtherance of any conspiracy or combina- tion to restrain either of said railroad companies or receivers in the free and unhindered control and handling of interstate com- merce over the lines of said railroads, and of transportation of persons and freight between and among the states; and from ordering, directing, aiding, assisting, or abetting in any manner whatever any person or persons to commit any or either of the acts aforesaid. "And it is further ordered that the aforesaid injunction and writ of injunction shall be in force and binding upon such of said defendants as are named in said bill from and after the service upon them severally of said writ, by delivering to them severally a copy of said writ, or by reading the same to them, and the service upon them respectively of the writ of subpoena herein, and shall be binding upon said defandants, whose names are al- leged to be unknown, from and after the service of such writ upon them respectively, or by the reading of the same to them, or by the publication thereof by posting or printing, and, after ser- vice of subpoena upon any of said defendants named herein, shall be binding upon said defendants and upon all other persons what- soever who are not named herein from and after the time When they shall severally have knowledge of the entry of such order and the existence of said injunction." This injunction was served upon the defendants, at least upon those who^are here as petitioners. On July 17th the district attor- ney filed in the office of the clerk of said court an information for an attachment against the four defendants, officers of the railway union, and on August 1st, a similar information against the oth^r petitioners. A hearing was had before the circuit court, and on December 14th these petitioners were found guilty of contempt, and sentenced to imprisonment in the county jail for terms varying from three to six months. 64 Fed. 724. Having been committed to jail in pursuance of this order, they, on Jan- 46 IN RE DEBS. [CHAP. II. uary 14, 1895, applied to this court for a writ of error, and also one of habeas corpus. The former was on January 17th denied, on the ground that the order of the circuit court was not a final judgment or decree. The latter is now to be considered. Mr. Justice Brewer, after stating the facts in the foregoing language,, delivered the opinion of the court. The case presented by the bill is this : The United States, find- ing that the interstate transportation of persons and property, as well as the carriage of the mails, is forcibly obstructed, and that a combination and conspiracy exists to subject the control of such transportation to the will of the conspirators, applied to one of their courts, sitting as a court of equity, for an injunction to restrain such obstruction and prevent carrying into effect of such conspiracy. Two questions of importance are presented: First. Are the relations of the general government to interstate commerce and the transportation of the mails such as authorize a direct interference to prevent a forcible obstruction thereof? Second. If authority exists, as authority in governmental affairs implies both -power and duty, has a court of equity jurisdiction to issue an injunction in aid of the performance of such duty? .1, What are the relations of the general government to inter- state commerce and the transportation of the mails? They are those of direct supervision, control, and management. While, under the dual system which prevails with us, the powers of government are distributed between the state and the nation, and while the latter is properly styled a government of eniimerated powers, yet within the limits of such enumeration it has all the attributes of sovereignty, and, in the exercise of those enumer- ated powers, acts directly upon the citizen, and not through the intermediate agency of the State. "The government of the Union, then, is emphatically and truly, a government of the people. In form and in substance it ema- nates from them. Its powers are granted by them, and are to be exercised directly on them, and for their benefit." "No trace is to be found in the constitution of an intention to create a dependence of the government of the Union on those of the states, for the execution of the great powers assigned to it. Its means are adequate to its ends, and on those means alone was it expected to rely for the accomplishm,ent of its ends. To impose on it the necessity of resorting to means which it cannot control, which another government may- furnish or withhold, would render its course precarious, the results of its measures CHAP. II.] IN RE DEBS. 47 uncertain, and create a dependence on other governments, which might disappoint its most important designs, and is incompatible with the language of the constitution." Chief Justice Marshall in McCuiloch V. State of Maryland, 4 Wheat. 316, 405, 424. "Both the states and the United States existed before the con- stitution. The people, through that instrument, established a more perfect union by substituting a national government, acting, with ample power, directly upon the citizens, instead of the confed- erate government, which acted with powers, greatly restricted, only upon the states." Chief Justice Chase in Lane Co. v. Oregon, 7 Wall. 71, 76. "We hold it to be an incontrovertible principle that the govern- ment of the United S^tes may, by means of physical force, exer- cised through its official agents, execute on every foot of Ameri- can soil the powers and functions that belong to it. This neces- sarily involves the power to command obedience to its laws, and hence the power to keep the peace to that extent." "This power to enforce its laws and to execute its functions in all places does not derogate from the power of the State to execute its laws at the same time and in the same places. The one does not exclude the other, except where both cannot be executed at the same time. In that case the words of the con- stitution itself show which is to yield. 'This constitution, and all laws which shall be made in pursuance thereof, * * * shall be the supreme law of the land.' " Mr. Justice Bradley in Ex parte SieboM, 100 U. S. 371, 395. See, also. The Exchange v. McFaddon, 7 Cranch, 116, 136; Cohens v. Virginia, 6 Wheat. 264, 413 ; Legal Tender Cases, 12 Wall. 457, 555 ; Tennessee v. Davis, 100 U. S. 257 ; The Chinese Exclusion Case, 130 U. S. 581, 9 Sup. Ct. 623 ; In re Neagle, 135 U. S. 1, 10 Sup. Ct. 658 ; Logan v. U. S., 144 U. S. 2.63, 12 Sup. Ct. 617; Fong Yue Ting v. U: S., 149 U. S. 698, 13 Sup. Ct. 1016; In re Quarks, 158 U. S. 532, 15 Sup. Ct. 959. Among the powers expressly given to the national government are the control of interstate commerce and the creation and man- agement of a postoffice system for the nation. Article 1, § 8, of the constitution provides that "the Congress shall have power; * * * Third, to regiilate commerce with foreign nations and among the several states, and with the Indian tribes. * * * Sev- enth, to establish postoffices and post roads." Congress has exercised the power granted in respect to inter- state commerce in a variety of legislative acts. Passing by for 48 IN RE DEBS, ICHAP. the present all that legislation in respect to commerce by water, and considering only that which bears upon railroad interstate transportation (for this is the specific matter involved m to case), these acts may be noticed: First. That of June 15, 18^ (14 Stat. 66), carried into the Revised Statutes as section bZM, which provides: "Whereas the constitution of the United States confers upon Congress, in express terms, the power to regulate commerce among the several states, to establish post roads, and to raise and siipport armies : Therefore, be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, that every railroad company in the United States whose road is operated by steam, its successors and assigns, be, and is hereby, authorized to carry upon, and over its road, boats, bridges, and ferries all passengers, troops, government supplies, mails, freight, and property on their way from any State to an- other State, and to receive compensation therefor, and to connect with roads of other states so as to form continuous lines for the transportation of the same to the place of destination." Second. That of March 3, 1873 (17 Stat. 584; Rev. St. §§ 4386-4389), which regulates the transportation of live stock over interstate railroads. Third. That of May 29, 1884 (chapter 60, § 6, 23 Stat. 32), prohibiting interstate transportation by railroads of live stock affected with any contagious or infectious disease. Fourth. That of February 4, 1887 (24 Stat. 379), with its amendments of March 2, 1889 (25 Stat. 855), and February 10, 1891 (26 Stat. 743), known as the "Interstate Commerce Act," by which a commission was created with large powers of regula- tion and control of interstate commerce by railroads, and the sixteenth section of which gives the courts of the United States power to enforce the orders of the commission. Fifth. That of October 1, 1888 (25 Stat. 501), providing for arbitration between railroad interstate companies and their employes. And, sixth, the act of March 2, 1893 (27 Stat. 531), requiring the use of auto- matic couplers on interstate trains, and empowering the inter- state commerce commission to enforce its provisions. Under the power vested in Congress to establish postoffices and pqst roads, Congress has, by a mass of legislation, established the great postoffice system of the country, with all its detail of organi- zation, its machinery for the transaction of business, defining what shall be carried and what not, and the prices of carriage, and also prescribing penalties for all offences against it. CHAP. II.] IN RE DEBS. 49 Obviously, these powers given to the national government over interstate commerce, and in respect to the transportation of the mails, were not dormant and unused. Congress had taken hold of these two matters, and, by various and specific acts, had as- sumed and exercised the powers given to it, and was in the full discharge of its duty to regulate interstate commerce and carry the mails. The validity of such exercise, and the exclusiveness of its control, had been again and again presented to this court for con- sideration. It is curious to note the fact that, in a large propor- tion of the cases in respect to interstate commerce brought to this court, the question presented was of the validity of State legis- lation in its bearings upon interstate commerce, and the uniform course of decision has been to declare that it is not within the competency of a State to legislate in such manner as to obstruct interstate commerce. If a State, with its recognized powers of sovereignty, is impotent to obstruct interstate commerce, can it be that any mere voluntary association of individuals within the limits of that State has a power which the State itself does not possess ? As, under the constitution, power over interstate comnierce and the transportation of the mails is vested in the national govern- ment, and Congress, by virtue of such grant, has assumed actual and direct control, it follows that the national government may prevent any unlawful and forcible interference therewith. But how shall this be accomplished? Doubtless, it is within the com- petency of Congress to prescribe by legislation that any interfer- ence with these matters shall be offences against the United States, and prosecuted and punished by indictment in the proper courts. But is that the only remedy? Have the vast interests of the nation in interstate commerce, and in the transportation of the mails, no other protection than lies in the possible punishment of those who interfere with it ? To ask the question is to answer it. By article 3, § 2, cl. 3, of the Federal constitution, it is provided : "The trial of all crimes except in cases of impeachment shall be by jury ; and such trial shall be held in the State where the said crime shall have been committed." If all the inhabitants of a State, or even a great body of them, should combine to obstruct interstate commerce or the transportation of the mails, prosecu- tions for such offences had in such a community would be doomed in advance to failure. And if the certainty of such failure was known, and the national government had no other way to enforce the freedom of interstate commerce and the transportation of the 4 50 IN RE DEBS. [chap. II. mails than by prosecution and punishment for interference there- with, the whole interests of the nation in these respects would be at the absolute mercy of a portion of the inhabitants of that single State. But there is no such impotency in the national government. The entire strength of the nation may be used to enforce in any part of the land the full and free exercise of all national powers and the security of all rights intrusted by the constitution to its care. The strong arm of the national government may be put forth to brush away all obstruction to the freedom of interstate commerce or the transportation of the mails. If the emergency arises, the army of the nation, and all its militia, are at the service of the nation, to compel obedience to its laws. But, passing to the second question, is there no other alternative than the use of force on the part of the executive authorities whenever obstructions arise to the freedom of interstate com- merce or the transportation of the mails ? Is the army the only instrument by which rights of the public can be enforced, and the peace of the nation preserved ? Grant that any public nuisance may be forcibly abated, either at the instance of the authorities, or by any individual suffering private damage therefrom. The . existence of this right of forcible abatement is not inconsistent with, nor does it destroy, the right of appeal, in an orderly way, to the courts for a judicial determination, and an exercise of their powers, by writ of injunction and otherwise, to accomplish the same result. In Borough of Stamford v. Stamford Horse R. Co.j 56 Conn. 381, 15 Atl. 749, an injunction was asked by the borough to restrain the company from laying down its track in a street of the borough. The right of the borough to forcibly remove the track was insisted upon as a ground for questioning the jurisdic- tion of a court of equity, but the court sustained the injunction, adding : "And none the less so because of its right to remove tjie track by force. As a rule, injunctions are denied to those who have adequate remedy at law. Where the choice is between the ordinary and the extraordinary processes of law, and the former are sufficient, the rule will not permit the use of the latter. In some cases of nuisance, and in some cases of trespass, the law permits an individual to abate the one and prevent the other by force, because such permission is necessary to the complete pro- tection of property and person. When the choice is between re- dress or prevention of injury by force and by peaceful process, the law is well pleased if the individual will consent to waive his CHAP. II.] IN RE DEBS. 51 right to the use of force, atid await its action. Therefore, as be- tween force and the extraordinary writ of injunction, the rule will permit the latter." So, in the case before us, the right to use force does not ex- clude the right of appeal to the courts for a judicial determina- tion, and for the exercise of all their powers of prevention. In- deed, it is more to the praise than to the blame of the govern- ment that, instead of determining for itself questions of right and wrong on the part of these petitioners and their associates, and enforcing that determination by the club of the policeman and the bayonet of the soldier, it submitted all those questions to the peaceful determination of judicial tribunals, and invoked their consideration and judgment as to the measure of its rights and powers, and the correlative obligations of those against whom it made complaint. And it is equally to the credit of the latter that the judgment of those tribunals was by the great body of them respected, and the troubles which threatened so much disaster terminated. Neither can it be doubted that the government has such an in- terest in the subject matter as enables it to appear as party plain- tiff in this suit. It is said that equity only interferes for the pro- tection of property, and that the government has no property interest. A sufficient reply is that the United States have a prop- erty in the mails, the protection of which was one of the purposes of this bill. Searight v. Stokes, 3 How. 151, arose upon a compact between the United States and the State of Penn- sylvania in respect to the Cumberland road, which provided, among other things, "that no toll shall be received or collected for the passage of any wagon or carriage laden with the property of the United States"; the question being whether a carriage employed in transporting the mails of the United States was one "laden with the property of the United States," and it was held that it was, the court, by Chief Justice Taney, saying : "The United States have unquestionably a property in the mails. They are not mere common carriers, but a government, performing a high official duty in holding and guarding its own property as well as that of its citizens committed to its care; for a very large portion of the letters and packages conveyed on this road, especially during the session of Congress, consists of communi- cations to or from the officers of the executive departments, or members of the legislature, on public service, or in relation to matters of public concern. * * * We think that a carriage, when- 52 IN RE DEBS. [chap. 11. ever it is carrying the mail, is laden with the property of the United States, within the true meaning of the compact." We do not care to place our decision upon this ground alone. Every government, intrusted by the very terms of its being with powers and duties to be exercised and discharged for the general welfare, has a right to apply to its own courts for any proper assistance in the exercise of the one and the discharge of the other, and it is no sufficient answer to its appeal. to one of those cour^ that it has no pecuniary interest in the matter. The obli- gations which it is under to promote the interest of all and to prevent the wrongdoing of one, resulting in injury to the general welfare, is often of itself sufficient to give it a standing in court. This proposition in some of its relations has heretofore received the sanction of this court. In U. S. v. San Jacinto Tin Co., 125 U. S. 273, 8 Sup. Ct. 850, was presented an application of the United States to cancel and annul a patent for land on the ground that it was obtained by fraud or mistake. The right of the United States to maintain such a suit was affirmed, though it was held that if the controversy was really one only between individuals in respect to their claims to property the government ought not to be permitted to interfere, the court saying : "If it be a question of property, a case must be made in which the court can afford a remedy in regard to that property ; if it be a question of fraud which would render the instrument void, the fraud must operate to the prejudice of the United States; and if it is apparent that the suit is Tjrought for the benefit of some third party, and that the United States has no pecuniary interest in the remedy sought, and is under no obligation to the party who will be benefited to sustain an action for his use ; in short, if there does not appear any obligation on the part of the United States to the public or to any individual, or any interest of its own, — it can no more sustain such an action than any private person could under sim- ilar circumstances." This language was relied upon in the subsequent case of U. S. V. American Bell Tel. Co., 128 U. S. 315, 9 Sup. Ct. 90, which was a suit brought by the United States to set aside a patent for an invention on the ground that it had been obtained by fraud or mistake, and it was claimed that the United States, havmg no pecuniary interest in the subject matter of the suit, could not be heard to question the validity of the patent. But this contention was overruled, the court saying, in response to this argument, after quoting the foregoing language from the San Jacinto case : "This CHAP. 11.] IN RE DEBS. 53 language is construed by counsel for the appellee in this c^se to limit the relief granted at the instance of the United States to cases in which it has a direct pecuniary interest. But it is not suscepti- ble of such construction. It was evidently in the mind of the court that the case before it was one where the property right to the land in controversy was the matter of importance, but it was careful to say that the cases in which the instrumentality of the court cannot thus be used are those where the United States has no pecuniary interest in the remedy sought, and is also under no obligation to the party who will be benefited to sustain an action for its use, and also where it does not appear that any obligation existed on the part of the United States to the public or to any individual. The essence of the right of the United States to interfere in the present case is its obligation to protect the public from the monoply of the patent which was procured by fraud, and it would be difficult to find language more aptly used to include this in the class of cases which are not excluded from the jurisdiction of the court by want of interest in the gov- ernment of the United States." It is obvious from these decisions that whil.e it is not the province of the government to interfere in any mere matter of private controversy between individuals, or to use its great powers to enforce the rights of one against another, yet, whenever the • wrongs complained of are such as affect the public at large, and are in respect of matters which by the constitution are entrusted to the care of the nation, and concerning which the nation owes the duty to all citizens of securing to them their, common rights, then the mere fact that the government has no pecuniary interest in the controversy is not sufficient to exclude it from the courts, or prevent it from taking measures therein to fully discharge those constitutional duties. , The national government, given by the constitution power to regulate interstate commerce, has by express statute assumed jurisdiction over such commerce when carried upon railroads. It is charged, therefore, with the duty of keeping those highways of interstate commerce free from obstruction, for it has always been recognized as one of the powers and duties of a government to rerpove obstructions from the highways under its control. As said in Gilman v. Philadelphia, 3 Wall. 713, 724: "The power to regulate commerce comprehends the control for that purpose, and to the extent necessary, of all the navigable waters of the United States which are accessible from a state 54 IN RE DEBS. [chap. II. Other, than those in which they lie. For this purpose they are public property of the nation, and subject to all the requisite legis- lation by Congress. This necessarily includes the power to keep them open and free from any obstruction to their navigation interposed by the states or otherwise; to remove such obstruc- tions when they exist ; and to provide, by such sanctions as they may deem proper, against the occurrence of the evil and for the punishment of offenders. For these purposes. Congress possesses all the powers which existed in the states before the adoption of the national constitution, and which have always existed in the Parliament in England." See,, also, the following authorities, in which at the instance of the state, or of some municipality thereof within whose limits the obstructed highway existed, a like power was asserted : Bor- ough of Stamford v.-Stamford Horse R. Co., 56 Conn. 381, 15 Atl. 749 ; People v. Vanderbilt, 28 N. Y. 396 ; State v. Dayton & S. E. R. Co., 36 Ohio St. 434 ; Inhabitants of Springfield v. Con- necticut R. R. Co., 4 Cush. 63 ; Attorney General v. Woods, 108 Mass. 436; Easton & A. R. Co. v. Inhabitants of Greenwich, 25 N. J. Eq. 565 ; County of Stearns v. 5"^ Cloud, M. & A. R. Co., 36 Minn. 425, 32 N. W. 91 ; Rio Grande R. Co. v. City of Browns- ville, 45 Tex. 88 ; City of Philadelphia v. Thirteenth & F. St. P. Ry. Co., 8 Phila. 648. Indeed, the obstruction of a highway is a public nuisance (4 Bl. Comm. 167), and a public nuisance has always been held subject to abatement at the instance of the government (Attorney Gen- eral V. Tudor Ipe Co., 104 Mass. 239, 244; Attorney General v. Jamaica Pond Aqueduct Corp., 133 Mass. 361 ; Village of Pine City v. Munch, 42 Minn. 342, 44 N. W. 197 ; State v. Goodnight, 70 Tex. 682, 11 S. W. 119.) It may not be amiss to notice a few of the leading cases. Mayor, etc., of Georgetown v. Alexandria Canal Co., 12 Pet. 91, was a bill filed by the plaintiff to restrain the construction of an aqueduct across the Potomac River. While, under the facts of that case, the relief prayed for was denied, yet the jurisdiction of the court was sustained. After referring to the right to maintain an action at law for damages, it was said: "Besides this remedy at law, it is now settled that a court of equity may take jurisdiction in cases of public nuisance by an information filed by the attorney general. This jurisdiction seems to have been acted on with great caution and hesitancy. * * Yet the jurisdiction has been finally sustained, upon the principle CHAP. 11.] IN RE DEBS. 55 that equity can give more adequate and complete relief than can be obtained at law. Whilst, therefore, it is admitted by all that it is confessedly one of delicacy, and accordingly the instances of its exercise are rare, yet it may be exercised in those cases in which there is imminent danger of irreparable mischief before the tardiness of the law could reach it." State of Pennsylvania v. Wheeling, etc.. Bridge Co., 13 How. 518, was a bill filed by the State of Pennsylvania to enjoin the erection of a bridge over the Ohio River within the limits of the State of Virginia. As the alleged obstruction was not within the State of Pennsylvania, its right to relief was only that of an indi- vidual in case of a private nuisance, and it was said, on page 564: "The injury makes the obstruction a private nuisance to the injured party; and the doctrine of nuisance applies to the case where the jurisdiction is made out, the same as in a public prose- cution. If the obstruction be unlawful, and the injury irreparable by a suit at common law, the injured party may claim the extraor- dinary protection of a court of chancery. "Such a proceeding is as common and as free from difficulty as an ordinary injunction bill, against a proceeding at law, or to stay waste or trespass. The powers of a court of chancery are as well adapted and as effectual for relief in the case of a private nuisance as in either of the cases named. And in regard to the exercise of these powers it is of no importance whether the east- ern channel, over which the bridge is thrown, is wholly within the limits of the State of Virgina. The Ohio being a navigable stream, subject to the commercial power of Congress, and over which that power has been exerted, if the river be within the State of Virgina, the commerce upon it, which extends to other states, is not within its jurisdiction. Consequently, if the act of Virginia authorized the structure of the bridge, so as to obstruct navigation, it could afford no justification to the bridge company." Coosaw Min. Co. v. South Carolina, 144 U. S. 550, 12 Sup. Ct. 689, was a bill filed by the State in one of its own courts to enjoin the digging, mining, and removing phosphate rock and deposits in the bed of a navigable river within its territories. The case was removed by the defendant to the federal court, and in that court the relief prayed for was granted. The decree of the Circuit Court was sustained by this court, and in the opin- ion by Mr. Justice Harlan, the matter of equity jurisdiction is discussed at some length, and several cases cited; among them 56 IN RE DEBS. fCHAP. II. Attorney General v. Richards, 2 Anstr. 603 ; Attorney General v. Forbes, 2 Mylne & C. 123 ; Gibson v. Smith, 2 Atk. 182 ; Attor- ney General v. Jamaica Pond Aqueduct Corp., 133 Mass. 361. From Attorney General v. Forbes was quoted this declaration of the lord chancellor: "Many cases might have been produced in which the court has interfered to prevent nuisances to public rivers and to public harbors ; and the court of exchequer, as well as this court, acting as a court of equity, has a well-estabUshed jurisdiction, upon a proceeding by way of information, to prevent nuisances to public harbors and public roads ; and, in short, gen- erally to prevent public nuisances." And from Attorney General V. Jamaica Pond Aqueduct Corp. these words of the Supreme Court of the State of Massachusetts : "There is another ground upon which, in our opinion, this information can be maintained, though perhaps it belongs to the same general head of equity jurisdiction of restraining and preventing nuisances. The great ponds of the commonwealth belong to the public, and, like the tide waters and navigable streams, are under the control and care of the commonwealth. The rights of fishing, boating, bath- ing, and other like rights which pertain to the public are regarded as valuable rights, entitled to the protection of the government. * * * If a corporation or an individual is found to be doing acts without right, the necessary effect of which is to destroy or im- pair these rights and privileges, it furnishes a proper case for an information by the attorney general to restrain and prevent the mischief." An additional case, not noticed in that opinion, may also be referred to (Attorney General v. Terry, 9 Ch. App. 423), in which an injunction was granted against extending a wharf a few feet out in the navigable part of a river; Hellish, L. J., saying : "If this is an indictable nuisance, there must be a remedy in the court of chancery, and that remedy is by injunction;" and James, L. J., adding: "I entirely concur. Where a public body is intrusted with the duty of being conservators of a river, it is their duty to take proceedings for the protection of those who use the river." It is said that the jurisdiction heretofore exercised by the na- tional government over highways has been in respect to water- ways, — the natural highways of the country, — ^and not over arti- ficial highways, such as railroads ; but the occasion for the exer- cise by Congress of its jurisdiction over the latter is of recent date. Perhaps the first act in the course of such legislation is that heretofore referred to, of June 15, 1866; but the basis upon CHAP. II.] IN RE DEBS. 57 which rests its jurisdiction over artificial highways is the same as that which supports it over the natural highways. Both spring from the power to regulate commerce. .The national government has no separate dominion over a river within the limits of a state ; its jurisdiction there is like that over land within the same state. Its control over the river is simply by virtue of the fact that it is one of the highways of interstate and international commerce. The great case of Gibbons v. Ogden, 9 Wheat. 1, in which the control of Congress over inland waters was asserted, rested that control on the grant of the power to regulate commerce. The argument of the chief justice was that commerce includes navi- gation, "and a power to regulate navigation is as expressly granted as if that term had been added to the word 'commerce.' " In order to fully regulate commerce with foi'eign nations, it is essential that the power of Congress does not stop at the borders of the nation, and equally so as to commerce among the states : "The power of Congress, then, comprehends navigation within the limits of every state in the Union, so far as that navigation may be, in any manner, connected with 'commerce with foreign nations, or among the several states, or with the Indian tribes.' It may, of consequence, pass the jurisdictional line of New York, and act upon the very waters to which the prohibition now under consideration applies." See, also, Gilman v. Philadelphia, 3 Wall. 713, 725, in which it was said: "Wherever 'commerce among the states' goes, the power of the nation, as represented in this court, goes with it, to protect and enforce its rights." Up to a recent date, commerce, both interstate and interna- tional, was chiefly by water, and it is not strange that both the legislation of Congress and the cases in the courts have been principally concerned therewith. The fact that in recent years interstate commerce has come to be carried on mainly by rail- roads and over artificial highways has in no manner narrowed the scope of the constitutional provision, or abridged the power of Congress over such commerce. On the contrary, the same fullness of, control exists in the one case as in the other, and the same power to remove obstructions from the one as from the other. .Constitutional provisions do not change, but their operation extends to new matters, as the modes of business and the habits of life of the people vary with each succeeding generation. The law of the common carrier is the same today as when transpor- 58 IN RE DEBS. [chap. 11. tation on land was by coach and wagon, and on water by canal boat and sailing vessel ; yet in its actual operation' it touches and regulates transportation by modes then unknown, the railroad train and the steamship. Just so is it with the grant to the national government of power over interstate commerce. The constitution has not changed. The power is the same. But it operates today upon modes of interstate commerce unknown to the fathers, and it will operate with equal force upon any new modes of such com- merce which the future may develop. It is said that seldom have the courts assumed jurisdiction to restrain by injunction in suits brought by the government, either state or national, obstructions to. highways either artificial or natural. This is undoubtedly true, but the reason is that the necessity for such interference has only been occasional. Ordi- narily, the local authorities have taken full control over the mat- ter, and by indictment for misdemeanor, or in some kindred way, have secured the removal of the obstruction and the cessation of the nuisance. As said in Attorney General v. Brown, 24 N. J. Eq. 89, 91 : "The jurisdiction of courts of equity to redress the grievance of public nuisances by injunction is undoubted and clearly established; but it is well settled that, as a general rule, equity will not interfere where the object sought can be as well attained in the ordinary tribunals. Attorney General v. New Jer- sey R. & T. Co., 3 N. J. Eq. 136; Water Com'rs of Jersey City V. City of Hudson, 13 N. J. Eq. 426 ; Attorney General v. Heishon, 18 N. J. Eq. 410 ; Railroad Co. v. Prudden, 20 N. J. Eq. 532 ; High, Inj. § 521. And, because the remedy by indictment is so efficacious, courts of equity entertain jurisdiction in such cases with great reluctance, whether their intervention is invoked at the instance of the attorney general, or of a private individual who suffers some injury therefrom distinct from that of the public, and they will only do so where there appears to be a necessity for their interference. Rowe v. Granite Bridge, 21 Pick. 347; Railroad Co. v. Prudden, supra. The jurisdiction of the court of chancery with regard to public nuisances is founded on the irreparable damage to individuals, or the great public injury which is likely to ensue. 3 Daniell, Ch. Prac. 1740." Indeed, it may be affirmed that in no well considered case has the power of a court of equity to interfere by injunction in cases of public nuisance been denied, the only denial ever being that of a neces- sity for the exercise of that jurisdiction under the circumstances of the particular case. Story, Eq. Jur. §§ 921, 923, 924; Pom. Eq. CHAP. II.] IN RE DEBS. 59 Jur. § 1349; High, Inj. §§ 745, 1554; 2 DanieU, Ch. Pl.&Prac. (4th Ed.) p. 1636. That the bill filed in this case alleged special facts calling for the exercise of all the powers of the court is not open to question. The picture drawn in it of the vast interests involved, not merely of the city of Chicago and the State of Illinois, but of all the states, and the general confusion into which the interstate com- merce of the country was thrown; the forcible interference with that commerce; the attempted exercise by individuals of powers belonging only to government, and the threatened continuance of such invasions of public right, presented a condition of affairs which called for the fullest exercise of all the powers of the courts. If ever there was a special exigency, one which demanded that the courts should do all that courts can do, it was disclosed by this bill, and we need not turn to the public history of the day, which only reaffirms with clearest emphasis all its allegations. The difference between a public nuisance and a private nuisance is that the one affects the people at large and the other simply the individual. The quality of the wrongs is the same, and the jurisdiction of the courts over them rests upon the same princi- ples and goes to the same extent. Of course, circumstances may exist in one case, which do not in another, to induce the court to interfere or refuse to interfere by injunction ; but the jurisdic- tion — the power to interfere — exists in all cases of nuisance. True, many more suits are brought by individuals than by the public to enjoin nuisances; but there are two reasons for this: First, the instances are more numerous of private than of public nuis- ances ; and, second, often that which is in fact a public nuisance is restrained at the suit of a private individual, whose right to relief arises because of a special injury resulting therefrom. Again, it is objected that it is outside of the jurisdiction of a court of equity to enjoin the commission of crimes. This, as a general proposition, is unquestioned. A chancellor has no crim- inal jurisdiction. Something more than the threatened commis- sion of an offence against the laws of the land is necessary to call into exercise the injunctive powers of the court. There must be some interferences, actual or threatened, with property or rights of a pecuniary nature; but when such interferences appear the jurisdiction of a court of equity arises, and is not destroyed by the fact that they are accompanied by or are them- selves violations of the criminal law. Thus, in Cranford v. Tyr- rell, 128 N. Y. 341, 28 N. E. 514, an injunction to restrain the 60 IN RE DEBS. [chap. II. defendant from keeping a house of ill fame was sustained; the court saying, on page 344, 128 N. Y., and page 514, 28 N. E. : "That the perpetrator of the nuisance is amenable to the pro- visions and penalties of the criminal law is not an answer to an action against him by a private person to recover for injury sustained, and for an injunction against the continued use of his premises in such a manner." And in Port of Mobile v. Louisville & N. R. Co., 84 Ala. 115, 126, 4 South. 106, is a similar decla- ration, in these words: "The mere fact that an act is criminal does not divest the jurisdiction of equity to prevent it by injunc- tion, if it be also a violation of property rights, and the party aggrieved has no other adequate remedy for the prevention of the irreparable injury which will result from the failure or ina- bility of a court of law to redress such rights." The law is full of instances in which the same act may give rise to a civil action and a criminal prosecution. An assault with intent to kill may be pimished criminally, under an indictment therefor, or will support a civil action for damages ; and the same is true of all other offences which cause injury to person or property. In such cases the jurisdiction of the civil court is invoked, not to enforce the criminal law and punish the wrongdoer, but to compensate the injured party for the damages which he or his property has suffered; and it is no defence to the civil action that the same act by the defendant exposes him also to indict- ment and punishment in a court of criminal jurisdiction. So here the acts of the defendants may or may not have been violations of the criminal law. If they were, that matter is for inquiry in other proceedings. The complaint made against them in this is of disobedience to an order of a civil court, made for the protection of property and the security of rights. If any crim- inal prosecution be brought against them for the criminal offences alleged in the bill of complaint, of derailing and wrecking engines and trains, assaulting and disabling employes of the railroad com- panies, it will be no defence to such prosecution that they diso- beyed the orders of injunction served upon them, and have been punished for such disdbedience. Nor is there in this any invasion of the constitutional right of trial by jury. We fully agree with counsel that "it matters not what form the attempt to deny constitutional right may take ; it is vain and ineffectual, and must be so declared by the courts." And we affirm the declaration made for the court by Mr. Justice Bradley in Boyd v. U. S., 116 U. S. 616, 635, 6 Sup. Ct. 524, CHAP. II.] IN RE DEBS. 61 that "it is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon. Their motto should be obsta principiis." But the power of a court to make an order carries with it the equal power to punish for a disobedience of that order, and the inquiry as to the question of disobedience has been, from time immemorial, the special function of the court. And this is no technical rule. In order that a court may compel obedience to its orders, it must have the right to inquire whether there has been any disobedi- ence thereof. To submit the question of disobedience to another tribunal, be it a jury or another court, would operate to deprive the proceeding of half its efficiency. In the Case of Yates, 4 Johns. 317, 369, Chancellor Kent, then chief justice of the Su- preme Court of the State of New York, said: "In the Case of Earl of Shaftsbury, 2 State Tr. 615, 1 Mod. 144, who was im- prisoned by the House of Lords for 'high contempts committed against it,' and brought into the king's bench, the court held that they had no authority to judge of the contempt, and re- manded the prisoner. The court in that case seems to have laid down a principle from which they never have departed, and which is essential to the due administration of justice. This principle that every court, at least of the superior kind, in which great confidence is placed, must be the sole judge, in the last resort, of contempts arising therein, is more explicitly defined and more emphatically enforced in the two subsequent cases of The Queen v. Paty [2 Ld. Raym. 1105], and of The King v. Crosby [3 Wils. 188]." And again, on page 371: "Mr. Justice Blackstone pursued the same train of observation, and declared that all courts, by which he meant to include the two houses of Parliament and the courts of Westminster Hall, could have no control in matters of contempt; that the sole adjudication of contempts and the punishments thereof belonged exclusively, and without interfering, to each respective court." In Watson v. Williams, 36 Miss. 331, 341, it was said: "The power to fine and imprison for contempt, from the earliest history of jurisprudence, has been regarded as a necessary incident and attribute of a court, without which it could no more exist than without a judge. It is a power inherent in all courts of record, and coexisting with them by the wise provisions of the common law. A court without the power elifectually to protect itself against the assaults of the. lawless, or to enforce its orders, judgments, or decrees against the recusant parties before it, would be a disgrace to the legisla- 62 IN RE DEBS. [CHAP. II. tion, and a stigma upon the age which- invented it." In Cart- wright's Case, 114 Mass. 230, 238, we find this language: "The summary power to commit and punish for contempts tending to obstruct or degrade the administration of justice is inherent in courts of chancery and other superior courts, as essential to the execution of their powers and to the maintenance of their authority, and is part of the law of the land, within the meaning of Magna Charta and of the twelfth article of our Declaration of Rights." See, also, U. S. v. Hudson, 7 Cranch, 32 ; Anderson V. Dunn, 6 Wheat. 204 ; Ex parte Robinson, 19 Wall. 505 ; Mugler V. Kansas, 123 U. S. 623-672, 8 Sup. Ct. 273 ; Ex parte Terry, 128 U. S. 289, 9 Sup. Ct. 77 ; Eilenbecker v. Plymouth Co., 134 U. S. 31-36, 10 Sup. Ct. 424, in which Mr. Justice Miller ob- served : "If it has ever been understood that proceedings accord- ing to the common law for contempt of court have been subject to the right of trial by jury, we have been unable to find any instance of it/' Commission v. Brimson, 154 U. S. 477-488, 14 Sup. Ct. 1125. In this last case it was said: "Surely it cannot be supposed that the question of contempt of the authority of a court of the United States, committed by a disobedience of its orders, is triable, of right, by a jury." In brief, a court eiiforcing obedience to its orders by proceed- ings for contempt in not executing the criminal laws of the land, but only securing to suitors the rights which it has adjudged them entitled to. Further, it is said by counsel in their brief : "No case can be cited where such a bill in behalf of the sover- eign has been entertained against riot and mob violence, though occurring on the highway. It is not such fitful and temporary obstruction that constitutes a nuisance. The strong hand of executive power is required to deal with such lawless demon- strations. "The courts should stand aloof from them and not invade executive prerogative, nor, even at -the behest or request of the executive, travel out of the beaten path of well-settled judicial authority. A mob cannot be suppressed by injunction; nor can - its leaders be tried, convicted, and sentenced in equity. "It is too great a strain upon the judicial branch of the gov- ernment to impose this essentially executive and military power upon courts of chancery." We do not perceive that this argument questions the jurisdic- tion of the court, but only the expediency of the action of the CHAP. II.] IN RE DEBS. 63 government in applying for its process. It surely cannot be seri- ously contended that the court has jurisdiction to enjoin the obstruction of a highway, by one person, but that its jurisdiction ceases when the obstruction is by a hundred persons. It may be true, as suggested, that in the excitement of passion a mob will pay little heed to processes issued from the courts, and it may be, as said by counsel in argument, that it would savor somewhat of the puerile and ridiculous to have read a writ of injunction to Lee's army during the late Civil War. It is doubtless true that inter arma leges silent, and in the throes of rebellion or revolu- tion the processes of civil courts are of little avail, for the power of the courts rests on the general support of the people, and their recognition of the fact that peaceful remedies are the true resort for the correction of wrongs. But does not counsel's argu- ment imply too much ? Is it to be assumed that these defendants were conducting a rebellion or inaugurating a revolution, and that they and their associates were thus placing themselves beyond the reach of the civil process of the courts ? We find in the opin- ion of the Circuit Court a quotation from the testimony given by one of the defendants before the United States strike com- mission, which is sufficient answer to this suggestion: "As soon as the employes found that we were arrested, and taken from the scene of action, they became demoralized, and that ended the strike. It was not the soldiers that ended the strike. It was not the old brotherhoods that ended the strike. It was simply the United States courts that ended the strike. Our men were in a position that never would have been shaken, under any circumstances, if we had been permitted to remain upon the field, among them. Once we were taken from the scene of action, and restrained from sending telegrams or issuing orders or an- swering questions, then the minions of the corporations would be put to work. * * * Our headquarters were temporarily demor- alized and abandoned, and we could not answer any messages. The men went back to work, and the ranks were broken, and the strike was broken up, * * * not by the army, and not by any other power, but simply and solely by the action of the United States courts in restraining us from discharging our du- ties as officers and representatives of our employes." Whatever any single individual may have thought or planned, the great body of those who were engaged in these transactions contemplated neither rebellion nor revolution, and when in the due order of legal proceedings the question of right and wrong 64 IN RE DEBS. [chap. II. was submitted to the courts, and by them decided, they unhesi- tatingly yielded to their decisions. The outcome, by the very testimony of the defendants, attests the wisdom of the course pursued by the government, and that it was well not to oppose force simply by force, but to invoke the jurisdiction and judg- ment of those tribunals to whom by the constitution and in accord- ance with the settled conviction of all citizens is committed the determination of questions of right and wrong between individ- uals, masses, and states. It must be borne in mind that this bill was not simply, to enjoin a mob and mob violence. It was not a bill to command a keeping of the peace; much less was its purport to restrain the defendants from abandoning whatever employment they were en- gaged in. The right of any laborer, or any number of laborers, to quit work was not challenged. The scope and purpose of the bill was only to restrain forcible obstructions of the highways along which interstate commerce travels and the mails are car- ried. And the facts set forth at length are only those facts which tended to show that the defendants were engaged in such obstruc- tions. A most earnest and eloquent appeal was made to us in eulogy of the heroic spirit of those who threw up their employment, and gave up their means of earning a livelihood, not in defence of their own rights, but in sympathy for and to assist others whom they believed to be wronged. We yield to none in our admiration of any act of heroism or self-sacrifice, but we may be permitted to add that it is a lesson which cannot be learned too soon or too thoroughly that under this government of and by' the people the means of redress of all wrongs are through the courts and at the ballot box, and that no wrong, real or fancied, carries with it legal warrant to invite as a means of redress the co-operation of a mob, with its accompanying acts of violence. We have given to this case the most careful and anxious atten- tion, for we realize that it touches closely questions of supreme importance to the people of this country. Summing up our con- clusions, we hold that the government of the United States is one having jurisdiction over every foot of soil within its territory, and acting directly upon each citizen ; that, while it is a govern- ment of enumerated powers, it has within the limits of those pow- ers all the attributes of sovereignty; that to it is committed power over interstate commerce and the transmission of the mail; that the powers thus conferred upon the national government are not CHAP. II.] IN RE DEBS. 65 dormant, but have been assumed and put into practical exercise by the legislation of Congress ; that in the exercise of those pow- ers it is competent for the nation to remove all obstructions upon highways, natural or artificial, to the passage of .interstate com- merce or the carrying of the mail ; that, while it may be compe- tent for the government (through the executive branch and in the use of the entire executive power of the nation) to forcibly remove all such obstructions, and it is equally within its com- petency to appeal to the civil courts for an inquiry and deter- mination as to the existence and character of any alleged obstruc- tions, and if such are found to exist, or threaten to occur, to invoke the powers of those courts to remove or restrain such obstructions; that the Jurisdiction of courts to interfere in such matters by injunction is one recognized from ancient times and by indubitable authority; that such jurisdiction is not ousted by the fact that the obstructions are accompanied by or consist of acts in themselves violations of the criminal law ; that the pro- ceeding by injunction is of a civil character, and may be enforced by proceedings in contempt; that such proceedings are not in execution of the criminal laws of the land; that the penalty for a violation of injunction is no substitute for and no defence to a prosecution for any criminal offences committed in the course of such violation; that the complaint filed in this case clearly showed an existing obstruction of artificial highways for the passage of interstate commerce and the -transmission of the mail, — an obstruction not only temporarily existing but threat- ening to continue; that under such complaint the Circuit Court had power to issue its process of injunction; that, it having been issued and served on these defendants, the Circuit Court had authority to inquire whether its orders had been dis- obeyed, and, when it found that they had been, then to pro- ceed under section 725, Rev. St., which grants power "to pun- ish, by fine or imprisonment, * * * disobedience, * * * by any party * * * or other person, to any lawful writ, process,, order, rule., decree, or command," and enter the order of punishment complained of; and, finally, that the Circuit Court having full jurisdiction in the premises, its finding of the fact of disobedi- ence is not open to review on habeas corpus in this or any other court. Ex parte Watkins, 3 Pet. 193; Ex parte Yarbrough, 110 U. S. 651, 4 Sup. Ct. 152; Ex parte Terry, 128 U. S. 280-305, 9 Sup. Ct. 77; In re Swan, 150 U. S. 637, 14 Sup. Ct. 225; V. S. V. Pridgeon, 153 U. S. 48, 14 Sup. Ct. 746. 5 66 TOWNSLEY V. CHAPIN. [CHAP. M. We enter into no examination of the act of July 2, 1890 (26 Stat. 209), upon which the Circuit Court relied mainly to sustain its jurisdiction. It must not be understood from this that we dis- sent from the conclusions of that court in reference to the scope of the act, but simply- that we prefer to rest our judgment on the broader ground which has been discussed in this opinion, believing it of importance that the principles underlying it should be fully stated and ciffirmed. The petition for a writ of habeas corpus is denied. TOWNSLEY V. CHAPIN. ' (12 All. 476.) [Supreme Judicial Court of Massachusetts, 1866.] Foster, J. The plaintiff in equity brings this bill to obtain a decree for the execution of a new deed from the defendant to him, under the following circumstances; The defendant, while a married woman, executed to the plain- tiff a quitclaim deed of an estate held by her as sole and separate property, in which her husband, who has since deceased, did not join, and to which he never gave any written assent. The consideration of the conveyance was an agreement by the plain- tiff to support the defendant and her husband dui-ing their jojnt fives and the life of the survivor. The deed pf a married woman, without her husband's joinder, at common law is absolutely void. The statute from which she derives her only power to convey her sole and separate property, Gen. Sts. c. 108, § 3, in express terms enacts that no conveyance of any real property, except a lease for a term not exceeding one year, and a release of dower subsequently to a conveyance by her husband "shall be valid without the assent of her husband in writing or his joining with her in the conveyance." It is not contended that the deed actually executed was other- wise than utterly void; its admitted invalidity is the foundation of the supposed equity which the plaintiff now invokes the aid of the court to enforce. Nor is it claimed that while the hus- band lived there was any foundation for a suit in equity against him to compel his written consent, and thereby to perfect the void conveyance. But, by reason of his death, the plaintiff insists CHAP. II.] TOWNSLEY V. CHAPIN. 67 that he is entitled to require from the defendant a new convey- ance, which, as a femme sole, she is now competent to execute. In our opinion, however, the written assent of the husbamd' is as indispensable to the validity of an executory agreement, by a married woman, to convey her real estate, as to an executed conveyance thereof. The restrictive clause of the section requir- ing the husband's written consent is as broad as that which con- fers the power to convey. It would be a preposterous construction to hold that a married woman might alone enter into a binding agreement to do that which she could not actually do without her husband's concurrence. The power to make a contract to convey is not given expressly, but derived inferentially from that to con- vey. Baker v. Hathazvdy, 5 Allen, 103. Upon what principle can it be maintained that an instrument wholly void upon its exe- cution is made valid and capable of enforcement in equity by the contingency of the husband's death? The deed when exe- cuted was inoperative for want of power on the part of the grantor. The removal of the disability of coverture cannot pos- sibly render effectual and binding a contract or conveyance r^ade while that disability continued, and by reason thereof- originally a mere nullity. Whether the section under consideration be con- sidered as one conferring a power not previously possessed by married women, but on condition of the husband's written con- sent, which is its form ; or as a protective enactment requiring such written consent for the benefit and security of the wife's interests, which is its substance; in either view, its effect and construction must be the same. Jewett v. Davis, 10 Allen, 68, cannot be distinguished from the present case. There relief was denied because the wife could make no valid contract. We deny it now because she has made none. The principle is tli: same. A court of ^equity has no more jurisdiction than a court of law to recognize and give effect to instruments inopera tive for want of compliance with a condition made by statute prerequisite to their validity. The demurrer in the answer is sustained, and the Bill dismissed, with costs. 68 • WILLARD V. TAYLOE. [CHAP. II. (Copyrighted, 1869, by the Banks Law Publishing Company.) WILLARD V. TAYLOE. (8 Wall. 557.) [Supreme Court of the United States, 1869.] Appeal from the Supreme Court of the District of Columbia. This was a suit in equity for the specific performance of a contract for the sale of certain real property situated in the city of Washington, in the District of Columbia, and adjoining the hotel owned by the complainant Willard, and known as Willard's Hotel. The facts out of which the case arose were as follows: In April, 1854, the defendant leased to the complainant the property in question, which was generally known in Washington as "The Mansion House," for the period of ten years from the 1st of May following, at the yearly rent of twelve hundred dol- lars. The lease contained a covenant that the lessee should have the right or option of purchasing the premises, with the buildings and improvements thereon, at any time before the expiration of the leased for the sum of twenty-two thousand and five hundred dollars, payable as follows: Two thousand dollars in cash, and two thousand dollars, together with the interest on all the de- ferred instalments, each year thereafter until the whole was paid; the deferred payments to be secured by a deed of trust on the property, and the vendor to execute to the purchaser a warranty deed of the premises, subject to a yearly ground rent of three hundred and ninety dollars. At the time of this lease gold and silver, or bank bills convert- ible on demand into it, were the ordinary money of the country, and the standard of values. In 1861 the rebellion broke out, lasting till 1865. In the interval, owing to the influx of people, property in the metropolis used for hotels greatly increased in value, and as was alleged by Tayloe, who produced what he deemed a record to show the fact, the complainant, Willard, assigned an undivided half of the property which had been leased to him as above men- tioned to a brother of his. In December, 1861, the banks through- out the country suspended payments in specie, and in 1862 and 1863, the federal government issued, some hundred millions of. notes, to be used as money, and which Congress declared should CHAP. II.] WILLAED V. TAYLOE. 69 be a tender in the payment of debts. Coin soon ceased to circu- late generally, and people used, in a great degree, the notes of the government to pay what they owed. On the ISth of April, 1864, two weeks before the expiration of the period allowed the complainant for his election to pur- chase — the property having greatly increased in value since 1854, the year in which the lease was made — the complainant addressed a letter to the defendant, inclosing a check, payable to his order, on the Bank of America, in New York, for two thousand dollars, as the amount due on the 1st of May following on the purchase of the property, with a blank receipt for the mopey, and request- ing the defendant to sign and return the receipt, and stating that if it were agreeable to the defendant he would have the deed of the property, and the trust deed to be executed by himself, prepared between that date and the 1st of May. To this letter the defendant, on the same day, replied that he had no time then to look into the business, and returned the check, expressing a wish to see the complainant for explanations before closing the matter. On the following morning the complainant called on the de- fendant and informed' him that he had two thousand dollars to make the first payment for the property, and offered the money to him. The money thus offered consisted of notes of the United States, made by act of Congress a legal tender for debts. These the defendant refused to accept, stating that he understood the purchase money was to be paid in gold, and that gold he would accept, but not the notes, and give the receipt desired. It was admitted that these notes were at the time greatly depreciated in the market b.elow their nominal value. On repeated occasions subsequently the complainant sent the same amount-p-two thou- sand dollars — in these United States notes to the defendant in pay- ment of the cash instalment on the purchase, and as often were they refused by him. On one of these occasions a draft of the deed of conveyance to be executed by the defendant, and a draft of the trust deed to be executed by the complainant, were sent for examination, with the money. This last was prepared for execution by the complainant alone, and contained a provision that he might, if he should elect to do so, pay off the deferred payments at earlier dates than those men- tioned in the lease. These deeds were returned by the defendant, accompanied with a letter expressing dissatisfaction at the man- ner in which he was induced to sign the lease with the clause 70 WILLARD V. TAYLOE. fCHAP. II. for the sale of the premises, but stating that as he had signed it he "should have carried the matter out" if the complainant had proffered the amount which he knew he had offered for the prop- erty, meaning by this statement, as the court understood it, if he had proffered the amount stipulated in gold. No objection' was made to the form of either of the deeds. Soon afterwards the defendant left the city of Washington with the intention of being absent until after the 1st of May. On the 29th of April the complainant, finding that the defend- ant had left the city, and perceiving that the purchase was not about to be completed within the period prescribed by the cove- nant in the lease, and apprehensive that unless legal proceedings were taken by him to enforce its execution his rights thereunder might be lost, instituted the present suit. In the bill he set forth the covenant giving him the right or option to purchase the premises; his election to purchase; the notice to the defendant ; the repeated efforts made by him to obtain a deed of the property; his offer to pay the amount re- quired as the first instalment of the purchase money in United States notes, and to execute the trust deed stipulated to secure the deferred payments, and the refusal of the defendant to re- ceive the United States notes and to execute to him a deed of the premises. It also set forth the departure of the defendant from the city of Washington, and his intended absence beyond the 1st of May following, and afleged that the appeal was made to the equitable interposition of the court, lest on the return of the defendant he might refuse to allow the complainant to complete the purchase, and urge as a reason that the time within which it was to be made had passed. The bill concluded with a prayer that the court decree a specific performance of the agreement by the defendant, and the execution of a deed of the premises to the complainant ; the latter offering to perform the agreement on his part according to its true intent and meaning. The bill also stated some facts, which it is unnecessary to detail, tending to show that the acquisition of the property in question was of especial importance to the complainant. The answer set up that the complainant, even on his own show- ing, had no case; that there was no proper tender; that even if the complainant once had a right to file a bill in his sole right— the way in which the present bill was filed— he had lost this right by the transfer of the half to his brother; that the complainant had not demanded an execution even of the contract which he CHAP. II.] WILLARD V. TAYLOE. 71 himself set forth, but by the drafts of the trust deed sent to Tayloe, and which was the trust deed of which he contemplated the execution, he proposed to pay, at his own option, the whole purchase money before the expiration of the ten years, and thus would interfere with the duration of that security and investment in the identical property leased, which had been originally con- templated and provided for ; thus subjecting the defenclant to risk and expense in making a new investment. The answer concluded with an allegation, that "by the great national acts and events which had occurred when the complainant filed his bill, and which were still influencing all values and interests in the coun- try, such a state of things had arisen and now existed, as accord- ing to equity and go6d conscience ought to prevent a decree for specific, performance in this case, upon a demand made on the last day of a term of ten years, even if in strict law (which was denied) the complainant was entitled to make such demand." Both Tayloe and Willard were examined as witnesses. The former testified, that when the lease was executed he objected to a stipulation for a sale of the premises, and that Willard said it should go for nothing. Willard swore that he had said no such thing. The court below dismissed the bill, and Willard took the pres- ent appeal. Mr. Justice Field, after stating the facts of the case, deliv- ered the opinion of the court. The covenant in the lease giving the right or option to pur- chase the premises was in ^e nature of a continuing ofifer to sell. It was a proposition extending through the period of ten years, and being under seal must be regarded as made upon a sufficient consideration, and, therefore, one from which the defendant was not at liberty to recede. When accepted by the complainant by his notice to the defendant, a contract of sale between the parties was completed. Railroad Co. v. Bartlett, 3 Cush. 224 ; Welchman V. Spinks, 5 Law T. (N. S.) 38'5 ; Warner v. Willington, 3 Drew. 523; Railroad v. Evans, 6 Gray, 25. This contract is plain and certain in its terms, and in its nature and in the circumstances attending its execution appears to be free from objection. The price stipulated for the property was a fair one. At the time its market value was under fifteen thousand dollars, and a greater increase than one-half in value during the period of ten years could not then have been reasonably anticipated. When a contract is of this character it is the usual practice of 72 WILLARD V. TAYLOE. fCHAP. II. courts of equity to enforce its specific execution upon the applica- tion of the party who has complied with its stipulations on his- part, or has seasonably and in good faith offered, and continues ready to comply with them.^ But it is not the invariable practice. This form of relief is not a matter of absolute right to either party; it is a matter resting in the discretion of the court, to be exercised upon a consideration of all the circumstances of each particular case. The jurisdiction, said Lord Erskine (12 Ves. 332), "is not compulsory upon the court, but the subject of discretion. The question is not what the court must do, but what it may do under [the] circumstances, either exercising the jurisdiction by granting the specific performance or abstaining from it." And long previous to him Lord Hardwicke and other eminent equity judges of England had, in a great variety of cases, asserted the same discretionary power of the court. In Joynes v. Statham, 3 Atk. 388, Lor^ Hardwicke said : "The constant doctrine of this court is, that it is in their discretion, whether in such a bill they will decree a specific performance or leave the plaintiff to his remedy at law." And in Underwood v. Hitchcox, 1 Ves. Sr. 279, the same great judge said, in refusing to enforce a contract: "The rule of equity in carrying agreements into specific perform- ance is well known, and the court is not obliged to decree every agreement entered into, though for valuable consideration, in strictness of law, it depending on the circumstances." Later jurists, both in England and in the United States, have reiterated the same doctrine. Chancellor Kent, in Seymour v. Delancy, 6 Johns. Ch. 222, upon an extended review of the authorities on the subject, declares it to be a. settled principle that a specific performance of a contract of sale is not a matter of course, but rests entirely in the discretion of the court upon a view of all the circumstances ; and Chancellor Bates, of Delaware, in Godwin v. Collins, recently decided, upon a very full considera- tion of the adjudged cases, says, that a patient examination of the whole course of decisions on this subject has left with him "no doubt that, as a matter of judicial history, such a discretion has always been exercised in administering this branch of equity jurisprudence." It is true the cases cited, ih which the discretion of the court is asserted, arose upon contracts in which there existed some ine- quality or unfairness in the terms, by reason of which injustice would have followed a specific performance. But the same dis- CHAP. II.]. WILLARD V. TAYLOE. 7i cretion is exercised where the contract is fair in its terms, if its enforcement, from subsequent events, or even from collateral cir-^ cumstances, would work hardship or injustice to either of the parties. In the case of City of London v. Nash, 1 Ves. Sr. 12, the de- fendant, a lessee, had covenanted to rebuild some houses, but, instead of doing this, he rebuilt only two of them, and repaired the others. On a bill by the city for a specific performance Lord Hardwicke held that the covenant was one which the court could specifically enforce; but said, "The most material objection for the defandant, and which has weight with me, is that the court is, not obliged to decree a specific performance, and will not when it would be a hardship, as it would be here upon the defendant to oblige him, after having very largely repaired the houses, to pull them down and rebuild them." In Faine v. Brown (cited in Ramsden v. Hylton, 2 Ves. Sr. 306) similar hardship, flowing from the specific execution of a contract, was made the ground for refusing the decree prayed. In that case the defendant was the owner of a small estate, devised to him on condition that i'f he sold it within twenty-five years one-half of the purchase money should go to his brother. Having contracted to sell the property, and refusing to carry out the contract under the pretence that he was intoxicated at the time, a bill was filed to enforce its specific execution, but Lord Hardwicke is reported to have said that, without regard to the other circumstance, the hardship alone of losing half the purchase money, if the contract was carried into execution, was sufficient to determine the discretion of the court not to interfere, but to leave the parties to the law. This discretion which may be exercised in this class of cases is not an arbitrary or capricious one, depending upon the mere pleasure of the court, but one which is controlled by the estab- lished doctrines and settled principles of equity. No positive rule can be laid down by which the action of the court can be deter- mined in all cases. In general it may be said that the specific relief will be granted when it is apparent, from a view of all the circumstances of the particular case, that it will subserve the ends of justice; and that it will be withheld when, from a like view, it appears that it will produce hardship or injustice to either of the parties. It is not sufficient, as shown by the cases cited, to call forth the equitable interposition of the court, that the legal obligation under the contract to do the specific thing desired may be perfect. It must also appear that the specific enforce- 74 WILLARD V. TAYLOE. ' [CHAP. II. ment will work no hardship or injustice, for if that result would follow, the court will leave the parties to their remedies at law, unless the granting of the specific relief can be accompanied with conditions which will obviate that result. If that result can be thus obviated, a specific performance will generally in such cases be decreed conditionally.. It is the advantage of a court of equity, as observed by Lord Redesdale in Davis v. Hone, 2 Schoales & L. 348, that it can modify the demands of parties according to justice, and where, as in that case, it would be inequitable, from a change of circumstances, to enforce a contract specifically, it rhay refuse its decree unless the party will consent to. a conscientious modification of the contract, or, what would generally amount to the same thing, take a decree upon condition of doing or relinquishing certain things to the other party. In the present case objection is taken to the action of the com- plainant in offering, in payment of the first instalment stipulated, notes of the United States. It was insisted by the defendant at the time, and it is contended by his counsel now, that the cove- nant in the lease required payment for the property to be made in gold. The covenant does not in terms specify gold as the currency in which payment is to be made; but gold, it is said, must have been in the contemplation of the parties, as no other currency, except for small amounts, which could be discharged in silver, was at the time recognized by law as the legal tender for private debts. Although the contract in this case was not completed until the proposition of the defendant was accepted in April, 1864, after the passage of the act of Congress making notes of the United States a legal tender for private debts, yet as the proposition con- taihing the terms of the contract was previously made, the con- tract itself must be construed as if it had been then concluded to take effect subsequently. It is not our intention to express any opinion upon the consti- tutionality of the provision of the act of Congress, which makes the notes of the United States a legal tender for private debts, nor whether, if constitutional, the provision is to be limited in its application to contracts, made subsequent to the passage of the act. See Hepburn v. Griswold, 8 Wall. 603. These questions are the subject of special consideration in other cases, and their solution is not required for the determination of the case before us. In the view we take of the case, it is immaterial whether the constitutionality of the provision be affirmed or denied. The CHAP. II.] WILLARD V. TAYLOE. 75 relief which the complainant seeks rests, as already stated, in the sound discretion of the court; and, if granted, it may be accom- panied with such conditions as will prevent hardship and in- sure justice to the defendant. The suit itself is an appeal to the equitable jurisdiction of the court, and, in asking what is equitable to himself, the complainant necessarily submits himself to the judgment of the court, to do what it shall adjudge to be equitable to the defendant. The kind of currency which the complainant ofifered, is only important in considering the good faith of his conduct. A party does not forfeit his rights to the interposition of a court of equity to enforce a specific performance of a contract, if he seasonably and in good faith offers to comply, and- continues ready to comply, with its stipulations on his part, although he may err in estimating the extent of his obligation. It is only in courts of law that literal and exact performance is required. The condition of the currency at the time impels any imputation of bad faith in the action of the complainant. The act of Congress had declared the notes of the United States to be a legal tender for all debts, without, in terms, making any distinction between. debts contracted before, and those contracted after its passage. Gold had almost entirely disappeared from circulation. The community at large used the notes of the United States in the discharge of all debts. They constituted, in fact, almost the entire currency of the country in 1864. They were received and paid out by the government; and the validity of the act declaring them a legal tender had been sustained by nearly every state court before which the question had been raised. The defendant, it is true, insisted upon his right to payment in gold, but before the expiration of the period prescribed for the com- pletion of the purchase, he left the city of Washington, and thus cut ofif the possibility of any other tender than the one made within that period. In the presence of this difficulty, respecting the mode of payment, which could not be obviated, by reason of the absence of the defendant, the complainant filed his bill, in which he states the question which had arisen between them, and invokes the aid of the court in the matter, offering specifically to perform the contract on his part according to its true intent and meaning. He thus placed himself promptly and fairly before the court, expressing a willingness to do whatever it should ad- judge he ought in equity and conscience to do in the execution of the contract. Nothing further could have been reasonably required of him 76 WILLARD V. TAYLOE. [CHAP. II. I under the circumstances, even if we should assume that the act of Congress, making the notes of the United States a legal tender, does not apply to debts created before its passage, or, if applicable to such debts, is, to that extent, unconstitutional and void. In the case of Chesterman v. Mann, 9 Hare, 212, it was held by the court of chancery of England, that where an underlessee had a covenant for the renewal of his lea^se, upon paying to his lessor a fair proportion of the fines and expenses to which the lessor might be subjected in obtaining a renewal of his own term from the superior landlord, and of any increased rent upon such renewal, and there was a difference between the parties as to the amount to be paid by the underlessee, he might apply for , a specific performance of the covenant, and submit to the court the amount to be paid. So here in this case, the complainant applies for a specific performaiice, and submits the amount to be paid by him to the judgment of the court. We proceed to consider whether any other circumstances have arisen since the covenant in the lease was made, which render the enforcement of the contract of sale, subsequently completed between the parties, inequitable. Such circumstances are asserted to have arisen in two particulars; first, in the greatly increased value of the property ; and second, in the transfer of a moiety of the complainant's original interest to his brother. It is true, the property has greatly increased in value since April, 1854. Some increase was anticipated by the parties, for the covenant exacts, in case of the lessee's election to purchase, the payment of one-half more than its then estimated value. If the actual increase has exceeded the estimate then made, that circumstance furnishes no ground for interference with the ar- rangement of the parties. The question, in such cases, always is, was the contract, at the time it was made, a reasonable and fair one? If such were the fact, the parties are considered as having taken upon themselves the risk of subsequent fluctuations in value of the property, and such fluctuations are not allowed to prevent its specific enforcement. Wells, v. Railway Co., 9 Hare, • 129; Low V. Treadwell, 12 Me. 441; Fry, Spec. Perf. §§ 235, 252. Here the contract, as already stated, was, when made, a fair one, and in all its attendant circumstances, free from objection. • The rent reserved largely exceeded the rent then paid, and the sum stipulated for the propery largely exceeded its then market value. The transfer, by the complainant to his brother, of one-half interest in the lease, assuming now for the purpose of the argu- CHAP. II.] WILLARD V. TAYLOE. 77 ment, that there is, in the record, evidence, which we can notice, of such transfer, in no respect affects the obligation of the de- fendant, or impairs the right of the complainant to the enforce- ment of the contract. The brother is no party to the contract, and -any partial interest he may have acquired therein, the de- fendant was not bound to notice. The owners of partial inter- ests in contracts for land, acquired subsequent to their execution, are not necessary parties to bills for their enforcement. The original parties on one side are not to be mixed up in contro- versies between the parties on the other side, in which they have no concern. If the entire contract had been assigned to the brother, so that he had become substifuted in the place of the complainant, the case would have been different. In that event, the brother might have filed the bill, and insisted upon being treated as representing the vendee. The general rule is, that the parties to the contract are the only proper parties to the suit for its performance, and, except in the case of an assignment of the entire contract, there must be some special circumstances to. authorize a departure from the rule. The court, says Chancellor Cottenham, in Tasher v. Small, 3 Mylne & C. 69, "assumes jurisdiction in cases of specific perform- ance of contracts, because a court of law, giving damages only for the non-performance of the contract, in many cases, does not afford an adequate remedy. But in equity, as well as at law, the contract constitutes the right, and regulates the liabilities of the parties; and the object of both proceedings is to place the party complaining, as nearly as possible, in the same situation as the defendant had agreed that he should be placed in. It is obvious, that persons, strangers to the contract, and, therefore, neither entitled to the rights nor subject to the liabilities which arise out of it, are as much strangers to a proceeding to enforce thfe execution of it as they are to a proceeding to recover damages for the breach of it." When the complainant has received his deed from the defend- ant, the brother may claim from him a conveyance of an interest in the premises, if he have a valid contract for such interest, and enforce such conveyance by suit ; but that is a matter with which the defendant has no concern. It seems that the draft of the trust deed, to secure the deferred payments, sent to the defendant for examination, was prepared for execution by the complainant alone, and contained a stipula- 78 WILLAKD V. TAYLOE. [CHAP. II. tion that he might, if he should so elect, pay off the deferred pay- ments at earlier dates than those mentioned in the covenant in the lease; and_it is objected to the complainant's right to a spe- cific performance, that the trust deed was not drawn to be exe- cuted jointly by him and his brother, and that it contained this stipulation. A short answer to this objection is found in the fact, that the parties had disagreed in relation to the payment to be made, and until the disagreement ceased no deeds were required. It is admitted that the form of the trust deed was not such a one as the defendant was bound to receive, but as it was sent to him for examination, good faith and fair dealing required him to indicate in what particulars it was defective, or with what clauses he was dissatisfied. Whether it was the duty of the complainant or defendant to prepare the trust deed, according to the usage prevailing in Washington, is not entirely clear from the evidence. There is testitnony both ways. The true rule, independent of any usage on the subject, would seem to be that the party who is to ex- ecute and deliver a deed should prepare it. It is, however, immate- rial for this case, w^at rule obtains in Washington. Untitthe purchase money was accepted, there was no occasion to prepare any instrument for execution. So long as that was refused the preparation of a trust deed was a work of supererogation. Besides, the execution of the trust deed by the complainant was to be sim- ultaneous with the execution of a conveyance by the defendant. The two were to be concurrent acts ; and if the complainant was to prepare one of them, the defendant was to prepare the other, and it is not pretended that the defendant acted in the matter at all. ■ The objection to the trust deed, founded upon the omission of the name of the complainant's brother as a co-grantor, does not merit consideration. All that the defendant had to do was to see that he got a trust deed, as security for the deferred pay- ments, from the party to whom he transferred the title. The defendant states in his testimony that when the lease was executed he objected to the stipulation for a sale of the premises, and that the defendant told him that it should go for nothing. And it has been argued by counsel that this evidence should control the terms of the covenant. The answer to the position taketi is brief and decisive. First, nothing of the kind is averred in the answer; second, the testimony of the defendant in this particular is distinctly contradicted by that of the complainant, and is inconsistent with the attendant circumstances; and third, CHAP. II.] WILLARD V. TAYLOE. 79 the evidence is inadmissible. When parties have reduced their contracts to writing, conversations controlling or changing their stipulations are, in the absence of fraud, no more received in a court of equity than in a court of law. Upon a full consideration of the positions of the defendant we perceive none which should preclude the complainant from claiming a specific performance of the contract. The only question remaining is, upon what terms shall the de- cree be"made? and upon this we have no doubt. The parties, at the time the proposition to sell, embodied in the covenant of the lease, was made, had reference to the cur- rency then recognized by law as a legal tender, which consisted only of gold and silvei* coin. It was for a specific number of dol- lars of that character that the offer to sell was made, and it strikes one at once as inequitable to compel a transfer of the property for notes, worth when tendered in the market only a little more than one-half of the, stipulated price. Such a substitution of notes for coin could not have been in the possible expectation of the parties. Nor is it reasonable to suppose, if it had been, that the covenant would ever have been inserted in the lease without some provision against the substitution. The complainant must, there- fore, take his decree upon payment of the stipulated price in gold and silver coin. Whilst he seeks equity he must do equity. The decree of the court below will, therefore, be reversed, and the cause remanded with directions to enter a decree for the exe- cution, by the defendant to the complainant, of a conveyance of the premises with warranty, subject to the yearly ground rent specified in the covenant in the lease, upon ihe payment by the latter of the instalments past due, with legal interest thereon, in gold and silver coin of the United States, and upon the exe- cution of a trust deed of the premises to the defendant as security for the payment of the remaining instalments as they respectively become due, with legal interest thereon, in like coin ; the amounts to be paid and secured to be stated, and the form of the deeds to be settled, by a master ; the costs to be paid by the complainant. The Chief Justice, with Nelson, J., concurred in the conclu- sion as above announced, — that the complainant was entitled to specific performance on the payment of the price of the land in gold and silver coin, — ^but expressed their inability to yield their assent to the argument by which, in this case, it was supported. 80 MERRIAM V, BOST., CLINT. & FITCHB. E; R. CO. [CHAP. II. MERRIAM V. BOSTON, CLINTON & FITCHBURG RAIL- ROAD COMPANY. (117 Mass. 241.) [Supreme Judicial Court of Massachusetts, 1875.] Bill in Equity, filed July 5, 1873, against the Boston, Clinton & Fitchburg Railroad Company and George A. Torrey, to com- pel them to account for certain shares of the stock and bonds of the Corporation and to transfer the same to the plaintiff. The case was reserved by Gray, C. J., for the consideration of the full court, upon a report in substance as follows: In October, 1867, the plaintiff was the owner of eight shares of the preferred stock and three shares of the unpreferred stock of the Fitchburg & Worcester Railroad Company, the same being her sole and separate property, and desiring to assist her son, Rufus D, Wilder, and to enable him to raise money, wrote her name upon the back of her certificates of the, shares, and handed him the certificates so endorsed, to be used by him for that pur- pose, and the stock was so used with her knowledge. On Novem- ber 6, 1867, transfers of the stock to E. M. Simmonds were writ- ten, by Rufus, upon the back of said certificates, above the plain- tiff's signature, in the usual form, and were taken to the office of the company and duly recorded, and new certificates for the same number of shares were issued to Simmonds, upon the sur- render of the old certificates. On April 10, 1868, Simmonds transferred the shares to John W. Carpenter. On April 28, 1868, Carpenter transferred them to Martha F. Marshall ; and on March 2, 1869, Marshall trans- ferred the shares to the defendant -Torrey. Simmonds, Carpen- ter, Marshall and Torrey, each received their respective transfers in good faith, and each paid a valuable and adequate considera- tion therefor, and neither of them had any knowledge of any defect in the title thereof, and in each case the transfers were in due form, were duly recorded on the books of the company, and new certificates were issued upon the surrender of the old certificates. On June 18, 1869, the Fitchburg & Worcester Railroad Com- CHAP. II.] MERRIAM V. BOST., CLINT. & FITCHB. R. R. CO. 81 pany, and the Boston, Clinton & Fitchburg Railroad Com- pany, under authority conferred by the legislature, mutually exe- cuted and entered into by their proper officers, duly authorized, a written contract for the consolidation of the two companies, and thereupon the said companies were consolidated, as provided in the contract, and became the present Boston, Clinton & Fitchburg Railroad Company. Shortly after the consolidation of the two companies, and in pursuance of the contract, the new corporation issued to the de- fendant Torrey, as the holder of said eleven shares, certificates of eleven shares of the stock of the new company, and bonds of the new company to the amount of $800, and the said Torrey has since been the holder of the certificates and has received interest on the bonds; but no dividends have ever been made upon the stock. During all the above transactions, the plaintiff was and has ever since been a married woman, living with her husband, Charles H. Merriam, in Leominster in said county, who never assented in writing, or otherwise, to her conveyance of the first named shares, or joined with her in the conveyance thereof, nor was the consent of any judge of the Supreme Judicial Court, Superior Court, or Probate Court ever obtained or granted to her to make such conveyance. At the time the plaintiff signed her name on the back of the certificates, as above stated, she did not know that the consent of her husband, or of a judge of one of said courts, was necessary to authorize her to make a conveyance of said shares, and she was first informed that such consent was necessary in January, 1872, by H. F. Coggshall, who, during the above transactions, until January, 1871, was the clerk and treasurer of the present corporation, who then requested her either to buy the stock back, or to obtain her husband's consent to the original transfers. Her husband, at this time, refused to give his consent. The certificates were endorsed by the plaintifif and given to the son without the husband's knowledge. The son received the con- sideration from Simmonds, and he has never repaid the same to the plaintiff. The plaintiff made demand on the defendants a short time before filing this bill. The stock was transferred by the company in good faith, the treasurer being ignorant of the laws applicable to the transfer of stock by married women, and no other officer of the company being aware of the transaction. The plaintiff has made no attempt to act as stockholder in the company since the transfer to Sim- 6 82 MERRIAM V. BOST., CLINT. & FITCHB. E. R. CO. [CHAP. II. monds, nor ever informed the company, or Torrey, that she con- sidered the transfer invalid, or that she desired to recall the same, until December, 1872. She has resided at a distance of five miles from the office' of the company where stockholders' meetings have been held. The defendant corporation owns no bonds, the whole • amount authorized by the contract having been issued, and Tor- rey, before any notice of the plaintiff's claim, sold and disposed of all of the bonds except one bond for the sum of $100. The value of the stock and bonds is now considerably greater than the value of the stock at the time of the transfer to Simmonds. The case is reserved, at the request of the parties, for the con- sideration and determination of the full court, who are to render such a decree as justice and equity may require. Ames, J. At the time when the plaintiff delivered the certifi- cates of her shares, with her signature endorsed, to her son, she had no l^al capacity to convey them, without the written consent of her husband, or that of a judge of the Supreme Judicial Court, Superior Court, or Court of Probate. Gen. Sts. c. 108, § 3. As the conveyance under which the defendants claim was without such consent, it was invalid, and the l^^al title to the shares still remains in her. The doctrine of estoppel is not applied to the case of a party incapable in law of making a contract, and she is therefore not estopped to deny the validity of the conveyance. Lowell V. Daniels, 2 Gray, 161. Pierce v. Chase, 108 Mass. 254. The defendants insist that the claim of the plaintiff is inequi- table, and that for that reason she is not entitled to the aid of a court of equity in its enforcement. But there is no equitable construction of a contract or duty, different from the legal one, and the same thing is true in the construction of statutes. 2 Story, Eq. Jur. § 1548. A court of equity has no more jurisdiction than a court of law to recognize and give effect to instruments which, by statute, are inoperative. Townsley v. Chapin, 12 Allen, 476. The provision of the general statutes above cited was un- doubtedly intended for the protection of the rights of married women, and was for many years a part of the settled policy of the law. We are not prepared to hold that the assertion by the plaintiff of a clear legal right is in itself inequitable, in such a sense that her remedy in equity ought to be denied. If the pur- suit of such a remedy were a violation of the defendants' rights, or a breach of any agreement accompanying or modifying the original contract, or giving to the defendants any special equity peculiar to themselves, or placing them in any. different position CHAP. II.] DODGE V. ESSEX INSURANCE COMPANY. 83 from that of any other person who has had the misfortune to take a defective title, the case might stand differently. With regard to the alleged laches on the part of the plaintiff, it is found in the report that she was not informed until some time in January, 1872, that the conveyance of the shares was not binding upon her. Whatever title any of the defendants sup- posed they had acquired in the property was obtained before that date, and it does not appear that since then any new expenses have been incurred or any new liabilities created. It is true that the disability of a married woman to bring an action has been removed, yet practically the fact of coverture cannot be wholly overlooked in the consideration of the question of laches. We are not prepared to say that there has been such a long continued and unexplained acquiescence on her part in the defendants' pos*- session of the property as to amount to gross laches, sufficient to deprive her of her remedy. For these reasons we think she is entitled to the relief prayed for, and to a Decree accordingly. DODGE V. ESSEX INSURANCE COMPANY. (12 Gray 65.) [Supreme Judicial Court of Massachusetts, 1858.] The plaintiffs on the 4th of October, 1848, sued the defendants in assumpsit upon an open policy of insurance for $4,000, pay- able in sixty days after proof and adjustment of loss, "on prop- erty on board vessel or vessels at and from any port or ports in the United States to any other port or ports in the United States, as per endorsements thereon ; with liberty to stop at any inter- mediate ports or places, and fol- the captain to act as pilot ;" and bearing these endorsements : "Liberty is given to stop at Norfolk or other ports for trade, by adding one-eighth per cent for each. This policy attaches as follows" : Among others, "Schooner Po- tomac; Voyage, Norfolk to Salem or Boston," for $2,700, July 8, and $300, July 15, 1848. This action was tried at November term, 1849, before Fletcher, J., and by him reported for the decision of the whole court, sub- ject to all legal objection to the competency of the following evidence : 84 DODGE V. ESSEX INSURANCE COMPANY. [CHAP. II. It appeared that the Potomac, laden with corn, sailed from Norfolk, and arrived, at Salem about noon on the 17th of July-, 1848, and the master came to the plaintiffs' counting room there, and was told that his port of discharge was Boston, and received orders to go there; but the schooner was wrecked on her pas- sage there, the same day. The plaintiffs introduced evidence that under former similar policies between the same parties vessels had come into Salem and discharged parts of their cargo and then proceeded to Boston, and the plaintiffs had afterwards set- tled with the defendants by paying one-eighth per cent addi- tional premium. It appeared that after the schooner stranded the plaintiffs did nothing about her, and the cargo was saved by persons employed by the president of the defendants; but the defendants introduced evidence to show that in doing this he acted for himself and not for them. By the bill of lading, signed by Benjamin F. Mefritt as master, the cargo was to be delivered to the plaintiffs at Salem, with this agreement added: "That if Messrs. Dodge & Co. shall desire the corn to be delivered at Boston or any other port of > equal dis- tance and convenience, the said Captain Merritt shall there deliver ■it ; they paying an additional one-half per cent per bushel." This was argued at Boston in January, 1854. Shaw, C. J. This risk terminated at Salem, and the prop- erty being lost, on the passage from Salem- to Boston, under an order given to the master at Salem after arrival there, it was not a loss covered by this policy. The open policy from any port or ports in the United States to any other port or ports in the United States constituted no contract of insurance, until made operative and efficient by the endorsement. The termini, uncer- tain in the open policy, are made certain by the endorsement. Its legal operation is like that of a policy on property, by the Potomac, from Norfolk to Salem or Boston, with the liberties expressed in the policy, and in the caption to the endorsements. The terminus a quo is Norfolk, and the terminus ad quem is either Salem or Boston, as the assured might direct. It is left uncer- tain by the contract, but it must be made certain at some time, and must be determined by the court. At whatever time that election might be made, within the stipulated limits, whether at the time pf the departure from Norfolk, or at any time before arriving at the dividing point in the voyage, or at what other" time, it must be before the termination of the risk, and that risk will terminate on arrival at Boston or Salem, whichever shall CHAP. II.] DODGE V. ESSEX INSURANCE COMPANY. 85 first happen. This appears to the court to be the clear legal result of the contract ; and we see nothing in the interior usage or practice of the parties to vary this result. If we look at all beyond the policy, we find that the cargo was shipped for account of the assured, under a contract with the owners of the vessel to carry it to Salem, with a further stipulation, that if on its arrival at Salem the shipper should desire it to be carried by the vessel to Boston or any other port equally near and convenient, it should be done for a small additional freight, showing the first destination to be Salem. Had there been a similar stipula- tion in the policy, it might have been different. When a risk is intended on any terms to be extended beyond the fixed terminus, either in time or place,*it must be done in explicit terms, and the conditions strictly complied with. Sdlvin v. James, 6 East, 571. Plaintiffs nonsuit. Equity jurisdiction was conferred upon this court in cases of fraud, on the 14th of April, 1855, and in cases of accident and mistake, on the 5th of March, 1856. Sts. 1855, c. 194 ; 1856, c. 38. The plaintiffs on the 23d of May, 1856, filed a bill in equity ta reform the policy. The defendants contended that the suit was barred by the statute of limitations. And the chief justice, after a hearing at April term, 1858, reserved this point, and others not material to be stated, for the determination of the whole court. BiGELOW, J. It is unnecessary to consider most of the ques- tions discussed at the argument of this case, because we are of opinion that the statute _ of limitations is a bar to the mainte- nance of this bill. It was filed on the 23d of May, 1856. The loss which is claimed under the policy happened on the 17th of July, 1848, and the amount alleged to be due .from the defendants on the contract of insurance became payable, if at all, in sixty days after proof and adjustment of loss. The action at law to recover the amount of the loss was commenced on the 24th of October, 1848, and was tried in this court in November, 1849. At the trial the point of law on the ^construction of the clause of the policy, which it is the purpose of the suit to reform as having been inserted by mistake, was raised, and subsequently it was decided against the plaintiffs. It i^ clear beyond controversy on these facts that a suit at law on the policy would be barred. In England, courts of equity do not hold themselves absolutely barred by the provisions of the statute of limitations. They adopt it only as a rule by which to guide the exercise of their discretion. In the courts of chancery in this country it is other- 86 DODGE V. ESSEX INSURANCE COMPANY. [CHAP. II. wise. Full force and effect is given tp the statute in equity as at law. It operates 'on equitable proceedings suo vigore, and not as a rule of comity, or as a measure of judicial discretion. Farnum v. Brooks, 9 Pick. 212. The question which this case presents is, whether, after all remedy at law is barred, a party can revive a claim- and recover it in equity under an allegation of mistake in framing the contract. Our first impression is, that if the alleged accident or mistake was proved so as to warrant a court of equity in reforming the contract, it would not avail the plaintiffs. The time when the breach of the contract took place and the cause of action accrued would remain unchanged, and so after the contract was reformed the statute would still be an absolute bar to the recovery of damages. This view derives additional strength from the position assumed by the plaintiffs, that in this suit, after entering a decree reforming the contract, it would be the duty of the court to go on and assess the dam- ages for a breach of contract and enter a final decree therefor. We confess we are unable to see why, after the mistake in the contract shall have been corrected, the cause of action which accrued in 1848 is not barred. But if this be not so, there is still an insuperable difficulty which stands in the way of giving the plaintiffs any equitable relief. The authorities are quite decisive that even in the courts of chancery in England, where the statute of limitations is acted on only as a guide to the discretion of the court, in cases oi bills filed to correct mistakes in contracts, the courts will refuse to grant relief, as in cases of fraud, if the period of limitation has elapsed between the filing of the bill and the time when the mistake was discov.ered or when by the use of due diligence it ought to have been discovered. Brooksbank v. Smith, 2 Y. & Col. Exch. 58. Blair v. Bromley,. 5 Hare, 542, and 2 Phil. Ch. 354. Hough V. Richardson, 3 Story R. 659. Assuming this to be the true doctrine, it is decisive against the right of the plain- tiffs to maintain this bill. The plaintiffs knew how the clause in the policy which they now seek to change was framed, as early as 1849, when, at the trial of the suit at law, they found that the defendants put a different construction on'the language of the contract from that for which the plaintiffs contended, and .entirely at variance with the true agreement, as they allege it was originally entered into. If there was any mistake in the con- tract, they knew it then, and more than six years have elapsed since it was disclosed to them. No new fact has come to their CHAP. II.] BADGER V. BADGER. 87 knowledge since, by which they have learned that the clause in question was in any respect framed differently from the real contract between the parties. The language of the contract,, it is true, has received a judicial construction which differs from that which the plaintiffs put upon it. But this error on their part furnishes no ground for the maintenance of this bill. It was a mistake of law only as to the meaning of words actually in- serted in the contract, and not a mistake as to form of words in which the parties agreed the contract should be enforced. Such a mistake cannot be relieved against in equity. 1 Story on Eq. §§ 111, 137. It is scarcely necessary to add that the legislature, in giving to this court jurisdiction in equity in cases of fraud, accident and mistake, did not intend to revive claims or causes of action which have become barred before the statute was passed. Such a retro- active effect of a statute would be contrary to the ordinary and regular operation of legislative enactments, and cannot receive judicial sanction, unless required by a provision of the statute expressed in terms too clear to admit of doubt. Bill dismissed. BADGER V. BADGER. (2 Wall. 87.) [Supreme Court of the United States, 1865.] Mr. Justice Grier delivered the opinion of the court. If the decree of the Circuit Court dismissing the bill in this case, because of its staleness, was correct, it will not be necessary to examine the charges of the bill further than as they affect this question. The numerous cases on this subject found in the books, will seem to be contradictory, if the dicta of the chancellors are not modified by applying them to the particular facts of the case under consideration. Thus, Lord Erskine, in an important case once before him, says: "No length of time can prevent the unkennelling of a fraud." And Lord Northington, in Alden v. Gregory, 2 Eden, 285, with virtuous indignation against fraud, exclaims: "The next question is, in effect, whether delay will purge a fraud. 88 BADGER V. BADGER. [CHAP. II, Never while I sit- here ! Every delay adds to its injustice and multiplies its oppression." In our own court, Mr. Justice Story - has said {Prevost v. Gratz, 6 Wheat: 481) : "It is certainly true that length of time is no bar to a trust clearly established ; and in a case where fraud is imputed and proved, length of time ought not, on principles of eternal justice, to be admitted to repel relief. On the other hand, it would seem that the length of time during which the fraud has been successfully concealed and prac- ticed, is rather an aggravation of the offence, and calls more loudly upon a court of equity to give ample and decisive relief." Now, these principles are, no doubt, correct, but the qualifica- tions with which they are stated should be carefully noted : 1st. The trust must be "clearly established." 2d. The facts must have been fraudulently and successfully concealed by the trustee from the knowledge of the cestui que trust. The case of Michoud v. Girod, 4 How. 503, is an example of the class in which the concealment of the fraud was the aggra- vation of the offence. The facts of the case were "clearly estab- lished" by records and other written documents, and the court were not called on to found their decree on the frail memory or active imaginations of ancient witnesses, who may not be able, after a great lapse of time, to distingfuish between their faith and their knowledge; between things seen or heard by them- selves, and those received from family or neighborhood gossip, or upon that most unsafe of all testimony, conversations and confessions — remembered or imagined — ^partially stated or wholly misrepresented. The fraudulent concealment was also clearly es- tabHshed. The heirs, who lived in Europe, were deceived by the false representations of the executor, and kept in total igno- rance of the situation and value of the estate, having no infor- mation on the subject than that communicated to them by him. The delay was not the consequence of any laches in the heirs, but was caused by the successful fraud of the executor, and was but an aggravation of the offence. But the case before us has none of the peculiar characteristics of those to which we have referred. In 1818, Daniel Badger died, leaving ten children. Adminis- tration was granted to Daniel B. Badger, the eldest son, and Joseph Badger, the brother of the deceased. The other heirs were at that time minors. The administrators filed inventories of the estate, its debts and liabilities, and had lieve to sell certain CHAP. II.] BADGER V. BADGER. 89 portions of the real estate. In 1827 a further account was filed which had the written approval of the widow and heirs; the minors acting by their guardians. The bill charges that this account was fraudulent, and that the estate was not liable for the debts therein, stated ; that in 1830 the administrators obtained an order to sell certain portions of the real estate to pay the debts. It charges that he silenced the objections of some of the heirs who objected to the order by purchasing their shares, and procured the signature of the widow fraudulently, by the use of which he obtained from the court the orders to sell ; that in March, 1831, the property was sold at auction, and bid in by persons who conveyed it to the adimistrator. For more than twenty-five years the widow and heirs acquiesced in this sale, and it is more than thirty since the administration account was settled, which is alleged to have been fraudulent. The guardian of the complainant, who approved the account, is dead ; the widow died in 1855. Two of the heirs were of full age in 1831, and the others afterwards. This bill was filed in 1858. The bill does not state the age of complainant. But at the time of filing his bill he must have been over forty years of age. The whole transaction was public and well known to the widow and the heirs, and their guardians. The purchase of the estate by the administrator could have been avoided at once, if any party interested disapproved of it. There was not and could not be any concealment of the facts of the case. The complainant claims as assignee of his elder brothers and sisters, and uses them as , witnesses to prove the alleged fraud, after a silence of over thirty years. They attempt to prove the signature of their mother, to the documents on file in the court, to be forged, -and this after the death of the mother, who lived for twenty-eight years after the transac- tion without complaint or allegation either that her signature was fraudulently obtained or forged. A daughter, who was twenfy- three years of age when this sale was made, and had full knowl- edge of the whole transaction, after nearly thirty years silence, now comes forward to prove that her concurrence and consent was^ obtained by fraud ; and now, after the death of the guardian and the mother, who could have explained the whole transaction, the aid of a court of chancery is demanded to destroy a title obtained by judicial sale, after the parties complaining, with full knowl- edge of their rights, have slept upon them for over a quarter of a century. Now, the principles upon which courts of equity act in such 90 BADGER V. BADGER. [CHAP. IL cases, are established by cases and authorities too numerous for reference. The following abstract, quqted in the words used in various decisions, will suffice for the purposes of this decision: "Courts of equity, in cases of concurrent jurisdiction, consider themselves bound by the statutes of limitation which govern courts of law in like cases, and this rather in obedience to the statutes than by analogy. "In many other cases they act upon the analogy of the like limitation at law. "But there is a defence peculiar to courts of equity founded on lapse of time and the staleness of the claim, where no statute of limitation governs the case. In such cases, courts of equity act upon their own inherent doctrine of discouraging, for the peace of society, antiquated demands, refuse to interfere where there has been gross laches in prosecuting the claim, or long acqui- escence in the assertion of adverse rights. Long acquiescence and laches by parties out of possession are productive of much hardship and injustice to others, and cannot be excused but by showing some actual hindrance or impediment, caused by the fraud or concealment of the parties in possession, which will appeal to the conscience of the Chancellor. "The party who makes such appeal should set forth in his bill specifically what were the impediments to an earlier prosecutien of his claim ; how he came to be so long ignorant of his rights, and the means used by the respondent to fraudulently keep him in ignorance ; and how and when he first came to the knowledge of the matters alleged in his bill; otherwise the Chancellor may justly refuse to consider his case, on his own showu'g, without inquiring whether there is a demurrer or formal p.£a of the statute of limitations, contained in the answer." The bill in this case is entirely defective in all these respects. It is true, there 'is a general allegation that. the "fraudulent acts were unknown to complainant till within five years past," while the statement of his case shows clearly that he must have known, or could have known, if he had chosen to inquire at any time in the last thirty years of his life, every fact alleged in his bill. That his mother was entitled to dower in the land if the sale was set aside, was no impediment to his pursuit of his rights, while her death may have removed the only witness who was able to prove that his complaint of fraud was unfounded, and that it was by the consent and desire of the family that the property was kept in the family name by the only one who was CHAP. II.] ELLISON V. MOFFATT. 91 able to advance the money to pay the debts of the deceased; a fact fairly -to be presumed from her silence and acquiescence for twenty-four years. The court below very properly dismissed this bill, and refused to examine into accounts settled by the courts, with the knowledge of all parties concerned, and commencing forty years and end- ing thirty years ago, and to grope after the truth of facts involved in the. mists and obscurity consequent upon such a lapse of time. If a further reason were required for affirming this decree, it might be found in the statute of Massachusetts, declaring that "Actions for land sold by executors, administrators, or guar- dians, cannot be maintained by any heir or person claiming under the deceased or intestate, unless the same be commenced within five years next after the sale." But we prefer to affirm the decree for the reasons given, without passing any opinion on the effect of this statute. The decree of the Circuit Court is affirmed, with costs. ELLISON V. MOFFATT. (1 Johns. Ch. 46.) [Court of Chancery of New York, 1814.] The Chancellor. The parties lived in the same county, and, without accounting for the delay, the plaintiff suffered a period of twenty-six years to elapse, from the termination of the Ameri- can war, to the time of filing his bill. The offer made by the executors being for peace, and without any recognition of the justness of the demand, and being rejected by the plaintiff, can- not affect the question. It would not be sound discretion to overhaul accounts, in favor of a party who has slept on his rights for such a length of time ; especially, against the representatives of the other party, who have no knowledge of the original transactions. It is against the principles of public policy to require an account, after the plaintiff has been guilty of so great laches. , The bill must be dismissed on the ground of staleness of the demand; but without costs. 92 TAYLOR V. RUSSELL. [CHAP. II. TAYLOR V. RUSSELL. (L. R. (1892) Ap. C. 244.) ' [House of Lords Cases, 1892.] Appeal from aa order of the Court of Appeal, 1 Ch. 8. The facts are related in the report of the decision below and in the judgments of Lords Herschell and Macnaghten in this House. The following is an outline in the order of time: The property in question was a plot of land al old Shildon in the county of Durham, the fee simple of which belonged to Robert Surtees, who died in 1857. Surtees devised his real es- tates in strict settlement. The trustees of his will, who were devisees to uses, had under the will powers of sale and mortgage and, as incidental thereto, power to revoke the uses declared by the will. On the 19th of November, 1862, the trustees executed a legal mortgage of the land in question together with other land to Sir F. D. Legard to secure i9,000 with interest. The mortgage contained a proviso of redemption under which the property was to be reconveyed "according to the ownership of the equity of redemption of the same premises." By deed of the 30th of January, 1883, the surviving trustee of Surtees' will, having apparently forgotten that the land in question was in- cluded in the mortgage to Legard, conveyed it to Toward, who had -no notice of the mortgage. The conveyance recited a con- tract to sell the land free from incumbrances for £1,060, and contained the usual covenant by the trustee that he had not incumbered. The title deeds (which for some unexplained reason had not been deposited with Legard) were handed to Toward. ■ On the 15th of February, 1883, Toward mortgaged the land in question to the appellants to secure i2,500 and interest rep- resenting that he had bought the land from the trustees of one Smithson, and producing in support of his title a deed which was in fact forged. The circumstances under which the appel- lants accepted the title are fully stated in Lord Macnaghten's judgment. By deed of the, 20th of October, 1887, Toward mortgaged the land in question to the respondent Russell to secure i2,500 and CHAP. II.] TAYLOR V. RUSSELL. 93 interest, Russell having no notice of the appellants' mortgage. On this occasion Toward disclosed to Russell his real title as derived from Surtees' trustee and handed to Russell the title deeds. In 1888 Toward absconded an(^ the respondent Russell, having discovered the fact of the appellants' mortgage, induced the trus- tees of Sir F. D. Legard's will, in whom the legal estate of the land in question was vested, to convey it to the Surtees' trustees upon the express condition agreed to between them and the Legard trustees that the Surtees' trustees would immediately thereafter convey the legal estate to Russell. Accordingly, on the 21st of November, 1888, the trustees of the will of Sir F. D. Legard executed a deed of that date by which — after reciting that they had been requested by the trustees of Surtees' will to release the land in question from the mortgage of the 19th of November, 1862, and that being satisfied that their mort- gage debt was otherwise sufficiently secured they had agreed to do so — they conveyed the land in question to the trustees of Surtees' will to the uses upon the trusts and with and subject to the powers and provisions of Surtees' will, or such of them as were then subsisting and capable of taking effect. By a deed of the 26th of November, 1888, the trustees of Surtees' will, in pursuance of a request by the respondent Russell, conveyed the land in question to hini subject to the equity of redemption sub- sisting by virtue of the mortgage of the 20th of October, 1887. The Surtees' trustees, before executing the deed of the 26th of November, had been (as Kay J. found), informed of the appel- lants' mortgage. In 1889 the appellants brought an action against Russell and the other respondent (who claimed under Russell's title), claim- ing a declaration that the appellants were first mortgagees of the land in question, and to have their security of the 15th of Feb- ruary, 1883, realized. The action was tried before Kay, J., who made a declaration and order in favor of the plaintiffs, 1 Ch. p. 20, but that decision was reversed by the Court of Appeal (Sir J. Hannen, Bowen and Fry, L. JJ.), 1 Ch. 8. This is a case where two -innocent mortgagees have been de- frauded by the mortgagor and the question is which is to suiifer. On the execution of the' mortgage to the appellants on the 15th of February, 1883, they took such interest as the mortgagor could convey, viz., an equitable estate in fee simple, the legal estate being in Legard's trustees under the mortgage to Legard from 94 TAYLOR V. RUSSELL. [CHAP. II. Surtees. On the execution of the mortgage to the respondent Russell on the 20th of October, 1887, he became second equitable mortgagee. The respondent Russell now claims to have priority over the appellants, the first equitable mortgagees, by reason of the legal estate having been conveyed to him, and also on the ground of the appellants' negligence. With regard to the first point, equity will not permit such a transaction to defeat the first mortgagees where the legal estate has been conveyed in breach of duty. Legard's trustees in whom the legal estate was were not bound to release this land from their mortgage, but if they did they were bound to convey to the persons entitled to the equity of redemption, i. e., the appel- lants. Surtees' trustees had notice of the appellants' title and conveyed the legal estate to the respondents in breach of their duty, which was to convey it to the appellants. A .mortgagee may transfer his security as he pleases; he may sell under a power of sale; he may enter into possession; and perhaps sub- mortgage; but subject to this he simply owns a charge and is a trustee for the mortgagor or the owner of the equity of re- demption. No doctrine is better established than this, that in equity a mortgage is regarded simply as a charge; an equity of redemption is considered as an estate in the land; "the person entitled to the equity of redemption is considered as the owner of the land ;" so that the husband of a feme mortgagor is tenant by courtesy ; and "it is certain the mortgagee is not barely a trustee to the mortgagor, but to some purposes, videlicet with regard to the inheritance, he certainly is till a foreclosure;" Casborne v. Scarf e, 1 Atk. 603, per Lord Hardwicke. This doctrine was en- tirely disregarded by Legard's trustees and by Surtees' trustees. A satisfied mortgagee has no right to convey the legal estate to a stranger ; he is a bare trustee for the owner of the equity of re- demption. True, the appellants could not call on Legard's trus- tees to release to them, but they were entitled to say, "If you do release, release to us." Beyond his debt a mortgagee has no interest in the land. In equity the contract "is considered a mere loan of money, secured by a pledge of the estate ;" Seton v. Slade, 7 Ves. 265, 273, per Lord Eldon. The land follows the debt; the land is a' mere security, Thombrough v. Baker, 2 Wh. & T. L. C. Eq. 1166, 1169 (6th ed.). The mortgagee's only right as to the rents or as to sale is to pay himself his debt ; beyond that he is an absolute trustee for the mortgagor, Matthison v. Clarke, 3 Drew, 3, per Kindersley, V. C. A mortgagee cannot in equity CHAP. II.] TAYLOR V. RUSSELL. 95 without the mortgagor's concurrence release a vendor, from whom the mortgagor purchased, from his covenant for quiet enjoyment, Thornton v. Court, 3 D. M. & G. 293. An equitable incumbrancer cannot, after receiving notice of a prior incumbrance, obtain priority over it by getting in a legal estate from a bare trustee, Harpham v. Shacklock, 19 Ch. D. 207, 214, where Jessel, M. R., said: "Nothing is better settled than that you cannot make use of the doctrine of 'tabula in naufragio' by getting in a legal estate from a bare trustee after you have received notice of a prior equitable claim." The origin of the phrase, "tabula in naufragio," is given in the notes to Marsh v. Lee, 1 Wh. & T. L. C. Eq. 700, 701 (6th ed.). Where money is lent on an equitable mort|fage without notice of a prior equitable agreement, the lender gains no priority over the owner of the prior equitable interest by getting in the legal estate after notice that his mortgagor has made himself trustee for the owner of the prior equity; nor would he be in any better position if he had no notice, Mumford v. Stohwasser, L. R. 18 Eq. 556, per Jessel, M. R. ; and see Cory v. Eyre, 1 D. J. & S. 149, 167, per Turner, I>. J. The doctrine of tacking is highly technical, and the courts have frequently said they will not extend a doctrine which has the effect of squeezing out an innocent prior mortgagee, and that it was a great misfortune it was ever introduced. See per Lord Blackburn in Jennings v. Jordan, 6 App. Cas., p. 714. There is no case in the books where the doctrine of tacking has been applied to such circumstances as the present. Strictly speaking, tacking means tacking one equitable security to another, not tacking the legal estate to an equitable security, and here by the hypothesis the equitable security is gone. It is not clear that Legard's trustees ought in any case to have conveyed the legal estate to Surtees' trustees. Surtees' trustees were not in the or- dinary position of freeholders ; they had power to raise money by revoking the uses declared by the will, and the reconveyance, if made to them, ought to have been made to the same uses as the original settlement. Legard's trustees were not justified in con- veying otherwise than to the person entitled to the ownership of the equity of redemption. They are at least in no better position than if they had reconveyed directly to the respondent Russell, and that would clearly have been wrong. They might not have been liable in damages for so doing, but a court of equity will not help an equitable mortgagee who so acquires the legal estate. 96 TAYLOR V. RUSSELL. [CHAP. II. Legard's trustees, being trustees for the owner of the equity of redemption subject to the charge, the moment their security ceased to exist as to the property in question, the owner of the equity of redemption became absolute owner of that part freed from the charge, and Surtees' trustees and the respondent Russell became in succession trustees for the appellants. A mortgage debt cannot be split ; nor can the land be split. The respondent Russell having become trustee for the appellants, could not set up his own title to the appellants' prejudice. The mortgage to the appellants had the efifect of reading their names into the deed of 1862, by which Surtees' trustees mortgaged to Legard's trustees with a proviso that the reconveyance should be "according to the ownership of the equity of redemption of the premises." What right had Surtees' trustees to prefer the second mortgagee to the first, and to take away the appellants' equitable estate and give it to another ? The surviving trustee had already made a mistake in conveying to Toward as if he had not incumbered, and he had covenanted with Toward that he had not incumbered. It is said that the reconveyance to Surtees' trustees was on the condition that they should convey to the respondent Russell. That is like paying trust money with a condition to pay it over to some person not entitled. Assuming even that Legard's trustees could have properly conveyed to the respondent Russell, they did not; they did it through Surtees' trustees, and having taken the con- veyance in that channel the respondent Russell must suffer for it. It is no answer to say that he might have got rightly by a direct conveyance from Legard's trustees — assuming for the sake of argument that he might. The reconveyance was to Sur- tees' trustees in fee simple to the uses and on the trusts of Surtees' will ; that was in trust for the appellants as owners of the equity of redemption. The agreement by Surtees' trustees to pass on the legal estate to Russell was a breach of trust. It was an agree- ment which Russell could not have enforced. If Surtees' trustees had refused to carry out the agreement they would have com-' mitted no breach of trust; only a breach of contract. Possibly they might have been compelled to reconvey to Legard's trustees, but they were not. For five days— from the 21st to the 26th of November, 1888— the legal estate was in Surtees' trustees, and during that time the rights of the appellants as cestuis que trust were subsisting and Surtees' trustees were bare trustees for them. On the 26th they conveyed to Russell, but they could not so de- feat vested rights. CHAP. II.] TAYLOR V. RUSSELL. 97 As to the alleged negligfence, to postpone a first equitable mortgagee to a later, the negligence must be "gross and wilful, which in the eye of this court amounts to fraud ;" see the obser- vations of Lord Selborne in Dixon v. Muckleston, L. R. 8, Ch. 155, 161; such negligence, in fact, as amounts to estoppel. In other words, the negligence must either itself amount to fraud or be gross and be the means of enabling the mortgagor to de- fraud the later mortgagee, Colyer v. Finch, 5 H. L. C. 905, 928 ; Roberts v. Croft, 24 Beav. 223 ; 2 D. & J. 1 ; Cory v. Eyre, 1 D. J. & S. 149, 167. Lord Herschell. My Lords, the question raised in this action is whether the appellants are entitled to a first charge as mort- gagees of certain hereditaments comprised in an indenture of mortgage dated the ISth of February, 1883. The learned judge who tried the action declared them to be so entitled, but his deci- sion was reversed by the Court of Appeal. The case is one of that unfortunate class where one or two innocent parties must suffer from the fraud of a person with whom they have dealt. Thomas Toward, whose frauds have led to. this litigation, exe- cuted on the 15th of February, 1883, an indenture of mortgage conveying to the appellants the property now in question to se- cure an advance of £2,500. The title which he purported to shew was a deed of conveyance of the property to himself from the trustees of one Samuel Smithson. The signatures of the trustees were in fact forgeries, and the land had never formed part of the Smithson estate. The appellants were content to take the title without further inquiry, because they had shortly before become the mortgagees of certain other hereditaments in the same neigh- borhood, conveyed to Toward by Smithson's trustees, and had then investigated the title and had no reason to suspect that the forged deed was otherwise than genuine. Thomas Toward had in fact acquired the land in question from the trustees of Robert Surte'es by a conveyance dated the 30th of January, 1883. On the 20th of October, 1887, he mort- gaged it to the respondent, Arthur Henry Russell, to secure an advance of £2,500, shewing in his abstract the real title and handing over the deeds to the respondent. I have said that Thomas Toward had acquired the land by conveyance from Sur- tees' trustees, but he did not in fact obtain the legal estate, al- though so far as appeared from the conveyance and abstract of title he did so. By an indenture dated the 19th of November, 1862, the trustees under the will of Robert Surtees had conveyed 98 TAYLOR V. RUSSELL. [CHAP, II. a considerable quantity of land, including the piece in question, by way of mortgage to Sir Francis Legard to secure the sum of £9,000 and interest. This mortgage was outstanding at the date of the conveyance to Toward and was apparently overlooked. The result was this, that although both the appellants and the respondent Russell thought they had obtained the legal estate, neither of them had in fact done so. But inasmuch as at the date of his conveyance to the appellants Toward had an equitable estate subject to the mortgage of Sir F. Legard, the appellants obtained a good equitable title. And their title being of earlier date than the equitable title of the respondent Russell, would undoubtedly on that ground have had the priority but for what subsequently happened. I say this of course apart from the question of negligence, on which ground also the respondent con- tends that the appellants' security must be postponed to his. When Toward's frauds became known the respondent Russell, having ascertained the existence of the outstanding mortgage, approached the representatives of Sir F. Legard, and applied to them to release the land in question from the mortgage debt secured by the indenture of November, 1862, and to convey or cause to be conveyed the legal estate in the same to the re- spondent. Sir F. Legard's representatives, being satisfied that the remainder of the property comprised in the mortgage was sufficient security for the sum due to them, agreed to take this course. It was accordingly arranged that they should convey the legal estate to the Surtees' trustees discharged from their mortgage debt, upon the express condition that they should thereupon convey the legal estate in the premises comprised in the respondent's mortgage to him. The Surtees' trustees as- sented to this arrangement, which was accordingly carried out by two indentures. By one, of the 21st of November, 1888, the Legard trustees conveyed to the Surtees' trustees, who in turn by an indenture of the 26th of November of the same year con- veyed to the respondent. The respondent thus became possessed of the legal estate in the premises comprised in his mortgage, and it is on this (apart ■from the question of- negligence to which I have already alluded) -hat he bases his claim to priority over the' appellants, whose equitable interest was prior in point of time to his own. It is not disputed that the doctrine of equity is well settled, "that a man who has bona fide paid money without notice of any other title, though at the time of the payment he as purchaser CHAP. II.] TAYLOR V. RUSSELL. 99 gets nothing but an equitable title, may afterwards get in a legal title if he can and .may hold it, though durhig the interval be- tween the payment and the getting in of the legal title he may have had notice of some prior dealing inconsistent with the good faith of the dealing with himself." I am using the language of Lord Selborne when delivering the opinion of the Judicial Committee in the case of Blackwood v. London Chartered Bank of Australia, L. R. 5 P. C, p. 111. It is said that there is engrafted upon the rule of equity this exception, that the possession of the legal estate cannot be insisted upon as against a prior equitable incumbrancer where it was obtained from one who held it merely as trustee. The language of the late Master of the JRolls in Harpham v. Shacklock, 19 Ch. D. 207, 214, was strongly relied on in support of this view. His words were: "Nothing is better settled than that you cannot make use of the doctrine of tabula in naufragio by getting in a legal estate from a bare trustee a^fter you have received notice of a prior equitable claim." It is not necessary for your Lord- ships to determine whether this view is in accordance with the authorities, but I am content to assume it to be well founded. Where the person in whom the legal estate is vested stands in the relation of trustee to the prior incumbrancer, it would certainly be strange if a subsequent incumbrancer, with notice of these facts, could secure any advantage by obtaining a conveyance of the legal estate to himself. The appellants put their case in this way: They say that by the indenture of mortgage of February, 1883, the equity of re- demption which had passed to Toward by the deed of January, 1883, became vested in them, and that they thus had an equitable estate in fee simple subject to the mortgage to Legard. And further that Toward, as between himself and the trustees, was entitled to the conveyance of the legal estate of the property freed from the mortgage of November, 1862, and that this right passed to them. These propositions are not open to contest. Their next position is that when the legal estate became vested in the Surtees' trustees by virtue of the conveyance of the 21st of November, 1888, they became trustees of it for the appel-, lants, and that the respondent has thus obtained the legal es- tate from bare trustees who were bound to convey it to the appellants. But for the circumstances under which that con- veyance took place, this might well be so. But it must be taken as proved that the legal estate was conveyed to the trustees of 100 TAYLOR V. RUSSELL. [CHAP. II. Surtees' will at the request of the. respondent Russell, "and only upon the terms and express condition agreed to between them, the said trustees, and the successors in title of Sir F. Legard, that they, the said trustees, would immediately thereafter convey the said premises and the legal estate therein" to him. The representatives of Sir F. Legard being under no obligation to convey to the Surtees' trustees, and having made the conveyance only on the condition and for the purposes mentioned, the learned counsel for the appellants were forced to admit that their clients could not successfully have invoked the aid of a court of equity to compel a conveyance to themselves. They equally failed to establish that the appellants could have obtained an injunction to prevent the conveyance to the respondent. Whether there was to be a conveyance to the Surtees' trustees or not was a mere question of the machinery by which the arrangement between the respondent and Sir F. Legard's representatives was to be carried out, and I am of opinion that the matter must be dealt with upon the same footing as if the conveyance had been made directly from those representatives to the respondent. The controversy therefore resolved itself into this: Was there anything in the circumstance that the legal estate was obtained from Legard's representatives which precludes the respondent from claiming the benefit of it as against the appellants? It was contended on their behalf that inasmuch as they were the owners of the property subject to the mortgage, Legard's repre- sentatives were trustees for them, and that in conveying to the respondent Russell without consideration they were guilty of a breach of trust to which he was a party, that if they were satisfied with less than the entire property comprised in their security, it was only to the appellants that they could lawfully release any part of it. No authority was cited for the proposition that a mort- gagee is, subject to his security, a trustee of the legal estate for the mortgagor. The rights of a mortgagor are no doubt well established in a court of equity. He may redeem the mortgage, and no dealings with the property by the mortgagee, save a con- veyance under the power of sale, can deprive him of this right. But it is quite a different proposition, and one which I think is wholly untenable, to assert that a mortgagee is trustee for the mortgagor. It is admitted that a mortgagee may create such estates as he pleases, he may convey, by way of sub-mortgage, to whom and in as many parcels as he pleases. This seems to me to shew that CHAP, II.] TAYLOR V. RUSSELL. , \ 1^ Legard's representatives cannot be regarded as holding the legah estate as trustees for the appellants. If the conveyance to the respondent was a breach of trust on the part of Legard's repre- sentatives, as against the appellants, they could, I presume, have come to a court of equity for an injunction to prevent the con- veyance being executed. But had they done so, the answer would surely have been, "Come and redeem; that is the right which you possess, and you are not entitled, whilst abstaining from the exercise of that right, to restrain Legard's representatives from dealing with the legal estate vested in them." I am quite un- able to see that Legard's representatives committed, as against the appellants, any breach of trust or other wrong of which they are in a position to complain. And this being so, the respondent, in taking the conveyance, was not a party to any breach of trust or other wrong. The case is a novel one. But I do not think that the appellants have brought themselves within any estab- lished exception to the rule that a subsequent incumbrancer, without notice, who has got in the legal estate may hold it as against one whose equitable title is prior in point of time. And I am unable to see any equity in the appellants entitling them to insist that the respondent shall not enjoy the advantage de- rived from the possession of the legal estate. The view which I take renders it unnecessary for me to ex- press an opinion upon the other ground upon which the respond- ents rely, viz., the alleged negligence of the appellants, I am of opinion that the judgment of the court below was right, and that this appeal should be dismissed with costs. The Lord Chancellor, who heard the leading counsel for the appellants and a great part of the argument of the junior counsel, does not take part in the judgment, as he did not hear the whole of the argument. He desires me, however, to say that nothing that he heard satisfied him that the judgment of the court below . was otherwise than correct. Lord Macnaghten. My Lords, there are no facts in dispute in this case, though much is left to inference and conjecture, which the appellants might have cleared up if they had thought fit to do so. The author of the mischief which has given rise to the present controversy was one Thomas Toward, of Shildon, in the county of Durham, a builder by trade, and a man certainly of more ingenuity than honesty. Toward absconded some time in the year 1888. The precise 102 TAYLOR V. RUSSELL. [CHAP. II. date is not given, but it was stated at the bar that it was in the month of August, and thereupon, or shortly afterwards, he was declared bankrupt. On Toward's disappearance it was discovered that he had con- trived to mortgage a small property in the town of Old Shildon twice over for its full value — first to the appellants, and then to the respondeni Russell, a solicitor in York, who is interested in the mortgage on his own account, and on account of his partner, the respondent Mackay. The property belonged at one time to a gentleman of the name of Surtees, who died in 1857. Mr. Surtees devised his real estate in strict settlement* The trustees of his will, who were devisees to uses, had under the will powers of sale and mortgage, and, as incidental thereto, power to revoke the uses declared by the will.. On the 30th of January, 1883, the surviving trustee of Surtees' will, with the concurrence of the tenant for life, conveyed the property in question, together with a plot containing 820 square yards, making in all 2a. 2r. 1p. to Toward in fee, in consideration of i 1,060, and the title deeds of the property, which it seems Mr. Surtees had acquired by purchase, were handed over to him. In April, 1883, Toward conveyed the 820 square yards to the trustees of a Methodist chapel. He built some houses on the rest of the property and mortgaged it more than once. Ulti- mately, on the 20th of October, 1887, he conveyed it to RusselL by way of mortgage, for the purpose of securing an advance of £2,500, out of which a prior mortgage had been discharged. On the occasion of this mortgage to Russell, the title was carefully investigated. On the completion of the transaction,' the title deeds of the property, which had been in the hands of Russell's firm on behalf of the prior mortgagee, were retained and held by him on behalf of himself and Mackay ; and in his hands they have remained ever since. Not only had Russell no notice of any prior charge, but it is clear that no skill or diligence on his part could have detected any flaw or defect in the title. The circumstances attending the mortgage to the appellants are more interesting. On the 27th of April, 1881, Toward, who was then represented by a respectable firm of solicitors, mort- gaged to the appellants a house in the neighboring village of New Shildon, which the trustees and the beneficial owner under the will of a Mr. Smithson had conveyed to him by an indenture dated the 21st of August, 1878. It seems that on the occasion of this mortgage Toward, with an eye to future business, took the CHAP. II.] TAYLOR V. RUSSELL. , 103 precaution of keeping a copy of the conveyance to him. In January, 1883, when he was in treaty with the trustees of Sttftees' will, he applied to the appellants without the intervention of a solicitor, for an advance of ^2,500 on mortgage. The appellants, through their solicitors, asked for an abstract of title. He fur- nished them with an abstract of a deed purporting to be dated the 3d of November, 1882, and to be a conveyance to him from the Smithson trustees and the beneficial owner under Smithson's will in consideration of £1,500. The appellants, through their solicitors, then desired to compare the abstract with the deed abstracted, and Toward produced to them a document in the form of a deed, which he had fabricated by taking everything except the parcels and tfie date from his copy of the conveyance of the 21 St of August, 1878, and inserting as the parcels a descrip- tion more or less accurate of the property which he was pur- chasing from the trustee of Surtees' will, and forging thereto the names of the Smithson trustees, and the name of the bene- ficial owner under Smithson's will. Beyond comparing the abstract with the forged deed the ap- pellants made no investigation of Toward's alleged title; they made no inquiry for the purpose of ascertaining whether the property formed part of the estate devised by Smithson's will; nor did they call for the production of the earlier title deeds, although the forged deed on the face of it referred to a. covenant to be executed by the beneficial owner under Smithson's will for the production of title deeds. According to their own account they were favorably impressed by the shortness of the title, and they were satisfied that the property which Toward offered them in the town of Old Shildon was part of the Smithson estate, because, as they say, they had been assured by Toward's solicitors on the previous occasion that "the greater part of New Shildon was built upon land sold off by Mr. Smithson." The mortgage to the appellants was dated the 15th of February, 1883, and it is not disputed that it operated to pass the estate and interest which Toward had acquired on the 30th of January preceding. The appellants and the respondents each supposed that their own mortgage was a first charge and protected by an assurance of the legal estate. It turned out, however, that the legal estate was outstanding, although the fact had escaped notice until after , Toward's disappearance. It seems that on the 19th of November, 1862, by a deed of that date the Surtees trustees, with the con- 104 TAYLOR V. RUSSELL. [CHAP. 11. currence of the then tenant for life, had conveyed the property afterward sold to Toward, together with other property of much greater value, to one Sir Francis Legard in fee by way of mort- gage for the purpose of securing £9,000, of which £3,000 was paid oflf in 1867. By some oversight the title deeds of the prop- erty afterwards comprised in Toward's purchase were not handed over to the mortgagee, and the fact that the property was in mortgage was overlooked when it was sold and conveyed to Toward. After Toward's disappearance Russell took possession of the property in question in this action, and then finding that the appellants claimed priority under a mortgage of earlier date, he applied to the trustees of Sir Francis Legard's will, in whom the mortgage of 1862 was vested, and induced them to convey the property to the Surtees trustees upon the express condition agreed to between them and the Surtees trustees that the Surtees trustees would immediately thereafter convey the legal estate to him. This arrangement,' the terms of which are not in dispute, was carried out by two deeds — a conveyance of the 21st of No- vember, 1888, from the Legard trustees to the Surtees trustees, with the consent of the tenant for life under Surtees' will, and a conveyance of the 26th of November, 1888, from the Surtees trustees to Russell.' It is admitted that by this transaction Russell acquired the legal estate, and it is not disputed that an equitable mortgagee, who has advanced his money without notice of a prior equitable mortgage, may gain priority by getting in the legal estate unless the circumstances are such as to make it inequitable for him to do so, as would be the case, for example, if the legal estate were held upon express trusts or, according to recent authorities, if it were vested in a satisfied mortgagee. The mere fact that the subsequent incumbrancer has notice of the prior incumbrance when he gets in the legal estate counts for nothing. "It is," as Lord Hardwicke says, 2 Ves. 574, "the very occasion which shews the necessity of it." It is therefore incumbent upon the appellants, who were the plaintiffs in the action, to shew that Russell acted inequitably in getting in the legal estate, or that there is some equity which prevents him from availing himself of its protection. In considering the circumstances under which the legal estate was got in, it would, I think, be a mistake to attribute to the per- sons concerned in the transaction the knowledge which we now CHAP. II.] TAYLOR V. RUSSELL. 105 possess, whether the possession of that knowledge would or would not have affected their position. The first question, in my opinion, is, what did the Legard trus- tees know about the facts of the case? It is not alleged in the pleadings nor in the evidence, nor has it been suggested at the bar, that they knew anything about the appellants or their claim to be mortgagees of the property. Observations were made upon their conduct, as if they had officiously meddled in a quarrel which did not concern them, and had given or had attempted to give some advantage to one of two competing claimants, out of mere caprice or possibly through some misapprehension o^ the real state of things. That is not, I think, the true view of the case. One has in some degre€ to guess at the facts, because the ap- pellants, on whom the burden of proof lies, have not chosen to go into evidence about them. But taking everything most strongly in favor of the appellants, it seems to me that no fault can be found with the action of the Legard trustees. They were applied to by a person who had apparently been misled through the neg- ligence of their predecessor in title, and who had advanced his money without notice on the security of a small portion of the property mortgaged to them. They did not require that portion for the purpose of their own security. Why should they not hand it over to the applicant? He had a mortgage perfect on the face of it, and possession of deeds shewing a good title for sixty years. The Surtees trustees consented; so did the tenant for life under Surtees' will, and as far as I can make out, the Legard trustees knew nothing whatever about anybody else in connec- tion with the property. Notwithstanding the very able arguments addressed to us, I cannot see anything in their position as mort- gagees to oblige them to play the part of the dog in the manger, and keep what they did not want themselves from a person who seemed to have a very good claim to it. The next question is, what did Russell know? It is conceded that he knew that the appellants claimed priority on the ground of having a mortgage prior in. date to his. More than this, he cannot, I think, be taken to have known. There is no reason to suppose that the appellants had explained to him the circum- stances which they now contend excused them from obtaining the title deeds of the property. It would have been strange if they had. They do not appear to have known the circum- stances themselves. They did not even take the trouble to make themselves acquainted with the facts when they put in their state- 106 . TAYLOR V. RUSSELL. [CHAP. II. ment of claim four months afterwards. The case made in their pleadings was that Russell only obtained possession of the title deeds to the premises under the conveyance of the 26th Novem- ber, 1888. In fact, the appellants seem to have displayed no greater diligence after Toward absconded than they did when they took their security. Russell certainly knew that there were claimants prior to him in date. But he also knew that those claimants could jiot have a single title deed relating to the prop- erty except their alleged mortgage. That circumstance unex- plained would affect their claim to priority. Why was Russell to assume that it was capable of explanation when the persons in- terested did not choose to come forward and explain it ? So long as it is the settled rule of the court that a subsequent incum- brancer may gain priority by getting in the legal estate, and that there is nothing in itself inequitable in so disarranging equities, I do not see how it can be contended that there was anything contrary to equity, or anything involving a breach of trust or a breach of duty in the transfer of the legal estate from the Legard trustees to Russell. But then it is said that the legal estate passed through the hands of the Surtees trustees, and that they were trustees for the appellants in a sense. I am not quite sure that I know what that expression exactly means. But of this I am sure, that it is only when the legal estate has been acquired from a trustee in the proper sense of the term that the acquisition of it has been held of no avail. And certainly the Surtees trustees were never trus- tees of this property for the appellants ; they were only devisees to uses under Surtees' will ; they never had the legal estate until it was conveyed to them on a special trust or confidence to hand it over to Russell. In point of fact, I think they may be left out of the question altogether. The case seems to me to be precisely the same as if the legal estate had been conveyed directly by the Legard trustees to Russell. It is not clear why recourse was had to the interposition of the Surtees trustees, or why the con- veyance to them took so singular a form. It may be, as suggested in the respondent's case, that that course was adopted with the view of affording protection to the trustees of the Methodist Chapel, whose property was also included in the appellants' mort- gage. At any rate it is no part of the appellants' case that the particular machinery which was made use of was designed to embarrass or defeat their claim. My Lords, on these simple grounds, without discussing the CHAP. II.] BERRY V. MUTUAL INSURANCE CO. 107 doctrine of tabula in naufragio, or attempting to define the limits of its application, which it appears to me would be no easy mat- ter, having regard to the current of modern authority, I think the appeal must be dismissed. The appellants have not succeeded in shewing that Russell has done anything inequitable or improper in getting in the legal estate. This view of the case renders it unnecessary to consider what would have been the priority of the parties if the legal estate had not been got in. That question was not fully discussed, and I prefer to leave it undetermined. I will only say that I am satis- fied that on the part of the appellants there was an amount of negligence which it is difficult to excuse or understand; and I am not at present conv&iced of the correctness of the view ex- pressed by the learned judge who tried the case in the first in- stance, that negligence necessary to postpone a prior equitable mortgagee in such a case as the present must be so gross as to render him responsible for the fraud committed on the second mortgagee, and that in fact it is immaterial in such cases whether the prior mortgagee has or has not the legal estate. Lord Watson. My Lords, I have had an opportunity of con- sidering the opinion which has just been delivered by my noble and learned friend opposite (Lord Macnaghten), and I entirely concur in it. Order appealed from affirmed, and appeal dismissed with costs. BERRY V. MUTUAL INSURANCE CO. (2 Johns. Ch. 603.) [Court of Chancery of New York, 1817.] Kent, Ch. The equitable rights of the parties, in this case, must have reference to the time when the knowledge of their respective mortgages was communicated to each other, in the winter of 1814, and prior to the registry of the elder mortgage. The subsequent registry by the plaintiffs was of no avail. The rights of the parties had become fixed, by means of the notice, previously, mutually and concurrently given, and which notice, as to them, answered all the purpose and object of a registry. Priority of registry never prevails over a previous notice of an 108 BERRY V. MUTUAL INSURANCE CO. [CHAP. II. unregistered mortgage. 10 Johns. 461, 462. In considering this case, then, I shall place entirely out of view the fact of the reg- istry. The real point in the case is, which of the unregistered mortgages had the preference in equity, when the information of their existence was given and received. If there be several equitable interests affecting the same estate, they ^will, if the equities are otherwise equal, attach upon it, according to the periods at which they commenced; for it is a maxim of equity, as well as of law, that qui prior est tempore potier est jure. This rule has been repeatedly declared; (Clarke V. Abbott, 2 Eq. Cas. Abr. 606, pi. 41 ; Bristol v. Hungerford, 2 Vern. 525; Symmes v. Symonds, 1 Brown, Pari. Cas. ,66; [4 Brown, Pari. Cas. (2d Ed.) 328] ; Brace v. Marlborough, 2 P. Wms. 492, 495,) and we are to see if there be anything in this case to prevent the application of it. There is no fraud charged or proved upon the plaintiffs, and if they are to be postponed, notwithstanding they have the elder mortgage, it must be on flie ground of culpable negligence, either in leaving the lease with the mortgagor, when they, took the mort- gage of his term, or in not causing their mortgage to be season- ably registered. I feel strongly disposed to give to these circum- stances all the weight to which they can be entitled. 1. It is understood to have been the old rule in the English chancery, that if a person took a mortgage, and voluntarily left the title deeds with the mortgagor, he was to be postponed to a subsequent mortgagee, without notice, and who was in possession of the title deeds. The reason of the rule was, that, by leaving the title deeds, he enabled the mortgagor to impose upon others who have no registry to resort to, except in the counties of York- shire and Middlesex, and who, therefore, can only look for their security to the title deeds, and the possession of the mortgagor. The rule was so understood and declared, by Mr. Justice Burnett, in Ryall v. Rolle, 1 Atk. 168, 172; 1 Ves. Sr. 360, and Mr. Jus- tice Buller, in Goodtitle v. Morgan, 1 Term R. 762, and there are decisions which have given great weight to the circumstance of the title deeds being in possession of the junior mortgagee. Thus, in Head v. Egerton, 3 P. Wms. 279, the lord chancellor said, it was hard enough on a subsequent mortgagee, that he had lent his money upon lands subsequent to a prior mortgage, with- out notice of it, and, therefore, he could not add to his hardship, by taking away from him the title deeds, and giving them to the elder mortgagee, unless the first mortgagee paid him his money ; CHAP. II.] BERRY V. MUTUAL INSURANCE CO. 109 especially as the first mortgagee, by leaving the title deeds with the mortgagor, had been, in some measure, accessory in draw- ing in the defendant to lend his money. This case, however, so far from establishing what was supposed to be the old rule of equity, evidently contradicts it, and admits the better title in the first mortgagee. So, in the case of Stanhope v. Verney, 2 Eden, 81, before ,Lord Northington (Butler's note to Co. Litt. 290, 296, §13), the second mortgagee, without notice, had pos- session of the title deeds, but the chancellor did not give him the preference on that single circumstance, but because he also had got possession of an outstanding term. There does not seem, there- fore, to be the requisite evidence of the existence of any such rule in equity, as ha^ been stated by some of the judges; and if there was, a different rule has since been established. It is now the settled English doctrine, that the mere circumstance of leav- ing the title deeds with the mortgagor, is not, of itself, sufficient to postpone the first mortgagee, and to give the preference to a second mortgagee, who takes the title deeds with his mortgage, and without notice of the prior incumbrance. There must be fraud, or gross negligence, which amounts to it, to defeat the prior mortgage. There must be something like a voluntary, dis- tinct, and unjustifiable occurrence, on the part of the first mort- gagee, to the mortgagor's retaining the title deeds, before he shall fee postponed. L'ord Thurlow, in Tourle v. Rand, 2 Brown, 650, said, he did not conceive of any other rule by which the first mortgagee was to be postponed, but fraud or gross negligence, and that the mere fact of not taking the title deeds was not sufficient ; and that if there were any cases to the contrary, he wished they had been named. So the rule was also understood by Chief Baron Eyre, in Plumb v. Fluitt, 2 Anst. 432, and has since been repeat- edly recognized. Lord Eldon, in 6 Ves. 183, 190. Sir William Grant, in 12 Ves. 130. 1 Fonbl. Eq. 153, 155, note. It is adrrtit- ted, by these same high authorities, to be just, that the mortgagee, who leaves the title deeds with the mortgagor, so as to enable him to commit a fraud, by holding himself out as absolute owner, should be postponed; but the established doctrine is, that noth- ing but fraud, express or implied, will postpone him. 2. The hardship and abuse complained of in the English cases, arise from the want of a general registry act, under which a second mortgagee can always secure himself. I believe there are no registry acts in England, except in certain counties, as York- shire and Middlesex; and the provision in such cases (see Stat. 3 1 10 BERRY V. MUTUAL INSURANCE CO. [CHAP. II. and 4 Anne c. 4) is similar to that in our act concerning mort- gages, and gives the subsequent purchaser, or mortgagee, the preference, if the memorial of his deed be first registered. If has been decided, in Johnson v. Stagg, 2 Johns. 510, that our act concerning the registry of mortgages extends to leases for years, assigned by way of mortgage; and that the leaving of the lease with the mortgagor, was no evidence of fraud, because the reg- istry of the mortgage was a beneficial substitute for the deposit of the deed, and gave better and mofe effectual security to sub- sequent mortgagees. The registry of the mortgage is notice ; and if the first mortgagee neither takes the title deeds, nor registers his mortgage, he only exposes himself, and not the subsequent purchaser, or mortgagee. The statute expressly secures the bona fide purchaser, and it equally enables the subsequent mortgagee to secure himself, by registering his mortgage. We have seen that the leaving of the title deeds with the mort- gagor is no prejudice to the first mortgage ; and there is the less necessity for it with us than in England, because, with us, the creditor who subsequently, and without notice of any prior un- registered mortgage, deals with the mortgagor, can always pro- tect himself in the easiest and most effectual manner; and, sup- posing he omits to do it, by a misplaced confidence in the mort- gagor, has he any equitable claim to be preferred to a prior mort- gagee, who, under the same misplaced confidence, has equally omitted to do it? This is the turning point in the present case. The first mortgage was valid without registry. The statute does not render a registry indispensable. The omission of the registry only exposes the mortgagee to the hazard of a loss of his lien by a subsequent bona fide purchase, or to the hazard of a postponement of his. lien to a subsequent registered mortgage. A second mortgage will not, per se, and without registry, gain a preference. There is no such principle to be deduced from the statute, and there is no reason or necessity for it in the nature of the case. The reason why a bona fide purchaser is expressly excepted from the operation of an unregistered mortgage is, that he could not otherwise deal with safety, and would be exposed, even with the utmost vigilance, to the frauds of the mortgagor. The act does not provide for the registry of his deed, but only for the registry of mortgages, and gives them a preference ac- cording to the priority of the registry. The second mortgagee protects himself by his registry, but the purchaser does not, and cannot; and, therefore, the statute declares that his deed shall CHAP. 11.] BERRY I/. MUTUAL INSURANCE CO. Ill absolutely prevail over the unregistered mortgage. The statute of 3 and 4 Anne, relative to the west riding of Yorkshire, pro- vides for the registry of deeds and mortgages promiscuously, and, therefore, places them upon an equal footing. Though, in one sense, every mortgage is a purchase, yet the mortgage act evidently speaks of purchasers, in the popular sense, as those who take an absolute estate in fee. There is no pretext for considering a mere mortgagee as a purchaser, within the meaning of the second section of the act concerning mortgages. I have not been able to discover any principle of law or equity that will enable me to say, that the first mortgage is to be deprived of its advantage of priority of time. The omission to register the mortgage was not capable of producing any mischief to third persons, who would use ordinary diligence' and precaution. The defendants ought not to charge a negligence upon the plaintiffs of which they have been equally guilty. It was their own fault or folly that they were not protected. They trusted to the assur- ances of the mortgagor that his land was unincumbered; and the plaintiffs trusted equally in the mortgagor, that he would not, afterwards, sell or mortgage the land. It is a common rule, say the books, that where of two persons, equally innocent, or equally blamable, one must suffer, the loss shall be left with him on whom it has fallen; and here comes in the other rule, that the equities being otherwise equal, the priority of time must determine the right. It is very clear that the first mortgagee was not bound to reg- ister his mortgage, because the law makes it valid, as between the parties, without registry. The registry is only, a matter of precaution, and the statute has provided against all the mischief of the omission. If the party will not avail himself of the means of safety provided by statute, he cannot expect that this court will grant him further aid, and especially against a party whom he charges with no fraud. If relief is ever given in any case, on the ground of policy, or constructive fraud, against the sale or mortgage of property, it is because, from the non-delivery of possession, or from other circumstances, imposition had or might have been practiced, which could not be detected or guarded against by the exercise of ordinary diligence. No such ground for relief exists in this case. I am, accordingly, of opinion, that the plaintiffs are entitled to relief, according to the prayer of their bill, and that the defend- ants are either to account to them for the amount due on their 1 12 RUSSELL V. FAILOR. [CHAP. II. bond and mortgage, or that the residue of the term be sold for the satisfaction of their debt. The costs of suit are to be paid out of the property mortgaged. Decree accordingly. RUSSELL V. FAILOR. (1 Ohio St. 327.) [Supreme Court of Ohio, 1853.] Bartley, C. J. The errors assigned -in this case are substan- tially the following: 1st. That the court erred in holding that the note was void, and that the payment of the same by the plaintiff gave him no right of action against the defendant for contribution. 2d. That the court erred in overruling the motion for a new trial, etc. Two questions are here presented for determination : 1st. Was the note void on the ground of usury? 2d. Can a surety on a promissory note, which is absolutely void, by the voluntary payment thereof, entitle himself to contri- bution against the cosurety? The first question has been determined in the affirmative by adjudications already made in this State. See the case of Preble ■ Branch of State Bank of Ohio v. Russell, 1 Ohio St. 313 ; also, Chillicothe Bank v. Swayne, 8 Ohio, 257 ; Creed v. Commercial Bank, 11 Ohio, 489; Miami Exporting Co. v. Clark, 13 Ohio, 1; Commercial Bank v. Reed, 11 Ohio, 498; Bank of U. S. v. Owens, 2 Pet. 538. The second question is one which does not appear to have been frequently presented for adjudication. The right of contribution among sureties is founded not in the contract of suretyship, but is the result of a general principle of equity which equalizes burdens and benefits. The common law has adopted and given effect to this equitable principle, on which a surety is entitled to contribution from his cosurety. This equitable obligation to contribute, having been established, the law raises an implied assumpsit on the part of the cosurety to pay his share of^the loss, resulting from a concurrent liability to pay a cortimon debt. This jurisdiction, by an action at law, CHAP. II.] RUSSELL V. FAILOR. 113 is, therefore, resorted to, when the case is not complicated; and the more extensive and efficient aid of a court of equity is thus rendered unnecessary. It follows that this action can only be sustained where there exists a just and equitable ground for con- tribution. A contract of suretyship is accessory to an obligation contracted by another person, either contemporaneously, or previously, or subsequently. It is of the essence of the contract, that there be a -subsisting valid obligation of a principal debtor. Without a principal, there can be no accessory; and by the extinction of the former, the latter becomes extinct. This results from the nature of the obligation of suretyship. Burge, Sur. 3, 6; Theo. Prin. & Sur. 2. It would seem to follow, from the very nature of the under- taking, that if the principal contract is absolutely void, the obli- gation of the surety would likewise be void. But it is said that where the contract of the principal debtor is only voidable on account of incapacity or otherwise, and the person undertaking as surety contracted with a knowledge of the incapacity or other cause making the principal obligation voidable, he must be under- stood as incurring not merely a collateral, but a principal, obliga- tion. How far this may extend, as between surety and principal, it is not necessary here to inquire ; but there seems to be sound reason in the doctrine, that, where the surety has knowledge of that which amounts to a valid defence for him aga,inst the cred- itor, he is bound either to avail himself of it, or to give notice to the principal debtor, so as to enable him to set up the defence ; and in default of doing either, he would be deprived of recourse against the principal. Burge, Sur. 367. The utmost extent to which a surety, who has made payment can claim, is a subrogation to the rights of the creditor, so that he will rank against the debtor in the same degree as the cred- itor would have done, if he had not been paid. Where, therefore, a surety could have no remedy against the principal, he clearly could have none against his cosurety, against whom he would have less equity in his favor. Such, then, being the nature of the contract of suretyship, to what right of contribution was the plaintiff entitled in this case against the defendant? The claim set up by the branch bank was absolutely void ; and it could have acquired no validity from the execution of the mortgage ty the plaintiff before he had notice of the usury, especially as against the defendant. And 114 SUTTON MANUF'G CO. V. HUTCHINSON. [CHAP. II. it appears that the plaintiff had knowledge of the usury before he paid the debt. With what pretence of equity can the. plaintiff, who was not bound himself, by voluntarily paying a void note, claim to impose an obligation upon the defendant as his cosurety, who was under no obligation before, either legal or equitable? Had the creditor instituted a suit on the note against the defend- ant, his remedy was clear and complete; and he could not cer- tainly have been deprived of his means of defence by the volun- tary act of the plaintiff. This is clearly not a case where an im- plied assumpsit could have been raised against a cosurety for contribution. The principle laid down in the case of Skillin v. Merrill, 16 Mass. 40, would seem to be in point in this case, and fatal to the plaintiff's cause of action. And it is not shaken by the case of Ford V. Keith, 1 Mass. 139, and the case decided upon its authority, of Cave v. Burns, 6 Ala. 780, to which reference has been made. The two last cases are not strictly analogous to the present one. Upon no principle of justice or sound reason cap a surety, by voluntarily paying money. on a void note, impose an obligation upon a cosurety for contribution. Judgment aMrmed. SUTTON MANUF'G CQ. v. HUTCHINSON. (11 C. C. A. 320.) [Circuit Court of Appeals, 1894.] Appeal from the Circuit Court of the United States for the district of Indiana. Suit by William B. Hutchinson, trustee under the assignment made by the Hopper Lumber & Manufacturing Company, against the Sutton Manufacturing Company, to set aside a mortgage. Complainant obtained a decree. Defendant appeals. Before Harlan, Circuit Justicie, Jenkins, Circuit Judge, and BuNN, District Judge. Harlan, Circuit Justice. On the 25th day of July, 1891, in the forenoon, the Hopper Lumber and Manufacturing Company, a corporation of Indiana, filed for record a mortgage to the Sut- ton Manufacturing Company, a corporation of Michigan, cover- CHAP. II.] SUTTON MANUF'G CO. V. HUTCHINSON. J 15 ing the entire stock of the. mortgagor company, and every article and thing in or about its lumber and coal yard and used in its business. The mortgage was given to seciire the payment of drafts of different amounts drawn at different times between May 21, 1891, and July 23, 1891, by the Hopper Lumber & Manufacturing Company on the Sutton. Manufacturing Company. These drafts aggregated $18,000, and were accepted by the latter company solely for the accommodation of the drawer. They were all nego- tiated and transferred, but none of them had matured when the above mortgage was executed. At the time the mortgage was given the Hopper Lumber & Manufacturing Company was insolvent, its liabilities exceeding its assets by about $40,000 The fact of its insolvency was then known or ought to have been known to its president, who ac- knowledged the mortgage, and, it is to be presumed, was known or ought to have been known to his codirectors. And the record leaves no room to doubt that the grantor intended to suspend all further prosecution of its business immediately upon executing, the mortgage. During the afternoon of the same day the Hopper Lumber & Manufacturing Company executed and filed for record a deed of assignment conveying to William B. Hutchinson all its prop- erty of every kind and nature, in trust to be sold and disposed of by him; the proceeds, after paying the costs of the deed of assignment and the lawful expenses of executing the trust, to be applied ratably to creditors of the mortgagor company. The deed of assignment purports upon its face to have been made because of the inability of the mortgagor company to meet the demands of its creditors. At the date of the mortgage, James S. Hopper, Henry S. Hop- per, and Fannie E. Hopper were the directors, James S. Hopper the president and treasurer, and Henry S. Hopper the secretary, • of the mortgagor company; and James S. Hopper, Henry S. Hopper, and Benjamin F. Sutton were the directors, James S. Hopper the president, Benjamin F. Sutton the vice-president, and Henry S. Hopper the secretary and treasurer, of the Sutton Man- ufacturing Company. Of the 600 shares of the stock of the Hopper Lumber & Man- ufacturing Company of the par value of $25 each, James S. Hop- per held at the time of executing the mortgage 510 shares, Henry S. Hopper 30 shares, Mrs. Elizabeth Sutton 40 shares, and Mrs. 116 SUTTON MANUF'g CO, V. HUTCHINSON. [CHAP, II. Fannie E. Hopper 20 shares; and of the 1,000 shares of the Sutton Manufacturing Company of the par value. of $25 each, Mrs. Sutton held 220 shares, Mrs. Fannie E. Hopper 259 shares, Benjamin F. Sutton 204 shares, Walter A. Hopper 120 shares, Henry S. Hopper 120 shares, Mary J. Adams 76 shares, and James S. Hopper 1 share. James S. Hopper is the husband of Fannie E. Hopper, a daugh- ter of Mrs. Elizabeth Sutton and a sister of Benjamin F. Sutton and Mary J. Adams. Walter A. Hopper and Henry S. Hopper are sons of James S. Hopper by a former wife, who was a sister of Fannie E. Hopper and a daughter of Elizabeth Sutton. Some question was made in the pleadings whether the mort- gage was in fact accepted before the filing for record of the deed of assignment to Hutchinson. While that point is not deemed vital in the case,' it may be well to state that, in the answer of the Sutton Manufacturing Company to an amended bill of complaint, it is averred that at the time the mortgage was exe- cuted, "to-wit, before 9 o'clock a. m. on the 25th day of July, 1891, the same was then and there unconditionally delivered, and all control over the same surrendered, by the Hopper Lumber & Manufacturing Company to Henry S. Hopper, the secretary and treasurer and financial agent and manager of the defendant; the Sutton Manufacturing Company, for the said defendant com- pany. And as such officer, agent, and manager of said company, the said Henry S. Hopper, then and there acting for and on be- half of said defendant company, accepted the same, and had the same recorded at 9 o'clock a. m. of that day. And that as such .officer, manager, and agent he had then and there full author- ity, for and on behalf of said company, to accept said mortgage for it and on its behalf." It thus appears that the mortgage was surrendered by the Hopper Lumber & Manufacturing Company, represented in part by Henry S. Hopper, a director and its sec- retary, to Henry S. Hopper, a director and the secretary, treas- urer, financial agent, and manager of the Sutton Manufacturing Company; and, on behalf of the mortgagee company, he "then and there" accepted the mortgage from the mortgagor company, in part represented by himself as a director and stockholder. The active parties in this transaction do not seem to have been neglect- ful of any matter of form. The present suit was brought by Hutchinson, as assignee un- der the deed of assignment, to obtain a decree declaring the mort- gage void as to him and the general creditors, in which event the CHAP. II.] SUTTON MANUF'g CO. V. HUTCHINSON. 117 property embraced by it would belong to him for administration under that deed. On the authority of Lippincott v. Carriage Co., 25 Fed. 577, and Howe v. Tool Co., 44 Fed. 231, — both of which cases were decided by Judge Woods, — the Circuit Court, the district judge presiding, entered a decree setting aside the mortgage. We are of opinion that there was no error in the decree. It is quite true that the property of a, private corporation is not charged by law with any direct trust or specific lien in favor of general creditors ; and such a corporation, so long as it is in the active exercise of its functions, may, if not restrained by its charter or by statute, exercise as full dominion and control over its property, having 'due regard to the objects of its creation, as an individual may exercise over his property. But when it be- comes insolvent, and. has no purpose of continuing business, the power to sell, dispose of, and transfer its estate is not altogether without limitation. In Curran v. State, 15 How. 304, 307, the Supreme Court of the United States said that the assets of an insolvent banking corporation "are a fund for the payment of its debts. If they are held by the corporation itself, and so invested as to be subject to legal process, they may be levied on by such process. If they have been distributed among stockholders, or gone into the hands of other than bona fide creditors or purchasers, leaving debts of the corporation unpaid, such holders take the property charged with the trust in favor of creditors, which a court of equity will enforce, and compel the application of the property to the satis- faction of their debts. This has been often decided, and rests upon plain principles." So, in Drury v. Cross, 7 Wall. 299, 302, in which case it appeared that a corporation had conveyed its property so as to protect its directors against liability as indorsers for it, the court, in condemning the conduct of the directors, held that it was their duty "to administer the important matters com- mitted to their charge for the benefit of all parties interested, and in securing an advantage to themselves not common to the other creditors they were guilty of a plain breach of trust."" Sub- ' sequently, in Graham v. Railroad Co., 102 U. S. 148, 161, the court, after observing that a corporation, if not forbidden by its charter, could hold property as absolutely as an individual could hold property, and that its estate, interest, and possession were the same, said that : "When a corporation becomes insolvent it is so far civilly dead that its property may be administered as a 118 SUTTON MANUF'G CO. V. HUTCHINSON. [CHAP. II. trust fund for the benefit of its stockholders and creditors. A court of equity, at the instance of the proper parties, will then make those funds trust funds which, in other circumstances, are as much the absolute property of the corporation as any man's property is his." And in Railway Co. v. Ham, 114 U. S. 587, 594, 5 Sup. Ct. 1081 j the language of the court was : "The property of a corpora- tion is doubtless a trust fund for the payment of its debts, in the sense that when a corporation is lawfully dissolved and all its business wound up, or when it is insolvent, all its creditors are entitled in equity to have their debts paid out of the corporate property before any distribution thereof among the stockholders." See, also, Koehler v. Iron Co., 2 Black, 715 ; Richardson's Execu- tor V. Green, 133 U. S. 43, 44, 10 Sup. Ct. 280. There is nothing in Hollins v. Iron Co., 150 U. S. 371, 382, 14 Sup. Ct. 127, to which appellant calls attention, that is at all inconsistent with these principles. On the contrary the court, while reaffirming the doctrine that the property of a private cor- poration is not burdened with any specific lien or direct trust in favor of general creditors, observed that such a corporation, when it becomes insolvent, holds its assets subject to somewhat the same kind of equitable lien and trust in favor of its creditors that exist in favor of the creditors of a partnership after becom- ing insolvent, and that in each case such lien and trust will be enforced by a court of equity in favor of creditors. It is, we think, the result of the cases that when a private cor- poration is dissolved or becomes insolvent, and determines to dis- continue the prosecution of business, its property is thereafter affected by an equitable lien or trust for the benefit of creditors. The duty in such cases of preserving it for creditors rests upon the' directors or officers to whom has been committed the author- ity to control and manage its affairs. Although such directors and officers are not technical trustees, they hold, in respect of the property under their control, a fiduciary relation to creditors ; and necessarily, in the disposition of the property of an insolvent corporation, all creditors are equal in right unless preference or priority has been legally given by statute or by the act of the cor- poration to particular creditors. In what cases, where the subject is uncontrolled by legislation, can such preference or priority be legally given by a corporation? Undoubtedly a solvent corporation, if not forbidden by its char- ter, may mortgage its property to secure the performance of CHAP. II.] SUTTON MANUF'g CO. V. HUTCHINSON. 119 obligations assumed before or at the time of the execution of the mortgage. So, a mortgage executed by a corporation whose debts excfeed its assets, to secure a liability incurred by it or on its behalf, will be sustained, if it appears to have been given in good faith to keep the corporation upon its feet and enable it to continue the prosecution of its business. A corporation is not required by any duty it owes to creditors to suspend operations the moment it becomes financially embarrassed, or because it may be doubtful whether the objects of its creation can be attained by further effort upon its part. It is in the line of right and of duty when attempting, in good faith, -by the exercise' of its lawful powers and by the use of all legitimate means, to preserve its active existence, and thereby accomplish the objects for which it was created. In such a crisis in its affairs, and to those ends, it may accept financial assistance from one of its directors, and by a mortgage Upon its property secure the payment of money then loaned or advanced by him, or in that mode protect him against liability then incurred in its behalf by him. Of course, in cases of that kind, a court of equity will closely scrutinize the transaction, and, in a contest between general creditors and a director or managing officer who takes a mortgage upon its prop- erty, will hold the latter to clear proof that the mortgage was executed in good faith, and was not a device to enable him to obtain an advantage for himself over those interested in the dis- tribution of the mortgagor's property. Richardson's Executor v. Green, 133 U. S. 30, 43, 10 Sup. Ct. 280; Oil Co. v. Marbury, 91 U. S. 587, 588. Entirely different considerations come into view when an in- solvent corporation, having no expectation of continuing its busi- ness, and recognizing its financial embarrassments as too serious to be overcome, mortgages its property to secure a debt previ- ously incurred by one of its directors, or, in a general assignment of all its property, gives him a preference. To a general assign- ment by a private corporation for the equal benefit of all its cred- itors, including directors, no objection could be made, because it recognizes the equal right of creditors to participate in the distri- bution of the common fund. Such an assignment. Lord Ellen- borough said in Pickstock v. Lyster, 3 Maule & S. 371, 375, is to be referred to as an act of duty rather than of fraud, and is an act by the assignor that arises out of. the discharge of the moral duties attached to his character of debtof to make the fund avail- able for the whole body of creditors. 120 SUTTON MANUF'g CO. V. HUTCHINSON. [CHAP. II. , The contention of the defendants is that in disposing of their respective properties an individual and a corporation were recog- nized at common law as having equal rights ; and as the former may, ih the absence of a statute forbidding it, transfer the whole or part of his property with the intention or with the effect of giving a preference to some of his creditors to the exclusion of others, so an insolvent corporation, when financially embarrassed and not intending to continue its business, may make a preference among its creditors, whoever they may be, and whatever their relation to the corporation or to the property transferred. If this be a sound rule, it would follow that directors, being also cred- itors, of an insolvent corporation, which has abandoned the ob- jects of its creation and ceased an active existence, may distribute among themselves its entire assets, if the reasonable value thereof does not exceed their aggregate derjiands. We cannot accept this view. In our judgment, when a corporation becomes insolvent and intends not to prosecute its business, or does not expect to make further effort to accomplish the objects of its crea- tion, its managing officers or directors come under a duty to distribute its property or its proceeds ratably among all cred- itors, having regard, of course, to valid liens or charges previ- ously placed upon it. Their duty is "to act up to the end or de- sign" for which the corporation was created (1 Bl. Comm. 480), and when they can no longer do so their function is to hold. or distribute the property in their hands for the equal benefit of those entitled to it. Because of the existence of this duty in re- spect to a common fund in their hands to be administered, the ' law will not permit them, although creditors, to obtain any pe- culiar advantage for themselves to the prejudice of other cred- itors. This rule is imperatively demanded by the principle that one who has the possession and control of property for the benefit of others — and surely an insolvent corporation, which has ceased to do business, holds its property for the benefit of creditors- may not dispose of it for his own special advantage to the injury of any of those for whom it is held. That principle pervades the entire law regulating the conduct of those who hold fiduciary relations to others, and, instead of being relaxed, should be rig- " idly enforced in cases of breach of duty or trust by corporate managers seeking to enrich themselves at the expense of those who have an interest equally with themselves in the property committed by law to their control. It would be difficult to over- CHAP. II.] SUTTON MANUF'g CO. V. HUTCHINSON. 121 State the mischievous results of a contrary rule, as applied to those intrusted with the management of corporate property. As between an individual and those with whom he transacts business, there is no relation of trust or confidence in respect to his property that affects his absolute right to dispose of it as to him seems fit. He is not bound to devote his property to any particular uses or to the discharge of any particular debts. But his entire estate, so far as it is not burdened by himself with liens or ex- empted by law from execution, may be reached by appropriate proceedings, and subjected to sale in satisfaction of his debts. If his property is insufficient at the time of his insolvency to discharge all his liabilities, unpaid creditors may abide their time, and, until their claims are barred by limitation, look to any prop- erty thereafter acquired by him. In short, every one contracts with an individual upon the basis of his absolute dominion over his property, except as its disposition when he becomes insol- vent or contemplates insolvency may be restricted, as in many jurisdictions it is restricted, by express statute. But the situation is wholly different in the case of a private cor- poration, whose property in the hands of its directors or manag- ing agents is, by the law of its being, devoted to the special objects for which it was created. Because it is so devoted those who take it with notice that it is being applied to purposes for- eign to the objects for which the corporation was established may be compelled, at the instance of proper parties, to surrender it or to account for its proceeds. Russell v. Waterworks Co., L. R. 20 Eq. 474, 479; Studdert v. Grosvenor, 33 Ch. Diy. 528, 539, 540. Upon like grounds, equity will enjoin the managing agents of a corporation from using its funds for objects not germane to its authorized business; and as, in the absence of a statute prescribing a contrary rule, creditors of a private corporation cannot look for their security to the private estate either of the corporators or of those who manage its property, the only recourse of creditors, when a corporation is dissolved or becomes insolvent and ceases to prosecute its business, is the property in the hands of its managing officers. The law in effect says to all who deal with private corporations that they must look to its property as the only security for the fulfillment of its obligations ; and, if the law gives this assurance to creditors of a corporation, those who are authorized to represent it in its dealings with the public, who control and manage its property, and upon whose fidelity and 122 SUTTON MANUF'c CO. V. HUTCHINSON. [CHAP. 11. integrity the public as well as creditors rely, ought not to be per- mitted, when the corporation becomes insolvent and abandons the objects for which it was created, to appropriate to themselves as creditors any more of the common fund in their hands than is ratably their share. If, upon becoming insolvent, a corporation should invoke the aid of a court of equity for the distribution of its assets, creditors would be paid pari passu in ratable propor- tions. Those, therefore who hold fiduciary relations to creditors, ought not to be allowed, by any form of proceeding, or by their own act, after the corporation is practically extinct, to appropri- ate its property for their special benefit, to the injury of those who, upon every principle of justice, have equal rights with them- selves. These views are fully supported by many well-considered cases in addition to those decided by Judge Woods, and to which refer- ence has been made. Some of them are named in the margin. The cases cited on behalf of the appellant have not been over- looked, but upon careful examination we are of opinion that most of them fall short of sustaining its contention. Be that as it may, we think the better reason is with the views we have expressed. Among those upon which the appellant relies are Gould v. Rail- way Co., 52 Fed. 680, 681 ; Brown v. Furniture Co., 7 C. C. A. 225, 58 Fed. 286; Hills v. Furniture Co., 23 Fed. 432; Buell v. Buckingham, 16 Io\ya, 284; Smith v. Skeary, 47 Conn. 53; and Holt V. Bennett, 146 Mass. 437, 16 N. E. 5. Gould V. Railway Co. does not sustain the position of appellant. That case involved, among other things, the validity, as against the creditors of a railroad corporation, of a deed of trust executed as additional security to certain stockholders and directors who had previously advanced large sums for it, and for the repayment of which the company pledged collateral security mortgage bonds known at the time to be inadequate as security. " But it was the best security the company could then give. Subsequently it ob- tained a grant of lands from the state, and at a later date, 1884, the above deed of trust was given to secure the above loans or' advances. Now, the company, when it made the deed of trust, had not abandoned, and did not intend to abandon, the prosecution of its business. Nor was it hopeless:ly insolvent. On the con- trary, it appeared, and the fact is stated in the report of the case, that "at the date of the execution of the deed of trust the floating debt of the company was inconsiderable, and the company con- tinued to be a going concern, and to own its road, until it was CHAP. II.] SUTTON MANUF'g CO. V. HUTCHINSON. 123 sold in 1887 under a decree foreclosing the mortgage given to secure its first-mortgage bonds." The general observations in the opinion in that case must, of course, be interpreted in the light of these facts, and the decision taken as being only that a corpora- tion, although in failing circumstances, may, by mortgage, give a preference to some of its creditors, even to directors, if it be done in good faith to meet existing demands and to keep it "a going concern." Brown v. Furniture Co., which arose in the state of Michigan, was determined upon the authority of decisions in the supreme court of Michigan, particularly Bank of Montreal v. /. E. Potts Salt & Lumber Co., 90 Mich. 345, 51 N. W. 512. It was con- tended in that case that the court should reach a conclusion as upon a doctrine of general law, but it declined to do so, holding it to be its duty, when the matter was one of doubt, to lean towards the decisions of the state court. Hills v. Furniture Co. was also a Michigan case, and involved the validity of a mortgage to secure creditors, and to protect directors against liability arising from their indorsements for the company. It may be observed that the court, in the latter case, considering generally the right of the mortgagor company to give the mortgage there in question, quotes from the testimony of one of its officers, who, in describing the • circumstances attending its execution, said : "We thought we could then, aided by the time thus obtained, go on and pay what we owed. We had no idea but what our debts would be paid." Buell V. Buckingham involved the validity of a sale of property belonging to a private corporation to one of its directors, in dis- charge of its obligation to him. It is sufficient to observe, in reference to that case, as was done by Judge Woods in Lippincott v.' Carriage Co., above cited, that in that case there was no evi- dence that the corporation was insolvent, or that the sale there in question embraced all its property. The case necessarily involved only the question whether the sale was void by reason alone of the fact that the purchaser was a director of the corporation that sold the property. Smith v. Skeary does not sustain the broad proposition that an insolvent corporation, which intends to dis- continue altogether the prosecution of its business, may transfer its property to a director, being a creditor, to the exclusion of other creditors. That was a case in which directors of a corpora- tion, who were also creditors, took personal property from it in discharge of their claim. But the transfer to them was in good 124 SUTTON MANUF'g CO. Z/.VHUTCHINSON. [CHAP. 11. faith, in the ordinary course of business, and in the honest behef on the part of directors that the corporation would be able to meet all its liabilities, although it appeared subsequently that the fact was otherwise. In Holt v. Bennett a creditor of a corpora- tion disputed the validity of a mortgage made by it for the benefit of two of its directors. The court, among other things, said: "The whole transaction is found to have been done in good faith, with the intent to put the corporation on a better footing to go on with its business and develop its patents, which were deemed to be valuable. * * * Even if, when this deed was rnade, the property of the corporation, outside of the value of the letters patent possessed by it, was insufficient to pay its debts in full, the process patented was honestly believed to be of great value, and indeed has since been made successful, although by another corporation. The- position of the plaintiff appears to be that a corporation intending in good faith to proceed with its business, and to render the patents available which it possesses, cannot pay its directors money which it has borrowed from them in the ordi- nary course of business without rendering them responsible for the amount which they thus receive to any of its creditors whose debts may then be owing from it, although not then due and payable. This is quite untenable. The cases cited by the plaintiff which hold that where a corporation is insolvent it cannot make conveyances of its property in contemplation of such insolvency^ for "the security of its directors who are also its creditors, to the exclusion of others, do not require examination or discussion. They have no relation to a case like that at bar. There was no reason why this corporation should not conduct its business in the ordinary manner, even if incidentally debts for borrowed money were paid to its directors; this being done fairly, and in its prosecution of the object for which it was formed." It is clear that the Massachusetts case is not an authority in support of appellant's position, but looks the other way. This question, so far as we are aware, has not been determined by the supreme court of Indiana, under whose laws the mort- gagor company became a corporation. But the appellant insists that the case is covered by the statutes of Indiana, which provide : "All conveyances or assignments, in writing or otherwise, of any estate in lands, or of goods or things in action, every charge upon lands, goods or things in action, and all bonds, contracts, evi- dences of debt, judgments, decrees, made or suffered with the intent to hinder, delay, or defraud creditors or other persons of CHAP. II.] SUTTON MANUF'g CO. V. HUTCHINSON;, 125 their lawful damages, forfeitures, debts, or demands, shall be void as to the persons sought to be defrauded." "The question of fraudulent intent, in all cases arising under the provisions of this act, shall be deemed a question of fact." Rev. St. Ind. 1881, §§ 4920, 4924 (Rev. St. 1894, §§ 6645, 6649). Under this act it has been held that fraud in the disposition of property cannot be presumed, but must be averred and proved, and that an insolvent debtor may by mortgage give a preference to some of his creditors, although he may at the time intend by another instrument, and at an early day thereafter, to make a general assignment, under the statute, of his property for the .benefit of creditors. And this principle has been applied even where the preferred creditor was the wife of the debtor, the only proper inquiry in all such cases being whether the debt secured was a genuine one. Gilbert v. McCorkle, 110 Ind. 215, 11 N. E. 296; Dice v. Irvin, 110 Ind. 561, 11 N. E. 488; Fletcher v. Mar- tin, 126 Ind. 55, 25 N. E. 886; Shillito Co. v. McConnell, 130 Ii^d. 41, 26 N. E. 832; Hutchinson v. Bank,m Ind. 271, 30 N. E. 952; Fuller v. Mehl, 134 Ind. 60, 33 N. E. 773. In our jtidgment these cases have no application to the one now before us. The Indianp. statute does not cover the whole subject of the conveyance or transfer of property in violation of the rights of others. It does not embrace every case of an insolvent private corporation which mortgages its property to secure an antecedent debt due to one of its directors. The statute was aimed at con- veyances or assignments of property made with the intent to hinder, delay, or defraud creditors or other persons of their law- ful rights or demands. A mortgage made in good faith, without intent to hinder, delay, or defraud other creditors, but for the sole purpose of preferring a particular creditor is not prohibited. The statute does not take away the right to give such a preference where it could be lawfully done according to the principles of the common law. It leaves the question of the validity of a con- veyance not made with the forbidden intent, but simply for the purpose of preferring a particular creditor, to be solved by any general, recognized principles that are applicable to such a case. At common law even a general assignment by a debtor of his entire property for the benefit of all his creditors, although it interfered with the enforcement by the ordinary process of law of the demands of creditors, was not regarded as hindering or delay- ing creditors, within the meaning of the statutes against fraudu- lent conveyances. Reed v. Mclntyre, 98 U. S. 507, 509 et seq.. 126 SUTTON MANUF'G CO. V. HUTCHINSON. [CHAP. II. and authorities cited. So an assignment or mortgage which operates as a preference of a particular creditor is not in itself fraudulent, or a hindrance or delay, within the meaning of the Indiana statute, and its validity depends upon the nature and circumstances of the transaction. The case of an insolvent cor- poration, which has no purpose to continue in business, and which, in the distribution of its property, gives a preference to one of its directors, being also a creditor, — such preference being given with no intent to hinder, delay, or defraud other creditors, — is left untouched by the statute. The determination of such a case may depend altogether upon the fiduciary relation sustained by the di- rectors to the property and to creditors, and the circumstances un- der which the preference was obtained. In other words, an assign- ment or mortgage by an insolvent corporation to one of its direc- tors, being a creditor, may be invalid either upon the ground that it was made with the intent to hinder, delay, or defraud other cred- itors, or upon the ground that it was inconsistent with the fidu- ciary relations held by the director to the property or to creditors. If the first ground be not established, — ^that is, if the fact of the fraudulent intent is not proved, — it would not follow that the- second would be overruled. No case has been cited indicating that the supreme court of Indiana has relaxed in any degree the salutary rule that forbids any one holdinga trust fund to obtain by his own act, or by the act of those associated with him in such holding, any peculiar advantage for himself, to the prejudice of those interested equally with him in the distribution of such fund. In the present case it appears that two of the directors of the insolvent mortgagor company owned nearly 400 out of the 1,000 shares of the stock of the mortgagee company. The mortgage therefore had the effect to protect their interests in the propefty of the latter corporation against the liability previously incurred by its accepting drafts drawn by the former, and to withdraw the property mortgaged from its primary liability for the debts of the mortgagor company. The case presented is consequently one in which an insolvent corporation, recognizing its inability to further prosecute its business, and with no hope of recovering from its financial embarrassments, gives a preference by mortgage of its property to some of its directors, being also creditors. Accord- ing to the principles we have announced, this could not be right- - fully done. > For the reasons we have given the judgment of the circuit court is affirmed. CHAP. II.] CITY or ST, LOUIS V, o'NEIL LUMBER CO. 127 CITY OF ST. LOUIS v. O'NElL LUMBER CO. (114 Mo. 74.) [Supreme Court of Missouri, 1893.] Appeal from the St. Louis Circuit Court. Jacob Klein, Judge. Petition by the city of St. Louis that certain creditors of James McLane, a contractor, be comgelled to interplead for the pur- pose of determining their rights in a fund owing by the city to the contractor. Fronf a judgment of the Circuit Court giving preference to the O'Neil Lumber Company, James M. Doyle and others appealed. The Court of Appeals affirmed the judg- ment, and the case was then certified to the Supreme Court. Reversed. Brace, J. This case is certified here from the St. Louis Court of Appeals, under section 6 of the amendment of the constitution adopted in 1884. The statement of the case, made by Judge Biggs of that court, is as follows : "On the 17th day of July, 1888, the municipal assembly of the city of St. Louis passed an ordinance authorizing the board of public improvements to contract for certain alterations and repairs at the House of Refuge. Section 2 of the ordinance is as follows: 'The cost of the above work shall te paid by the city of St. Louis, and the sum of forty-five hundred dollars is hereby appropriated out of funds set apart for improvements, alterations, and repairs of the House of Refuge.' The work was let to one James McLane, under three separate contracts. Con- tract No. 2,071 provided for the erection of two new privy build- ings at a cost of twenty-eight hundred dollars. By contract num- bered 2,083 McLane agreed to make certain alterations in the basement and in the dormitory xA the old building, for the sum of eight hundred and fifty dollars. The third contract, num- bered 2,076, provided for furnishing lumber and laying the floor in the shoe shop of the House of Refuge. The foregoing con- tracts were signed by McLane as principal and the interpleaders Thomas C. Higgins and John M. Sellers as his sureties. Among other things, the contracts provided that 'in case the contractor shall abandon the work * * * the commissioner of public build- ings shall have power, under the direction of the board of public 128 CITY OF ST. LOUIS V. O'nEIL LUMBER CO. [CHAP. 11. improvements, to place such and so many person as he may deem advisable, by contract or otherwise, to work and complete the work to be done, and to use such materials as he may find on the line of said work, or to procure other materials for the complex tion of the same, and to charge the expense of said labor and materials to the contractor; that this expense shall be deducted and paid out of such moneys as may then be due, or may at any time thereafter grow due, to him under the contract; and, in case such expense is less than the amount still due under the contract, had it been completed by the contractor, he shall be enti- tled to receive the difference, and, in case such expense is greater, the party of the first part (which includes the contractor and his sureties) shall' pay the amount of such excess.' The contracts, also contained the following provision: 'And said party of the first part (which includes the contractor and his sureties) hereby further agrees that he will furnish the said board of pub- lic improvements with satisfactory evidence that all persons who have done or furnished materials under this agreement, and are entitled to a lien therefor under any law of the State of Missouri, have been fully paid, are no longer entitled to such lien; and, in case such evidence be not furnished, such amount 'as the board may consider necessary to meet the lawful claims of the persons aforesaid, provided said persons shall notify said board before the final estimates be returned, shall be re- tained from the moneys due the said party of the first part under this agreement, until the liabilities aforesaid may be fully dis- charged.' Under paragraph S of the contract, an estimate of the amount of the work done each month is' to be made about the first of each succeeding month, and a valuation according to the current market prices put thereon. From the amount of such estimate, ten per cent is to be deducted, and' the balance certified as due. The obligation of Higgins and Sellers binds them, with McLane, to the city of St. Louis, and for the faithful performance of the foregoing contracts in every particular. The foregoing quotations from the contracts are believed to be suf- ficient for an understanding of the legal propositions arising upon this record. McLane entered upon the work, and continued it till the 20th day of November, 1888, when he absconded , from the State, leaving the work in an unfinished condition. It is conceded that up to the 1st day of November the city had paid to McLane for work done and materials furnished under contract No. 2,071 the sum of one thousand and three dollars and fifty cents. This CHAP. II.] CITY OF ST. LOUIS V. O'nEIL LUMBER CO. 129 would leave the sum of one thousand and seven hundred and nine- ty-six dollars and fifty cents due from the city if the work should be completed. The work under contract No. 2,083 was also left in an unfinished condition. Monthly estimates of the work under this contract had also been made, and up to the 1st day of No- vember McLane had been paid on account thereof six hundred and seven dollars and- fifty cents, leaving a balance due from the city, if the work had been completed, of two hundred and forty- two dollars and fifty cents. The work under the third contract had been fully completed and paid for. It was also admitted that, in addition to the amounts earned by McLane under the two contracts between the 1st and 20th of November, the city owed him the sum of thirty-seven dollars for work done at the House of Refuge not embraced in either contract. When McLane abandoned the contracts, the city made an arrangement with Hig- gins and Sellers to complete the work. No new contract was entered into. The work was to be completed under the old con- tracts. Higgins and Sellers finished the work to the satisfaction of the city authorities. A few days after this arrangement with Higgins and Sellers, the O'Neil Lumber Company, one of the interpleaders, filed a suit in equity against McLane and the city, in which it claimed that McLane was indebted to it for lumber furnished on account of said contracts of the value of seven hun- dred and fifty dollars, and it asked that this amount be charged against the remainder of the money due from the city under the contract. Then followed a like suit by John M. and Edward Doyle, the appellants herein, in which they claimed to have per- formed work and furnished materials to McLane, under contract No. 2,071, of the value of thirteen hundred and four dollars. They sought to make their claim a charge upon the balance due from the city under said contract No. 2,071. Other mechanics and material men followed with like suits, but, under the view we have taken of the case, it will not be necessary to notice them. When Higgins and Sellers completed the work they claimed that the work done and the materials furnished by them in the com- pletion of contract No. 2,071 actually co?t them the sum of one thousand and fifty-nine dollars and eighty-nine cents; that they did work in completing contract No. 2,083 of the val'ue of forty dollars ; and that they did extra work under the last-men- tioned contract amounting to twenty-nine dollars and fifty cents, — making a total of eleven hundred and twenty-nine dollars and thirty-nine cents. Their contention was, and is now, that, as they 9 130 CITY OF ST. LOUIS V. O'nEIL LUMBER CO. [CHAP. II. had earned this amount in the completion of the work, they were entitled to be first paid out of the balance of the funds due under the McLane contracts, in preference to the O'Neil Lumber Com- pany and Doyle Bros. When the city found itself beset with these conflicting claims, it brought into court the amount due from it under the McLane contracts, to-wit : Two thousand one hundred and five dollars and fifty cents. The foregoing facts were stated in its petition, and the court was asked to compel the claimants to interplead for the fund, and that they be restrained from the further prosecution of the suits against the city. The necessary orders were made, and thereafter such proceedings were had in the case as to result in a trial between the several interpleaders of their respective claims to priority. The court held that Higgins and Sellers must be paid first. This left a bal- ance of nine hundred and seventy-six dollars and eleven cents, which the court found had been earned by McLane between the 1st and 20th of November. As the O'Neil Lumber Company was the first to institute suit and have the city served with process, the court gave its claim priority over those of the other inter- pleaders, and ordered it to be paid in. full. The suit of the Doyle Bros, being the next in point of time, the remainder of the fund, to-wit: The sum of two hundred and twenty-five dollars and sixty cents, was ordered paid to them. Frorti this order of dis- tribution Doyle Bros, have prosecuted their appeal." The Court of Appeals affirmed the judgment of the Circuit Court (42 Mo. App. 586), all the judges agreeing that out'of the funds distributed the amount found to be due Higgins and Sellers must be first paid. But to the conclusion reached by a majority of the Court of Appeals and the Circuit Court,— that the remainder should be distributed among the interpleaders ac- cording to. the priority of their suits,— Judge Thompson dissented, and filed a dissenting opinion, as follows : "The statute relating to mechanics' liens contains the following section : 'The liens for work and labor done or things furnished, as specified in this article, shall be upon an equal footing, with- out reference to the date of filing, the account, or lien; and in all cases where a sale shall be ordered, and the property sold, which may be described in any account or lien, the proceeds aris- ing from such sale, when not sufficient to discharge in full all the liens against the same without reference to the date of filing the account or lien, shall be paid pro rata on the respective liens: Provided, such' account or liens shall have been filed and suit CHAP. II.] CITY OF ST. LOUIS V. o'nEIL LUMBER CO. 131 brought as provided by this article.' Rev. St. 1889, § 6727 ; Rev. St 1879, § 3193. With this statute in force, the city of St. Louis, in making the contract with McLane, inserted the following pro- vision: 'And said party of the first part (which includes the con- tractor and his sureties) hereby further agrees that he will fur- nish the said board of public improvements with satisfactory evidence that all persons who have done work or furnished mate- rials under this agreement, and are entitled to a lien therefor under any law of the State of Missouri, have been fully paid, or no longer entitled to such lien; and, in case such evidence be not furnished, such amount as the board may consider necessary to meet the lawful claims of the persons aforesaid, provided, said persons shall notify said board before the final estimates be re- turned, shall be retained from the moneys due the said party of the first part under this agreement until the liabilities aforesaid may be fully discharged.' With this provision in force, indi- cating the policy of the State to be that all mechanics and mate- rial men entitled to liens shall share ratably, the city sees fit to insert this clause in its contract with the mechanic^ indicating a clear purpose on its part to see that the policy of the statute is carried out, and that it will withhold enough of what is due to the principal contractor to pay his subcontractors or material men. It is true that such persons are not, under the law as judicially construed, entitled to a mechanic's lien against any property be- longing to the city; but that does not seem to afford a good reason why no effect whatever should be given to this clause of the contract. The city had no right, under the decision of Luthy V. Woods, 6 Mo. App. 67, and St. Louis v. Keane, 27 Mo. App. 642, to hold enough of what was due McLane in the character of trustee for the material men who had furnished to him mate- rials which he used in the work. But events took such a turn that there was not enough for all, and the city, finding itself thus embarrassed, instead of executing the trust itself, brought the fund into a court of equity, and asked that court to administer it; in other words, asked that. court to require the contending parties to interplead for it, which was done. It is also true that the city has not, under the terms of the contract, elected to set this fund apart, and to hold it for any particular beneficiary; but nevertheless I cannot but think that it ought to be distrib- uted, not accorcjing to the attachment law, but according to the policy of the mechanics' lien law. This clause of the contract has nA rlriiiKf #a-vicfpH in tVi*» rnnfrarf fnrtnc rtn iirVit/*l-i +t-.« nl*.,. 132 CITY OF ST. LOUIS V. O'NEIL LUMBER CO. [CHAP. II. lets out contracts for city buildings from a time when it was supposed that the city buildings were liable to mechanics' liens. Persons supplying materials to city contractors may fairly be pre- sumed to know that such a clause exists in such contracts. They, may, therefore, be fairly presumed to give credit to the contractor on the faith of being protected by the city. But this faith is broken, and this just expectation disappointed, when the creditor that makes the first grab at the fund set apart for all gets a preference over the other, albeit in a court called a coiirt of equity. "The ground on which this result is reached, if I understand the reasoning, is that this fund has never been impressed with the character of a trust, which distinguishes the case from the previous decisions of this court. To my mind, it is a conclusive answer to this to say that the city has done all that it could safely do to impress the fund with the character of a trust fund for the equal benefit of the material men, and has certainly not indi- cated a contrary purpose by handing it over to a court of equity for distribution. But it is said that the proceedings in equity, which were taken against the city by the material men before the petition of interpleader was 'filed, were 'equitable garnish- ments,' and therefore the provision of the attachment law is to be imported into a court of equity, under which, instead of doing equity by making a ratable distribution among the creditors of" equal merit, the rule of distribution is to be, first come, first served. It is true that in judicial decisions in this State the pro- ceeding has been denominated an 'equitable garnishment.' But that expression was used for the mere convenience of having a name for an anomalous proceeding. It was not used with refer- ence to the question of priorities, which we are here considering. To my mind, there is no such thing as 'equitable garnishment' in the sense in which it is here sought to employ the term, any more than there is an equitable indictment, or an equitable bill of attainder. But if we are to disregard the policy of the statute relating to mechanics' liens, and if we are also to disregard the contract between the city and McLane, which shows that both parties had in mind the idea that the material men of McLane should share equally, there is another ground which is inexorably logical as well as undeniably just, on which the same result should be worked out. It is the doctrine of our Supreme Court in Rieper v. Rieper, 79 Mo. 352,— the same being, so far as I can see, the last controlling decision of that court upon this ques- CHAP, n.] CITY OF ST. LOUIS V. o'nEIL LUMBER CO. 133 tion, — in which the familiar rule of equity is applied that what are called 'equitable assets' are to be divided pari passu among all creditors before the court. The same doctrine was stated and applied by this court in Heiman v. Fisher, 1 1 Mo.' App. 275, and in St. Louis v. Keane, 27 Mo. App. 646. What, then, are equitable assets? Judge Bakewell, in Heiman v. Fisher, 11 Mo. App., at page 280, says that 'equitable assets are such as can be reached only by the aid of a court of equity, and the established rule is that assets which can only be reached in equity must be distrib- uted pari passu among all creditors.' I take the rule to be that, where assets are of such a character that they are not vendible under an execution at law, and that no lien can be made to at- tach to them by any jiroceeding at law, but that they can only be. reached and subjected to the demand of a creditor by the aid and the processes of a court of equity, they are for that reason, and that reason alone, equitable assets. Nor does it appear to me to make any difference why, or on what theory of law or of public policy, they are held to be available ' to the creditor through the aid of processes of equity alone. To bring them within the well-known rule in respect of the distribution of equita- ble assets, it is enough that they cannot be touched in any way without aid of a court of equity, and that whatever creditor gets satisfaction out of them must submit himself to the principles of a court whose favorite maxim is that equity is equality. But to this view there is opposed the argument that in this State, in the case of what is called a creditors' bill in aid of an execu- tion at law to reach assets which have been concealed or fraudu- lently conveyed by the debtor, the rule is that the creditor first filing such a bill gets a priority over the others. Such is, no doubt, the rule in this State, though the contrary principle is every day administered in the coilrts of the United States here in our midst. But the assets thus pursued and, made available by the creditors are not equitable assets within the sense of the rule under consideration, for the reason that they are vendible under his execution at law. The creditor can levy upon his deb- tor's interest in property which the latter has fraudulently con- veyed, have it sold at sheriff's sale, become the purchaser, and then bring a suit in equity to clear his title; and I understand that a third person may become the purchaser at sheriff's sale, and have the like remedy in equity. Rights may thus attach to such assets in proceedings at law which in their very nature give a priprity, — not merely a priority of lien, but a priority of title. 134 CITY OF ST. LOUIS V. o'nEIL LUMBER CO. [CHAP. II. But there is another reason which distinguishes those cases from this. In those cases the moving creditor, even where he does not first sell the debtor's interest under his execution at law, often goes to great labor and expense in uncovering assets of his debtor. It is therefore debatable, to say the least, whether he ought to be required, after fighting the battle, to allow the camp followers who have, skulked in the rear to come in and divide with him the fruits of the victory. But no such condition of things exists in respect of the question ■we are considering. The debtor has made no fraudulent conveyance, has concealed no assets. He has simply run away, leaving visible certain assets in the hands of a custodian, who is so privileged, under the policy of the law, that that custodian can only be compelled to account for them and to distribute them by a court of equity. Shall the principle which rewards the diligence and courage of the judg- ment creditor who sues to set aside a fraudulent conveyance be applied so as to give a priority to the creditor seeking satisfaction out of such equitable assets merely because he may happen to file hjs bill a day before the others ? This is not rewarding dili- gence, courage, labor, and the expenditure of money. It may result merely in rewarding good fortune. The creditor first filing his bill may not even be the most diligent; he may merely be the most fortunate. A day's sickness in the case of his "rival cred- itor, the accident of employing one lawyer instead of another, may, if this is to be the rule, turn the scale, and give him all, while the others standing in equal right get none. I can see no difference in principle between this case and the case of Rieper v. Rieper, 79 Mo. 352, which was, beyond question, correctly de- cided. In both cases the assets are well known, uncovered, unde- nied, unconcealed, but capable of being subjected only by pro- ceedings in equity. The moving creditor, who, as in Rieper v. Rieper, seeks to subject the separate estate of a married woman, gets no lien by the mere filing of his bill, and for the naked reason that the assets are equitable assets, and that it is the act of the court, and not the act of the creditor, that creates the lien. The lien is created by the decree, and not by the bringing of the suit. In all such cases the well-known rule of chancery procedure is that all creditors who come in before the final decree of dis- tribution share pari passu. In this conclusion reached by the learned dissenting judge we concur. We think he might have safely rested it upon the case of Rieper v. Rieper, 79 Mo. 352, and the last ground so forcibly CHAP. II.] DERING V. EARL OF WINCHELSEA. 135 put in his opinion, to which we deem it necessary to add only a word in explanation of our position. While a court of equity, under the admirable doctrine announced in the able opinion of Judge Bliss in Pendleton v. Perkins, 49 Mo. 565, can and will give a remedy to creditors against assets in its custody, or which can be reached only by its strong arm, yet such courts cannot create for their benefit either the process of garnishment on the one handj or the remedies to be acquired under the mechanics' lien law on the other, and are not constrained to a distribution of those assets to creditors according to the principles that would obtain under the law governing either, but will make such distri- bution according to rigjit and justice, which in this case would be (after paying Higgins and Sellers the amount found due them for the finishing the work out of the fund) to, distribute the re- mainder among the interpleaders in proportion to the amounts found to be severally due them. That this may be done, the judgment of the St. Louis Court of Appeals affirming the judg- ment of the St. Louis Circuit Court is reversed, and the same remanded to said Court of Appeals, to be proceeded with accord- ingly. All concur, except Barclay, J., who dissents. DERING V. EARL OF WINCHELSEA. (1 Cox, Ch. 318.) [Court of Exchequer^ 1787.] Thomas Bering, Esq., having been appointed collector of some of the duties belonging to the customs, it became necessary, upon such appointment, for him to enter into bonds to the crown with three securities for the due performance of this oifice. Sir Ed- ward Bering, his brother, the Earl of Winchelsea, and Sir John Rous having agreed to become sureties for him, a joint and sev- eral bond was executed by Thomas Bering and Sir Edward Bering to the crown in the penalty of £4,000; another joint and several bond by Thomas Bering and the Earl of Winchelsea, and a third by Thomas Bering and Sir John Rous, in the same penalty of i4,000; all conditioned alike for the due performance of Thomas Bering's duty as collector. Mr. Bering being in ar- rears to the crown to the amount of £3,883 14s., the crown put the first bond in suit against Sir Edward Bering, and judgment 136 DERING V. EARL OF WINCHELSEA. [CHAP. 11, was obtained thereon for that sum, whereupon Sir Edward filed this bill against the Earl of Winchelsea and Sir John Rous, claim- ing from them a contribution towards the sum so recovered against him. The cause had been argued at length in Michaelmas term last, and now stood for judgment. Lord Chief Baron Eyre. This bill is brought by one surety against his two cosureties, under the circumstances (above men- tioned). Mr. Bering's appointment, the three bonds, and the judgment against the plaintiff are in proof in the cause. The original balance due, and the present state of it, are admitted. The demand is resisted on two grounds: First, that there is no foundation for the demand in the nature of the contract; and, secondly, that the conduct of Sir Edward Bering has been such as to disable him from claiming the benefit of the contract, though it did otherwise exist. There is also a formal objection, which I shall take notice of hereafter. I shall consider the second ground of objection first, in order to lay it out of the case. The misconduct imputed to Sir Edward is that he encouraged his brother in gaming and other irregu- larities; that he knew his brother had no fortune of his own, and must necessarily be making use of the public money; and that Sir Edward was privy to his brother's breaking the orders of the lords of the treasury to keep the money in a particular box, and in a particular manner, etc. This may all be true, and such a representation of Sir Edward's conduct certainly places him in a bad point of view ; and' perhaps it is not a very decorous proceeding in Sir Edward to come into this court under these circumstances. He might possibly have involved his brother in some measure, but yet it is not made out to the satisfaction of the court that these facts will constitute a defence. It is argued that the author of the loss shall not have the benefit of a con- tribution; but no cases have been cited to this point, nor any principle which applies to this case. It is not laying down any principle to say that his ill conduct disables him from having any relief in this court. If this can be founded on any principle, it must be that a man must come into a court of equity with clean hands. But when this is said it does not mean a general depravity; it must have an immediate and necessary relation to the equity sued for; it must be a depravity in a legal, as well as in a moral sense. In a moral sense, the companion, and per- haps, the conductor, of Mr. Bering, may be said to be the author CHAP. II.] BERING V.- EARL OF WINCHELSEA. 137 of the loss, but to legal purpose Mr. Daring himself is the author of it; and if the evil example of Sir Edward led him on, this is not what the court can take cognizance of. Cases, indeed, might be put, in which the proposition would be true. If a con- tribution were demanded from a ship and cargo for goods thrown overboard to save the ship, if the plaintiff had actually bored a hole in the ship, he would in that sense be certainly the author of the loss, and would not be entitled to any contribution. But speak- ing of the author of the loss is a mere figure of speech as applied to Sir Edward Bering in this case. The real point is whether a contribution can be demanded between the obligors of distinct and separate obligations under the circumstances of this case. It is admitted that, if there had been only one bond in which the 'three sureties had joined for £12,000, there must have been a contribution amongst them to the extent of any loss sustained; but it is said that that case proceeds on the contract and privity subsisting amongst the sureties, which this case excludes; that this case admits of the supposition that the three sureties are per- fect strangers to each other, and each of them might be igno- rant of the other sureties, and that it would be strange to imply any contract as amongst the sureties in this situation; that these are perfectly distinct undertakings, without connection with each other; and it is added that the contribution can never be eodem modo as in the three joining in one bond for £12,000, for there, if one of them became insolvent, the two others would be liable to contribute in moieties to the amount of £6,000 each, whereas here it is impossible to make them contribute beyond the penalty of the bond. Mr. Madocks has stated what is decisive, if true, — that nobody is liable to contribute who does not appear on the face of the bond. If this means only that there is no contract, then it comes back to the question whether the right of contribu- tion is founded on contract. If we take a view of the cases, -both in law and equity, we shall find that contribution is bottomed and fixed on general prin- ciples of justice, and does not spring from contract, though contract may qualify it, as in Swain v. Wall, 1 Ch. Rep. 149. In the Register, 176b, there are two writs of contribution, — one inter co-haeredes ; the other inter co-feoffatos. These are founded on the statute of Marlbridge. The great object of the statute is to protect the inheritance from more suits than are necessary. Though con- tribution is a part of the provision of the statute, yet in Fitzh. N. B. 338, there is a writ of contribution at common law amongst ten- 138 DERING V. EARL OF WINCHELSEA. [CHAP. II ants in common, as for a mill falling to decay. In the same page Fitzherbert takes notice of contribution between co-heirs and co-feoffees; and as between co-feoffees he supposes there shall be no contribution without an agreement, and the words of the writ countenance such an idea, for the words are "ex eorum assensu" ; and yet this seems to contravene the express provisions of the statute. As to co-heirs, the statute is express. It does not say so as to feoffees, but gives contribution in the same man- ner. In Sir William Harbert's Case, 3 Coke, lib, many cases of contributions are put; and the reason given in the books is that in sequali jure the law requires equality; one shall not bear the burthen in ease of the rest, and the law is grounded in great equity. Contract is never mentioned. Now, the doctrine of equal- ity operates more effectually in this court than in a court of law. The difficulty in Cokp's cases was how to make them con- tribute. They were put to their audita querela or scire facias. In equity there is a string of cases in 1 Eq. Cas. Abr. tit. "Con- tribution and Average." Another case occurs in Harg. Law Tracts, p. 120, on the right of the king on the prisage of wine. The king is entitled to one ton before the mast and one ton be- hind; and in that case a right of contribution accrues, for the king may take by his prerogative any two tons of wine he thinks fit, by which one man might suffer solely. But the contribution is given, of course, on general principles, which govern all these cases. Now, to come to the particular case of sureties. It is clear that one surety may compel a contribution from another towards payment of a debt to which they are jointly bound. On what principle? Can it be necessary to resort to the circumstance of a joint bond? What if they are jointly and severally bound? What difference will it make if they are severally bound, and by different instruments, but for the same principal, and the same engagement? In all these cases the sureties have a common inter- est and a common burthen. They are joined by the common end and purpose of their several obligations as much as if they were joined in one instrument, with this difference only: That the pen- alties will ascertain the proportion in which they are to contribute ; Whereas, if they had joined in one bond, it must have depended on othier circumstances. In this case, the three sureties are all bound that Mr. Bering shall account for the monies he receives. This is a common burthen. All the bonds are forfeited at law and in this court, as far as the balance due. The balance might CHAP. II.] DERING V. EARL OF WINCHELSEA. 139 have been so great as to have exhausted all the penalties, and then the obligee forces them all to pay; but here the balance is something less than one of the penalties. Now, who ought to pay this? The one who is sued must pay it to the crown, as in the case of prisage; but, as between themselves, there shall be a contribution, for they are in aequali jure. This is carried a great way where they are joined in one obligation; for if one should pay -the whole il2;000, and the second were insolvent, the third shall contribute a moiety, though he certainly never meant to be liable for rhore than a third. This circumstance, and the possi- bility of one being liable for the whole if the other two should prove insolvent, suggested the mode of entering into separate bonds; but this does not vary the reason for contribution, for there is the same principal and the same engagement; all are equally liable to the obligee to the extent of the penalty of the bonds when they are not all exhausted. If, as in the common case of a joint bond, no distinction is to be made, why shall not the same rule govern? As in the case of average of cargo in a court of law, "Qui sentit commodum sentire debet et onus." This prin- ciple has a direct application here, for the charging one surety discharges the other, and each, therefore, ought to contribute to the onus. In questions of average, there is no contract or privity in ordinary cases; but it is the result of general justice, from the equality of burthen and benefit. Then there is no difficulty or absurdity in making a contribution take place in this case, if " not founded on contract, nor any difficulty in adjusting the pro- portions in which they are to contribute, for the penalties will necessarily determine this. The objection in point of form, which I before mentioned, is that the bill cannot be sustained, inasmuch as it has not charged the insolvency of the principal debtor, and that such a charge is absolutely necessary. As a question of form it ought to have been brought on by demurrer ; but, in substance, the insolvency of Mr. Dering may be collected from the whole proceedings, which strongly imply it; for the plaintiff appears to have submitted to the judgment, and the defendants have made their defence on other grounds. On the whole, therefore, we think that the plaintiff is entitled to the relief he prays, and declare that, the balance due from Thomas Dering being admitted on all hands to amount to the sum of £3,883 14s. Sj^^d., the plaintiff. Sir Edward Dering, and the two defendants, the Earl of Winchelsea and Sir John Rous, ought to contribute in equal shares to the payment of that sum, 140 BARTLE V. NUTT. [CHAP. II. and direct that the said plaintiff and defendants do pay in dis- charge thereof, each of them, the sum of il,294 lis. 7d. ; and that on payment thereof the attorney general shall acknowledge satisfaction on the record of the said judgment, and that the two bonds entered into by the Earl of Winchelsea and Sir John Rous be delivered up to them respectively. But, this not being a very favorable case to the plaintiff, and the equity he asks being doubt- ful, we do not think it a case for costs. BARTLE V. NUTT. (4 Pet. 184.) [Supreme Court of the United States, 1830.] Baldwin, J., delivered the opinion of the court. • This suit was brought on the chancery side of the Circuit Court of the District of Columbia for the county of Alexandria, by the appellant (complainant) against the appellee (respondent). The object professed is to obtain a settlement of accounts arising out of a partnership charged to have existed between the complain- ant and respondent and one Ferdinand Marsteller. The bill charges that, in 1814, a contract was entered into between the complainant and the government of the United States, for rebuilding Fort Washington. That, when the contract was made, it was agreed between the respondent, Ferdinand^ Marsteller, and the complainant, that they should share the profits of the contract; that is, that each of them should receive one-third part of the profits. That the respondent was to furnish the concern with such merchandise as might be necessary, disburse the funds of the Concern, and keep the ac- counts relative to such disbursements ; that the complainant was to superintend the work, and Marsteller to drawing and furnish- ing the money for carrying it on. The bill charges that, under this arrangement, the work was commenced and finished, and that, on its measurement, it was supposed a profit had been made of about $4,500; and that, ac- cordingly, $1,500 were advanced to the respondent as his share of the profits. That, about the close of the business, it was discovered that Marsteller had committed great frauds on the government, and CHAP. II.] BARTLE V. NUTT. 141 that the complainant gave information of these frauds to the de- partment of war, in consequence of which Marsteller was dis- graced, and soon after died insolvent. That, soon after this development, the respondent instituted suit against the complainant for a balance claimed on his store account, and for money disbursed by him for complainant; that the complainant instituted a cross-action against the respondent, and both suits were, by mutual consent, referred to arbitrators. That, when the reference was made, the complainant expected that the arbitrators would go into a full examination of the part- nership accounts in relation to the government contract, as well as in relation to the individual accounts of the parties. But that, when the arbitrators proceeded to act, they declined looking on the transaction as a partnership one, and thought themselves bound to consider the accounts as unconnected with that con- cern; and finally awarded against the complainant $4,497.42, in which was included an allowance of $1,500, for Coleman's share of the profits of the contract, and $1,534, for commissions in dis- bursing the money received from the government. That the copartnership has always been indebted to the com- plainant, on account of. the contract with the government. The bill then proceeds to some details respecting the accounts, at this time not important, and prays for an account and general relief. The answer admits that the complainant, in 1814, entered into a contract with Ferdinand Marsteller, agent for the United States, for the rebuilding of Fort Washington, with the terms and con- ditions of which contract the respondent had no concern. That, it being necessary to have an agent in Alexandria, to procure supplies for carrying the contract into effect, and as Marsteller had expressed a wish that the money should be dis- bursed through the agency of the respondent, and that the re- spondent should keep the accounts between Marsteller and the complainant, the latter agreed that the respondent should act as agent; and, in the first instance, offered him as a compensation a share of the profits, and the complainant afterwards offered him a commission of five per cent, on the disbursements. That the: respondent accepted of the latter offer, and under it entered on the agency, after having refused the first. The respondent denies that he was in any shape interested as a copartner with the complainant and Marsteller, or with either of them, in relation to the said contract, or that he ever received 142 BARTLE V. NUTT. [CHAP. II. any share of the profits ; but admits the charge of a commission of five per cent on the money disbursed by him. He admits that the complainant having refused to pay the bal- ance due from him to the respondent on private account, he did institute suit against him; that a cross-suit was brought by the complainant against the respondent ; that both suits were referred to arbitrators, who awarded in the respondent's favor the sum of $4,497.42; that, on the investigation before the arbitrators,, the complainant set up as an offset the same claim which he prosecutes in this suit, and that it was rejected, as unsupported by evidence. The respondent relies on that award and the judgment on it, as a bar to further proceedings. The cause came on to be heard on the bill and answer, and after various proceedings not necessary to notice, the bill was dismissed without costs; the court being of opinion that the partnership charged was contrary to public policy and sound morals, and that a court of equity ought not to lend its aid to either of the parties against the other. Among the exhibits in the cause was the contract between the complainant and the government, dated 17th September, 1814, signed and sealed by complainant, and witnessed by Thomas Lowe. "Accepted for the United States, by order of Colonel Monroe, Secretary of War. _ F. Marsteller, Deputy Quartermaster-General. September 30, 1814." The proposition for this contract was addressed by Bartle to Marsteller in writing, and the contract was signed on the same day. From the evidence taken in the case, it clearly appears that Marsteller acted as the agent of the United States in making the contract ; that the materials furnished and the labor performed were under the direction of Bartle; that the money was princi- pally received from the government by Marsteller, paid over by him to Coleman, who dispersed it on the orders of Bartle. There can be no doubt that Bartle and Marsteller were partners in the profits of the contract ; but the capacity in which Coleman acted does not seem to be so certain. There is very strong evidence of his being a partner; but it is not very material whether he was an agent or a party in a contract made and carried into effect under the circumstances which attended this. The shades of dif- ference which would, in either event, distinguish the moral or CHAP. II.] BARTLE V. NUTT. 143 I legal aspect of the cause, are too slight to engage the attention of the court. By the account of the complainant against the firm of Marstel- ler, Coleman, and Bartle, it appears that his charges amount to $58,374; and that there is a loss to the concern of $10,538, one- half of which he charges to Coleman; and he seeks to recover this by deducting the amount from a judgment obtained against him by Coleman in the Circuit Court, affirmed here on a writ of error. Of the alleged loss on this contract, the sum of $8,860 is thus accounted for in the complainant's account against the firm : "To deductions made by the government (which are against the oper- ative mechanic) from the work and materials. Vide Abstracts B, F, $8,860 of this sum." Of this sum, it appears by Ab- stract B, that $3,198 were for an overcharge of fifty cents per perch of stone, and fifty cents per thousand of bricks, beyond the contract price ; and, by Abstract F, that $5,661 were for overr measurement of stone, brick, and carpenter work ; so that, deduct- ing these two items from the amount of the loss on the contract, it is reduced to $1,678. The case, then, presented for the consideration of the Circuit Court, and now before us for revision, is this : A contract made by the complainant with a public agent, a deputy quartermaster- general, to an amount exceeding $50,000, in the profits of which he was to participate; false measurements attempted to be im- posed on the government ; the fraud discovered by the vigilance of its accounting officers ; and a bill in equity filed to compel an alleged partner to account for and pay to one of the parties in such a transaction the one-half of a loss sustained by an unsuccess- ful attempt to impose spurious vouchers on the government. To state such a case is to decide it. Public morals, public jus- tice, and the well-established principles of all judicial tribunals, alike forbid the interposition of courts of justice to lend their aid to purposes like this. To enforce a contract which began with the corruption of a public officer, and progressed in the practice of known and wilful deception in its execution, can never be con- summated or sanctioned by any court. The law leaves the parties to such a contract as it found them. If either has sustained a loss by the bad faith of a particeps crim- inis, it is but a just infliction for premeditated and deeply prac- ticed fraud, which, when detected, deprives him of anticipated profits or subjects him to unexpected losses. He must not expect 144 bleakley's appeal. [chap. ii. that a judicial tribunal will degrade itself b]^ an exertion of its powers, by shifting, the loss from one to the other, or to equalize the benefits or burdens which may have resulted' by the violation of every principal of morals and of laws. , This court is unanimously of opinion that the Circuit Court was right in dismissing the complainant's bill, and affirms their decree with costs. BLEAKLEY'S APPEAL. (66 Pa. St. 187.) [Supreme Court of Pennsylvania, 1870.] ■Agnew, J. The facts of this case are few. Robert Lambertoii was the owner of a judgment for $31,000, entered against Samuel P. Irvin on the 8th day of June, 1865. Irvin had purchased of F. D. Kinnear, Esq., lot No. 449 in Franklin at $2,600, of which $820 only remained unpaid, and would fall due on the 6th of August, 1865, with a provision for forfeiture of the contract in case of non-payment fOr thirty days after it fell due. On the 19th of July, 1865, Irvin assigned his contract to James Bleakley, binding him to pay the $820 to save the forfeiture, and with the admitted understanding that Irvin should refund the $820 to Bleakley, settle his indebtedness to the bank,, of which Bleakley was cashier, and that then Bleakley should reconvey to Irvin's wife. But the assignment was antedated to the 1st of May, 1865, thus overreaching Lamberton's judgment.. The master finds that this was done to defraud the plaintiff. The finding is ably vin- dicated in the opinion of Judge Trunkey. The absolute character of the paper, though but a security, the agreement to reconvey to Irvin's wife instead of himself, and the attempt of Bleakley to use the paper to defeat the sherifif's sale of the property by Lamber- ton on his judgment, evince the true motive for antedating the paper. Bleakley paid the $820 to Kinnear, and now claims a decree for this sum, before specific performance shall be decreed to Lamber- ton, who purchased Irvin's title at the sheriff's sale. Kinnear does not resist specific performance, but stands ready to convey to Lamberton, whenever the covinous assignment to Bleakley is put out of his way. It is Bleakley who resists the decree until CHAP. II.] BLEAKLEY's APPEAL. 145 he is refunded the $820, paid upon the footing of the fraudulent agreement with Irvin, to defeat Lamberton's judgment., Bleakley is made a party to the bill only for the purpose of putting aside the covinous assignment to enable Kinnear.to convey to Lamber- ton. The question then is whether a chancellor would require Lamberton to refund the $820 to Bleakley, as a condition to set- ting aside the assignment and entitling Lamberton to specific per- formance of Kinnear. But clearly Bleakley cannot demand repayment of Lamberton either at law or equity. And first he is not entitled to subrogation to Kinnear's rights. Subrogation is not a matter of contract but of pure equity and benevolence. Kyner v. Kyner, 6 Watts, 221 ; Wallace's Appeal, 5 Pas. St. 103. On what pretence, in foro conscientise, can a party attempting to carry out a scheme of fraud against another, by a payment, claim compensation of the party he has attempted to defraud ? Conscience and benevolence revolt at such an iniquity. Again Bleakley did not recognize Kinnear's title by the payment. He did not profess to bargain for it, and Kinnear did not profess to sell it to him. His act was simply a payment and no more, made by him because of Irvin's duty to pay, and accepted by Kinnear because of his right to receive from Irvin. Besides the payment was accepted by Kinnear in ignor- ance of the attempted fraud. There can be no legal intendment therefore of a bargain on Kinnear's part to vest his right to re- ceive the money in Bleakley. As to Lamberton the payjuent by Bleakley was not only fraudulent and intended to displace his judgment, but it was also voluntary. It was not paid at Lamber- ton's request nor for his use and benefit ; but on the contrary was intended to defeat his right, as a creditor by overlapping his judgment, by means of the covinous transfer. Bleakley is there- fore neither a purchased, nor a creditor of Lamberton, nor an object of benevolence, but is forced upon the record to compel him to put out of the way the fraudulent barrier to Kinnear's specific performance to Lamberton. He cannot, thus standing before a chancellor, ask him to make repayment to him a condition to a decree to remove the fraudulent obstruction he threw in the way. The payment is one of the very steps he took to consummate the fraud upon Lamberton. If he have a legal right of recovery he must resort to his action at law, and if he can have none, it is a test of his want of equity. And in addition to all this, it is a rule that a chancellor will not assist a party to obtain any benefit arising from a fraud. He must come into a court of equity with clean in 146 ATWOOD V, FISK. [CHAP. II. hands. It would be a singular exercise of equity, which would assist a party, who had paid money to enable him to perpetrate a fraud, to recover his money, just when the chancellor was engaged in thrusting out of the way of his doing equity to the injured party the very instriunent of the fraud. Who does iniquity shall not have equity. Hershey v. Weiting, 50 Pa. St. 244, 245. We are therefore of opinion the court committed no error in refusing compensation and the decree, of the court below is con- firmed. ATWOOD V. FISK. (101 Mass. 363.) [Supreme Judicial Court of Massachusetts, 1869.] Two BILLS IN EQUITY to compel the surrender or cancellation ot two overdue promissory notes, dated in 1861, and signed by the plaintiffs respectively, with Joseph Atwood, each note for the payment by the promisors, jointly and severally, to the order of the defendants, of $1,340, in equal semiannual instalments of $67, with interest ; and of two mortgages of real estate, containing the usual power of sale clauses, given by the plaintiffs, respectively, to the defendants, to secure the payment of the notes. The ground on which the bills were sought to be maintained was, that the consideration of the notes and mortgages was a promise of the defendants to the plaintiffs, to forbear to prosecute Joseph Atwood, who was a bookkeeper in the employ of the defendants, for embezzling money of his employers ; that therefore the instru- ments were "null and void; but that, so long as they remained out- standing, they constituted a cloud on .the title of the plaintiffs in the real estate, and might be used to the injury of the plaintiffs at some future time when evidence of the illegality of their con- sideration should be lost. The answers denied the plaintiffs' allegations concerning the consideration for the instruments, and alleged a lawful consideration therefor. Issue was joined on the answers, and the cases were reserved by Colt, J., on the bills, answers and evidence, for the determination of the full court. Ames, J. A note, given in consideration of a composition of felony, or of a promise not to prosecute for a crime of a lower degree than a felony, is illegal, and cannot be enforced by the CHAP. II.] ATWOOD V. FISK. 147 promisee against the promisor. And it makes no difference that, of various elements making up the entire consideration, a part, and even the larger part, was legal and valid. If part of the con- sideration was illegal, the effect upon the note would be the same as if the whole were illegal. The plaintiffs insist that the notes referred to in their bills of complaint fall within this rule of law. But it has also long been settled that the law will not aid either party to an illegal contract to enforce it against the other, neither will it relieve a party to such a contract who has actually fulfilled it, and who seeks to reclaim his money or whatever article of property he may have applied to such a purpose. The meaning of the familiar maxim, in pari delicto potior est conditio defen- dentis, is simply that tht law leaves the parties exactly where they stand ; not that it prefers the defendant to the plaintiff, but that it will not recognize a right of action, founded on the illegal con- tract, in favor of either party against the other. They must settle their own questions in such cases without the aid of the courts. In the somewhat quaint language of Lord Chief Justice Wilmot in Collins v. Blantern, 2 Wils. 350, "all writers upon our law agree in this ; no polluted hand shall touch the pure fountains of justice. Whoever is a party to an unlawful contract, if he hath once paid the money stipulated to be paid in pursuance thereof, he shall not have the help of a court to fetch it back again ; you shall not have a right of action when you come into a court of justice in this unclean manner to recover it back. Procul, o procul este, profani!" In this respect the rule in equity is the same as at law. Equity follows the rule of the law, and will not interfere for the benefit of one such party against a particeps criminis. The suppression of illegal contracts is far more likely in general to be accomplished, by leaving the parties without remedy against each other. And so the modern doctrine is estab- lished, that relief is not granted where both parties are truly in pari delicto. 1 Story Eq. § 298, Claridge v. Hoare, 14 Ves. 59. There is no reason why equity should be able to grant relief upon principles different from those recognized in courts of law. If the plaintiffs were occupying the position of defendants, and if the cases before us were actions brought to recover the amount of the notes in question, they could avail themselves of the maxim above referred to by way of defence. But they do not stand in that position. They are themselves invoking the ajd of the court in its equity jurisdiction, to relieve them from a contract which they allege to be illegal. They are actors, or plaintiffs, and ap- 148 ATWOOD V. FISK. [CHAP. II. parently are in a position in which the maxim in question can be invoked and rehed upon on the other side. If the notes were founded on an illegal consideration, why should the court lend its process to aid one party to the illegality, rather than the other ? What superior equities, in that view of the case, have these plain- tiffs over the defendants ? We see no such inequality in position, or abuse of advantages, as to entitle them to the aid of the court ■on the ground of public policy. If there has been a composition of a felony, or a suppression of a criminal prosecution, the plain- tiffs were parties to it as well as the defendants, and it may per- haps be argued that the plaintiffs have had the benefit of the alleged corrupt agreement, and are merely seeking to be relieved from its inconveniences. They are seeking not to get back money paid under an illegal contract, but to recall notes and securities which they have given under such a contract, a distinction which is too slight to make much difference in the substantial equities of the case. Worcester v. Eaton, 11 Mass. 375. We see no occasion for the interference of the court, as prayed for, upon any view of the case. If the bookkeeper embezzled the funds of his employers, he not only committed a crime, but he also incurred a debt. This debt he was legally and morally bound to pay, and the defendants had a right to make use of all lawful and proper means to enforce its payment or to obtain security. The rule of the common law, that all civil remedies in favor of a party injured by a felpny are either merged in the higher offence against public justice, or suspended until after the termination of a criminal prosecution against the offender, is no part of the law of Massachusetts. Boston & Worcester Railroad Co. V. Dana, 1 Gray, 83. The fact that the debt grew out of a breach of trust, and had its origin in fraud and criminality, is not a reason, as a matter of law, for bestowing upon the debtor any peculiar privileges or exemptions. If the suppression of a crim- inal prosecution was one of the considerations for the contracts made and securities given by the plaintiffs, they can avail them- selves of that fact as a defence in any suit at law against them upon such contracts. They are in no danger of losing the benefit of that defence in consequence of any transfer of the notes to a third person. Some of the instalments "were overdue and unpaid, and for that reason no indorsee could so hold them as to deprive the plaintiffs of their defence. As to the exercise by the mort- gagees of the power of sale given by the terms of the mortgages, it cannot be difficult for the plaintiffs to see that any purchaser CHAP. II.] BRYANT V. PECK AND WHIPPLE COMPANY. 149 at such sale should be fully notified (if notice should be thought necessary) of all grounds of objection to the notes and mortgages, and of their intention to contest any title whic-h such purchaser shall venture to buy at the sale. It is well settled that all defences (except the statute of limitations), that can be made against the notes, can also be made against the mortgages. Vinton v. King, 4 Allen, ,562. Whether the evidence reported can be said to prove the alleged illegality in the contract is a question which we have not found it necessary to decide, or even to consider. In any view that can be taken of that question, the plaintiffs are not in a position to claim the equitable relief prayed for ; and therefore, in each case, the Bill is dismissed, with costs for the defendants. BRYANT V. PECK AND WHIPPLE COMPANY. (154 Mass. 460.) ■ [Supreme Judicial Court of Massachusetts, 1891.] Bill in equity, filed in the Superior Court, alleging that the plaintiff, on or about December 16, 1889, became a party to a promissory note for $2,000, with his son, George T. Bryant, run- ning to the defendant corporation, and at the same time assigned to it in writing thirty shares of its capital stock owned by him, of the par value of $3,000 ; that there was no legal consideration for the plaintiff's becoming a party to the note, or for such transfer of shares, but the plaintiff was induced to do both by the representa- tions made to him by the defendant, and its officers and agents act- ing for it, that his son, who was its treasurer, had as such treas- urer prepared a return for the defendant such as is required to be made and filed in the office of the Secretary of the Commonwealth annually under the Pub. Sts. Cw 106, § 54, and had with its other officers signed and made oath to the same, which return had been duly filed, that some of the statements therein as to its condition were not true, and were then known by his son not to be true, whereby his son was guilty of the crime of perjury, and liable to be imprisoned in the state prison, and that for this crime his son would be by them prosecuted criminally unless he signed the note and made over the shares in its favor, but that his son would not 150 BRYANT V. PECK AND WHIPPLE COMPANY. [CHAP. II. be prosecuted if he signed the note and made over the shares; that to protect his son from threatened criminal prosecution, he became party to. the note and transferred the shares; that he became party to the note and transferred the shares under duress ; and that the defendant refused upon demand to deliver up the note, or to strike his name therefrom, or to restore to him such shares. The prayer of the bill was for a cancellation of the note or for striking his name therefrom, and for a retransfer of such shares to him, and for further relief.* The Superior Court sustained a demurrer filed by the defendant for want of equity ; and the plaintiff appealed to this court. Holmes, J. According to the allegations of the bill, the plain- tiff became a party to the note from which he prays to be relieved, and transferred his stock, in consideration that the defendant would not prosecute his son for perjury, and under a threat from it that otherwise his son would be prosecuted. The transaction was illegal ; Pub. Sts. c. 205, § 27 ; Gorham v. Keyes, 137 Mass. 583 ; and if the parties stood on an equal footing, neither of them would have a remedy against the other. Atwood v. Fisk, 101 Mass. 363. But it is well recognized that, although both parties are chargeable with knowledge that their agreement is contrary to some rule of law, yet if one of them acts under duress, or what the law regards as undue influence on the part of the other, they do not stand on an equal footing, and the weaker one may be granted affirmative relief. Worcester v. Eaton, 11 Mass. 368, 376. Belding v. Smythe, 138 Mass. 530, 533. It is settled that such threats as are alleged to have been addressed to the plaintiff constitute duress. Harris v. Carmody, 131 Mass. 51. See Rau V. Von Zedlits, 132 Mass. 164. And accordingly it has been decided in other jurisdictions, in cases like the present, that the plaintiff was entitled'to relief in equity. Foley' v. Greene, 14 R. I. 618. Schoener v. Lissauer, 107 N. Y. 111. Williams v. Bayley, L. R. 1 H. L. 200. Davies v. London & Provincial Ins'. Co. 8 Cli. D. 469, 477. See Sharon v. Gdger, 46 Gonn. 189; Rau v. Von Zedlits, 132 Mass. 164, 167-169. In Atwood V. Fisk, ubi supra, cited as establishing a different conclusion, it seems to have been found or assumed that the plain- tiffs had not been subjected to any undue pressure, as the decision states that there was "no such inequality in position, or abuse of advantages, as to entitle them to the aid of the court on the ground of public policy." Demurrer overruled. :HAP. II.] COMSTOCK V. JOHNSON. 151 . • COMSTOCK V. JOHNSON. (46 N. Y. 615.) [Court of Appeals of New York, 1871.] Church, C. J. The principal question in this case, involving the construction of the grant of water, was correctly decided in the court below. It is well* settled in this State that the terms used in this grant are to be taken as a measure of the quantity of water ■ granted, and not a limitation of the use to the particular machin- ery specified. (Wakely v. Davidson, 26 N. Y., 387; Cromwell v. Selden, 3 id., 253.) It was found by the court that, at the time the defendant shut the water off, he asserted that the plaintiff had forfeited his right to the water, and claimed a right to shut it off. In this he was mistaken. In depriving the plaintiff of the use of the water under an assertion of forfeiture, he rendered himself amenable to the process of the court for the protection of the plaintiff's rights. The judgment enjoining the defendants from depriving the plaintiff of the quantity of water to which he was entitled under his deed, cannot be disturbed. The only serious question in the case relates to the use of the buzz saw in front of the mill. The plaintiff did not, by his deed, acquire the title to the land in front of the mill, because the description is limited to the land upon which the mill stands ; but he did acquire an easement in such land for the purpose of ingress and egress, and also for the purpose of piling and sawing wood for the use of the mill, as it had been used and enjoyed for forty years. Everything neces- sary for the full and free enjoyment of the mill passed as an inci- dent, appurtenant to the land conveyed. (2 Kent's Com., 467; Blaine's Lessee v. Chambers, 1 Serg. & Rawle, 174.) But this would not authorize the plaintiff to erect and use machinery upon this land not necessary to the use of the mill, as it had been used, and would not authorize the use of the buzz saw upon that land. The objection is not that the plaintiff propelled the buzz saw with the water from the dam, as he had the right to use the water for any machinery and in any place which he was entitled to occupy ; but he could not occupy the space in front of the mill for that 152 COMSTOCK V. JOHNSON. [CHAP. II. purpose. At the time the water was shut off by the defendants, it was being used only to propel this saw ; and it is claimed that the defendants were justified in shutting off the water from that machinery ; and for that reason the judgment should be reversed, or, at least, that it should be modified so as to restrain the plaintiff from using his buzz saw on the defendants' premises. As we have seen, the judgment against the defendant is fully warranted by-, the findings ; and the question js, whether any modification should be made against the plaintiff. It is a rule of equity that he who asks equity must do equity. The plaintiff was in fault in using the buzz saw on the defendants' premises. It is said that this was an independent transaction, for which the defendants might have an action ; and. this was the view of the court below. The rule referred to will be applied when the adverse equity grows out of the very controversy before the court, or of such circum- stances as the record shows to be a part of its history, or is so connected with the cause in litigation as to be presented in the pleading and proofs, with full opportunity afforded to the party thus recriminated to explain or refute the charges. {Tripp v. Cook, 26 Wend., 143; McDonald v. Neilson, 2 Cow., 190; Casler v. Shipman, 35 N. Y., 533.) All the facts connected with the right of the plaintiff to use the buzz saw were not only spread out upon the record, but were in fact litigated upon the trial, and, as to his strict legal rights, are undisputed ; and we cannot say that, but for his use of the saw on the defendants' premises, the water would not have been shut off. Whether this was so or not, the controversy in relation to his right to use the saw was involved in the litigation, and was intimately connected with the wrongful act of the defendants ; and, being so, it is proper to apply the equitable rule. It is not indispensable to the application of this rule that the fault of the plaintiff should be of such a character as to authorize an independent action for an injunction against him. The plaintiff, in strictness, was in the wrong in placing his buzz saw in front of the mill. The defend- ants were in the wrong in shutting off the water, and especially in asserting a forfeiture ; and, as both parties are in court to insist .upon their strict legal rights, we think substantial justice will be done by modifying the judgment so as to enjoin the plaintiff from using the buzz saw on the land in front of his mill, and, as modified, judgment affirmed, without costs to either party against the other in this court. All concur. Judgment accordingly. CHAP. 11.] MINER V, BEEKMAN. 153 MINER V. BEEKMAN. (50 N. Y. 337.) [Court of Appeals of New York, 1872.] This was an action brought by the plaintiff, claiming to be the owner of certain property in New York City, against the defend- ants, as grantees of a mortgage in possession, asking to have the amount of the- mortgage determined, so that he could pay it and have it discharged. Grover, J. The counsel for the appellant insists that the action may be regarded as one for the recovery of real estate, and that therefore the time limited for its commencement, after it accrued by statute, is twenty years. (Code, § 78.) But this within the meaning of the statute is not an action for the recovery of real property. * * * All the allegations of the complaint in this case show that the plaintiff, claiming to be the owner of the fee of the lots in question, subject to the lien of a mortgage thereon given by his grantor, of which the defendants were in possession as mort- gagees, under such mortgages, instituted the action for an ac- counting between the parties, and for liberty to pay the amount ascertained to be due, and, upon such payment being made, to be let into possession. This, instead of an action to recover real property or its possession within the meaning of the code, was an equitable action to have the amount due on the mortgage ascertained, and the sum that upon equitable principles he was bound to pay to exonerate the lands from the lien fixed upon payment, a discharge of the lands from the encumbrance and the possession given to him of such a suit prior to the code, no court of law had jurisdiction. It was exclusively of equity cogni- zance. The case is not altered by the fact that a recovery of the possession is prayed for as a part of the relief sought, and which may be had in the action. The latter relief was always given in equity in like cases prior to the code. An- examination of the various provisions of the code, limiting the time of the com- mencement of actions, shows that the relief sought in this action is not specially provided for in any of them. Hence it comes within section 97, which provides that an action for relief, not 154 MINER V. BEEKMAN. [CHAP. II. hereinbefore provided for, must be commenced within ten years after the cause of action accrued. The majority of the court be- low rightly held that ten years was the limit fixed for the com- mencement of the action after the cause accrued. The question is when did it accrue? Was it the time when the money secured by mortgage became due, or the time when the defendants or their grantors entered into possession? If the former, the judgment is right, as the money became due much more than ten years prior to the commencement of the action. If the latter, the judgment dismissing the complaint was erroneous, as there was no proof tending to show that the defendants or their grantors entered into possession ten years before the commencement of the action. The argument upon the part of the defendants is that the mortgagor, upon the money becoming due, has a right to come into a court of equity to have the amount of the lien determined, and discharged of record upon payment. So far his position is correct. The right to such an action then accrues. But is the deduction therefrom equally sound; that is, that this right is barred by the statute after ten years? If so, the mort- gagor after this is placed in a somewhat embarrassing condition. I am now speaking of a case where the mortgagor has continued in possession. He remains liable to an action for the foreclosure of the mortgage after the lapse of ten years, his pr9perty remains encumbered upon the record, and he has no power to get it dis- charged. It may be said that he can discharge the lien by a tender of the amount due upon the mortgage. (Kortright v. Cady, 21 N. Y. 343, and cases cited.) But although this will discharge the land, it will not relieve it from the apparent encumbrance upon the record, which may be a matter of considerable importance to the mortgagor. Besides, the amount due may be uncertain, and the aid of equity may be necessary to determine it, and the evi- dence of the tender may be lost. It is an acknowledged branch of equity jurisdiction to remove clouds from the title at the suit of the owner of the fee. Such owner has a right to invoke this aid. But must he do it within ten years after the commence- ment of the cloud, or may he do it at any time during its exist- ence while he continues such owner? My conclusion is, that this is a continuing right that may be asserted at any time during the existence of the cloud; never barred by the statute of limi- tations while the cloud continues to exist. This results from the continuing character of the right, which CHAP, n.] MINER Z/. BEEKMAN. 155 is equally as potent after the lapse of eleven years as it was during the first ten. It is a right inherent in the owner of the , fee to have clouds removed, and apparent but not real encum- brances discharged of record at all times. While the owner of the fee continues liable to an action for the foreclosure of a mortgage or for the payment of an encumbrance upon his land which is past due, he has a continuing right to the aid of equity to determine the amount, if uncertain, and to compel its dis- charge upon payment, and an a'ction to enforce this continuing right cannot be barred by the statute of limitations, for the reason that it is continuing. This is analogous to the rule as to private nuisances, which are regarded as continuing inj-uries ; and al- though damages sustained therefrom cannot be recovered for more than six years prior to the commencement of the action, yet a recovery may- be had for this period, although the nuisance had its origin before such time. This conclusion is sustained by the learned editor of the 11th edition of Kent's Com., note, Vol. 4, 213. But the present is a much stronger case against the bar of the statute. Here the plaintiff, who has acquired the title of the mortgagor, is out of possession. The defendants, if they have acquired the rights of the mortgagee, can defend their pos- session by virtue of the mortgage. (Phuf,e v. Riley, 15 Wend. 248; Chase v. Peck, 21 N. Y. 581.) The aid of equity has in this case become necessary for the plaintiff to remove this mortgage before he can recover posses- sion. But when did such aid become essential to him? Clearly not until the defendants or their grantor entered into possession. Then, and not till then, did the plaintiff require this remedy to regain possession. This cause of action for this purpose did not accrue until such possession was taken. This has been so held by the-Supreme Court of Wisconsin, under a statute almost pre- cisely similar to that of this State. {Knowlton v. Walker-, 13 Wis. 264; Waldo v. Rice, 14 id. 286.) The statute, I think, would not then -commence running had the defendants or their grantor entered and continued in possession, avowedly as mortgagees, and would not run while they so held, for the reason that it is a continuing right of the owner to pay off and discharge a mort- gage, and, by so doing, regain the possession of the land. But so far as appears in this case, neither the defendants nor their grantor so entered and held the possession, but on the contrary, claimed the entire fee, under deeds in fee, commencing with the deeds of a master in chancery, given upon a sale made in an 156 DUNSCOMB V. DUNSCOMB's EXECUTORS. [CHAP. II. action of the foreclosure of the mortgage in question to the purchaser. The plaintiff not having been made a party to this action, it is a nullity as to him. (Gage v. Brewster, 31 N. Y. 218.) Under these facts, if the possession of the defendants or their grantor has continued for ten years, the action is barred by the statute, otherwise not. It is suggested by the counsel for the plaintiff, that as more than twenty years had elapsed from the time the money became due upon the mortgage before the com- mencement of the action, the presumption of payment created by the statute has attached. It is a complete answer to this, that the complaint contains no allegations of payment. Besides, it sets forth the foreclosure, sale and claim of title under these proceed- ings. It is also insisted by the counsel that the defendants have not acquired the mortgage, and cannot therefore be regarded as mortgagees in possession. But the purchaser at a mortgage sale, ineffectual to pass title, acquires thereby title to the mortgage. (Robinson v. Ryan, 25 N. Y. 320; Winslow v. Clark, A7 id. 261.) When, as in this case, a plaintiff has permitted his right to satisfy a mortgage to remain dormant for nearly thirty years, during which others have paid the assessments and taxes, and made improvements in the belief that they had title under a fore- closure of the mortgage, he cannot complain that, as a condition of regaining possession he is compelled to account for and pay such taxes, assessments and for such improvements, according to the just and enlightened principles of courts of equity. The judgment appealed from must be reversed, and new trial ordered, costs to abide event. AH concur. Judgment reversed. DUNSCOMB V. DUNSCOMB'S EXECUTORS. (1 Johns. Ch. 508.) [Court of Chancery of New York, 1815.] The bill stated, that the plaintiffs are the only surviving chil- dren and heirs of Andrew Dunscomb, son of Daniel Dunscomb, deceased. That Daniel Dunscomb, on the 7th of January, 1795, made his will, and devised the one-fourth of all his estate, real and personal, to his son Andrew ; and if he died before the testa- tor, then -his share to go to his children, in equal proportions. The testator gave to his executors power and direction to sell CHAP. II.] DUNSCOMB V. DUNSCOMB's EXECUTORS. 157 his estate, and divide the proceeds according to his will. The executors, on the death of the testator, took" possession of the estate, real and personal, and sold the real estate, and received the proceeds, and also the rents and profits before the sale. An- drew, at his death, left five children, two of whom, Catharine and Andrew B., died. Catharine married one West, who is still liv- ing, and by whom she had one child, since deceased, without issue. Andrew B. died after his sister, under age, and without issue. The three surviving children, plaintiffs, claim the share that would have come to their father under the will, of which they alleged there remained due to them 1,731 dollars and 84 cents, with interest; and they prayed for an account, and that the executors might be Secreed to pay the amount, with interest. The answer admitted the will, the receipt of the rents, etc., the sale of the real estate on the 31st of January, 1804, that Mrs. West never had actual possession of the real estate before it was sold ; .but there was no adverse possession, the possession being actually Held by the defendants, as codevisees and cotenants, in common; that Mrs. West died two days before the sale of the real estate; and the other persons at the times mentioned in the bill ; that the husband of Mrs. West is still living, and resided, and still resides, out of the State; that the share of the net proceeds due to Mrs. West, was $1,046.36; that on the 23d of April, 1805, the defendants paid to the guardian of the two infant plaintiffs, $3,500, leaving $685.47, which the defendants have always been, and are still, ready to pay to the plaintiffs, if right and proper; that the plaintiffs are next of kin of Andrew B. Dunscomb, de- ceased ; that the husband and administrator of Mrs. West claimed the $1,046.36, being her share, as personal estate; and the de- fendants denied the claim, as the real estate was not sold at the time of her death; that her husband now claims interest on the amount, as tenant by the couctesy, for life, and that the principal ought to be put out on security, for that purpose ; that the plain- tiffs do not acquiesce in either claim of the husband of Mrs. West, and the defendants do not know to whom the money can be paid with safety. The defendants denied that they oughc to pay interest, as they had always been ready to pay the principal, when advised or di- rected by this court how the same ought to be paid; and they claimed to have their costs allowed to them out of the fund in their hands. The cause was submitted to the court on the bill and answer. 158 DUNSCOMB V. DUNSCOMB's- EXECUTORS. [CHAP. II. The Chancellor. 1. The plaintiffs are entitled, of course, to the sum of $685.47, and the only point, on this part of the case, is, whether they are entitled to interest upon that sum, which has lain unproductive for many years in the hands of the defendants. Why it was not paid to the guardian of the plaintiff (who was also guardian of Andrew B. Dunscomb, in his lifetime), and to whom the other portion of the moneys belonging to them was paid, does not appear." The executors say it has always been kept in readiness to pay to the persons entitled, when demanded. But this is no sufficient excuse. If they had met with any real doubt or difficulty, as to the person authorized to. receive, they could have applied to the court for advice, or brought the money into court. If the money (as we are at liberty to suppose) has been mingled with their own moneys, it has answered the pur- pose of credit, and the rule is settled, that executors, and all other trustees, are chargeable with interest, if they have made use of the money themselves, or have been negligent, either in not pay- iijg the money over, or in not investing it, or loaning it, so as to render it productive. Treves v. Townshend, 1 Brown Ch. 384; Rocke V. Hart, 11 Ves. 58. The rule is founded in justice and good policy ; it prevents abuse, and it indemnifies against negli- gence. This was also the rule in the civil law, when the guardian was guilty of negligence in suffering the money of the minor to lie idle. "Quod si pecunia mansisset in rationibus pupilli, prae- standum quod bona fide percepisset, aut percipere potuisset : sed fcenori dare cum potuisset, neglexisset." Dig. 26. 7, 58. The defendants must, in this case, account for interest on the above principal sum ; and as to the time from which interest is to be computed, in such a case of negligence in suffering the money to lie idle, there does not appear to be any absolute rule, arid the time must vary according to circumstances. It would be laying too heavy a hand upon executors, to charge interest from the mo- ment money was received. In some cases, executors are allowed a year to look out for some due appropriation of the money, and in other cases it would be unreasonable. Here the executors show no pains or effort to discharge themselves of the money. I observe that six months was the time allowed, in a like case, by the civil law, to the tutor to invest the funds (Domat, Civ. Law, bk. 2, tit. "Tutors," c. 3, § 23; Voet, lib. 26, tit. 7, § 9) ; and if the defendants are charged with interest after six months from the time they received it, it will not be unreasonable in this case, and I shall accordingly direct it. CHAP. II.] AMES V. RICHARDSON. 159 2. The husband of Catharine P. West is entitled, as tenant' by the courtesy, to the interest of the proceeds of her share of the real estate, which was sold after her death. His right became perfect upon lier death, and he was seized in fact, by the seisin and possession of the co-devisees, as tenants in common with her, and claiming only their undivided shares with her under the will. It will, therefore, be the duty of the defendants to place the sum of $1,046.36 at interest, on good real security, or invest it in public stock, and pay the interest thereof to William West, as the same shall from time to time, accrue, during his natural life ; and the plaintiffs, and their lawful representatives, will be entitled to the principal, upon his death. The case of Sweetapple V. Bindon, 2 Vem. 536f contains the rule applicable to this case, allowing the interest of money to be settled upon the tenant by the courtesy, in lieu of the profits of the land. 3. The only remaining point in the case is as to costs. It does not follow, as an inevitable consequence, that executors must pay costs in all cases where they must pay interest ; though the general rule is, that they must pay costs when they pay interest, because they are in default. 1 Ves. Jr. 294; 7 Ves. 129; 11 Ves. 61, 582; 13 Ves. 402. If the demand of the plaintiffs had been confined to the sum of $685.47, the defendants ought to have paid costs ; but the demand went further, and embraced a larger sum, to which the plaintiffs are not entitled until the death of the tenant by the courtesy. That demand has been successfully resisted, and it was a question properly submitted by the executors to the direction of the court. Under the circumstances of the c^se, T cannot allow costs to either party, as against the other. Decree accordingly. AMES V. RICHARDSON. (29 Minn. 330.) [Supreme Court of Minnesota, 1882.] Berry, J. On December 16, 1879, Cochran, being owner of a piece of land in this State, insured a mill, machinery and fixtures therein against damage by fire, in the Western Manufacturers' Mutual Insurance Company, for $2,000. December 18, 1879, he borrowed of defendant $5,200, for which he gave his promissory note on five years, secured by a mortgage of the land mentioned. 160 AMES V. RICHARDSON. [CHAP. II. which was duly recorded December 22d. By the terms of the mortgage Cochran covenanted with Richardson that at all times during its continuance he would keep the buildings on the prem- ises "unceasingly insured" for at least $5,200, payable in case of loss to Richardson, to the amount then secured by the mort- gage. December 28, 1879, Cochran insured the mill, machinery and fixtures for $1,500 in one company, and for $2,000 in another, and, by indorsement upon each of the two policies issued to him, the loss was made playable to Richardson, as her interest might appear. On July 9, 1880, while the three insurances were in force, the insured property was totally destroyed by fire. Before this Richardson had no knowledge of the first insurance. The loss was adjusted by Cochran and the three insurance companies at $4,298.03, as the true value of the property destroyed. The result was that the losses payable to Richardson were scaled from $3,500 (the face of the last two policies) to $2,442.20, and this sum was paid to her and applied on the note. The loss under the first insur- ance was scaled and adjusted at $1,317.70, and that sum agreed to be paid Cochran accordingly. This was done July 19, 1880, and on the same day the certificate which had been issued to Cochran by the Western Manufacturers' Mutual Insurance Com- pany, in lieu of a policy, was for a valuable consideration duly assigned to the plaintiffs. They brougji^ this action against the insurance company to recover .the amount of the loss as adjusted at $1,317.70. Nothing having been paid upon Richardson's note and mortgage other than the sum of $2,442.20 before mentioned, and the whole debt having been declared due under a provision in the mortgage, there remains due and unpaid thereon something over $3,000. Richardson laying claim to the money ($1,317.70) realized from the first insurance, the company paid it into court, and Richardson was substituted as defendant in the company's place. The question is, who is entitled to this money — ^plaintiffs or Richardson?, It is well settled that, in the absence of an agreement by a mort- gagor to insure for the benefit of his mortgagee, the latter has no right to any advantage whatever from an insurance upon the mortgaged property effected by the former for his own benefit. 1 Jones, Mortg. § 401 ; Nichols v. Baxter, 5 R. I. 491 ; Plimpton V. Ins. Co., 43 Vt. 497; May, Ins. §§ 449, 456; Carter v. Rockett, etc., Ins. Co., 8 Paige, 437. It is equally well settled that an agreement by the mortgagor to insure for the benefit of his mortgagee gives the latter an CHAP. II.] AMES V. RICHARDSON. 161 equitable lien upon the proceeds of a policy taken out by the for- mfer and embraced in the agreement. And when the agreement is that the mortgagor shall procure insurance upon the mortgaged property, payable in case of loss to the mortgagee, and the mort- gagor, or some one for him, procures insurance in the mort- gagor's or a third person's name, without making it payable to the mortgagee, though this be done without the mortgagee's knowledge, or without any intent to perform the agreement, equity will treat the insurance as dfected under the agreement (unless this has been fulfilled in some other way) and will give the mortgagee his equitable lien accordingly. This is upon the principle by which equity treats that as done which ought to have been done. That is to say, inasmuch as the insurance effected ought to have been made payable to the mortgagee, equity will give the mortgagee the same benefit from it as if it had been. In sup- port of these general propositions we refer to Thomas v. Von- kapff, 6 Gill & J. 372 ; Carter v. Rockett, etc., Ins. Co. and Nich- ols V. Baxter, supra; Wheeler v. Ins. Co., 101 U. S. 439 ; Crom- well y. Brooklyn Fire Ins. Co., 44 N. Y. 42 ; Miller v. Aldrich, 31 Mich. 408; 1 Story, Eq. Jur. § 64g; 2 Am. Lead. Cas. (5th Ed.) 832-4; In re Sands Ale Brewing Co., 3 Biss.175, Fed. Cas. No. 12,307. In the cases cited (with the exception of Nichols v. Baxter) the insurance was effected after the agreement to insure. In Nich- ols v. Baxter it would seem that the court thought this made no dif- ference, though the opinion alludes (somewhat as a makeweight, as it occurs to us) to the fact, which appeared by inference only, that the insurance in that case, though effected before the agree- ment to insure, was understood by the parties to be embraced in it. We, however, can see no reason why the same rule should not be applicable to insurance already subsisting when the agree- ment to insure is made, as to that subsequently obtained, unless this result is affirmatively excluded by the facts of the case. Such subsisting insurance can be made payable to the mortgagee, or assigned to him, so as to satisfy the agreement. Where the agree- ment is, as is the case at bar, "to keep" the premises insured, it is entirely consistent with its letter as well as its spirit to hold that it embraces prior as well as subsequent insurance. And where, as in the present instance, the value of the insured property is such that subsequent insurance, sufficient to satisfy the agree- ment, cannot be obtained so long as the prior insurance stands, this is an equitable circumstance entitled to great weight upon 162 AMES V. RICHARDSON. [CHAP. II. the question whether the prior insurance ought to be held to be covered by the agreement. This equitable circumstance is miich enhanced when the effect of the prior insurance is, as in this case, to scale and reduce the subsequent insurance procured and made payable to the mortgagee Tinder the agreement. In such a state of facts, to permit the mortgagor to withhold the prior insurance from the mortgagee is to permit him to profit by his own wrong, at the expense of him whom he has wronged, and a violation of one of the first principles of law as well as of equity. The question is not what the mortgagor's intention was with reference to the prior insurance, but whether it was equitable that, in carrying out any intention, he should be permitted to withhold the benefits from the mortgagee, especially in view of the maxim that equity regards that as done which ought to have been done. Cromwell v. Brooklyn Fire Ins. Co., Wheeler v. Ins. Co., Miller v. Aldrich, and In re Sands Ale Brewing Co., supra. Applying these considerations to this case, we are of opinion that Richardson is clearly entitled to an equitable lien upon the proceeds of the first insurance, to be applied upon her note and mortgage. Cochran ought to have kept his covenant. He could have done this by procuring a third new policy, or by assigning the first insurance, or having it made payable to Richardson. As he did not do the former, he should have done the latter, and therefore Richardson is in equity entitled to stand in the same position as if he had done what he ought to have done, Stearns v. Quincy Ins. Co., 124 Mass. 61, relied upon by the plaintiffs, is not a case presenting the precise question whether an insurance effected before an agreement to insure is to be regarded as embraced in such agreement, so as to give a mort- gagee an equitable lien on the proceeds. But the principle there enunciated, and which appears to be supported by other decisions of that State, is that the mortgagee cannot have the lien unless the insurance was obtained by the mortgagor as his agent, or with intent to perform an agreement to insure. If this was to be re- garded as the correct rule, it would seem to be decisive in the plaintiff's favor. But it is against the weight and current of authority, and, as it seems to us, inequitable, and therefore we do not follow it. Another question was discussed upon the argument, viz., whether the covenant tp insure ran with the land, so that the record of the mortgage was constructive notice to the plaintiff and to all others of Richardson's (the mortgagee's) equities. We CHAP. II.] CRAIG V. LESLIE. 163 .do not deem it at all necessary to consider this question. The mortgagor's assignment of his claim under the certificate after the loss was an assignment of a debt — a mere chose in action — which the plaintiffs took subject to all defences and equities against him. Archer v. Merchants' & M. Ins. Co., 43 Mo. 434; Wilson V. Hill, 3 Met. 66; Brichta v. N. Y. Lafayette Ins. Co., 2 Hall (N. Y.), 372; Mellen v. Hamilton Fire Ins. Co., 17 N. Y. 609; Greene v. Warnick, 64 N. Y. 220; May, Ins. § 386. From all this it follows that, in our opinion, the defendant is entitled to the proceeds of the first insurance paid into the court, instead of the plaintiffs, as found by the court below. There being no dispute as .to the correctness of the findings of fact, the case is remanded, with directions to the District Court to render judgment for the defendant accordingly. Though there is no formal reversal of the order denying a new trial, the defend- ant is entitled to costs, as of course. CRAIG V. LESLIE. (3 Wheat. 563.) [Supreme Court of the United States, 1818.] Robert Craig's will contained the following clause: "I give and bequeath to my brother, Thomas Craig, of Baith Parish, Ayrshire, Scotland, all the proceeds of my estate, both real and personal, which I have herein directed to be sold, to be remitted to him, according as the payments are made." Thomas Craig being an alien, the question was, could he take the proceeds of this land, which had been devised to one Leslie, in trust, the pro- ceeds from the sale of which were to be paid to him ? Mr. Justice Washington delivered the opinion of the court. The incapacity of an alien to take, and to hold beneficially, a legal or equitable estate in real property, is not disputed by the counsel for the plaintiff ; and it is admitted by the counsel for the State of Virginia, that this incapacity does not extend to personal es- tate. The only inquiry, then, which this court has to make is, whether the above clause in the will of Robert Craig is to be construed, under all the circumstances of the case, as a bequest 164 CRAIG V. LESLIE. fCHAP. II. to Thomas Craig of personal property, or as a devise of the land itself. Were this a new question, it would seem extremely difficult to raise a doubt respecting it. The common sense of mankind would determine, that a devise of money, the proceeds of land directed to be sold, is a devise of money, notwithstanding it is to arise out of land; and that a devise of land, which a testator by his will directs to be purchased, will -pass an interest in the land itself, without regard to the character of the fund out of which the purcha,se is to be made. The settled doctrine of the courts of equity corresponds with this obvious construction of wills, as well as of other instruments,, whereby land is directed to be turned into money, or money into land, for the benefit of those for whose use the conversion is intended to be made. In the case of Fletcher v. Ashburner, 1 Brown, Ch. 497, the master of the rolls says, that "nothing is better established than this principle, that money directed to be employed in the purchase of land, and land directed to be sold and turned into money, are to be considered as that species of property into which they are directed to. be converted, and this, in whatever manner the direction is given." He adds, "the owner of the fund, or the contracting parties, may make land money or money land. The cases establish this rule universally." This dec- laration is well warranted by the cases to which the master of the rolls refers, as well as by many others.' See Doughty v. Bull, 2 P. Wms. 320 ; Yates v. Compton, Id. 308 ; Trelawney v. Booth, 2 Atk. 307. The principle upon which the whole of this doctrine is founded is, that a court of equity, regarding the substance, and not the mere forms and circumstances of agreements and other instru- ments, considers things directed or agreed to be done, as having been actually performed, where nothing has intervened which ought to prevent a performance. This qualification of the more concise and general rule, that equity considers that to be done which is agreed to be done, will comprehend the cases which' come under this head of equity. Thus, where the whole beneficial interest in the money in the one case, or in the land in the other, belongs to the person for whose use it is given, a court of equity will not compel the trus- tee to exedute the trust against the wishes of the cestui que trust, but will permit him to take the money or the land, if he elects to do 50 before the conversion has actually been made; and this CHAP. II.] CRAIG V. LESLIE. 165 election he may make, as well by acts or declarations, clearly in- dicating a determination to that effect, as by application to a court of equity. It is this election, and not the mere right to make it, which changes the character of the estate so as tO' make it real or personal, at the will of the party entitled to the beneficial interest. If this election be not made in time to stamp the property with a charter different from that which the will or other instrument gives it, the latter accompanies it, with all its legal consequences, into the hands of those entitled to it in that character. So that in case of the death of the cestui que trust, without having deter- mined his election, the property will pass to his heirs or personal representatives, in the same manner as it would have done had the trust been executed, and the conversion actually made in his life time. In the case of Kirkman v. Milles, 3 Ves. 338, which was a de- vise of real estate to trustees upon trust to sell, and the moneys arising as well as the rents and profits till the sale, to be equally divided between the testator's three daughters, A, B and C. The estate was, upon the death of A, B and C, considered and treated as personal property, notwithstanding the cestui que trusts, after the death of the testator, had entered upon and occupied the land for about two years prior to their deaths ; but no steps had been taken by them, or by the trustees, to sell, nor had any requisition to that effect been made by the former to the latter. The master of the rolls was of opinion, that the occupation of the land for two years was too short to presume an election. He adds : "The opinion of Lord Rosslyn, that property was to be taken as it hap- pened to be at the death of the party from whom the representa- tive claims, had been much doubted by Lord Eldon, who held that without some act, it must be considered as being in the .state in which it ought to be; and that Lord Rosslyn's rule was new, and not according to the prior cases." The same doctrine is laid down and maintained in the case of Edwards v. Countess of Warwick, 2 P. Wms. 171, which was a covenant on marriage to invest £10,000, part of the lady's fortune, in the purchase of land in fee, to be settled on the husband for life, remainder to his first and every other son in tail male, re- mainder to the husband in fee. The only son of this marriage having died without issue, and intestate, and the investment of the money not having been made during his life, the chancellor decided that the money passed to the heir at law ; that it was in 166 CRAIG V. LESLIE. [CHAP. II. the election of the son to have made this money, or to have dis- posed of it as such, and that, therefore, even his parol disposition of it would have been regarded ; but that something to determine the election must be done. This doctrine, so well established by the cases which have been referred to, and by many others which it is unnecessary to men- tion,, seems to be conclusive upon the question which this court is called upon to decide, and would render any further investi- gation of it useless, were it not for the case of Roper v. RadcUffe, which was cited, and mainly relied upon, by the counsel for the State of Virginia. The short statement of that case is as follows: John Roper conveyed all his lands to trustees and their heirs, in trust, to sell the same, and out of the proceeds, and of the rents and profits till sale, to pay certain debts, and the overplus or the money to be paid as he, the said John Roper, by his will or otherwise, should appoint, and for want of such appointment, for the benefit of the said John Roper, and his heirs. By his will reciting the said deed, and the power reserved to him in the surplus of the said real est- tate, he bequeathed several pecuniary legacies, and then gave the residue of his real and personal estate to William Constable and Thomas Radcliffe, and two others, and to their heirs. By a codicil to this will, he bequeathed other pecuniary legacies ; and the re- mainder, whether in lands or personal estate, he gave to the said W. C. and T. R. Upon a bill filed by W. C. and T. R. against the heir at law of John Roper, and the other trustees, praying to have the trust exe- cuted, and the residue of the money arising from the sale of the lands to be paid over to them ; the heir at law opposed the execu- tion of the trust, and claimed the land as a resulting trust, upon the ground of the incapacity of Constable and Radcliife to take, they being papists. The decree of the court of chancery, which was in favor of the papists, was, upon appeal to the House of Lords, reversed, and the title of the heir at law sustained; six judges against five, being in his favor. Without stating at large the opinion upon which the reversal took place, this court will proceed. 1st. To examine the general principles laid down in that opinion ; and then, 2d, the case itself, so far as it has been pressed upon us as an authority to rule the question before the court. In performing this part of this undertaking, it will not be neces- sary to question any one of the premises laid down in that opin- CHAP. II.] CRAIG V. LESLIE. 167 ion. They are: "1. That land devised to trustees, to sell for pay- ment of debts and legacies, is to be deemed as money. This is the general doctrine established by all the cases referred to in the preceding part of this opinion. 2. That the heir at law has a resulting trust in such land, so far as it is of value, after the debts and legacies are paid, and that he may come into equity and restrain the trustee from selling more than is necessary to pay the debt and legacies; or he may offer to pay them himself, and pray to have a conveyance of the part of the land not sold in the first case, and the whole in the latter, which property will, in either case, be land, and not money. This right to call for a conveyance is very correctly styled a privilege, and it is one which ■ a court of equity will •never refuse, unless there are strong reasons for refusing it. The whole of this doctrine proceeds upon a principle which is incontrovertible, that where the testator merely directs the real estate to be converted into money, for the pur- poses directed in his will, so much of the estate, or the money aris- ing from it, as is not effectually disposed of by the will (whether it arise from some omission or defect in the will itself, or from any subsequent accident, which prevents the devise from taking effect), results to the heir at law, as the old use not disposed of. Such was the case of Cruse v. Barley, 3 P. Wms. 20, where the testator having two sons, A and B, and three daughters, devised his lands to be sold to pay his debts, etc., and as to the moneys arising by the sale, after debts paid, gave £200 to A, the eldest ^n, at the age of 21, and the residue to his>four younger children. A died before the age of 21, in consequence of which the bequest to him failed to take effect. The court decided that the £200 should be considered as land to descend to the heir at law of the testator, because it was in effect the same as if so much land as was of the value of £200 was not directed to be sold, but was suffered to descend. The case of Ackroyd v. Smithson, 1 Brown Ch. 503, is one of the same kind, and establishes the same prin- ciple. So, likewise, a moiiey provision under a marriage contract, to arise out of land, which did not take effect, on account of the death of the party for whose benefit it was intended, before the time prescribed, resulted as money to the grantor, so as to pass under a residuary clause in his will. Hewitt v. Wright, 1 Brown Ch. Cas. 86. But even in cases of resulting trusts, for the benefit of the heir at law, it is settled that if the intent of the testator appears to haye been to stamp upon the proceeds of the land described to 168 CRAIG V. LESLIE. [CHAP. II. be sold, the quality of personalty, not only to subserve the par- ticular purposes of the will, but to all intents, the claim of the heir at law to a resulting trust is defeated, and the estate is con- sidered to be personal. This was decided in the case of Yates v. Compton, 2 P. Wms. 308, in which the chancellor says, that the intention of the will was to give away all from, the heir, and to turn the land into personal estate, and that that was to be taken as it was at the testator's death, and ought not be altered by any subsequent accident, and decreed the heir to join in the sale of the land, and the money arising therefrom to be paid over as personal estate to the representative of the annuitant, and to those of the residuary legatee. In the case of Fletcher v. Ashburner, before referred to, the suit was brought by the heir at law of the testator, against the personal representatives and the trustees claiming the estate upon the ground of a resulting trust. But the court decreed the property, as money, to the personal repre- sentatives of him to whom the beneficial interest in the money was bequeathed, and the master of the rolls observes, that the case of Emblyny. Freeman, and Cruse v. Barley, are those where real estate being directed to be sold, some part of the disposition has failed, and the thing devised has not accrued to the representa- tive, or devisee, by which something has resulted to the heir at law. It is evident, therefore, from a view of the above cases, that the title of the heir to a resulting trust can never arise, except when something is left undisposed of, either by some defect in the will, or by some subsequent lapse, which prevents the devise from taking effect ; and not even then; if it appears that the inten- tion of the testator was to change the nature of the estate from land to money, absolutely and entirely, and not mprely to serve the purpose of the will. But the ground upon which the title of the heir rests is, that whatever is not disposed remains to him, and partakes of the old use, as if it had not been directed to be sold. The third proposition laid down in the case of Roper v. Rad- cliffe, 9 Mod. 167, is, that equity will extend the same privilege to the residuary legatee which is allowed to the heir, to pay the debts and legacies, and call for a conveyance of the real estate, or to restrain the trustees from selling more than is necessary to pay the debts and legacies. This has, in effect, been admitted in the preceding part of this opinion; because, if the cestui que trust of the whole beneficial CHAP. II.] CRAIG V. LESLIE. 169 interest in the money lo arise from the sale of the land, may claim this privilege, it follows, necessarily, that the residuary legatee may, because he is, in effect, the beneficial owner of the whole, charged with the debts and legacies, from which he will be per- mitted to discharge it, by paying the debts and legacies, or may claim so much of the real estate as may not be necessary for that purpose. But the court cannot accede to the conclusion, which, in Roper V. Radcliffe, is deduced from the establishment of the above prin- ciples. The conclusion is, that in respect to the residuary legatee, such a devise shall be deemed as land in equity, though in respect to the creditors and specific legatees it is deemed as money. It is admitted, with this qualification, that if the residuary legatee thinks proper to avail himself of the privilege of taking it as land, by making an election in his lifetime, the property will then assume the character of land. But if he does not make this election, the property retains the character of personalty to every intent and purpose. The cases before cited seem to the court to te conclu- sive upon this point; and none were referred to, or have come under the view of the court, which sanction the conclusion made in the unqualified terms used in the case of Roper v. Radcliffe. As to the idea that the character of the estate is affected by this right of election, whether the right be claimed or not, it appears to be as repugnant to reason, as we think it has been shown to be, to principle and authorities. Before anything can be made of the proposition, it should be shown that this right of privilege of election is so indissolubly United with the devise, as to constitute a part of it, and that it may be exercised in all cases, and under all circumstances. This was, indeed, contended for with great ingenuity and abilities by the counsel for the State of Virginia, but it was not proved to the satisfaction of the court. It certainly is not true, that equity will extend this privilege in all cases to the cestui que trust. It will be refused if he be an infant. In the case of Seeley v. Jago, 1 P. Wms. 389, where money was devised to be laid out in land in fee, to be settled on A, B and C, and their heirs, equally to be divided : On the death of A, his infant heir, together with B and C, filed their bill, claiming to have the money, which was decreed accordingly as to B and C ; but the share of the infant was ordered to be put out for his benefit, and the reason assigned was, that he was incapable of making an election, and that such election, if permitted, would, in case of his death, be prejudicial to his heir. 170 ■ CRAIG V. LESLIE. [CHAP. II, In the case of Foone v. Blount, Cowp. 467, Lord Mansfield, who is compelled to acknowledge the authority of Roper v. Rad- cliffe in parallel cases, combats the reasoning, of Chief Justice Parker upon this doctrine of election, with irresistible force. He suggests, as the true answer to it, that though in a variety of cases this right exists, yet it was inapplicable to the case of a person who was disabled by law from taking land, and that there- fore a court of equity would, in such a case, decree that he should take the property as money. This case of Walker v. Denne, 2 Ves. Jr. 170, seems to apply with great force to this part of our siibject. The testator directed money to be laid out in lands, tenements, and hereditaments, or on long terms, with limitations applicable to real estate. The money not having been laid out, the crown, on failure of heirs, claimed the money as land. It was decided that the crown had no equity against the next of kin to have the money laid out in real estate in order to claim it by escheat. It was added that the devisees, on becoming absolutely entitled, have the option given by the will; and a deed of appointment by one of the cestui que trusts, though a femme covert, was held a sufficient indication of " her intention that it should continue personal against her heir claiming it as ineffectually disposed of for want of her examina- tion. This case is peculiarly strong, from the circumstance, that the election is embodied in the devise itself; but this was not enough, because the crown had no equity to force an election to be made for the purpose of producing an escheat. Equity would surely proceed contrary to its regular course, and the principles which universally govern it, to allow the right of election where it is desired, and can be lawfully made, and yet refuse to decree the money upon the application of the alien, upon no other reason, but because, by law, he is incapable to hold the land : In short, to consider him in the same situation as if he had made an election, which would have been refused had he. asked for a conveyance. The more just and correct rule would seem to be, that where the cestui que trust is incapable to take or to hold the land beneficially, the right of election does not exist, and consequently, that the property is to be considered as being of that species into which it is directed to be converted. Having made these observations upon the principles laid down in the case of Roper v. Radcliffe, and upon the arguments urged at the bar in support of them, very few words will suffice to show that, as an authority, it is inapplicable to this case. CHAP. II.] CRAIG V. LESLIE. 171 The incapacities of a papist under the English statute of 11 & 12 Wm. III., c. 4, and of an alien at common law, are extremely dissimilar. The former is incapable to take by purchase, any lands, or profits out of lands ; and all estates, terms, and any other inter- ests or profits whatsoever out of lands, to be made, suffered, or done, to, or for the use of such person, or upon any trust for him, or to, or for, the benefit, or relief of any such person, are declared by the statute to be utterly void. Thus, it appears that he cannot even take. His incapacity is not confined to land, but to any profit, interest, benefit or relief, in or out of it. He is not only disabled from taking or having the benefit of any such interest, but the will or deed itself, which attempts to pass it, is void. In Roper v. Radcliffe, it was strongly insisted, that the money given to the papist, which was to be the proceeds of the land, was a profit or interest out of the land. If this be so (and it is not material in this case to affirm or deny that position), then the will of John Roper in relation to the bequest 6i the two papists, was void under the statute ; and if so, the right of the heir at law of the testator, to the residue, as a resulting trust, was incontestable. The cases above cited have fully established that principle. In that case, too, the rents and profits, till the sale, would have belonged to the papists, if they were capable of taking, which brought the case still more strongly within the statute; and this was much relied on, not only in reasoning upon the words, but the policy of the statute. Now, what is the situation of an alien? He cannot only take an interest in land, but a freehold interest in the land itself, and may hold it against all the world but the king, and even ag'ainst him until office found, and he is not accountable for the rents and profits previously received. In this case the will being valid, and the alien capable of taking under it, there can be no resulting trust to the heir, and the claim of the state is founded solely upon a supposed equity, to have the land by escheat as if the alien had, or could upon the principles of a court of equity, have elected to take the land instead of the money. The points of dif- ference between the two cases are so striking that it would be a waste of time to notice them in detail. It may be further observed, that the case of Roper v. Radcliffe has never, in England, been applied to the case of aliens ; that its authority has been submitted to with reluctance, and is strictly confined in its application to cases precisely parallel to it. Lord Mansfield in the case of Foone v. Blount, speaks of it with marked 172 STRONG V. WILLIAMS. [CHAP. II. disapprobation ; and we know, that had Lord Trevor been present, and declared the opinion he had before entertained, the judges would have been equally divided. The case of the Attorney General and Lord Weymouth, Amb. 20, was also pressed upon the court, as strongly supporting that of Roper v. Radcliffe, and as bearing upon the present case. The first of these propositions might be admitted; although it is certain that the mortmain act, upon which that case was decided,- is even stronger in its expression than the statute against papists, and the chancellor so considers it; for he says, whether the sur- plus be considered as money or land, it is just the same thing, the statute making void all charges and encumbrances on land, for the benefit of a charity. But, if this case were, in all respects, the same as Roper v. Radcliffe, the Observations which have been made upon the latter would all apply to it. It may be remarked, however, that in this case, the chancellor avoids expressing any opinion upon the ques- tion, whether the money to arise from the sale of the land, was to be taken as personalty or land; and, although- he mentions the case of Roper v. Radcliffe, he adds that he does not depend upon it, as it is immaterial whether the surplus was to be considered as land or money under the mortmain act. Upon the whole we are unanimously of opinion, that the legacy given to Thomas Craig, in the will of Robert Craig, is to be considered as a bequest of personal estate, which he is capable" of taking for his own benefit. Certificate accordingly. STRONG V. WILLIAMS. (\2 Mass. 391.) [Supreme Judicial Court of Massachusetts, 1815.] Putnam, J., delivered the opinion of the court. The general rule anciently established in chancery was, that when a testator being indebted gave to his creditor a legacy equal to, or exceeding the amount of his debt, the legacy should be considered as a satisfaction for the debt. The rule has been acknowledged in later cases, but with marks of disapprobation, and a disposition tOTestrain its operation in all cases where, from circumstances to be collected from the will, it might be inferred CHAP. II.] STRONG V. WILLIAMS. 173 that the testator had a different intention. Haynes v. Mico, I Bro. Cha. Ca. 131. Thus where the testator left a sufficient estate, it was determined that he was to be presumed, to have been kind as well as just. So if the legacy was of a less sum than the debt; or of a different nature ; or upon conditions ; or not equally bene- ficial in some one particular, although more so in another. All the cases agree that the intention of the testator ought to prevail ; and that, prima facie at least, whatever is given in a will is to-be intended as a bounty. But by later cases the courts have not been disposed to understand the testator as meaning to pay a debt, when he declares that he makes a gift ; unless the circumstances of the case should lead to a different conclusion. Thus in the case cited for the plaintiff. Brown v. Dawson, 2 Vern. 498, where the wife joined in the sale of her jointure, and the husband gave her a note of 71. lOs. per annum for her life ; and afterwaVds upon another such sale he gave her a bond for 61. IOj. per annum for her life ; and he afterwards made his will, and gave her 14/. per annum for life : the legacy was adjudged . to be a satisfaction for the note and bond. Here it will be per- ceived that the annuity given in the will amounted exactly to the sums secured by the bond and note : and the presumption of satis- faction proceeded upon the similitude of the legacy to the debt. 2 Fonbl. 330, in notis. So in the case of Fowler v. Fowler, 3 P. Will. 353, the general rule was applied. There the husband, being indebted to the wife for arrears due by the marriage settle- ment, gave her a larger legacy by the will: and it was held a satisfaction of the debt. But it is to be observed that Lord Chan- cellor Talbot expressed great dissatisfaction with the rule: and it does not appear that any circumstances could be found, to take the case out of its general application. la that case the court refused parole evidence, to prove that the testator intended both should be paid. But cases of this nature must depend upon the circumstances : and there must be a strong presumption, to induce a belief that the testator intended the legacy as a payment, and not as a bounty. 2 Fonbl. 332. Thus where the testatrix had given her servant a bond for 20/. free of taxes for her life, and afterwards made her will and gave the servant 20/. per annum payable half yearly, but said nothing about the taxes, the court held that both should be paid. Atkins v. Webb, 2 Vern. 478. — Here the legacy, being not quite so beneficial as the debt, did not raise a presumption that it was intended as a payment. 174 STRONG V. WILLIAMS. [CHAP. II. So where the testator having sufficient assets, and having mani- fested great kindness for the legatee, gave a legacy of a greater amount than he owed, it was holden by Lord Chancellor Cowper, that the testator might be presumed to be kind as well as just; and he decreed the payment of the legacy as well as the debt. Cufhbert v. Peacock, 1 Salk. 155. It has been holden that a legacy for a less sum than the debt shall never be taken as satis- faction ; 2 Salk. 508 ; and that specific things devised are never to be considered as satisfaction of a debt, unless so expressed. 2 Eq. Ca. Abr. title Devises pi. 21, cited Bac. Abr. Legacies D. Sp the circumstance, that the testator had devised "that all his debts and legacies should be paid," was holden sufficient to take the case out of the general rule: as where the testator, indebted to his maid servant 100/, by bond for wages, afterwards gave her 500/, Lord Chancellor King decreed that both should be paid, as the testator had made provision for the payment of his debts. 1 P. Will. 408, 409, vide note. - So where it appeared that the legatee had lived with the testa- trix as a servant for twenty or thirty years, and she had given her a bond for 260/. and in one month afterwards she made her will and gave her 500/. ; and in another clause she gave the rest of her servants 5/. apiece, but not to Jane Greese, the legatee ; "because," said the testatrix, "I have done well for her before ;" and she also made provision for her debts and legacies. Lord Hardwicke thought the circumstances above stated took the case out of the general rule, and decreed the legacy to be no satisfaction for the debt. Richardson v. Greese, 3 Atk. 65 ; Nicholls v. Judson, S. P., 2 Atk. 301 ; Clark v. Sewell, S. P., 3 Atk. 97. So where the testator was indebted for goods on an open ac- count, a legacy for a larger sum was not held a satisfaction : be- cause he might not know whether he was indebted or not; and therefore no presumption was to arise, that he intended merely to pay a debt. Powel's Case, 1 P. Will. 299; 10 Mod. Case No. 201, p. 398. In the case at bar, the considei-ation for the legacy appears from the will to have been for the services of the legatee. A presumption that the legacy was intended to be a satisfaction of the bond also, must rest on the fact that the bond was given for the same services: of which fact there is no evidence before us. It may have been for a different cause. We can only presume that it was for a lawful one. It appears also from the will, that the testator intended his CHAP. II.] STINCHFIELD V. MILLIKEN. 175 debts and legacies should be paid, before his residuary legatees should take anything. The pecuniary legacy to the plaintiff also is not so much as the debt ; and therefore cannot be considered as a payment of it. Neither is there any declaration of the testator, that the specific articles given should be considered as a satisfac- tion of the debt. It appears also that there are sufficient assets. From a consideration of the principles and decisions applicable to .this case, we are therefore all of opinion that the plaintiff ought to recover. _ - Defendant defaulted. WILCOCKS V. WILCOCKS. (2 Vern. 558.) [High Court of Chancery, 1706.] Where a party covenants, on his marriage, to purchase lands and settle them upon certain persons, and, aiter purchasing lands, dies without making the settlement, but the lands descend by law to the said persons, the descent of the lands will be regarded in equity as a satisfaction of the covenant. STINCHFIELD v. MILLIKEN. (71 Me. 567.) [StrpREME Judicial Court of Maine, 1880.] Peters, J. The following facts are deducible from the evi- dence in this case : The complainant purchased of the defendants, certain steam mill machinery, for removal from Hallowell to Danforth, in this State. There was at the time a verbal agree- ment that the complainant should build a mill, and put the machinery into it, on a lot of land in Danforth, bought by him of one Russell, who was to deed the lot directly to the defendants. The complainant was also to procure a deed of his home (an- other) lot to the defendants from the heirs of H. E. Prentiss, who held an absolute title thereof as security for the complain- ant's indebtedness to them, there being a small balance only un- 176 STINCHFIELD V. MILLIKEN. [CHAP. II. paid, which the defendants were to pay for him. The defendants were to give an agreement, to convey to the complainant if he paid his indebtedness to them according to the tenor of certain .;50tes to be given. On June 15, 1875, the complainant gave to the defendants a mortgage on the machinery ag personal property to secure the notes hereafter named, in order to protect a lien thereon until the machinery should be put into the mill to be built, and become a part of the real estate. And there was embodied in this mort- gage, an agreement of the complainant to build the mill and put the machinery into it. On June 16, 1875, Russell conveyed the mill lot to the defendants. On August 2, 1875, Prentiss con- veyed the home lot" to them, they paying the balance of the Pren- tiss claim. On August 4, 1875, the defendants gave a writing to the complainant, agreeing to convey the property to him upon the condition that he would pay to them his notes on one, two, three, and five years, respectively, with interest. The notes were given for the amount payable for the machinery, the sum paid to Prentiss, and for other loans and advances. The complainant went on and erected and completed a mill on the Russell lot, and the steam mill machinery became a part of it. The complainant seeks to redeem the property, claiming the transaction to be a mortgage. The defendants contend that the transaction was not a mortgage, that it was a conditional sale. It was not a legal mortgage: Because the defeasance has no seal. Warren v. Lovis, 53 Maine, 463. And because the papers were not between tlie same parties. At law, the conveyance must be made by the mortgagor and the defeasance by the mortgagee. Shaui V. Erskine, 43 Maine, 371. But the transaction was in equity a mortgage — an equitable mortgage. The criterion is the intention of the parties. In equity, this intention may be ascertained from all pertinent facts either, within or without the written parts of the transaction. Where the intention is clear that an absolute conveyance is taken as a security for a debt, it is in equity a mortgage. No matter how much the real transaction may be covered up and disguised. The real intention governs. "If a transaction resolve itself into a security, whatever may be its form, and whatever name the par- ties may choose to give it, it is in equity a mortgage." Flagg v. Mann, 2 Sumn. 533, Fed. Cas. No. 4,847. The existence of a debt is well nigh an infallible evidence of the intention. The intention here is transparent. The defendants CHAP. II.] STINCHFIELD V. MILLI-KEN. 177 have a debt and held the property as a security for its collection. A legal mortgage was avoided ; an equitable mortgage was made. Although different at law, in equity a mortgage is not pre- vented because the conveyance does not come from the equitable mortgagor. It is sufficient that the debtor has an interest in the property conveyed, either legal or equitable. Having such an interest, if he procures a conveyance to one who advances money upon it for him, taking the property as security for the money advanced, he has a right to redeem. The grantee in such case, acquiring the title by his act, holds it as his mortgagee. Jones on Mort. 2d ed. § 331. Stoddard v. Whiting, 46 N. Y. 627; Carr v. Carr, 52 N. Y. 251. It is denied that this court has the power to declare that an absolute deed shall be deemed to be a mortgage, allowing an equitable mortgagor the right to redeem. At law, it has no such power. Nor, when the court had a limited jurisdiction in equity, was the doctrine admitted. It was always understood, however, that, in a case like the present, if, instead of a demurrer, an an- swer was filed admitting the facts alleged, the court had the power to apply the remedy. Thomaston Bank v. Stimpson, 21 Maine, 195; Whitney v. Bachelder, 32 Maine, 313; Howe v. Russell^ 36 Maine, 115; Richardson v. Woodbury, 43 Maine, 206. But since the act of 1874 conferred general . chancery powers upon the court, it has full and complete jurisdiction in such cases. Rowell V. Jewett, 69 Maine, 293-303; Jones, Mort. (2d ed.) § 282. Courts of equity generally exercise such power. While the grounds upon which the doctrine is admitted vary with different courts, there is a great concurrence of opinion as far as the result is concerned. In our judgment, it is a sound policy as well as principle to declare that, to take an absolute conveyance as a mortgage withoqt any defeasance, is in equity a fraud. Experi- ence shows that endless frauds and oppressions would- be per- petrated under such modes, if equity could not grant relief. It is taking an agreement, in one sense, exceeding and differing from the true agreement. Instead of setting it wholly aside, equity is worked out by adapting it to the purpose originally intended. Equity allows reparation to be made by admitting a verbal de- feasance to be proved. The cases which support this view are too numerous to cite. The American cases are collected in Jones, Mort. 2d ed. § 241, et seq. See Campbell v. Dearborn, 109 Mass. 130; and Hassam v. Barrett, 115 Mass. 256. The complainant seeks to separate the articles originally mort- is 178 STINCHFIELD V. MILLIKEN. [CHAP. II. gaged as personal property, and, being allowed the value of them, redeem the balance of the estate only. That would not be equita- ble. The personal became a part of the real as originally designed to be. It was affixed and solidly bolted thereto. The mortgage was evidently only to serve a temporary purpose. It was not just to either party that there should be two mortgages instead of one. It is urged that the defendants foreclosed the personal mortgage. It could not be done. The personal mortgage was ex- tinguished when attempted to be done. That was but a ruse to get the possession which the defendants were entitled to. No sever- ance was ever made or attempted to be made. It is intimated that the mill has burned down, pendente lite, under an insurance obtained by the defendants, and a question may arise, before the master, whether the complainant could have a credit of the net proceeds. If the insurance was obtained on the mortgagees' own account only, they should not be allowed. Gushing v. Thompson, 34 Maine, 496 ; Pierce v. Faunce, 53 Maine, 351. The head note in Larrabee v. Lambert, 32 Maine, 97, is erro- neous in that respect. It was allowed in that case by consent. Insurance Co. v. Woodbury, 45 Maine, 447. But where a mortgagee insures the property by the authority of the mortgagor, and charges him with the expense, then any insurance recovered should be accounted for. And if a mortgagor covenants to insure, and fails to do so, the mortgagee can himself insure at the mortgagor's expense. One of the defendants testifies that "Stinchfield agreed to pay all taxes and insurance." He also says, "We have had the house, stable and mill insured, and have paid the insurance, $108." We think this is evidence of an insurance obtained by the mortgagees at the expense of the mortgagor on account of his failure to keep his verbal covenant to insure, and renders it proper that the net proceeds of any insurance obtained should be allowed in the set- tlement between them. But this cannot be, if the insurance was collected under a policy in which it is agreed between the insured and insurer that the company in case of loss should be subrogated to the right of the mortgagee. For in such case the insurance is not in fact on the mortgagor's account, nor is it such an insurance as could be made available to him. Jones, Mort. (2d ed.) § 420, and cases in note. The complainant may redeem the whole property upon pay- ment of whatever may be due upon the whole debt. Inasmuch as the complainant sets up a claim exceeding the equitable right, CHAP. II.] HOWARD V. HARRIS. 179 neither party to recover costs up to the entry of this order ; and whether future costs shall be recovered by either side, to be re- served for decision when the proceedings are to be finally ter- minated. Another reason why complainant should not recover costs is, that when his bill was commenced the mortgage debt was not due. The mortgage could not be redeemed until 1880. The bill was commenced long before that time. But as the mort- gage is now due, and no point is taken that the proceeding was premature, it will probably be for the interest of all the parties that their matters may be adjusted under this bill. For which purpose a master must be appointed, unless the parties can best determine the accounts between themselves. Decree accordingly. Appleton, C. J., Walton, Danforth, Virgin, and Libbey, JJ., concurred. HOWARD V. HARRIS. {Wern. 190.) [Court of Chancery, 1683.] Mr. Howard settles a jointure on plaintiff, his lady before mar- riage, which proving defective, and not value according to the marriage agreement, he therefore afterward makes her an addi- tional jointure of other lands; and afterward Mr. Howard, in 1673, makes a mortgage to the defendant Harris, for securing il,000, with interest, in which (amongst others) part of the lands belonging to the additional jointure was comprised; and in the mortgage there is a special clause of redemption, viz., that if Mr. Howard, or the heirs males of his body, should, in June, 1686, pay the principal sura of £1,000, and £60 per ann. interest in the meantime, then Mr. Howard or the heirs males of his body might re-enter; and Mr. Howard covenants that no one but he or the heirs males of his body should be admitted to redeem this mortgage, and likewise covenants to pay the £1,000 on the day of , in the year 1686, and £60 per ann. interest in the meantime, by half yearly payrhents from the date of the mort- gage. Mr. Howard dies without issue. The plaintiff being a jointress of part of the mortgaged lands, and so entitled to re- deem the whole, in 1677 exhibits her bill to redeem this mort- gage. The defendant, by answer, insists the lands are now be- 180 HOWARD V. HARRIS. [CHAP. II. come irredeemable. This cause was heard before the Lord Chan- cellor Nottingham, and now, upon the defendant's petition, came to be reheard before the lord keeper, and was by them both de- creed for the plaintiff. For the plaintiff it was insisted: 1st. That restrictions of redemption in mortgages h^ve been always discountenanced in this court, and it would be a thing of mischievous consequence should they prevail; for then it would become a common practice and a trade among the scriveners so to fetter the mortgagors as to make it impracticable for them to redeem according to the precise letter of the agreement; and the plaintiff's counsel insisted that there was no more in this case against redemption than there was in every mortgage. It •is true, here is an express covenant that none but Mr. Howard, or the heirs males of his body, should redeem ; and in every mort- gage there is a. proviso that, in case the money be not paid by such a day, the mortgagee shall hold the land discharged, and, not only so, buf there is likewise an express covenant for further assurance; so that in every mortgage the agreement of the par- ties upon the face of the deed seems to be that a mortgage shall not be redeemable after forfeiture. 2dly. It was argued that it was a maxim here that an estate cannot at one time be a mortgage, and at another time cease to be so, by one and the same deed; and a mortgage can no more be irredeemable than. a distress for a rent charge can be irre- pleviable. The law itself will control that express agreement of the party; and by the same reason equity will let a man loose from his agreement, and will, against his agreement, admit" him to redeem a mortgage. 3dly. It is another standing rule that a mortgage cannot be a mortgage of one side only. And here it is plain, Mr. Harris may make it a mortgage, for he has a covenant for the repay- ment of his mortgage money. And for precedents was cited the case of Kilvington v. Gardiner, who was to redeem at any time in his lifetime, and Sir Robert Jason's Case {Jason v. Eyres, 2 Ch. Cas. 33). For the defendant it was insisted that this express agreement of the parties ought to be pursued, and they pretended the same was made upon good consideration, viz., that the defendant Har- ris had formerly purchased those very lands from Sir Robert Howard, father of the plaintiff's husband, who pretended himself to be seized in fee; but this land was afterward evicted, upon CHAP. II.] HOWARD V. HARRIS. 181 pretence that Sir Robert was only tenant for life ; and the reason of this special clause of redemption was that, in case Mr. How- ard should have issue male, the estate might remain in the family ; but, if he had none, it should be left to the defendant as some- thing toward a compensation for the loss in his purchase, and Mr. Harris was to submit to the loss, and not to question Mr. Howard's title. But, as to this, they had not &■ word of it in proof, saving only that the defendant had made such a purchase, but not that this was the consideration of the agreement ; and it like- wise appeared that Mr. Howard claimed by an ancient settle- ment from the Lord Suffolk, and not by any settlement made by his father. Sir Robert. Then it was insisted* that this additional jointure was voluntary and the plaintiff ought not to take the estate out of the hands of a purchaser. But it was answered he was a purchaser for no more than his mortgage money, and one that comes in by a voluntary conveyance may redeem a mortgage; and if the additional joint- ure was voluntary, so likewise was the agreement that none but Mr. Howard or the heirs males of his body, should redeem; and that was subsequent to the additional jointure. And it is further urged, that the mortgaged estate is a reversion after lives only, and is at present but £7 per ann. ; and that Mr. Harris did actually borrow the mortgage money to lend on this reversion; and it could not be presumed he would have so done, unless it had been in consideration that this mortgage had been made in a special manner redeemable. But it was answered that possibly the defendant might design such a catching bargain of this mort- gage ; but that was a sort of circumvention, and the worst part of the case. After long debate the lord keeper decreed the mortgage should be redeemed, the rather for that the defendant had a covenant for repayment of his mortgage moneys ; but said, if the case had been that a man had borrowed money of his brother, and had agreed to make him a mortgage, and that, if he had no issue male, his brother should have the land, ^such an agreement, made out by proof, might well be decreed in equity. But then, for the defend- ant, the mortgagee, it was insisted that, this mortgage having been made ten years since, and of a reversion, where £7 per ann. rent was only reserved, that in this case the defendant ought to have interest upon interest, otherwise he would be a great loser in this case. But as to that it was answered that .the plaintiff's bill to redeem was filed so long since as 1677, and that the defend- 182 PENN V. LORD BALTIMORE. [CHAP. II. ant had by answer opposed the redemption; and therefore, from that time, he had no pretence to an allowance of interest for his damages. And it was never known in this court that interest upon interest was at any time allowed in any case. But the lord keeper was clear of opinion that as to so much interest as was reserved in the body of the deed, that should be reckoned prin- cipal; for, it being ascertained by the deed, an action of debt would lie for it, and therefore it was reasonable that there should be /damages given for the non-payment of that money. And whereas it was urged that this had never been practiced, and that there was not any such precedent in the court, and that, if this were to be established for a rule, every scrivener would reserve all his interests half yearly, from time to time, as long as the money should be continued out upon the security, which would be to change the law and practice in this court, and make all mortgagors pay interest upon interest. But the lord keeper said he was clear in that distinction between debt and damages; and he saw no inconvenience that could ensue: it would serve only to quicken men to pay their just debts; and accordingly decreed that, after a deduction of the yearly rents of the mort- gaged premises out of the £60 a year, payable for the interest, the defendant should be allowed interest ■for the residue of the said i60 a year, for which the defendant might have sued at law and recovered damages. PENN V. LORD BALTIMORE. (1 Ves. Sr. 444.) [High Court of Chancery, 1750.] This bill was founded upon articles, entered into between the plaintiffs and defendant, concerning the boundaries of two prov- inces in America. The articles were executed in England, and the parties were residents of England when the bill was brought to enforce specific performance and execution of the articles. Lord Chancellor. First, the point of jurisdiction' ought in order to be considered ; and though it comes late, I am not un- willing to consider it. To be sure a plea to the jurisdiction must be offered in the first instance, and put in primo die; and an- swering subrriits to the jurisdiction; much more, -svhen there is a CHAP. II.] PENN V. LORD BALTIMORE. 183 proceeding to hearing on the merits, which would be conclusive at common law ; yet a court of equity, which can exercise a more liberal discretion than common law courts, if a plain defect of jurisdiction appears at the hearing, will no more make a decree, than where a plain want of equity appears. It is certain, that the original jurisdiction in cases of this kind relating to bounda- ries between provinces, the dominion, and proprietary govern- ment, is in the king and council; and it is rightly compared to the cases of the ancient Commotes and Lordships Marchers in Wales; in which if a dispute is between private parties, it must be tried in the Commotes or Lordships; but in those disputes, where neither had jurisdiction over the other, it must be tried by the king and council; and the king is to judge, though he might be a party; this question often arising between the crown and one Lord Proprietor of a province in America; so in the case of the Marches it must be determined in the king's courts, who is never considered as partial in these cases; it being the judgment of his judges in B. R. and Chancery. So where before the king and council, the king is to judge, and is no more to be presumed partial in one case than in the other. This court, there- fore, has no original jurisdiction on the direct question of the original right of the boundaries; and this bill does not stand in need of that. It is founded on articles executed in England under seal for mutual consideration; which gives jurisdiction to the king's courts both of law and equity,. whatever be the subject matter. An action of covenant could be brought in B. R. or C. B. if either side committed a breach; so might there be for the 5,000 1. penalty without going to the council. There are several cases, wherein collaterally, and by reason of the contract of the parties, matters out of the jurisdiction of the court originally will be brought within it. Suppose an order by the king and council in a cause, wherein the king and council had original jurisdiction ; and the parties enter into an agreement under hand and seal for performance thereof: a bill must be in this court for a specific performance; and perhaps it will appear, this is almost literally that case. The reason is, because none but a court of equity can decree that. The king in council is the pi-oper judge of. the original right; and if the agreement was fairly entered into and signed, the king in council might look on that, and allow as evidence of the original right : but if that agreement is disputed, it is impossible for the king and council to decree it as an agreement. That court cannot decree in personam in Eng- 184 MASSIE V. WATTS. [CHAP. II. land unless in certain criminal matters; being restrained there- from by Stat. 16 Car. and therefore the Lords of the Council have remitted this matter very properly to be determined in an- other place on the foot of the contract. The conscience of the party was bound by this agreement; and being within the juris- diction of this court, which acts in personam, the court may properly decree it as an agreement, if a foundation for it. To go a step farther : As this court collaterally and in consequence of the agreement judges concerning matters not originally in the jurisdiction, it would decree a performance of articles of agreement to perform a sentence in the Ecclesiastical court, just as a court of law would maintain damages in breach of covenant. ***** PEGGE V. SKINNER. (1 Cox Eq. 23.) [Chancery Court of England, 1784.] Bill for specific performance of an agreement for a lease from plaintiff to defendants. It was objected that the defendant Rich- ardson had since become incapable of doing any act in conse- quence of a paralytic stroke. It was ordered that the defendant Skinner should execute a counterpart of a lease, and also the defendant Richardson, when he should be capable of so doing. Lord Thuelow refused to give plaintifif- costs. MASSIE V. WATTS. (6 Cranch, 148.) [Supreme Court of the United States, 1810.] This was an appeal from a decree of the Circuit Court of the Uiiited States, for the district of Kentucky, in a suit in equity brought by Watts, a citizen of Virginia, against Massie, a citizen of Kentucky, to compel the latter to convey to the former 1,000 acres of land in the State of Ohio, the defendant having obtained the legal title with notice of the plaintiff's equitable title. CHAP. li.] MASSIE V. WATTS. 185 Marshall, C. J., delivered the opinion of the court. This suit having been originally instituted, in the court of Ken- tucky, for the purpose of obtaining a conveyance for lands lying in the State of Ohio, an objection is made by the plaintiff in error, who was the defendant below, to the jurisdiction of the court by which the decree was rendered. Taking into view the character of the suit in chancery brought to establish a prior title originating under the land law of Virginia against a person claiming under a senior patent, considering it as a substitute for a caveat introduced by the peculiar circum- stances attending those titles, this court is of opinion, that there is much reason for considering it as a local action, and for con- fining it to the court sifting within the State in which the lands lie. Was this cause, therefore, to be considered as involving a naked question of title, was it for example, a contest between Watts and Powell, the jurisdiction of the Circuit Court of Ken- tucky-would not be sustained. But where the question changes its character, where the defendant in the original action is liable to the plaintiff, either in consequence of contract, or as trustee, or as the holder of a legal title acquired by any species of mala fides practiced on the plaintiff, the principles of equity give a court jurisdiction wherever the person may be found, and the circumstance, that a question of title may be involved in the in- quiry, and may even constitute the essential point on which the case depends, does not seem sufificient to arrest that jurisdiction. In the celebrated case of Penn v. Lord Baltimore, 1 Ves. Sr. 444, the Chancellor of England decreed a specific performance of a contract respecting lands lying in North America. The objection to the jurisdiction of the court, in that case, as reported by Vesey, was not that the lands lay without the jurisdiction of the court, but that, in cases relating to boundaries between prov- inces, the jurisdiction was exclusively in the king and council. It is in reference to this objection, not to an objection that the lands were without his jurisdiction, that the chancellor says, "This court, therefore, has no original jurisdiction on the direct question of the original right of boundaries." The reason why it had no original jurisdiction on this direct question was, that the decision of the extent of those grants, including dominion and political power, as well as property, was exclusively- reserved to the king in council. In a subsequent part of the opinion, where he treats of the objection to the jurisdiction of the court, arising from its ina- 186 MASSIE V. WATTS. [CHAP. II. bility to enforce its decree in rem, he allows no weight to that argument. The strict primary decree of a court of equity is, he says, in personam, and may be enforced in all cases where the person is within its jurisdiction. In confirmation of this posi- tion he cites the practice of the courts to decree respecting lands lying in Ireland and in the colonies, if the person, against whom the decree was prayed, be found in England. In the case of Arglasse v. Muschamp, 1 Vern. 75, the defend- ant, residing in England, having fraudulently obtained a rent charge on lands lying in Ireland, a bill was brought in England to set it aside. To an objection made to the jurisdiction of the court, the chancellor replied : "This is surely only a jest put upon the jurisdiction of this court by the common lawyers; for when you go about to bind the lands and grant a sequestration to exe- cute a decree, then they readily tell you that the authority of this court is only to regulate a man's conscience, and ought not to effect the estate, but that this court must agere in personam only ; and when, as in this case, yoii prosecute the person for a fraud, they tell you that you must not intermeddle here, because, the fraud, though committed here, concerns lands that lie in Ireland, which makes the jurisdiction local, and so wholly elude the jurisdiction of this court." The chancellor, in that case, sustained his jurisdiction on principle, and on the au- thority of Archer and Preston, in which case a contract made respecting lands in Ireland, the title to which depended on the act of settlement, was enforced in England, although the defend- ant was a resident of Ireland, and had only made a casual visit to England. On a rehearing before Lord Keeper North this decree was affirmed. In the case of Earl of Kildare v. Sir Morrice Eustace, 1 Vern. 419, it was determined, that if the trustee live in England, the chancellor may enforce the trust, although the lands lie in Ireland. In the case of Toller-v. Carteret, 2 Vern. 494, a bill was sus- tained for the foreclosure of a mortgage of lands lying out of the jurisdiction of the court, the person of the mortgagor being within it. Subsequent to these decisions was the case of Penn against Lord Baltimore, 1 Ves. Sr. 444, in which the specific performance of a contract for lands lying in North America, was decreed in England. Upon the authority of these cases, and of others which are to be found in the books, as well as upon general principles, this CHAP. II.] CLEMENTS V. TILLMAN. 187 court is of opinion that, in a case of fraud, of trust, or of con- tract, the jurisdiction of a court of chancery is sustainable wher- ever the person be found, although lands not within the juris- diction of that court may be affected by the decree. ***** CLEMENTS v. TILLMAN. (79 Ga. 451.) [SUPREMEjiCOURT OF GEORGIA, 1888.] Error from Superior Court, Muscogee County; Smith, Judge. Suit by Hattie. E. Tillman and William L. Till- man, plaintiffs and defendants in error, against John W. Clem- ents, defendant and plaintiff in error, for an account and settle- ment of a legacy due said Hattie E. Tillman under the will of one Jacob A. Clements, John W. Clements being an executor of the same. The following is the official report : Hattie E. Tillman, a legatee under the will of Jacob A. Clem- ents, deceased, with her husband and trustee, William L. Tillman, filed their bill for account and settlement against John W. Clem- ents, executor, and Sarah B. Clements, executrix, of said will. The bill contained charges of mismanagement of the estate, vio- lations of the provisions of said bill, and non-payment by the executors of the interest of complainant as legatee. The defend- ants answered the bill; but as their answers are not material or necessary to an understanding of the errors complained of, they are not set forth. The jury returned the following verdict : "We, the jury, find that Sarah B. Clements has no property or effects of the estate of Jacob A. Clements, deceased, in her hands, as executrix or otherwise. We, the jury, further find that John W. Clements, as executor of the will of Jacob A. Clements, deceased, has now in his hands the sum of eight hundred and ten dollars principal and five hundred dollars interest, belonging to Hattie E. Tillman, as legatee under the will of Jacob A. Clements." Upon this verdict the following decree was rendered by the court : "Where- upon, the premises considered, it is ordered, adjudged, and decreed by the court that the complainant do recover the same sum of eight hundred and ten dollars principal and the further sum of 188 CLEMENTS V. TILLMAN. [CHAP. II. five hundred dollars interest to this date, and the further sum of dollars, costs of suit in this behalf laid out and expended, for which said several sums let execution issue, to be levied in the first place of the goods and chattels, lands and tenements, of said Jacob A. Clements, deceased, in the hands of John W. Clements, executor of the will of said Jacob A. Clements, if to be found ; and if not to be found, then to be levied of the personal goods and chattels, lands and tenements, of said John W. Clements. It is further ordered and decreed by said court that the said John W. Clem- ents do satisfy and pay the aforesaid amounts, principal, inter- est, and costs, to the said complainant, on or before the' first day of January next; and, in default thereof, that he be held and deemed to be in contempt of the order and decree of this court." Plaintiff in error excepts to the portion of the decree embodied by the last sentence, and says the court erred in rendering a decree to be enforced by attachment for contempt — "First, because the verdict was a money verdict, and the same could only be enforced by execution; second, because the verdict of the jury was a money verdict, and could not be enforced by an attachment for contempt, and could only be enforced by execution; third, because the verdict of the jury was a money verdict, and was a debt, and to enforce the decree by an attachment for contempt, would be to imprison the defendant for debt, which is prohibited by the constitution of the State ; fourth, because the decree sought ■ and moved for provides both for the enforcement of it by exe- cution and an attachment for contempt; and the complainant should be required to elect whether she would proceed to enforce ^ it by execution or attachment for contempt if the court deter- mined that it could be enforced by attachment for contempt." KiBBEEj J. Originally, in the absence of statutes providing otherwise, decrees of courts of equity, of whatever kind or nature, operated strictly and exclusively in personam. The only remedy for their enforcement was by .wha^ is termed "process of con- tempt," under which the party failing to obey them was arrested and imprisoned until he yielded obedience, or purged the contempt by showing that disobedience was not wilful, but the result of inability not produced by his own fault or contumacy. The writ of assistance to deliver possession, and even the sequestration to compel the performance of a decree, are comparatively of re- cent origin. Our statutes expressly provide that "all orders and decrees of the court may be enforced by attachment against the person ; decrees for money may be enforced by execution against CHAP. II.] CLEMENTS V. TILLMAN. 189 the property." Code, § 3099. "A decree in favor of any party, for a specific sum of money, or for regular installments of money, shall be enforced by execution against property as at law." Code, §4215. "Every decree or order of a court of equity may be en- forced by attachment against the person for contempt; and if a decree be partly for money and partly for the performance of a duty, the former may be enforced by execution, and the latter by attachment or other process." Code, § 4216. The clear legislative intent is manifest to enlarge and render more eiBcacious equitable remedies, while preserving the remedies the courts had previously employed in the absence of statutes providing others. Under our statutes, when a party is decreed to perform a duty, or to do any act other than the mere'payment of money, which the court has jurisdiction to adjudge he shall do, if he disobeys, the authority of the court is defied ; he is guilty of contempt, and the arrest and imprisonment of his person is not imprisonment for debt in any appropriate sense of the term. But if a court of equity should render a simple decree for money on a simple money verdict, — a decree which it may now enforce by the ordinary common law process against property, — the failure to pay the decree would not be contempt, nor could compulsory process against the person of the party in default be resorted to to enforce payment. In Coughlin V. Ehlert, 39 Mo. 285, the court uses the following lan- guage:- "We do not mean to say that a party may not be put in contempt for disobeying a decree for the performance of acts which are within his power, and which the court may properly order to be done. If it were shown, for instance, that the party had in his possession a certain specific sum of money or other thing which he refused to deliver up, under the order of the court, for any purpose, it may very well be that his disobedience would be a contempt for which he might lawfully be imprisoned." In Carlton v. Carlton, 44 Ga. 220, Judge McCay, delivering the opin- ion, says: "We do not intend to say that simply because a debt is adjudged by- a decree in chancery, instead of by a judgment at law, it may therefore be enforced by imprisonment. The im- prisonment must be clearly for the contempt of the process of the court, and be of one who is able and unwilling to obey the order of the court. * * * It ought never to be resorted to except as a penal process, founded on the unwillingness of the party to obey. The moment it appears that there is inability, it would clearly be the duty of the judge to discharge the party," etc. The court further held that, "ordinarily, it would be improper 190 IN RE HAWTHORNE. [CHAP. II. to include in the order the alternative order for imprisonment on failure, since it is not to be presumed that a contempt will ensue." The constitutional provision, "there shall be no imprisonment for debt," was not intended to interfere with the traditional power of chancery courts to punish for contempt all refusals to. obey their lawful decrees and orders^ This proposition may be conceded to be sound without affecting the case at bar in any respect. "The power in question was never exercised by chancery courts ex- cept in those cases where a trust in the property or fund arose between the parties litigant, or some specific interest in it was claimed, or the chattel had some peculiar value and importance that a recovery of damages at law for its detention or conversion was inadequate. Such interference was in the nature of a bill quia timet, and was asserted only on a proper showing that the fund or property was in danger of loss or destruction." 1 Story, Eq. Jur. §§ 708-710. "No jurisdiction to compel the payment of an ordinary money demand unconnected with such peculiar equi- ties ever existed in chancery courts, nor had they the power to compel such payment by punishing the refusal to pay under the guise of contempt." In the case at bar the decree was right in awarding an execu- tion against the executor as set forth in said decree, but the facts did not authorize an alternative order imprisoning the defendant on failure to pay. Judgment reversed. IN RE HAWTHORNE. (L. R. 23 Ch. Div. 743.) [Chancery Division, 1883.] This action was brought to recover three-fourths of one moiety of the purchase money of a house at Dresden, sold by Charles Stewart Hawthorne, the testator in the cause. The defendants were his executors and devisees in trust. The house originally belonged to Colonel Hawthorne, a domiciled Irishman, and his wife, Sarah, jointly. By his will, dated in 1851, he gave all his real and personal estate, which would include his moiety of this house, to trustees in trust to pay the rents, profits, and proceeds thereof to his wife, Sarah, for life, and after her death upon trust for his daughter Mabella. This will was not executed according to Saxon law. Colonel Hawthorne left his widow and CHAP. II.] IN RE HAWTHORNE. 191 a daughter Georgiana him surviving, Mabella having died in his lifetime. The widow died on the 31st of May, 1875, leaving a will executed according to Saxon law, by which she devised all her real and personal property at her residence at Dresden, in- cluding this house, to Charles Stewart Hawthorne, the testator in this cause. In 1875 he sold the house, received part of the purchase money, and the remainder, amounting to 66,000 marks, was secured to him by a mortgage of the house according to Saxon law. He died in 1877. The plaintiffs in this action were the administrator and the widow and children of John Graham, the surviving husband of Georgiana. The statement of claim alleged, in effect, that on the death of Colonel Hawthorne one moiety of the house, subject to his wid- ow's life interest, devolved by Saxon law as to three-fourths parts on Georgiana, and the remaining one-fourth on Sarah Haw- thorne, who was entitled to the other moiety, and that on the death of Georgiana in 1863 John Graham became by Saxon law entitled to her three-fourths of one moiety, "and that he died intes- tate. The plaintiffs, as his administrator, and next of kin, respec- tively, claimed three-fourths of one moiety of the purchase money, with interest, against the estate of Charles Stewart Hawthorne. It was also alleged that on the death of Sarah Hawthorne, Charles Stewart Hawthorne procured himself to be registered in Dres- den as the owner of the house, and so became the legal owner, and that by Saxon law he could confer an indefeasible title on a purchaser, but that a seller under such circumstances became by the, law fesponsible to the person really- entitled, if he had acted bona fide, for the purchase money of which he became a trustee for the person really entitled. The defence denied utterly the claim of the plaintiffs, and alleged that Charles Stewart Haw- thorne was sole and legal owner of the entirety of the house for his own use and benefit, and the defendants (paragraph 19) sub- mitted that the rights of the parties in this action ought to be determined in the courts of Saxony. Kay, J. You are asking the court to declare that Charles Stewart Hawthorne was a constructive trustee of lands in Dres- den of which he had taken possession, and procured himself to be registered as owner. This is no question of contract, but sim- ply one of the right of succession to foreign lands. Mr. Druce. The court will assume jurisdiction when the rem- edy can be given simply by proceedings in personam. Kay, J. An important question of jurisdiction arises in this 192 IN RE HAWTHORNE. [CHAP. II. case. [His lordship, after stating the facts as above set forth, continued] : It is obvious that neither Charles Stewart Haw- thorne nor the defendants is or are, with reference to this claim, by English law, in any fiduciary relation to the plaintiffs. They are not bound by contract with them. Nor is the claim in any Way based upon a suggestion of fraud. Is a bona fide claim on both sides of title to land, or the proceeds of- land, in Saxony. The claim depends primarily upon the law of Saxony as to the devo- lution of land in that country. If maintainable, it can only be so upon the ground that by the law of Saxony upon the death of Sa- rah Hawthorne three-fourths of one moiety of this property de- scended to Georgiana Hawthorne, under whom the plaintiffs claim. The next question is whether the plaintiffs, by the law of Saxony, are entitled to such • interest, if any, as did so descend to Georgiana Hawthorne. A third question is whether by Saxon law, Charles Stewart Hawthorne having sold the property, he or his estate after his death is accountable for a share of the pur- chase money to the plaintiffs. I need not dwell upon the danger of error if the courts of this country were to entertain jurisdiction to determine a' contested claim of this kind depending upon questions of foreign law. I may, perhaps, illustrate it by one of the arguments used before me. I have a number of opinions, not on oath, by foreign lawyers. One of these states that the time for ascertaining the heir of Colonel Haw^ thorne in this case was the death of Sarah Hawthorne, because of the devise to trustees during the life of Sarah, which, although in an Irish will, would be recognized in Saxony. This part of the opinion, it is said, is not answered or noticed by the expert on the other side, and therefore the court must assume that it is admitted to be the law. How is it possible to be judicially satisfied on such evidence ? I am not aware of any case where a contested claim de- pending upon the title to immovables in a foreign country, strictly so called, being no part of the British dominions or possessions, has been allowed to be litigated in this country simply because the plaintiff and defendant happened to be here. Lord Mansfield, in Mostyn v. Fabrigos, 1 Cbwp. 161, 176, distinguished such a case from those in which actions might be brought here. He said : "So if an action were brought relative to an estate in a foreign country, where the question was a mater of title only, and not of damages, there might be a solid distinction of locality." The cases cited in the argument were such as the enforcement in England of an equitable mortgage made in England concerning Scotch CHAP. II.] IN RE HAWTHORNE. 193 land, where the court gave relief, treating the remedy as in the nature of specific performance, when the courts act in personam. Ex parte Pollard, 1 Mont. & C. 239. There is no doubt of the jurisdiction in such a case, and the courts will even foreclose an English mortgage of foreign land ( Toller v. Carteret, 2 Vern. 494) ; the foreclosure decree being, as Vice Chancellor Bacon pointed out in Paget v. Ede, L. R. 18 Eq. 118, merely an extinc- tion of the right to redeem, as was said also by Lord Cranworth in Colyer v. Finch, 5 H. L. Cas. 90S, 915. In N orris v. Chambres, 29 Beav. 246, Lord Romilly distinguished the case of a foreign mortgage of foreign lands where no relief by foreclosure would be given by the English courts. There is a class of cases in which jurisdiction as to lands in the colonies has been maintained on the ground of fraud, like Lord Cranstown v. Johnston, 3 Ves. 170. It is not pretended that there was any fraud in the present case. Perhaps the decision that goes furthest in the plaintiff's fa- vor is the recent case of In Re Ewing, 22 Ch. Div. 456. There a legatee under a Scotch will or trust deed was allowed to main- tain an action for administration against the executors who had proved in England, three of whom were in this country and the others had been served in Scotland, without objection. The usual administration order was made, though there were no assets in England ; but the late master of the rolls and Lord Justice Cot- ton both pointed out that the plaintiff's claim was undisputed; and the master of the rolls repudiated the notion that Scotland is a foreign country for the purpose of such a question of juris- diction. According to Enohin v. Wylie, 10 H. L. Cas. 1, if the claim had been contested, and had involved a disputed question of the construction of a Scotch will, it may be doubted if a decree could properly have been made. But the case is infinitely stronger where the contested claim is based upon the right to land where the land is situate, not in Scotland, but in Dresden, where the question whether the plaintiff has any claim or not, must be de- termined by the law of Saxony as to immovables, and where the only ground for instituting proceedings in this country is the fact that the defendants are resident here. All these circum- stances concur in this case, and in my opinion the courts of civil judicature in England, which sit, as Lord Westbury said in Cook- ney v. Anderson, 1 De Gex, J. & S. 365, to administer the munic- ipal law of this country, have no authority ~to determine in such a case as this whether or not the plaintiff's claim is well founded, and I must therefore dismiss this action. 1^ 194 SPURR V. SCOVILLE, [CHAP. H. SPURR V. SCOVILLE. (3 Cush. 578.) [Supreme Judicial Court of Massachusetts, 1850.] Fletcher, J. This is a bill in equity, inserted in an original writ of attachment, to enforce the specific performance of a written contract for the conveyance of real estate in Mount Washington, in this county. The defendant's real estate in Berk- shire was attached on the writ; and, by an order of this court, a copy of the writ, with the bill therein, and. of the order of court, «/- Held V. Elwes, Hunt v. Beach, 5 Madd. Ch. 351, and DuMeld v. Hicks, 1 Dow, 1. Judgment for plaintiff for the use of Blanchard. BASKETT V. HASSELL. (137 U. S, 602.) [Supreme Court of the United States, 1883.] Mr. Justice Matthews delivered the opinion of the court. This is a bill in equity, filed by the appellee, a citizen of Ten- nessee, to which, besides the appellant, a citizen of Kentucky, the Evansville National Bank of Evansyille, Indiana, Samuel Bayard, its president, and Henry Reis, its cashier, and James W. Shaekleford and Robert W. Richardson, attorneys for Baskett, citizens of Indiana, were made parties defendant. The single ques- tion in the case was, whether a certain fund, represented by a cer- tificate qf deposit, issued by the bank to Chaney, in his lifetime, belonged to Baskett, who claimed it as a gift from Chaney, having possession of the certificate, or to the appellee, as Chaney's ad- ministrator. Baskett asserted his title, not only by answer but by cross-bill. The final decree ordered the certificate of deposit to be surrendered to the complainant, and that the bank pay to the complainant, as its holder, the amount due thereon. The money was then tendered by the bank, in open court, and the certificate was deposited with the clerk. It was thereupon or- dered, Baskett having prayed an appeal, that, until the expira- tion of the time allowed for filing a bond on appeal, the bank should hold the money as a deposit, at four per cent interest; but if a bond be given, that the same be paid to the clerk, and by him loaned to the bank on the same terms. Baskett failed to give the, bond required for a supersedeas, but afterwards prayed another appeal, which he perfected by giving bond for CHAP. III.] BASKETT V. HASSELL. 287 costs alone. To this appeal, Baskett and .the appellee are the parties respectively, the co-defendants not having appealed, or been cited after severance. And, on the ground that they are necessary parties, the appellee has moved to dismiss the appeal. It is apparent, however, that the sole controversy is between the present parties to the appeal. By the delivery of the certifi- cate of deposit to the clerk, the attorneys of Baskett are exoner- ated from all responsibility; and the payment of the money by the bank, to the appellee, equally relieves it and its officers ; for, not being parties to the appeal, -and the e'icecution df the decree not having been superceded, the decree will always furnish them protection, whether affirmed or reversed; because, if reversed, it would only be so as between the parties to the appeal. So that the omitted parties have no legal interest, either in main- taining or reversing the decree, and, consequently, are not neces- sary parties to the appeal. Simpson v. Greeley, 20 Wall. 152 (87 U. S., xxii, 338) ; Cox v. U. S., 6 Pet. 182; Forgay v. Conrad, 6 How. 203 ; Germain v: Mason, 12 Wall. 261 (79 U. S. xx, 392). The motion to dismiss the appeal is, accordingly overruled. The fund in respect to which the controversy has arisen. was repre- sented by a certificate of deposit, of which the following is a copy : "Evansville National Bank, Evansville, Ind., Sept. 8, 1875. H. M. Chaney has deposited in this bank twenty-three thou- sand five hundred and fourteen and seventy one-hundredths dol- lars, payable in current funds, to the order of himself, on sur- render of this certificate properly endorsed, with interest at the rate of 6 per cent per annum, if left for six months. $23,514.70. Henry Reis, Cashier." Chaney, being in possession of this certificate at his home in the county of Sumner, State of Tennessee, during his last sick- ness, and in apprehension of death, wrote on the back thereof the following endorsement: "Pay to Martin Baskett, of Henderson, Ky. ; no one else ; then not till my death. My life seems to be uncertain. I may live through this spell. ThenT will attend to it myself. "H. M. Chaney." Chaney then deliveredthe certificate to Baskett, and died, with- out recovering from that sickness, in January, 1876. It is claimed on behalf of the appellant that this constitutes 288 IJASICETT V. HASSELL. [CHAP. III. a valid gift donatio causa mortis, which entitles him to the fund ; and whether it be so, is the sole question for our determination. The general doctrines of the common law as to gifts of this character is fully recognized by the Supreme Court of Tennessee as part of the law of that State. Richardson v. Adams, 10 Yerg. 273 ; Sims v. Walker, 8 Humph. 503 ; Gas v. Simpson, 4 Cold. 288. In the case last mentioned, that court had occasion to consider the nature of such a disposition of property and the several ele- ments that enter into its proper definition. Among other things it said: "A question seems to have arisen, at an early day, over which thef e was much contest as to the real nature of gifts causa moriis. Were they gifts inter vivos, to take effect before the death of the donor? or were they in the nature of a legacy, taking effect only at the death of the donor? At the termination of this con- test, it seems to have been settled that a gift causa mortis is ambulatory and incomplete during the donor's life, and is, there- fore, revocable by him and subject to his debts, upon a deficiency of assets; not because the gift is testamentary or in the nature of a legacy, but because such is the condition annexed to it and because it would otherwise be fraudulent as to creditors; for no man may give his property who is unable to pay his debts; and ■ all now agree that it has no other property in common with a leg- acy. The property must pass at the time and not be intended to pass at the giver's death ; yet, the party making the gift, does not part with the whole interest, save only in a certain event; and, until the event occurs which is to divest him, the title re- mains in the donor. The donee is vested with an inchoate title, and the intermediate ownership is in him ; but his title is defeas- ible until the happening of the event necessary to render it abso- lute. It differs from a legacy in this, that it does not require pro- bate, does not pass to the executor or administrator, but is taken against, not from him. Upon the happening of the event upon which the gift is dependent, the title of the donee becomes, by relation, complete and absolute from the time of the delivery, and that without any consent or other act on the part of the executor or administrator ; consequently, the gift is inter vivos." In another part of the opinion (p. 279) it is said : "All the author- ities agree that delivery is essential to the validity of the gift; and that, it is said, is a wise principle of our laws, because de- livery strengthens the evidence of the gift; and it is certainly a very powerful fact for the prevention of frauds and perjury." CHAP. HI.] BASKETT V. HASSELL. 289 In the first i&f-these extracts there is an inaccuracy of expres- sion, which stems to have introduced some confusion, if not an apparent contfadiction, when, after having stated that "The prop- erty must pass at the time and not be intended to pass at the giver's death," it is added, that "until the event occurs which is to divest him, the title remains in the donor." But a view of the entire passage leaves no room to doubt its meaning ; that a donatio mortis causa must be completely executed as required in the case of giits inter vivos, subject to be divested by the hap- pening of any of the conditions subsequent ; that is, upon actual revocation by the donor, or by the donor's surviving the appre- hended peril, or outliving the donee, or by the occurrence of a deficiency of assets to pay the debts of the deceased donor. These conditions are the only qualifications that distinguish giits mortis causa and inter vivos. On the other hand, if the gift -does not take effect as an executed and complete transfer to the donee of possession and title, either legal or equitable, during the life of the donor, it is a testamentary disposition, good only if proved and made as a will. This statement of the law, we think, to be correctly deduced from the judgments of the highest courts of England and in this country; although, as might well have been expected, since the early introduction of the doctrine into common law from the Roman civil law, it has developed by new and successive appli- cations, not without fluctuating and inconsistent decisions. "As to the character of the thing given," says Chief Justice Shaw, in Chase v. Redding, 13 Gray, 418-420, "the law has un- dergone some changes. Originally it was limited, with some ex- actness, to chattels, to some object of value deliverable by the hand ; then extended to securities transferable solely by delivery, as bank notes, lottery tickets, notes payable to bearer or to order, and endorsed in blank; subsequently it has been extended to bonds and other choses in action, in writing or represented by a certificate, when the entire equitable interest is assigned; and in the very latest cases in this commonwealth, it has been held that a note not negotiable, or, if negotiable, not actually endorsed, but delivered, passes, with a right to use the name of the adminis- trator of the promise, to collect it for the donee's own use," citing Sessions v. Mosely, 4 Cush. 87 ; Bates v. Kempton, 7 Gray, 382 ; Parish v. Stone, 14 Pick. 203. In the case last mentioned, Parish v. Stone, the same distin- guished judge, speaking of the cases which had extended the 19 290 BASKETT V. HASSELL. [CHAP. III. doctrine of gifts mortis causa to include choses in action, deliv- ered so as to operate only as a transfer by equitable assignment or a declaration of trust, says further, that "These cases all go on the assumption that a bond, note or other security is a valid subsisting obligation for the payment of a sum of money, and the gift is, in effect, a gift of the money by a gift and delivery of the instrument that shows its existence and affords the means of reducing it to possession." He had, in a previous part of the same opinion, stated that "The necessity of an actual delivery has been uniformly insisted upon in the application of the rules of the English law to this species of gift." P. 204. In Camp's Appeal, 36 Conn. 88; the Supreme Court of Errors of Connecticut held that a delivery to a donee of a savings bank book, containing entries' of deposits tp the credit of the donor, with the intention to give to the donee the deposits represented by the book, is a good delivery to constitute a complete gift of such deposits, on the general ground that a delivery of a chose in action that would be sufficient to vest an equitable title in a pur- chaser is a sufficient delivery to constitute a valid gift of such chose in action, without a transfer of the legal title. That was the case of a gift inter vivos. But the court say, referring to the case of Brown v. Brown, 18 Conn. 410, as having virtually de- termined the point : "It is true that was a donation causa mortis, but the principle involved is the same in both cases, as there is no difference in respect' to the requisites of a delivery be- .tween the two classes of gifts." And so Justice Wilde, deliv- ering the opinion of the court in Graver v. Grover, 2A Pick. 261- 264, expressly declfires that "a gift of a chose in action, provided no claims of creditors interfere to affect its validity, ought to stand on the same footing as a sale ; "that the title passed and the gift became perfected, by delivery and acceptance ; that there was, therefore, "No good reason why property thus acquired should not be protected as fully and effectually as property ac- quired by purchase;" and showed, by a reference to the cases, that there was no difference in this respect between gifts inter vivos and mortis causa. In respect to the opinion in this case, it is to be observed, that it cites with approval the case of Wright v. Wright, 1 Cow. 598, in which it was decided that the promissory note, of which the donor himself was maker, might be the subject af a valid gift mortis causa, though the concurrence was not upon that point. That case, however, has never been followed. It was expressly CHAP. III.] BASKETT V. HASSELL. 291 disapproved and disregarded by the Supreme Court of Errors of Connecticut in Raymond v. SelHck, 10 Conn. 480, Judge Waite delivering the opinion of the court; had been expressly ques- tioned and disapproved in Parish v. Stone, 14 Pick. 198-206, by Chief Justice Shaw, and was distinctly overruled by the Court of Appeals of New York, in Harris v. Clark, 3 N. Y. 93. In that case it was said : "Gifts, however, are valid without considera- tion or actual value paid in return. But there must be delivery of possession. The contract must have been executed. The thing given must be put into the hands of the donee, or placed within his power by delivery of the means of obtaining it. The gift of the maker's own note is the delivery of a promise only, and not of the thing promised, and the gift therefore fails. Without delivery, the transaction is not valid as an executed gift; and without consideration, it is not valid as a contract to be executed. The decision in Wright v. Wright was founded on a supposed distinction between a gift inter vivos and a donatio mortis causa. But there appears to be no such distinction. A delivery of pos- session is indispensable in either case." The case from which this extract was taken was very thor- oughly argued by Mr. John C. Spencer for the plaintiff, and Mr. Charles O'Conor for the defendant, and the judgment of the court states and reviews the doctrine on the subject with much learning and ability. It was held that a written order upon a third person, for the payment of money, made by the donor, was not the subject of a valid gift, either inter vivos or mortis causa; and the rule applicable in such cases, as conceded by Mr. O'Conor, was stated by him as follows : "Delivery to the donee of such an instrument as will enable him, by force of the instrument itself, to reduce the fimd into possession, will suffice, is the plaintiff's doctrine. This mig^t - safely be conceded. It might even be conceded that a delivery out of the donor's control of "an instrument, without which he could not recover the fund from his debtor or agent, would also suffice." The same view, in substance, was taken in deciding Hewitt v. Kaye,.L. R. 6 Eq. 198, which was the case of a check on a banker, given by the drawer mortis causa, who died before it was possible to present it, and which was held not to be valid. Lord Romilly, M. R., said : "When a man on his deathbed gives to another an instrument, such as a boncf, or promissory note, or an I O U, he gives a chose in action, and the delivery of the 292 BASKETT V. HASSELL. [CHAP. III. instrument confers upon the donee all the rights to the chose in action arising out of the instrument. That is the principle upon which Amis v. Witt, 33 Beav. 619, was decided, where the donor gave the donee a document by which the bankers acknowledged that they held so much money belonging to the donor at his dis- posal, and it was held that the delivery of that document con- ferred upon the donee the right to receive the money. But a check is nothing more than an order to obtain a certain sum of money, and it makes no difference whether the money is at a banker's or anywhere else. It is an order to deliver the money, and if the order is not acted upon in the lifetime of the person who gives it, it is worth nothing." Accordingly the Vice Chancellor, In re Beak's Estate, L. R. 13 Eq. 489, refused to sustain as valid the gift of a check upon a banker, even although its delivery was accompanied by that of the donor's pass book. The same rule, as to an unpaid and unaccepted check was followed in Nat. Bk. v. Williams, 13 Mich. 282. The principle is that a check upon a bank account is not of itself an equitable assignment of the fund. Bank y. Millard, 10 Wall. 152 {77 U. S. xix, 897), but if the banker accepts the check, or otherwise sub- jects himself to liability as a trustee, prior to the death of the donor, the gift is complete and valid. Bromley v. Brunton, L. R. 6 Eq. 275. Contrary decisions have been made in respect to donations mortis causa of savings bank books, some courts holding that the book itself is a document of title, the delivery of which, with that intent, is an equitable assignment of the fund. Pierce v. Bank, 129 Mass. 425; Hill v. Stevenson, 63 Me. 364; Tillinghast V. Wheaton, 8 R. I. 536. The contrary was held in Ashbrook v. Ryon, 2 Bush, 228, ajid in McGonnell v. Murray, Ir. Rep. 3 Eq. 460. That a delivery of a certificate of deposit, such as that described in the record in this case, might, constitute a valid donatio mortis causa, does not admit of a doubt. It was so decided in Amis v. Witt, supra; in Moore v. Moore, L. R. 18 Eq. 474; Hewitt v. Kaye, L. R. 6 Eq. 198 ; Westerlo v. DeWitt, -36 N. Y. 340. A certificate of deposit is a subsisting chose in action and repre- sents the fund it describes, as in case of notes, bonds, and other securities, so that a delivery of it, as a gift, constitutes an equi- table assignment of the money for which it calls. The point which is made clear by this review of the decisions CHAP. III.] BASKETT V. HASSELL. 293 on the subject, as to the nature and eflfect of a delivery of a chose in action, is, as we think, that the instrument or document must be the evidence of a subsisting obligation and be delivered to the donee, so as to vest him with an equitable title to the fund it represents, and to divest the owner of all present control and dominion over it, absolutely and irrevocably, in case of a gift inter vivos, but upon the recognized conditions subsequent, in the case of a gift mortis causa; and that a delivery which does not confer upon the donee the present right to reduce the fund into possession by enforcing the obligation, according to its terms, will not suffice. A delivery, in terms, which confers upon the donee power to control the fund only after the death of the donor, when by the 'instrument itsel/ it is presently payable, is testamentary in character, and not good as a gift. Further illus- trations and applications of the principle may be found in the following cases: Powell v. Hellicar, 26 Beav. 261; Reddel v. Dobree, 10 Sim. 244; Farquharson v. Cave, 2 Colly. Ch. 356; Hatch V. Atkinson, 56 Me. 324 ; Bunn v. Markham, 7 Taunt. 224 ; Coleman v. Parker, 114 Mass. 30; Wing v. Merchant, 57 Me. 383 ; McWillie v. Van Vacter, 35 Miss. 428 ; Egerton v. Egerton, 17 N. J. Eq. 420; Michener v. Dale, 23 Pa. 59. The application of these principles to the circumstances of the present case require the conclusion that the appellant acquired no title to the fund in controversy, by the endorsement and deliv- ery of the certificate of deposit. The certificate was payable on demand; and it is unquestionable that a delivery of it to the donee, with an endorsement in blank, or a special endorsement to the donee, or without endorsement, would have transferred the whole title and interest of the donor in the fund represented by it, and might have been valid as a donatio mortis causa. That transaction would have enabled the donee to reduce the fund into actual possession, by enforcing payment according to the terms of the certificate. The donee might have forborne to do so, but that would not have affected his right. It cannot be said that obtaining payment in the lifetime of the donor would have been an unauthorized use of the instrument, inconsistent with the nature of the gift ; for the gift is of money, and of the cer- tificate of deposit, merely as a means of obtaining it. And if the donee had drawn the money, upon the surrender of the cer- tificate, and the gift had been subsequently revoked, either by the act of the donee or by operation of law, the donee would be only under the same obligation to return the money, that 294 BASKETT V. HASSELL. [CHAP. III. would have existed to return the certificate, if he had continued to hold it, uncollected. But the actual transaction was entirely different. The endorse- ment which accompanied the delivery qualified it, and limited and restrained the authority of the donee in the collection of the money, so as to forbid its payment until the donor's death. The property in the fund did not presently pass, but remained in the donor, and the donee was excluded from its possession and control during the life of the donor. That qualification of the right, which would have belonged to him if he had become the present owner of the fund, establishes that there was no delivery of possession, according to the terms of the instrument, and that as the gift was to take effect only upon the death of the donor, it was not a present executed gift mortis causa, but a testament- ary disposition. The right conferred upon the donee was that expressed in the endorsement; and that,. instead of being a trans- fer of the donor's title and interest in the fund, as established by the terms of the certificate of deposit, was merely an order upon the bank to pay to the donee the money called for by the certificate, upon the death of the donor. It was, in substance, not an assignment of the fund on deposit, but a check upon the - bank against a deposit, which, as is shown by all the authorities and upon the nature of the case, cannot be valid as a donatio mortis causa, even where it is payable in praesenti, unless paid or accepted while the donor is alive; how much less so when, as in the present case, it is made payable only upon his death. The case is not distinguishable from Mitchell v. Smith, 4 De G. J. & S. 422, where the endorsement upon promissory notes, claimed as a gift, was, "I bequeath-pay the within contents to Simon Smith, or his order, at my death." Lord Justice Turner said: "In order to render the endorsement and delivery of a promissory note effectual they must be such as to enable the en- dorsee himself to endorse and negotiate the note. That the re- spondent, Simon Smith, could not have done here during the testator's life." It was, accordingly, held that the disposition of the notes was testamentary and invalid. It cannot be said that the condition in the endorsement, which forbade payment until the donor's death, was merely the condi- tion attached by the law to every such gift. Because the condi- tion, which inheres in the gift niortis causa, is a subsequent con- dition, that the subject of the gift shall be returned if the gift fails by revocation; in the meantime, the gift is executed, the CHAP. III.] EDWARDS V. JONES. 295 title has vested ; the dominion and control of the donor has passed to the donee. While here, the condition annexed by the donor to his gift is a condition precedent, which must happen before it becomes a gift, and, as the contingency contemplated is the do- nor's death, the gift cannot be executed in his lifetime, and, con- sequently, can never take effect. This view of the law was the one taken by the Circuit Court as the basis of its decree, in which we accordingly find no error. It is accordingly affirmed. Mr. Justice Miller did not sit in this cause, and took no part in its decision. EDWARDS V. JONES. (1 Mylne & Craig, 226.) [High Court of Chancery, 1836.] In the year 1819, John Nathaniel Williams, being indebted to Mary Custance in the sum of £300, gave her bond for securing that sum with interest. In th? year 1828, the said sum of £300 being still due, together with an arrear of interest, amounting to the sum of £123 ISs., a second bond was given by J. N. Wil- liams to Mary Custance, for securing the latter sum' with interest thereon. The whole of the two sums of £300 and £123 '15s. remained due upon the security of the two bonds, at the time of the death of Mary Custance. On the 25th of May, 1830, only five days before her death. Mary Custance signed the following endorsement upon the bond of 1819: "I, Mary Custance, of the town of Aberystwith, in the county of Cardigan, widow, do hereby assign and transfer the within bond or obligation, and all my right, title, and interest thereto, unto and to the use of my niecei Esther Edwards, of Llanilar, in the said county of Cardigan, widow, with full power and authority for the said Esther Edwards to sue for and recover the amount thereof, and all interest now due, or hereafter to become due thereon: as witness my hand, this 25th of May, 1830." The bond of 1828 was usually kept with the bond of 1819. At the time at which the endorsement was signed, the two bonds were fastened together by a pin. Immediately after the endorse- 296 EDWARDS V. JONES. [iCHAP. III. ment had been signed, Mary Custance delivered or caused to be delivered both the bonds to Esther Edwards, the plaintiff in this suit. The bonds remained in the hands of the plaintiff until the filing of the bill. Mary Custance died on the 30th of May, 1830, having in the year 1829 made her will, in which she did not mention the bonds, or dispose of the residue of her property, but by which she appointed the defendant. Rice Jones, her execu- tor, who duly proved the will. After Mary Custance's death, the defendant, who had been aware in her lifetime of the exist- ence of the bonds, supposing that they had been lost, prevailed upon J. N. Williams, the obligor, to execute a new^bond for the amount due upon the two old bonds, and' at the same time gave to the obligor a bond of indemnity against any claim which might be made under the old bonds. In the month of January, 1832, J. N. Williams, the obligor, died, and afterwards his widow and executrix paid to the defend- ant the amount for which the new bond had been given. The bill stated that the plaintiff was a niece of Mary Custance,. and that Mary Custance had a great affection for the plaintiff, and entertained, and at different times expressed, an intention to give or leave to the plaintiff the bonds, and the money due upon them. It is alleged that Mary Custance delivered, or caused to be delivered, to the plaintiff both the bonds, intending that the plaintiff should be entitled thereto, and to the moneys respec- tively secured thereby, in case of and after the decease of her the said Mary Custance, and expressing herself to that or the like effect ; and the bill also alleged that the bonds, and the money due upon the same, were well given to the plaintiff, by Mary Custance, as a gift, or as a donatio mortis causa, and that the plaintiff became entitled thereto. The bill then went on to allege that, under the circumstances, the plaintiff was entitled to the sum due on the bonds, and that the defendant, so far as he had a legal right of action upon them, was a trustee for the plaintiff, and that he was a trustee for the plaintiff for the money received by him for the executrix of the obligor. The prayer of the bill was, that it might be declared that the plaintiff was and is entitled to the principal and interest which was due upon the two bonds, and that the defendant might be declared to be a trustee thereof for the plaintiff, and that an account might be taken of what had been received by the defend- ant in respect of the several sums secured by the bonds, and the interest thereof respectively; and that the defendant might be CHAP. III.] EDWARDS V. JONES. 297 decreed to pay to the plaintiff what should appear to have been so received by him, with interest thereon from the time when the same was received; and in case it should appear that the defendant has not received from the estate of John N. Williams, the obligor, the whole of the principal and interest, then that the plaintiff might be at liberty to take such proceedings as she might be advised for the recovery thereof, in the name; of the defendant; and in case it should appear that the defendant had released or discharged the estate of J. N. Williams, the obligor, from the debt, without receiving the whole thereof, then that the defendant might be decreed to make good the same.. It appeared, by the evidence, that the endorsement was written upon the bond before the day on which it was signed by Mary Custance; and that at the time at which she signed it, although upwards of eighty years of age, and laboring under a very pain- ful disease, — cancer in the breast, — she was not worse in health than she had been for some time previously, and that she was not in bed, and that it was not then expected by those about her that her death would occur so soon afterwards as it did. It ap- peared also that the transaction took place about seven o'clock in the morning, all parties desiring that it should be concealed from a sister of Mary Custance; and it was proved that Mary Custance accompanied the act of signing the endorsement by saying that she was thereby giving the Castle Hill money (by which term she was accustomed to designate the money due upon the bonds) to the plaintiff. The cause was heard before the Vice Chancellor, who dismissed the bill with costs. The plaintiff now appealed from his honor's decision. The Lord Chancellor (after stating the substance of the bill). The case being thus stated in the bill, it was argued at the bar that the bonds were delivered either by way of donatio mortis causa, or as a gift inter vivos. Now, in order to be good as a donatio mortis causa, the gift must have been made in con- templation of death, and intended to take effect only after the donor's decease. I consider the language of the assignment itself to exclude the possibility of treating this as a donatio mortis causa. The first question upon the other point is, whether the plaintiff has in this suit claimed the property as an absolute gift. The bill has, in fact, negatived the case of gift; for it states that the donor intended that the delivery should operate as a donatio mor- 298 EDWARDS V. JONES. [CHAP. III. tis causa. Having made that allegation of fact, it is immaterial that there should be, in another part of the bill, an allegation stating a conclusion of law. If the question turned upon that point, if there were a case which would appear to constitute a gift, the court would give effect to it. Such, however, is not the case, because, whatever might have been alleged on the record, there was no ground for supposing that a case could be estab- lished which would support the transaction as a gift. The transaction being inoperative for the purpose of trans- ferring the bond, which was a mere chose in action, the ques- tion comes to-be, whether the mere handing over of the bond, — supposing the record so to have stated the facts as to have enti- tled the plaintiff to make such a claim,— whether such a transac- tion would constitute a good gift inter vivos; that is to say, whether the plaintiff would be entitled to the assistance of a court of equity for the purpose of carrying into effect the inten- tion of the parties. Now, it is clear that this is a purely volun- tary gift, and a gift which cannot be made effectual without the interposition of this court. The circumstance of the bond having been afterwards paid, and the money having got into the hands of the defendant, cannot make any difference in the determination of the question, which must depend upon the same principles as if it had arisen before. The rule that this court will not aid a volunteer to carry into effect an imperfect gift has" been established by. many decisions, and in particular by Coleman v. Sarrel, Ellison v. Ellison, 6 Ves. 656, and Ejv parte Pye, The case of Antrobus v. Smith, 12 Ves. 39, comes nearer to the circumstances of this case than any of those which have been referred to. There was in that case an endorsement pretty much in the same language with the present assignment; and the general doctrine there laid down by Sir William Grant is extremely applicable here. In order to bring this transaction within the rule, that, if there be a trust created, and the relation of trustee and cestui que trust once constituted, the court will execute the intention, it was argued here that the defendant became a trustee for the donee. The same argument was used in the case of Antrobus v. Smith, and it was met by Sir W. Grant with this observation : "Mr. Crawfurd was no oth- erwise a trustee than as any man may be called so who professes to give property by an instrument incapable of conveying it. He was not in form declared a trustee ; nor was that mode of doing what he proposed in his contemplation. He means a gift. He CHAP. III.] EDWARDS V. JONES. 299 says he assigns the property. -But it was a gift not complete. The property was not transferred by the act. Could he himself have been compelled to give effect to the gift by making an assign- ment? There is no case in which a party has been compelled to perfect a gift, which in the mode of making it he has left imper- fect. There is locus penitentiae as long as it is incomplete." Every word of that judgment applies directly to the circumstances of the present case. It is impossible, indeed, to distinguish the two cases; and it is equally impossible to question the doctiine there laid down. It was said, however, that there were two later decisions inter- fering with this doctrine, Sloane v. Cadogan and Fortescue v. Barnett. Now, it is sufficietit to prevent those cases from applying, that in neither of them was any intention expressed by the learned judge to depart from the established rule, but that in both the decisions turned upon the question of fact, whether or not the relation of trustee and cestui que trust was actually constituted. In neither was it attempted to make perfect an imperfect gift. In Sloan v. Cadogan, the claim was not against the donor or his representatives, for the purpose of making that complete which had been left imperfect, but against the persons who had the legal custody of the fund; and the question was, whether the transac- tion constituted them trustees of the fund for the cestui que trusts. Sir W. Grant came to the conclusion that it did ; and the conse- quence was that they were bound, to account. That case has been considered by Sir Edward Sugden as going a great way; but, upon the principle stated by Sir W. Grant, it is free from all pos- sible question, for there was no attempt in that case to call in aid the jurisdiction of this court. Fortescue v. Barnett falls precisely within the same observa- tion, although there are some expressions in it, especially where the learned judge speaks of a bond which has been voluntarily assigned being considered a debt to the assignee, which probably were not intended to convey the meaning they do. The case itself, and the judgment pronounced upon the facts, do not in any way touch the present question. There, a party had insured a life, and the contract of the office was, to pay to the party insuring, his executors, administrators,, and assigns ; but the practice of the office was stated to be, that upon an assignment the office recog- nized the assignee, and the policy was, therefore, an assignable instrument. The policy was not assignable at law, but it was a title which, by contract, was assignable as between the parties; 300 FORTESCUE V. BARNETT. [CHAP. III. and the party in that case assigned, but the assignee did not give notice to the office, and consequently the original insurer dealt with the office, received a bonus, and then surrendered the policy. The Master of the Rolls in that case considered, as he naturally would, whether this transaction was not a gift, — whether it did not, in fact, confer a title on the assignee; and if it did, then, consistently with all the authorities, he considered that he was bound to give the assignment its full effect; and he put his de- cision expressly upon the fact that the transaction was complete,^— that there was nothing further for the donor or the donee to do, — that the latter had nothing to ask further from the donor. Whether, upon the circustances of that case, it was right or wrong • to come to that conclusion, is a questioli with which I have noth- ing to do. The principle of the decision is quite consistent with the other cases; for it proceeds upon the same ground; namely, that, if the transaction is complete, the court will give it effect. So far, therefore, are these two cases from being authorities in favor of the gift in the present case, the principle acted upon in them by the learned judges is quite consistent with my refusing to aid the plaintiff in the present bill. On the whole, I see no reasonable ground for impeaching the decision of the Vice Chancellor, and his decree, must, therefore, be AMrmed. FORTESCUE v. BARNETT. (3 Mylne & Keen, 36.) [High Court of Chancery, 1834.] The defendant, John Barnett, shortly after the intermarriage of his sister, Mary Barnett, with Henry White, executed an in- denture dated the 17th of December, 1813, and made between himself of the first part, the said Henry White, since deceased, of the second part, Mary White, the wife of Henry White, of the third part, and the plaintiff, William Fortescue, and Thomas White, deceased, of the fourth part, whereby, after reciting that the Equitable Assurance Society had, by a policy of assurance dated the 27th of September, 1811, assured to be paid to the executors, administrators, and assigns of John Barnett, after his decease, £1,000, on payment of the annual premium of £25 lis., it was witnessed that, in consideration of the marriage then lately CHAP. III.] FORTESCUE V. BARNETT. 301 solemnized between Henry White and Mary White, and for making some provision for the said Mary White and her child and children, if she, or any such child or children, should sur- vive John Barnett, he, the said John Barnett, assigned and trans- ferred to William Fortescue and Thomas White the said policy of assurance, and the sum of £1,000 thereby assured, and all interest and produce to become due or payable by virtue thereof, and all his right and interest therein, to hold to William For- tescue arid Thomas White, their executors, administrators, and assigns, upon trust, in case Mary White and all and eve^y her child and children should happen to die in the lifetime of John Barnett, for John Barnett, his executors, administrators, and assigns, and to reassign the sqme to him and them accordingly; but if Mary White, or any child or children of Mary White, should happen to outlive John Barnett, then in trust that William Fortescue and Thomas White, their executors, administrators, and assigns, should invest the said sum of £1,000, and all other money which should become due on the said policy, in the public stocks or funds, upon the trusts therein declared, for the benefit of Mary White and her child or children. The deed contained a covenant on the part of John Burnett, for himself, his execu- tors and administrators, to pay and keep up the annual premiums payable upon the policy. This deed was delivered to Thomas White, one of the trustees named therein, and remained in his possession till his death, which happened in October, 1832; but the defendant, Barnett, retained possession of the policy of assurance. Shortly after the death of Thomas White, the deed was sent by one of his executors to William Fortescue, the surviving trustee, who, upon application at the office of the Equitable As- surance Society, was informed that no notice had ever been given to the society of the assignment of the policy ; that in July, 1830, a bonus of £795, payable upon the death of John Barnett, had been declared on the policy, which bonus was surrendered by Barnett to the society in the same month of July, in considera- tion of the sum of £394 15s.; and that in November, 1832, Bar- nett surrendered the policy itself to the society, in consideration of the further sum of £326 13s. The bill was originally filed by Fortescue against Barnett alone, for the purpose of compelling him to replace or give security for the value of the policy and bonus so surrendered, and of all bonuses which might have accrued or have been capable of being 302 FORTESCUE V. BARNETT. ' [CHAP. III. declared thereafter, if the poUcy had not been surrendered; but the defendant demurred to the bill for want of parties, and, the demurrer being allowed, Mrs. White and her children were made parties by amendment, leave having been given for that purpose. The bill prayed that the defendant, Barnett, might be decreed to pay to the plaintiff, or otherwise secure upon the trusts of the indenture of the 17th of December, 1813; the sum of £1,795, being the amount of the sum secured by the policy, together with the bonus declared thereon, and such further sum as should be sufficient to answer all future bonuses which, according to the regulations of the Equitable Assurance Company, would have accrued due in respect of the policy if it had not been surrendered. The defendant, Barnett, by his answer, stated that the settle- ment of the policy was a mere voluntary act on his part, and made out of his personal regard for his sister; and that he exe- cuted the settlement under the impression .that he should have the control of the policy during his life, and power, if he thought fit, to revoke or alter the disposition of the same. He further stated that the policy had been surrendered after the death of Mrs. White's husband, and with her consent, in order to save the expense of the annual premium, and with the understanding that the amount of the premium should be paid annually to Mrs. White, which had, in fact, been done.- The defendant further stated that, at the time of surrendering the policy, he executed a codicil to his will, whereby he made a provision for Mrs. White and her children to the extent of £1,000, and that he put Mrs. White, at the same time, into possession of a freehold estate of the value of £400, of which she" had ever since received the rents and profits, and that he had devised such freehold estate to her eldest son by his will. The question in the cause was, whether the defendant was or was not bound to replace or give security for the value of the policy. The Master of the Rolls. In the case of a voluntary assign- ment of a bond, where the bond is not delivered, but kept in the possession of the assignor, this court would undoubtedly, in the administration of the assets of the assignor, consider the bond as a debt to the assignee. There is a plain distinction between an assignment of stock where the stbck has not been transferred, and an assignment of a bond. In the former case, the material act remains to be done by the grantor, and nothing is, in fact, done which will entitle the assignee to the aid of this court until the CHAP. III.] HILL V. STEVENSON. 303 Stock is transferred; whereas the court will admit the assignee of the bond as a creditor. In the present case, the gift of the policy appears to me to have been perfectly complete without delivery. Nothing remained to be done by the grantor, nor could he have done what he after- wards did to defeat his own grant if the trustees had given notice of the assignment to the assurance office. The question does not here turn upon any distinction between a legal and an equitable title, but simply upon whether any act remained to be done by the grantor which, to assist a volunteer, this court would not compel him to do. I am of opinion that no act remained to be done to complete the title of the trustees. The trustees ougiit to have given notice»of the assignment ; but their omissions to give notice cannot affect the cestui que trust. The defendant appears to have acted in this transaction with the purest inten- tions, but he has rendered himself amenable to the jurisdiction of this court, and he must give security to the amount of the value of the policy assigned by the deed of settlement. The plain- tiff is entitled to cost. HILL V. STEVENSON. (63 Maine, 364.) [Supreme Judicial Court of Maine, 1873.] Bill in equity, brought by Harriet Hill and Isabella Steven- son against the latter's husband, as administrator of the estate of the late Alice Murch, the complainant's mother. Appleton, C. J. A delivery to a donee of a savings bank book, containing entries of deposits to the credit of the donor, with the intent to give the donee the deposits represented by the book, is a good delivery to constitute a complete gift of such deposits. Camp's Appeal, 36 Conn. 88. Such delivery vests the equitable title in the donee without assignment. The delivery may be to the donee or to some other person for the donee. Dole v. Lincoln, 31 Maine, 422; Marston v. Marston, 21 N. H. 491; Borneman v. Sidlinger, 15 Maine, 429; Wells' v. Tucker, 3 Binney, 366. The evidence satisfactorily shows that Alice Murch, the mother of the plaintiffs, gave the money she had in the Saco & Bidde- ford Savings Bank to the plaintiffs by a delivery of her savings 304 DONALDSON V. DONALDSON. [CHAP. III. bank book to Nehemiah Hill for their use and benefit ; that after such gift she ceased to have the possession of said book, or to exercise any control over the money deposited; and that the plaintiffs assented to and acquiesced in said gift. The plaintiffs have made out a perfect title to the money in controversy. The defendant/ as administrator on the estate of Alice Murch, was sued on his administration bond for a breach of duty in omit- ting to include in his inventory the money deposited by his in- testate in the Saco & Biddeford Savings Bank. In that suit, upon the evidenve before them, the jury found he was guilty of offi- cial neglect. The case came before the court upon exceptions to the ruling of the justice presiding at nisi prius. Bourne v. Stevenson, 58 Maine, 499. The exceptions were overruled and the decree of the court was that the defendant should file an addi- tional inventory including the above amount, which, in pursuance of such decree, he did. This judgment and decree is relied upon as a bar to the plaintiff's claim. The plaintiffs were no parties to the suit of Bourne v. Steven- son. They neither introduced proof, nor were heard by counsel. The judgment was between other parties. The rights of the plaintiffs were not affected by that judgment. Lewis v. Bolitho, 6 Gray, 137. The defendant has the money of these plaintiffs in his hands, and must be held to account for the same. The bill in equity may be sustained. The facts are similar to those in the case at bar, in Gardner v. Merritt, 32 Maryland, 78; and in Coutant v. Schuyler, 1 Paige, 317. Decree as prayed for. DONALDSON v. DONALDSON. (Kay, 711.) [High Court of Chancery, 1854.] Vice Chancellor Sir W. Page Wood. In this case a ques- tion has been raised how far a deed of assignment, executed by Thomas Hudson, and dated the 29th day of June, 1850, by which he voluntarily assigned a large amount of property, consisting of various securities, to trustees upon certain trusts for the benefit of his donees, has been available to pass certain portions of the property included in the deed. The question has arisen between CHAP. III.] DONALDSON V. DONALDSON. 305 some of the parties claiming under the deed and the Crown, be- cause the property which did not pass by the deed would be liable to probate and legacy duty, as passing by the settlor's will. With respect to the great bulk of the property comprisecl in the deed, the counsel for the Crown has conceded that, as it stood in the funds and other securities in the name of the settlor, and as he has executed a declaration of trust contained in this deed, the relation of the trustee and cestui que trust has been created, so that this court will give effect to it. The real question arises with respect to the sum of £29,400 stock, which was standing in the names of the trustees of the settlor's marriage settlement in trust for himself. I do not thing that the declaration of trust annexed to the description of this stock in the schedule is ma- terial. What I have to consider is, how far an assignment of this kind, of which no notice was given to the trustees in whose names this stock was standing, was effectual to pass the property therein to the trustees of the voluntary deed, so that this court would hold, as between the donees under that deed and the representa- tives of the assignor, that the title was complete. For the pur- poses of this question, it was necessary to consider the case of Kekewich v. Manning, 1 De G., M. & G. 176, in which the other decisions are reviewed and commented on by Lord Justice Knight Bruce, and which seemed to me, if I may use the expression, to stem the current of authority which had begun to set in adversely to these trusts, more especially since the decision in Edwards v. Jones. Ever since that case there has been considerably more diffi- culty as to how far a voluntary assignment of a chose in action does or does not confer a title on the donee. Looking through the cases, the principle which I gather from them is the same as that on which the Lords Justices seem to have proceeded in Kekewich v. Manning, 1 De G., M. & G. 176, and though that case does not go so far as the present, I still think that this is concluded by it. In all the cases, except Beatson v. Beatson, and particularly in Ex parte Pye, it is laid down that, when there is complete decla- ration of trust by a party concerning stock or choses in action vested in himself, this court will enforce it. On the other hand, where there is a contract only, or an imperfect gift, which re- quires some other act to complete it on the part of the assignor or donor, the court will not interfere to require anything else to be done by him. The intermediate cases alone are difficult of solution. The question is, in every case, has there been a decla- ration of trust, or has the assignor performed such acts that 20 306 DONALDSON V. DONALDSON. [CHAP. III. the donee can take advantage of them without requiring any fur- ther act to be done by the assignor ; and, if the title is so so far complete that this court is not called upon to act against the assignor, it will assist the donee in obtaining the property from any person who would be treated as a trustee for him. In Beatson V. Beatson, 12 Sim. 291, alone there was an assignment of an equitable interest in stock, which was vested not in the donor but in a third party, and it was held that the court would not assist the volunteer. In Dillon v. Coppin, 4 My. & Cr. 647, stock standing in the donor's own name was assigned, and there this dis- tinction was taken, which was somewhat nice, but still consistent with Ellison v.. Ellison, 6 Ves. 656, and the other cases; namely, that, the stock being in the name of the donor himself, and there being no declaration of trust but a mere assignment, which would not pass the stock at all, and the deed showing an evident intention on the part of the assignor to do some further act, and contain- ing a covenant to perfect the gift, the court said, we cannot call upon the donor to transfer the stock or complete the gift. But in the case of an assignment of the equitable interest in stock standing in the names of trustees, the deed of assignment passes the whole equitable interest of the donor, and the donee may go with that deed to the trustees, and say, transfer to me the interest in this sum of stock ; and I think that in such a case it would not even be necessary to make the donor a party to a suit to enforce the gift. Then the question is, whether, notice not having been given to the trustees, the gift could be enforced. As to that, it has been said in some cases, that the gift is complete when no further act is required to be done by the donor or the donee; and that seems to imply a doubt whether, if there were any act to be done by the donee, the gift could be treated as complete. But the as- signment has completely passed the interest of the donor. It is true, that, if no notice of it were given to the trustees, they would be justified in transferring the stock to the original cestui que trust for whom they held it; and, if they did so, there would be no remedy against them ;' and it is possible that the donee might not be able to recover the stock; but all that the donee has to do is, at any time he thinks fit, to give notice to the trustees before the stock is transferred; and when he has given such notice, his title is complete; and, unless the donor or his executors actually obtain possession of the fund, the donee does not require the aid of this court against them. The fact that the trustees are CHAP. III.] MILROY V. LORD. 307 themselves the executors of the donor in this case, I think, does not make any difference. As the donor has not obtained posses- sion of the fund, the donees have a right to go to the trustees and require them to transfer the stock, or come to the court to have that done. The donees require no assistance from the court against the original assignor, and therefore the assignment is such as the court wiU support. That is the principle upon which cases like Shane v. Cadogan proceed, and which Lord Cottenham seems to recognize in Edwards v. Jones, where he says: "In Shane v. Cadogan the claim was not against the donor or his representa- . tives for the purpose of making that complete which had been left imperfect, but against the persons who had the legal custody of the fund; and the* question was, whether the transaction con- stituted them trustees for the fund for the cestui que trusts." Sir W. Grant came to the conclusion that it did ; and the consequence was, that they were bound to account. That case has been con- sidered by Sir Edward Sugden as going a great way ; but, upon the principle stated by Sir W. Grant, it is free from all pos- sible question, for there was no attempt in that case to call in aid the jurisdiction of the court. In this case, there is no need whatever for the donees to call in aid the jurisdiction of this court against the original assignor or his representatives.' All that they have to do is, to require the trustees who hold the fund to transfer it to them. This decision goes somewhat beyond all the authorities except Cadogan v. Sh^ne; but I cannot hold that the owner of an equi- table interest in a chose in action is not entitled to assign it ; and I think that, upon the principle recognized in Ellison V. Ellison, and like cases, I must decide that the equitable interest in this stock was effectually assigned by this deed. MILROY V. LORD. (4 De G., F. & J. 264.) [High Court of Chancery, 1862.] This was an appeal by the defendant Otto, the personal repre- sentative of Medley, from a decree of Vice Chancellol- Stewart. The bill was filed by Andrew Row M'Taggart Milroy and Eleanor Rainey, his wife, formerly E. R. Dudgeon, for the pur- 308 MILROY -v. LORD. [CHAP. III.. pose of having new trustees appointed of a voluntary settlement made by the late Thomas Medley, and for recovering fifty shares of the Bank of Louisiana, which formed the subject of the set- tlement, and thirteen North American fire insurance shares, which were purchased with the income of the bank shares, together with the dividends upon all the above mentioned shares, so far as they had not been paid over to the plaintiffs or one of them; and the bill also prayed that the defendant Samuel Lord, the trustee named in the settlement, might be decreed to make compensa- tion to the plaintiffs and other the parties entitled under the set- tlement in respect of his having given up the certificates for the shares to the defendant Otto, the executor of Thomas Medley. The settlement in question was made by a deed poll, dated the 2d April, 1852, which was as follows : — "Know all men by these presents, that I, -Thomas Medley, of the city of New Orleans, on account of the love and affection I have for my niece, Eleanor Rainey Dudgeon, daughter of Daniel Dudgeon, of England, and in consideration of one dollar to me in hand paid, have conveyed, transferred, set over, and delivered, and by these presents do convey, transfer, set over, and deliver, unto Samuel Lord, of the city and county of New York, fifty shares of the capital stock of the Bank of Louisiana, now standing in my name in the books of the said bank, together with the cer- tificate or scrip thereof, numbered 3,457, and dated the 6th March, 1852, under the corporate seal of the said bank, signed by W. W. Montgomery, president, and attested by R. M. Davis, cashier, and the dividends and profits thereof, to have and to hold to the said Samuel Lord and his legal representatives upon the trusts and conditions following, towit, in trust to collect and receive the dividends and profits of the said stock, and apply them to the use and benefit of the said Eleanor Rainey Dudgeon, if I be living until the time of the marriage of the said Eleanor, and upon the further trust, in case I die before the marriage of the said Eleanor, leaving her surviving me, then to transfer the said shares of stock, or the proceeds thereof, to the said Eleanor, for her own use and benefit; and upon the further trust, in case the said Eleanor should during my lifetime marry, with my previous consent and approbation, then to apply the said dividends and profits to the use of the said Eleanor for life, and after her death to convey and transfer the said stocks or the proceeds thereof to her issue, if she leave any her surviving, and in default of such issue to convey and transfer the said stock or its proceeds CHAP. III.] MILROY V. LORD. 309 to my next of kin ; and upon the further trust, if the said Eleanor shall have died before me without having married, or shall dur- ing my lifetime marry without my consent, then to reconvey and retransfer the said stock or its proceeds to me ; and upon the fur- ther trust, on my direction at any time during my lifetime, or in his discretion after my death, to convert the said stock into money by sale thereof, and after such conversion to invest the proceeds thereof in his discretion in other stocks or upon a bond or mort- gage at interest, to be held on the like trusts and subject to the like powers of conversion as the stock hereby transferred, and the dividends and profits thereof; reserving to myself the power at any time in writir^, by will or otherwise, to direct and com- pel the said Samuel Lord to transfer the said stock or the pro- ceeds thereof to the said Eleanor, for her own use and benefit absolutely, and also reserving to myself the power, in case of the death of the said Samuel Lord before me, of appointing an- other or other trustee or trustees in his place and stead. And I, the said Samuel Lord, do consent and agree to accept this trans- fer ; and I hereby covenant and agree to and with the said Thomas Medley and the said Eleanor Rainey Dudgeon, severally and re- spectively, and their several and respective legal representatives, that I will observe, perform, fulfill, and keep the trusts and con- ditions hereinbefore declared." This deed poll was under the hand and seal both of Thomas Medley and of the defendant Samuel Lord. At the time of the execution of the deed poll, Samuel Lord held a power. of attor- ney from Thomas Medley, whereby Medley empowered him "to take possession, charge, and control of all his goods, chattels, books of account, evidences of debt, choses in action, and claims of every kindj to buy and to sell and to transfer the stock of any incorporated company now belonging to him, or which might thereafter belong to him, and to collect and receive the divi- dends," and gave him general authority to act -on his behalf. Soon after the execution of the deed poll, Thomas Medley deliv- ered to the defendant Lord the scrip for one hundred and sixty- two shares which he then held in the Bank of Louisiana, includ- ing the scrip for the fifty shares comprised in the deed of set- tlement. About the same time, Medley gave to the defendant Lord a further power of attorney, authorizing him to receive the dividends then due and payable, and which might there- after become due and payable, on all or any shares of the capi- tal stock of the Bank of Louisiana then standing, or which 310 MILROY V. LORD. [CHAP. III. might thereafter be placed in his name in the books of the said Bank of Louisiana, and to give receipts, discharges, and acquit- tances for the same, with power to the said attorney to substi- tute an attorney or attorneys under him for all or any of the purposes aforesaid, and to do all lawful acts requisite for affecting the premises. According to the constitution of the Bank of Louisiana, the shares in the bank were transferable in the books of the company, and all transfers were to be made by the proprietor or his law- ful attorney, the certificate of stock being surrendered at the time the transfer was made ; but it was to be collected from the evidence in the cause, that, where a transfer was made by power of attorney, the power of attorney had to be left with the bank. No transfer was ever made into the name of the defendant Lord of the fifty shares comprised in the settlement'; but the dividends upon the shares appeared to have been received by Lord, and remitted by him to the plaintiff Mrs. Milroy, then Eleanor Rainey Dudgeon, sometimes directly and sometimes through the medium of the settlor, by whom they were paid over to her, except as to one dividend, which appeared not to have been so paid over. The thirteen North American fire insurance shares were purchased, as it appeared, paid to Mrs. Milroy, then Eleanor Rainey Dudg- eon, along with the dividends upon the bank shares; but these insurance shares were purchased in the name of Thomas Medley. In the year 1855, the plaintiffs intermarried, with the consent and approbation of Thomas Medley. In the month of November in that year Thomas Medley died, having by his will bequeathed to the plaintiff E. R. Milroy a legacy of £4,000, and appointed the defendant J. A. Otto to be his executor, who duly proved his will. After his death, the defendant Lord delivered to Otto the certificates both for the fifty Louisiana bank shares and for the thirteen North American fire insurance shares. The plaintiff E. R. Milroy was the niece of Thomas Medley. She was educated at his expense, and liveci with him after she was grown up until the summer ofthe year 1852, in the spring of which year he mar- ried the daughter of the defendant Samuel Lord. The settlement which the bill sought to enforce was made in consequence of that marriage, and of the plaintiff E. R. Milroy then ceasing to live with the settlor, and as a provision for her ; and she was told by Thomas Medley that he had made the settlement on that account and for that purpose. The Vice Chancellor Stewart, at the hearing of the cause, and CHAP. III.] MTLROY Z;. LORD. 311 of a petition presented in it and under the trustee act, made a decree declaring that the fifty shares in the Bank of Louisiana were bound by tlie trusts declared by the deed poll -of the 2d April, 1852, and that the thirteen shares in the North American Fire Insurance Company, in the bill mentioned, belonged to the plaintiffs in right of the plaintiff Eleanor Rainey Milroy, the same having been purchased before her marriage with moneys belong- ing to her. The decree proceeded to appoint a new trustee, and to order the defendant Otto, an executor of the will of the set- tlor, to transfer the fifty shares in the Bank of Louisiana into the joint names of Lord and the new trustees, to-be held by them upon the trusts of the said deed poll, and also to transfer the thirteen shares in the North American Fire Insurance Company into the name of the plaintiff Andrew Row M'Taggart Milroy, for his own use. It was further ordered that the amount of the dividends accrued since the decease of Medley upon the fifty shares in the Bank of Louisiana, up to the time of the transfer, should be paid by Otto to Lord and the new trustee, to be also held by them upon the trusts of the deed poll ; and that the amount of the dividends accrued since the decease of Medley upon the thirteen shares should be paid to the plaintiff Andrew Row M'Taggart Milroy, for his own use. The costs of the suit were ordered out of Medley's estate. The defendant Otto appealed from this decree. The Lord Justice Turner^ after stating the facts of the case nearly in the same terms as above, proceeded as follows : — Under the circumstances of this case, it would be difficult not to feel a strong disposition to give effect to this settlement to the fullest exteht, and certainly I have spared no pains to find the means of doing so, consistently with what I apprehend to be the law of the court ; but, after fuU and anxious consideration, I find myself unable to do so. I take the law of this court to be well settled, that, in order to render a voluntary settlement valid and effectual, the settlor rnust have done everything which, according to the nature of the property comprised in the settlement, was' necessary to be done in order to transfer the property, and render the settlement binding upon him. He may, of course, do this by actually transferring the property to the persons for whom he intends to provide, and the JDrovision will then be effect- ual; and it will be equally effectual if he transfers the property to a trustee for the purposes of settlement, or declares that he himself holds in trust for those purposes; and, if the property 312 MILROY Z/. LORD. [ CHAP. III. be personal, the trust may, as I apprehend, be declared either in writing or by parol ; but, in order to render the settlement binding, one or other of these modes must, as I understand the law of this court, be resorted to, for there is no equity in this court to perfect an imperfect gift. The cases, I think, go further to this extent, thai, if the settlement is intended to be effectuated by one of the modes to which I have referred, the court will not give effect to it by applying another of those modes. If it is intended to take effect by transfer, the court will not hold the intended transfer to operate as a declaration of trust; for then every im- perfect instrument would be made effectual by being converted into a perfect trust. These are the- principles by which, as I con- ceive, this case must be tried. Applying, then, these principles to the case, there is not here any transfer either of the one class of shares or of the other to the objects of the settlement; and the question, therefore, must be, whether a valid and effectual trust in favor of those objects was created in the defendant Samuel Lord, or the settlor himself, as to all or any of these shares. Now, it is plain that it was not the purpose of this settlement, or the intention of the settlor, to constitute himself a trustee of the bank shares. The intention was that the trust should be vested in the defendant SamuelLord; and I 'think, therefore, that we should not be justified in holding that, by the settlement or by any pai-ol declaration made by the settlor, he himself became a trustee of these shares for the pur- poses of the settlement. By doing so, we should be converting the settlement or the parol declaration to a purpose wholly differ- ent from that which was intended to be effected by it, and, as \ have said, creating a perfect trust out of an imperfect trans- action. His Honor the Vice Chancellor seems to have considered that the case Ex parte Pye warranted the conclusion that the settlor himself became a trustee by virtue of the power of attorney which he had given to the defendant Samuel Lord ; but in Ex parte Pye the power of attorney was given by the settlor for the express purpose of enabling the annuity to be transferred to the object of the settlor's bounty. The settlor had, it appears, already di- rected the annuity to be purchased for the benefit of that object, . and had even paid over the money for. the purpose of its being applied to the purchase of the annuity ; and then, when the annu- ity was, from the necessity of the case, purchased in the settlor's name, all that possibly could be wanted was to show that the orig- CHAP. III.] MILROY V. LORD. 313 inal purpose was not changed, and that the annuity, though pur- chased in the settlor's name, was still intended for the benefit of the same object of the settlor's bounty; and the power of attorney proved, beyond all doubt, that this was the case. These facts appear to me wholly to distinguish this case from the case of Ex parte Pye. In my opinion, therefore, this decree cannot be supported upon the authority of Ex parte Pye; and there does not appear to me to be any sufficient ground to warrant us in holding that the settlor himself became a trustee of these bank shares for the pur- poses of this settlement. The more difficult question is, whether the defendant Samuel Lord did not become a trustee of these shares. Upon this ques- tion I have felt considerable doubt ; but, in the result, I have come to the conclusion that no perfect trust was ever created in him. The shares, it is clear, were never legally vested in him ; and the only ground on which he can be held to have become a trustee of them is, that he held a power of attorney under which he might have transferred them into his own name; but he held that power of attorney as the agent of the settlor ; and if he had been sued by the plaintiffs as trustee of the settlement for an account under the trust, and to compel him to transfer the shares into his own name as trustee, I think he might well have said: These shares are not vested in me ; I have no power over them, except as the agent of the settlor ; and without his »xpress direc- tions, I cannot be justified in making the proposed transfer, in converting an intended into an actual settlement. A court of equity could not, I think, decree the agent of the settlor to make the transfer, unless it could decree the settlor himself to do so; and it is plain that no such decree could have been made against the settlor. In my opinion, therefore, this decree cannot be main- tained as to the fifty Louisiana Bank shares. As to the thirteen North American fire insurance shares, the case seems to me to stand upon a different footing. Although the plaintiffs' case fails as to the capital of the bank shares, there can, I think, be no doubt that the settler made a perfect gift to Mrs. Milroy, then Miss Dudgeon, of the dividends upon these shares, so far as they were handed over or treated by him as belonging to her; and these insurance shares were purchased with dividends which were so handed over or treated. It seems to me, upon the evidence, that these shares were purchased with the money of Mrs. Milroy, then Miss Dudgeon, and that the purchase having been made in Thomas Medley's name, there 314 MILROY V. LORD. [CHAP. III. would be a resulting trust for Miss Dudgeon. I think, therefore, that as to these shares the decree is right, — ^the value of the shares being, as I presume, under i200, so that the case does not fall within the ordinary rule of the court as to the wife's equity for a settlement. The case being thus disposed of as to the title to the shares, I see no ground for the claim to compensation raised by this bill. The certificates for the shares would follow the legal title, and as to the fifty bank shares would therefore belong to the defend- ant J. A. Otto, and as to the thirteen insurance shares the plain- tiffs recovering those shares must recover the certificates also; but this not being provided for by the -decree, a direction for the delivery of these certificates should, I think, be added. Upon the hearing of this appeal, it was contended for the plain- tiffs that, so far as they might fail in recovering any of the shares in question, they were entitled to recover the value of them against the estate of Thomas Medley. I am not sure that this point can properly be considered to be open upon these pleadings; but, whether it be so or not, I agree with my learned brother that the plaintiff's claim in this respect cannot be maintained. There is no express covenant in the settlement; and whatever might be done as to implying a covenant to do no act in defogation of the settlement, it would, I think, be going too far to imply a covenant to perfect it. If there be a breach of any implied covenant by the delivery of the certificates to the defendant J. A. Otto, the plaintiffs' remedy sounds in damages, and they may pursue that remedy at law ; for which purpose, if the plaintiffs desire it, there may be inserted in the decree a direction that they be at liberty to use the name of the defendant Lord, — of course upon the usual terms of indemnifying him. I have not adverted to the point which was raised as to this case being governed by the Spanish law ; for I think that, if that law was more favorable to the plain- ,tiffs, the onus was upon them to allege and prove it. As to the costs of the suit, my learned brother being of opinion that they ought to be paid out of the settlor's estate, I do not dissent. The decree must be altered accordingly, as to the several points to which I have referred. CHAP. III.]. RICHARDS V. DELBRIDGE. 315 RICHARDS V. DELBRIDGE. (L. ie..l8 Eq. 11.) [Chancery Division, 1874.] Demurrer. The bill filed by Edward Bennetto Richards, an infant, by his next friend, stated : That John Delbridge, deceased, was possessed of a mill, with the plant, machinery, and stock in trade thereto belongiri^, in which he carried on the business of a bone manure merchant, and which was held under a lease dated the 24th of June, 1863. That on the 7th of March, 1873, John Delbridge endorsed upon the lease and signed the following mem- orandum : "7th March, 1873. This deed and all thereto belonging I give to Edward Bennetto Richards from this time forth with all the stock in trade. John Delbridge." That the plaintiff was the person named in the memorandum, and the grandson of John Delbridge, and had then for some time assisted him in the busi- ness. . That John Delbridge, shortly after signing the memoran- dum, delivered the lease on his behalf to Elizabeth Ann Richards, the plaintiff's mother, who was still in possession thereof. That John Delbridge died in April, 1873, having executed several tes- tamentary instruments which did not refer specifically to the said mill and premises, but he gave his furniture and effects, after his wife's death, to be divided among his family. That the testa- tor's widow, Elizabeth Richards, took out administration to his estate, with the testamentary papers annexed. The bill, which was filed against the defendants Elizabeth Delbridge, Elizabeth Ann Richards, and the testator's two sons, who claimed under the said testamentary instruments, prayed a declaration that the endorsement upon the lease by John Delbridge and the delivery of the lease to Elizabeth Ann Richards created a valid trust in favor of the plaintiff of the lease and of the estate and interest of John Delbridge in the property therein comprised, and in the good will of the business carried on there, and in the implements and stock in trade belonging to the business. The defendants de- murred to the bill for want of equity. Jessel, M. R. This bill is warranted by the decisions in Rich- ardson V. Richardson, L. R. 3 Eq. 686, and Morgan v. Malleson, 316 RICHARDS V. DELBRIDGE. [CHAP. III. L. R. 10 Eq. 475, but, on the other hand, we have the case of Milroy v. Lord, 4 De Gex, F. & J. 264, before the'Court of Ap- peals, and the more recent case of Warriner v. Rogers, L. R. 16 Eq. 340, 348, in which Vice Chancellor Bacon said : "This rule of law upon this subject I take to be very clear, and, with the exception of two cases which have been referred to (Richardson V. Richardson and Morgan v. Malleson), the decisions are all per- fectly consistent with that rule. The one thing necessary to give validity to a declaration of trust — the indispensable thing — I take to be, that the donor, or grantor, or whatever he may be called, should have absolutely parted with that interest which had been his up to the time of the, declaration, should have effectually changed his right in that respect, and put the property out of his power, at least in the way of interest." The two first mentioned cases are wholly opposed to the two last. That being so, I am not at liberty to' decide the case other- wise than in accordance with the decision of the Court of Appeal. It is true the judges appear to have taken different views of the construction of certain expressions, but I am not bound by an- other judge's view of the construction of particular words; and there is no case in which a different principle is stated from that laid down by the Court of Appeal. Moreover, if it were my duty to decide the matter for the first time, I should lay down the law in the same "way. The principle is a very simple one. A man may transfer his property, without valuable consideration, in one of two ways : He may either do such acts as amount in law to a conveyance or as- signment of the property, and thus completely divest himself of the legal ownership, in which case the person who by those acts acquires the property takes it beneficially, or on trust, as the case may be ; or the legal owner of the property may, by one or other of the modes recognized as amounting to a valid declaration of trust, constitute himself a trustee, and, without an actual transfer df the legal title, may so deal with the property as to deprive himself of its beneficial ownership, and declare that he will hold it from that time forward on trust for the other person. It is true he need not use the words, "I declare myself a trustee," but he must do something which is equivalent to it, and use expres- sions which have that meaning; for, however anxious the court may be to carry out a man's intention, it is not at liberty to con- strue words otherwise than according to their proper meaning. The cases in which the question has arisen are nearly all cases CHAP, m.] RICHARDS V. DELBRIDGE. 317 in which a man, by documents insufficient to pass a legal interest, has said: "I give or grant certain property to A. B." Thus, in Morgan v. Malleson, L. R. 10 Eq. 475, the words were : 'Thereby give and make over to Dr. Morris an India bond ;" and in Rich- ardson V. Richardson, L. R. 3 Eq. 686, the words were, "grant, convey, and assign." In both cases the judges held that the words were effectual declarations of-trust. In the former case. Lord Romilly considered that the words were the same as these: "I undertake to hold the bond for you," which would undoubtedly have amounted to a declaration of trust. The true distinction appears to me to be "plain, and beyond dis- pute ; for man to make himself a trustee there must be an expres- sion of intention to become a trustee, whereas words of present gift shew an intention to give over property to another, and not retain it in the donor's own hands for any purpose, fiduciary or otherwise. In Milroy v. Lord, 4 De Gex, F. & J. 264, 274, Lord Justice Turner, after referring to the two modes of making a voluntary settlement valid and effectual, adds these words: "The cases, I think, go further, to this extent : That if the settlement is intended to be effectuated by one of the modes to which I have referred, the court will not give effect to it by applying another of those modes. If it is intended to take effect by transfer, the court will not hold the intended transfer to operate as a declaration of trust, for then every imperfect instrument would be made effectual by being converted into a perfect trust." It appears to me that that sentence contains the whole law on the subject. If the decisions of Lord Romilly and of Vice Chan- cellor Wood were right, there never could be a case where an expression of a present gift would not amount to an effectual dec- laration of trust, which would be carrying the doctrine on that subject too far. It appears to me that these cases of voluntary gifts should not be confounded with another class of cases in which words of present transfer for valuable consideration are held to be evidence of a contract which the court will enforce. Applying that reasoning to cases of this kind, you only make the imperfect instrument evidence of a contract of a voluntary nature which this court will not enforce ; so that, following out the prin- ciple even of those cases, you come to the same conclusion. I must, therefore, allow the demurrer ; and, though I feel some hesitation, owing to the conflict of the authorities, I think the costs must follow the result. 318 RICHARDSON V. RICHARDSON. [CHAP. HI. RICHARDSON v. RICHARDSON. (L. R. 3 Eq. 686.) [Equity Cases, 1867.] Sir W. Page Wood, V. C. The sole question in this case is, whether a legatee, under the will of the testator, Richard Rich- ardson, of a sum of £1,250, ought or ought not to submit to a deduction -of i450, in respect of two promissory notes given by him to his sister, which involves the further question whether the testator was or was not the absolute owner of the notes. If he was the owner, though he demanded no interest upon the notes, and made no application for payment of them, yet, as is conceded, the statute of limitations cannot be set up ; and the plaintiff must be' considered as having received, on account of his legacy, so much of the assets of the testator as his debt amounted to. Whether or -not the notes were the property of the testator depends upon a certain voluntary assignment, whereby the sis- ter, shortly before her death, assigned the whole of her personal estate to her brother, the testator ; and in the same instrument she gave him a power of attorney to ask, sue for, and recover the thereby assigned moneys and premises, and to ,do and execute such further acts and deeds as should be deemed necessary for deriving the full benefit of the assignment. Now, there is no specific description in the deed of the prom- issory notes; and, if they passed at all, they passed under the description of "all the other personal estate and effects, whatso- ever and wheresoever," of Elizabeth Richardson. She did not endorse the notes; and the defendants, the executors, by their answer, say they believe that, if she had not died so soon, the testator would have applied to her to endorse the notes, but she did no do so. The questions are: First, whether they passed by the deed at all; and, secondly, if they passed, whether they passed to the testator as trustee, or in his own right. After the decision in Kekewich v. Manning, 1 D. M. & G. 176, I think it is impossible to contend that these notes did -not pass by this instrument, because the rule laid down in that case, the decision in which was supported by reference to Ex parte Pye, CHAP. III.] RICHARDSON V. RICHARDSON. 319 was not confined merely to this, that a person who, being entitled to a reversionary interest, or to stock standing in another's name, assigns it by a voluntary deed, thereby passes it, notwithstanding that he does not in formal terms declare himself to be trustee of the property ; but it amounts to this, that an instrument executed as a present and complete assignment (not being a mere cove- nant to' assign on a future day), is equivalent to a declaration of trust. It is impossible to read the argument in that case, and the judgment of Lord Justice Knight Bruce, without seeing that his mind was directed to Meek v. Kettlewell, 1 Hare, 464, and that class of cases, where it had been held (such was the nicety upon which the decisions turned) that ah actual assignment is noth- ing more than an agreement to assign in equity, because it merely passes such equitable interest as the assignor may have ; and some further step must be taken by the assignee to acquire the legal interest. That further step being necessary, the assignment was held to be in truth nothing but an agreement to assign,, and, being so, was not enforceable in this court, — the court having often de- cided that it will not enforce a mere voluntary agreement. The distinction, undoubtedly, was very fine between that and a declaration of trust ; and the good sense of the decision in Keke- wich V. Manning, I think, lies in this, that the real distinction should be made between an agreement to do something when called upon, something distinctly expressed to be future in the instrument, and an instrument which affects to pass everything, independently of the legal estate. It was held in Kekewich v. Manning that such an instrument operates as an out-and-out as- signment, disposing of the whole of the assignor's equitable in- terest, and that such a declaration of trust is as good a form as any that can be devised. The expression used by the Lord Jtfstices is this: "A declaration of trust is not confined to any express form of words, but may be indicated by the character of the instrument." In that case, reference was made in the argument, principally to the case of Ex parte Pye, which was a decision of Lord Eldon to the same effect. Reliance is often placed on the circumstance that the assignor has done all he can, — ^that there is nothing re- maining for him to do; and it is contended that he must, in that, case only, be taken to have made a complete and effectual assign- ment. But that is not the sound doctrine on which the case rests ; for, if there be an actual declaration of trust, although the as- 320 RICHARDSON V. RICHARDSON. [CHAP. III. signer has not. done all that he could do, — for example, although he has not given notice to the, assignee, — ^yet the interest is held to have effectually passed as between the donor and donee. The difference must be rested simply on this : Aye or no, has he con- stituted himself a trustee? In Ex parte Pye, the testator had written to one Dubost, au- thorizing him to purchase in France an annuity for the' benefit of a lady named Garos, for her life, with power to' draw on him for i 1,500 for such purchase. The agent, finding, that the lady was a ftiarried woman, exercised his own discretion, and bought the annuity in the name of the testator. Then, shortly before his death, the. testator sent to Dubost, by his desire, a power of attor- ney authorizing him to transfer the annuity to the lady. The tes- tator died before anything more was done; and, after his death, the annuity was transferred. There was a question whether, by the law of France, the exercise of a power of attorney by the person to whom it is given, without knowledge of the death of his prin- cipal, is good. I think the Master found that it was so ; but Lord Eldon expressly declined to reply upon that, as he says in his judgment: "These petitions" (the question came on upon peti- tion) "call for the decision of points of more importance and difficulty than I should wish to decide in this way, if the case was not pressed upon the court. With regard to the French annuity, the Master has stated his opinion as to the French law, — ^perhaps without sufficient authority, or sufficient inquiry into the effect of it, — as applicable to the precise circumstances of this case, but it is not necessary to pursue that, as upon the documents before me it does appear that, though in one sense this may be repre- sented as the testator's personal estate, yet he has committed to writing what seems to me a sufficient declaration that he held this part of the estate in trust for the annuitant." CHAP. III.] IN RE Breton's estate. 321 c. Gifts Between Husband and Wife. IN RE BRETON'S ESTATE. (L. R. 17 Ch. Div. 416.) [Chancery Division, 1881.] Frederick Breton, who died on the 7th of June, 1880, by his ivill, dated the 8th of August, 1878, appointed two executors and trustees, and after bequeathing certain pecuniary legacies, and making a specific bequest to the widow of a late brother, and specifically devising certain freehold property, bequeathed all the residue of his property and effects to his trustees upon trust at their discretion to continue them or to make other investments of the moneys which were vested in them, and -to permit his wife to receive the income of his residuary estate and the investments during her life, and after, her death, as to the same residuary estate and the income, upon trust for his six nieces in equal shares. The testator had no real estate not specifically devised, but his personal estate not specifically bequeathed was of the value of about £22,000. The testator intermarried with the plaintiff in January, 1868. At that time she was possessed of certain articles of jewelry of her own, and on the occasion of the marriage, and subsequently, her husband gave her many other articles of jewelry; and. all these articles she always retained and had sole possession and used and wore as she pleased. The testator having previously purchased some furniture, on the 22d of April, 1868, wrote and handed to his wife the follow- ing paper: "This is to certify that there being now at Messrs. Maple & Co., 145 Tottenham Court Road, one hundred pounds worth of furniture belonging to me, I give the same to my dear wife Agnes A. Breton, absolutely and unreservedly, for her own use and benefit. "Fredk. Breton, "Major Rl. Wilts Militia." "Haxell's Hotel, Strand, London, April 22d, 1868." 21 322 IN RE Breton's estate. [chap. hi. The testator, having purchased some plate and plated articles, wrote to the plaintiff thus : — "London, June 1st, 1868. "My Dearest Wife : — I this day. make you a present of the plate, etc., now at Mappin and Webb's, and which they are taking care of for me, for your sole use and benefit. The sum I paid for it is i59 7s. lOd. Ever yr affect, husband, "Fredk. Breton." The testator and his wife subsequently hired a house at Forest Hill, where they went to reside, and thereupon the furniture, plate, and plated articles were removed thither. Other furniture and household goods purchased by and belonging to the testator were placed in the same house, and on the 18th of June, 1868, he wrote and handed the following to the plaintiff : — "My Dearest Wife: — Having previously made over to you for your sole use and benefit a certain amount of furniture, plate, etc., I now present you with everything, furniture, linen, etc., plate, china, and glass, and all jewelry now belonging to me at No. 1 Dulwich Villas, Devonshire Road, Forest Hill. All this to be yours and yours only from this date, June eighteenth, 1868. This gift from "Yr affect husband, "Fredk. Breton." The testator and his wife subsequently went to reside in a house in the Belvedere Road,"" where they lived at the time of his death. To that house all the furniture, plate, and plated and other articles and goods were taken frdm the house at Forest Hill. While the testator and his wife resided together at the two houses, the articles mentioned were used in the odinary way, and from time to time various additions were made thereto by the testator ; but during his life he always, as alleged, spoke of all. the furniture and other articles and 'goods, and the said additions thereto, as being the sole property of his wife, and often referred to the useful provision for her comfort which she would have therein and by means thereof after his death. The trustees and executors having insisted that all the said jewelry, furniture, plate, and plated and other articles and goods, and the said additions thereto, formed part of the testator's estate, the widow brought this action to have it ascertained and declared whether the same, or any and which of them, or any and what parts thereof, belonged to her or formed part of the testator's CHAP. III.] IN RE Breton's estate. 323 estate ; and if necessary an administration of the trusts by the court. At the hearing the executors did not claim the articles of jewelry. HalLj V. C. I am unable to support this gift to the plaintiff, the wife, as a trust declared by her husband in her favor. I am very sorry for it, because it is a monstrous state of the law which prevents effect being given to such a gift. I think that the diffi- culty in the case is occasioned by two or three of the decisions which have been referred to, and which seem to favor the con- tention that these paper writings can be supported as a declara- tion of trust by the ^usband in favor of his wife. It was submit- ted that the husband must be taken to have intended, knowing what the law is, to constitute himself a trustee for her, that being the only way of giving effect to the paper writings, i. e., as other trustees were not appointed, he must be held to have constituted himself a trustee. That argument appears to me to come to this, that in every case of an imperfect gift on the part of the alleged donor, if the gift be not effectual by reason of an incomplete transfer of the property from the alleged donor to the intended donee, or to some person who is to be a trustee for the intended donee, the court must give effect to the donation by holding that the alleged donor was a trustee, as it must be considered that he knew the law, and that if he did not effectuate his object in the one way in which it would have been valid, it must be done in another. But in truth, in the one case as well as in the other, whether a wife or a stranger be the o^jject of the gift, it is mani- fest from the transaction taken by itself that the alleged donor was mistaken as regards the proper and legal mode of effectuating that which he intended to do. It is plain that the husband was mistaken, and it is not necessary to impute to him that he meant to make the gift in an ineffectual way. Looking at the documents, they are a contradiction of any intention on his part to do that. The case of Grant v. Grant, 34 Beav. 623, was that of a gift to a wife, and if the late Master of the Rolls had based his judg- ment on that ground, supporting it as being a special and pecu- liar case, and creating a different law as applicable to husband and wife in every case, I should have nothing more to do than to follow that decision. But it is plain, from the reasons given for the decision, that it was meant to be applicable to every other case of the kind, and not merely to that of husband and wife. ^No other cases of a gift by a husband to his wife have been referred 324 IN RE BRETON'S ESTATE. [CHAP. III. to excepting the two recent decisions of Vice Chancellor Malins in the case of Fox v. Hawks, 13 Ch. Div. 822. As to the former case, I observe that Vice Chancellor Malins said that the law was correctly stated in the case of Grant v. Grant, and that he was not disposed to disagree with the-judgments in Richardson v. Richard- son, and ia Morgan v. Malleson, notwithstanding the remarks of the Master of the Rolls in the case of Richards v. Delbridge. That being so, there is, as Vice Chancellor Malins seems to have meant there should be, a clear difference of opinion between himself and the Master of Rolls upon this question, because he adopted the decisions in the two cases of Richardson v. Richardson and Mor- gan V. Malleson, — decisions which the Master of the Rolls would not follow. That being so, I must look at all the authorities and endeavor to find a correct statement of the law on the subject. I consider that the principal authority in these cases is that of the case of Milroy v. Lord, where there is a very clear and elab- orate statement of the law by the late Lord Justice Turner. A portion of the judgment of the Lord Justice was quoted by the Master of the Rolls in Richards v. Delbridge, and there is much in it which is, I think, applicable to this case. The Lord Justice, after stating that under the circumstances of the case before him it would be difficult not to feel a strong disposition to give effect to the settlement to the fullest extent, said: "But in order to render the settlement binding, one or other of these modes" — i. e., transfer of the property or declaration of trust — "must, as I un- derstand the l^w of this court, be resorted to, for there is lio equity in this court to perfect an imperfect gift." What I am asked to do in this case is to read that sentence as having intro- duced into it the words, "except as to a gift from husband to wife." The Lord Justice Turner also said : "The cases, I think, go further to this extent, that if the settlement is intended to be effect- ated by one of the modes to which I have referred, the court will not give effect to it by applying another of those modes." To give effect to this gift I must introduce the words, "except in the case of a wife." The Lord Justice proceeded to say: "If it is intended to take effect by transfer, the court will not hold the intended transfer to operate as a declaration of trust, for then every imperfect instrument would be made effectual by being converted into a perfect trust"; and he added that it must be plainly shown that it was the purpose of the settlement, or the intention of the settlor, to constitute himself a trustee. It is clear in this case that it was not so intended. It was not the purpose CHAP. III.] MARSHALL V. JAQUITH. 325 or meaning of the husband in writing these letters to constitute himself a trustee for his wife. I can well understand in such a case a husband saying to his wife, "I mean to give you this as youf own, but when you ask me to be a trustee for you I must respectfully djecline. I do not want to be involved in a trust of that kind or in any trust." Therefore it appears to me that, not- withstanding the decisions of Vice Chancellor Malins and Vice Chancellor Bacon in the two cases which have been observed upon, — and here I may just state that the case before Vice Chan- cellor Bacon of Fox v. Hawks had many special circumstances in it which are not unlikely -to have influenced his mind in arriv- ing at the conclusion to which he came, — I must hold that the furniture, plate, and'other particulars, excepting the jewelry, do not belong to the plaintiff, but form part of the late husband's estate. MARSHALL v. JAQUITH. . (134 Mass. 138.) [Supreme Judicial Court of Massachusetts, 1883.] Appeal from a decree of the Probate Court, allowing the third account of the administrator of the estate of Joseph Marshall. Hearing before Field, J., who found the following facts : Joseph Marshall died intestate on July 15, 1877. Five or six months before his death, being in health and not apprehending immediate death, he gave to his wife four $1,000 and two $100 United States six per cent bonds jn the following manner: He called in his nephew, Joseph B. Marshall, and in his presence, and in the presence of the wife, took these bonds from his pocket and handed them to Joseph B. Marshall, and said, "I give these bonds to you to give them to your aunt," and at the same time he said, "Look them over; I give them to your aunt;" and to his wife he said, "I give them to you ; take them, and use them for your own use and support." Joseph B. Marshall took them, examined them, and then handed them to his aunt, the wife. She said, "Will this transaction stand law?" and 'Joseph Marshall said, "Yes, as this is positive proof." Joseph Marshall, in handing these bonds to Joseph B. Marshall, did not intend to give the bonds to him, or to pass the title of the bonds to him, but did intend that the bonds should pass 326 MARSHALL V. JAQUITH. [CHAP. III. through his hands, that he might examine them and witness the transaction, and that they should then become directly the prop- erty of the wife. The wife took the bonds and put them in a tin box, of which she had the key, and which she called hers, which originally was her father's box and on his death had fallen to her; but at what time prior to this gift of the bonds did not appear. These bonds were kept by her in the box, with a few coins she called hers, separate and apart from the other property, notes and mortgages of Joseph Marshall, which were kept elsewhere until after his death, when the bonds were delivered by the widow, as her own property, to the administrator to keep for her, and not as a part of the estate of Joseph Marshall. The gift in amount was rea- sonable in reference to the remaining property of Joseph Marshall, and there are no creditors whose debts have not been paid in full. Joseph Marshall never revoked or recalled this gift. The appellant is a child of the intestate, and is entitled to a distribu- tive share of his estate. The bonds and their proceeds have, since the death of Joseph Marshall, been kept by the administrator as the agent of the widow, separate and apart from the assets of property of the estate, and a portion of the proceeds of the bonds have been applied by the widow towards her support since the death of her husband. The judge ruled, as matter of law, that this gift was valid after the death of Joseph Marshall, as against the appellant, and that the administrator was not to be charged with the value of these bonds in his account, and, in this respect affirmed the decree of the Probate Court; and, at the request of the appellant, re- served the case for the determination of the full court; such de- cree to be entered as law and justice might require. CoBUEN, J. A husband may make a gift of personal property to his wife, which, after his decease, will give her a valid title to the property against his heirs. To accomplish this result there must be an actual delivery of the property to the wife, with the intention to give it to her, a retention of the custody of the prop- erty by the wife, separate and distinct from other property of the husband, and rights of creditors of the husband must not be impaired. McCluskey v. Provident Institution for Savings, 103 Mass. 300; Fisk v. Cushman, 6 Cush. 20; Adams v. Brackett, 5 Met. 280. Actual delivery to the wife of property which passes by deliv- ery, and retention of the custody by her, are equivalent to the deposit of money, or the taking of certificates of stock or a CHAP. III.] BROWN V. BROWN. 327 promissory note, in her name. The title and possession of the property remain in the husband, during his Hfe, the possession of the wife being in legal contemplation the possession of the husband, and he may revoke the gift at any time, creditors may attach it as his property, and the wife can maintain no action at law in relation to it, in her own name, during the husband's life. Spelman v. Aldrich, 126 Mass. 113. Towle v. Towle, 114 Mass. 167. The case is not affected by the Gen. Sts. c. 108, Sec. 10, which did not restrict the rights of husband and wife as they existed before, but only provided that a husband should not give prop- erty to his wife, so that it should become her sole and separate property, like gifts from other persons. Whitney v. Wheeler, 116 Mass. 490; Towle v. Towle, ubi supra. A husband may make a valid gift causa mortis to his wife, Whitney v. Wheeler, ubi supra, and between husband and wife the requisites and effects of gifts inter vivos and causa mortis are nearly' identical. To establish gifts of this description, there should be clear, satisfactory and incontrovertible evidence not only of the gift and delivery of the property, but of the separate custody of it by the wife. Herd's Appeal, 5 Watts & Serg. 494 ; George v. Spencer, 2 Md. Ch. 353. In the case at bar, everything necessary to constitute a gift, perfected in the wife, is found to have been established. Decree afHrmed. BROWN V. BROWN. (174 Mass. 197.) [Supreme Judicial Court of Massachusetts, 1899.] Appeal, by the administrator of the estate of Jennie M. Brown, from a decree of the Probate Court, disallowing certain items in his account. Hearing before Barker, J., who affirmed the decree, and the appellant appealed to the full court. The facts appear in the opinion. Hammond, J. This is an appeal from a decree of a single justice disallowing certain credits in the probate account of the appellant as administrator of his wife's estate. There is no report of findings of fact or of rulings of law, but 328 BROVOJ V. BROWN. [CHAP. III. the case is before us upon the evidence, wholly oral, which was taken at the hearing. In such cases it is settled that the decision of the single justice on questions of fact will not be reversed unless it clearly appears to be erroneous, and, as it is not to be assumed that his rulings of law are erroneous, it follows that if the decree is warranted by any reasonable view of the evidence it is to stand. Montgomery v. Pickering, 116 Mass. 227; Slack v. Slack, 123 Mass. 443. The item^ in dispute are four, namely, a deposit in the Suffolk Savings Bank, a deposit in the Provident Institution for Savings, a note of Alexander Williams, Jr. and Company, and two United States bonds ; and the only question is whether the property rep- resented by these items was the property of the wife at the time of her decease. We think the evidence would warrant a finding of facts as fol- lows: The appellant and intestate were married in 1871, came to Boston shortly afterwards, and lived here until she -died in April, 1895. At the time of her marriage she had. a daughter by her former husband, from whom she had been divorced. The appellant and his wife were of frugal habits, and he managed to save a considerable part of his earnings. His habit was to share these savings with his wife, keeping one-half for himself, and providing the other half should go to her as her own money, to do with as she saw fit, his intention being to convey it absolutely to his wife." The case raises the question whether this intention was so far carried out as to make the title of the wife complete during coverture. Although in this Commonwealth there has been much change in the law regarding the relations of husband and wife and the power of a married woman to acquire property and make con- tracts, yet it is still the law here that, with certain exceptions as to wearing apparel and similar articles not material to this case, a married woman cannot acquire property by gift from her hus- band, though such a gift may be so far valid as to give the wife a right to the property at the death of her husband as against his heirs or executors but not against his creditors. Property thus given remains the property of the husband during his life, and may be demanded by him or attached by his creditors. Pub. Sts. c. 147, § 3. Spelman v. Aldrich, 126 Mass. 113; Thomson v. O'Sullivan, 6 Allen, 303; Marshall v. Jaquith, 134 Mass. 138; Simpson v. Achorn, 158 Mass. 342. But this rule of law is applicable only in the case of direct CHAP. III.] BROWN V. BROWN. 329 gifts, and does not prevent the transfer of property from the husband to the wife through a third person. Perhaps the most familiar illustration is where a conveyance of real estate is made by the husband to a third person and by him to. the wife. Such a conveyance passes to the wife a valid and complete title to the land, although the sole purpose of the transaction is thus to pass the title, and there is no consideration moving from or to either of the parties, and the third party is a mere conduit for the passing of the title. Mott v. Alger, 15 Gray, 322. A hus- band may give and deliver personal property to a third person, who may straightway give and deliver the property to the wife ; and this would be a valid transfer of the property from husband to wife, although the sole purpose of all parties was to make such transfer. But the gift cannot be made directly. There must be some contract between the husband and a third party, and between the third party and the wife, and the title of the wife must come by contract with that third party. If it appears that the title comes to her by such contract, then it is good, if not fraudulent as to creditors, although the only consideration for the contract moves from the husband. Sweeney v. Boston Five Cents Savings Bank, 116 Mass. 384; Porter v. Wakefield, 146 Mass. 25, 27. But if the contract be m^de with the husband in the shape of a promissory note or a check, even if payable to the wife, and this instrument is given by the husband to the wife directly, -then the gift is not good. Spelman v. Aldrich, 126 Mass. 113. It becomes therefore necessary to inquire whether whatever title the wife had to this property came to her by a direct gift from her husband or by a jcontract with some third party. If by a direct gift from the husband, then no irrevocable title passed, and, as she did not survive him, he took it at her death. If, how- ever, the title came by some contract with a third person, then, if it was the intention of all parties that the title should pass to her through the latter as a conduit, there is no principle of law which would prevent it from so passing, although the consid- eration moved entirely from the husband, and the contract with the third party was in accordance with the original agreement between him and the husband that it should be made, and all was one entire transaction. We think that upon ,the evidence in the case a finding may be made either way on this question. But we are not to assume that the justice made any erroneous ruling of law, and if the 330 BROWN V. BROWN. [CHAP. III. evidence justified any 'finding which will support the decision, then the decision must be sustained. As to the deposits in the savings banks we think the evidence would justify the finding of the following facts. The husband desired that one-half of his earnings should go to his wife to be her own property, and he intended so to transact matters as legally to carry out that intention. And in pursuance of that intention he and his wife each had a bank book for the same amount. The wife carried the most of the money to the bank. Her own bank book was sometimes in her possession and some- times in his, but when in his possession was kept by him for her as her agent. The money deposited in the savings banks by the wife was placed in her hands by her husband, with the understanding that it should be so deposited as to be hers, and that the business should be so done as legally to carry out that intent. She carried the money to the banks under those instruc- tions. She had the deposits made in her name, and it may be assumed that when she obtained a bank book she signed the register' at the bank ; but whether she did so or not, the delivery of the bank book to her was the evidence of the contract between her and the bank, which was in substance to hold a sum of money for her and to be answerable to her for it. She thereafter wards, with the full knowledge and consent of her husband and in accordance with his original intention, claimed this money as hers and treated it as such ; and they both supposed it was hers. If the wife as the agent of her husband received this money from his hands, and as his agent delivered it while still his to the bank, and, still acting as his ag'ent, directed the bank upon receiving the money to make a contract with the wife to deliver a like amount to her, and the bank, taking the money from her as the agent of her husband, did, in compliance with the direc- tions given by her as such agent, thereupon deliver to the wife, acting in her individual capacity, the bank book made out in her name, then the bank has made a contract with the wife, , and her .title to the account is good. She gets a title not by gift from the husband but by contract with the bank, and the account is hers. And we are of opinion that the evidence would warrant a finding that in making the deposits she did thus act as his agent, and that in receiving the bank book she' did thus act in her individual capacity, and in this way the real intentions of both husband and wife are carried out according to law. Her agency for her husband continued up to the time the title to the CHAP. III.] IN RE way's TRUSTS. 331 money passed to the bank, and then the bank makes the contract with her as an individual. In this aspect of the case it is distinguishable from Spelman v. Aldrich, 126 Mass. 113, and similar cases, where the gift from the husband to wife is direct and before the deposit is made in the bank. Of course if the gift is directly to the wife, she acquires no title no matter what she may afterwards do with the property. And the same principle applies to the Williams note. In the settlement with Chamberlain and Company the husband received $8,000. The settlement was made by giving to him a check for $4,000 payable to him, and one for $4,000 payable to his wife. These two checks wete deposited in the Boston Safe Deposit and Trust Company on two accounts, one to the account of his wife and one to his own account. These checks were received in ac- cord and satisfaction of the claim of the husband, and the check to the wife became hers upon delivery to her. We think the evi- dence would warrant a finding that the business was conducted in that way. When she subsequently drew out the money and lent it to Williams, it still remained hers. As to the bonds the court may have found that they were pur- chased by the money of the wife. The exception to the exclusion of the evidence was waived at the argument. > Decree affirmed. d. Notice to Trustee or Donee. IN RE WAY'S TRUSTS. (2 De G. J. & S. 365.) [Court of Appeals in Chancery, 1864.] The Lord Justice Knight Bruce. Upon the material before the court the deed of 1852 must, in my judgment, be taken to have been duly and completely executed by Lady Cholmeley. There is no evidence before us that its execution was unfairly or improperly obtained, or that she executed it under any mis- take, misapprehension, or erroneous advice. In these circum- stances the deed must be supported, although no notice of it was ever given to the trustees or to any other person. That the deed 332 SCOTT V. BERKSHIRE COUNTY SAVINGS BK. [CHAP. III. was retained by Lady Cholmeley and afterwards destroyed by her, d(5es not, in my judgment, alter the case. We are not' now, however, at the hearing of a cause, the case coming before the court only on a petition under the Act for the Relief of Trus- tees, and it is alleged that evidence can be adduced to show that Lady Cholmeley executed the deed under misapprehension, mis- take, and erroneous advice. If the parties claiming against the deed desire an opportunity of filing a bill to impeach it on any of those grounds, I am not prepared to say that such an oppor- tunity ought not to be given them ; but if the case is to be decided on the evidence as it stands, I dissent with great respect from the view of the Master of the Rolls, and am of opinion that effect ought to be given to the deed. The Lord Justice Turner. I am of the same opinion. I am not sorry that this case has been brought before us, as I have long anticipated, from the observations of Sir James Wigram in Meek v. Kettlewell, (a) that the question must some day, call for decision as to the effect of a voluntary settlement which has -been retained by the grantor without notice of it being given to any person. I think that, according to the principle of the mod- ern decisions, if the deed is duly executed, effect must be given to it, notwithstanding the retainer and the absence of notice, and it is satisfactory to me to find that in Donaldson v. Donaldson (b) the Vice Chancellor Sir W. P. Wood has taken the same view. In Naldred v. Gilham, (c) the circumstances were spe- cial. In Ward v. Lawf, (d) Birch v. Blagrave, (e) and Cecil v. Butcher, (g) the deeds were executed for particular purposes of the grantors without any intention of benefiting the grantees. Taking the facts as they stand, effect must be given to the deed, but leave will be given to file a bill to impeach it, if a desire so to do be stated to us within a fortnight. SCOTT V. BERKSHIRE COUNTY SAVINGS BANK. \\AOMass. 157.) [Supreme Judicial Court of Massachusetts, 1885.] W. Allen, J. Mrs. Ford, the claimant's intestate, deposited her money in a savings bank in the names of the plaintiffs, and the claimant is entitled to it unless his intestate made a gift to CHAP. III.] SCOTT V. BERKSHIRE COUNTY SAVINGS BK. 333 each of the plaintiifs of the money deposited in hef name. Brod- erick V. Waltham Savings Bank, 1.09 Mass. 149; McKluskey v. Provident Institution of Savings, 103 Mass. 300. To constitute a gift to the plaintiff, the deposits must have been put in her name with the intention of making a gift of it to her, and it must have been accepted by her. The difference between this case and Sweeney v. Boston Five Cents Savings Bank, 1 16 Mass. 384, is, that in that case the donee was present when the deposit was made, and the donor delivered the deposit book to her. The delivery and acceptance of the book were conclusive evidence, both of the intention of the donor to make the gift, and of the acceptance of it by the donee. In the case at bar, the deposit was made without the knowledge of the donee, and the deposit book was retained by the donor. The intention of the donor to make a gift is open to inquiry; and the acceptance of it by the donee completes a contract be- tween her and the bank, and cannot be presumed, but must be shown. If the evidence shows that the donor intended that the deposit should belong to the donee,, and received and held the book for her until the acceptance by her, it shows a completed gift, even though it might have been revoked before acceptance. Upon the question of the intention of Mrs. Ford in making the deposits, the letter of the bank to her, and her declarations ' relating to it, are competent. The length of time between the declarations and the deposits affects the weight, but not the competency, of the evidence. Upon the question of Mrs. Ford's intention in holding the book before the gift was perfected, — whether she held it as owner, or as the agent or depositary for the plaintiff — her declarations and acts while holding it, showing the character of the act, are com- petent. The acts of taking the orders from the plaintiffs for payment to herself were acts the significance of which depended upon her intent in them, whether exercising dominion pver the deposit as owner, or recognizing the dominion of the plaintiff; and her declaration and letters respecting such acts, preceding and accompanying them, are competent. The letter to the plain- tiff Elizabeth A. was sufficiently identified as coming from Mrs. Ford by containing the order and being acted on as hers by the plaintiff, and sufficiently appeared to relate to the order, and should have been admitted. Each .plaintiff relied upon a particu- lar occurrence as proving the completion of the gift to her. The declarations of the donor, in relation to making her will, were 334 ADAMS V. ADAMS. [CHAP. III. after the gift was completed, if it ever was completed, and were either incompetent or immaterial, and were properly excluded. See Whitney v. Wheeler, 116 Mass. 490; Whitwell v. Winslow, ■ 132 Mass. 307. If the donor made the deposit and kept the book for the plain- tiff, intending it as a gift' to her, the gift would not be perfected until accepted by the donee; an acceptance implies a mutual act of the parties, or an act by one assented to by the other, equiva- lent to an acceptance of a chattel upon delivery. An act would perfect the gift of the legal interest which, had the deposit been in the donor's name in trust, would have been sufficient to perfect the gift of the equitable interest, as in Gerrish v. New Bedford Institution for Savings, 128 Mass. 159. An acceptance and a completed gift might be inferred from the fact that the donor informed the donee of the gift, with the express or implied assent of the donee. Any act or speech between the parties, which would show a mutual understanding that the gift was made, would be sufficient evidence. The instructions to the jury were substan- tially correct, though not verbally accurate; but there was error in the exclusion of evidence. Exceptions sustained. (Copyright, 1903, by the Banks Law Publishing Company.) ADAMS V. ADAMS. (21 Wall. 185.) J^SuPREME Court of the United States, 1874.] Adams and his wife executed a deed of the premises owned by Adams to Appleton in trust for the benefit of his wife. The. deed was signed, sealed, acknowledged and delivered before two justices, and the husband put it on record. About ten years after- wards the grantors were divbrced. The wife sought to enforce the trust. Appleton never heard of the deed until he was asked by the wife to convey the property to her. At the request of the husband he refused to accept trust or to act in relation to the matter. This bill was brought to enforce the trust, and to remove Appleton and to have a suitable person appointed as trustee. Mr. Justice Hunt delivered the opinion of the court. The CHAP. III.] ADAMS V. ADAMS. 335 first question in this case is whether there was a delivery of the deed of August 13th, 1861. If not a formal ceremonious delivery, was there a transaction which, between such parties and for such purposes as exist in the present case, the law deems to be sufficient to create a title? The bill avers that the deed was delivered by the parties and put on record in the way which it states. The answer is responsive to the allegations in the plaintiff's bill that the deed, after being signed, sealed and delivered, was recorded at the request of the defendant, Adams, and at his expense. The burden is thus imposed on the plaintiff of maintaining her allegation by the proof required where a material allegation in the bill is denied by the answer. It is evident, however, that the apparent issues of the fact and seeming contradictions of statement become less marked by looking at what the parties may suppose to constitute a deliv- ery. That with his wife, the present plaintiff, he acknowledged its execution before two justices of the peace, and that the deed thus acknowledged by him not only purported by words in prae- senti to grant, bargain, and convey the premises mentioned, but declared that the same was signed, sealed and delivered, and that this deed, with these declarations in it, he himself put upon the record, is not denied. If these facts constitute a delivery under circumstances like the present, then the defendant, when he de- nies that a delivery was made, denies the law simply. Mrs. Adams and two other witnesses were examined. None of Mrs. Adams's statements are denied by Mr. Adams. He was as competent to testify as she was. So, although time, place and circumstances are pointed out in the testimony of one of the other witnesses, the defendant makes no denial of the statement ; nor does he deny the statement of the other witness giving her •conversation with him, in detail, in which she says that he ad- mitted the trust. The deed corresponded substantially with the intention which these witnesses state that Adams expressed. Should the property be sold by the order of Mrs. Adams, the money received would be subject to the same trusts as the land, to-wit, for the use of Mrs. Adams during her lifetime and her children after her death. It would not by such transmutation become the absolute property of Mrs. Adams. Upon the evidence before us we have no doubt that the deed was executed, acknowledged and recorded 336 ADAMS V. ADAMS. [CHAP. III. by the defendant with the intent to make provision for his wife and children ; that he took the deed into his own possession with the understanding, and upon the belief on his part, that he- had accomplished that purpose by acknowledging and procuring the record of the deed, by showing the same to his wife, informing her of its contents, and placing the same in the house therein con- veyed in a place equally accessible to her and to himself. The defendant now seeks to repudiate what he then intended, and to overthrow what he then asserted and believed he had then accomplished. It may be conceded, as a general rule, that deliv- ery is essential, both in law and in equity, to the validity of a gift, whether of real or personal estate. What constitutes a de- livery is a subject of great difference of opinion, some cases hold- ing that a parting with a! deed, even for the purpose of recording, is in itself a delivery. It may be conceded also to have been held many times that courts of equity will not enforce a merely gratuitous gift or mere moral obligation. These concessions do not, however, dispose of the present case. 1st. We are of opinion that the refusal of Appleton, in 1870, to accept the deed, or to act as trustee, is not-a controlling cir- cumstance. Although a trustee may never have heard of the deed, the title rests in him, subject to a disclaimer on his part. Such disclaimer will not, however, defeat the conveyance as a transfer of the equitable interest to a third person. A trust cannot fail for want of a trustee, or by the refusal of all the trustees to Siccept the trust. The Court of Chancery will appoint new trustees. The case turns, rather, upon the consideration next to be sug- gested. 2d. By the transaction already detailed, and by the declaration of Mr. Adams, already given, was there created a trust which the parties benefited are entitled to have established by a- Court of Chancery? Mr. Lewin, in his work on Trusts, thus gives the rules on this subject. "On a careful examination the rule to be, that whether there was transmutation of possession or not, the trust will be sup- ported, provided it was in the first instance perfectly created. * * * It is evident that a trust is not perfectly created where there is a mere intention or voluntary agreement to establish a trust, the settlor himself contemplating some further act for the purpose CHAP. III.] ADAMS V. ADAMS. 337 of giving it completion. * * * If the settlor propose to convert himself into a trustee, then the trust is perfectly created, and will be enforced so soon as the settlor has executed an express declaration of trust, intended to be final and binding upon him, and in this case it is immaterial whether the nature of the prop- erty be legal or equitable. * * * Where the settlor purpose to make a stranger the trustee, then, to ascertain whether a valid trust has been created or not, we must take the following distinc- tions : If the subject of the trust be a legal interest and one capa- ble of legal transmutation, as land, or chattels, etc., the trust is not perfectly created unless the legal interest be actually vested in the trustee." To these positions numerous authorities are cited by the learned author. In the case before us the" settlor contemplated no further act to give completion to the deed. It was not an intention simply to create a trust. He had done all that was needed. With his wife he signed and sealed the deed. With her he acknowledged it before the proper officers, and himself caused it to be recorded in the appropriate office. He retained it in his own possession, but where it was equally under her dominion. He declared openly and repeatedly to her, and to her brothers and sisters, that it was a complete provision for her, and that she was perfectly pro- tected by it. He intended what he had done to be final and binding upon him. Using the name of his friend as trustee he made the placing the deed upon record and keeping the same under the control of his wife as well as himself, a delivery to the trustee for the account of all concerned, or he intended to make himself a trustee by actions final and binding upon himself. Adopting the principles laid down by Mr. Lewin, the plaintiff has established her case. Mr. Hill, in his work on Trusts, l&ys down the rule in these words, in speaking of a voluntary dispO' sition in trust: "The fact that the deed remains iA the possession of the party by whom it is executed, and that it is not acted upon, or is even subsequently destroyed, will not affect its validity, unless there are some other circumstances connected with the transaction which would render it equitable to enforce its performance." To this he cites many authorities. After quoting many other cases, the author adds: "It would seem to follow from the foregoing decisions that the court will in no case interfere to enforce the performance 22 338 ADAMS V. ADAMS. [CHAP. III. of a voluntary trust against its author if the legal interest in the property be not transferred or acquired as part of the transac- tion creating the trust. The doctrine of the court, however, does not, in fact, appear to be so confined. If a formal declaration of trust be made by the legal owner of the property declaring him- self in terms the trustee of that property for a volunteer, or direct- ing that it shall be held in trust for the volunteer, the court will consider such a declaration as a trust actually created and will act upon it as such." The author says again: "It will be seen that it is difficult to define with accuracy the law affecting this subject. The writer conceives that he is warranted in stating the following propositions to be the result of the sev- eral decisions: 1. Where the author of a trust is possessed of the legal interest in the property, a clear declaration of trust con- tained in or accompanying a deed or act which passes the legal estate will create a perfect executed trust, and will be established against its author and all subsequent volunteers, claiming under him. 2. A clear declaration or direction by a party that the property shall be held in trust for the objects of his bounty, though unaccompanied by a deed or other act divesting himself of the legal estate, is an executd trust, and will be enforced against the party himself, or representatives, or next of kin after his death." Upon the principles laid down by this author the plaintiflt's case is made out. It will be necessary to refer to to a few only of the American authorities. In Bunn v. Winthrop, which was the case of a voluntary trust created in certain real estate in the city of New York, Chancellor Kent says: "The instrument is good as a voluntary settlement, though retained by the grantor in his possession until his death. There was no act of his at the time or subsequent to the execu- tion of the deed which denoted an intention contrary to the face of the deed. The cases of Clavering v. Clavering, of Boughton v. Boughton, and of Johnson v. Boyfteld^ 1 had occasion lately to consider in the case of Souverbye v. Arden, and they will be found to be authorities in favor of the validity and operation of deeds of settlement, though retained by the grantor under circumstances ■ much less favorable to their effect than the one now under con- sideration. In Souverbye v. Arden, which was a "bill against the father to CHAP. III.] ADAMS V. ADAMS. 339 enforce a voluntary settlement of real estate upon the daughter, made by the father and by the mother, then deceased, the same learned judge says: "If we recur to the adjudged cases and the acknowledged rules of law on this subject, they will be found in favor of the valid operation of this deed, whether the actual delivery was to the plaintiff or to her mother (the mother being one of the grantors). This is much stronger, and attended with more circumstances of a due delivery, than Shelton's Case. In that case a deed was sealed in the presence of the grantee and others, and was read, but not delivered, nor did the grantee take it, but it was left be- hind in the same place, and yet. in the opinion of all the justices it was a good grant ; for the parties came together for that pur- pose, and performed all that was requisite for perfecting it ex- cept an actual delivery ; being left behind, and not countermanded, it was held to be a delivery in law. In the' ancient authorities, and at a time when the execution of deeds was subject to great formality and strictness, it was admitted that if A. execute a deed to B., and deliver it to C, though he does not say to the use of B., yet it is a good delivery to B., if he accepts of it, and it shall be intended that C. took the deed for him as his servant. * * * A voluntary settlement, fairly made, is always binding in equity upon the grantor, unless there be clear and detisive proof that he never parted, nor intended to part, with the possession of the deed; and even if he retains it, the weight of authority is decidedly in favor of its validity, unless there be other circum- stances beside the mere fact of his retaining it, to show it was not intended to be absolute. This will appear from an examina- tion of a few of the strongest cases on each side of the question." He then goes into an examination of the decided cases, for which it is only necessary to refer to the case itself. The defence rests upon the alleged non-delivery by Mr. Adams of the deed of August 13th, 1861, to Mrs. Adams, or for her benefit. We have referred at length to the authorities which show that as matter of law the deed was sufficiently delivered, and that it is the duty of the court to establish the trust. We think that the decree of the court below was well made and that it should be Affirmed. 340 TATE V. WILLIAMSON. ICHAP. III. B. IMPLIED TRUSTS. 1. Resulting Trusts, a. Purchase by One in the Name of Another. TATE V. WILLIAMSON. (L. R. 2 Ch. App. 55.) [Court .of Appeals in Chancery, 1866.] This was an appeal by the defendant Robert Williamson, from a decree of Vice Chancellor Wood, setting aside a sale, on the ground that the purchaser stood in a fiduciary relation to the vendor, and did not make a full disclosure to him of all material facts within his knowledge relating to the value of the property. The facts of the case fully appear in the report of the case before the Vice Chancellor (L. R. 1 Eq. 528) and the judgment of the Lord Chancellor. Lord Chelmsford, L. C. In this case the Vice Chancellor has made a decree that an agreement for the sale by the intestate, William Clowes Tate, to the defendant Robert Williamson, of the undivided moiety of an estate called the "Whitfield Estate,'" in the county of Stafford, consisting of messuages, lands, and coal mines, ought to be set aside, on the ground of the defendant not having communicated to the intestate all the information which he had acquired with reference to the value of the property, and, in particular, of his not having communicated an estimate of the value of the mines which was obtained by the defendant pending the agreement. The question raised by the appeal is whether any such rela- tion existed between the defendant and the intestate as to render it the duty of the defendant to make the communication. The jurisdiction exercised by courts of equity over the dealings of persons standing in certain fiduciary relations has always been regarded as one of a most salutary description. The principles applicable to the more familiar relations of this character have CHAP. III.] TATE V. WILLIAMSON. 341 been long settled by many well-known decisions, but the courts have always been careful not to fetter this useful jurisdiction by defining the exact limits of its exercise. Wherever two persons stand in such a relation that, while it continues, confidence is nec- essarily reposed by one, and the influence which naturally grows out of that confidence is possessed by the other, and this confi- dence is abused, or the influence is exerted to obtain an advantage at the expense of the confiding party, the person so availing him- self of his position will not be permitted to retain the advantage, although the transaction could not have been impeached if no such confidential relation had existed. Did, then, the defendant, R. Williamson, when he put himself in communication with the intestate, clothe himself with a char- acter which brought him within the range of the principle ? In considering this question, it will be necessary to bear in mind the situation of both the parties at the time when the agree- ment for the sale of the property was entered into. The intestate, when he was quite an infant, had become pos- sessed of the property in question independently of his father. He contracted habits of extravagance at the university, "and in^ consequence of some displeasure which he had occasioned to his father on the subject of his debts, the father's doors were closed against him. He was thus thrown upon the world at an early age without any one to control him, with scarcely a friend to counsel him, and towards the close of his life he became addicted to drinking and died prematurely at the age of twenty-four. The defendant is the nephew of Mr. Hugh Hen- shaw Williamson, the great uncle by marriage of the intestate, who had been the trustee and manager of the property, and the receiver of the rents, which latter duty the defendant had for some short time been deputed to perform for him. It does not appear that the defendant by his employment acquired any par- ticular information respecting the property, but as he states in his answer that he had "previously" (to his first interview with the intestate) "some idea of endeavoring to be the purchaser of the estate, in case the same should come into the market," it is reasonable to suppose that he was not altogether ignorant of its character, and must have formed some idea of its value. I think no stress can be laid upon the circumstance of Mr. H. H. Williamson having been the trustee of the property. The trus- . teeship, as to the intestate's moiety, had come to an end upon his attaining his majority, in July, 1857. The accounts had been 342 TATE V. WILLIAMSON. [CHAP. III. settled, and Mr. Williamson, in surrendering his trust, had be- haved generously to the intestate. Though he continued after this period to receive the rents and manage the property, yet there appears to have been nothing in the office which he under- took after his trusteeship expired which would have prevented his dealing with the intestate upon the same terms as a mere stranger. Much less could the mere receipt of the rents for his uncle have placed Robert Williamson in a diflferent position from that of any ordinary purchaser. But a new and peculiar relation arose out of the circumstances which afterwards occurred. In the year 1859 the debts which the intestate owed at the univer- sity were causing him considerable embarrassment. He had been pressed by Mr. Holloway, acting for his Oxford creditors, for payment for an amount of i 1,000. He was unable, in conse- quence of the unfortunate quarrel with his father, to apply to him for advice, and, having before experienced the kindness of Mr. H. H. Williamson, he turned to him again in his difficulties. The letter by which the intestate made his situation known to Mr. Williamson is not forthcoming. The defendant, in his answer says, that he was informed by Mr. H. H. Williamson that it stated he was again involved, and either asked for assistance, or for advice as to the mode of procuring assistance. I should have been glad if we could have seen the terms of this letter, as it migb*" have explained the exact nature of the office which Mr. Williamson was asked to undertake. In the answer to this letter, dated the 30th of July, 1859, which is set out in the bill, in paragraph 52, Mr. Williamson invited the intestate to his house, and desired him to bring with him "a correct account of his debts, omitting nothing,, and he would see what could be done." The intestate did not accept the invitation, and nothing more was heard of the mat- ter until about the 26th of August following, when Mr. H. B.. Williamson received a list of the intestate's debts, due to Ox- ford creditors, amounting, as already mentioned, to £1,000. The defendant, in his answer, says "that the list was given to him by Mr. H. H. Williamson, and that he, after perusing the same, remarked that the charges were excessive, and that the bills might probably be settled for half the amount; that Mr. H. H. Williamson thereupon requested him to see the intestate, and ascertain upon what terms he could be relieved from his debts, and, if this could be done for £500, or a little more, he author- ized the defendant to advance the intestate that amount on fur- ther security of the property." The defendant accordingly wrote CHAP. III.] TATE V. WILLIAMSON. 343 to the intestate on the 26th of August, 1859, the letter, which is set out in paragraph 58 of the bill, in which he states that his uncle is not sufficiently well to attend to business ; that the list of debts owing forms a very heavy amount, which Mr. Holloway expects to have paid immediately; and adds, "I will meet you in the course of a few days in London, upon having a couple of days' notice, and, after hearing your views on the subject, will talk over the matter, and see in what way it can be arranged." The counsel for the defendant say that his office was merely to see whether a compromise of the debts could not be effected, and that, at the time of the purchase, his mission was at an end. One can hardly believe that his advice and assistance could have been understood to be of this limited character. He knew that Mr. Holloway was pressing for immediate payment to the Oxford creditors, and that if he refused to reduce the amount the whole must be paid. It does not appear that, if Mr. Holloway had in- sisted on a payment in full, Mr. H. H. Williamson would not have been disposed to advance a larger sum than that which he had mentioned, as the property would have been an ample security for any amount required to cover the whole of the debts. And the, defendant must have been perfectly aware that the intestate's property in Staffordshire was the only fund out of which the debts could be discharged. The account of the defendant's interview with the intestate we have from the answer alone. He states that he offered to nego- tiate with the intestate's creditors for an abatement of their claims, telling him "that he was authorized by his uncle to ad- vance £500 or more if required" (I suppose he must have added "upon the security of the property"), "but that the intestate posi- tively refused to allow him to ask for any deduction from his debts, saying that any such application would injure his charac- ter." The answer then proceeds : "But he at the same time stated that he was desirous to sell his share of the Whitfield estate." Mr. Bristowe, for the defendant, said the instant the intestate refused to allow any attempt to compromise his debts, the defend- ant's office of adviser came to an end, and from that moment the parties, to use the familiar expression, were dealing "at arms' length." I cannot accept this view of the defendant's position. I think that his visit to London was not solely for the compro- mise, but generally for the arrangement of the intestate's debts ; that he came with authority which involved a dealing with the property of the intestate, as he was to advance his uncle's money 344 TATE V. WILLIAMSON. [CHAP. HI. on the security of this property. And it may be observed that he had his attention particularly directed to the mode of satisfying the debts by a mortgage. He knew, too, that if the payment of the debts in full was insisted upon, and his uncle refused to advance a larger sum thian "£500 or a little more," a sufficient amount to discharge all the debts could easily be raised upon the security of the property, which was subject only to a mortgage for £1,000. It seems to me that the defendant had placed him- self in a position which rendered it incumbent upon him to giye the best advice to the intestate how to relieve himself from his debts, and no one can doubt that if his judgment had been unbi- ased that he would have recommended a mortgage, and not a sale. But it appears, from the defendant's own statement, that he had a reason for not giving this advice. As already stated, he had previously thought of purchasing the estate in case it should come into the market for sale, "an. event," he says, "he thought was not unlikely to happen." I asked the defendant's counsel what he understood by these words, and was answered that the defend- ant's expectation was founded upon the inconvenient nature of property consisting of an undivided moiety. This may have first led the defendant to expect that he might have an opportunity of purchasing the property at no distant period, but his belief in the probability of a sale must have been considerably strengthened at the time of his interview with the intestate, from the knowl- edge he had of his embarrassments. Whether the conversation be- tween the defendant and the intestate turned so abruptly frdm the intestate's refusal to compromise his debts, to the expression of his desire to sell his share of the Whitfield estate, as represented by the defendant or not, it is quite clear to my mind that the confidential relation between the parties had not terminated when the nego- tiation for purchase of the property by the defendant commenced, and that he did not then, or at any time afterwards, stand in the situation of an ordinary purchaser. This being so, the defendant, pending the agreement, was bound to communicate all the information he acquired which it was material for_the intestate to know in order to enable him to judge of the value of his property. It was admitted that the valuation of Mr. Cope was in the hands of the defendant at the time he wrote his letter of the 10th September, 1859. The de- fendant is charged with making untrue representations in that letter. If he had done So, it would of course strengthen the case against him, but I find nothing in the letter which amounts to a CHAP. III.] TATE V. WILLIAMSON. 345 misrepresentation, nor anything more than a disparagement of the property, not uncommon with a purchaser when he desires to stimulate the owner of the property to close with his offer. Having stated my opinion with regard to the duty cast upon the defendant to communicate Cope's valuation to the intestate, it seems unnecessary to pursue the case further. The fair deal- ing, in other respects, of the defendant during the negotiation, and before the agreement was signed, becomes almost irrelevant. The refusal of the solicitors to proceed with the agreement unless the young man had some legal assistance, the recommendation of the defendant that the intestate should apply to his father for advice, the opportunity afforded him pending the negotiation of consulting any triends who were capable of advising him, the reference to Mr. Payne whether merely for the purpose of completing the agreement, or to afford the intestate an oppor- tunity of obtaining his opinion as to the value, all these consid- erations are of no conseqtience, • when once it is established that there was a concealment of a material fact, which the defendant was bound to disclose. Nor, after this, is it of any importance to ascertain the real value of the property. Even if the defendant could have shewn that the price which he gave was a fair one, this would not alter the case against him. The plaintiff, who seeks to set aside the sale, would have a right to say, "You had the means of forming a judgment of the value of the property in youi- possession, you were bound, by your duty to the person with whom you were dealing, to afford him the same opportunity which you had obtained of determining the sufficiency of the price which you offered ; you have failed in that duty, and the sale cannot stand." But, in truth, there are strong grounds for thinking that the price agreed to be paid by. the defendant is quite inadequate to the value of the property. There is no occasion to weigh the opposite opinion of the engineers and surveyors, and to form a conclusion from them. It is sufficient to take the valuation of the mines by Cope, amounting to i20,000, and the valuation of the surface by the defendant's own witnesses, ranging from £10,000 to ;£11,290, and making every allowance for a reduction of the value of the intestate's share, in consequence of its being an undivided moiety, it will appear that the value, by the defendant's own shewing, must have been at the least £14,000. For this property the defendant agreed to pay £7,000 apparently about half the value, and that not at once, buf £1,500 was to be 346 DYER V. DYER. [CHAP. 111. advanced to the intestate, which was to bear interest till the day for the completion of the purchase, which advance must have been intended to enable the intestate to pay off his debts imme- diately; £2,000 was to be paid on the 25th March, 1860, and the residue by yearly instalments in the four following years. It appears to me upon a careful review of the whole case, that it would be contrary to the principles upon which equity proceeds, in judging of the dealings of persons in a fiduciary relation, to allow the purchase by the defendant, Robert Williamson, to stand. I am satisfied that the defendant had placed himself in such a relation of confidence, by his undertaking the office of arranging the intestate's debts by means of a mortgage of his property, as prevented him from becoming a purchaser of that property with- out the fullest communication of all material information which he had obtained as to its value ; that this openness and fair dealing were the more necessary when he was negotiating with an extrav- agant and necessitous young man, deprived at the time of all other advice, eager to raise money, and apparently careless in what manner it was obtained; and the defendant having, by concealment of a valuation which he had privately obtained pro- cured a considerable advantage in the price which the seller was induced to take, and which even the defendant's witnesses prove to be grossly inadequate, he cannot be permitted so to turn the confidence reposed in him to his own profit, and the sale ought to be set aside. Decree affirmed. Petition of appeal dismissed, with costs. DYER V. DYER. (2 Cox. Ch. 92.) [Court of Chancery, 1788.] In 1737 certain copyhold premises holden of the manor of Heytesbury, in the county of Wilts, were granted by the lord, according to the custom of that manor, to Simon Dyer (the plaintiff's father), and Mary, his wife, and the defendant WilUam (his other son), to take in succession for their lives, and to the longest liver of them. The purchase money was paid by Simon Dyer, the father. He survived his wife, and lived until 1785, and then died, having made his will, and thereby devised all his CHAP. III.] DYER v. DYER. 347 interest in these copyhold premises (amongst others) to the plain- tiff, his younger son. The present bill stated these circumstances, and insisted that the whole purchase money being paid by the father, although, by the form of the grant, the wife and the de- fendant had the legal interest in the premises for their lives in succession, yet in a court of equity they were but trustees for the father, and the bill therefore prayed that the ■" plaintiff , as devisee of the father, might be quieted in the possession of the premises during the life of the defendant. The defendant insisted that the insertion of his name in the grant operated as an advancement to him from his father to the extent of the legal interest thereby given to him. And this was the whole question in the cause. This case was very fully argued by Mr. Solicitor General and Ainge for plaintiff, and by Burton & Morris, for defendant. The following cases were cited, and very particularly commented on : Smith v. Baker, 1 Atk. 385 ; Taylor v. Taylor, Id. 386; Mumma v. Mumma, 2 Vern. 19; Howe V. Howe, 1 Vern. 415 ; Anon., 1 Freem. Ch. 123 ; Benger V. Drew, 1 P. Wms. 781 ; Dickinson v. Shaw, before the lords commissioners in 1770 ; Bedwell v. Froome, before Sir T. Sewell, on the 10th May, 1778 ; Row v. Bowden, before Sir L. Kenyon, sitting for the Lord Chancellor; Crips v. Pratt, Cro. Car. 549; Scroope v. Scroope, 1 Ch. Cas. 27 ; Elliot v. Elliot, 2 Ch. Cas. 231 ; Ebrand v. Dancer, Id. 26 ; Kingdon v. Bridges, 2 Vern. 67 ; Back V. Andrew, Id. 120; Rundle v. Rundle, Id. 264; Lamplugh v. Lamplugh, 1 P. Wms. Ill; Stileman v. Ashdown, 2 Atk. 480 ; Pole V. Pole, 1 Ves. Sr. 76. Lord Chief Baron^ after directing the cause to stand over for a few days, delivered the judgment of the court. The question between the parties in this cause is whether the defendant is to be considered as a trustee for his father in respect of his succession to the legal interest of the copyhold premises in question, and whether the plaintiff, as representative of the father, is now entitled to the benefit of that trust. I intimated my opinion of the question on the hearing of the cause, and I then indeed entertained very little doubt upon the rule of a court of equity, as applied to this subject; but as so many cases have been cited, some of which are not in print, we thought it con- venient to take an opportunity of looking more fully into them, in order that the ground of our decision may be put in as clear a light as possible, especially in a case in which so great a differ- ence of opinion seems to have prevailed at the bar. And I have 348 DYER V. DYER. [CHAP. III. met with a case in addition to those cited, which is that of Rum- boll V. Rumboll, 2 Eden, 15, .on the 20th April, 1761. The clear result of all the cases, without a single exception, is that the trust of a legal estatej whether freehold, copyhold, or leasehold; whether taken in the names of the purchasers and others jointly, or in the name of others without that of the purchaser ; whether in one name or several; whether jointly or successive,— results to the man who advances the purchase money. This is a general proposition, supported by all the cases, and there is nothing to contradict it; and it goes on a strict analogy to the rule of the common law that, where a feoffment is made without considera- tion, the use results to the feoffer. It is the established doctrine of a court of equity that this resulting trust may be rebutted by circumstances in evidence. The cases go one step further, and prove the circumstance of one or more of the nominees, being a child or children of the purchaser, is to operate by rebutting the resulting trust; and it has been determined in so many cases that the nominee, being a child, shall Have such operation as a circumstance of evidence, thjat we should be disturbing landmarks if we suffered either of these propositions to be called in question, namely, that such circumstance shall rebut the resulting trust, and that it shall do so as a circumstance of evidence. I think it would have been a more simple doctrine if the children had been con- sidered as purchasers for a valuable consideration. Natural love and affection raised a use at common law. Surely, then, it will rebut a trust resulting to the father. This way of considering it would have shut out all the circumstances of evidence which have found their way into many of the cases, and would have pre- vented some very nice distinctions, and not very easy to be under- stood. Considering it as a circumstance of evidence, there must be, of course, evidence admitted on the other side. Thus it was res'olved into a question of intent, which was getting into a very wide sea, without very certain guides, in the most simple case of all, which is that of a father purchasing in the name of his son, it is said that this shews the father intended an advancement, and, therefore, the resulting trust is rebutted ; but then a circumstance is added to this, namely, that the son happened to be provided for. Then the question is, did the father intend to advance a son al- ready provided for? Lord Nottingham could not get over this, and he ruled that in such a case the resulting trust was not re- butted; and in Pole v. Pole, 1 Ves. Sr. 76, Lord Hardwicke thought so, too ; and yet the rule in a court of equity as recog- CHAP. III.] DYER W. DYER. 349 nized in other cases is that the father is the only judge as to the question of a son's provision. That distinction, therefore, of the son being provided for or not, is not very solidly taken or uni- formly adhered to. It is then said that a purchase in the name of a son is a prima facie advancement, and, indeed, it seems diffi- cult to put it in any way.- In some of the cases some circumstances have appeared which go pretty much against that presumption, as where the father has entered and kept possession, and taken the rents; or where he has surrendered or devised the estate; or where the son has given receipts in the name of the father. The answer given is that the father took the rents as guardian of his son. Now, would the court sustain a bill by the son against the father for these 'rents ? I should think it pretty difficult to succeed in such a bill. As to the surrender and devise, it is an- swered that these are subsequent acts; whereas the intention of the father in taking the purchase in the son's name must be proved by concomitant acts; yet these are pretty strong acts of ownership, and assert the right, and coincide with the possession and enjoyment. As to the son's giving receipts in the name of the father, it is said that, the son being under age, he could not give receipts in any other manner ; but I own this reasoning does not satisfy me. In the more complicated cases, where the life of the son is one of the lives to take in succession, other distinctions are taken. If the custom of the manor be that the first taker might surrender the whole lease, that shall make the other lessees trustees for him; but this custom operates on the legal estate, not on the equitable interest; and therefore this is not a very solid argument. When the lessees are to take successive, it is said that, as the father cannot take the whole in his own name, but must insert other names in the lease, then the children shall be trustees for the father; and to be sure, if the circumstance of a child being the nominee is not decisive the other way, there is a great deal of weight in this observation. There may be many prudential reasons for putting in the life of a child in preference to that of any other person; and if in that case it is to be col- lected from circumstances whether an advancement was meant, it will be difficult to find such as will support that idea. To be sure, taking the estate in the name of the child, which the father might have taken in his own, affords a strong argument of such an intent; but where the estate must necessarily be taken to him in succession, the inference is very different. These are the diffi- culties which occur from considering the purchase in the son's 350 DYER V. DYER. [CHAP, III. name as a circumstance of evidence only. Now, if it were once laid down that the son was to be taken as a purchaser for a valu- able consideration, all these matters of presumption would be avoided. It must be admitted that the case of Dickinson v. Shaw is a case very strong to support the . present plaintiff's claim. That came on in chancery, on 22d May, 1770. "A copyhold was granted to three lives to take in succession, the father, son, and daughter. The father paid the fine. There was no custom stated. The ques- tion was whether the daughter and her husband were trustees during the life of the son, who survived the father. At the time of the purchase the son was nine and the daughter seven years old. It appeared that the father had leased the premises from three years to three years to the extent of nine years. On this case Lords Commissioners Smythe and Aston were of opinion that, as the father had paid the purchase money, the children were trustees for him." To the note I have of this case it is added that this determination was contrary to the general opinion of the bar, and also to a case of Taylor v. Alston, in this court. In Dickinson v. Shaw there was some little evidence to assist the idea of its being a trust, namely, that of the leases made by the father. If that made an ingredient in the determination, then that case is not quite in point to the present; but I rather think that the meaning of the court was that the burden of proof laid on the child; and that the cases which went the other way were only those in which the estate was entirely purchased in the name of the children. If so, they certainly were not quite correct in that idea, for there had been cases in which the estates had been taken in the names of the father and son. I have been favored with a note of Runiboll v. Rumboll, before Lord Keeper Henley on the 20th April, 1761, where a copyhold was taken for three lives in succession, the father and two sons. The father paid the fine, and the custom was that the first taker might dispose of the whole estate (and his lordship then stated that case fully). Now, this case does not amount to more than an opinion of Lord Keeper Henley, but he agreed with me in considering a child as a purchaser for good consideration of an estate bought by the father in his name, though a trust would result as against a stranger. It has been supposed that the case of Taylor v. Alston in this court denied the authority of Dickinson v. Shaw. That cause was heard before Lord Chief Baron Smythe, -myself, and Mr. Baron Burland, and was the case of an uncle purchasing CHAP. III.] DYER V. DYER. 351 in the names of himself and a nephew and niece. It was decided in favor of the nephew and niece, not on a general idea of their taking as relations, but on the result of much parol evidence, which was admitted on both sides, and the equity on the side of the nominees was thought to preponderate. Lord Kenyon was in that cause, and his argument was solely on the weight of the parol evidence. Indeed, as far as the circumstance of the custom of the first taker's right to surrender, it was a strong case in favo'r of a trust. However, the court determined the other way on the parol evidence. That case, therefore, is not material. An- other case has been mentioned, which is not in print, and which was thought to be;, materially applicable to this (Bedwell v. Froome, before Sir T. Sewell) ; but that was materially dis- tinguishable from the present. As far as the general doctrine went, it went against the opinion of the lords commissioners. His honor there held that the copyholds were part of the testator's personal estate, for that was not a purchase in the name of the daughter. She was not to have the legal estate. It was only a contract to add the daughter's life in a new lease to be granted to the father himself. There could be no question about her be- ing a trustee, for it was as a freehold in him for his daughter's life. But in the course of the argument his honor stated the com- mon principles as applied to the present case, and ended by saying that, as between father and child, the natural presumption was that a provision was meant. The anonymous case in 1 Freem. Ch. 123, corresponds very much with the doctrine laid down by Sir T. SeweU, and it observes that an advancement to a child is considered as done for valuable consideration, not only against the father, but against creditors. Kingdon v. Bridges, 2 Vern. 67, is a strong case to this point,— that is, the valuable nature of the consideration arising on a provision made for a wife or for a child ; for there the question arose as against creditors. ' I do not find that there are in print more than three cases which respect copyholds where the grant is to take successive,^ Rundle v. Rundle, 2 Vern. 264, which was a case perfectly clear ; Benger v. Drew, 1 P. Wms. 781, where the purchase- was made partly with the wife's money; and Smith v. Baker, 1 Atk. 385, where the general doctrine as applied to strangers was recog- nized; but the case turned on the question whether the interest was well devised. Therefore, as far as respects this particular case, Dickinson v. Shaw is the only case quite in point ; and then the question is whether that case is to be abided by. With great 352 m'donough v. o'neil. [chap, hi, reverence to the memory of those two judges who decided it, we think that case cannot be followed; that it has not stood the test of time, or the opinion of learned men; and Lord Kenyon has certainly intimated his opinion against it. On examina- tion of its principles, they seem to rest on too narrow a founda- tion, namely, that the inference of a provision being intended did not arise, because the purchase could not have been taken wholly in the name of the purchaser. This, we thinJc, is not sufficient to turn the ptesumption against the child. If it is meant to be a trust, the purchaser must shew that intention by a declaration of trust ; and we do not think it right to doubt whether an estate in succession is to be considered as an advancement, when a moiety of an estate in possession certainly would be so. If we were to enter into all the reasons that might possibly influence the mind of the purchaser, many might perhaps occur in every case upon which it might be argued that an advancement was not intended. And I own it is not a very prudent conduct of a man just married to tie up his property for one child, and preclude himself from providing for the rest of his family. But this applies equally in case of a purchase in the name of the child only, yet that case is admitted to be an advancement; indeed, if anything, the latter case is rather the strongest, for there it must be confided to one child only. We think, therefore, that these reasons partake of too great a degree of refinement, and should not prevail against a rule of property which is so well established as to become a landmark, and which, whether right or wrong, should be carried throughout. This bill must therefore be dismissed; but, after stating that the only case in point on the subject is against our present opin- ion, it certainly will be proper to dismiss it without costs. Mcdonough v. o'neil. (113 Mass. 92.) [Supreme Judicial Court of Massachusetts, 1873.] Gray, C. J. The decision of this case depends upon the appli- cation to the evidence of well settled rules of equity jurisprudence. Where land conveyed by one person to another is paid for with the money of a- third, a trust results to the latter, which is not CHAP. III.] m'donough V. o'neil. 353 within the statute of frauds. It is sufficient if the purchase money was lent to him by the grantee, provided the loan is clearly pro- vided. And the grantee's admissions, like other parol evidence, though not competent in direct proof of the trust, are yet admis- sible to show that the purchase money, by reason of such loan or otherwise, was the money of the alleged cestui que trust. Ken- dall V. Mann, 11 Allen, 15; Blodgett v. Hildreth, 103 Mass. 484; Jackson v. Stevens, 108 Mass. 94. In equity, a conveyance abso- lute on its face may be shown by parol evidence to have been intended as a mortgage only, and its eifect limited accordingly. Campbell v. Dearborn, 109 Mass. 130. The findings of a master in matters of fact are not to be reviewed by the court, unless clearly shown to be erroneous. Dean v. Emerson, 102 Mass. 480. And in equity, as at law, the omission of a party to testify in control or explanation of testimony given by others in his pres- ence is a proper subject of consideration. Whitney v. Bayley, 4 Allen, 173. It appears and is not controverted that the deed was made by Godfrey to the defendant, whose wife was the testator's sister; that the purchase money was $3,000, of which the testator fur- nished $300 of his own money, and $200 borrowed by him of Mrs. McGovern, upon a note signed by himself and the defendant ; the defendant furnished $600 of his own money, and $400 bor- rowed of Dolan upon the defendant's note ; and for the remaining $1,500 the defendant gave his own note, secured by mortgage on the premises, to Clements, who held a previous mortgage for a like amount, £(nd who testified that before the purchase the defendant came to see if that mortgage could lie on the property, and told him that he was going to buy the land for the testator, and was told by the mortgagee that he must give a new mortgage, as he afterwards did, in discharge of the old one. The will recites that the defendant held a deed of certain real estate in trust for the testator's benefit, and had paid certain sums of money on his account, and directs that all such sums of money, with interest, should be paid back to him, and he should then convey the property in fee to the testator's wife. The attorney who drew the will certifies that he read this part of it in the testator's presence, and before its execution, to the defendant, and asked him if it was right, and he said it was, and upon being asked what claims he had against the place, answered $600, besides $100 for repairs and $44.08 for taxes, and that he had received from the testator the whole amount with interest of the note to Dolan, 23 354 m'gowan v. m'gowan. [chap. hi. except $80, and that the testator had paid the note to Mrs. Mc- Govern. The other material testimony may be taken as stated on the defendant's brief, namely, that the defendant repeatedly "admitted that he bought the place for John B. McDonough and that he meant to assist or help him;" that "the defendant said McDonough wanted him to buy the place for him," "that he had always wanted John to take the deed, but he had not paid up;" and "that he was ready to fix up the place when McDonough was ready to pay up." The master also reports that the defendant was present at the hearing before him, but did not offer to testify. From this evidence the master, who heard all the witnesses, was warranted in finding as matter of fact that the money paid by the defendant for the land was lent by him to the plaintiff for the purpose, and that thus the whole purchase money was the plaintiff's money. Upon examination of the whole evidence, we see no sufficient cause for reversing the conclusion of the master; and taking the facts as found by him, the inference of law follows that there was a resulting trust in favor of the tes- tator, and that there must be a Decree for the plaintiff. McGOWAN V. McGOWAN. (14 Gray 119.) [Supreme Judicial Court of Massachusetts, 1859.] Hoar, J. The plaintiffs seek by their bill, to enforce the exe- cution of a resulting trust. The case made by the bill is undoubt- edly one of considerable hardship ; but we are unable, upon care- ful examination, to perceive that it admits of any relief from a court of equity, consistently with the due regard to the well settled principles of law. The whole consideration for the pur- chase of the estate was three hundred and forty-four dollars, of which three hundred and twenty dollars was paid by the note of James McGowan, under whom the defendants claim, and to whom the conveyance was made ; and twenty-four dollars agreed to be paid in labor by John McGowan, the father of the plaintiffs, which was afterwards paid by him. The subsequent transactions between the parties, and the improvements made upon the estate, being all proved by parol evidence, and proceeding from con- CHAP. III.] m'gowan V. m'gowan. 355 tracts not in writing, do not change their original relation to the title. There is no doubt of the correctness of the doctrine, that where the purchase money is paid by one person, and the conveyance taken by another, there is a resulting trust created by implication of law in favor of the former. And where a part of the purchase money is paid by one, and the whole title is taken by the other, a resulting trust pro tanto may in like manner, under some cir- cumstances, be created. But in the latter case we believe it to be well settled that a part of the purchase money paid by him in whose favor the resulting trust is sought to l^e enforced, must have been shown to have been paid for some specific part, or distinct interest in the estate ; for "some aliquot part," as it is sometimes expressed; that is, for a specific share, as a tenancy in common or joint tenancy of one half, one quarter, or other particular fraction of the whole; or for a particular interest, as a life estate, or tenancy for years, or remainder, in the whole ; and that a general contribution of a sum of money toward the entire purchase is not sufficient. Crop v. Norton, 2 Atk. 74; Sayre v. Townsends, IS Wend. 647; White V. Carpenter, 2 Paige, 217; Perry v. McHenry, 13 111. 227; Baker v. Vining, 30 Maine, 121. , The case of Jenkins v. Eldredge, 3 Story, 181, might be con- sidered a conflicting authority ; but, beside the question how far the doctrines of that case can be reconciled with the general cur- rent of decisions in this commonwealth, the ground upon which Mr. Justice Story proceeded with the most confidence in his elaborate judgment in that cause seems undoubtedly to have been, that the agreement of Eldridge to make and preserve as evidence a written declaration of trust, which he afterwards neglected and refused to make, would constitute a case of con- structive fraud, against which equity would relieve. In the case at bar, there is no allegation that any division of the property was contemplated by the parties; or that the wofk done by John McGowan in part payment for the conveyance was intended as anything but a small contribution toward the entire purchase. Demurrer sustained and bill dismissed. 356 EDGERLY V. EDGERLY. [CHAP. III. b. Advancements. EDGERLY v. EDGERLY, (112 Mass. 175.) [Supreme Judicial Court of Massachusetts, 1873.] Bill in equity, in which the plaintiif- prayed that the defend- ant might be compelled to execute a release of all her right, title and interest in and to an estate on Cunard Street in Boston. The bill alleged that in 1858 the plaintiff sold his interest in a -copartnership, then existing between himself and one John S. Edgerly, to John S., the consideration consisting of four hundred dollars, and the estate in Cunard Street, that estate being then worth about three thousand dollars, and six other estates, worth together about four thousand dollars.; that the deeds of convey- ance from John S. Edgerly, of the six last mentioned estates, were in form similar to that of the Cunard Street estate, in which the name of the plaintiff appeared as grantee in the granting clause, but the consideration purported to have been paid by the defendant, and the defendant's name, and not the plaintiff's, was inserted in the habendum, and in the covenants ; that at the time of the dissolution of the copartnership, the only other property of the plaintiff consisted of an estate on Barton Street in Boston, then occupied as a residence for himself and family, and worth about eight thousand dollars; that he married the defendant in 1844; that in 1858 their children living were six, between the ages of thirteen and four; that the defendant brought no prop- erty to him on her marriage, and that she had never earned nor inherited nor become in any manner possessed of any, except that which she received from the plaintiff ; that at the time of the dis- solution of copartnership, feeling impressed with the importance of making a provision for his family, and not with the intention of defrauding creditors, he made a conveyance of the Barton Street homestead to the defendant, she paying no consideration therefor, and he intending the conveyance of the homestead as a gift to her for a future provision for herself and their children. The bill then averred that the plaintiff did not intend to make a gift 'to the defendant of the estates conveyed by John S. Edg- CHAP. III.] EDGERLY V. EDGERLY. 357 erly; that the gift of the Barton Street estate was intended by him as a settlement upon her, and that it was a suitable and suffi- cient settlement for her maintenance, and that he had no inten- tion of "denuding himself of his rights in the estates conveyed by John S. Edgerly. The bill alleged further, that upon the xecution of the convey- ances from John S. Edgerly, the plaintiff entered into the enjoy- ment and possession of the estates therein conveyed, managing them in all respects as his own property, paying all taxes, insur- ance premiums, expenses and charges from his own earnings, and collecting all rents and incomes to his own use, giving receipts always in his own name, and not in that of the defendant, and managing and using the estates in his own way, and without any interference or attempt at interference on the part of the defend- ant, and applying the rents and incomes to his own purposes, never accounting nor being requested to account therefor to the defendant; and that, with the exception of the Cunard Street estate, the estates conveyed by John S. Edgerly had been sold, and the proceeds applied as the plaintiff saw fit to have- them applied. The bill then stated that in 1867 differences sprang up between the' plaintiff and the defendant, which resulted in a separation in 1868 that has since continued, and that the defendant obtained against the plaintiff in 1871, a decree of divorce nisi under the St. of 1870. The bill also averred that, from the time of the mar- riage in 1844, until the separation in 1868, the plaintiff always suitably and sufficiently maintained his wife and their children, from his earnings and from the income of the estates conveyed by John S. Edgerly; that until the time of the separation in 1868 he resided with her in the Barton Street homestead, with her consent ; that at the time of the separation, the only one of his children requiring a support was his youngest daughter, then fourteen years old; that the defendant contributed nothing to the support of this daughter ; that since 1867 the defendant had received the rents of the Cunard Street estate; and that she now claimed to hold it adversely to him ; whereas he averred that whatever legal estate she had therein she held as his trustee. The defendant's answer denied the allegation of the billj that the plaintiff did not intend to make a gift to her of the estates conveyed by John S. Edgerly, and alleged that the said estates were, and were intended to be, gifts and grants to her for her own benefit and for the benefit of their children, according to 358 EDGERLY V. EDGERLY. [CHAP. III. her pleasure; and denied that the plaintiff entered into the en- joyment and possession of such estates otherwise than as her agent; and alleged that, in consequence of his having failed to account to her for the income thereof, she, in 1867, revoked all the authority with which she had clothed him, and appointed an- other agent, and that she had not since permitted him to manage them. At the hearing before Morton, J., it appeared that the plain- tiff paid John S. Edgerly a full consideration for the estates con- veyed; that he intended to have the deeds of conveyance made to his wife ; that the deeds were in the first place made to him, but before their execution, the scrivener, being instructed by him to alter them, attempted to erase the name "Daniel" wherever it occurred in the deeds, and to substitute "Sarah M.," the name of the defendant; that the fact of the plaintiff, instead of the defendant, being named in the deed as grantee, was owing to the mistake of the scrivener; that at the time John S. Edgerly exe- cuted the deeds, the plaintiff intended the defendant should take the legal estate in fee; that he did not intend to make a gift of the estates to the defendant adversely to himself, but intended that she should hold them for the benefit and support of him- self and family ; that the plaintiff managed the estates until 1867, but supposing the defendant to have the legal title, he did not attempt to oppose her assuming the management of them in 1867. It was admitted that the plaintiff had in 1868, upon a motion of the defendant for an allowance of money to enable her to prose- cute a libel for divorce then pending in court by her against him, declared under oath that he had caused to be conveyed to the de- fendant all his real estate, and that he was then without property of any kind, and that thereupon the court refused the motion, and the defendant in consequence discontinued her libel; that, subsequently, the defendant brought another libel, upon which she after wards obtained a decree of divorce nisi, and the plain- tiff's solicitor, by the consent of the plaintiff, filed an answer thereto, which recited "that he had conveyed all his property to her in trust for the support of the family, but she refused so to apply the income of the same ;" that upon the heafing upon this libel, the plaintiff testified that he had no estate, real or personal, and that he had conveyed, and caused to be conveyed, all the real estate before belonging to him, to her, and that in consideration thereof the court, while granting to her the decree nisi, refused to decree any costs of suit or any allowance of money to her; CHAP. III.] EDGERLY V. EDGERLY. 359 and that the plaintiff has declared and avowed, but not in writ- ing, to the defendant and to other persons, that he had caused these estates to be conveyed to the defendant. The plaintiff, at the time of the execution of the conveyances from John S. Edg- erly, never declared to the defendant nor to John S. Edgerly that - he intended the estates to be held in trust for himself ; and he never avowed to the defendant any intention regarding the Bar- ton Street estate different from his intention regarding the estates conveyed by John S. Edgerly. Upon these facts, the judge re- ported the case for the consideration of the full court such judg- ment to be entered as they should deem proper. Gray, J. This case does not present any question of the va- lidity or effect, in law or in equity, of a deed made by a husband to his wife. The deed in this case was made by a third person at: the request of the husband, with the intention of vesting the legal title in the wife. If by reason of the insertion of the name of the husband, in- stead of that of the wife, in one place in the deed by mistake of the scrivener, the deed did not pass the legal title to the wife, the husband has no need of any release from her. If she did take the legal title by virtue of the deed, the mere fact that he paid the consideration money would not control the presumption that the deed was intended by him as a provision for her, nor establish a resulting trust in his favor without further. proof that such was the intention at the time of the conveyance. Whitten v. Whitten, 3 Cush. 191 ; Cairns v. Colburn, 104 Mass. 274; Dickinson v. Davis, 43 N. H. €A7 ; Bent v. Bent, 44 Vt. 555. There is no evidence in the case to warrant the inference of such an intention. The fact, as found by the judge before whom the hearing was had, that the husband did not intend to make a gift of the estate to the wife adversely to himself, falls far short of proving that he made such a payment for the land, or for a specific part or distinct interest therein, as is necessary to estab- lish a resulting trust. McGowan v, McGowan, 14 Gray, 119. Any inference in his favor, which could be, drawn from his man- agement of the estate for some years after the conveyance, is overcome by his subsequent unqualified' declarations, on oath and otherwise, that he had caused all his real estate to be conveyed to his wife, and was without property of any kind. Redington v. Redington, 3 Ridgw. P. C. 106. The only reasonable inference from all the facts proved is, that while the husband did not intend to make a gift of the estate to his wife which would deprive him 360 MORICE V. BISHOP OF DURHAM. [CHAP. III. of all benefit thereof, he did intend that the use of the estate and the application of the income for her own benefit and that of himself and their children should rest in her discretion. Bill dismissed, with costs. c: Failure of the Trust in Whole or in Part. MORICE V. BISHOP OF DURHAM. (10 Ves. Jr. 521.) [High Court of Chancery, 1805.] This cause came on upon an appeal by the defendant, the Bishop of Durham, from the decree of the Master of Rolls. Ann Cracherode, by her will, dated the 16th of April, 1801, and duly executed to pass real estate, after giving several legacies to her next of kin and others, some of which she directed to be paid out ot the produce of her real estate, directed to be sold, bequeathed all her personal estate to the Bishop of Durham, his executors, &c., upon trust to pay her debts and legacies, &c. ; and to dispose of the ultimate residue to such objects of benevo- ' lence and liberality as the Bishop of Durham in his own discretion shall most approve of; and she appointed the Bishop her sole executor. The bill was filed by the next of kin to have the will established except as to the residuary bequest, and that s\ich bequest niay be declared void. The Attorney General was made a defendant. The Bishop, by his answer, expressly disclaimed any beneficial interest in himself personally. The Lord Chancellor (Eldon). This, with the single ex- ception of Brown v. Yeall, 7 Ves. 50 N., is a new case. The questions are, 1st, Whether a trust was intended to be created at all? 2dly, Whether it was effectually created? 3dly, If in- effectually created, whether the defendant, the Bishop of Dur- ham, can, according to the decisions, and upon the authority of those decisions, take this property for his own use and benefit. As to the last, I understand a doubt has been raised in the discus- sion of some question bearing analogy to this in another court, — how far it is competent to a testator to give to his friend his personal estate, to apply it to such purposes of bounty not arising CHAP. III.] MORICE V. BISHOP OF DURHAM. 361 to trust as the testator himself would have been likely to apply it to. That question, as far as this court has to do with it, depends altogether upon this: if the testator meant to create a trust, and not to make an absolute gift, but the trust is ineffectu- ally created, is not expressed at all, or fails, the next of kin take. On the other hand, if the party is to take himself, it must be upon this ground, according to the authorities, — that the testator did not mean to create a trust, but intended a gift to that person for his own use and benefit; for if he was intended to have it entirely in his own power and discretion whether to make the application or not, it is absolutely given, and it is the effect of his own will and tbe obligation imposed by the testament: the one inclining, the other compelling, him to execute the purpose. But if he cannot, or was not intended to, be compelled, the question is not then upon a trust that has failed, or the intent to create a trust; but the will must be read as if no such inten- tion was expressed or to be discovered in it. Pierson v. Garnet, 2 Bro. Ch. c. 38, and the other cases of that class, do not bear upon this in any degree; for the question, whether a trust was intended, arose from two or three circum- stances, which must all concur where there is no express trust. Prima facie an absolute interest was given, and the question was, whether precatory, not mandatory, words imposed a trust upon that person ; and the court has said, before those words of request or accommodation create a trust, it must be shown that the object and the subject are certain; and it is not immaterial to this case that it must be shown that the objects are certain. If neither the objects nor the subject are certain, then the recom- mendation or request does not create a trust ; for of necessity the alleged trustee is to execute the trust, and, the property being so uncertain and indefinite, it may be conceived the testator meant to leave it entirely to the will and pleasure of the legatee, whether he would take upon himself that which is technically called a trust. Wherever the subject to be administered as trust prop- erty, and the objects for whose benefit it is to be administered are to be found in a will, not expressly creating trust, the indef- inite nature and quantum of the subject, and the indefinite nature of the objects, are always used by the court as evidence that the mind of the testator was not to create a trust ; and the difficulty that would be imposed upon the court to say what should be so applied, or to what objects, has been the foundation of the- argu- ment that no trust was intended. 362 MORICE V. BISHOP OF DURHAM. [CHAP. III. But the principle of those cases has never been held in this court applicable to a case "where the testator himself has expressly said he gives his property upon trust. If he gives upon trust, hereafter to be declared, it might perhaps originally have been as well to have held that, if he did not declare any trust, the person to whom the property was given should take it. If he says he gives in trust and stops there, meaning to make a codicil or an addition to his will; or, where he gives upon trusts which fail, or are ineffectually expressed, in all those cases the court has said, if upon the face Of the will there is declaration plain that the person to whom the property is given is to take it in trust ; and, though the trust is not declared, or is ineffectually declared, or becomes incapable of taking effect, the party taking shall be a trustee; if not for those who were to take by the will, for those who take under the disposition of the law. It is impos- sible, therefore, to contend that, if this is a trust ineffectually expressed the Bishop of Durham can hold for his own benefit I do not advert to what appears upon the record of his intention to the contrary, and his disposition to make the application; for I must look only to the will, without any bias from the nature of the disposition, or the temper and quality of the person who is to execute the trust. The next consideration is, whether this is a trust effectually • declared ; and, if not as to the whole, as to part. I put it so ; as it is said, if the word "benevolence" means charity, and "lib- erality" means something different from that idea, which in a court of justice we are obliged to apply to that word "charity" (and, I admit, we are obliged to apply to it many senses not falling within its ordinary signification), there is a ground for an application in this case partially, if" it cannot be wholly, to charity. It does not seem to me upon the authorities, particu- larly the Attorney General v. Whorwood, 1 Ves. 534, that the argument for a proportionate division, or a division of some sort, would be displaced. I take the result of that case to be that the substratum of that charity failed, and all those partial dispositions that would have been good charity if not connected with that, failed together with it. It has been decided upon that principle, that, though money may be given to an infirmary or a school, yet, if that bequest is connected with a purpose of building an infirmary or school, and the money is then to be laid out upon it so built, the purpose, which is the foundation, failing, the superstructure must fail with it. The Attorney General v. CHAP. HI.] MORICE V. BISHOP OF DURHAM. 363 Doyley, 4 Vin. 485, is almost the only case that has been cited for a proportional division. The testator expressly directed the trustees to dispose of his estate to such of his relations, of his mother's side, who were most deserving, and in such manner and proportions as they should think fit, to such charitable use as they should think proper and convenient ; and the court, which has taken strong liberties upon this subject of charity, though the manner and prOpbrtion were left to certain in&ividuals, held that equality is equity, and there should be an equal division; but it is expressly declared that those who took were persons who could take under a bequest to charitable uses, and there was no difficulty in that case in saying, those words must be con- strued according to tiie habit and allowed authorities of the court. The only case decided upon any principle that can govern this is Brown v. Yeall, 7 Ves. 50 N., which applies strongly. I do not trust myself with the question whether the principle was well applied in that instance, but the decision furnishes a principle which the court must endeavor well to apply in cases that occur. I do not hestitate to say I entertain doubt, rtot of the principle upon which that case was decided, but whether it was well applied in that instance. Mr. Bradley was a very able lawyer, yet he mistook his way, as Serjeant Aspinwall had not long before. Mr. Bradley gave a great portion of his fortune to accu- mulate for many years, and, meaning that it should be disposed of to charitable purposes, constituted a fund, expressly stating that his purpose was a charitable purpose, and confirming that by directing that charitable purpose to be carried on, as to the mode of executing it, by that court which, according to the con- stitution of the country, ordinarily administers- property given to charitable uses. In his opinion, therefore, independent of par- ticular authority, there was a principle, suggested by all other cases of trust, that if a trust was declared in such terms that this court could not execute it, that trust was ill declared, and must fail, for the benefit of the next of kin. The principle upon which that trust was ill declared is this. As it is a maxim that the execution of a trust shall be under the control of the court, it must be of such a nature that it can be under that control, so that the administration of it can be reviewed by the court ; or, if the trustee dies, the court itself can execute the trust ; a trust, there- fore, which, in the case of maladministration, could be reformed, and a due administration directed, and then, unless the subject and the objects can be ascertained upon principles familiar in 364 MORICE V, BISHOP OF DURHAM. [CHAP. III. Other cases, it must be decided that the court can neither reform maladministration nor direct a due administration. That is the principle of that case. Upon the question whether that principle was well applied in that instance, different minds will reason differently. I should have been disposed to say that, where such a purpose was expressed, it was not a strained construction to hold that the happiness of mankind intended was that which was to be promoted by the circulation of religious and virtuous learn- ing ; and, the testator having stated that to be the charitable pur- pose, which unquestionably was so, the distribution of books for the promotion of religion, the court might have so understood him; and the testator having not only called it a charitable pur- pose, but delegated the execution to ihis court, ought to be taken to have meant that. Upon these grounds in a subsequent case. The Attorney Gen- eral V. Stepney, 10 Ves. 22, as to the Welch charities, it appeared to me too much, considering the Society in this country for the Propagation of the Gospel, &c., to say a trust for the circulation of bibles, prayer-books, and other religious books was not good. Then, looking back to the history of the law upon this subject, I say, with the Master of Rolls, that a case has not been yet decided in which the court has executed a charitable purpose, unless the will contains a description of that which the law acknowledges to be a charitable purpose, or devotes the property to purposes of charity in general. Upon those cases in which the will devotes the property to charitable purposes, described, observation is unnecessary. With reference to those in which the court takes upon itself to say it is a disposition to charity, where in some the mode is left to individuals, in others individ- uals cannot select either the mode or the objects, but it falls upon the king, as parens patriae, to apply the property, it is enough at this day to say, the court, by long habitual construction of those general words, has fixed the sense; and, where there is a gift to charity in general, whether it is to be executed by individuals selected by the testator himself, or the king, as parens patriae, is to execute it, (and I allude to the case in Levinz, The Attorney General v. Matthews, 2 Lev. 167), it is the duty of such trustees on the one hand, and of the crown upon the other, to apply the money to charity in the sense which the determinations have affixed to that word in this court; viz. either such charitable purposes as are expressed in the statute (43 Eliz. c. 4), or to purposes having analogy to those. I believe CHAP. III.] MORICE V. BISHOP OF DURHAM. 365 the expression "charitable purposes," as used in this court, has been applied to many acts described in that statute, and analogous to those, not because they can with propriety be called charitable, but as that denomination is by the statute given to all the pur- poses described. The question, then, is entirely whether this is. according to the intention a gift to purposes of charity in general as understood in this court; such that this court would have held the Bishop bound, and would have compelled him to apply the surplus to such charitable purposes as can be answered only in obedience to decrees where the gift is to charity in "general ; or is it, or may it be according to the intention, to such purposes, going beyond those partially or altogether which the court understands by "charitable purposes;" and, if that it is the intention, is the gift too indefinite to create an effectual trust to be here executed? The argument has not denied, nor is it necessary, in order to support this decree, that the person created the trustee might give the property to such charitable uses as this court holds charitable uses within the ordinary meaning. It is not contended, and it is not necessary, to support this decree, to contend, that the trustee might not consistently with the intention have devoted every shilling to uses in that sense charitable, and of course a part of the property. But the true question is, whether, if upon the one hand he might have devoted the whole to purposes in this sense charitable, he might not equally according to the inten- tion have devoted the whole to purposes benevolent arid liberal, and yet not within the meaning of charitable purposes as this court construes those words; and, if according to the intention it was competent to him to do so, I do not apprehend that under any authority upon such words the court could have charged him with maladministration, if he had applied the whole to purposes, which, according to the meaning of the testator, are benevolent and liberal, though not acts of that species of benevolence and liberality which this court in the construction of a will calls char- itable acts. The question, therefore, resolves itself entirely into that; for I agree there is no magic in words, and if the real meaning of these words is charity or charitable purposes, according to the technical sense in which those words are used in this court, all the consequences follow; if, on the other hand, the intention was to describe anything beyond that, then the testator meant to repose in the Bishop a discretion, not to apply the property for 366 CLARKE V. HILTON. [CHAP. III. his own benefit, but that would enable him to apply.it to purposes more indefinite than those to which we must look, considering them purposes creating a trust ; for, if there is as much of indef- inite nature in the purposes intended to be expressed, as in the cases to which I first .alluded, where the objects .are too uncertain to make recommendation amount to trust by analogy, the trust is as ineffectual, — ^the only difference being, that in the one case no trust is declared, and the recommendation fails, the objects being too indefinite; in the other the testator has expressly said it is a trust, and the trustee consequently takes, not for his own ■benefit, but for purposes not suiificiently defined to be controlled and managed by this court. Upon these words much criticism may be used. But the question is, whether, according to the ordinary sense, not the sense of the' passages and authors alluded to, treating upon the great and extensive sense of the word "charity," in the Christian religion, this testatrix meant by these words to confine the defendant to such acts of. charity or charit- able purposes as this court would have enforced by decree, and reference to a master. I do not think that was the^ intention; and, if not, the intention is too indefinite to create a trust. But it was the intention to create a trust, and the object being too indefinite has failed. The consequece of law is, that the Bishop takes the property upon trust to dispose ,of it as the law will dis- pose of it, not for his own benefit or any purpose this court can effectuate. I think, therefore, this decree is right. The decree was affirmed. CLARKE V. HILTON. (L. R. 2 Eq. C. 810.) [In Chancery, 1866.] John Cooke, by his will made the following disposition: "All my personal estate to my grandson, his executors, administra- tors,- and assigns, subject to the payment of debts, legacies, and personal expenses, and to the trusts hereinafter continued, upon trust to convert and to stand possessed of the said trust moneys." The testator then appointed his grandson, with three others, his executors.' Sir John Stuart, V. C. ■ This case belongs to a class as to CHAP. III.] CLARKE V. HILTON. 367 which the most learned judges have differed in opinion. In Dawson v. Clarke, 15 Ves. 409, Lord Eldon and Sir William Grant held opposite views, and each maintained his own opinion, after knowledge of the other. In King v. Denison, 1 V. & B. 260, argued by Sir S. Romilly on the one side, and Mr. Leach on the other, Lord Eldon pointed out the distinction between gifts by will upon trusts and gifts by will subject to trusts. "If," said Lord Eldon (page 272), "I give to A. and his heirs all my real estate, charged with my debts, that is a deyise to him for a particular purpose, but not for that purpose only. If the devise is upon'trust to pay my debts, that is a devise for a particular purpose, and nothing more, and the effect to tfiose two modes admits just this difference. The former is a devise of an estate of inheritance for the purpose of giving the devisee the beneficial interest, subject to a partic- ular purpose; the latter is a devise for a particular purpose, with no intention to give him any beneficial interest." Here the testator, in the plainest language, has given to J. C. Hilton all his personal estate, subject to debts and legacies, and to the trusts thereinafter mentioned. And afterwards, in refer- ring to these trusts, he uses the words upon trust as a matter of course. But if the property is given to J. C. Hilton subject to trusts specified, it cannot be held subject to any other trusts, and if after satisfying the trusts specified there remain a surplus, there is nothing in the language of the gift or in the context to create a resulting trust in favor of the next of kin. In Mapp V. Elcock, 2 Ph. 793, the trust covered the whole property, and the trustee took nothing but a mere trust estate. But even if the words were a gift to A. B. of all the testator's estate on trust, the context might still show that the trustee was intended to take some beneficial interest. That occurred in Daw- son V. Clark, 18 Ves. 247. Sir W. Grant noticed the case of Coningham y. Mellish, Pr. Ch. 31, as showing how far the court has gone in holding a trustee was to take beneficially. That case was mentioned with approbation by Lord Hardwicke, in Hill v. The Bishop of London, 1 Atk. 618. In Hobart v. Suffolk, 2 Vern. 644, lands were devised to three persons and their heirs, to the use of them and their heirs upon the trusts thereinafter mentioned. The testator then directed them to convey part of the land to A. for life, and part to B* in tail, but gave no direction as to the residue of the fee, and the court held there, that there was a resulting trust for the 368 ELLCOCK V. MAPP. [CHAP. III. heir — the gift being to three trustees, of whom two only weje related to the testator. The principle of all these cases is plain. Where property is given to a man subject to certain defined trusts, there remains no right in any one but the donee when those trusts are exhausted. Where, however, an estate is given to a man in the character of a trustee, without anything to indicate that a beneficial interest is intended, then there is a resulting trust. In the present case the greatest difficulty in the use of the expression that the donee is to stand possessed of the said trust- moneys on trust. If all the moneys were trust-moneys according to the strict meaning of the word, no part of them would be free from the trust. But the whole will must be taken together, and the words of gift' give the whole property subject to the trusts, and not upon the trusts. When the trusts are satisfied and the trust exhausted, the rest of the property remains vested in the legatee or devisee discharged of any trust. But it is a different thing to hold that these words attach a trust to the surplus after the trusts described have been satisfied. There must be a declaration that John Cook Hilton is absolutely entitled to the property comprised in the testator's will, subject to the trusts therein contained. The costs must come out of the estate. ELLCOCK V. MAPP. (3 H. L. C. 492.). [House o*' Lords Cases, 1851.] Samuel Henry Pare made his will in the following terms: "All my estate, both real and personal, to Edward Ellcock, Esq., his executors, alministrators, and assigns, to and for the several uses, intents, and purposes following; that is to say;"— and then, after specifying various objects of his bounty, appointed "the said Edward Ellcock, Esq., executor of this my last will and. testament." The trusts of the will did not exhaust the estate. The Lord Chancellor. In this case the question is, whether an executor is entitled beneficially to the undisposed residue of personal estate. The testator, at the commencement of his will, CHAP. III.] ELLCOCK V. MAPP. 369 uses these words: "I give all my estate, both real and personal, in this island and elsewhere, to Edward EUcock, of, etc., Esquire, his executor, administrators, and assigns, to and for the several uses, intents, and purposes following: That is to say," etc. And then, after specifying various objects of his bounty, he concludes by saying : "Lastly, I nominate, constitute and appoint the afore- said Edward Ellcock executor of this my last will and testament." The late Vice Chancellor of England decided that Edward Ell- cock, the executor, was not a trustee of the residuary personal estate of the said testator, but was absolutely entitled to such residuary personal estate for his own benefit. On appeal that decision was overruled by Lord Cottenham, who held that Ed- ward Ellcock did not becotne entitled to such residuary personal estate for his own benefit, but was a trustee thereof for the next of kin of the said testator, according to the statute for the dis- tribution of the personal estate of intestates; and it appears to me, that both upon authority and principle, the decision of Lord Cottenham ought to be affirmed. Much difference of opinion has existed upon the question in- volved in this case between judges of the highest eminence, and there are many decisions upon the subject of a residue which is undisposed of; but the only case which closely resembles the present, and which I think it necessary particularly to notice on that account, is the case of Dawson v. Clark. And upon that case Sir William Grant and Lord Eldon entertained very differ- ent opinions. In that case the residue was claimed by the execu- tors on two grounds : first, as expressly devised to them indi- vidually, subject only to the payment of debts and legacies ; and, -secondly, if not so devised, then as not being otherwise disposed of, and therefore belonging to them in their character of ex- ecutors. Sir William Grapt being of opinion that, if the first point should be determined against them, they must succeed on the second ground, did not think it necessary to consider the first ground, but decided that they were entitled on the second ground. Lord Eldon, however, though he decided that the executors were entitled on the first ground, yet so distinctly repudiated the second ground, as is pointed out by Lord Cottenham in his judgment in the present case, that I regard his observation as equivalent to a decision that in that case the executors were not entitled in their character of executors; and I agree with Lord Cottenham in considering that there was no real distinction 21 370 ELLCOCK V. . MAPP. [CHAP. III. between that case and the present as regards the second ground, on which the executors there claimed. "This," as his lordship remarked, "is clearly a gift of the whole property in trust, though the trusts declared do not exhaust the whole!" In Pratt v. Sladden, Sir William Grant observed that "some judges, have been disposed to give way to a very slight indication of intention against the executors, and almost to put them upon proof of an intention in their favor. The modern doctrine, how- ever, is, that the executor shall take beneficially, unless there is a strong and violent presumption that he shall not so tcike;.for Lord Thurlow used too strong an expression when he said it must be 'an irresistible inference.' " Lord Hardwicke, al.so in the Bishop of Cologne v. Young, uses the expression "necessary implication or violent presump- tion," but only in a comparative or qualified way. There, after observing that it was "too loose and general" a way of stating the principle, to'saj' that "wherever it probably appears that the testator intended only to give the office of executor, or legal inter- est only, of the personal estate, not the beneficial, he should barely take a trust," he added, that "the rule is rather (which may come to the same thing), that where a necessary implication or violent presumption appears, etc., that the testator, by naming him executor, meant only to give the office of executor, and not the beneficial interest or property, he shall be considered a trustee." While Lord Hardwicke and Sir William Grant were opposing the notion that a mere probability, or "a very slight indication of intention," that the executor was not to take beneficially was sufficient, I am inclined to think that they have used too strong language in requiring the existence of "a necessary implication or a violent presumption." It seems to me that plain implication, or a strong presumption, would have been terms more consistent with the decisions and with principle. It is a question of inten- tion; the law, where none is expressed, implying one in favor of the executors. And I think the result of the cases is not inac- curately stated by the late eminent American judge, Mr. Justice Story, who, in his work on Equity Jurisprudence, observes : "In equity, if It can be collected from any circumstances or expression in the will that the testator intended his executor to have only the office, and not the beneficial interest, such intention will re- ceive efifect, and the executor will be deemed a trustee for those on whom the law would have cast the surplus in case of a com- CHAP. III.] ELLCOCK V. MAPP. 371 plete -intestacy." And in Toller's Executors, and in the more re- cent and extended work, Williams on Executors, the law is stated to the same effect as in the words of Mr. Justice Story. It is true that the onus probandi is on the parties opposing the executor, in cases not within the statute 1 Wm. iv, c. 40, just as it is now thrown on the executor in cases within that act. In the former class of cases there must appear' to be an intention to exclude the executor from the beneficial interest; in the latter, to confer that interest upon him. But it must not be inferred from this, that the position of an executor in the former class of cases is analogous to an heir at law of real estate, who takes what is undisposed of. An heir at law is the person whom the law, so far as it is uncontrolled by testamentary disposition, des- ignates as the proper object of succession to the inheritance. And the maxim is, melior est dispositio legis quam hominis. But the executor takes the legal interest by virtue of an express appoint- ment to the office of executor, and the beneficial interest attaches to the legal interest in him, unless the will affords sufficient evi- dence of an intention that he is to take in a fiduciary character; in which case the beneficial interest has a separate and independ- ent existence, and instead of attaching in him, stands apart from his legal interest, and rests in the persons whom the testator has designated as the objects of his bounty, and who might be termed testamentary cestui que trust ; -or, in default of those, then the persons who have a statutory right, grounded on the relationship to the testator, and who may be considerec^ as the statutory cestuis que trust. Lor,d Eldon, therefore, justly observed, in Dawson v. Clark, that "the proposition that the appointment of executor gives him everything not disposed of, is not correct;" and he gives a con- clusive proof of this by adding, that "if a testator appoints an executor in trust, but does not express his object, he might have rehnquished that object, meaning' it to go to his executor; yet the will expressing that he intended a trust at that time, the exec- utor would not take in respect of the- interest he had by virtue of his office." It has, indeed, been remarked by a learned text writer, Mr. Bythewood, in his edition of Jarman, and I think correctly, that the rule which gave the residuary property to the executor gen- erally contravened the intention. And the fact that this is so, and that therefore the legislature has declared it desirable to alter the rule, would almost seem to show that in doubtful cases 372 BOND V. MOORE. [CHAP, III. the leaning ought to have been rather against than in favor of the executor. This, however, I conceive is not one of such doubtful cases, and I think there is no necessity here to consider upon how low a degree of evidence of intention in their favor the statutory objects of succession may be admitted. Their title seems to me to be clear, inasmuch as the executor is distinctly and unequiv- ocally invested with a fiduciary character as to the whole residue, though the trusts do not exhaust the whole. The cirfcumstance that the trusts do not exhaust the whole has been rightly held to be immaterial. Here that circumstance does not affect the fiduciary character wiith which the executor has been invested. It only makes him a trustee pro tanto for statutory, instead of for testamentary, objects. Upon principle, then, as well as upon the weight of authority, I am of opinion that the executor in this case is merely a trustee, and I move that the order of Lord Cottenham "be affirmed Order afHrmed. BOND V. MOORE. (90 N. C. 239.) [Supreme Court of North Carolina, 1884.] Civil action tried at fall term, 1883, of Superior Court, Chowan County. Avery, Judge. , The defendants demur to the complaint, and the demurrer be- ing overruled and judgment rendered for the plaintiffs, they appeal. Smith, C. J» (after stating the case). The question to be de- cided arises from the construction of the deed, and is whether an equitable estate in remainder vests in the plaintiffs, entitling them to demand a conveyance of the legal estate from the heirs at law of the trustee and possession from the defendant Moore. It is not important to consider the force and effect of the terms used in the declaration of the trust in favor of the wife, and the necessity of words of inheritance to enlarge an estate for life into a fee. This trust is, as are the others, executory, and not an executed trust, — created by a direction to the trustee to convey, — not itself a conveyance ; and the same technical rules of construe- CHAP. III.] BOND V. MOORE. 373 tion do not prevail in interpreting both. When the trustee is re- quired to act in execution of" the trust, in order to effectuate the expressed purpose of the instrument, that purpose is ascertained by employing the ordinary rules of interpretation; and a direc- tion to convey the lot, in the absence of restriction -or qualifying words, when applied to instructions given to the trustee, is a direction to convey the full estate vested in him, and the trust consists in the right to have it performed. In the latter case the intent is ascertained by giving a fair and reasonable meaning to the language in which it is expressed, and in this sense the trust is enforced. This is the distinction taken in Levy v. GriMs, 65 N. C. 236, and is warranted in Holmes v. Holmes, 86 N. C. 206. But it is a settled rule in the interpretation of written instru- ments to look to other provisions for light to guide in arriving at the meaning of any doubtful clause. In applying the rule, we think it plainly appears that a life estate only was intended to be secured to the wife, associated with a power of disposition of the whole estate, by a written instrument in the form pre- scribed. The recitals in the deed show that it is drawn in pur- suance of the agreement between Jones and his wife, and in pre- cise fulfillment of it's terms; for it declares the promise to have been to convey the lot to a trustee for her use "upon the trusts hereinafter declared." Among the trusts enumerated, the third undertakes to pro- vide for the contingency of the death of the wife without having exercised the power conferred, clearly contemplating a remainder and limiting her estate under a preceding clause for the term of her life. Nor is it material whether this final limitation of the trust estate is effectual or inoperative by reason of an insufficient description of the party to take under it. In either case the clause subserves the same purpose in showing the character and extent of the estate secured to the wife. Her death, then, without her having exercised the dispositive power, her husband still being alive, and his estate also becom- ing extinct, which endured only during their joint lives, presents the very contingency upon whose happening the trustee is re- quired to convey "to the party or parties entitled by the laws of North Carolina." Who is the party meant? The plaintiffs appro- priate this designation to the grantor, the defendants to the heirs of the wife, and there being none, to the university substituted in their place under the law of escheat. 374 BOND V. MOORE. [CHAP. III. In our opinion, the words do not and were not intended to point out any particular persons to take the inheritance remain- ing, but to leave it to pass under the law as undisposed of prop- erty. They show such estate, depending on a contingency, to have been in the mind of the grantor as capable of subsisting beyond the life of the wife and of his own, and to place it under the control of the law. This being the proper construction of the clause upon well established principles, the undisposed of remainder was freed from the intervening life estate in the wife, became united with the then expiring life estate of the husband, and he became the equitable owner of the entire inheritance. "Another form in which a resulting trust may appear," says Mr. Justice Story, "is where there are certain trusts, created either by deed or will, which fail in whole or part, or which are of such an indefinite nature that courts of equity will not carry them into effect, or which are illegal in their nature or character, or which are fully executed aiid yet leave an unexhausted resid- uum. In all such cases there will arise a resulting trust to the party creating the trust, or to his heirs or legal representatives, as the case may require." 2 Story, Eq. Jur. § 1106a; Lewin, Trusts, 175 ; Mosely v. Mosely, 87 N. C. 69 ; Robinson v. McDiar- mid. Id. 455. But the defendants contend that inasmuch as the husband was permitted to receive the purchase money of the wife's land, under his agreement to convey his lot in trust for her, this money con- stitutes the consideration of his deed and the trust arises to her. The rule which raises a trust in favor of one whose money was used in payment for land bought, has no application to the facts of the present case. The deed to which she consents in becom- ing a party contains all the trusts, and, in the very form he agreed to make and secure to' her, the .full fruits of his contract. He stipulates to make precisely such a conveyance, and with such declaration of trusts as are found in the present deed. This exhausts her equity in the premises. Her money is the considera-" tion of, and given for, the interests and benefits secured to her in its provisions, and for no other portion of the trust estate. The land was her husband's, not hers; and whatever estate re- mains after all the trusts in her behalf have been executed, must be vested in him. This does not belong to the class of cases in which the purchase money of one party has been used and the title to the land- conveyed to another. CHAP. III.] BLODGETT V. HILDRETH. 375 "The doctrine," remarks the 'same author, "is strictly limited to cases in which the purchase has been made in the name of one person and the purchase money has been paid by another." 2 Story, Eq. Jur. § 1201a. The authorities cited in the argu- ment sustain this view oi the law. Unless the constructive trust was raised in such case, a successful fraud would be perpetrated by the grantee. King v. Weeks, 70 N. C. 372; Cunningham v. Bell, 83 N. C. 328; Kisler v. Kisler, 27 Am. Dec. 308. We therefore affirm the judgment overruling the demurrer, and remand the cause to be proceeded with in the court below. No error. AMrmed. d. Conveyance Without Consideration. BLODGETT v. HILDRETH. (103 Mass. 484.) ^ [Supreme Judicial Court of Massachusetts, 1870.] Bill in equity by the heirs of Sarah M. Blodgett, to redeem one undivided half of a parcel of land in Townsend from a mort- gage held by the defendant. At the hearing before Morton, J., there appeared the following facts, on which the case was re- served for the consideration of the full court. John W. Swallow, owning the land in question, mortgaged it to Jepthah Cummings, and died in 1840, intestate, leaving his four sisters, Alice M. Swallow, Sophronia Swallow, Sarah M. Blodgett, and Lucinda S. Hildreth, his heirs. No administration was taken on his estate. In 1843, Alice, Sarah and Lucinda made "a deed of quitclaim" of the premises to Sophronia, the husbands of Sarah and Lucinda joining therein; afterwards Alice died, unmarried and childless; then Sarah died intestate, leaving the plaintiffs her heirs ; and then Sophronia died, intestate, unmarried and childless. Subsequently the mortgage to Cummings was as- signed, to Lucinda, and she afterwards conveyed the premises by quitclaim deeds through a third person to her husband, the de- fendant, and in 1857 died. The defendant contended that the deed made to Sophronia by his sisters was made in trust for the sole use and benefit of Lu- cinda; and he was allowed to introduce in evidence, against the 376 BLODGETT V. HILDRETH, [CHAP. III. objection of the plaintiifs, a letter written in 1853 by Sophronia to Lucinda, containing this passage: "I intend to settle up our affairs and give up your deeds that you intrusted me with." The defendant was also allowed, against the plaintiff's objection, to introduce oral evidence showing that the heirs of John W. Swal- low made an oral, agreement that Lucinda should take the prem- ises, she agreeing to pay all her brother's debts, and to pay $25 to each of her sisters ; that, in pursuance of this agreement, Ihe deed of 1843 was made to Sophronia, at the request of Lucinda, and to be held in trust for her ; that at the time the deed was made Sophronia paid some of her brother's debts out of money in her hands belonging to Lucinda, and Lucinda's husband, the defend- ant, gave Sophronia a receipt in full of a debt due to him from her brother's estate; that, after the deed was made and deliv- ered to Sophronia, Lucinda, from time to time, paid the other debts of her brother, and also paid $25 to each of her sisters; that, after the making of the deed to Sophronia, Lucinda and the defendant paid the taxes on the premises up to the time of Sophronia's death, since which time the -plaintiffs voluntarily paid one-half of the taxes; and that Lucinda, at the time of making the deed to Sophronia, held promissory notes against her brother, which were found among her papers at her death, and were now in the possession of the defendant. Wells, J. 1. The writing produced in this case was not suffi- cient to satisfy the requirements of the statute of frauds. It fails to identify the property or interests to which it relates, or to afford means by which its identity may be made certain. It does not disclose the terms of the trust, or the conditions upon which the sister was entitled to have the deeds surrendered to her. The trust must be established, if at all, by implication of law. 2. As to Sophronia's original share of the land, the case stands merely upon an oral agreement to hold it for the benefit of Lu- cinda, in payment of the value or consideration therefor. This will not create a valid trust. Gen. Sts. c. 100, § 19. Payment of the whole purchase money will not take an oral agreement con- cerning land out of the statute of frauds. Purcell v. Miner, 4 Wallace, 513; Thompson v. Gould, 20 Pick. 134; Glass v. Hul- bert, 102 Mass. 24. Lands already held by a party cannotf be charged with an implied or resulting trust by reason of the re- ceipt of money upon an oral agreement of sale or trust. Rogers V. Murray, 3 Paige, 390; Forsyth v. Clark, 3 Wend. 637, 651. 3. As to the share of Lucinda, conveyed by her to Sopfironia CHAP. III.] BLODGETT V. HILDRETH. 377 without consideration and upon an agreement to reconvey or hold it for the benefit of Lucinda, no valid trust arises from that transaction. Walker v. Locke, 5 Cush. 90. A voluntary deed is vaUd between the parties as a gift, and does not raise any trust in favor of the grantor. It is otherwise with a feoffment, and perhaps in other conveyances whenever there is no declaration of the uses, and the consideration is open to inquiry in determin- ing the effect of the deed between the parties and- their privies. Cruise Dig. (Greenl. ed.) tit. ii, c. 4, § 16, and tit. 32, c. 2, § 38. In this Commonwealth the consideration is «ot open to such in- quiry. Supposing that the deed in question to have been in the common form, the recital of a consideration, and the declaration of the use to the gVantee and her heirs in the habendum, are both conclusive between the parties, and exclude any resulting trust to the grantor. Squire v. Harder, 1 Paige, 494; Hill pn Trustees, 112; 2 Story, Eq. § 1197; Philbrook v. Delano, 120 Maine, 410 ; Farrington v. Barr, 36 N. H. 86 ; Graves v. Graves, 9 Foster, 129. A trust may be established in favor of one who furnished the consideration, where a deed has been taken to a third party, because in that case the supposed cestui que trust, not being party to the deed, is not estopped by its recitals or covenants from proving all the facts from which such a trust will result. Liver- fiiore v. Aldrich, 5 Cush. 431. 4. The two shares conveyed to Sophronia by the other two sisters come within the conditions from which a trust is held to result, by implication of law, in favor of the party who is the real purchaser and furnishes the consideration. It need not be money advanced or paid at the time of the conveyance. The mode, time and form in which the consideration was rendered are immaterial, provided they were in pursuance of the contract of purchase. It is sufficient if that which in fact formed the consid- eration of the deed moved from the party for whom the trust is claimed to exist, or was furnished in her behalf or upon her credit. The trust results from the purchase and payment of the consideration by or for one party, and. the conveyance of the land to another. The receipt of a deed of conveyance founded on such a transaction raises a presumption that it was taken for the benefit of the party supplying the consideration. 2 Story Eq. § 1201. The implication of a trust from these facts may be over- come and disproved, or corroberated, by any oral or written testi- mony showing the circumstances of the transaction, and the ex- 378 BLODGETT v: HILDRETH. [CHAP. III. pressed or probable intention of the parties. Their admission at the time or afterwards are competent to be proved. So also are their agreements; but agreements not in writing have no force otherwise than as admissions tending to destroy or confirm the inference otherwise' deducible from the facts of the payment of the consideration and deed to a third party. The trust results only from that inference. Adams Eq. 33 ; Hill on Trustees, 96, 97 ; Botsford v. Burr, 2 Johns. Ch. 405. Upon the report in this case, it appears that the whole consider- ation of the deed to Sophronia moved from Lucinda. It consisted partly in payments made at the time, out of money belonging to Lucinda, partly in payments then undertaken to be made, and subsequently made by her, and partly in the release or surrender of claims against the estate of their deceased brother. All these payments, releases and undertakings were for the use and benefit of the grantors, either directly or indirectly. It is enough, how- ever, that, whatever of consideration there was, it moved from Lucinda. Proof of payments made subsequently has no other effect than to show that there was no failure of the considera- tion agreed upon when the deed was made, and on which it rested. The other facts, including the letter of Sophronia relied on as a declaration of trust, tend to corroborate and strengthen the implication of law which arises from payment of the consider- ation. The fact that Lucinda joined in the same deed of quitclaim, in order to convey her own share to Sophronia, does not create any estoppel against her, beyond the interest which she conveyed. . The deed is not set forth in the pleadings, nor in the report ; and we are not to presume that Lucinda entered into any covenants, in relation to the shares conveyed by her sisters, which estopped her from proving the facts from which an implied trust may result in her own favor. Her covenants, if any, in the deed, would be construed as extending only to the estate conveyed by her, unless the terms in which they are expressed require a dif- ferent construction. Blcmchard v. Brooks, 12 Pick. 47. Allen v. Holton, 20 Pick. 458 ; Sweet v. Brown, 12 Met. 175. The result is, that one-half of the estate was held by Sophronia in trust for Lucinda; and the plaintiff, if permitted to redeem would at once be compelled to release it, in fulfillment of that trust. As to the other half, as no trust is legally established, it passed, upon the death of Sophronia, in equal shares to Lucinda CHAP. III.] FERRIS V. VAN VECHTEN. 379 and the representatives of Mrs. Blodgett, neither Sophronia nor her sister Alice M. having left issue. The plaintiffs are thereby entitled to redeem one-fourth part of the premises. If the parties shall not agree upon the amount to be paid upon such redemption, a master must be appointed to ascertain the amount. Decree accordingly. 2. Constructive Trusts. a. When Property is Acquired by the Wrongful Use of the Property of Another. FERRIS V. VAN VECHTEN. (73 N. Y. 113.) [Court of Appeals of New York, 1878.] Allen, J. This is,- I think, a case of the first impression, but it is sought to be brought within the principle of equity by which, at the instance of a cestui que trust, trust funds which have been misappropriated by the trustee may be followed and reclaimed, so long as they can be traced and identified, and any property or choses in action into which they have been converted impressed with the same trusts as those upon which the original "funds were held. The claim of the plaintiff briefly stated is, that moneys realized from real estate sold under a power of sale for the payment of debts, and held by Van Vechten, the surviving executor, in trust for the plaintiff, a creditor, have been wrongfully and in viola- tion of the trust applied to the payment of charges and incum- brances upon the lands of the testator described in the complaint, and which were devised fo the executors in trust, to receive the rents, issues and profits thereof, and pay the same to the wife, of a son of the testator, to be applied by her to the support of the family of such son, and upon her death to convey the same to the children of said son. The relief demanded by the plaintiff is in substance, although not so stated, that she be subrogated to the rights of the creditors, and lienors, whose incumbrances have been pro tanto discharged as against the lands to the amount paid thereon from the trust funds. The funds can hardly be said to have been invested in the lands, or in the mortgages, or other 380 FERRIS V. VAN VECHTEN. [CHAP. III. charges paid by the executor. There was no purchase of either, but the incumbrances were partially satisfied. The lands were relieved from certain charges by the diversion to that purpose of funds held in trust for creditors, as alleged, and it sought to revive the liens by subrogating the plaintiff to the rights of the original creditors. Whether a cestui que trust can be subrogated to the claims of creditors, to the payment of whose debts the trust fund has been misapplied, need not be determined. See Winder v. Diffenderffer, 2 Bland, 198. Regarding the payments by Van Vechten as investments in the lands, in relief of which they were made, the primary ques- tion is whether in that view a case was made upon the evidence for the relief demanded. It must be conceded that trust moneys may be followed into lands to the purchase of which they have been applied, and the cestui que trust may elect whether to hold the unfaithful trustee personally responsible, or claim the lands, the fruits of the misappropriation of the funds, or cause the lands to be sold for his indemnity, and look to the trustee for any deficiency. Lane v. Dighton, 1 Amb. 409, per Lord Ellenbor- ough ; Taylor v. Plumer, 3 Maule & S. 562 ; Thornton v. Stokill, 19 Jur. 751 ; Oliver v. Piatt, 3 How. 333, per Story, J. ; Story, Eq. Jur. § 1258- et seq. ; Shepherd v. McEvers, 4 Johns. Ch. 136, 8 Am. Dec. 561 ; Dodge v. Manning, 1 N. Y. 298. 'To follow money into lands, and impress the latter with the trust, the money must be distinctly traced and clearly proved to have been invested in the lands. While money, as such, has no ear-mark by which, when once mingled in mass, it can be traced, it is, nevertheless, capable under some circumstances of being followed to, and identified with, the property into which it has been converted; but the' conversion of the trust money specifi- cally, as distinguished from 'other money of the trustee into the property sought to be subjected to the trust, must be clearly shown. It does not suffice to show the possession of the trust funds by the trustee, and the purchase by him of property — ^that is, payment for property generally by the trustee does not author- ize the presumption that the purchase was made with trust funds. The product of, or substitute for, the original trust fund follows the nature of the fund as long as it can be ascertained to be such ; and if a trustee purchase lands with trust inoney, a court of equity will charge them with a resulting trust for the persons beneficially interested. But it must be clear that the lands have been paid for out of the trust money. This is illustrated by Perry v. Phil- CHAP. III.] FERRIS Z/. VAN VECHTEN. 381 lips, 4 Ves. 108. There a trustee for the purchase of land died without personal assets, but having purchased lands, the estates purchased were held not liable to the trust, the circumstances affording no presumption that they were purchased in "execution of the trust. If the purchase of land with the trust moneys could not be presumed when such piirchase would be in execution of the , trust, a fortiori it should not be presumed when it would be a violation of the trust. The right of following the trust property, in the new form which has been given to it, or in the property substituted for it, ceases only when the means of ascertainment fail, "which of course is the case when the subject matter is turned into money "^and mixed and confounded in a general mass of property of the same description." 2 Story, Eq. Jur. § 1259, and note 4. When the purchase-money, paid by a trustee for lands purchased, corresponds very nearly with that of the trust fund to be invested, that with other circumstances, as the coincidence of the time of the receipt and disbursement, may suffice to show that the property was actually purchased with trust funds. Lowden v. Lowden, 2 Browne, Ch. 583 ; Price v. Blakemore, 6 Beav. 507. The money paid by the trustee for lands or other property, or for choses in action sought to be subjected to the original trust, must beidentified as trust moneys ; and this is clearly recognized in all the cases, and in very many of them this has been the difficult question of the fact upon which they have hinged, and the principle to be deduced from them is, that when the trust fund has consisted of money, and been mingled with other moneys of the trustee in one mass, undivided and undis- tinguishable, and the trustee has made investments generally from moneys in his possession, the cestui que trust cannot claim a specific lien upon the property or funds constituting the invest- ments. Hill, Trustees, m. p. 522. This is consistent with the cases cited and relied upon by the counsel for the plaintiff, and the doctrine is recognized and applied in each case, and as the facts were proved to exist in them respectively. In Moses v. Murgatroyd, 1 Johns. Ch. 119, 7 Am. Dec. 478, the property held in trust was readily and certainly traced. In Kip v. Bank, 10 Johns. 63, the money, the subject matter of the trust, was kept separate and distinct, and deposited as such. The court say the only check to the operation of the rule now under consideration is when the property is converted into cash, and has been absorbed in the general mass of the estate so that it cannot be followed or 382 FERRIS V. VAN VECHTEN. [CHAP. III. distinguished. It is the diiBculty of tracing the trust money, which has no ear-mark, that prevents the application of the rule. See, also, Hutchinson v. Reed, Hoff, 316, and cases by Asst. V. Ch., 2 Kent Comm. 623, 624; Trecothick v. Austin, 4 Mason, 29, Fed. Cas. No. 14,164. There can be no presumption as against the defendants whose property is sought to be affected by the trust, which attached to the moneys realized by Van Vechten from the sale of lands under the power. So far as appears they are innocent of all wrong- doing, and have no colluded or combined with the executors to violate the trust, and it is not found that they assented to or had any knowledge of any misappropriation of the fund, and if made trustees in virtue of their ownership of the lands they are made so, not by reason of any act of theirs, but as the legal result of the fact that trust moneys have been misapplied by a trustee of the fund to relieve of a burden their lands, held in trust- for another purpose by the same trustee. The fact should be clearly, at least satisfactorily proved. This principal fact, upon which the right of the plaintiff to any relief in this action depends, is ony alleged argumentatively in the ^ complaint by the statement that it appeared in the account of the executors filed with the surrogate that large sales of real estate of the testator had been made by the executors on account of which they had realized large sums of money, and that it also appeared that large amounts of money arising therefrom were issued arid aplied in keeping the homestead farm in repair, and large sums were paid out for interest and taxes on said farm. There was no proof that one dollar of the moneys received for lands, and which constituted the trust fund, was paid or applied to any of the purposes men- tioned, nor is the fact of such misappropriation of the trust moneys found, nor was any fact proved or found from which such diversion and misappropriation of specific trust moneys can be legitimately inferred. The only proof given upon this branch of the case consisted of the proceedings before and the decree of the surrogate upon the settlement of the accounts of the execu- tor. If these proceedings were competent evidence for any pur- pose, or to establish any fact as against the defendants, the present appellants, they were only competent in respect of the matters then in issue, and which were determined by the surro- gate. The questions before thaat tribunal related solely to the accounts of the executors and their liability to the creditors, and those entitled under the will of the testator. The executors were CHAP. III.] FERRIS V. VAN VECHTEN. 383 charged with the amount of tlie inventory of the personal estate of the deceased, together with the amounts received upon the sale of real estate. The moneys realized from the sale of lands were the primary fund for the payment of debts, and creditors had the first claim to be paid from those moneys, and the first lia- bility of the executors in respect of such moneys was to creditors. Such liability was discharged by proof of payment to creditors, whether made from the identical moneys received by the execu- tors, or from other moneys of their own, or subject to their con- trol. The moneys realized from lands sold in excess of the debts of the testator belonged to the present appellants, as devisees of the land subject to the power of sale, and the liability of the executors to them was discharged by like proof of payment to them or for their use, from any moneys of the executors, whether received for lands sold under the power or from other sources. Upon proof of the plaintiff's debt she was of course entitled to a decree for its payment on the admission by the executors in their filed account of the moneys received by them properly applicable to its payment. Proof of payment to or for the use of the devisees of the lands was no discharge of the liability to the plaintiff, and the fact that payments to or for the devisees were set up in discharge of the plaintiff's claim was wholly unimportant. It was unimportant upon that accounting whether Van Vechten, the surviving executor, had the money in his own pocket, or had disposed of it to some third person. His liability to the plaintiff upon that accounting was the same, and the decree was necessarily the same in either event. In no aspect of the case was the surrogate called upon to trace and identify the money received by the accounting executor on the sale of lands. The charges against the executors consisted of the gross receipts, and the discharges of the gross amount of the several pay- ments and disbursements as allowed by the surrogate, and the decree was for the payment of. a gross amount, and was a general judgment against a surviving executor for a general balance due, not «for a surrender or paying over of specific moneys or securi- ties, and as between the plaintiff, a creditor, and the appellant's devisees it was adjudged that payment claimed to have been made by the executor to or for the latter did not discharge the obliga- tion to the former, and such payments were merely disallowed as credits claimed by the executor. It was not found upon the trial of the present action by the court, as a fact, that the specific moneys received by the executors for lands sold,. and 384 FERRIS 1). VAN VECHTEN. [CHAP. III. which were trust moneys for the payment of debts, were in any way paid to or applied for the use of the devisees in payment of the incumbrances upon the homestead farm, although the gen- eral forms of expression, to a 'limited extent, seem to imply the fact. The learned judge did not intend to so find and does not seem to have regarded it as important. He merely speaks of the moneys which the executor used as, or in place of, the trust mon- eys and in discharge of his obligation, as trust moneys; but that does not make them the specific trust funds received. It is found in general terms that nroneys to an amount stated were received from the sale of real estate under the power, and that the execu- tors had paid various sums for principal and interest upon mort- gages upon and repairs of the farm to the amount in the aggre- gate stated, but the times and amounts of the various receipts, or of the several payments, are not found, nor is it found that the payments were made from the moneys received, or that the moneys were misapplied to these payments. If reference is had' to the accounts and schedules filed by the executors with the surrogate as the basis of the accounting, which is the only evi- dence of the dates and amounts of the several receipts and dis- bursements, there is nothing by -which the moneys received for lands sold can be traced and identified as the moneys paid for the improvement of the homestead farm, or in discharge of incum- brances upon it. There is neither coincidence in the times or amount of the receipts and disbursements of moneys upon the account, and for the purposes mentioned, to connect the one with the other and lead to a presumption that the money received from the one source was the same money that was paid out. The inference would rather be that the moneys, when received, were mingled with other moneys of the executors and used as occasion required, either for purposes connected with the admin- istration of the estate or thie individual purposes of the executor. Whatever presumptions might be .indulged in favor of the equi- ties of the plaintiff as a creditor against the defaulting trustee or his representatives, were he or they the holders and claimants of the property sought to be realized, none can be indulged as against the present appellants who are innocent of any partici- pation of the wrongful acts of the executor. If, upon the state- ment of the accounts by and before the surrogate, the evidence in this case and the findings of fact by the judge, the principle contended for by the plaintiff could be so far extended as to authorize a lien upon the lands in aid and relief of which CHAP. III.] FERRIS V. VAN VECHTEN. 385 payments were made by the executor for the benefit of plaintiff as a cestui que trust, there would be no difficulty in giving every cestui que triist, as creditor having a debt of a fiduciary charac- ter, a preference in respect to the general' assets and creditors at large of the trustee or debtor, a lien upon property which the trustee or debtor might have purchased during the existence of the trust of other fiduciary relations. This might be convenient and in furtherance of a general equity in favor of one class of creditors, but would be an unauthorized extension of the equi- table doctrine invoked by the plaintiff, which demands for its application that the trust fund or money shall be traced and identified as existing in the new form into which it has been converted. In no other way can the equitable title of a cestui que trust to specific property be established. ■ This question, which is decisive of this appeal, is fairly raised by the exception to the admission, as evidence generally in the case, of the proceedings before the surrogate over the objection of the appellants that they were immaterial and incompetent, and also by the exceptions to the conclusions of law and the judg- ment of the court upon the trial. It is proper to say that in pass- ing only upon this one question we do not intend to intimate an opinion upon any of the other questions made and ably argued by the learned counsel for the respective parties. The case bristles with interesting and difficult questions, but as the one consid- ered is decisive of this appeal, and the other questions may not re-appear or be obviated by evidence upon another trial, we do not deem it necessary to consider them. Upon another trial it may be shown by competent evidence that the moneys received upon the sale of lands were kept separate from all other moneys, and specifically applied to the payment of the charges and in- cumbrances upon the homestead farm, and if so the difficulty which the plaintiff now encounters will be obviated. The equi- ties are clearly with the plaintiff, but they cannot override the legal rules of evidence, or be enforced by an unauthorized en- largement and extension of the equitable doctrine which lies at the foundation of the action. There is in truth no competent proof as against the appellants other than Van Vechten, that the payments claimed to have been made by him in relief of the homestead were ever made. The proof consists of the accounts unverified filed with the surrogate by the executors; in which they credit themselves with these payments, and the decree of the surrogate disallowing them, and adjudging an amount stated 386 AM&RICAN SUGAR REFIN'G CO. V. FANCHER. [CHAP. III. to be due the estate from the said executors, and in their hands properly applicable to the payment of the plaintiff's claim, which was less than one-half in amount of the sum decreed to be in the hands of the executors. The surrogate merely held and decided that if the payments had been made as claimed, they could not be allowed to the executors upon that accounting. That is the extent of the decree. It is possible, although we do not intend to intimate an opinion upon the subject for the reason that parties have not been heard, and the question is not before us, that the plaintiff may have relief in the present action without tracing and identifying the trust moneys as now being invested in the homestead farm, and by treating this complaint as a creditor's bill, filed upon the return of an execution against Van Vechten unsatisfied. Upon proof that Van Vechten had made the payments alleged, under circum- stances which would give him as a trustee a lien upon the trust estate for the benefit of which they were made, it may be that the court would deem it a proper case to enforce the lien for the benefit of the plaintiff — that is, apply a debt due the judgment debtor to the satisfaction of the judgment. Such a claim in favor of a judgment debtor would not be beyond the reach of a cred- itor's bill. As Van Vechten's account as trustee of the homestead farm has not been settled, there would arise none of the questions made upon the last trial as to the effect of the statute of limita- tions as affecting the claim of the plaintiff, upon the theory upon which the case was tried. But without considering this sugges- tion farther, the judgment must for reasons stated be reversed, and a new trial had. All concur. Judgment reversed. AMERICAN SUGAR REFINING CO. v. FANCHER. (145 N. Y. 552.) [Court of Appeals of New York, 1895.] Appeal from Supreme Court, general term, first department. Action by the American Sugar Refining Company against Charles H. Fancher, assignee. From a judgment of the general term (30 N. Y. Supp. 482), reversing a judgment for plaintiff, plaintiff appeals. Reversed. CHAP. III.] AMERICAN SUGAR REFIN'g CO. V. FAInCHER. 387 Andrews, C. J. This case presents a question of considerable practical importance. It relates to the equitable jurisdiction of the court, under special circumstances, to follow proceeds of per- sonal property in the hands of a fraudulent vendee or his general assignee for the benefit of creditors at the suit of a defrauded vendor, who by false pretences was induced to part with the property upon credit, the proceeds sought to be reached being the sums due from subvendees of the fraudulent purchaser arising on re-sales by him made before the discovery by the plaintiff of the fraud. The facts upon which the question arises are sub- stantially conceded and are free ^ from complication. Between the 20th day of September, 1892, and the 20th day of October following, the plaintiff sold and delivered to the mercantile firm of C. Burkhalter & Co., doing business in the city of New York, sugars of various qualities on credit for the price in the aggre- gate of $19,121.41, no part of which has been paid, the last sale having been made October 19, 1892. On the next day the firm, being insolvent and owing debts greatly in excess of its assets, made a general assignment to the defendant for the benefit of its creditors. Among the assigned assets were a portion of the sugars sold by the plaintiff to the firm, which he replevied from the assignee; but the firm, prior to the assignment, had sold to numerous persons, customers of the firm, in the ordinary course of trade, portions 6f the sugars on credit, and claims held by the firm against the subvendees arising out of such sales, exceeding in the aggregate the sum of $10,000, were among the assets which passed by the assignment. These claims were collected by the assignee after the assignment, and (excepting a small sum) after notice had been served by the plaintiff on the assignee that it re- scinded the original sale for fraud, which notice was accompa- nied by a demand for the sugars then in the possession of the assignee, and for an accounting and delivery to the plaintiff of the outstanding claims against the customers of Burkhalter & Co. in their hands for the sugars sold by the firm as above stated. The assignee declined to accede to the demand made. On the trial the parties by stipulation fixed the amount of the claims for sugars sold which had come to the hands of the assignee, and which had been collected by him. The fraud of Burkhalter & Co. was not controverted. It was shown- that the sales were induced by a gross misrepresentation in writing made by one of the mem- bers of the firm to the plaintiff as to the solvency of the firm, made on or about September 20, 1892, within thirty days before ■ 388 AMERICAN SUGAR REFIN'G CO. V. FANCHER. [CHAP. III. the assignment, and when the firm, was owing several, hundred thousand dollars more than the value of its whole assets. The case presented is singularly free from any uncertainty in respect to the facts upon which the equitable jurisdiction to fol- low the proceeds of the sugars is claimed. They are definite and ascertained, but it is insisted that the court is impotent to give relief by way of subjecting the choses in action or their proceeds, representing the sugars, to a lien in favor of the defrauded ven- dor, or to adjudge that they shall be applied in partial recom- pense and restitution for the property so wrongfuljy obtained, because, as is claimed, such relief is not in any such case within the scope of the powers of courts of equity as heretofore defined ■ and exercised, and for the further reason that new rights have intervened by reason of the assignment. The fraud of Burk- halter & Co. was, as we have said, admitted. They are hopelessly insolvent, and were so at the time they took the plaintiff's goods. They disposed of a large part of the sugars before the plaintiff became cognizant of the fraud. The plaintiff was only apprised if jt after the assignment was made. The remedy at law upon the contract against the fraudulent and insolvent purchaser is, under the circumstances, ineffectual. The pursuit of the property, except the small part of which was unsold and passed to the assignee, is impracticable. If it could yet be found unconsumed and capable of identification, the multiplicity of suits which would be rendered necessary to reclaim it would make the remedy expen- sive, burdensome, and inadequate. The identification of the pro- ceeds sought to be reached is complete and unquestioned. It is not claimed that the credits or the money into which they have been converted are not the very proceeds of sugars of which the plaintiff was defrauded. The jurisdiction of a court of equity to follow the proceeds of property taken from the true owner by felony, or misapplied by an agent or trustee, and converted into property of another description, and to permit the true owner to take the property in its altered state as his own, or to hold it as security for the value of the property wrongfully taken or misapplied, or, in case the original property or its proceeds have been mingled with that of the wrongdoers in the purchase of other property, to have a charge declared in favor of the person injured to the extent necessary for his indemnity, so long as the rights of bona fide purchasers do not intervene, has been frequently exerted, and is a jurisdiction founded upon the plainest principles of reason CHAP. III.] AMERICAN SUGAR REFIN'G CO. V. FANCHER. 389 and justice. The case of Newton v. Porter, 69 N. Y. 133, is an illustration of the application of this principle in a case of the larceny of negotiable bonds,, sold by the thieves, in which the court subjected securities in which they invested the money, and which they had transferred with notice to third persons as se- curity for services to be rendered, to a charge in favor of the owner of the stolen bonds. The cases upon this head are very numerous, where there has been a misapplication of trust funds by trustees, or persons standing in a fiduciary relation, and the money or property misapplied has been laid out in land or con- verted into other species of property. The court in such cases lays hold of the substituted property and follows the original fund, through all the changes it has undergone, until the power of identification is lost or the rights of bona fide purchasers stop the pursuit, and holds it in its grasp to indemnify the innocent victim of the fraud. And even in case of money, which is said to have no earmark, its identity will not be deemed lost, though it is mingled with other money of the wrongdoer, if it can be shown that it forms a part of the general mass. Pennell v. Def- fell, 4 De Gex, M. & G. 372 ; In re Halletfs Estate, 13 Ch. Div. 696; Holmes v. Gilman, 138 N. Y. 369, 34 N. E. 205. In cases of stolen property, or of misapplication by a trustee or agent of the funds of the principal or cestui que trust, the title of the real owner of the property has been in most cases lost, withoiit his consent, and the court, by a species of equitable substitution, repairs, as far as practicable, the wrong, and prevents the wrong- doer from profiting by his fraud. And, indeed, courts of law, borrowing the equitable principle, in cases of misappropriation by agents, vest in the principal at his election the legal title to a chattel or security in the hands of the agent, purchased exclusively by the application of the em- bezzled or misappropriated fund. Taylor v. Plumer, 3 Maule & S. 562. It is at this point that the controversy in the present case commences, and the divergence arises which has led to this litigation. It is claimed, on behalf of the defendant, that courts of equity in commercial cases, where the claim of the plaintiff originates in a fraud in the sale of personal property, do not undertake to follow proceeds in the hands of the wrong- doer, but that the defrauded party, having consented to part with his title, is remitted exclusively to such legal remedies as are given for the redress of the wrong. The jurisdiction of courts of equity in cases of trust or agency, or cases of like character, 390 AMERICAN SUGAR REFIN'g CO. V. FANCHER. [CHAP. III. it is insisted, is founded upon the ancient jurisdiction of these courts over trusts and fiduciary relations, and has not been and ought not to be extended beyond these cases. It is very true that trusts and trust relations are peculiarly cognizable in equity, and have been so cognizable from the earliest period of equitable jurisprudence. But it is to be said that these are but branches of the larger jurisdiction over frauds, which equity abhors, and of which it has cognizance admittedly in many cases not con- nected with technical trusts or agency. It cannot be denied that the protection of cestuis que trustent against frauds of the trustee is an object of peculiar solicitude in the courts of equity. They, in many cases, are incapable, by reason of age, inexperience, or other incapacity, from looking out for themselves, and the court stands in the attitude of guardian of their interests. But, as has been said, a court of equity does not restrict its remedial processes to the aid of the helpless or the ignorant. It embraces within its view the general claims included within what are called quasi trusts, and intervene to prevent violations of equitable duty by whomsoever committed or whoever may suffer from the vio- tion. It goes altogether outside of trust relations in many cases to prevent fraud, or to compel a restoration of property obtained by "fraud. The exercise of the jurisdiction to set aside fraudulent transfers of real or personal property made in fraud of creditors is familiar. And the jurisdiction is most beneficially invoked in cases of private fraud to rescind transfers of real estate procured by fraudulent representations, and to restore to the defrauded, vendor the title of which he has been defrauded. It often hap- pens in cases of transfers of real estate procured by fraud that, before the action is brought or the plaintiff is apprised of the fraud, the fraudulent vendee has disposed of the land in whole or in part, or has created liens thereon in favor of the bona fide purchasers for value. In such cases the court will mold the relief to suit the circumstances, and will, at the election of the plaintiff, rescind the contract and compel a reconveyance of the part of the land still remaining in the hands of the vendor, and compel the wrongdoer to account for the proceeds of the land sold, or award compensation in damages. The court in many cases resorts to the fiction of a trust, and, by construction, adjudges that the proceeds in the hands of the wrongdoer are held by him as trustee of the plaintiff. This was the exact nature of the relief granted in the case of Trevelyan v. White, 1 Beav. 589, as appears by the recital of the decree in the opinion of the master' of the rolls, CHAP. III.] AMERICAN SUGAR REFIN'g CO. V. FANCHER. 391 where part of the estate had been sold by the fraudulent vendee. In Cheney v. Gleason, 117 Mass. 55?, a bill was filed by the defrauded vendor of real estate to reach a mortgage taken by the vendee on the land on a resale by him, and the court sustained the bill and granted the relief. In Hammond v. Pennock, 61 N. Y. 145, the court rescinded, at the instance of the plaintiff, a contract for the exchange of real and personal property, owned by the plaintiff, for a farm of the defendant in Michigan, which had been consummated on the plaintiff's part by a conveyance and transfer, the contract and conveyance having been obtained by the defendant by fraudulent representations ; and the defend- ant having, after the conveyance to him, contracted, to sell part of the land conveyetf to him by the plaintiff, the court adapted the relief to the circumstances, and rescinded the conveyance so far as practicable, and adjudged that the defendant account for the proceeds of the personal property included in the sale. If the jurisdiction exercised by courts of equity in respect to undoing fraudulent conveyances of real estate, and following the proceeds in the hands of the fraudulent grantee, appertains in like manner and tiegree to sales of personalty, it would seem that the plaintiff in the present case was entitled to relief. The fact that, before the action was brought, Burkhalter & Co. had made a general assignment for the benefit of creditors to the defendant is no obstacle to the relief, if, except for the assign- ment, the court would have interposed, on the prayer of the plaintiff, its preventive and other remedies, to have enabled the plaintiff to reach the unpaid claims against the subvendees. An assignee for creditors is not a purchaser for value, and stands in no other or better position than his assignor as respects a remedy to reach the proceeds of the sales by Burkhalter & Co. Goodwin v. Wertheimer, 99 N. Y. 149, 1 N. E. 404; Barnard v. Campbell, 58 N. Y. 76; Ratcliffe v. Sangton, 18 Md. 383; Bus- sing V. Rice, 2 Cush. 48. It is, claimed that the general creditors of the firm will be prejudiced if the plaintiff is allowed to prevail, and that he will thereby acquire a preference over the other cred- itors of the insolvent firm. But general creditors have no equity or right to have appropriated to the payment of their debts the property of the plaintiff, or property to which it is equitably entitled as between it and Burkhalter & Co. They, so far as appears, advanced nothing, and gave no credit on the faith of the firm's possessign of the sugars, assuming that that element would have had any bearing on the case. If 392 AMERICAN SUGAR REFIN'g CO. V. FANCHER. [CHAP. III. the sugars had existed in specie in the hands of the assignee, it cannot be doubted that the plaintiff on rescinding the sale would have been entitled to retake them, and the general cred- itors are in no worse position, if the plaintiff is awarded the pro- ceeds, than they would have been if the sugars had remained unsold. Much was said on the argument upon the difference between a trespasser taking and disposing of the property of another and the case of a sale of personal property to a vendee induced by fraud. It is the law of this State; as in England, that title passes on such a sale to the fraudulent vendee, not- withstanding that the crime of false pretences is included in the statute definition of a felony, but which was not such at common law. Barnard v. Campbell, supra; Wise v. Grant, 140 N. Y. 593, .35 N. E. 1078; Benj. Sales (6th ed.), § 433; Fassett v. Smith, 23 N. Y. 252 ; Benedict v. Williams, 48 Hun. 124. But a purchase procured by fraud is in no sense, as between the vendor and vendee, rightful. It was wrongful, and, while a transfer so in- duced vests a right of property in the vendee until the sale is rescinded, the means and act by which it was procured was a violation of an elemental principle of justice. - But the rule is that a sale of personal property induced by fraud is not void, but is only voidable on the part of the party defrauded. "This does not mean that the contract is void until ratified; it means that the contract is valid until rescinded." When a contract of sale infected by fraud of the vendee is consummated, and the property delivered, the vendor on discovering the fraud may pur- sue one of the several courses. He may affirm the contract, and an omission to disaffirm within a reasonable time after notice of the fraud will be deemed a ratification. He may elect to rescind it, and thereby his title to the property is reinstated as against the purchaser and all persons deriving title from him, not being bona fide purchasers for value, and a purchaser is not such who takes the property for an antecedent debt, or who purchased the property on credit, and has not paid the purchase money or been placed in a position where payment to a transferee of the claim cannot be resisted. Barnard v. Campbell, supra; Dows v. Kidder, 84 N. Y. 121 ; Matson v. Melchor, 42 Mich. 477, 4 N. W. 200; 1 Benj. Sales, p. 570, note. Upon rescission the vendor may follow and retake the prop- erty wherever he can find it, except in the case mentioned, or he may sue for conversion. When these legal remedies are available and adequate, clearly there is no ground for going to a court of CHAP. III.] AMERICAN SUGAR REFIN'g CO. V. FANCHER, 393 equity. The legal remedies in such case are and ought to be held exclusive. But in a case like the present, where there is no ade- quate legal remedy, either on the contract of sale or for the re- covery- of the property in specie, or by an action of tort, is the power of a court of equity so fettered that where it is shown that the property has been converted by the vendee, and the proceeds, in the form of notes or credits, are identified beyond question in his hands, or in possession of his voluntary assignee, it cannot impound such proceeds for the benefit of the defraudeid vendor? The only reason urged in denial of this power which to our minds has any force is based on the assumption that it would be contrary to public policy to admit such an equitable principle into commercial transactions. But with the two limi- tations adverted to, and which ought strictly to be observed, (1) that it must appear that the plaintiff has no adequate remedy at law, either in consequence of insolvency, the dispersion of the property, or other cause, and (2) that nothing will be adjudged as proceeds except what can be specifically identified as such, business interests will have adequate protection. Indeed, the dis- turbance would be much less than is now permitted in following the property from hand to hand until a bona fide purchaser is found. The case of Small v. Attwood, Younge, 507, is a very instruc- tive case, which involved a large amount, was argued by emi- nent counsel, and received great consideration. It supports, we think, the equitable jurisdiction invoked in the present case. It was an action by the purchaser to rescind a contract for the sale of mines and mining property induced by fraudulent representa- tions, and to recover the purchase money paid to the amount of about £200,000. The court found the fraud and rescinded the contract, and made a decree for an accounting. On a supple- mental bill being filed, showing that the purchase money paid had been invested by the seller in public securities in his name, which he afterwards caused to be put in the name of his mother, and that the purchaser had no other means adequate to repay the purchase money, the Chancellor, on an application for an in- junction restraining the transfer of the securities, held that the money paid could be followed into the stock purchased, and granted the injunction. The case of Cavin v. Gleason, 105 N. Y. 256, 11 N. E. 504, was an attempt to fasten upon the estate of an insolvent a preferential lien for money put into his hands by the plaintiff for the purchase of a mortgage for her, and 394 CAVIN V. GLEASON. [CHAP. III. which he applied, without authority, to the payment of his debts before the assignment, with the exception of a small sum ($30), which went into the hands of the assignee. The court held that the money, which the insolvent had used to pay debts prior to the assignment, wa,s not a preferred debt, but sustained her right to be paid the small sum which the assignee received belonging to the trust. This case points the distinction. The character of the debt gave it no priority. The fund had been dissipated, and could not be traced among the assigned assets. There was no equitable ground of preference except for the small sum men- tioned. Upon the whole case, we are of opinion that the judgment on the report of the referee was correct, and the order granting a new trial should therefore be reversed, and the judgment on the report of the referee affirmed, with costs. All concur. Judgment accordingly. CAVIN V. GLEASON. (105 N. Y. 256.) [Court of Appeals of New York, 1887.] Andrews, J. It may properly be conceded that the $3,000, received by White from the petitioners on the third day of Janu- ary, 1883, for investment in the Gould mortgage, constituted in his hands a quasi trust fund, which White was bound to use for the specific purpose contemplated, and which he could not divert- to any other use without committing a breach of trust. The securities which formed the greater part of the fund were imme- diately convertible into money, and authority in White to make such conversion was implied, but only as a means of realizing the money with which to make the mortgage loan. The securi- ties, while in the hands of White, remained the property of the petitioners; and, when converted by him, their title attached to the proceeds of the converted property. White collected the securities actually or constructively. He collected the notes against third persons, and drew the money deposited in the Delaware National Bank. The two certificates of deposit issued by him- self, amounting in the aggregate to $780, he accepted as money. It is material to a proper understanding of the question pre- sented, to state a few other facts which appear in the record. CHAP. III.] CAVIN V. GLEASON. 395 White was a private banker. On the fifth of January, 1883, two days after the transaction with the petitioners to which we have alluded, he was taken sick, and on or about the ninth of January a run commenced on the bank, and on the twelfth of January he made a general assignment to the defendant, Gleason, for the benefit of creditors, having at the time on hand in cash assets only the sum of $64.75. The Gould mortgage was never procured by White, and he made no investment for the petitioners of the $3,000 received on the third day of January. On the contrary, it was found by the judge at special term that White, after receiv- ing and collecting the securities, and prior to the eleventh day of January, in violation of his trust, used the entire fund of $3,000 excepting the sum of $30, which came to the hands of the as- signee, in paying his personal debts and liabiHties. But on the eleventh of January, the day prior to the making of the assign- ment, for the purpose of securing the claim of the petitioners, he transferred to them a land contract, from which and other sources the petitioners have realized sufficient to reduce their claim to the sum of $877.27. It was admitted on the hearing of the petition, which took place in January, 1885, that the assignee had then on hand proceeds of the assigned estate sufiicient to pay the said sum of $877.27, but it was conceded by the petition- ers that the assigned estate was insufficient to pay in full the debts of the assignor. The special term granted the prayer of the petitioner, and made an order directing the assignee to pay the claim of the peti- tioners out of the money in his hands, and this order was affirmed by the general term. The order in effect appropriates out of the assigned estate the sum of $877.27 to the payment of the claim of the petitioners, in preference to the claims of the general cred- itors. The petitioners, to maintain the order in question, rely upon the rule in equity that, as between cestui que trust and trustee, and all parties claiming under the trustee otherwise than by pur- chase for valuable consideration, without notice, all property be- longing to a trust, however much it may be changed or altered in its nature or character, and all the fruit of such property, whether in its original or altered state, continues to be subject, to or affected by the trust. Pennell v. Deffell, 4 De Gex, M. & G. 387, Turner, L. X- This settled doctrine of equity has its basis in the right of property. The owner of personal property which, by the wrongful act of his agent or trustee, has been changed 396 CAVIN V. GLEASON. [CHAP. III. and converted into chattels of another description, may elect to treat the property into which the conversion has been made as his own. Upon such election the title to the substituted property is vested in him as fully as if he had originally authorized the wrongful act, which title he may assert in a legal action to the same extent as he could have asserted title in respect to the original property. The reason of the doctrine is stated by Lord Ellenborough in the leading case of Taylor y. Plumer, 3 Maule & S. 562, in language often quoted: "For," he sayg, "the product or substitute for the original thing still follows the nature of the thing itself, so long as it can be ascertained to be such, and the right only ceases when the means of ascertainment fail." The question in that case involved the legal title to certain stock and bullion which an agent of the defendant, intrusted by his princi- pal with money to invest in exchequer bills, had wrongfully mis-, applied to the purchase of the stock and bullion, intending to abscond with it and go to America, and the court sustained the defendants' title. Courts go very far to protect rights of property as against a wrongdoer. They follow it through whatever changes and trans- mutations it may undergo in his hands, and as against him, trans- ferred to the changed .and altered product the original title, how- ever much the original property has been increased in value by his labor or expenditure, provided only that the product is still a chattel, and is composed of the original materials. Silsbury v. McCoon, 3 N. Y. 379. But a court of law, as a general rule, deals only with the legal title ; and when the legal identity of the property is destroyed, or the property cannot be traced specifically into another thing, it is powerless to give relief, except by action for damages against the wrongdoer. The language of Lord El- lenborough, already quoted, that the right to follow property only ceases when the means of ascertainment fail, is illustrated by what follows, "which," he adds, "is the case when the subject is turned into money and mixed and compounded in a general mass of the same We fully concur with the learned counsel for the heirs at law that if this trust could not be executed according to the inten- tion of the testator without tending to excite servile insurrections in other states of the Union, it would have 'been unlawful; and that a trust which looked solely to political agitation and to attempts to alter existiiig laws could not be recognized by this court as charitable. But such does not appear to us to be the necessary or the reasonable interpretation of this bequest. The manner stated of putting an end to slavery is not by legislation or political action, but by creating a public sentiment, which rather points to moral influence and voluntary manumission. The means specified are the usual means of public instruction, by books and newspapers, speeches and lectures. Other means are left to the discretion of the trustees, but there is nothing to indi- cate that they are not designed to be of a kindred nature. Giv- ing to the bequest that favorable construction to which all char- itable gifts are entitled, the just inference is that lawful means only are to be selected, and that they are to be used in a lawful manner. It was further objected that "to create a public sentiment" was too vague and indefinite an object to be sustained as a charitable use. But "a public sentiment" on a moral question is but another name for public opinion, or a harmony of thought — idem sentire. The only case cited for the heirs at law in support of this objection was Browne v. Yeall, 7 Ves. 50, note, in which Lord Thurlow held void a perpetual trust for the purpose and distribution in Great Britain and its dominions of such books as might have a tendency to promote the interests of virtue and religion and the happiness of mankind. But the correctness of that decision was doubted by Sir William Grant and Lord Eldon in Morice v. Bishop of Durham, 9 Ves. 406, 10 Ves. 534, 539 ; and it is incon- sistent with the more recent authorities, here and in England. The bequest now before us is quite as definite as one "for the increase and improvement of Christian knowledge and promoting religion," and the purchase from time to time of such bibles and other religious books, pamphlets and tracts as the trustees should think fit for that purpose, which was upheld by Lord Eldon in Attorney General v. Stepney, 10 Ves. 22; or "to the cause of Christ, for the benefit and promotion of true evangelical piety and religion," through the agency of trustees, to be by them 468 JACKSON V. PHILLIPS. [CHAP. III. "appropriated to the cause of religion as above stated, ta be" dis- tributed 'in such divisioris and to such societies and religious charitable purposes as they may think fit and proper," which was sustained by this court in Going v. Emery, 16 Pick. 107; or, "for the promotion of such religious and charitable enter- prises as shall be designated by a majority of the -pastors com- posing the Middlesex Union Association," as in Brown v. Kelsey,- 2 Cush. 243; or to be distributed, at the discretion of trustees, "in aid of objects and purposes of benevolence or charity, public or private/' as in Saltonstall v. Sanders, 11 Allen, 446; or "for the cause of peace," to be expended by an unincorporated society, whose object, as defined in its constitution, was "to illustrate the inconsistency of war with Christianity, to show -its baleful influence on all the great interests of mankind, and to devise means for insuring universal and permanent peace," as in Tap- pan V. Deblois, 45 Me. 122 ; or to found "an establishment for ^ the increase and diffusion of knowledge among men;" or "for the benefit and advancement and propagation of education and learning in every part of the world, as far as circumstances will permit;" as in Whicker v. Hume, 7 H. L. Cas. 124, 155, and President of U. S. v. Drummond, there cited. See, also, McDon- ough v. Murdoch, 15 How. 405, 414. The bequest itself manifests its immediate purpose to be to ediicate the whole people upon the sin of a man's holding his fellowman in bondage; and its ultimate object, to put an end to negro slavery in the United States; in either aspect, a lawful charity. It is universally admitted that trusts for the promotion of religion and education are charities. Gifts for the instruction of the public in the cure of the diseases of quadrupeds or birds useful to man, or for the prevention of. cruelty to animals (either by publishing newspapers on the subject, or by providing estab- lishments wher« killing them for the market might be attended with as little suffering as possible), have been held charitable in England. London University v. Yarrow, 23 Beav. 159, 1 De Gex & J. 72; Marsh v. Means, 3 Jur. (N. S.) 790; Tatham v. Drum- mond, 11 L. T. (N. S.) 325. To deliver men from a bondage which the law regards as contrary to natural right, humanity, jus- tice and sound policy, is surely not less charitable than to lessen the sufferings of animals. The constitution of Massachusetts, which declares that all men are born free and equal, and have the natural, essential and inalienable rights of enjoying and de- CHAP. III.] JACKSON V. PHILLIPS. 469 fending their lives and liberties, of acquiring, possessing and protecting property, of seeking and obtaining their safety and happiness ; also declares that a frequent recurrence to the funda- mental principles of the constitution, and a constant adherence to those of piety and justice, are absolutely necessary to preserve the advantages of liberty and to maintain a free government; that "the encouragement of arts and sciences, and all good liter- ature, tends to the honor of God, the advantage of the Christian religion, and the great benefit of this and the other United States of America;" and that "wisdom and knowledge, as well as vir- tue, diffused generally among the body of the people, being neces- sary for the preservation of their rights and liberties, and as these depend on spreading the opportunities and advantages of education in the various parts of the country, and among the dif- ferent orders of the people, it shall be the duty of legislatures and magistrates, in all future periods of this commonwealth," be- sides cherishing the interests of literature and the sciences, "to countenance and inculcate the principles of humanity and general benevolence, public and private charity," "and all social affec- tions and generous sentiments among the people." Declaration of Rights, arts. 1, 18; Const. Mass. c. 5. This bequest directly tends to carry out the principles thus declared in the fundamental law of the commonwealth. And certainly no kind of education could better accord with the religion of Him who came to preach deliverance to the captives, and taught that you should love your neighbor as yourself and do unto others as you would that they should do unto you. The authorities already cited show that the peaceable redemp- tion or manumission of slaves in any manner not prohibited by law is a charitable object. It falls indeed within the spirit, and almost within the letter, of many clauses in the statute of Eliza- beth. It would be an anomaly in a system of law, which recog- nized as charitable uses the relief of the poor, the education and preferment of orphans, marriages of poor maids, the assistance of young tradesmen, handicraftsmen and persons decayed, the relief of prisoners and the redemption of captives, to exclude the deliverance of an indefinite number of human beings from a con- dition in which they were so poor as not even to own themselves, in which their children could not be educated, in which mar- riages had no sanction of law or security of duration, in which all their earnings belonged to another, and they were subject, against the law of nature, and without any crime of their own. 470 JACKSON V. PHILLIPS. [CHAP. III. to such an arbitrary dominion as the modern usages of nations will not countenance over captives taken from the most barbarous enemy. III. The next question arises upon the bequest in trust for the benefit of fugitive slaves who might from time to time escape from the slaveholding states of the Union. The validity of this bequest must be determined according to the law as it stood at the time when the testator died and from which his will took effect. It is no part of the duty of this court to maintain the constitutionality, the justice, or the policy of the fugitive slave acts, now happily repealed. But the constitu- tion of the United States, at the' time of the testator's (death, declared that no person held to service or labor in one state should be discharged therefrom by escaping into another. It may safely be assumed that, under such a constitution, a bequest to assist fugitive slaves to escape from those to whom their service was thus recognized to be due could not have been upheld and enforced as a lawful charity. The epithets with which the testator accoinpanied this bequest show that he set his own ideas of morc^l duty above his allegiance to his State or his country; and warrant the conjecture that he would have been well pleased to have the fund applied in a mariner inconsistent with the con-" stitutioij and laws of the United States. But he has used no worcfs to limit its use to illegal methods, and has left his trustees untrammeled as to the mode of its application. Whether this bequest is or is not valid, is to be ascertained from a fair construction of its language, in the light of the max- ims of interpretation stated in the earlier part of this opinion, by which the court is bound to carry into effect any charitable bequest in which can be seen a general intention consistent with the law, even if the particular mode pointed out is illegal; and there is no authority to construe it to be void if it can be applied in a lawful njanner consistently with the intention of the testator as manifested in the words by which it is expressed. One illus- tration of these maxims may be added in this connection. In Isaac v. Gompertz, Amb. (2d ed.) 228, note, the will con- tained one bequest for the support and maintenance of a Jews' synagogue; and another bequest of an annuity "to the gabas of' the said synagogue," who were found, upon inquiry by a master, to be treasurers of the synagogue, whose office it was to collect and receive the annual subscriptions for the support of poor Jews belonging to the synagogue, and to apply the same to the expen- CHAP. III.] JACKSON V. PHILLIPS. 471 ses of supporting the synagogue and to the maintenance of such poor Jews. This last bequest was upheld, and referred to a master to report a scheme, although the support of the synagogue was adjudged to be an unlawful use; and thus a bequest manifestly intended for the benefit of persons professing a religion not tol- erated by law, and which might, according to its terms, be ap- plied either in an unlawful or a lawful manner, was sustained as charitable, and its application confined to the lawful mode. A bequest for the benefit of fugitive slaves is not necessarily unlawful. The words "relief or redemption of prisoners and captives" have always been held in England to include those in prison under condemnation for crime^ as well as persons con- fined for debt; and* to support gifts for distributing bread and meat among them annually, or for enabling poor imprisoned debtors to compound with their creditors'. Duke, 131, 156 ; Attor- ney General v. Ironmongers' Co., C. P. Coop. Prac. Cas. 285, 290 ; Attorney General v. Paint erstainers' Co., 2 Cox, Ch. 51 ; Attorney General v. Drapers' Co., Tudor, 591, 592, S. C, 4 Beav. 67; 36th Report of Charity Commissioners to Parliament, pt. 6. 856- 868. It would be hardly consistent with charity or justice to favor the. relief of those undergoing punishment for crimes of their own committing, or imprisonment for not paying debts of their own contracting ; and yet prohibit a like relief to those who' were in equal need, because they had withdrawn themselves from a service imposed upon them by local laws without their fault or consent. It was indeed h6ld in Thrupp v. Collett, 26 Beav. 125, that a bequest to be applied to purchasing and procuring the discharge of persons committed to prison for non-payment of fines under the game laws was not a lawful charity. But such persons were convicted offenders against the law of England, who would by such discharge be wholly released from punishment. A fugitive slave was not a criminal by the laws of this commonwealth or of the United States. To supply sick or destitute fugitive slaves with food and cloth- ing, medicine or shelter, or to extinguish by purchase the claims of those asserting a right to their service and labor, would in no wise have tended to impair the claim of the latter or the operation of the constitution and laws of the United States ; and would clearly have been within the terms of this bequest. If, for exam- ple, the trustees named in the will had received this fund from the executors without question, and had seen fit to apply it for 472 JACKSON V. PHILLIPS. [CHAP. III. the benefit of fugitive slaves in such a manner, they could not have been held liable as for a breach of trust. This bequest, therefore, as well as the previous one, being capable of being applied according to its terms in a lawful man- ner at the time of the* testator's death, must, upon the settled principles of construction, be held a valid charity. It is hardly necessary to remark that the direction of the tes- tator that his trustees shall not be accountable to anyone is sim- ply void. No testator can obtain for his bequest that support arid permanence which the law gives to public charities only, and at the same time deprive the beneficiaries and the public of the safeguards which the law provides for their due and law- ful administration. As the trustees named in the will are not a corporation estab- lished by law, and these two bequests are unlimited in duration, and by their terms might cover an illegal as well as a legal appropriation, it is the duty of the court, before ordering the funds to be paid to the trustees, to refer the case to a master to settle a scheme for their application in a lawful manner. Isaac v. Gompertz, Amb. 228, note; Attprney General v. Stepney, 10 Ves,. 22; Boyle, Char. 100, 217. IV. It is quite clear that the bequest in trust to be expended "to secure the passage of laws granting women, whether married or unmarried, the right to vote, to hold office, to hold, manage, and devise property, and all other civil rights enjoyed by men," cannot be sustained as a charity. No precedent has been cited in its support. This bequest dif- fers from the others in aiming directly and exclusively to change, the laws; and its object cannot be accomplished without chang- ing the constitution also. Whether such an alteration of the ex- isting laws and frame of government would be wise and desir- able is a question upon which we cannot, sitting in a judicial capacity, properly express any opinion. Our duty is limited to expounding the laws as they stand. And those laws do not recog- nize the purpose of overthrowing or changing them, in whole or in part, as a charitable use. This bequest, therefore, not being for a charitable purpose, nor for the benefit of any particular persons, and being unrestricted in point of time, is inoperative and void. For the same reason, the gift to the same object, of one-third of the residue of the testator's estate after the death of his CHAP. III.] JACKSON V. PHILLIPS. 473 daughter Mrs. Eddy and her daughter Mrs. Bacon, is also invalid, and will go to his heirs at law as a resulting trust. It is proper to add that the conclusion of the court upon this point, as well as upon the gift to create a public sentiment which would put an end to negro slavery in the United States, had the concurrence of the late Mr. Justice Dewey, whose judicial expe- rience and large acquaintance with the law of charitable uses give great weight to his opinion, and whose lamented death, while this case has been under advisement, has deprived us of his assistance in determining the other questions in controversy. V. The validity of the other residuary bequests and devises depends upon the law of perpetuities as applied to private trusts. The principles of this branch of the law have been so fully con- sidered by the court in recent cases as to require no extended statement. The general rule is, that if any estate, legal or equitable, is given by deed or will to any person in the first instance, and then over to another person, or even to a public charity, upon the happening of a contingency which may by possibility not take place within a life or lives in being (treating a child in its mother*s womb as in being) and twenty-one years after- wards, the gift over is void, as tending to create a perpetuity by making the estate inalienable; for the title of those taking the previous interests would not be perfect, and until the hap- pening of the contingency it could not be ascertained who were entitled. Brattle Square Church v. Grant, 3 Gray, 142; Odell v. Odell, 10 Allen, 5, 7. If therefore the gift over is limited upon a single event which may or may not happen within the pre- scribed period, it is void, and cannot be made good by the actual happening of the event within that period. But if the testator distinctly makes his gift over to depend upon what is sometimes called an alternative contingency, or upon either or two contingencies, one of which may be too remote and the other cannot be, its validity depends upon the event ; or, in other words, if he gives the estate over on one contingency which must happen, if at all, within the limit of the rule, and that contingency does happen, the validity of the distinct gift over in that event will not be affected by the consideration that upon a different contingency, which might or might nof happen within the lawful limit, he makes a disposition of his estate, which would 474 JACKSON V. PHILLIPS. [CHAP. III. be void for remoteness. The authorities upon this point are con- clusive. Longhead v. Phelps, 2 W. Bl. 704 ; Sugden and Preston, arguendo, in Beard v. Westcott, 5 Barn. & Aid. 809, 813, 814; Minter v. Wraith, 13 Sim. 52 ; Evers v. Challis, 7 H. L. Cas. 531; Armstrong v. Armstrong, 14 B. Mon. 333; 1 Jarm. Wills, 244 ; Lewis, Perp. c. 21 ; 2 Spence, Eq. Jur. 125, 126. " By the ninth and tenth articles of the will, the income of one- third of the residue of the testator's .estate, real and personal, is to be paid to his son James and to his daughter Mrs. Palmer, respectively, during life. Each of these articles contains a dis- tinct direction that, in case such son or daughter shall die leaving no child surviving, the principal of his or her share shall be paid and conveyed to the board of trustees named in the fourth arti- cle, to be expended for the intent and purpose therein directed. As the first tenant for life in each bequest is living at the death of the testator, the event of such tenant's dying, leaving no child then living, must happen within the period of a life in being, if at all; and, if it does happen, the gift over to the charity will be valid. Neither James Jackson nor Mrs. Palme'r therefore is entitled to a present equitable estate in fee. But as James, though now unmarried, may marry and have children who survive him, and as Mrs. Palmer's children may survive her, in either of which cases half of the income of the share would by the will go to such children during their lives, and the bequest over to the charity too remote, the validity and effect of that bequest over cannot be now determined. If the contingency upon which it is valid should hereafter occur, namely, the death of the tes- tator's son or daughter, respectively, leaving no children surviv- ing, the whole remainder of the share will then go to the charity established by the fourth article, and be paid, i after the settle- ment of a scheme for its lawful application, to the trustees therein named. VI. By the thirteenth amendment of the constitution of the United States, adopted since the earlier arguments of this case, it is declared that "neither slavery nor involuntary servitude, ex- cept as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States or any place subject to their jurisdiction." The effect of this amend- ment upon the charitable bequests of Francis Jackson is the re- maining question to be determined; and this requires a consid- eration of the nature and proper limits of the doctrine of cy pres. It is contended for the heirs at law, that the power of the CHAP. III.] JACKSON V. PHILLIPS. 475 English Chancellor, when a charitable trust cannot be adminis- tered according to its terms, to execute it so as to carry out the donor's intention as nearly as possible^ — cy pres — 'is ^lerived from the royal prerogative or St. 43 Eliz. and is not' an exercise of judicial authority; that, whether this power is prerogative or judicial, it cannot, or, if it can, should not, be exercised by this court; and that the doctrine of cy pres, even as adminis- tered in the English chancery, would not sustain thpse charitable bequests since slavery has been abolished. Much confusion of ideas has arisen from the use of the term "cy pres" in the books to describe two distinct powers exercised by the English Chancellor in charity cases, the one under the sign manual of the^ crown, the other under the general jurisdic- tion in equity; as well as to designate the rule of construction which has sometimes been applied to executory devises or pow- ers of appointment to individuals, in order to avoid the objec- tion of remoteness. It was of this last, and not of any doctrine peculiar to charities, that Lord Kenyon said, "The doctrine of cy pres goes to the utmost verge of the law, and we must take care that it does not run wild;" and Lord Eldon, "It is not proper to go one step, farther." Brudenell v. Elwes, 1 East, 451, 7 Ves. 390; 1 Jarm. Wills, 261-263; Sugd. Powers, c. 9, § 9; Coster v. Lorillardi 14 Wend. 309, 348. The principal, if not the only, cases in which the disposition of a charity is held to be in the crown by sign manual, are of two classes ; the first, of bequests to particular uses charitable in their nature, but illegal, as for a form of religion not tolerated by law; and the second, of gifts of property to charity generally, without any trust interposed, and in which either no appoint- ment is provided for, or the power of appointment is delegated to persons who die without exercising it. It is by the sign manual and in cases of the 'first class, that the arbitrary dispositions have been made, which were so justly condemned by Lord Thurlow in Moggridge v. Thackwell, 1 Ves. Jr. 469, and Sir William Grant in Gary v. Abbot, 7 Ves. 494, 495 ; and which, through want of due discrimination, have brought so much discredit upon the whole doctrine of cy pres. Such was the case of Attorney General v. Baxter, in which a bequest to Mr. Baxter to be distributed by him among sixty pious ejected ministers (not, as the testator declared, for the sake of their non- conformity, but because he knew many of them to be pious and good men and in great want) was held to be void, and given 476 JACKSON V. PHILIPS. [CHAP. III. under the sign manual to Chelsea College; but the decree was afterwards reversed, upon the ground that this was really a legacy to sixty individuals to be named. 1 Vern.. 248 ; 2 Vern. 105 ; 1 Eq. Cas. Abr. 96 ; 7 Ves. 76. Such also was the case of Da Costa v. De Pas, in which a gift for establishing a jesuba or assembly for reading the Jewish law was applied to the sup- port of a Christian chapel at a foundling hospital. Amb. 228; 2 Swanst. 489, note; 1 Dickens, 258; 7 Ves. 76, 81. This power of disposal by the sign manual of the crown in direct opposition to the declared intention of the testator, whether it is to be deemed to have belonged to the king as head of the •church as well as of the state, "intrusted and empowered to see that nothing be done to the disherision of the crown or the propagation of a false religion" (Rex y. Portington, 1 Salk. 162, 1 Eq. Cas. Abr. 96) ; or to have been derived from the power exercised by the Roman emperor, who was sovereign legislator as well as supreme interpreter of the laws (Dig. 33, 2, 17; 50, 8, 4; Code, lib. 1, tit. 2," c. 19; Id., tit. 14, c. 12) ; it is clearly a prerogative and not a judicial power, and could not be exer- cised by this court ; and it is difficult to see how it coiild be held to exist at all in a republic, in which charitable bequests have never been forfeited to the use or submitted to the disposition of the government, because superstitious or illegal. 4 Dane, Abr. 239; Gass v. WUhite, 2 Dana, 176; Methodist Church v. Rem- ington, 1 Watts, 226. The second class of bequests which are disposed of by the king's sign manual is of gifts to charity generally, with no uses specified, no trust interposed, and either no provision made for an appointment, or the power of appointment delegated to particu- lar persons who die without exercising it. Boyle, Char. 238, 239; Attorney General v. Syderfen, 1 Vern. 224, 1 Eq. Cas. Abr. 96; Attorney General v. Fletcher, 5 Law J. Ch. (N. S.) 75. This, too, is not a judicial power of expounding and carrying out the testator's intention, but a prerogative power of ordain- ing what the testator has failed to express. No instance is re- ported, or has been discovered in the thorough investigations of the subject, of an exercise of this power in England before the reign of Charles II. Mog'gridge v. Thackwell, 7 Ves. 69-81 ; Dwight's Argument in the Rose Will Case, 272. It has never, so far as we know, been introduced into the practice of any court in this country ; and, if it exists anywhere here, it is in the legislature of the commonwealth as succeeding to the pow- CHAP. III.] JACKSON V. PHILLIPS. 477 ers of the king as parens patriae. 4 Kent, Comm. 508, note; Fontain v. Ravenel, 17 How. 369, 384 ; Moore v. Moore, 4 Dana, 365, 366 ; Whitman v. Lex, 17 Serg. & R. 93 ; Attorney General V. Jolly, 1 Rich. Eq. 108 ; Dickson v. Montgomery, 1 Swan, 348 ; Lepage v. Macnamara, 5 Iowa, 146; Bartlet v. King, 12 Mass. 545 ; Sohier v. Massachusetts General Hospital, 3 Cush. 496, 497. It certainly cannot be exercised by the judiciary of a State whose constitution declares that "the judicial department shall never exercise the legislative and executive powers, or either of them ; to the end it may be a government of laws and not of men." •Declaration of Rights, art. 30. The jurisdiction of the court of chancery to superintend the administration an3 decree the performance of gifts to trustees for charitable uses of a kind stated in the gift stands upon dif- ferent grounds ; and is part of its equity jurisdiction over trusts, which is shown by abundant evidence to have existed before the passage of the statute of charitable uses. Sir Francis Mopre records a case in which a man sold land to another upon confi- dence to perform a charitable use, which the grantor declared by his last will that the grantee should perform; "the bargain was never enrolled, and yet the Lord Chancellor decreed that the heir should sell the land to be disposed according to the limi- tation of the use; and this decree was made the 24th of Queen Elizabeth, before the statute of charitable uses, and this decree was made upon ordinary and judicial equity in chancery." Sy- mon's Case, Duke, Char. Uses, 163. About the same time the court of chancery entertained ' a suit between two parties, each claiming to be trustee, to determine how bequests for the weekly relief of the poor of certain towns, for the yearly preferment of poor children to be apprentices, and for the curing of divers diseased people lying by the highway's side, should be "employed and bestowed according to the said will." • Reade v. Silles (27 Eliz.) Act. .Can. 559. A decree in 16 Eliz., confirming a report of the master of the rolls and others to whom a suit for enforc- ing a charitable trust founded by will had been referred, is cited in 1 Spence, Eq. Jur. 588, note. For years before St. 43 Eliz., or the similar act of 39 Eliz., suits in equity by some in behalf . of all of the inhabitants of a parish were maintained to establish and enforce bequests for schools, alms or other charitable pur- poses for the benefit of the parish, which would have. been too indefinite to be enforced as private trusts. Parker v. Browne (12 Eliz.) 1 Cal. Pro. Ch. 81, 1 Mylne & K. 389, 390; Dwight, Char. 478 JACKSON V. PHILLIPS. [CHAP. III. Cas. 33, 34; in which the devise was* in trust to a corporation incapable at law of taking. Parrot v. Pawlet (21 Eliz.) Cary, 47; Elmer v. Scot (24 Eliz.) Cho. Cas. Ch. 155; Matthew v. Marow (32-34 Eliz.) ; and Hensman v. Hackney (38 Eliz.) Dwight, Char. Cas. 65, 67 ; in which the decrees approved schemes settled by masters in chancery. Many other examples are col- lected in the able and learned arguments, as separately printed in full, of Mr. Binney in the Case of Girard's Will, and of Mr. Dwight in the Rose Will Case. And the existence of such a jurisdiction anterior to and independent of the statute is now generally admitted. Vidal v. Girard, 2 How. 194-196, and case^ ,cited ; Perm v. Carey, 24 How. 501 ; Magill v. Brown, Brightly, N. P. 346; 2 Kent, Comm. 286-288, and note; Burbank v. Whit- ney, 24 Pick. 152, 153; Preachers' Aid Soc. v. Rich, 45 Me. 559; Derby v, Derby, 4 R. I. 436 ; Urmey v. Wooden, 1 Ohio St. 160 ; ■ Chambers v. St. Lo.uis, 29 Mo. 543 ; 1 Spence, Eq. Jur. 588 ; Tudor, Char. ,Trusts, 102, 103. The theory that St. 43 Eliz. enlarged the discretion of the Chancellor to depart from the expressed intention of the founder of a charity is refuted by the words of the statute itself. After reciting that many gifts and appointments for the charitable purposes therein named "have not been employed according to the charitable intent of the givers and founders thereof, by reason of frauds, breaches of trust, and negligence in those that should pay, deliver and employ the same;" it then, for redress and remedy thereof, authorizes the Lord Chancellor or Lord Keeper to make such decrees that the property "may be duly and faith- fully employed to and for such of the charitable uses and intents before rehearsed respectively for which they were given, lim- ited, assigned or appointed by the donors and founders thereof;" which decrees, "not being contrary or repugnant to the orders, statutes or decrees 6f the donors or founders," shall "stand firm and good, according to the tenor and purpose thereof, and shall ,be executed accordingly," until altered by the Lord Chancellor or Lord Keeper upon complaint by any party aggrieved; and upon such complaint the Chancellor or Keeper may "by such course as to their wisdoms shall seem meetest, the circumstances of the case considered, proceed to the examination, hearing and determining thereof; and upon hearing thereof shall and may annul, diminish, alter or enlarge" the decrees of the commis- sioners as "shall be thought to stand with equity and good con- science, according to the true intent and meaning of the donors CHAP. III.] JACKSON V. PHILLIPS. 479 and founders thereof." These last qualifications are specially marked by Lord Coke, who was attorney general at the passage of the statute and for some time before and after, and who adds, by way of note to the final clause: "This is the lapis ductitius, whereby the commissioners and chancellors must institute their course." 2 Inst. 712. See, also, Duke, Char. Uses, 11, 156, 169, 372, 619. ' In cases of bequests to trustees for charitable uses, the nature of which is described in the will, the Chancellor acts in his equity jurisdiction over trusts; and the prerogative of the king finds its appropriate exercise through his attorney general in bringing the case before the, court of chancery for a judicial determina- tion. This has been well explained by Lord Eldon. "It is the duty of a court of equity, a main part, originally almost the whole, of its jurisdiction, to administer trusts; to protect not the visible owner, who alone can proceed at law, but the indi- vidual equitably, though not legally, entitled. From this prin- ciple has arisen the practice of administering the trust of a pub- lic charity ; persons possessed of funds appropriated to such pur- poses are within the general rule; but, no one being entitled to an immediate and peculiar interest to prefer a complaint, who is to compel the performance of these obligations, and to enforce their responsibility? It is the duty of the king, as parens patriae, to protect property devoted to charitable uses; and that duty is executed by the oiEcer who represents the crown for all forensic purposes. On this foundation rests the right of the attorney gen- eral in such cases to obtain by inforrnation the interposition of a court of equity." Attorney General v. Brown, 1 Swanst. 291, 1 Wils. 354. To the like- effect are the opinions of Lord Redes- dale in Attorney General v. Mayor, etc., of Dublin, 1 Bligh (N. S.) 347, 348, and Corporation of Ludlow v. Greenhouse, Id. 48, 62; of Lord Keeper Bridgman in Attorney General v. Newman, 1 Ch. Cas. 158; of Sir Joseph Jekyll in £31^^ v. Shaftsbury, 2 P. Wms. 119; and of Lord Hardwicke in Attorney General v. Middleton, 2 Ves. Sr. 328 ; which also state that the jurisdiction of the court of chancery over charities was exercised on such informations before St. 43 Eliz. See, also, Attorney General v. Carroll, Act. Can. 729; Dwight's Argument in the Rose Will Case, 259-268. This duty of maintaining the rights of the public, and of a number of persons too indefinite to vindicate their own, has vested in the commonwealth, and is exercised here, as in England, through the attorney general. Going v. Emery, 16 480 JACKSON V. PHILLIPS. [CHAP. III. Pick. 119; County Attorney v. May, 5 Cush, 338-340; Gen. St. c. 14, § 20. It is upon this ground that, in a suit instituted by the trustees-of a charity to obtain the instructions of the court, the attorney general should be made a party defendant, as he has been by order of the court in this case. Harvard College v. Society for Promoting Theological Education, 3 Gray, 280; Tudor, Char. Trusts, 161, 162. The power of the king or com- monwealth, thus -exercised, is simply to present the question to a court of justice, not, to control or direct its judicial action. A charity, being a trust in the support and execution of which the whole public is concerned, and which is therefore allowed by the law to be perpetual, deserves and often requires the exercise of a larger discretion by the court of chancery than a mere private trust ; for without a large discretionary power, in carry- ing out the general intent of the donor, to vary the details of administration, and even the mode of application, many charities would fail by change of circumstances and the happening of contingencies which no human foresight could provide against; and the probabilities of such failure would increase with the lapse of time and the remoteness of the heirs from the original donor who had in a clear and lawful manner manifested his will to divert his estate from his heirs for the benefit of public charities. It is accordingly well settled by decisions of the highest authority, that when a gift is made to trustees for a charitable purpose, the general nature of which is pointed out, and which is lawful and valid at the time of the death of the testator, and no intention is expressed to limit it to a particular institu- tion or mode of application, and afterwards, either by change of circumstances the scheme of the testator becomes impractic- able, or by change of law becomes illegal, the fund, having once vested in the charity, does not go to the heirs at law as a resulting trust, but is to be applied by the court of chancery, in the exercise of its jurisdiction in equity, as near the testa- tor's particular directions as possible, to cariry out, his general charitable intent. In all cases of charities which have been administered in the English courts of chancery without the aid of the sign manual, the prerogative of the king acting through the chancellor has not been alluded to, except for the purpose of distinguishing it from the power exercised by the court in its inherent equitable jurisdiction with the assistance of its masters in chancery. CHAP. III.] JACKSON V. PHILLIPS. 481 At the time of the settlement of the Massachusetts Colony, this power was most freely exercised by the court of chancery, either on information by the attorney general, or on proceedings by commission under the statute of charitable uses. Attorney General v. Warwick (1615, 1638) Dwight, Char. Cas. 140, 141, West, Ch. 60, 62; BloomReld v. Stowemarket (1619) Duke, Char. Uses, 644. In the last case, lands had been given before the Reformation to be sold, aiid the proceeds applied, one-half to the making of a highway from the town in which the lands were, one-fourth to the repair of a church in that town, and the other fourth to the priest of the church to say prayers for the souls of the donor and others; and Lord Bacon decreed the establishment of the uses for making the highway and repairing the church, and directed the remaining fourth (which could not, by reason of the change in religion, be applied as directed by the donor) to be divided between the poor of the same town, and the poor of the town where the donor inhabited. In the Case of Baliol College, this doctrine was enforced by successive decrees of the greatest English chancellors between the English Revolution and our own, which have been recently confirmed by the, unanimous decision of the House of Lords. Attorney General v. Guise, 2 Vern. 166; Attorney General v. Baliol College, 9 Mod. 407 ; Attorney General v. Glasgow College, 2 Colly. 665, 1 H. L. Cas. 800. The case is of such importance and reported at different stages in so many books and at such length, that it may be well to state it. John Snell, an Episco- palian, who made his last will and died in 1679, while the form of religion established by law in Scotland as well as in England was Episcopal, gave lands in trust to apply the income for the maintenance and education at the University of Oxford of Scotchmen to be designated by the vice chancellor of that univer- sity, and the heads of certain colleges therein, and who should, upon their admission, give security to enter into holy orders and to be sent into Scotland and there remain. After the Revolution of 1688, Presbyterianism was re-established in Scot- land by act of Parliament ; and in 1690 an information was filed by the attorney general, at the relation of the vice chancellor and heads of colleges named in the will, against the testator's heiress at law, suggesting a pretence by her that as Episcopacy and Prelacy had been abolished in Scotland, and the Presby- terian form of worship established instead, the testator's inten- tions could not be carried into effect, the devise became void, 31 482 JACKSON V. PHILLIPS. [CHAP. III. and the property reverted to her. But the lords commissioners of the great seal, by a decree passed in 1692, established the devise against her, ordered an account, and reserved all direc- tions for the establishment of the charity. 2 Vern. 267, note; 2 Colly. 665-670, 1 H. L. Cas. 802-804, 820, 822. In 1693 the cause came on for further directions before Lord Keeper Somers, who, acting upon the doctrine that it was within the province of a court of equity to administer the trust upon the principle of cy pres, ordered the estate to be conveyed to the six senior fellows of Baliol College, one of the colleges named in the will, to maintain a certain number of Scotch scholars at that college, and, in consideration of the privileges enjoyed by such scholars, to apply the surplus income to its library; and this decree was made subject to such alteration and disposition as the court should from time to time make, upon the application of any person concerned, for the better and more efifectual execution of the trust, as near as could be to the testator's will and inten- tions. 2 Vern. 267, note; 2 Colly. 670, 671, 1 H. L. Cas. 804, 805, 824. In 1744, Lord Hardwicke, in the execution of the directions in the decree of Lord Somers, referred the cause to a master to approve of a scheme "for the better establishment and regulation of the charity, and carrjring the same into effect for the future as near to the will and intention of the testator as the alteration of circumstances since the making of the will would admit"; and upon his report, and against the exceptions of the heads of colleges in Oxford, confirmed a scheme which did not impose any condition of the scholars taking holy orders — thus carrying out the general intention of the trust so far as to educate Scotch scholars at Oxford, although the testator's ultimate object that they should be educated in the Episcopal form of church government to take part in the established religion in Scotland could not, by reason of the change of law since his death, be effected. 9 Mod. 407 ; 1 H. L. Cas. 805, 806, 825-827. In 1759, Lord Keeper Henley (afterward Lord North- ington) varied the scheme in other particulars, hut declined to vary it in this; and further orders were afterwards- made in chancery as the revenues increased. 2 Colly. 672-674, 1 H. L. Cas. 806, 807, 825, 826; 3 Ves. 650, note. Upon a new informa- tion filed at the relation of some Scotch Episcopalians, the .House of Lords in 1848, reversing an order of Vice Chancellor Knight Bruce, held that the charity must continue to be admin- istered according to the earlier decrees. 1 H. L. Cas. 800. CHAP. III.] JACKSON Z/". PHILLIPS. 483 In another case, Queen Elizabeth, by letters patent, estab- lished a hospital for forty lepers, and made the inmates a corpora- tion. After leprosy had become almost extinct in England, and the members of the corporation reduced to three, an information was filed, alleging that the corporation was dissolved, and pray- ing for a new application of the revenues agreeably to the letters patent and the donor's intention, or as near thereto as circumstances would permit and the court should direct. Lord Eldon held that neither the donor's heirs at law nor the crown took the land discharged of the charity; referred the case to a master to report a scheme; and confirmed the report of the master, approving a scheme for the application of the revenues to a general infirmary, reserving a preference to all lepers who might offer themselves. 'Attorney General V. Hicks, Highm. Mortm. 336-354, 3 Brown, Ch. 166, note. Sir John Romilly, M. R., afterwards made a like decision, holding that a gift made in 1687 of land (for which in 1774 other land had been substituted by leave of Parliament) in trust out of the income to keep it ready for a hospital and burial place for patients sick of the plague, was a present gift for charitable purposes, and valid, although the plague had not reappeared in England for more than one hundred and eighty years; and, after alluding to a class of cases, cited for the heirs at law in that case, as they have been in this, in which the charitable bequest could never have taken effect, added, "But who can say, when this deed was executed or the act passed, that this was not a charitable trust, capable of being performed"; "and if it were ever wholly devoted to charity, those cases do not apply." Attorney General v. Craven, 21 Beav. 392, 408. The principle that a bequest to trustees for charitable purposes indicated in the will, which are lawful and capable of being carried out at the time of the testator's death, will not be allowed to fail and result to the heirs at law upon a change of circum- stances, but will be applied by the court according to a scheme approved by a master to carry out the intent of the testator as nearly as possible, has been affirmed and acted on in many other English cases. Attorney General v. Pyle, 1 Atk. 435 ; Attorney General v. Green, 2 Brown, Ch. 492; Attorney General V. Bishop of London, 3 Brown, Ch. 171 ; Moggridge v. Thack- well. Id. 517, 1 Ves. Jr. 464; Attorney General v. Glyn, 12 Sim. 84; Attorney General v. Lawes, 8 Hare, 32; Attorney General V. Vint, 3 De Gex & S. 705. The dicta of Lord Alvanley, upon 484 JACKSON v. PHILLIPS. [CHAP. III. which the heirs at law much rely, do not, in the connection in which they were uttered, substantially differ from the general current of authority. Attorney General v. Boulibee, 2 Ves. Jr. 387, 388; Attorney General v. Whitchurch, 3 Ves.- 143, 144; Attorney General v. Minshull, 4 Ves. 14. By the opinion of Lord Eldon, formed after great doubt and hesitation, the principle has been held to extend to the case of a bequest of property to a person named, in trust for such charitable purposes, not otherwise described, as he should appoint. Moggridge v. Thackwell, 7 Ves. 96, 13 Ves. 416 ; Pake v. Arch- bishop of Canterbury, 14 Ves. 364 ; Mills v. Farmer', 19 Ves. 483, 1 Mer. 55. Such a trust has been held valid in this common- wealth, so far as to vest a title in the trustee as against the next of kin. Wells v. Doane, 3 Gray, 201. Whether, in case of his death, it could properly be administered by a court of chancery, without the, aid of the prerogative power, need not be considered in this case. See Fontain v. Ravenel, 17 How. 387, 388; Moore V. Moore, 4 Dana, 366. In most of the cases cited at the argument, in which the heirs at law were held to be entitled to the property, the charitable gift never took effect at all; either because it could not be carried out as directed, without violating the mortmain act of 9 Geo. II., as in Jones v. Williams, Amb. 651 ; Attorney General V. Whitchurch, 3 Ves. 141, and Smith v. Oliver, 11 Beav, 481; or because the testator had in terms limited it to a special object which could not be accomplished at the time of his death; as in the case of a bequest to build a church in Wheatley, which could not be done without the consent of the bishop, and he refused (Attorney General v. Bishop of Oxford, 1 Brown, Ch. 444, note; Id., cited 2 Cox, Ch. 365; 2 Ves. Jr. 388; and 4 Ves. 431, 432) ; or of a direction to contract with the governors of a hospital for the purchase of a presentation of a boy to that charity, if the residuary assets should prove to be sufficient {Cherry v. Mott, 1 Mylne & C. 123). In Marsh v. Means, 3 Jur. (N. S.) 790, the testator gave a legacy, after the death of his wife, "for continuing the periodical published under the title of. 'The Voice of Humanity,' according to the objects and principles which are set forth in the prospectus contained in the third number of that publication." "The Voice of Humanity^'- had been published quarterly by an association for the protection of animals, but no number had appeared for nearly a year before the date of the will. Upon the death of the widow CHAP. III.] JACKSON Z'. PHILLIPS. 485 twenty years later, Vice Chancellor Wood held that the gift was not to support the principles of the publication, but only the publication itself, and, the publication having ceased and the ' association perished, _that the legacy lapsed. But he added, "It would, I think, have fallen within the description of charity, if this periodical had been subsisting at the date of the will, and afterwards ceased., That would be simply a case where, the particular intention having failed, the general intention must be carried out." Two striking cases upon this subject have arisen in England under charities for the redemption of captives. In the case of Betton's Charity, Thomas Betton in 1723 bequeathed the residue of his estate to the Ironmongers' Com- pany, in trust, "positively forbidding them to diminish the capital sum by giving away any part, or that the interest and profit arising be applied to any other use or uses than hereinafter mentioned and directed," namely, one-half of the income yearly unto the redemption of British slaves in Turkey or Barbary, one- fourth unto charity schools in the city and suburbs of London where the' education is according to the Church of England, and one-fourth "unto necessitated decayed freemen of the company, their widows and children." The first half of the income of the fund greatly accumulated, few such slaves having, been found for a century. Lord Brougham, reversing the decree of Sir John Leach, M. R., held that the court had jurisdiction to apply the surplus income of this moiety and its accumulations as near as might be to the intentions of the testator; having regard to the bequest touching British captives, and also to the other charitable bequests in the will; and that the case should be re- ferred back to the master to approve a proper scheme for such application. Attorney General v. Ironmonger^ Co., 2 Mylne & K. 576. Sir Christopher Repys, M. R. (afterwards Lord Cotten- ham,) accordingly ordered it to be so referred. On the return of the master's report. Lord Langdale, M. R., approved a scheme to apply the whole fund to the second and third purposes de- clared in the will. 2 Beav. 313. Lord Chancellor Cottenham on appeal reversed this decree ; and upon the ground that the tes- tator had not limited the first charity, like the others, to persons in London, ordered the first moiety to be applied to supporting and assisting charity schools in England and Wales, and referred it back to the master to settle a scheme for that purpose. Craig & P. 208. And this decree was affirmed in the House of Lords 486 JACKSON V. PHILLIPS. [CHAP. III. with the concurrence of Lord Chancellor Lyndhurst, and Lords Brougham, Cottenham and Campbell. 10 Clark & F. 908. In that case, though there were differences of opinion as to the details of the scheme, the jurisdiction of the court of chancery to frame one in such a case was thus affirmed by the deliberate judgments of five law lords ; and all agreed that, for the purpose of ascertaining what was c^ pres to the particular object which had failed, the court might look at all the charitable bequests in the will, applying in this respect the principle upon which Lord Bacon had acted more than two centuries before in the case of BloomHeld v. Stowemarket, above cited. But the case most like that now before us is that of Lady Mico's charity. Lady Mico, by her will made in 1670, gave a thousand pounds "to redeem poor slaves in what manner the executors should think most convenient." This charity was established by decree in chancery in 1686. Upon an information filed in 1827, after the fund had accumulated a hundred- fold, it was referred to a master to approve of a scheme for the application of the income according to the will of the testatrix, or, if he should find that it could not be executed according to her will, then as near the intent of the will as could be, regard being had to the existing circumstances and to the amount of the fund. The master, by his general report in 1835, stated that the relators had laid before him a scheme for applying the fund to the enfranchisement of slaves in the British Colonies who were too poor to purchase their own freedom ; which appli- cation, in consequence of St. 3 & 4 Wm. IV. c 7i, abolishing slavery (which took effect in 1834), had become impracticable;* that he was of. opinion that the testatrix by her will contem- plated the redemption of poor slaves in the Barbary States, but that intention could not be carried into effect; and he approved a scheme to apply the capital and income in purchasing and building schoolhouses for the education of the emancipated ap- prentices and their issue, qualifying teachers, paying the salaries, of masters and other expenses, and to apply the surplus rents to the support of any other schools, and generally in promoting education in the British Colonies. Sir Christopher Pepys, M. R., confirmed this scheme by a decree, and, after he had become Lord Chancellor, stated the reasons to have been that "in this there was no restriction as to the description of the slaves, or the countries in which the slaves were to be looked for"; that upon the reference to the master "it appeared that there were CHAP, in.] JACKSON V. PHILLIPS. 487 not within any part of the British dominions any poor slaves to be redeemed, but that there were in the colonies many thousands of human beings from whom the odious appellation of slaves had been removed, but whose state was very far short of that of freemen, from whose bodies the chains of slavery had been struck, but whose minds and morals were still in that state of degrada- tion which is inseparable from the unfortunate situation from which they had recently been in part rescued; it was proposed to the master to apply, and he approved of a scheme for the completion of that holy work, by assisting in the education of those poor beings. If, before the slavery abolition act, these funds could properly have been applied to procuring the redemp- tion of slaves in the' colonies, the proposed application for the benefit of the apprentices was doubtless cy pres to the intention of the donor." And his reason for not applying Betton's charity in the same manner was that it was in terms limited to slaves in Turkey or Barbary. Attorney General v. Gibson, 2 Beav. 317, note.; Attorney General v. Ironmongers' Co., Craig & P., 226, 227. There is no adjudication of this question by the Supreme Court of the United States. The dicta, of Chief Justice Marshall in Baptist Assn. v. Hart's Ex'rs, 4 Wheat. 1, were based upon an imperfect survey of the authorities, were not required by the decision, and are hardly reconcilable with the more recent judg- ments of the same court; and that case, as well as Wheeler V. Smith, 9 How. 79, arose under the law of Virginia. Vidal v. Girard's Ex'rs, 2 How. 192 ; Perin v. Carey, 24 How. 501 ; Bart- lett v. Nye, 4 Mete. (Mass.), 380; American Academy of Arts & Sciences v. President, etc., of Harvard College, 12 Gray, 593 ; 2 Kent, Comm. 287. In Fontain v. Ravenel, 17 How. 369, the testator authorized -his executors or the survivor of them to dispose of the residue of his estate "for the use of such charitable institutions in Pennsylvania and South Carolina, as they or he may deem most beneficial to mankind," and they died without appointing; and it was held that the title did not vest in the executors as trustees, and that according to the English law the disposition would have been in the crown by sign manual. As Mr. Justice McLean, delivering the opinion of the court, said: "Nothing short of the prerogative power, it would seem, can reach this case. There is not only uncertainty in the beneficiaries of this charity,, but behind that is a more formidable objection. There is no expressed will of the testator. He intended to speak through his executors or the survivor of them, but by the 488 JACKSON V. PHILLIPS. [CHAP. III. acts of Providence this has become impossible. It is then as though he had not spoken. Can any power now speak for him, except the parens patriae f" The further .re- marks about the power of cy pres, if intended to cover a case in which the charitable purposes were described or indicated in the will, were upon a question not before the court. The separate, opinion of Chief Justice Taney in Fontain V. Ravenel was- but His own, based mainly upon that of Chief Justice Marshall in Baptist Assn. v. Harfs Ex'rs. And it is impossible to avoid the inference that the inipressions of both of those eminent magistrates were derived from the laws of Maryland and Virginia in which they had been educated, and by which St. 43 Eliz. has been expressly repealed, and charities are not recognized as entitled to any favor, either in duration or construction, beyond other trusts, Dashiell v. Attorney Gen- eral, 5 Har. & J. 392; Gallego v. Attorney General, 3 Leigh, 450. In North Carolina, the Supreme Court once declared that it had all the powers exercised by the English chancellor, either in the equity jurisdiction or under the sign manual; and since, re- bounding from that extrerne opinion, seems to have adopted the view of Maryland and Virginia. Griffin v. Graham, 1 Hawks, 96 ; McAuley v. Wilson, 1 Dev. Eq. 276. Holland . v. Peclz, 2 Ired. Eq. 255. There is a dictum to a like effect in Carter v. Balfour, 19 Ala. 830. So in New York, the Court of Appeals, after some division and vacillation of opinion in the course of the frequent changes in the composition of the court, has recently adjudged that in that state the English law of charitable uses has been wholly abrogated by statute, and that charities are within the rule against perpetuities, and have no privileges above private trusts. Bascam v. Albertson, 34 N. Y. 584. On the other hand, the Court of Appeals of Kentucky, in an • able judgment delivered by Chief Justice Robertson, marked the distinction between the power exercised under the sign manual, - and that inherent in the equity jurisdiction; and, after speaking of the former as not judicial, added : "The cy pres doctrine of England is not, or should not be, a judicial doctrine, except in one kind of case ; and that is, where there is an available charity to an identified or ascertainable object, and a particular mode, inadequate, illegal or inappropriate, or which happens to fail, has been prescribed. In such case, a court of equity may substi- tute or sanction any other mode that mav be lawful and suitable CHAP. HI.] JACKaON V PHILLIPS. 489 and will effectuate the declared intention of the donor, and not arbitrarily and in the dark, presuming on his weakness or wishes, declaim an object for him. A court may act jiidicially as long as it effectuates the lawful intention of the donor." Moore v. Moore, 4 Dana, 366. See, also, Gass v. Wilhite, 2 Dana, 177; Curling v. Curling, 8 Dana, 38. The power of cy pres, which was declared by the Supreme Court of Pennsylvania in Metho- dist Church V. Remington, 1 Watts, 226, and Witman v. Lex, 17 Serg. & R. 93, not to exist in that state, was the power exer- cised under the sign manual in case of a gift to superstitious uses^ or of an expression of general intention to devote a sum to charitable purposes not designated. In a very recent case, the same court said: "The rule of equity on this subject seems to be cleai;, that when a definite charity is created, the failure of the particular mode in which it is to be effectuated does not destroy the charity; for equity will substitute another mode, so that the substantial intention shall not depend upon the formal intention." "And this is the doctrine of cy pres, so far as it has been expressly adopted by us" — "a reasonable doctrine, by which a well defined charity, or one where the means of definition are given, may be enforced in favor of the general intent, even where the mode or means provided for by the donor fail by reason of their inadequacy or unlawfulness." Philadelphia v. Girard, 45 Pa. St. 27, 28. Like principles have been maintained in South Carolina and Illinois. Attorney General v. Jolly, 1 Rich. Eq. 99, 2 Strob. Eq. 395; Gilman v. Hamilton, 16 111. 231. The existence of a judicial power to administer a charity cy pres where the expressed intention of the founder cannot be exactly carried out has been either countenanced or left an open question in all the New England states except Connecticut. Burr v. Smith, 7 Vt. 287, 288; Second Congregational Soc. v. First Congregational Soc, 14 N. H. 330; Brown .v. Concord, 33 N. H. 296 Derby v. Derby, 4 R. I. 439; Tappan v. Deblois, 45 Me. 131 ; Howard v! American Peace Soc, 49 Me. 302, 303; Treat's Appeal, 30 Conn. 113. See, also, 2 Redf. Wills, 815, note; McCord v. Ochiltree, 8 Blackf. 15; Beall v. Fox, 4 Ga. 427; Chambers v. St. Louis, 29 Mo. 590, 592 ; Lepage v. Macnamara, 5 Iowa, 146 ; Mclntyre V. Zanesville, 17 Ohio St. 352. The narrow doctrines which have prevailed in some states upon this subject are inconsistent with the established law of this com- monwealth. Our ancestors brought with thera from England the elements of the law of charitable uses, and, although the 490 JACKSON V. PHILLIPS. [CHAP. III. form of proceeding by commission under St. 43 Eliz. has never prevailed in Massachusetts, that statute, in substance and prin- ciple, has always been considered as part of our common law. 4 Dane, Abr. 6, 239; Earle v. Wood, 8 Cush. 445. . Under the Colony charter, charities were regulated and administered, ac- cording to the intent of the donors, under the direction of the general court, the court of assistants, and the county courts ; and under the Province charter, although no court was vested with equity jurisdiction, charitable bequests were not the less valid. Anc. Chart. 52; Drury V. Natick, 10 Allen, 180, 181, and authori- ties cited; Winslow V. Trowbridge, stated in 11 Allen, 459, 460. The English mortmain act of 9 Geo. II. c. 36, did not extend to Massachusetts; and the similar provision in Prov. St. 28 Geo. II. c. 9, was repealed immediately after our Revolution by St. 1785, c. 51. Odell v. Odell, 10 Allen, 6. Charities are held not to be within the common rule Umiting perpetuities and accumu- lations. Dexter v. Gardner, 7 Allen, 243; Odell y. Odell, 10 Allen, 1. Charitable bequests to an unincorporated society here, to a foreign corporation or society, or to a particular religious denomination in a certain county, have been carried into effect, even where no trustees have been named in the will. Burbank V. Whitney, 24 Pick. 146; Bartlett v. Nye, 4 Mete. (Mass.) 378; Washburn v. Sewall, 9 Mete. (Mass.) 280; Universalist Sac. v. Fitch, 8 Gray, 421. See, also. Wells v. Doane, 3 Gray, 201; Saltonstall v. Sanders, 11 Allen, 446. The intention of the testator is the guide, or, in the phrase of Lord Coke, the lodestone, of the court; and therefore, whenever a charitable gift can be administered according to his express directions, this court, like the court of chancery in England, is not at liberty to modify it upon considerations of policy or con- venience. Harvard College v. Society for Promoting Theological Education, 3 Gray, 280; Baker v. Smith, 13 Mete. (Mass.) 34; Trustees of Smith Charities v. Inhabitants of Northampton, 10 Allen, 498. But there are several cases, where the charitable trust could not be executed as directed in the will, in which the testa- . tor's scheme has been varied by this court in such a way and to such an extent as could not be done in the case of a private trust. Thus bequests to a particular Bible society by name, whether a corporation established by law or a voluntary association, which had ceased to exist before the death of the testator, have been sustained, and applied to the distribution of Bibles through a trustee appointed by the court for the purpose. Winslow V, CHAP. HI.] JACKSON V. PHILLIPS. 491 Cummings, 3 Cush. 358 ; Bliss v. American Bible Soc, 2 Allen, 334. At a time when the general chancery jurisdiction of this court over trusts was limited to those arising under deeds and wills, the legislature by a special statute authorized it to hear and determine in equity any and all matters relating to a certain gift to a scientific corporation, to be invested in a certain manner, and paid in premiums for discoveries or improvements on heat or light published in America within two years before each award. Upon a "bill being filed, and it appearing that it had become im- practicable to carry out the intent of the donor in the mode prescribed, Chief Justice Shaw authorized a different investment of the fund; and, in accordance with a scheme reported by a master, authorized the corporation to apply the surplus income, after paying such premiums, to purchasing books, papers and philosophical apparatus, and making such publications or pro- curing such lectures, experiments or investigations as should facilitate and encourage the making of such discoveries and im- provements; and said: "Whenever it appears that a general object of charity is intended, and the purpose is not unlawful and void, the right of the heir at law is divested." "It is now a settled rule in equity that a liberal construction is to be given to charitable donations, with a view to promote and accomplish the general charitable intent of the donor, and that such intent ought to be observed, and when this cannot be strictly and literally done, this court will cause it to be fulfilled as nearly in conformity with the intent of the donor as practicable. Where the property thus given is given to trustees capable of taking, but the property cannot be applied precisely in the mode directed, the court of chancery interferes, and regulates the disposition of such property under its general jurisdiction on the subject of trusts, and not as administering a branch of the prerogative of the king as parens patriae." "What is the nearest method of carrying into eflFect the general intent of the donor must of course depend upon the subject matter, the expressed intent, and the other cir- cumstances of each particular case, upon all of which the court is to exercise its discretion." American Academy v. Harvard College, 12 Gray, 582. The same principle was also recognized or assumed- in 4 Dane, Abr. 242, 243, in Sanderson v. White, 18 Pick. 333, and other cases already cited. Baker v. Smith, 13 Mete. (Mass.) 41 ; Harvard College v. Society for Promoting Theological Education, 3 Gray, 282, 298 ; Trustees of Smith Charities v. Inhabitants of Northampton, 10 Allen, 501, 502. 492 JACKSON V. PHILLIPS. . [CHAP. III. By Gen. St. c. 113, § 2, this court may hear and determine in equity all suits and proceedings for enforcing and regulating the execution of trusts, whether the trusts relate to real or per- sonal estate, "and shall have full equity jurisdiction, according to the usage and practice of courts of equity, in all other cases, where there is not a plain, adequate and complete remedy at law." The powers usually exercised by the court of chancery in the course of its jurisdiction in equity have thus been expressly conferred upon this court by the legislature. The authority of administering a charitable trust according to the expressed inten- tion of the donor, and, when that cannot be exactly followed, then. as nearly as possible, is a part of this jurisdiction, which the court is not at liberty to decline. The only question is, whether the facts of the case show a proper occasion for its exercise according to the settled practice in chancery. In all the cases cited at the argument, in which a charitable bequest, which might have been lawfully . carried out under the circumstances existing at the death of the testator, has been held, upon a change of circumstances, to result to the heirs at law or residuary legatees, the gift was distinctly limited to par- ticular persons or establishments. Such was Russell v. Kellett, 3 Smale & G. 264, in which the gift was of five pounds outright to each poor person of a particular description in certain parishes, and Vice Chancellor Stuart held that the shares of those who died before receiving them went to the residuary legatees. Such, also, was Clark v. Taylor, 1 Drew. 642, in which it was held that a legacy to a certain orphan school by name, which ceased to exist after the death of the testator, failed and fell into the residue of the estate ; and which Ncan hardly be reconciled with the decisions in Incorporated Soc. v. Price, 1 Jones & L. 498, 7 Ir. Eq. 260; In re Clergy Society, 2 Kay & J. 615; Marsh v. Attorney General, 2 Johns. & H. 61 ; Winslow v. Cummings, 3 Cush. 358, and Bliss v. American Bible Soc, 2 Allen, 334. So in Easterbrooks v. Tillinghast, 5 Gray, 17, the trust was expressly limited, not only in object, but in duration, to the maintenance of the pastor of a certain church of a specified faith and practice in a particular town, "so long as they or their suc- cessors shall maintain the visibility of a church in said faith and order"; and could not have been held to have terminated, had it not been so limited. Attorney General v. Columbine, Boyle, Char. 204, 205 ; Potter v. Thurston, 7 R. I. 25 ; Dexter V. Gardner, 7 Allen, 243. CHAP. III.] JACKSON V. PHILLIPS. 493 The charitable bequests of Francis Jackson cannot, in the opinion of the court, be regarded as so restricted in their objects, or so Hmited in point of time, as to have been terminated or destroyed by the abolition of slavery in the United States, They are to a board of trustees for whose continuance careful pro- vision is made in the will, and which the testator expresses a wish may become a permanent organization and may receive the services and sympathy, the donations and bequests, of the friends of the slave. Their duration is not in terms limited, like that of the trust sought to be established in the sixth article of the will, by the accomplishment of the end specified. They take effect from the time of the testator's death, and might then have been lawfully applied in exact conformity with his expressed inten- tions. The retaining of the funds in the custody of the court while this case has been under advisement cannot affect the question. The gifts being lawful and charitable, and having once vested, the subsequent ^change of circumstances before the funds have been actually paid over is of no more, weight than if they had been paid to the trustees and been administered by them for a century before slavery was extinguished. Neither the immediate purpose of the testator — ^the moral education of the people; nor his ultimate object — to better the condition of the African race in this country, has been fully accomplished by the abolition of slavery. Negro slavery was recognized by our law as an infraction of the rights inseparable from human nature; and tended to pro- mote idleness, selfishness and tyranny in one part of the com- munity, a destruction of the domestic relations and utter debase- ment in the other part. The sentiment which would put an end to it is the sentiment of justice, humanity and charity, based upon moral duty, inspired by the most familiar precepts of the Christian religion, and approved by the constitution of the com- monwealth. The teaching and diffusion of such sentiment are not of temporary benefit or necessity, but of perpetual obligation. Slavery may be abolished; but to strengthen and confirm the sentiment which opposed it will continue to be useful and desir- able so long as selfishness, cruelty, the lust of dominion and indifference to the rights of the weak, the poor and the ignorant, have a place in the hearts of men. Looking at the trust estab- lished by the fourth article of this will as one for the moral education cf the people only, the case is within the principle of those, already cited, in which charities for the relief of leprosy 494 JACKSON V. PHILLIPS. [CHAP. III. and the plague were held not to end with the disappearance of those diseases ; and is not essentially different from that of Attor- ney General v. Baliol College, in "which a trust for the education at Oxford of Scotch youths, to be sent into Scotland to preach Episcopalianism in the established church there, was applied by Lords Somers and Hardwicke and their successors to educate such youths, although, by the change of faith and practice of the Church of Scotland, the donor's ultimate object could no longer be accomplished. The intention of Francis Jackson to benefit the negro race appears not only in the leading clause of the fourth article, and in his expression of a hope that his trustees might receive the aid and the gifts of the friends of the slave, but in the trust for the benefit of fugitive slaves in the fifth article of the will, to which, according to the principle established by the House of Lords in the case of Betton's charity, resort may be had to ascertain his intent and the fittest mode of carrying . it out. The negroes, although emancipated, still stand in great need of assistance and education. Charities for the relief of the poor have been often held to be well applied to educate them and their children. Bishop of Hereford v. Adams, 7 Ves. 324; Wilk- inson v. Malin, 2 Cromp. & J. 636, 2 Tyrw. 544; Anderson v. Wrights of Glasgow, 12 L. T. (N. S.) 807. The case of Mice Charity is directly to the point that a gift for the redemption of slaves may be appropriated, after they have been emancipated by law, to educate them ; and the reasons given by Lord Cotten- ham for that decision apply with no less force to those set free by the recent amendment of the Constitution in the United States, than to those who were emancipated by act of Parlia- ment in the West Indies. The mode in which the funds bequeathed by the fourth and fifth articles of the will may be best applied to carry out in a lawful manner the charitable intents and purposes of the testator as nearly as possible must be settled by a scheme to be framed by a master and confirmed by the court before the funds are paid over to the trustees. In doing this, the court does not take the charity out of the hands of the trustees, but only declares the law which must be their guide in its administration. Shelf. Mortm. 651-654; Boyle, Char. 214-218. The case is therefore to be referred to a master, with liberty to the attorney general and the trustees to submit schemes for his approval; and all further directions are reserved until the coming in of his report. CHAP. III.] JACKSON V. PHILLIPS. 495 Case referred to a master. The case was then referred to John Codman, Esquire, a master in chancery for this county, who, after notice to the trustees and the attorney general, and hearing the parties, made his report, the results of which were approved by the attorney general J and upon exceptions to which the case was argued by W. Phillips for himself and other excepting trustees, and by J. A. Andrew in support of the master's report, before Gray, J., with the agreement that he should consult the whole court before entering a final decree. No account was asked by any party of sums already expended by the trustees. As to the bequest in the fifth article, the master reported that the unexpended balance (amounting to $1,049.90) was so small that it was reasonable that it should be confined to a limited territory; and that it should therefore be applied by the trustees, in accordance with their unanimous recommendation, to the use of necessitous persons of African descent in the city of Boston and its vicinity. This scheme was approved and confirmed by the court, with this addition: "Preference being given to such as have escaped from slavery." As to the sum bequeathed in the fourth article of the will, the master reported that a portion had been expended by the triistees before any question arose as to its validity; and that but two schemes had been suggested to him for the appropriation of the residue, namely, first, (which was approved by four of the seven trustees who had accepted the trust) in part to the support of the Anti-Slavery Standard, and in part to the New England Branch of the American Freedmen's Union Commission; or, second, (which was approved by the remaining trustees), that the whole should be applied to the last named object. The master disapproved of the first of these schemes ; and reported . that the Anti-Slavery Standard was a weekly news- paper published in the City of New York with a circulation of not more than three thousand copies, which was established nearly thirty years ago for the purpose of acting upon public opinion in favor of the abolition of slavery ; that in his opinion, since the abolition of slavery, and the passage of the reconstruc- tion acts of Congress, "the support of a paper of such limited circulation as hardly to be .self-sustaining would do very httle for the benefit of the colored people in their present status, and its direct influence would be almost imperceptible on the welfare of that class most nearly corresponding to those whom the tes- 496 JACKSON V. PHILLIPS. [CHAP. III. tator had in view in making this bequest".; and that the argu- ment, that it was evidently the intention of the testator to accomplish the object indicated in the fourth article of his will by means of which a newspaper like this might be considered an example, was answered by the fact that the object for which these means were to be used had been already accomplished without them. The master returned with his report a few num- bers of the Anti-Slavery Standard, (taken without selection as they were given to him by the chairman of the trustees), by which it appeared that it was in large part devoted to urging the passage of laws securing to the freedmen equal political rights with the whites, the keeping of the Southern states under mili- tary government, the impeachment of the President, and other political measures. The master reported that he was^ unable to devise any better plan than the second scheme suggested ; that this mode of appro- priation was, in his opinion, most in accordance with the intention of the testator as expressed in the fourth article of the will, because the* intention nearest to that of emancipating the slaves was by educating the emancipated slaves to render them capable of self-government ; and this could best be done by an organized society, expressly intended and exactly fitted for this function, and which, if the whole or any part of this fund was to be applied to the direct education and support of the freedmen, was admitted at the hearing before him to be the fittest channel for the appropriation. The master returned with his report printed documents by which it appeared that the object of the American Freedmen's Union Commission, as stated in its constitution, was "the relief, education and elevation of the freedmen of the United States, and to aid and co-operate with the people of the South, without distinction of race or color, in the improvement of their condition, upon the basis of industry, ' education, freedom and Christian morality" ; ^ and that the New England and other branches of the commission were now maintaining large numbers of teachers and schools for this purpose throughout the Southern states. The master accordingly reported that what remained of the fund bequeathed by the fourth article of the will should be "ordered to be paid over to the New England Branch of the Freedmen's Union Commission, to be employed and expended by them in promoting the education, support and interests generally of the freedmen (late slaves) in the states of this CHAP. III.] " NICHOLS V. ALLEN. 497 Union recently in rebellion." And this scheme was the opinion of the whole court accepted and confirmed, modified only by directing the executor to pay the fund to the trustees, to be by them paid over at such times and in such sums as they in their discretion might think fit to the treasurer of the branch com- mission; and by substituting for the words "recently in rebel- lion" the words "in which slavery has been abolished, either by the proclamation of the late President Lincoln, or the Amend- ment of the Constitution." / Final decree accordingly. NICHOLS V. ALLEN. (130 Mass. 211.) [Supreme Judicial Court of Massachusetts, 1881.] Bill in equity, alleging that the plaintiff was the first cousin and next of kin of Eliza Powers, whose will,. which was duly admitted to probate, after making pecuniary bequests to sundry persons, amounting to $54,000, and to various charitable corpora- tions, amounting to $100,000, contained the following clauses: "After the payment of the foregoing legacies, and all expenses and charges in the settlement of my estate, should there be any surplus, I give and bequeath the same to my executors and the survivor of them, or their successors, if any such should be appointed to administer on my estate, to be by them distributed to such persons, societies or institutions as they may consider most deserving. "I give to my executors full power to sell any real estate of which I may die seized, and convey the same by good and sufficient deeds to the purchasers. "I hereby nominate and appoint Isaac S. Cruft and Charles Allen, both of said Boston, as the executors of this, my last will ; and I direct that they shall not be required to give sureties on their official bonds." The bill further alleged that the defendants, the persons named in the will as executors, were appointed as such by the Probate Court, and accepted the trust; that, after paying the legacies and the charges and expenses of administration, there remained in the hands of the executors the sum of $68,300, which the executors claimed the right to distribute to such 32 498 NICHOLS V. ALLEN. [CHAP. III. persons, societies or institutions as they considered most de- serving, whereas, as the bill charged, the trust was invalid, and void for uncertainty; and that the plaintiff was entitled to the residue as next of kirj. The prayer of the bill was that the trust be declared void, and the defendants ordered to pay said surplus to the plaintiff, and for further relief. The defendants demurred for want of equity. The case Was heard by Gray, C. J., on the bill and demurrer, and, at the request of both parties, reserved for the determination of the full court. The case was argued at the bar, and further arguments were afterwards submitted in writing by leave of the court. Gray, C. J. Two general rules are well settled: 1st. When a gift or bequest is made in terms clearly manifesting an inten- tion that it shall be taken in trust, and the trust is not suffi- ciently defined to be carried into effect, the donee or legatee" takes the legal title only, and a trust results by implication of law to the donor and his representatives, or to the testator's residuary legatees or next of kin. Briggs v. Penny, 3 DeG. & Sm. 525, and 3 Macn. & Gord. 546. Thayer v. Wellington, 9 Allen, 283. Sheedy v. Roach, 124 Mass. 472. 2d. A trust which by its terms may be applied to objects which are not charitable in the- legal sense, and to persons not defined, by name or by class, is too indefinite to be carried out. Morice v. Bishop of Durham, 9 Ves. 399, and 10 Ves. 521. James v. Allen, 3 Meriv. 17. Chamberlain v. Stearns, 111 Mass. 267. The cases illus- trating the application of these rules, referred to in the able and elaborate arguments of counsel, are so numerous, and each case depends so much upon the wording of the particular instrument, that we shall mention those cases only which were most relied on. But it will be convenient first to examine the bequest before us. The terms of this bequest clearly manifest the intention of the testatrix to create a trust. The bequest contains no words tending to show that the executors are to take the property, or any part of it, absolutely or for their own benefit; and by our law no such intention is to be implied. Hays v. Jackson, 6 Mass. 149, 152, 153. Winship v. Bass, 12 Mass. 198, 204. Nickerson v. Bowly, 8 Met. 424, 431. Story Eq. Jur. § 1208. The bequest is not to the executors by name, but is to them and the survivor of them, and to their successors in the administra- CHAP. III.] NICHOLS V. ALLEN. 499 tion of the estate. All the property given to them is "to be by them distributed"; the direction to distribute is as broad as the gift. The property is not "to be disposed of" at the unqualified discretion of the executors, but is "to be distributed" according to their judgment of the deserts of the beneficiaries. The objects of the bounty of testatrix are not otherwise designated than as "such persons, societies or institutions as they may con- sider most deserving." And there is no indication of an inten- tion that the executors shall not be held legally accountable for a proper execution of the trust. The strongest case in favor of the defendants is Gihhs v. Rumsey, 2 V. & B. 294, in which a bequest to the executors named in the will,* "to be disposed of unto such person and persons, and in such manner and form, and in such sum and sums of money, as they in their discretion shall think proper and expedient," was held by Sir William Grant to give the executors a purely arbitrary power of disposition, and consequently^ a beneficial interest. That case differs from the present one in at least three important particulars : 1st. The bequest was only to the executors named. 2nd. Much stress was laid on the fact that the words "in trust" had been used in many other places in the will, and were omitted in this clause. 3d. An authority to those, to whom the legal title is given, "to dispose of" the property "in such manner and in such sums and to such persons ,as they may think proper," is more consistent with an arbitrary power of disposition than is a direction "to distribute" the prop^ erty "to such persons, societies or institutions as they may think most deserving." And the decision in Gibbs v. Rumsey has always been treated by the English courts as not to be extended beyond its special circumstances. In Ralston v. Telfair, 2 Dev. Eq. 255, also, the bequest to executors, which was held by the Supreme Court of North Carolina to be for their own use, was in the less restricted form "to be disposed of as my executors think proper." In the sub- sequent case of Green v. Collins, 6 Ired. 139, the same court held that a residuary bequest to the testator's wife, "to be divided among my children as she thinks proper," created a plain trust for the benefit of the children. Two cases resembling Gibbs v. Rumsey much more nearly than the present case does were decided by Sir John Leach. One was of a residuary bequest to executors in trust, in default of further directions of the testator, to pay and apply the same 500 NICHOLS V. ALLEN. [CHAP. III. to any lawful charitable public purposes, or to any person or persons, and in such shares and proportions, sort, manner and form, as they in their discretion should think fit. Vezey v. Jamson, 1 Sim. & Stu. 69. The other was of a residuary bequest to executors "upon trust to dispose of the same at such times and for such uses and purposes as they shall think fit, it being my will that the distribution thereof shall be left entirely to their discretion." Fowler v. Garlike, 1 Ryss. & Myl. 232. Each was held to be a plain gift in trust, and therefore not to the executors for their own benefit ; but too uncertain for the court to' execute, and therefore a resulting, trust to the next of kin. So where a testator gave a fund to his executors upon certain trusts, and declared it to be his will that in the event of the failure of these trusts (which actually happened) his said trustees and the survivor of them, his executors or administrators, should apply the same "to and for such charitable or other purposes as they shall think fit, \yithout being accountable to any person or persons whomsoever for such their disposition thereof," Lord Chancellor Cottenham held that this was a gift in trust, but too uncertain to be carried into effect. He distinguished the case from Gihhs v. Rumsey, and approved the decision in Fowler v. Garlike, and made these observations, which are quite applicable to the case, before us: "If the- fund were intended for the executors' own benefit, the testator might have left with them the option of disposing of it; but they are to pay and apply it for certain purposes mentioned in the will. Then, again, the direction to the executors to pay and apply the fund to such charitable or other purposes as they should think fit, is ve.ry inconsistent with the notion that they were to be absolutely enti- tled to it," Ellis V. Selby, 1 Myl. & Cr. 286, 296. The omission of the words "in trust" is unimportant where, as in the case before us, an intentioii is clearly manifested that the whole property shall be applied by the legatees for the benefit of others than themselves. Thus where a sum of money was given to a niece of the testator, "for the express purpose of enabling her to present to either branch of my family any portion of the interest or principal thereon as she may consider the most prudent, and in the event of her death I empower her to dispose of the same by will or deed to those of either branch of her family she may consider most deserving thereof," it was held by Lord Langdale, M. R., and by Lord Cottenham on appeal, that the gift was in CHAP. III.] NICHOLS V. ALLEN. 501 trust, but that, the trust being too indefinite to be executed, the sum was part of the donor's general estate. Stubbs v. Sargon, 2 Keen, 255, and 3 Myl. & Cr. 507. A like decision was made in Buckle v. Bristow, 10 Jur. (N. S.) 1095, where a testator, after giving bequests and legacies to several charitable institutions by name, gave the residue of his property upon trust for his executors to hold the same for such uses and purposes as he might by codicil or deed direct or appoint, and, in default thereof, then for the same to be expended and appropriated within three years in such way and amounts and for such purposes as they might in their judgment and dis- cretion agree upon. Vice Chancellor Wood (afterwards Lord Chancellor Hatherlly) said that, even if the words "in trust" had been omitted, and the word "appropriated" had been used alone, without the word "expended," the result must have been the same; and that the decision in Gibbs v. Rumsey went "to the very outside of the doctrine," and in "no case would be decided according to it, where the gift is not precisely and dis- tinctly in the words there mentioned." See also Yeap Cheah Neo v. Ong Cheng Neo, L. R. 6 P. C. 381, 389, 390. In McCormick v. Grogan, L. R. 4 H. L. 82, the devise was absolute and unqualified of the testator's whole property to the defendant, whom he described as "my most sincere and valued friend," and appointed sole executor; and the instrument relied on as creating a trust was a letter addressed to the defendant, in which the testator expressed his intentions that certain persons should receive certain sums of money, but, besides otherwise signifying that he left it to the defendant to carry out the intentions as he might think best, said, "I do not wish you to act strictly to the foregoing instructions, but leave it entirely to your own good judgment to do as you think 1 would if living, and as the parties are deserving; and as it is not my wish that you should say anything about this document, there cannot be any fault found with you by any of the parties should you not act in strict accordance with it." Such was the case of which Lord Hatherley (adopting the words of Lord Justice Christian in the court below) said that, if it were possible to look into the thoughts of the testator when he was inditing the will and letter, he was "'persuaded that what we should find there would be a purpose to this effect, to set up after his decease, not an executor or trustee, but as it were a second self, whom, while he communicates to him confidentially his ideas as to the distribu- 502 NICHOLS V. ALLEN. [CHAP. IIL tion of his property, he desires to invest with all his own irre- sponsibility in carrying them into effect." L. R. 4 H. L. 95. In Meredith v. Heneage, 1 Sim. 542, a devise of a testator's estate to his wife "unfettered and unlimited, in full confidence and with the firmest persuasion that, in her future disposition and distribution thereof, she will distinguish the heirs of my late father, by devising and bequeathing the whole of my said estate, together and entire, to such of my said father's heirs as she may think best deserves her preference," was held by the House of Lords, upon the advice of Lord Eldon and Lord Redes- dale, not to create a trust, because the words "unfettered and unlimited" precluded the inference of such an intention. In Lambe v. Eames, L. R. 10 Eq. 267, and L. R. 6 Ch. 597, the bequest was to the testator's wife, "to be at her disposal in any way she may think best for the benefit of herself and family." And several of the other cases cited at the bar were of unsuccessful attempts to impose a trust, by reason of mere precatory words, upon property bequeathed to a wife or child absolutely and without restriction. Sale v. Moore, 1 Sim. 534. Reid V. Atkinson, Ir. R. 5 Eq. 373. In re Bond, 4 Ch. D. 238. Spooner v. Lovejoy, 108 Mass. 529. Hess v. Singler, 114 Mass. 56. Sears v. Cunningham, 122 Mass. 538. In Stead v. Mellor, 5 Ch. D. 225, the testatrix gave her per- sonal estate to her executors upon trust to convert into money, and, after payment of expenses, debts and legacies, to hold the residue in trust for such of two nieces of hers as should be living at her death, "my desire being that they shall distribute such fesidue as they think will be most agreeable to my wishes"; and Sir George Jessel, M. R., held that the nieces took the residue for their own benefit. To have held otherwise would have been to engraft a trust upon a trust, in a case in which^ as the Master of the Rolls observed, the testatrix had used the words "in trust" in the gift to the executors only, and beyond that had merely expressed a desire that the nieces should dis- tribute the residue, not "in accordance with my views and wishes," or "as they know will be most agreeable to my wishes," but "as they think will be most agreeable to my wishes." The decision in Wells v. Doane, 3 Gray, 201, turned upon the peculiar provisions of the will. The testatrix,' after devising and bequeathing the residue of her estate "to my nephew, Seth Wells," for life, and at his death to such charities as should be deemed most useful by his executor or administrator, added, CHAP. III.] NICHOLS V. ALLEN. 503 "And it is my will and intention that the said Seth Wells may dispose of the furniture, plate, pictures and all other articles now in my house, absolutely, as he may deem expedient, in accord- ance with my wishes as otherwise communicated by me to him." Taking the two clauses together, the court concluded that they had the same meaning as if the will read thus: "I give all the residue of my property, except the articles in my house, to Seth Wells for life, and I authorize him to dispose of those articles absolutely, as he may deem expedient." It is to be observed that the bequest was to the nephew by name, and not as executor, although he was appointed executor in another part of the will. The decision in Wells v. Hawes, 122 Mass. 97, has no bearing upon this case. There the real estate was devised absolutely to the person named in the will as executor, subject to no trust except so far as a trust might be held to be created by a power given in the will to sell the land if necessary to carry out the purposes of a memorandum left with him by the testatrix; and the only point decided or argued was that, there being no evi- dence either of such memorandum or of such necessity, a convey- ance by him without license from the judge of probate afforded no defense to a real action brought by a creditor of his who had attached and levied upon the land. Upon a review of the authorities, we find nothing in them to control the conclusion, based upon the intention which appears to us to be clearly manifested on the face of this will, that the executors take the estate, not beneficially, but in trust; and that, the beneficiaries not being described by name or by class, the trust cannot be upheld unless its purposes are such as the_^ law deems charitable. The trust declared cannot be sustained as a charity. There is no restriction as to the objects of the trust, except th^t they must be "such persons, societies or institutions as they (the trustees) may consider most deserving." "Deserving" denotes worth or merit, without regard to condition or circumstances, and is in no sense of the word limited to persons in need of assistance, or to objects which come within the class of charitable uses. A bequest for the relief of "deserving poor," or of "indigent but deserving" individuals, is a charitable bequest, not by force of the word "deserving," but in virtue of the word "poor" or "indigent," and would be equally charitable if the word "deserv- ing" had been omitted. Kendall v. Granger, 5 Beav. 300, 303. 504 NICHOLS V. ALLEN. [CHAP. HI. So a bequest "for the education of deserving youths" is charitable, because it is for the promotion of education and learning. Saltonstall v. Sanders, 11 Allen, 446, 454. And, possribly, a be- quest for "deserving literary men" might be held upon like grounds to be a charity. Thompson v. Thompson, I Coll. 381, 399. Bequests for poor relations have been held to be charitable bequests. Boyle on Charities, 31-36, and cases cited. Gillam V. Taylor, L. R. 16 Eq. 581. Attorney General v. Northumber- land, 7 Ch. D. 745. But for "such relations" of the testator as are "most deserving" (without "poor" or any equivalent word) is not a charitable use; and, includes all relations of the testator within a certain degree, because, as was observed by Sir Joseph Jekyll, M. R., a court of chancery has "no rule of judg- ing of the merits of the testator's relations." Doyley v. Attorney General, 4 Vin. Ab. Charitable Uses, C. pi. 16; 5". C.,2 Eq. Cas. Ab. 194, pi. 15 ; 7 Ves. 58, note. Harding v. Glyn, 1 Atk. 469. Burrough v. Philcox, 5 Myl. & Cr. 72, 91, 93. Salusbury v. Denton, 3 K. & J. 529, 538. There is a recent English case singularly in point. A testator by his will directed his trustees to pay the following legacies: "To the CanGcr Hospital £100; to the Brompton Hospital for Diseases of the Chest £100; to the Lord Mayor of Dublin for the |time being £100 for such objects as he shall deem most deserving; to the Blind Asylum New Kent Road £100; to Mrs. Gladstone of No. 11 Carlton House Terrace, to be applied as she thinks proper in charity, £200; and the residue of my estate I bequeath to my trustees for such objects as they consider deserving, whether in increase of ihe before-mentioned ones or otherwise." Vice Chancellor Wickens, a most accomplished equity judge, held that, the bequest to the Mayor of Dublin and the residuary gift could not be held to be limited to charitable objects, but failed altogether, on the ground of uncertainty. Harris v. Du Pasquier, 26 L. T. (N. S.) 689; -5". C. 20 Weekly Rep. 668. The other cases cited by the learned counsel for the defend- ants have no tendency to support this as a charitable bequest. The case of Offley's Charity, described generally in 1 Cal. Pro. Ch. 216, and in Dwight's Charity Cases, 185, as of legacies "for the benefit of apprentices and other inhabitants of the city of Chester," appears by the 31st Report of the Commissioners of Charities, 385, referred to by Mr. Dwight, to have been of money CHAP. III.] NICHOLS V. ALLEN. SOS to be lent from time to time "to twenty-four young men free of the said city of Chester, of honest name and fame, occupied and inhabitants within the said city," twelve of whom to be "such as had served in that city for their freedom as apprentices," and the income derived from such loans to be devoted to poor persons and prisoners in that city, and thus within the very words of the St. of 43 Eliz. c 4,§ 1, "for supportation, aid and help of young tradesmen and handcraftsmen," and for relief of "poor people" and of "prisoners." Duke on Charitable Uses (Bridgm. ed.) 1, 131. Attorney General v. Ironmongers' Co., Coop. Pract. Cas. 283. Odell v. Odell, 10 Allen, 1, 12. Jackson v. Phillips. 14 Allen, 539, 569, 570. In re Prison Charities, L. R. 16 Eq. 129. In West v. Knight, 1 Ch. Cas. 134, in 1669, a bequest to a parish was objected to because it did not say to what use, "whether it were for the poor, or for repair of the church, or highways, etc.," and was upheld by Sir Harbottle Grimstone, M. R., and applied for the benefit of the poor of the parish. But that would seem to have been an application in the discretion of the court to one of several uses, all of which were charitable, io accordance with the rule laid down in an earlier case, published in Tothill twenty years before, that when no use is mentioned it shall be decreed to the use of the poor. Fisher v. Hill, Toth. 95; (2d ed.) 33; 5. C. Duke, 484. And a bequest "for the use arid benefit of said parish" has always been held in England to be a good charitable bequest. Attorney General v. Hotham, Turn. & Russ, 209. Attorney General v. Webster, L. R. 20 Eq. 483. A gift to "widows and orphans" of a particular sect or parish, or to "widows and children of seamen" of a town, is gOod, because the words clearly manifest an intention to relieve a class of persons under a common need of assistance, and coming within the spirit, if not within the letter, of the statute of Elizabeth, "relief of aged, impotent and poor people," "main- tenance of sick and maimed soldiers and mariners," and "educa- tion and preferment of orphans." Cook v. DuckenHeld, 2 Atk. 563. Powell V. Attorney General, iMtr'iY.A?). Attorney General v. Comber, 2 Sim. & Stu. 93. And in Rogers v. Thomas, 2 Keen, 8, in which Lord Langdale sustained a bequest "to the inhabit- ants of Tawleaven Row in the parish of Sethney," it had been found by a master that the row consisted of seven houses which were entirely occupied by poor fishermen and laborers and their families. In Cook V. DuckenHeld, 2 Atk. 563, in Paice v. Archbishop of 506 HUNT V. FOWLER. [CHAP. III. Canterbury, 14 Ves. 364, and in Pocock v. Attorney General; 3 Ch. D. 342, the testator plainly manifested his intention to devote his property to charitable uses; in the first case, by the words, "for such charitable uses and purposes as I shall direct by codicil or otherwise"; in the second case, by the words, "all the remainders of my different bequests I give and bequeath in trust for charitable purposes" ; and in the third case, by the words, "to such charitable institutions as I shall by any future codicil give the same"; and each case was decided upon that ground. 2 Atk. 569. 14 Ves. 371. 3 Ch. D. 346, 350. Salton- . stall V. Sanders, II. Allen, 458, 462. A gift of charitable or public purposes is good. Dolan v. Macdermot, L. R. 3 Ch. 676. But if the trustees are authorized to apply or distribute it to other purposes or persons, it is void. Chamberlain v. Stearns, Vezey v. Jamison, and Ellis v. Selby, before cited. The conclusion of the whole matter is, that, the testatrix having given the residue of her property to her executors in trust, and not having defined the trust sufificiently to enable the court to execute it, the plaintiff, being her next of kin, is entitled to the residue by way of resulting trust. Demurrer overruled.^ HUNT V. FOWLER. (121 ///. 269.) [Supreme Court of Illinois, 1887.] Appeal from Circuit Court, La Salle County. Sheldon, J. This was a bill in chancery filed by the heirs at law of Esther S. Chapman, deceased, against the attorney general of the state and the executors of the will of the decedent, to have a certain portion of the estate left by her declared to be intestate, and to belong to the complainants, as heirs at law of the decedent. The will, executed March 15, 1883, after making sundry bequests to various persons other than the com- plainants, concluded with. this residuary clause: "All the residue of my estate I devise and bequeath unto the legatees hereinbefore named, in equal proportions, excepting said Oakwood Seminary and said Sylvester M. Chapman." Subsequently, on April 5, 1885, the testatrix executed a codicil which contained this resi- CHAP. III.] HUNT V. FOWLER. 507 duary clause: ""AH the rest and residue of my estate, including that which may lapse for any cause, I direct to be invested or loaned upon the best terms possible, so as to produce the largest income, and said income to be distributed among the worthy poor of the city of La Salle, in such manner as a court of chancery may direct.'' Executors of the will were appointed. The de- cedent left both real and personal estate. The bill alleges that the city of La Salle is situated in the town of La Salle, and includes but a small portion of the territory of the town ; and that there is not now, nor has there ever bepn, in said city, any organization or association, voluntary or other- wise, for the distribution of charity to the poor of the city; and that the municipal. authorities have no duties imposed upon them to provide for the poor; and claims that the residuary clause of the codicil is incapable of execution by reason of the uncertainty of the beneficiaries intended by the testator, and void, and that, ^ in consequence, all the rest and residue of the estate, both real and personal, after the payment of the general and specific lega- cies, was intestate estate. A demurrer to the bill was interposed by the attorney general and the executors, which was overruled by the court, whereupon the executors answered, denying the. invalidity of the residuary clause of the codicil, or that it was incapable of execution, and setting up that, even if such were the case, the rest and residue of the estate must be distributed in accordance with the residuary clause of the will. Thereupon the bill was amended by making the residuary legatees specified in the will additional parties defendant. Subsequently a hearing was had upon pleadings and proofs, and a decree was entered finding that the residuary clause of the codicil was ineffectual to dispose of the property, but that it nevertheless revoked the residuary clause of the will, and declaring that the real estate of which the testatrix died seized belonged to the complainants as her heirs at law, and directing that the rest and residue of the personal estate should be distributed to the complainants as intes- tate estate. From this decree the attorney general, the executors, and a portion of the legatees specified in the residuary clause of the will have prosecuted this appeal. There is in American courts much diversity of decision upon the subject of charitable trusts. In express private trusts there is not only a certain trustee who holds the legal estate, but there is a certain specified cestui que trust' clearly identified, or made capable of identification, by the terms of the instrument creating 508 HUNT V. FOWLER. [CHAP. III. the trust. It is an essential feature of public or charitable trusts that the beneficiaries are uncertain, — a class of persons described in some general language, often fluctuating, changing in their individual numbers, and partaking of a quasi public character. 2 Pom. Eq. Jur. § 1018. In some of the states the equitable system of distinctively charitable trusts is not recognized, and the courts apply only the rules applicable to express private trusts. In other states the "statute of charitable uses" of 43 Eliz. c. 14, has been adopted or repealed, and thereby decisions have been influenced. And in other cases local legislation, or supposed local policy, to more or less extent, enters into adjudications. In another, and, . as believed, the larger, portion of the states, the system of charitable -trusts as administered in the English court of chancery, in the exercise of its ordinary judicial power, prevails, with variation in regard to the element of certainty in the trustee and the object of the charity. A classification of the decisions in the several states will be found in 2 Perry, Trusts, § 748, in note, and 2 Pom. Eq. Jur. § 1029, and note. The prerogative power of the crown, exercised through the lord Chancellor as the representa- tive of the king, as where there is a gift to charity generally, without appointment of a trustee, and the bounty is devoted to some particular charity, or where there is a gift to a particular charitable purpose which cannot be effectuated, and it is applied to some other charitable use, ty pres the original purpose, is re- garded not as a judicial, but a ministerial, prerogative function. This prerogative power courts in this country do. not assume to exercise. Were this subject of charitable trusts a new question with us, there would be opened up -a wide and interesting field of discus- sion, in order for the establishment of the proper rule in this regard. But we are saved labor in this respect, from the ground having heretofore been gone over by this court, and the rule applicable to charitable trusts having been established to' be that which is administered in the court of chancery in England, in the exercise of its ordinary Jurisdiction as a court of equity. This was done in the case of Heuser v. Harris, 42 111. 425, and where it was recognized that the statute of 43 Eliz. c. 4, had been adopted in this state. The entire contention in this case arises upon the construction, validity, and effect of this residuary clause of the codicil. It is insisted this clause is void for uncertainty, as to the beneficiaries. CHAP. III.] HUin' V. FOWLER. 509 This is not a bequest to charity generally, or to the J)Oor generally, but to the worthy poor of the city of La Salle. The class here is definite, — the worthy poor of the city of La Salle, — but the individuals of the class to whom the bounty is to be distributed are uncertain. There is always this uncertainty as to individuals, in "the case of public charities, and it is this feature of uncertainty which distinguishes public charities from private charities ; charitable 'trusts from private trusts ; and to hold char- ' itable gifts to be void because of such uncertainty is to reject this whole distinctive doctrine of charitable trusts. 2 Redf. WiUs, 544, (66). In the case of a charitable bequest it is immaterial how vague, indefinite, and uncartain the objects of the testator's bounty may be, provided there is a discretionary power vested in some one over its application to those objects. Domestic & F. M. Soc.'s Appeal, 30 Pa. 425 ; Perry, Trusts, § 732. It is denied that there is any such discretionary power here given, and White v. Fisk, 22 Conn. 31, is cited in support of such denial. The bequest in that case was : "Any surplus income that may rernain, to the extent of $1,000 per annum, I direct to be expended by my said trustees for the support of indigent, pious young men preparing for the ministry in New Haven." The decision was that the gift was void, as the objects of the benefaction were indefinite, and that no power was conferred on the trustees to make them definite by selection. This case, though meeting with seeming approval in Grimes^ Ex^rs v. Harmon, 35 Ind. 198, has been disapproved by other high authorities. See Perry, Trusts, §§ 713, 720, 748, note 1 ; 2 Redf. Wills (2d Ed.) p. 541, note; Hesketh v. Murphy, 2)6 N. J. Eq. 304. The latter case especially speaks of White v. Fisk as a case not likely to be followed. In Hesketh v. Murphy the testator's will empowered and di- rected the trustees to employ the annual income of the fund "for the relief of the most deserving poor of the city of Paterson aforesaid, forever, without regard to color or sex ; but no person who is known to be intemperate, lazy, immoral, or undeserving, to receive any benefit from the said fund." It was objected that the gift could not be applied to its objects and was void, because the will did not confer upon any one the power of ascertainment of the individuals who should receive the benefit of the bequest. But the court held that the power given the trustees by the will to distribute the fund carried with it, by necessary implication, the power to select the beneficiaries from the designated class, 510 HUNT V. FOWLER. [CHAP. III. and upheld the Bequest. We entirely agree with the criticism there made by Chief Justice Beasley upon the case of White v. Fisk, that there was a mistaken assumption on the part of the court in that case that there was no power to select the objects of the charity lodged by the testator in the trustee ; that when a power is conferred on the trustees to distribute the funds to members of a class, such members having certain qualifications which can be ascertained only by the exercise of judgment and discretion, as the act of distribution cannot be performed except after such ascertainment of the particular beneficiariesj the prin- cipal power to distribute the moneys carries with it the incidental and necessary power of selection; and this^, upon the ordinary doctrine that, when one act is authorized to be done by a trustee or other agent, every authority requisite to the doing of such act is, by intendment of law, comprised in such grant of power. See Pickering v. Shotwell, 10 Pa. St. 23, that the power in the trustee to act at its discretion need not be expressly given, if it can be implied from the nature of the trust. In the later case of Erskine v. Whitehead, 84 Ind. 357, the decision in Grimes v. Harmon does not seem to be approved in its full extent. In Heuser v. Harris, suprd, the bequest of money was "to the poor of Madison county," the interest only to be used, with no appointment of a trustee. As the county court of Madison county was charged by law with the support of the paupers in the county, it was held in that particular case that the poor of the county were its paupers, and that the fund should be held by the county court to be applied for the latter's support. It is not to be the inference from that case that a charitable bequest to the poor necessarily means to paupers, and that the trust is only to be executed by somebody charged by law with the support of paupers. "A bequest in trust for the pooi* inhabitants of a par- ticular place, parish, or town is a charitable trust for the poor not receiving parochial or municipal aid and relief as paupers, on the ground that the charity is for the poor, and jiot for the richj and, if it was applied to the maintenance of those supported by the parish, town, or county, it would relieve wealthy taxpayers from their taxes, and not materially aid the poor." Perry, Trusts, § 698. It is said in Redf. Wills (2d Ed.) 805, that some of the American cases have gone great lengths in carrying into effect the intention of the testator when there was great indefiniteness in the objects of the trust ; "that the want of a trustee in such CHAP. III.] HUNT I/. FOWLER. 511 cases is never any obstacle in the way of a court of equity carrying into effect any trust, and more especially one of a charitable character." Mr. Pomeroy, in speaking of the distin- guishing features between charitable and private trusts, says • that, in case of the former, "not only may the beneficiaries be uncertain, but that even when the gift is made to no certain trustee, so that the trust, if private, would wholly fail, a court of equity will carry the trust into effect either by appointing a trustee, or by acting itself in place of a trustee. 2 Pom. Eq. Jur. §§ 1025, 1026. And see Brown v. Kelsey, 2 Cush. 243 ; Wash- burn V. Sewall, 9 Mete. 280. There can be no question of the general rule. But it- is said it does not apply in a case where there is such indefiniteness as to beneficiaries as here. Numerous are the instances which might be cited where there was the want of a trustee, and the court executed- the trust in cases of equal indefiniteness as here as to the objects of the trust, — as in McCord v. Ochiltree, 8 Blackf. 15, where the legacy was for the education of the pious indigent youths ; in Bull v. Bull, 8 Conn. 47, where the executors were to dispose of the residue of the estate "among our brothers ' and sisters and their children as they shall judge shall be most in need of the same, — this to be done according to their best discretion, — and the executors died never having exercised the power, nor executed the trust; in Williams v. Pearson, 38 Ala. 299, where the beneficiaries named were "all the paupers and poor children of two designated 'beats,' whose parents were not able to support them"; in Howard v. American Peace Soc, 49 Me. 288, where the gift was to the suffering poor of the town of Auburn. Where a legacy is given to trustees to distribute in charity, and they all die in the lifetime of the testator, yet the legacy will be enforced in equity. 2 Story, Eq. Jur. § 1166. > An extended collection of cases on the general subject may be found in note to Hesketh v. Murphy, 35 N. J. Eq. 23, and. in 1 Jarm. Wills, 403, in note. Mr. Perry sums up, as the result of the principles and author- ities, that "a bequest for charity generally, * * * or to the poor generally, or to charity generally, with no trustees appointed, will not be carried into effect by the courts in this country." Perry, Trusts, § 729. That "if a testator makes a general and indefinite bequest to, charity, or to the poor, or to religion, and appoints no trustee, but plainly refers such appointment to the court, there would seem to be no impropriety in the court 512 HUNT V. FOWLER. [CHAP. III. appointing a trustee according to the plain intent of the donor, leaving such trustee to find his power in the will of the donor. But if a testator makes a vague and indefinite gift to charity, and names no trustee, and gives no power to the court to appoint one, there is no power in the American courts to administer such an inchoate and imperfect gift." Id. § 731. That "it is imma- terial h(3w uncertain the beneficiaries or objects are, if the court, by a true construction of the instrument, has power to appoint trustees to exercise the discretion or power of making the bene- ficiaries as certain as the nature of the trust requires them to be." Id. § 732. See, also, 2 Story, Eq. Jur. § 1169. In the present case the testatrix appoints no trustee to dis- tribute the fund, but expressly refers its distribution to a court of chancery. The power of distributipn, in our opinion, carries with it the power to select the individuals to whom distribution shall be made. The trustee appointed by the court to make the distribution will have the incidental power to select the bene- ficiaries, so that the case stands the same as if the testatrix herself had appointed a trustee to distribute the fund. The trustee to be appointed by the court will, in effect, be a trustee of her appointment made through the court of chancery. Courts incline strongly in favor of charitable gifts, and take special care to enforce them. As observed by Mr. Perry (section 687) , charitable bequests are said to come within that department of human affairs where the maxim ut res magis valeat quam pereat has been, and should be, applied; and, further (section 690), that until the statute of distributions (22 Car. IT. c. 13) was enacted; the ordinary was obliged to apply a portion of every intestate estate to charity, on the ground that there was a general principle of piety and charity in every man. This shows the favor in which charity is held in the law. There is to be the most liberal con- struction of the donor's intention in support of a charitable dona- tion. Charities have always received a more liberal construction than the law will allow in gifts to individuals. 2 Story, Eq. Jur. § 1165. The charity here is not vague and indefinite, but quite specific, — ^to the worthy poor of the city of La Salle. Individuals of the class named will ever be readily found to whom the fund may be distributed. The trust is not difficult of execution according to the intention of the testatrix. Instead of herself naming a trustee to make the distribution of her bequest,' the testatrix preferred that the distribution should be made by a court of CHAP. III.] RUSSELL V. ALLEN. 513 chancery, whose peculiar province it is to effect the administra- tion of trusts, and especially charitable trusts. There can be ho doubt that the execution of the trust by such court would be to effectuate the donor's intention, the aim which is always sought to be accomplished. Under the principles and the strong current of authorities which are properly applicable, we are fully satisfied that the bequest in question is a v?ihd charitable gift, and that it should be carried into effect by a court of chancery, as the testatrix expressly willed that it should be. The residuary clause of the codicil being held valid, it follows that the complainants take nothing as heirs at law, and are are not entitled to maintain their bill. The decree of the Circuit Court will be reversed, and the cause remanded to that court with directions to dismiss the, bill. Decree reversed. ScHOLFiELD, J. (disscnting). I do not concur in this opinion. I hold that courts of equity in this state exercise no prerogative powers, but, as contradistinguished therefrom, only judicial powers; that, not exercising prerogative powers, the court could not, by the act of the individual, be, and here is not, invested with a power not judicial, namely, that of selecting or designating the "worthy poor" to be the recipients of the testatrix's bounty ; and thatj since it has not been and could not be invested with such power, it cannot appoint and invest a trustee with such pqwer. I concede the testatrix might have invested a trustee with such power, leaving and directing the court to appoint the trustee; but that is a very different case. 2. The Rule Against Perpetuities. RUSSELL -V. ALLEN. (107 U. S. 163.) (Supreme Court of the United States, 1882.) Appeal from the Circuit Court of the United States for the Eastern District of Missouri. The case is stated in the opinion of the court. Me. Justice Gray delivered the opinion of the court. This is a bill in equity, filed on the 16th of April, 1878, by two of 514 RUSSELL Z/. ALLEN. [CHAP. III. the heirs at law and next of kin of William Russell, of St. Louis, against Thomas Allen, to establish a trust in favor of Russell's heirs at law and next of kin, and for an account. The bill alleges that on the 19th of July, 1855, William Russell and John S. Horner executed four indentures of trust, by each of which Russell, in consideration of one dollar paid, "and for divers other good and valuable considerations, but chiefly for the purpose of founding an institution for the education of youth in St. Louis county, Missouri," granted and conveyed to Horner, his executors and administrators or successors, in trust forever, certain lands and personal property in the state of Arkansas, to have and to hold the same unto, him, his executors, administra- tors and successors, in trust "to and for the following uses and purposes, to-wit: The said property is conveyed for the use and benefit of the Russell Institute of St. Louis, Missouri" ; and empowered and directed him and them to sell the same as soon as conveniently might be, and to account for and pay over the proceeds yearly or oftener, deducting the reasonable expenses of executing the trust, "to Thomas Allen, president of the board of trustees of the said Russell Institute at St. Louis, Missouri, and his receipt therefor shall be a full discharge of the said party of the second part for the amount so paid and the application thereof"; and Horner's trust to be brought to a close and the net proceeds paid over as soon as conveniently might be, and if not concluded within ten years, the property remaining undisposed of to be sold by public auction and the proceeds paid over as before required. In each of the four indentures refer- ence was made to the three others, and it was "declared that all of said conveyances, including this, are made to one and the same person for one and the same use and purpose, and that the same are and are to be deemed and taken and accounted for as one trust, according to the conditions of the deeds respectively, it having been intended by said deeds and this present one to convey all of the remaining property of the said William Russell in the said state of Arkansas to the said party of the second part, to and for the use and benefit of the said Russell Institute of St. Louis, Missotiri." After this clause, in one of the indentures, were added the words, "represented by their president as afore- said." Each indenture contained a covenant by Horner "faith- fully to perform the trust hereby created." The bill further alleges that Horner, in the execution of his trust, has converted a large portion of the property into money. CHAP, m.] RUSSELL Z/. ALLEN. 515 has paid over to Allen the sum of about $50,000, and has con- veyed and transferred to Allen the property remaining unsold, and that Allen holds and controls the whole fund, and has never applied to any court for aid in the disposition and application thereof, and has in no way used or recognized the fund as held by him in trust for the uses declared by Russell. The bill further alleges that there was not, at the time of the execution of the indentures aforesaid, nor before or since, any such educa- tional institution as was referred to therein; that at the time of such execution Russell was from paralysis infirm in body and weak in mind; and that, while he then manifestly purposed to found such an institution, yet in his increasing incapacity of body and mind during the short period that intervened between that time and his death he failed to accomplish his philanthropic purpose ; that he died in 1856, without ever having founded such an institution, or delegated to Horner or to Allen, or to any other person or corporation, authority to organize a Russell Institute, and that no such authority has hitherto been exercised or claimed by any person or corporation, and there is and has been no donee capable of receiving, holding and administering the trust fund created by the indentures; that the beneficiaries of the trust, so far as can be determined by the terms of the indentures, are uncertain and indefinite, and the trust is invalid, and, there being no debts outstanding against Russell's estate, the trust fund belongs to his iiext of kin. To this bill Allen filed a general demurrer, which was sustained and the bill dismissed. 5 Dill. 235. The plaintiffs appealed to this court. Pending the appeal, Allen has died, and his executors have been made parties in his stead. The deeds of gift state that they are made "chiefly for the purpose of founding an insti- tution for the education of youth in St. Louis county, Missouri" ; they convey the property to Horner and his successors in trust "for the use and benefit of the Russell Institute of St. Louis, Missouri" ; they direct him to sell the property and account for and pay over the proceeds "to Thomas Allen, president of the board of trustees of the said Russell Institute of St. Louis, Missouri," whose receipt shall be a full discharge of Horner; and they end by declaring that all these conveyances shall be deemed, taken and accouiited for as one trust, and that it is the intention of the donor to convey the property included in all of them "to and for the benefit of the Russell Institute of St. 516 RUSSELL V. ALLEN. [CHAP. III. Louis, Missouri," to which one of the deeds adds, "represented by their president as aforesaid." The donor thus clearly manifests his purpose to found an institution for the education of youth in St. Louis, to be called by his name; and he executes this purpose by conveying the property to Horner in trust, to hold and convert into money and pay that money to the officers of the institute when incor- porated and a board of trustees appointed. The direction to pay the money to Allen, as president of the board of trustees, and the mention, at the close of one of the deeds, of the institute as represented by its president as aforesaid, clearjy show that the fund is not to be paid to Allen individually; and while they imply the donor's wish that Allen should be the first president of the board of trustees of the institute, they do not make his appointment to and acceptance of that office a condition of the validity of the gift or of the carrying out of the donor's char- itable purpose. The terms of the deeds clearly show that the donor did not contemplate or intend doing any further act to perfect his gift. It is not pretended that the allegation in the bill as to his weakness of body and mind amount to an allegation of insanity, and they are irrelevant and immaterial. The principal grounds upon which the plaintiffs seek to main- tain their bill are that the deeds create a perpetuity; that the uses declared are not charitable; and that, if the uses declared are charitable, there are no ascertained beneficiaries and no donee capable of assuming and administering the trust, and the uses are too indefinite to be specifically executed by^ a court of chancery. But these positions, as applied to the facts of the case, are incon- sistent with the fundamental principles of the law of charitable uses, as established by the decisions of this and other courts exer- cising the ordinary jurisdiction in equity. By the law of England from before the statute of 43 Eliz. c. 4, and by the law of this country at the present day (except in those states in which it has been restricted by statute or judi- cial decision, as in Virginia, Maryland and the more recently in New York), trusts for public charitable purposes are upheld under circumstances under which private trusts would fail. Being for objects of permanent interest and benefit to the public, they may be perpetual in their duration, and are not within the-rule against perpetuities ; and the instrument creating them should be so construed as to give them effect, if possible, and to carry out the general intention of the donor, when clearly manifested, even CHAP. III.] RUSSELL V. ALLEN. 517 if the particular form or manner pointed out by him cannot be followed. They may, and indeed must, be for the benefit of an indefinite number of persons; for if all the beneficiaries are personally designated, the trust lacks the essential element of indefiniteness, which is one characteristic of a legal charity. If the founder describes the general nature of, the charitable trust, he may leave the details of its administration to be settled by trustees under the superintendence of a court of chancery; and an omission to name trustees, or the death or declination of the trustees named, will not defeat the trust, but the court will appoint new trustees in their stead. The previous adjudications of this court upon the subject of charitable uses go "far towards determining the question pre- sented in this case. As the .extent of these adjudications have hardly been appreciated, it will be convenient to state the sub- stance of them. The case of Baptist Association v. Hart, 4 Wheat. 1, in which a bequest by a citizen of Virginia "to the Baptist Association that for ordinary meets at Philadelphia annually," as "a per- petual fund for the education of youths of the Baptist denomina- tion who shall appear promising for the ministry," was declared void, was decided upon an imperfect survey of the early English authorities, and upon the theory that the English law of char- itable uses, which, it was admitted, would sustain the bequest, had its" origin in the statute of EHzabeth, which had been repealed in Virginia. That theory has since, upon a more thorough examination of the precedents, been clearly shown to be erro- neous. Vidal v. Girard, 2 How. 127 ; Perin v. Carey, 24 Id. 465 ; Ould v. Washington Hospital, 95 U. S. 303. And the only cases in which this court has followed the decision of Baptist Asso- ciation v. Hart have, like it, arisen in the state of Virginia, by the 'decisions of whose highest court charities, except in certain cases specified by statute, are not upheld to any greater extent than other trusts. Wheeler v. Smith, 9 How. 55 ; Kain v. Gib- boney, 101 U. S. 362. In Beatty v. Kurtz, 2 Pet. 566, the owners of a tract of land (afterwards part of Georgetown) laid it out as a town, and made and recorded a plan of it, marking one lot as "for the Lutheran Church"; and the Lutherans of the town, a voluntary society not incorporated, erected and used a building upon this lot as a church for public worship, and fenced in and used the land for a church-yard, for the burial of others as well as for 518 RUSSELL Z'. ALLEN. [CHAP. III. Lutherans, for fifty years. Upon these facts, it was held that the Bill of Rights of Maryland, affirming the validity "of any sale, gift, lease, or devise of land, not exceeding two acres, for a church and burying ground, recognized, to this extent at least, the doctrine of charitable uses, under which no specific grantee or trustee was necessary; that this land had been dedicated to a charitable and pious use, beneficial to the inhabitants generally, which might at all times have been enforced through the inter- vention of the government as parens patriae, by its attorney general "or other law officer ; and that a committee of a society' might maintain a bill in equity to restrain -by injunction the heirs of the original owners from disturbing that use. In Inglis v. Sailors' Snug Harbor, 3 Pet. 99, a citizen of New York devised land to the chancello;- of the state, the mayor of the city, and others, designating them all by their official titles only, and to their respective successors, in trust out of the rents and profits to build a hospita^ for aged, decrepit and worn-out sailors, as soon as the trustees should judge that the proceeds would support fifty such sailors, and to maintain the hospital . and support sailors therein forever; and further declared it to be his will and intention, that if this could not be legally done without an act of incorporation,, the trustees should apply to the legislature for such an act, and that the property should at all events be forever appropriated to the above uses and purposes. An act incorporating the trustees was passed, and the hospital was established. A majority of the court held that the trustees took personally and not in their official capacities, and that upon their incorporation the legal title vested by way of executory devise in the corporation as against the heirs at law; and the dissenting judges dififered only as to the legal title, and not as to the validity of the charitable trust. In McDonogh v. Murdoch, 15 How. 367, a citizen of Louisiana, declaring his chief object to be the education of the poor of the cities of New Orleans and Baltimore, made a devise and bequest to the two cities, one-half to each, the income to be applied by boards of- managers, who should be appointed by either city, but whose powers and duties he defined, and who should obtain acts of incorporation, if necessary, for the education of the poor and other charitable purposes, in various ways specified. And in case the two cities should combine together and knowingly and wilfully violate the conditions, then he gave the whole property to the states of Louisiana and Maryland, in equal halves, "for CHAP. III.] RUSSELL V. ALLEN. 519 the purpose of educating the poor of said states under such a general system of education as their respective legislatures shall establish by law." The court held that the devise to the cities was valid, and that the testator's directions as to the manage- ment of the income "must be regarded as subsidiary to the general objects of his will, and whether legal and practicable, or otherwise, can exert no influence over the question of its validity" ; and expressed the opinion that the failure of the devise to the cities would not have benefited the heirs at law, for in that event the limitation over to the states of Louisiana and Maryland would have been operative. 15 How. 404, 415. In Fontain v. Ravenel, 17 Id. 369, a testator residing at the time of his death itf Pennsylvania, appointed his wife and three others to be executors of his will, and authorized his executors or the survivors of them, after the death of his wife, to dispose of the residue of his estate "for the use of such charitable insti- tutions in Pennsylvania or South Carolina as they or he may deem most beneficial to mankind, and so that part of the colored population in each of the said states of Pennsylvania and South Carolina shall partake of the benefits thereof." In that case, the testator had not himself defined the nature of the charitable uses, nor authorized any one but his executors to designate them; and the point decided was that, they having all died without doing so, the Circuit Court of the United States for the District of Pennsylvania could not sustain a bill to establish them, filed by charitable institutions in Pennsylvania and South Carolina in the name of the administrator de bonis non and next of kin of the testator. The question there was, whether the authority of a court of chancery, under such circumstances, belonged to its ordinary jurisdiction over trusts, or to its prerogative power under the sign manual of the crown, which last has never been introduced into this country. See Boyle on Charities, 238, 239 ; Jackson v. Phillips, 14 Allen (Mass.), 539, 576, 588. No ques- tion of the validity of the gift as against the next of kin was presented ; and even Chief Justice Taney, who, dififering from the rest of the court, alone asserted that "if the object to be benefited is so indefinite and so vaguely described that the bequest could not be supported in the case of an ordinary trust, it cannot be established in a court of the United States upon the ground that it is a charity," distinctly admitted that a suit by an heir or representative of the testator to recover property or money bequeathed to a charity could not be maintained in a court of 520 RUSSELL V. ALLEN. [CHAP, III. the United States if the bequest was valid by the law of the state. 17 How. 395, 396. Accordingly, in Lorings v. Marsh, 6 Wall. ZZ7, the court dismissed a bill by the next of kin to set aside a bequest by a citizen of Massachusetts "in trust for the benefit of the poor," by means of such incorporated charitable institu- tions as should be designated by three persons appointed by the trustees or their successors; such a bequest being valid under the law of Massachusetts as habitually administered in her courts. In United States v. Fox, 94 U. S. 315, this court, affirming the judgment of the Court of Appeals of New York in 52 N. Y. 530, held a devise of land in New York to the United States, for the purpose of assisting to discharge the debt contracted by the war for the suppression of the Rebellion, to be invalid, solely because by the law of New York, as declared by recent decisions of the Court of Appeals, none but a natural person, or a corporation created by that state with authority to take by devise, could be a devisee of land in that state. Where not prohibited by statute, a devise or bequest for such a purpose is a good charitable gift. Nightingale v. Goulburn, 5 Hare, 484, and 2 Phillips, 594; Dickson v. United States, 125 Mass. 311. In Ould v. Washington Hospital, 95 U. S. 303, a citizen of Washington devised land in the District of Columbia to two persons named, in trust to hold it "as and for a site for the , erection of a hospital for foundlings," to be built by a corporation to be established by act of Congress and approved by the trustees or their successors, and, upon such incorporation, to convey the land to the corporation in fee. It was contended for the heirs at law that the devise was void, because it was to a corporation to be established in the future, and might not take effect within the rule against perpetuities, and because of the uncertainty of the beneficiaries ; and reference was made to the Maryland Statute of Wills of 1798, still in force in the District of Columbia, pro- viding that no will should "be effectual to create any interest or perpetuity, or make any limitation, or appoint any uses, not now permitted by the constitution or laws, of the state," and to a series of decisions in Maryland, holding that the Statute of Elizabeth was not in force in that state, and that charitable uses were there governed by the same rules as private trusts. But those decisions having been made since the separation of the District of Columbia from the state of Maryland, the court held that the case must be determined upon general principles of jurisprudence, and that the devise was valid. CHAP. III.] RUSSELL V. ALLEN. 521 The objection to the validity of the gift before us, as tending to create a perpetuity, is fully met by the cases of IngUs v. Sailors' Snug Harbor, McDonogh v. Murdoch, and Ould v. Washington Hospital, above cited, which clearly show that a gift in trust for a charity not existing at the date of the gift, and the beginning of whose existence is uncertain, or which is to take effect upon a contingency that may possibly not happen within a life or lives in being and twenty-one years afterwards, is valid, provided there is no gift of the property meanwhile to or for the benefit of any private corporation or person. Those cases are in accord with EngUsh decisions of the highest authority, of which it is sufficient to refer to the leading case of Downing College, reported tftider the name of Attorney General v. Down- ing in Wilmot, 1 Dick. 414, and Ambler, 550, 571, and under the name of Attorney General v. Bowyer in 3 Ves. 714,_ 5 Id. 300, and 8 Id. 256, and to the recent case of Chamberlayne v. Brockett, Law Rep. 8 Ch. 206. See, also, Sanderson v. White, 18 Pick. (Mass.), 328, 336; Odell v. Odell, 10 Allen (Mass.), 1. That the gift is for a charitable use cannot be doubted. All gifts for the promotion of education are charitable, in the legal sense. The Smithsonian Institution owes its existence to a bequest of James Smithson, an Englishman, "to the United States of America, to found at Washington, under the name of Smith- sonian Institution, an establishment for the increase and diffusion of knowledge among men." See Act of Congress of July 1, 1836, c. 252 ; August- 10, 1846, c. 178. This was held by Lord Langdale. Master of the Rolls, in United States v. Drummond, decided in 1838, to be a good charitable bequest. The decision on this point is not -contained in the regular reports, but appears by the letters of Mr. Rush, then Minister to England (printed in the documents relating to the origin and history of the Smithsonian Institution, published by the institution in 1879), to have been made after full argument in behalf of the United States by Mr. Pemberton (afterwards Mr. Pemberton Leigh and Lord Kings- down), and on deliberate consideration by the Master of the Rolls. History of Smithsonian Institution, 15, 19, 20, 56, 58, 62. And it was cited as authoritative in Whicker v. Hume, 7 H. L. Cas. 124, 141, 155, in which the House of Lords held that a bequest in trust to be applied, in the discretion of the trustees, "for the benefit and advancement and propagation of education and learning in every part of the world, as far as circumstances 522 RUSSELL V. ALLE>r. [CHAP. III. will permit," was a valid charitable bequest and not void for uncertainty. v "Schools of learning, free schools, and scholars in universities," are among the charities enumerated in the Statute of Elizabeth ; and no trusts have been more constantly and uniformly upheld as charitable than those for the establishment or support x)f schools and colleges. Perry on Trusts, Sec. 700. That the gift "for the purpose, of founding an institution for the education of youth in St. Louis county, Missouri," to be managed by a board of trustees, is sufificiently definite, is shown hj the decisions of this court in Perin v. Carey, and Ould v. Washington Hospital, above cited, as well as by that of the House of Lords in Dundee Magistrates v. Morris, 3 Macq. 134. The law of Missouri, as declared by the Supreme Court of that state, sustains the validity of this gift. In Chambers v. St: Louis, 29 Mo. 543, a devise and bequest to the city of St. Louis, in trust "to be and constitute a fund to furnish relief to all poor emigrants and travellers coming to St. Louis on their way bona fide to settle in the West," which was objected to for indefinite- ness in the object, as well as for want of capacity in the trustee to take, was held to be valid. And in Schmidt v. Hess, 60 Id. 591, a grant of a parcel of land to the Lutheran Church for a burial ground was held to be a valid charitable gift, which equity would execute by compelling a conveyance to the trustees of a church, proved to be the church intended by the testator, although it was not incorporated at the time of the gift. We have been referred to nothing having any tendency to show that the law of Arkansas, in which the lands granted lie, is different. The money paid and the lands conveyed by Horner to Allen stand charged in the hands of Allen and his executors with the same charitable trust to which they were subject in the hands of Horner. Steps to organize such an institution as is described in the deeds may be taken by the attorney general or other public officer of the state, or by individuals. Whenever an institute for the education of youth in St. Louis shall have been incorpor- ated and shall claim the property, it will then be a matter for judicial determination in the proper tribunal whether it meets the requirements of the gift. The only question now presented is of the validity of the gift as against the donor's heirs at law and next of kin. Decree affirmed. CHAP. III.] ODELL V. ODELL. 523 ODELL z;. ODELL. (10^//. 1.) [Supreme Judicial Court of Massachusetts, 1865.] Bill in equity, filed by Charles Odell, one of. the executors named in the will of Thomas F. 'Odell, and who had been ap- pointed executor and trustee under it, to obtain the instructions of the court as to tlie validity and effect of the following article in the will : "6th. I give to the Trustees of the Salem Savings Bank in trust one hundred dollars annually for fifty years, to be paid to them by my executors, to be safely invested by said trustee,' the interest to be added to the principal by them semi-annually. At • the expiration of fifty years the sum which shall have accumu- lated shall be appropriated by a society of ladies from all the Protestant religious societies in Salem "to provide and sustain a home for respectable destitute aged native-born American men' and women. The above annual payment shall be made from the income of my real estate, which real estate shall be held in trust by my executors until the last payment shall have been made to the trustees of the Salem Savings Bank; then my real estate shall be divided equally among the grandchildren of my late brother James." The testator further directed his executors to pay to the widow of his brother James, from the yearly income of his real estate, two hundred dollars annually during her natural life; and the residue of said income, "after making the foregoing payments and paying all necessary expenses," among the children of his said brother, of whom the plaintiff was one, and who were also his heirs at law. The will contained several legacies which do not afifect this case, and no residuary devise or bequest. The real estate of which the testator died seised had been appraised at the value of $11,200. Answers were filed by the Trustees of the Salem Savings Bank, a corporation duly established by law of the Common- wealth, who insisted that the bequest to them is valid, but de- 524 ODELL V. ODELL. [CHAP. III. clined the trust thereby created, and prayed that a new trustee might be appointed in their stead; and by all the children of James Odell except the plaintiif, who alleged that the sixth arti- cle in the will was inoperative and void, and that said children were entitled to all the income of the real estate, except the an- nuity to the widow of James Odell, during her lifetime, and to the real estate itself upon her death. /. W. Perry, (C. Kimball with him,) for the heirs at law. Text books and judges have incidently remarked, as in 7 Allen, 247, that charities are not obnoxious to the rule against perpe- tuities; but by this it is merely intended that a present gift to a charity, to be perpetual, is not void for that reason. It was never- intended by this expression that an executory devise to a charity which is not to vest within the required time is good be- cause it is to a charity. If this were so, the rule as to executory devises would be as follows: "Property given by Way of execu- tory devise must vest within a life or lives in being, and twenty- one years and nine months, unless the gift is to a charity, in which case there is no limit." This exception is nowhere to be found. See •Company of Pewter ers v. Christ's Hospital, 1 Vern. 161 ; Attorney General v. Gill, 2 P. W. 369 ; Hillyard V. Miller, 10 Penn. State R. 326. Trusts for accumulations are governed by the same rules and reasons as executory devises, in the absence of statute provi- sions to the contrary. Thellusson v. Woodford, 4 Ves. 227; S. C 11 Ves. 112. Brattle Square Church v. Grant, 3 Gray, 142. 1 Jarman on Wills, (4th Amer. ed.) 220-222, 265. And if a testator takes an absolute term longer than twenty-one years, without embracing a life, for an accumulation, the devise is void, because the life might not have lasted for an hour. This, rule applies to accumulations for charities as well as for indi- viduals, because the rule is analogous to the rule in relation to executory devises, and the public inconvenience is as serious from accumulations for charity as for any secular purpose. ~ If this is not the rul.e^ large sums may be given to accumulate for indefinite periods, for future charities, and finally absorb and control all the property in the Commonwealth. If this bequest for accumulation is void for the fifty years, it is void in toto, and the court cannot establish the gift to accu- mulate for a less period. Lewis on Perp. 592. 2 Roper on Leg. 1557. This was modified in England by St. 39 & 40 Geo. III. c. 98 ; but we have no similar statute. CHAP. III.] ODELL V. ODELL. 525 The question then arises, whether the gift itself is void, as well as the direction to accumulate for fifty years. It is possi- ble that a present gift to a charity might be sustained, though the directions for its management were impossible or illegal. Williams v. Williams, 4 Selden, 538. In the will now undpr consideration, no principal sum is given at all, but a portion of the income of the real estate, year by year. The whole fund is accumulation; and the direction to accumulate is so interwoven with the substance of the bequest that it cannot be stricken out without destroying the bequest. Wilson v. Lynt, 16 How. Pract. R. (N. Y.) 348. The ownership of the fund is suspended for fifty years; and it amounts simply to an executory. devise. This being void, the Safings Bank, as the first taker, would take the whole fund; but they are mere naked trustees, and therefore the trust results to the heirs at law and is void. Southampton v. Hertford, 2 Ves. & B. 64. Boughton v. James, 1 Colly, Ch. 45. The court can have no control over this trust for fifty years, as there are no possible objects of the charity interested in it during that time. And savings banks are not allowed by law to take such trusts. G. Wheatland, for Salem Savings Bank. Gray, J. "Relief of agedj impotent and poor people" is the first charitable use mentioned in the St. of 43 Eliz. c. 4 ; and it is not denied that the declared purpose of this testator "to pro- vide and sustain a home for respectable, destitute, aged, native- born American men and women" was strictly charitable, in the eye of the law. But it has been strongly and ably argued that the accumulation directed by the will -would prevent the money bequeathed for this object from being used for any purpose whatever until a period more remote than the policy of the law will allow, and that the bequest is therefore void. The law of perpetuities and accumulations, as applied to indi- viduals, is well settled. By the common law of England and of this commonwealth, no estate, legal or equitable, can be created by deed or will, to vest upon the happening of a contin- gency which may by possibility not take place within a life or lives in bejng (treating a child in its mother's womb as in being, because in law capable of inheritance) and twenty-one years afterwards. This limit is said to have been adopted by analogy to the ordinary limitations in strict settlement for the life of a tenant in tail and the possible minority of his heir; but the life or lives need not be those of any person interested in the estate, 526 ODELL V. ODELL. [CHAP. III. provided only, in the words of Lord Hale, "the candles are lighted all at once;" nor need the term of twenty-one years refer- to the infancy of any person whatever. The reason of the rule is that to allow a contingent estate to vest at a more remote period would tend to create a perpetuity by making the estate inialienable ; for the title of the first taker would not be perfect, and until the happening of the contingency it could not be as- certained who was entitled, and so the estate could not alien- ated, even, as has been said, if all mankind should join in the 'conveyance. Brattle Square Church v. Grant, 3 Gray, 142, Smith v. Harrington, 4 Allen, 566. Fosdick v. Fosdick, 6 Allen, 41. Blake v. Dexter, 12 Cush. 570. 2 Spence on Eq. c. 2. Alford's case, O. Bridgm. 587. At common law, the power of controlling the rents and profits was coextensive with the power to dispose of the estate which produced them, the limit of the accumulation of annual income was the same as the limit of the creation of future estates, and the enjoyment of the profits could not be suspended for a longer period than the full power of alienating the estate itself. Thel- lusson V. Woodford, 4 Ves. 227; 5*. C. 11 Ves. 112. Hooper v. Hooper, 9 Cush. 122. Thorndike v. Loring, 15 Gray, . Accu- mulation even to this extent has been found so inconvenient as to have been still further restrained by statute in England and in some of the United States. The St. of 39 & 40 Geo. III. c. 98, occasioned by the case of Thellusson v. Woodford, just cited, and therefore commonly called the Thellusson Act, established narrower limits, beyond which no person should by any deed, will, "or otherwise howsoever, settle or dispose of any real or personal property"' so that the income thereof should be wholly or partly accumulated, except in certain cases, among which charitable trusts were not specified. And Vice Chancellor Shad- well held that a will made since that act, directing an indefinite accumulation for a charitable purpose, could not be carried out in the mode prescribed. Martin v. Margham, 14 Sim. 230. But as there is no statute upon the subject in Massachusetts, accumu- latioris are here still governed by the rules of the common low. The rule of public policy, which forbids estates to be indefi- nitely inalienable in the hands of individuals, does not apply to charities. These, being established for objects of public, general and lasting benefit, are allowed by the law to be as permanent as any human institution can be, and courts will readily infer an intention in the donor that they should Ise perpetual. 1 Spence CHAP. III.] ODELL V. ODELL. 527 on Eq. 588. Mayor, &c. of Bristol v. Whitson, Dwight's Charity Cases, 171. Magdalen College v. Attorney General, 6 H. L. Cas. 205. Perin v. Carey, 24 How. 465. King v. Parker, 9 Cush. 82. Dexter v. Gardner, 7 Allen, 246. If an alienation of the estate becomes essential to the beneficial administration of the charity, it may be authorized by a court of chancery. Tudor on Charitable Trusts, 298, and cases cited. Shotwell v. Mott, 2 Sandf. Ch. 55. Wells v. Heath, 10 Gray, 27. Many charitable devises have been defeated in England under the St. of 9 Geo. II. c. 36, prohibiting alienations or dispositions of land to charitable uses, unless by deed made twelve months and enrolled in chancery six months before the donor's death. But that statute, l!ke some earlier mortmain acts, was wholly English, dictated by considerations of local policy, and did not exterid to Scotland, Ireland or the Colonies. lb. § 6, ad fin. Tudor on Charitable Trusts, 94, 96, and cases cited. 4 Dane Ab. 5, 238, 239. 2 Kent Com. (6th ed.) 282, 283. Perin v. Carey, 24 How. 500. The similar provision in the Prov. St. of 28 Geo. II. c. 9, passed in the Province of Massachusetts Bay at a time when the influence of England was strongest, was re- pealed immediately after the Revolution, and has not been reen- acted in this commonwealth. St. 1785, c. 51. Bartlet v. King, 12 Mass. 545. The reasons for maintaining and perpetuating charities certainly do not diminish with the abolition of the right of primogeniture, the disuse of entails, and the more equal division and distribution of property. If a devise in fee for the benefit of a charity is accom- panied by an executory devise over to individuals upon the hap- pening of a contingency which may possibly not occur within the time prescribed by the rule against perpetuities, the devise over is void, for the reason that until the contingency happens it cannot be ascertained in whom the title will be. Wells v. Heath, 10 Gray, 25, 26. And if a gift is made in the first in- stance to an individual, and then over, upon a contingency which may not happen within the prescribed limit, to a charity, the gift to the charity is void, not because the charity could not , take at the remote period, but because it tends to create a per- petuity in the individual who is the first taker, by making the estate inalienable by him beyond the period allowed by law. Company of Pewterers v. Christ's Hospital, 1 Vern. 161. Com- missioners of Donations v. De Clifford, 1 Drury & Warren, 254. Within the same class fall cases of gifts of an annuity to A. 528 ODELL V. ODELL, [CHAP. III. and his heirs, or of personal property to A. and the heirs of his body, and then over to a charity, in which the gifts over have been held void as too remote. Attorney General V. Gill, 2 P. W. -369. Attorney General v. Hall, W. Kel. 13. The decision in Attorney General V. Gill indeed can hardly be maintained upon the facts stated in the report, inasmuch as in that case A. died before the testator, so that the estate, .according to modern decis- ions, would seem to have vested immediately in the charity. Bur- bank V. Whitney, 24 Pick. 146. 1 Jarman on Wills, (4th Amer. ed.) 256, 257. But a gift may be made in trust for a charity not existing at the date of the gift, and the beginning of whose existence is un- certain, or which is to take effect upon a contingency which may possibly not happen within a life or lives in being and twenty-one years afterwards, provided there is no gift of the property meanwhile to or for the benefit of any individual or any private corporation. In the case of Downing College, a gift to trustees to buy ground, obtain a royal charter and found the college, was established twenty years after the testator's death by Lord Northington and Lord Carpden, after taking the opinion of Lord Chief Justice Wilmot and Sir Thomas SeweU, M. R. ; followed up by decrees of Lord Loughborough thirty years later, after five unsuccessful applications to the crown for a charter; and a charter was not in fact obtained until more than fifty years after the death of the testator, after which further directions in the cause were made by Lord Eldon. Attorney General v. Downing, Wilmot, \; S. C. Dick. 414 ; Ambl. 550, 571. Attorney General v. Bowyer, 3 Ves. 714; 5". C. 5 Ves. 300; 8 Ves. 256. So Lord Thurlow held that a legacy for the purpose of establishing a bishop in America was good, although none had yet been appointed. Attorney General V, Bishop of Chester, 1 Bro. C. C. 444. In Inglis v. Sailors'' Snug Harbor, 3 Pet. 99, a devise and bequest in trust out of the rents and profits to build a sailors' hospital as soon as the trustees should judge that the proceeds of the estate would sup- port fifty or more sailors, (first obtaining an act of incorpora- tion, if necessary,) and to use the income of the property for- ever for supporting the hospital and maintaining sailors therein, was sustained by the supreme court of the United States; and although there was some difference of opinion among the judges upon other points, none of them expressed any doubt of the validity of the disposition upon the ground of remoteness. And CHAP. III.] ODELL V. ODELL. 529 in Sanderson v. White, 18 Pick. ^36, Chief Justice Shaw said, "When a gift is made with a view to found a hospital or college, not in being, and which requires a future act of incorporation, the gift is nevertheless valid, and the law will sustain it and carry it into effect." Upon this principle it has been held in England that if a gift is made to one charity in the first instance, and then over to another charity upon the happening of a contingency which may not take place within the limit of the rule against perpetuities, the limitation over to the second charity is good, because no in- dividual is concerned, and no private use involved ; the estate is no more perpetual in two successive charities than in one charity; and so the* law against perpetuities and remoteness has no 'application, and there is nothing to restrain the donor from affixing such limitations and contingencies, in point of time, to his charitable gift, as he pleases. Society for Propagation of the Gospel v. Attorney General, 3 Russ. 142. Christ's Hospital v. Grainger, 16 Sim. 100; S. C. 1 Macn. & Gord. 464; 1 Hall & Twells, 539. A similar decision has been made by the supreme court of the United States under the civil law as established in Louisiana. McDonough v. Murdoch, 15 How. 367. We are thus brought to the question, how far the rule of law limiting the period of accumulation applies to charitable gifts. Any directions for accumulation for the benefit of indi- viduals until the happening of a contingency which by possi- bility may not take place within the period prescribed by the rule against perpetuities are void. But there are. many cases in which the law has been assumed to be different as applied to charities. , In 1788 Ralph Bradley, an eminent lawyer, made his will, by which he gave his personal property in trust to pay £500 a year for twenty years from the end of three years after his death, and then £1000 a year until the 5th of January 1860, or seventy years after his death, and then the whole income of the accumulated fund, to purchase such books, to be disposed of in Great Britain or the British dominions, as might have a tendency to promote the interests of virtue and religion and the happiness of man- kind. Lord Thurlow held this too indefinite in its objects to be established as a charity. But neither he, nor Sir William Grant nor Lord Eldon, when expressing grave doubts of the correctness of that decision, ever doubted the lawfulness of the direction for accumulation, although the time of accumulation was mentioned in the argument before Sir William Grant, and 530 ODELL V. ODELL. [CHAP. III. Lord Eldon expressly referred to the fact that Mr. Bradley's intention was that the fund should be accumulated for many years. Browne v. Yeall, 7 Ves. 50 n.; S. C. cited in 9 Ves. 403, 406, and 10 Ves. 27, 534, 539. In one case indeed the house of lords, upon the advice of Lord Wynford, held that a gift of property to accumulate until it should amount to the sum of pounds sterling, and then to be employed in erecting and maintaining a hospital for the support, clothing and education of boys, was void. Ewen V. Bannerman, 2 Dow & Clark, 74; 5". C. nom. Ewen v. Magis- trates of Montrose, 4 Wilson & Shaw, 346. But that case, ac- cording to the opinions of Lords Chelmsford and Wensleydale, is to be supported (if it can be supported at all) upon the ground that the blanks left the gift too incomplete and uncertain to be carried into execution. Magistrates of Dundee v. Morris, 3 Mac- queen, 154, 155, 174. See also Henshaw v. Atkinson, 3 Madd. 310, 313; Philpott v. St. George's Hospital, 6 H. L. Cas. 359, 360, 369; Inglis v. Sailors' Snug Harbor, above cited; District Attorney v. Gushing, 2 Cush. 519. Count Rumford in 1796 gave the sum of five thousand dollars to the American Academy of Arts and Sciences in trust to pay the interest biennially as a premium to the author of the discov- ery or improvement oji heat or light; most beneficial to mankind, which should be published in America during the two years next preceding, and directed that, as often as there should be no such discovery or improvement deserving the premium in the opinion of the trustees, the amount should be added to the prin- «pal, and the subsequent premiums proportionally augmented, without restriction. No discoveries or improvements within the terms of the gift were made for more than forty years, the fund increased to fourfold the original amount, and the donor's re- siduary legatees claimed the whole fund, or at least the surplus accumulation. But Chief Justice Shaw held that the Ameri- can Academy was entitled to the whole fund and its accumu- lations, and adopted a scheme for promoting the general intent of the donor. American Academy v. Harvard College, 12 Gray, 582. John Hawes, who died in 1829, by his will devised real estate in trust to apply the income forever to the support of public schools and of a Congregational religious society in South Bos- ton, and directed that when the income should have so increased and accumulated as in the opinion of the trustees to answer these CHAP. III.] ODELL V. ODELL. 531 purposes, the surplus should be appropriated to the establishment of a second Congregational society, the settlement and support of a minister, and the erection and maintenance of a house of public worship for that society, and to the support and ei> couragement of such other seminaries of learning, and. in such was as the trustees should think most for the honor of God and the good afid happiness of the inhabitants of South Boston and their posterity. The probate of the will was opposed, among other grounds, because the will was void as creating perpetuities and indefinite and useless accumulations. But this court, in an opinion delivered by Mr. Justice Wilde, held that it could not, sitting as the supreme court of probate, examine that question. Twenty years later* upon a bill in equity by the First Congre- gational Society claiming more than the trustees had seen fit to allow to that society out of the accumulations in their hands, this court, speaking through the same judge, without doubting the validity of the devise, said that the surplus income amounted only to $650, "which must be allowed to accumulate for a long time, before it will be sufficient to support a minister in a second Con- gregational society, and to erect a house of public worship, and to fulfil the intentions of the testator as to the other uses and pur- poses provided for in the said clause of the will." Hawes v. Humphrey, 9 Pick. 350, 355, 362. Hawes Place Congregational Society v. Trustees of Hawes Fund, 5 Cush. 454. Oliver Smith bequeathed money to trustees to be managed as an accumulating fund for the term of sixty 'years, and then to be paid over to the town of Northampton to establish agricul- tural institutions for the instruction of farmers. And this court held that that town, by virtue of its right to receive this charitable gift at the end of sixty years, had an interest in the estate, and could appeal from a decree of the judge of probate respecting the probate of the will. Northampton v. Smith, 11 Met. 390. In a very recent case, a testator gave a piece of land and one thousand dollars, after the death of his wife, in trust to maintain a school-house and school, and added, "In order to accomplish said object, said trustee and his heirs shall have reasonable time to bring the same about with the funds left for that purpose." Twenty years after the death of the testator, and eight after the death of his widow, the school not having been established, the residuary devisees and legatees brought a bill in equity against the trustee to recover the land and money ; but it appearing that the trustee was diligently endeavoring to increase the fund in 532 ODELL V. ODELL. [CHAP. III. his hands by causing it to accumulate until it should be suffi- cient to effect the purpose of the testator, the court dismissed the bill. Tainter v. Clark, 5 Allen, 66. Dr. Franklin, who died in 1790, left legacies of ilOOO sterling to each of the cities of Boston and Philadelphia to be lent to young married artificers, with sureties, and to be repaid by yearly instalments of one-tenth, with interest, and directed that this should go on for one century, and with a part of the fund for another century, at the expiration of which he gave the principal to the city and the commonwealth. In 1827 Chief Justice Gibson spoke of this bequest of money to the city of Philadelphia, to be lent to young mechanics, as belonging to a class of charities, the validity of which had never been questioned. Witman v. Lex, 17 S. & R. 91. Many years afterwards the same learned judge expressed an opinion that a similar bequest was void, upon the ground that charities were subject to the ordinary rule limiting accumulations. Hillyard v. Miller, 10 Penn. State R. 326. This opinion excited surprise in Pennsylvania; and it has since been overruled in the same-court, and the decision of the case in which it was delivered sustained upon the ground that such loans con- stituted no charity. Hill on Trustees, (3d Amer.' ed.) 455 n. Philadelphia v. Girard, 45 Penn. State R. 1. It is not within the scope of our present inquiry to consider whether this last posi- tion can be maintained. See St. 43 EHz. c. 4, § 1 ; Duke, (Bridg- man's ed.) 131 ; Attorney General v. Ironmongers' Co. Coop. Pract. Cas. 283; Zimmerman v. Anders, 6 Watts & S. 220, 221. In. this state of the authorities, and in the absence of any legis- lation upon the subject we are not prepared to say. that accumu- lation for a charitable purpose can in no case be allowed for a fixed period Of more than twenty-one years, or for a contingent period beyond a life or lives in being and twenty-one years after- ward. In principle, the uncertain duration of a life or lives in being would seem to have no natural relation to a permanent charity. And the justice or policy of a rule is not- apparent, which would prevent a person charitably disposed, but whose property is not large enough to carry out his charitable intent by an accumulation of twenty-one years, from founding a charity, except through the indirect measure of a life or lives in being, especially when the period of accumulation which he needs or selects is one much within the average duration of accumulation under the common rule. The objection that accumulation for a charitable purpose, unless governed by the common rule, might CHAP. III.] ODELL V. ODELL. 533 go on indefinitely, would certainly be entitled to grave consider- ation before finally determining what the limit is. It is possible that the power of a court of chancery over- charities might enable it to so modify the donor's particular directions as to carry out his general charitable intent without violating any rule of public policy, if a case should arise in which those directions -and that policy were in danger of coming into conflict. But it is not neces- sary for the decision of this cause to define the limit of lawful accumulation for charitable purposes. ' The duties imposed by the testator upon his executors in this regard are to pay annually out of the income of the real estate two hundred dollars to the widow of his deceased brother for life, and one hundred dollars to the trustees of the Salem Sav- ings Bank for fifty years, and after deducting these payments annually, to divide the remaining income- among his bi-other's children, and at the expiration of the fifty years to divide the remainder of the estate among his brother's grandchildren. The annuity of one hundred dollars yearly for fifty years is payable at fixed times, subject to no contingency, and, independently of the direction for accumulation, would be open to no legal objec- tion if the annuity were an individual. The intention to devote these sums to the charitable purpose of supporting aged and desti- tute persons is manifest. Each sum paid is separated from the bulk of the estate, and vested in the trustees appointed to receive it, as soon as the payment is made, and before the intended accu- mulation of the interest upon it begins. Even a gift to an individual, which on a fair construction vests within the period allowed by law, is held valid, although accom- panied by a void direction for accumulation. Josselyn v. Josselyn, 9 Sim. 63. Blease v. Burgh, 2 Beav. 221. Saunders v. Vautier, 4 Beav. 115; 5. C. Craig & Phillips, 248. Peard v. Kekewich, 15 Beav; 166. Lane v. Lane, 8 Allen, 350. The reasons are much stronger for not allowing illegal directions for the accumu- lation or management of a fund, devoted to charitable purposes, to defeat the gift, and for carrying out the scheme of the testator as far as the law will allow, if it cannot be followed to its full extent. Attorney General v. Cuius College, 2 Keen, 163. Martin v. Margham, 14 Sim. 230. Thompson v. Thompson, 1 CoUy. R. 388, 400. Attorney General v. Greenhill, 33 Beav. 193. Attorney General v. Pyle, 1 Atk. 435. Attorney General v. Catherine Hall, Jacob, 395. Magistrates of Dundee v. Morris, 3 Macq. 134. Baker v. Smith, 13 Met. 41. Drury v. Natick, post, 169. It is 534 ODELL V. ODELL. [CHAP. III. generally stated in the English books that a direction to accu- mulate income for a period beyond that allowed by the common law is wholly void. 2 Spence on Eq. 181, 182. Lewin on Trusts, (3d. ed.) HI, and cases cited. But perhaps, in the case of prop- erty set apart in the hands of trustees for a charitable purpose, each annual addition of the income to the principal might be treated as distinct, and the accumulation held good for twenty- one years at least, if not beyond that time. And see Phipps v. Kelynge, 2 Ves. & B. 57 n., 62, 63 n. It was contended for the heirs at law that no title, legal or equitable, would vest in the charity until the expiration of the fifty years. But we think such is not the true construction of the will. The clause relied on is as follows : "At the expiration of fifty years the sum which shall have accumulated shall be appropriated by a society of ladies from all the Protestant relig- ious societies in Salem to provide and sustain a home for re- spectable destitute aged native-born American men and women." Here are no words of transfer of title, and the ladies mentioned are not a corporation capable of taking the legal estate. The more reasonable interpretation is that the testator intended to continue the title of the fund in the hahds of the trustees to whom he gave it in the first instance, and to clothe the proposed society of ladies with visitatorial powers as managers of the charity. What those powers may be we have no occasion now to decide ; it is enough to say that the will does not transfer the title from the trustees to them. Neither is it necessary to consider whether the trustees of the Salem Savings Bank are authorized by law to hold a fund for this purpose ; inasmuch as they have declined the trust, and asked to have another trustee appointed in their stead, which there is -no doubt of the authority of the court to do. Bliss v. American Bible Society, 2 Allen, 337. Reeve v. Attorney General, 3 Hare, 191. Upon the appointment of such a trustee, it will be the duty of the executor to pay to him the annuity of one hundred dollars annually for fifty years, according to the will. If, acting with good fidelity and discretion, the funds accumulate in his hands, the accumulations will certainly belong to the charity. Aylet v. Dodd, 2 Atk. 238. Attorney General v. Bowyer, 3 Ves. 728. 729 n.; S. C. 5 Ves. 301. Society for Propagating the Gospel v. Attorney General, 3 Russ.. R. 142. Forbes v. Forbes, 18 Beav. 552. American Academy v. Harvard College, above cited. Taint er v. Clark, 5 Allen, 69. Any question of law which may CHAP. III.] THE CASE OF THETFORD SCHOOL. 535 hereafter arise in the administration of the charity may be de- termined upon a "bill filed by the trustee to obtain the instructions of the court, or upon an information by the attorney general, if necessary, in behalf of the public. Decree accordingly. 3. Cypres Doctrine. THE CASE OF THETFORD SCHOOL. (8 Coke, 130b.) Upon a private bill exhibited in the Parliament for the erec- tion of a free school, maintenance of a preacher, and of four poor people, scil. to poor men, and two poor women according to the will of Sir Thomas Fulmerston, Kt., a question was moved by the lords, and was such: Land of the value of 351 anno 9 Eliz. Regina, was devised by will in writing to certain persons and their heirs, for the maintenance of a preacher four days in the year, of a master and usher of a free grammar school, and of certain poor people; and a special distribution was made by the testator himself, in the same will, amongst them, of the revenues, scil. to the preacher a certain sum, and certain sums to the school master and usher, and to the poor people, amounting in the whole to 35/. per annum, which was the yearly profit of the land at that time; and afterwards the land became of greater value, viz., of the value of 100/. per annum. Now, two questions were moved. 1. Whether the preacher, schoolmaster, usher, and poor, should have only the said certain sums appointed to them by the founder, or that the revenue and profit of the land should be employed to the increase of the stipend of the preacher, schoolmaster, usher, and poor? 2. If any surplusage remained, how it should be employed? And it was resolved, on hearing of counsel learned on both parts, several days at Sergeant's Inn, by the two chief justices, and Walmsley, Justice (to whom the lords referred the consideration of the case), that the revenue and profit of the said land should be employed to the increase of the stipend of the preacher, schoolmaster, etc., and poor ; and if any surplusage remained, it should be expended for the maintenance of a greater number of poor, etc., and nothing should be con- verted by the devisees to their own uses. So in the case in 536 THE CASE OF THETFORD SCHOOL. [CHAP. III. question, where lands in Croxton, in the County of Norfolk, were devised by Sir Richard Fulmerston, to his executors, to found the said works of piety and charity, with such certain dis- tribution as is aforesaid; and now the value oi the manor was greatly increased, that it shall be employed in performance and increase of the said works of piety and charity instituted and erected by the founder: (for it appears, by his distribution of the profits, that he intended the whole should be employed in works of piety and charity, and nothing should be converted to the private use of the executors or their heirs). And this resolution is grounded on evident and apparent reason ; for, as if the lands had decreased in value, the preacher, schoolmaster, etc., and poor people, should lose; so when the lands increase in value, pari ratione they should gain. And they said that this case concerned the colleges in the universities of Cambridge and Oxford, and other colleges, etc. For in ancient time, when lands were of small yearly value (victuals then being cheap), and were given for the maintenance of poor scholars, etc., and that every scholgir, etc., should have \d. or \d. ob. a day, that then such small allow- ance was competent in respect of the price of victuals, and the yearly value of the land; and now the price of victuals being increased and with them the annual value of the land, it would be now injurious to allow a poor scholar Id. or Id. ob. a day, which cannot keep him, and to convert the residue to private uses, where, in right, .the whole ought to be employed to the maintenance or increase (if it may be) of such works of piety and charity which the founder has expressed, and nothing to any private use; for every college is seized in jure collegii, scilicet, to the intent that the members of the college, according to the intent of the founder, should take the benefit, and that nothing should be converted to private uses. Panis egentium vita pau- perum, et qui defraudat eos homo sanguinis est. And afterwards, upon conference had with the other justices, they were of the same opinion; and according to their opinions, the bill passed in both houses of Parliament, and afterwards was confirmed by the king's royal assent. Note, reader, there is a good rule in the act of Parliament called Statutum Templariorufns ita semper quod pia et celeb^rima voluntas donatorum, in omnibus teneatur et expleatur, et perpetuo sanc'tissime persevere. CHAP. III.] ATTORNEY GENERAL V. GLYN. 537 ATTORNEY GENERAL v. GLYN. (12 Sim. 84.) [In Chancery, 1841.] In 1705, the master, brethren, and sisters of St. Katharine's Hospital, near the Tower of London, established a school for the education of poor children, inhabiting the precinct of St. Katharine, which was their property; and, in April, 1812, they granted a lease of two houses in the precinct to trustees for the benefit of the school. The lease was granted for forty years, and at a rent of £20 14s per annum. The St. Katharine's Dock Company, under their Act of Parliament, purchased the precinct, including the site of the hospital, and converted it into a dock; the consequence of which was that there were no children to attend the school. The hospital, however, was rebuilt on a new site, provided for the purpose, in the Regent's Park. The questions in the cause were: First, whether the lease was not void under the statute of mortmain (IX. Geo. 2, c. 36), for want of enrollment. Second, whether it was not void under the statutes (13 Eliz. c. 10, s. 3; 14 Eliz. c. 11, s. 19, and c. 14), relating to leases granted by ecclesiastical corporations, masters of hospitals, etc. Third, whether a reference ought not to be directed to one of the masters of the court, to approve of a scheme for applying the sum for which the lease of the houses had been sold to charitable purposes cy pfes. The Vice Chancellor : Here there was a charity established (which has existed for more than a century,) for the benefit of the poor children of the precinct. Now, the mere accidental fact that the legislature has interfered and has destroyed, in effect, that precinct, does not appear to me to have destroyed the original charity. I apprehend that the court, finding an existing charity, will see whether there cannot be an application of the funds. Because all that has been done is this : The . old site of the hospital has been taken away and a new site has been given. What the particular provisions of the Act of Parliament a^re respecting the site of the new hospital, I do not know; but the 538 ATTORNEY GENERAL V. GLYN. [CHAP. III. hospital is not destroyed; it continues, and it appears to me that, as a part of the appendage to the hospital, that very charity itself does continue. It repeatedly happens that, where a charity has been instituted and has gone on for a century or more, and, for some reason or other, the charity cannot go on as it did, this court will direct the master to approve of a scheme; and, this being a case in which I must consider that the charity is existing and has not reverted, I must adopt the same course; more especially as, for anything that has been shown to me to the contrary, there may be persons who are fit objects of the charity within the precincts of the site of the new hospital. Next, with respect to the lease. Supposing it is good, what is it, in effect, but a donation by the hospital to the charity? And supposing the lease is good, it is just the same as if money had been given. I see no difference. But whether it is good or not, in law, is another matter. All that the information and bill states respecting the lease, is that demises were made, from time to time, by the chapter of the hospital on the payment of fines, at the pleasure of the chapter for the time being. The answer makes no objection at all to the lease, but an objection is made, at the bar, in respect of the language used m*the information and bill. Now, the information and bill might have expressly averred that the lease was made at the accustomed yearly rent or more ; but it has not. Therefore, before I make any decree which will give, to the informants and plaintiffs, the benefit of the lease, I must have it clearly made out that the lease is good under the statutes of Elizabeth, a matter which, at present, is left in uncertainty; and, for that purpose, it will be necessary to direct an inquiry before the master, which will have the effect of eliciting the fact whether the lease is a good lease within those statutes. I have always understood that it is quite a settled point that a lease that is made by an eleemosynary corporation, though not ecclesiastical, is within the operation of the statutes ; and, there- fore, the only question will be whether this is a lease which, by reason of its being a lease of tenements, within the suburbs of the city, for a period not exceeding forty years, is a good lease or not in respect of the rent reserved. With respect to the question whether the lease is void because it was not enrolled within six calendar months after the execution thereof, which is an objection that arises on the statute of the 9th Geo. 2, my opinion is that I ought not to send any case to CHAP. III.] m'dONALD V. MASS. GEN. HOSPITAL. 539 a court of law on that point; because the precise point was determined in Walker v. Richardson; and I must say that it is my own opinion that the question was rightly decided in that case. It is plain that what was meant by the statute was to repress the testamentary disposition of land to charitable pur- poses, and also to enforce the statutes of mortmain. But if the land be already in mortmain, it is altogether out of the considera- • tion of the legislature. The question, then, having been solemnly decided in a court of law, and my opinion upon it being in accordance with that decision, I ought not to direct it to be again discussed. 4. Liability for Torts. McDonald v. mass. gen. hospital. (120 Mass. 432.) [Supreme Judicial Court of Massachusetts, 1876.] Tort for injuries sustained by reason of negligent and un- skilful surgical treatment of the plaintiff by the defendant's servants. At the trial in the Superior Court, before Allen, ]., the plaintiff put in evidence tending to show the following facts : The plaintiff, on December 9, 1870, fell from a building on which he Was at work, and his thigh bone was fractured, and on the same day he was brought to the hospital of the defendant, ' and there remained in one of the wards until February 4, 1871, when he voluntarily went away. While in the hospital he had gratuitously the surgical and medical care, attendance and nursing which the hospital affords to its patients; he occupied a free bed, and all the expenses of his medical and surgical treatment and nursing, and of his shelter, warmth, food, washing and bedding, were borne as a charity by the defendant. The house pupil, appointed as provided in the by-laws, and who in the first instance set his fractured thigh bone, and continued, while the plaintiff was at the hospital, to attend to the plaintiff's case, under the direction of the attending surgeon, was a member of the Harvard Medical School, in the last of his three years of professional study, and received his degree of M. D. from Harvard College in the following June, 1871 ; the attending physicians 540 m'DONALD v. mass. gen. hospital. [chap. III. and surgeons recommended him for his post, and the visiting surgeon, who had direct charge of the treatment of the fractured bone, and under whose direction and supervision the house pupil acted in his treatment of the plaintiff's fracture, was a man of the highest professional reputation and character ; the said house pupil and attending surgeon treated the plaintiff's case gratu- itously, and according to the regulation of the Massachusetts General Hospital. The treatment of all cases in the hospital is . by the visiting physicians and surgeons, and the house pupils acting under their direction, each officer having the exclusive car-e and control of all patients assigned to them, and such physi- cians and surgeons act gratuitously, the defendant providing for patients without means, like the plaintiff, the hospital, nurses, bed, food, warmth and other comforts gratuitously ; such visiting physicians and surgeons are practitioners in the city of Boston, outside of the hospital, and are selected by the trustees of the hospital to treat gratuitously patients who come to the hospital for gratuitous treatment ; and this was the relation of the visiting surgeon to the defendant in this case. The plaintiff offered evidence to prove that on the day he came to the hospital he objected to the house pupil doing anything to or with his fractured leg, and that he wanted and asked to be permitted to wait till the return of the resident physician, who was at the time absent. The plaintiff also offered evidence that previously to this time it had frequently happened that when a patient was brought iri, having been injured by accident, the house pupils received him, and treated the case, if they so desired, without consulting any resident or visiting physician. The plain- tiff offered other evidence which he claimed tended to show that the fractured bone was not properly set, by reason either of the incompetency and negligence of the house pupil, or of the negU- gence of the attending surgeon. The judge ruled that, even if the plaintiff should prove that the fractured bone was not properly set in consequence of the incompetency of the house pupil, or the negligence of him or the attending surgeon, the plaintiff was not entitled to recover, and the jury returned a verdict for the defendant. The plaintiff excepted to this ruling, and the judge 'reported the case for the consideration of this court. Devans, J. The ground upon which the plaintiff seeks to maintain this action is that the defendant undertook, through its agents and servants, to treat his broken leg, and that this was CHAP. III.] m'dONALD V. MASS. GEN. HOSPITAL. 541 done so negligently and unskillfuUy that he was permanently .injured. It does not become necessary to consider whether the defendant, as it contends, consented only, to provide for the plaintiff a hospital bed, food and other comforts, while the attendance of the house pupil and surgeon was of such a char- acter that they had the direct and exclusive professional charge of the patient, and are the only persons who can be made respon- sible for any neglect or want of professional skill and care. We are satisfied that, for other reasons, the plaintiff is not enti- tled to recover upon the case made by him. The defendant was a public charitable institution under the laws of the commonwealth. The object for which it was incor- porated was to prdvide a general hospital for sick and insane persons. St. 1810, c. 94. Its funds are derived from grants and donations made by the commonwealth from profits which it is entitled to receive from the Massachusetts Hospital Life Insur- ance Company and other companies incorporated in the common- wealth, and from the grants, devises, donations, bequests and subscriptions of benevolent persons, and from the board of paying patients. While the price of board is placed as low as the funds of the hospital will permit, patients who are there received are expected to pay as nearly as possible according to their own circumstances and to the accommodations they receive. In addi- tion to the accommodations provided for such patients, a certain number of free beds are furnished .from the general funds of the institution and from donations made especially for this object, the occupants of which are not expected to pay anything. Regulations of Hospital, c. 15, §§ 1-4. Of one of these beds the plaintifif was an occupant. The corporation has no capital stock, no provision for making dividends or profits, and whatever it may receive from any source it holds in trust to be devoted to the object of sustaining the hospital and increasing its benefit to the public, by extending or improving its accommodations and diminishing its expenses. Its funds are derived- mainly from public and private charities ; its affairs are conducted for a great public purpose, that of admin- istering to the comfort of the sick, without any expectation, on the part of those immediately interested in the corporation, of receiving any compensation which will enure to their own benefit, and without any right to receive such compensation. This estab- lishes its character as a public charity. Jackson v. Phillips, 14 Allen, 539. The fact that its funds are supplemented by such 542 m'donald v. mass. gen. hospital. [chap. hi. amounts as it may receive from those who are able to pay wholly or entirely for the accommodation they receive does not render it the less a public charity. All sums thus obtained are held upon the same trust as those which are the gifts of pure benevo- lence. Gooch V. Association for Aged Females, 109 Mass. 558. Nor does the fact that the trustees, through their agents, are themselves to determine- who are to be the immediate objects of the charity, and that no person has individually a right to demand admission to its benefits, alter its character. All cannot participate in its benefits; the trustees are those to whom is confided the duty of selecting those who shall enjoy them, and prescribing the terms upon which they shall do so. If this trust is abused, the trustees are under the superintending power of this court as a court of equity, by virtue of its authority to correct all such abuse, and the interest of the public therein, that is to say, of- the indefinite objects of the charity, may be represented by the attor- ney general. Sanderson v. White, 18 Pick. 328. Attorney Gen- eral V. The Old South Society, 13 Allen, 474. It might well be questioned whether any contract could be inferred between the plaintiff and the defendant. It had offered to him freely those ministrations which, as a dispenser of a public charity, it has been able to provide for his comfort, and he has accepted them. It has no funds which can be charged with any judgment which he might recover, except those which are held subject to the trust of maintaining the hospital. If, • however, any contract can be inferred from the relation of the parties, it can be only on the part of the corporation that it shall use due and reasonable care in the selection of its agents. Where actions have been brought against commissioners of public works serving gratuitously, for negligence in carrying on the work, by which injury has occurred, it has been held that they were not liable if proper care had been used by them in selecting those who were actually to perform the work. Holliday v. St. Leonard's, 11 C. B. (N. S.) 192. The liability of the defendant corporation can extend no further than this ; if there has been no neglect on the part of those who administer the trust and control its management, and if due care has been used by them 'in the selection of their inferior agents, even if injury has occurred by the negligence of such agents, it cannot be made responsible. The funds entrusted to it are not to be diminished by such casual- ties, if those immediately controlling them have done their whole duty in reference to those who have sought to obtain the benefit CHAP. III.] GLAVIN V. R. I. HOSPITAL. 543 of them. There was no attempt to show that the trustees had in any respect failed in the performance of their duty. If they had made suitable regulations, had selected proper persons to fill the position of surgeons, then, whether those persons neg- lected to perform their duty, or whether another person, as the house pupil, not selected for the office of surgeon, assumed with- out authority to act as such, an injury has thus resulted, the plaintiff has no remedy against the corporation. Judgment on the verdict. GLAVIN V. R. I. HOSPITAL. (12i?. 7.411.) [Supreme Court of Rhode Island, 1875.] DuRFEE, C. J. This is an action on the case to recover damages for unskilful and negligent surgical treatment. The declaration sets forth that the plaintiff, having received an injury in his hand and fingers for which he was in need of surgical and medical treatment and care, gave himself into the charge of the defendant corporation, who were owners of a large hospital where they were in the habit of receiving persons needing such treat- ment and care, and of treating and caring for them for hire ; and that, in consideration of being so received and treated with skill and care, he promised to pay the defendant corporation a reason- able compensation therefor, and that the defendant corporation, in consideration thereof, received him and promised to supply him with such surgical and medical treatment, skill, and attention as were necessary for the care and cure of his injuries. The declaration also sets forth that the corporation, its officers, agents, and servants, regardless of its and their duty, neglected properly to care for" the plaintiff and his injuries, or to supply such medical and surgical treatment as was needed for their care and cure; but on the contrary conducted so carelessly, im- properly, and unskilfully, that his hand and fingers, by reason ' thereof, became ulcerated and gangrenous, and likewise his arm, so that his life was endangered and his arm had to be amputated at or near the shoulder, etc. The declaration also contains counts charging the defendant corporation with a neglect of duty in other ways, and especially in that, regardless of the obligation incumbent on it, it neglected to provide careful, competent, and 544 GLAVIN V. R. I. HOSPITAL. [CHAP. III. skilful officers, agents, and servants to care for, attend to, and treat him and his injuries. On the trial to the jury the plaintiff submitted testimony to show that on the 3d of October, 1873, he had two fingers of his right hand accidentally sawed off by a circular saw in a lumber yard where he was employed; that he was immediately taken to the hospital, where he was received by the superintendent, and committed to the care of the surgical interne, who etherized him and undertook to dress his wound ; that a profuse hemorrhage occurred, being occasioned, as the plaintiff claims, by the negli- gence or unskilfulness of the interne; that the interne, after repeatedly trying in vain to arrest the hemorrhage by ligating the arteries, applied a tourniquet to the plaintiff's arm so tightly as to stop circulation, and kept it applied for nearly seventeen hours, before the arrival of a surgeon who was skilful enough to ligate the arteries ; that the plaintiff, in consequence, suffered excruciating pain, his arm being enormously swollen, and that afterwards his arm mortified so that he had to have it amputated, and did have it amputated, after leaving the hospital, just below the shoulder joint: The plaintiff also submitted testimony to show that his injury was such, especially in view of the hemorrhage, that some one of the experienced surgeons, attendant on the hospital, should have been immediately summoned; but that, in fact, no one of them was sent for until after nearly nine hours, and no one came until after nearly seventeen hours, though there were four subject to call residing and having their offices within a mile of the hospital. Further testimony was introduced by the plaintiff show- ing the treatment which he received, both while he was in the hospital and after he left ; showing the degree of care which was used in selecting the interne, and showing the charter of the corporation and the rules and regulations in force in 1873. It appeared that the plaintiff was taken from the hospital by his friends against the advice of the surgeon, and that when he left, October 22, 1873, a bill for board and attendance at $8 • per week, amounting to $21.71, was presented to him in behalf . of the defendant corporation, which was subsequently paid. For the defendant corporation testimony was introduced to explain the management of the hospital generally, as .well as the circumstances of the case of the plaintiff, and to show that there was no want of reasonable care, skill, and diligence on the part of the defendant corporation. Testimony was also introduced to CHAP. III.] GLAVIN V. R. I. HOSPITAL. 545 show that the hospital was administered as a charity; that its income was derived mainly from its endowments and from volun- tary contributions ; that the physicians and surgeons attendant on the hospital, and the medical and surgical internes, gave their services without compensation, except that the internes, who were required to be constantly in attendance, had their board and lodging in the hospital, and that the bill which was rendered to the plaintiff was designed only to cover board, washing, warmth, and the services of nurses and ward tenders. After the introduction of the testimony and the argument of the case to the jury, the court instructed the jury that no testi- mony had been submitted which entitled the'plaintiff to a verdict for damages, and directed the jury to return a verdict for the defendant corporation. The ground of the instruction was, that the defendant corporation, being the dispenser of a public charity, and being dependent for its support, in a great measure, on voluntary grants and contributions, was, for reasons of public policy, exempt from liability for any negligence or unskilfulness on the part of its trustees, agents, servants, physicians, or sur- geons, or of its medical or surgical internes ; and that if any patient in the hospital suffered injury in consequence of any such negli- gence or unskilfulness, his remedy, if any he had, was to prose- cute the person or persons who were directly chargeable with the negligence or unskilfulness, and not to bring his action against the defendant corporation. The plaintiff contends that this instruction was erroneous, and that he was entitled to recover, Urst, because the defendant cor- poration delivered him over to an incompetent and unskilful interne, in selecting whom for his place the corporation did not exercise proper care; second, because the interne, acting within the scope of his appointment, unskilfully and negligently cared for him ; third, because the interne caused his hemorrhage by his unskilfulness and negligence; and, fourth, because the plaintiff, being in a critical condition, it was the duty of the interne, under one of the rules of the hospital, to send immediately for some one of the attendant surgeons, and the duty of the corporation, under its charter, having established the rule, to put it in execution. The court, in giving its charge to the jury, was guided by McDonald v. The Mass. General Hospital, 120 Mass. 432. In that case a hospital patient sued the corporation for unskilful surgical treatment by a house pupil, a functionary similar to a surgical interne. There was no evidence of any want of care 35 546 GLAVIN V. R. I. HOSPITAL. [CHAP. III. in selecting the house pupil, and the court held that without such evidence the action could not be maintained, and at the same time strongly intimated an opinion that it could not be maintained even with such evidence, for the reason that the corporation could not be held to have agreed to do more than furnish hospital accon^odations, which the plaintiff had had, and also for the further reason that any judgment recovered against the corpora- tion could only be satisfied out of funds which, being dedicated to the charity, could not be lawfully used to pay it. The Supreme Judicial Court of Massachusetts, in the case above cited, referred to Holliday v. St. Leonard, 11 C. B. (N. S.) 192, decided by the Court of Common Bench in 1861, as authority for the point that the corporation was not liable to be sued for the tort of the house pupil without proof of negligence in selecting him." The doctrine announced in Holliday v. St. Leonard is, that a corporate or quasi corporate board or body, having a public trust or duty to discharge gratuitously, is not liable for the torts of its servants or employes if it is personally without fault. The plaintiff calls our attention to cases in which Holliday v. St. Leonard has been qualified or impugned. Mersey Docks v. Gibhs, 11 H. L. 686; L. R. 1 H. L. 93; Porman v. Mayor of Canterbury yUR. 6 Q. B. 214; Coe v. Wise, L. R. 1 Q. B. 711; 5 B. & S. 440, 458. These cases hold that a board or body having work to do for the public gratuitously are liable for the torts of their servants or employes, the same as a private business corporation, provided they have funds or are in receipt of an income out of which a judgment against them can be satisfied. Winch V. The Conservators of the Thames, L. R. 7 C. P. 458; 9 lb. 378. The authority of McDonald v. The Massachusetts General Hospital, in so far as it rests upon Holliday v. St. Leo- nard, is seriously impaired by these cases ; and the question arises whether it rnight not have been better decided on the other grounds suggested in the opinion of the court. The other grounds suggested were two. The first was that the corporation could not be presumed to have agreed to do more than furnish hospital accommodations, and these the plaintiff had had. It is quite conceivable that a corporation might not agree to dp more than furnish hospital accommodations, leaving the patient to find his own physician or surgeon. In such a case the^caip9fation would plainly not be liable for the torts of the phy^iS^ajj" or surgeon; for in such case they would not be its servaiits and it would not have assumed any responsibility in CHAP. III.] GLAVIN V. R. I. HOSPITAL. 547 their selection. But that is not this case. Here the physicians or surgeons are selected by the corporation or the trustees. But does it follow from this that they are the servants of the corporation? We think not. If A., out of charity employs a physician to attend B., his sick neighbor, the physician does not become A.'s servant, and A., if he has been duly careful in selecting him, will not be answerable to B. for his malpractice. The reason is, that A. does not undertake to treat B. through the agency of the physician, but only to procure for B. the services of the physician. The relation of master and servant is not established between A. and the physician. And so there is no such relation between the corporation and the physicians and surgeons who give their services at the hospital. It is true the corporation has power to dismiss them; but it has this power not because they are its servants, but because of its control of the hospital where their services are rendered. They would not recognize the right of the corporation, while retaining them, to direct them in their treatment of patients. But though the relation of master and servant cannot be said to exist between the hospital and the physicians and surgeons attendant on it, the hospital does nevertheless assume a responsi- bility, in that it uses its own judgment, or that of its trustees, in selecting them, and impliedly, therefore, undertakes to exer- cise reasonable care to get such, as are skilful and trustworthy in their profession. A patient has a right to rely on the exer- cise of such care, and consequently if, through the neglect of the hospital to exercise it, he receives an injury, he is entitled to look to the hospital for indemnity, unless the hospital enjoys some extraordinary exemption from liability. In the case at bar, however, the injury was not received from a physician or surgeon, but from a surgical interne, and it may be that a surgical interne stands on a dififerent footing. There are some cases of minor importance in which the internes are allowed to atct as physicians and surgeons; and in such cases I think that their relation to the corporation does not differ from that of a visiting physician or surgeon. But the internes act in still another capacity. The corporation undertakes to furnish physicians and surgeons for all kinds of cases, including the most critical. It has a regular staff of physicians and sur- geons. But inasmuch as these are not, like the internes, con- stantly in attendance at the hospital, they must frequently be sent for. The corporation undertakes to send for them, and 548 GLAVIN V. R. I. HOSPITAL. [CHAP. III. of course it must do it through an agent. The internes are the persons appointed to perform this duty for it. A rule of the hospital prescribes that in all cases requiring immediate and important action, in all doubtful cases, and in all cases requiring an immediate operation, the interne shall send for the surgeon of the day, and, if he cannot be found, for one of the other surgeons. Here, then, we have the relation of principal and agent, or master and servant. ,If the interne neglects to call the surgeon in the class of cases designated, his neglect is the neglect of the corporation. Now, the plaintiff contends that his injury was such that under the rule a surgeon should have been immediately sent for,' and that the interne's neglect to do it cost him his arm. He also contends that the corporation did not -use proper care in selecting the interne, who was incom- petent for his position, and thereby he suffered the injury com- plained of.. He contends that he was entitled to recover on both these grounds, and if the evidence was sufficient to estab- lish them, we think that he was entitled to recover on both grounds, unless the hospital enjoys some peculiar immunity. This brings us to the important question whether the hospital does enjoy any peculiar exemption from liability. The claim that it enjoys such an exemption rests upon two grounds, to-wit, on the ground of public poUcy, and on the ground that the hospital had no funds except such as are exclusively dedicated to the charitable' uses for which it was established, and which, therefore, cannot be applied to indemnify a patient who has been injured by the negligence or malpractice of a physician or sur- geon, or of a medical or surgical inter The first ground is the ground on which the plaintiff was non- suited. The argument is that hospitals, like the R. I. Hospital, are a benefit to the public; but if they are liable for the torts of the physicians or surgeons attendant on them, or of the medical or surgical internes, or of their nurses and other serv- ants, people will be discouraged from voluntarily contributing to their foundation and support, and therefore public policy demands that they shall be exempted from liability. In our opinion, the argument will not bear examination. The public is doubtless interested in the maintenance of a great public charity, such as the R. I. Hospital is ; but it also has an interest in obliging every person and every corporation which under- takes the performance of a duty to perform it carefully, and to that extent, therefore, it has an interest against exempting any CHAP. III.] GLAVIN V. R. I. HOSPITAL. 549 such person and any such corporation from liability for its negligences. The court cannot undertake to say that the former interest is so supreme that the latter must be sacrificed to it. Whether it shall be or not is not a question for the court, but for the legislature. The second ground is one of the grounds suggested in McDonald v. Mass. General Hospital. No authority was cited in that case except Holliday v. St. Leonard, previously mentioned. The defendants, however, have referred us to Feoffees of Heriot's Hospital v. Ross, 12 CI. & Fin. 507, which is very much in point. Heriot's Hospital was an eleemosynary foundation created under a will for the benefit of fatherless boys. The suit was in behalf of a boy who wag alleged to have been illegally refused the benefit of it. The question was whether the action would lie against the trustees as such for damages for the refusal. The House of Lords held that the plaintiff had no right to indemnity out of the trust funds. Lord Cottenham was of the opinion that to give damages out of the trust fund would be to divert it from its proper purpose. Lord Campbell thought it would be contrary to reason, justice, and common sense to sanction the suit. "Damages are to be paid," he said, "from the pocket of the wrongdoers, not from the trust fund." Lord Brougham strongly expressed the same opinion. The authority relied on to support the decision was a decision of the House of Lords in Duncan v. Findlater, 6 CI. & Fin. 894. There the action was against trustees appointed under a public road act, to charge them in their quasi corporate capacity for an injury occasioned by the negligence of the men in making the road, and the House of Lords held the action was not main- tainable. The case resembles Holliday v. 5"^. Leonard, and like it, in the light of the later decisions, it has no value as a precedent for any case where there are funds which can be applied to the payment of damages. We have previously, in this opinion, cited the cases which limit the authority of Holliday v. St. Leonard. It may help us to cohsider the leading case more in detail. The leading case is Mersey Docks v. Gibbs, 11 H. L. 686, decided in the House of Lords in 1865. The action was against a quasi corporate board charged with the duty of keeping certain docks in order, and authorized in consideration thereof to collect tolls and dock rates. The board had no interest in the rates and tolk, being bound to expend them on the docks or in payment of a debt incurred 550 GLAVIN V. E. I. HOSPITAL^ [CHAP. III. in building them. A vessel belonging to the plaintiff was injured in entering the docks in consequence of a neglect to keep it fit for navigation. The House of Lords decided that the action for the injury would lie against the board, the plaintiff being entitled to indemnity out of the public fund. The case was decided with great deliberation, the judges being summoned in. Mr. Justice Blackburn, after advisement, delivered the unani- mous opinion of all the judges who heard the case. The opinion was that such corporations, though acting without reward, are in -their very nature substitutions, on a large sc^le, for individual enterprise, and that in the absence of an)rthing in the statutes which create them showing a contrary intent, it must be held that their liability was intended to be, to the extent of their corporate funds, the same as that of individual owners of similar works. He also remarked that, if the true interpretation of the statute is that it casts a duty on the corporation, not only to construct the works, but also to use reasonable skill and care in their construction and in their maintenance for use, there is nothing illogical in holding that those who are injured by a neglect of the duty may maintain an action against the corpora- tion, and be indemnified out of the funds vested in it by the statute. The case of Duncan v. Findlater was cited by Mr. Justice Blackburn in his opinion, and the language there used by Lord Cottenham, which was chiefly relied on as authority for the decision of Feoffees of Heriot's Hospital v. Ross, was expressly disapproved. It is remarkable, however, that the case of Feoffees of Heriot's Hospital v. Ross, though cited by counsel, does not seem to have attracted the attention of either Mr. Justice Blackburn or of the three learned lords who delivered con- curring opinions. The language used by Lord Cottenham in Duncan v. Findlater was criticised by Lord Westbury more pointedly- even than by Mr. Justice Blackburn. He said in effect that he supposed Lord Cottenham regarded the funds of statutable boards as being in the nature of trust property, and had the idea that trust property would be protected in equity from seizure and sale on execution for the torts of the trustees. He expressed the opinion that this belief was erroneous. "It is much more reasonable," he says, "in such a case, that the trust or corporate property should be amenable to the individual injured, because there is then no failure of justice, seeing that the beneficiary will always have his right-of complaint and his title to relief against the individual CHAP. III.] GLAVIN V. R. I. HOSPITAL. 551 corporators." In all the English cases decided since the diecision of Mersey Docks-v. ^Gibbs, which we have seen, the cases of Duncan v. Pindlei^ and Holliday v. St. Leonard, as authority for the broa^^aoctrines declared in them, are uniformly re- garded .cte'/^tfrruled. Injiaewof these later decisions, the question here is whether .a 'Charitable corporation, like the R. I. Hospital, which holds its property for the charity, is more highly privileged than a corporation created for public purposes, which holds its property- for such purposes ; whether, in fact, because it holds its property for the charity, it is relieved from all responsibility for the torts or negligence of its officers, trustees, agents, or servants. We have come to the Conclusion, after much consideration, that it is not. We understand the doctrine of the cases which we have just been considering to be this : That where there is duty, there is, prima facie, at least, liability for its neglect; and that when a corporation or quasi corporation is created for certain purposes which cannot be executed without the exercise of care and skill, it becomes the duty of the corporation or quasi corporation to exercise such care and skill ; and that the fact it acts gratuitously, and has no property of its own in which 'it is beneficially inter- ested, will not exempt it from liability for any neglect of the duty, if it has funds, or the capacity of acquiring funds, for the purposes of its creation, which can be applied to the satisfaction of any judgment for damages recovered against it. We also understand that the doctrine is that the corporate funds can be applied, notwithstanding the trusts for which they are held, be- cause the liability is incurred in carrying out the trusts and is incident to them. We do not understand, however, that the corporate property is all equally applicable. For instance, in the case of Mersey Docks v. Gibbs, it was not decided that the docks themselves could be resorted to, but only the unapplied funds which the board then had or might afterwards acquire. So in the case at bar; it may be that some of the corporate property, the buildings and grounds, for example, is subject to so strict a dedication that it cannot be diverted to the payment of damages. But however that may be, we understand that the defendant corporation is in the receipt of funds which are applfc- able generally to the uses of the hospital, and, following the decision in Mersey Docks v. Gibbs, we think a judgment in tort for damages against the corporation can be paid out of them. Indeed, we cannot see why these funds are not as applicable to 552 MOORE V. CLEGHORN. [CHAP. III. the payment of damages for tort as to the payment of counsel for defending an action for such damages. Both payments are to be regarded as incident to the administration of these trusts. Petition granted. D. Quantity of the Cesiums Estate. MOORE V. CLEGHORN. (10 Beav. 423.) [In Chancery, Rolls Court, 1847.] The testator, Robert Cleghorn, after directing his debts, etc., to be paid, "in the first place" devised some freehold and also some copyhold property which he had surrendered to the use of his will, "unto and to 'the use of Eumenes Moore, George Christopher and James Ensor, their heirs and assigns forever, upon trust for the use and benefit of his natural mustee boys, Ralph Brush Qeghorn, Thomas Paice Cleghorn, and Matthew Cole Cleghorn, begotten by him on the body of Margaret Steele, a free mulatto woman, of the island of St. Christopher, in the West Indies, the rents, issues and profits to be paid for the maintenance and education of his said before mentioned sons, Ralph, Thomas and Matthew, or to the survivor or survivors of them, share and share alike." And he devised another prop- erty to the same trustees for the use of Margaret Steele for life, and at her decease to her children, Ralph, Thomas and Matthew, or the survivor or survivors of them. The trustees were appointed executors. The testator died in 1824, leaving his three natural children surviving. One of them, namely, Matthew Cole Cleghorn, died in 1832 without issue or heirs, and the crown claimed his prop- erty (if any) by escheat. A second child, Ralph, died in 1842, after severing the joint tenancy (if any), and Thomas was still living. A bill having been filed for the administration of the testator's estate, a question arose as to the construction of the devise contained in his will. The Master of the Rolls. By the devise to the three trus- tees, their heirs and assigns forever, the whole estate and interest CHAP. III.] RAYBOULD V. TURNER. 553 of the testator in the land passed to them; but the testator declared that the gift was "upon trust for the use and benefit" of the three boys. Everything, therefore^ which the trustees took was given to them in trust for the use and benefit of the three boys. I think, therefore, that there is no resulting trust to the testator or his heirs. .Next, how are the three boys to Jake? The first words, the rents to be paid for the maintenance and education of the three children, or to the survivors or survivor of them, are such as would make them joint tenants. The subsequent words, "share and share alike," render it doubtful, for they would make them tenants in common. There is some difficulty in the construction; but, on the whole, I think the boys take equitable estates in fee, as joint tenants. E. Powers and Duties of Trustees. RAYBOULD v. TURNER. (L. (1900) 1 Ch. Div. 199.) [Chancery Division, 1899.] The facts, so far as material for the purposes of this report, were as follows : — Cornelius Chambers, the surviving trustee and executor of the above named testator, Thomas Raybould, in 1892, commenced working one of the testator's collieries, and in so doing he let down the surface of the land, and injured the buildings and machinery of an adjoining owner, Messrs. Roberts &• Cooper. In December, 1898, Messrs. Roberts & Cooper recovered judg- ment against the trustee, in an action in the Queen's Bench Division, for the amount found by a special referee for damages, together with the costs of the action. The special referee had assessed the damages at' £1,092, ,and Messrs. Roberts & Cooper now claimed to be" entitled to be paid this amount and the costs directly out of the testator's estate, and took out this summons for the purpose of enforcing this claim. The colliery had been worked for the benefit of the estate ; the evidence as to the method of working was conflicting; though the court ultimately held that the working had been reasonable and not improper. 554 • RAYBOULD V. TURNER. [CHAP. III. having regard to the engineering advice obtained by the trustee. Byrne, J. This is not an easy case, and it is not made easier by the state of the evidence, which is somewhat conflicting. The first question I have to consider is whether the same principle ought to be applied to the case of a trustee claiming a right to indemnity for liability for damages for a tort, as is applied to the simpler case of claims made against a trustee by ordinary business creditors, where they have been allowed the benefit of his right to indemnity, by proving directly against the assets; the kind of case of which Dowse v. Gorton (1880), 15 Ch. d. 548, 552, is a recent illustration. It has been argued that there is no authority to justify me in holding that, where damages have been recovered against a trustee in respect of a tort, the person so recovering can avail himself of the trustee's right to indemnity, and so go direct against the trust estate; but the authority of Bennett y. Wyndham, 4 D. F. & J. 259, goes to show that if a trustee in the course of the ordinary management of his testator's estate, either by himself -^r his agent;- does some act whereby some third person is injured, and that third person recovers damages against the trustee in an action for tort, the trustee, if he has acted with due diligence and reason- ably, is entitled to be indemnified out of ' Ms trust, estate. When once a trustee is entitled to be thus irtdemnified out of his trust estate, I cannot myself see why the person who has recovered judgment against the trustee should not have the benefit of this right to indemnity and go direct against the trust estate or the assets, as the case may be, just as an ordinary creditor of a business carried on by a trustee or an executor has been allowed to do, instead of having to go through the double process of suing the trustee, recovering the damages from him, and leaving the trustee to recoup himself out of the trust estate. I have the parties interested in defending the trust estate before me, and I have also the trustee, and he claims indemnity, and assuming that a proper case for indemnifying him is made out by the evidence, I think his claim should be allowed. The next question I have to decide is whether this trustee has v/orked the colliery in such a wfsy- as to be entitled to be indemnified. Having considered all "the ^evidence, I am not pre- pared to say that the injury done to the applicants' land was occasioned by reckless or improper working, or otherwise than by the ordinary and reasonable management of the colliery ; and CHAP. III.] JONES V. ATCH., TOP. & SANTA FE R. R. CO. 555 I therefore come to the conclusion that the trustee is entitled to be indemnified out of the assets against the damages and costs which he has been ordered to pay to Messrs. Roberts & Cooper. It follows, therefore, for the reasons already given, that Messrs. Roberts & Cooper are entitled to stand in the trustee's place for the purpose of obtaining this indemnity direct from this testator's estate. The result, therefore, is that this summons succeeds. JONES V. ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY. (150 Mass. 304.) [Supreme Judicial Court of Massachusetts, 1889.] Tort for the conversion of one share of stock of the defendant, a Kansas corporation. The case was submitted to the Superior Court, and, after judgment for the plaintiff, to this court, on appeal, on agreed facts, in substance as follows: The plaintiff purchased the share in question of Jeremiah P Jones, the executor of the will of Allen H. Goss. The will, which was duly admitted to probate on September 18, 1882, after a provision for the payment of debts and for the support of the testator's wife during her life out of the estate, and various pecuniary legacies to each of his daughters and grand- children, contained the following provisions: "Fifth. The residue of my estate, after the payment of the debts, legacies and expenditures before, stated, I devise to remain and accumulate until the decease of my said wife, and upon her decease it is my will that whatever estate shall then remain, whether of the original amount or of its accumulations, if any, shall be equally divided between my two daughters aforesaid, to hold to them and their heirs forever. "Sixth. I appoint Jeremiah P. Jones, of Georgetown, executor of this, my last will and testament." The widow of the testator is living. The share in question was purchased by the executor with the funds of the estate, and was held by him under the provisions of the will. The executor executed and delivered to the plaintiff a formal assignment of such share upon the back of the certificate, in accordance with the defendant's by-laws, which provide that the shares of its 556 JONES V. ATCH.j TOP. & SANTA FE R. R. CO. [CHAP. III. capital stock shall be transferable only on the books of the company in person, or by attorney duly authorized, at their ofiBce in the city in Boston, on surrender of the stock certificate. The share in question was sold by the executor to the plaintiff for the purpose of making a change of investments for the benefit of the trust 'described in the will; and the defendant had notice of this purpose at the time the plaintiff demanded the transfer to be made to him. The plaintiff, having the certificate and assignment -with him, on July. 9, 1887, tendered the same to the defendant at its office in Boston, and demanded a transfer of the share to him, and a certificate to be made to him, and at the same time delivered to the defendant a copy of the will. The defendant declined to accept the surrender of the certificate and assign- ment, and declined to "transfer the stock to the plaintiff, or to make a certificate to him, solely on the ground that the executor was not authorized to make such sale for tjie purpose of making a change of investment. The plaintiff waives all claim or right to the share in question, and offers to transfer the same to the defendant. If, on the foregoing facts, the plaintiff was entitled to recover, judgment was to be entered in his favor for the sum of one hundred and fifteen 50-100 dollars, and interest from the 9th day of July, 1887; otherwise, judgment was to be entered for the defendant. The case was submitted on briefs to all the judges. FiELD^ J. The will of Allen H. Goss was proved on September 18, 1882, and Je^remiah P. Jones was appointed executor. He, as executor, purchased with the assets of the estate, a share of the capital stock of the defendant corpora:tion, and it was trans- ferred to him as executor, and he held it as such under the provisions of the will. For the purpose of making a change in investments, and for the benefit of the trust described in the will, he sold the share to the plaintiff, and executed an assign- ment of it to the plaintiff upon the back of the certificate, in accordance with the by-laws of the corporation,- and delivered to the plaintiff the certificate thus assigned. The plaintiff, on July 9, 1887, "tendered the same to the defendant at its office in Boston, and demanded a transfer of the share to him, and a certificate to be made to him, and at the same time delivered to the defendant a copy of the will." The defendant "declined to transfer the stock to the plaintiff, or to make a certificate to him CHAP. III.] JONES V. ATCH.j TOP. & SANTA FE R. R. CO. 557 solely on the ground that the executor was not auhorized to make such a sale for the purpose of making a change of invest- ment." No trustee has been appointed under the will, but it was necessary that at least the personal property of the estate should be held by some person who should act as trustee during the life of the widow of the testator, because, by the terms of the will, she is to be supported out of the estate^ and on her death the residue of the estate, with its accumulations, after the pay- ment of the debts, legacies, and the expenses of administration, is to be divided between the two daughters of the testator. Regularly, the executor, after the expiration of two years from , his appointment, and after paying the debts, legacies, and expenses of administration, should have settled his accounts as executor, and paid over the money in his hands to a trustee appointed by the Probate Court. Daggett v. White, 128 Mass. 398. White v. Ditson, 140 Mass. 351. After the debts and legacies and the expenses of administra- tion had been paid, the executor must be considered as in fact holding the estate as a trustee for the benefit of the persons entitled to it under the will, and he is liable to them for any mismanagement of it, in the same manner and to the same extent as a trustee would be liable. It is not denied that the executor, acting as such before the debts, legacies and expenses of administration had been paid, would have had power to sell and transfer this certificate; but it is said that, after the lapse of time shown in this case, it must be presumed that all these things have been done, and it appears in the agreed statement of facts that the share was sold "for the purpose of making a ' change of investments for the benefit of the trust described in the will." The will contains no specific bequest of any personal property, and this share of stock was not a part of the estate which the testator left. It is one of the ordinary powers of an executor to sell and convey the personal property of the estate in his discretion, subject to his liability to account, and it may be argued, with a good deal of force, that, in the absence of any limitation of this power in a will, or of any specific bequest of the property, he retains this power while he holds the personal property as executor, although he in fact is acting as a trustee. •See Hutchins v. State Bank, 12 Met. 421 ; Crocker v. Old Colony Railroad, 137 Mass. 417. An executor, as such, except under 558 JONES V. ATCH., TOP. & SANTA FE R. R. CO. [CHAP. III. special provisions of statute, has nothing to do with the real estate of his testator. If real estate, or a power over real estate, is devised to him as executor, he takes it as a devisee and not in his general capacity as executor. We prefer, however, to assume in this case, that, as the execu- tor held this share of stock for the purposes of the trust created by the will, his right to sell and convey it is precisely that of a trustee appointed in due form under the will. If land is given in trust to collect the rents and profits for accumulation or for other purposes, a power to sell the land is not to be implied. Unless such a power is affirmatively given, it does not exist. When personal property is given in trust, a power in the trustee to sell it and to reinvest the proceeds may, however, sometimes be implied from the nature of the property and of the trust, when the same power would not be implied if the property were land. There is no indication in this will that the personal property is to remain in the form in which the testator left it; and some of it must have been disposed of in the administration of the estate. The provision that the residue of the property is to remain and accumulate until the decease of the wife of the testator, is not a direction that it shall remain in the form in which the testator has left it. It is the duty of the executor, as trustee, to furnish out of the residue of the property a proper and suitable support for the widow during her life, and she is still living. The income may not be sufficient for this purpose, and, if not, it would be his duty to use the principal, and to convert a part of it into money. If the income were more than sufficient to support the. widow, it would be his duty to accumu- late it, and this might best be done at times by a change of investments. The discretion which our laws give to trustees in making investments, when no specific directions are given by the creator of the trust, requires that a somewhat more liberal view be taken of the implied power of trustees of personal prop- erty to change investments than has been taken in England and in some other jurisdictions. We are of the opinion that the executor, acting as a trustee under this will, had power to change the investment he had made of the assets of the estate by selling this share of stock. The St. of 1884, c. 229, has no application to the case, for without considering whether it relates to certificates of stock in foreign corporations, it plainly was not intended to affect the CHAP. III.] SPEIGHT V. GAUNT. 559 power of an executor or trustee to sell and convey property. The case is submitted upon an agreed statement of facts, which waives any objection to the form of the action. It appears in this statement, that "the plaintiff waives all claim or right to the share in question, and offers to transfer the same to the defendant"; and it is agreed that, "if on the foregoing facts the plaintiff is entitled to recover, judgment is to be entered in his favor for the sum of one hundred and fifteen 50-100 dollars, and interest, from the 9th day of July, 1887." The plaintiff, upon executing such a transfer, and filing it with the certificate in the Superior Court, may have the judgment rendered in his favor affirmed. So ordered. SPEIGHT w. GAUNT. (L. R. 22 Ch. Div. 727.) [Chancery Division, 1883.] This was an appeal from a decision of Bacon, V. C, holding the defendant, who was an executor and trustee of the will of John Speight, liable to replace a sum of £15,275, part of the trust estate, which had been lost by reason of the default of one R. E. Cooke, a stockbroker, doing business, at Bradford. The facts were briefly as follows: There being a sum of £15,000 trust money on deposit at the bankers, the defendant proposed to invest it in securities of the corporations of Leeds, Huddersfield, and Halifax — securities authorized by the will — and employed Cooke to obtain £5,000 of the securities of each corporation. The Leeds corporation issued debentures and debenture stock; the two latter borrowed on debentures only. There was no absolute necessity to employ a broker in the purchase of the securities. On the 14th of February, 1881, Cooke called on the defendant and handed him a paper, which purported to be a bought-note, and was as follows: "John Cooke & Son, Exchange, Bradford, February 24, 1881. To the executors of the late John Speight. We have this day bought for you as per your order, subject to the rules of the London Stock Exchange, £5,000 Leeds Cor- poration debenture stock at 105 >^ commission, net £5,275; £5,000 Huddersfield Corporation ditto ditto at 100 commission, net £5,000; Halifax Corporation ditto ditto at 100 commission. 560 SPEilGHT V. GAUNT. [CHAP. III. net £5,000; total, £15,275 account. Signed, John Cooke & Son." Cooke, on delivering the note; said that the payment was to be made the next day, and the defendant signed three chejjues for the total amount to Cooke's order, who appropriated them to his own use, and on the 28th of March filed a liquidation petition, and absconded. Jessel, M. R. This is an appeal from the decision of Vice Chancellor Bacon finding the defendant, Mr. Gaunt, who was a trustee, liable to make good some £15,000 which has been lost through the failure of the stockbroker employed by him to make investments on account of the trust. The questions which we have to decide are important not only on account of the amount in dispute, but also on account of the principles which ought to govern the court in deciding points of this nature. In the first place, I think we ought to consider what is the liability of a trustee who undertakes an office which requires him to make an investment on behalf of his cestui que trust. It seems to me that on general principles a trustee ought to conduct the business of the trust in the same manner that an ordinary prudent man of business would conduct his own, and that beyond that there is no liability or obligation on the trustee. In other words, a trustee is not bound because he is a trustee to conduct business in other than the ordinary and usual way in which similar business is conducted by mankind in transactions of their own. It never could be reasonable to make a trustee adopt further and better precautions than an ordinary prudent man of business would adopt, or to conduct the business in any other way. If it were otherwise, no one would be a trustee at all. He is not paid for it. He says, "I tal asking relief would be entitled to a specific lien; and the court would consider the debtor as a trustee for the creditor, of the property on which the security was agreed to be given. The agreement has been fully executed, and the only complaint is, that the agreement itself was founded upon a misapprehension of the law, and the prayer. is to be relieved against the consequences of such mistake. If all other difficulties were out of the way, the equity of the general creditors to be paid their debts equally with the plaintiff, would, we think, be sufficient to induce the court to leave the parties where the law has placed them. The decree is to be affirmed, with costs. Decree affirmed. 680 COOPER V. PHIBBS. [CHAP. V. COOPER V. PHIBBS. (L. R. 2 H. L. 149.) [House Lokd Cases^ 1867.] This was an appeal against a decretal order of the Lord chan- cellor of Ireland, dated 14th of June, 1865, and made under the following circumstances : By deed of the 12th of May, 1806, Sir Edward Crofton, for the considerations therein mentioned, conveyed the lands of Ballysa- dare, in the county of Sligo, with tolls and customs of markets, etc., and the salmon fishery, and all other the fisheries of the river of Ballysadare, situate in the same county, to Joshua Edward Cooper in fee. Shortly after this conveyance had been .executed, Joshua Edward Cooper (who was unmarried) was declared a lunatic, and Edward Synge Cooper, his only brother, and his pre- sumptive heir, was appointed committee of his estate. His estate in the county of Sligo was called the "Markree Estate." Edward Synge Cooper had two sons, Edward Joshua Cooper and Richard Wordsworth Cooper. Edward Joshua had -been once married, but had no child by that marriage. On the I3th of February, 1827, a deed of settlement was executed on his intended marriage with Miss Wynne, and to that settlement his father, Edward Synge Cooper, and his brother, Richard Wordsworth Cooper, be- came parties. Under that settlement Edward Synge Cooper covenanted that, if the lunatic should die intestate and without issue, and should be at the time of his death seised in fee "of or in the said several towns, lands, tenements, or hereditaments in the county of Sligo," etc., "thereinbefore and thereinafter par- ticularly enumerated and described," or if, at any time after, the decease of the lunatic, he, Edward Synge Cooper, should happen to be seised of any freehold estate "in the said several last-men- tioned lands, tenements, and hereditaments, by any title derived by, through, or under" the lunatic, he, Edward Synge Cooper, would, within six months after "the lunatic's- death, convey to trustees "all that and those the town and lands of Ballysadare, and all the tenements, houses, and plots therein, together with the tolls and customs of the fairs and markets therein, * * * CHAP, v.] . COOPER V. PHIBBS. • 681 and all other estates of inheritance whereof the said [lunatic] shall die seised or possessed, or such, and so many, and all such parts of the same as shall have descended, remained, or vested in . the said Edward Synge Cooper as tenant in fee simple or fee tail in possession thereof, in any of the manners or ways aforesaid, together with several subdenominations and appurtenances, and also all houses, wastes, common of pasture, waters, water courses, easements, liberties, privileges, profits, appurtenances," etc., to himself for life, remainder to his son Edward Joshua for life, remainder to his issue male in strict settlement, remainder to his other son, Richard Wordsoworth Cooper, for life, remainder to his issue male in strict settlement. The word "fishery" did not occur in the settlement. There was a similar covenant, on the part of Edward Joshua Cooper and of Richard Wordsworth Cooper, that if the said estate should descend to or vest in them, or either of them, from the lunatic, they or either of them would convey the same to the uses specified in the covenant of their father, Edward Synge Cooper. In August, 1830, Edward Synge Cooper died, leaving his elder brother, the lunatic, and his own two sons, Edward Joshua and Richard Wordsworth, him sur- viving. Edward Joshua from that time acted. as committee of the lunatic. In the early part of 1837 a petition f-or a bill had been presented to parliament, by Edward Joshua as committee, to give the lunatic powers to improve the fishery ; but while it was pass- ing through parliament the lunatic died, and then in the various clauses the necessary changes were made by introducing the name of Edward Joshua, who had succeeded to the property. The act, which was known as 1 Vict. c. 89, recited that the "rivers Arrow and Owenmore rise from two large lakes in different parts of the county of Sligo, and after flowing through a large tract of country, unite their streams at about a mile above the town of Ballysadare, whence they flow into the same channel to the bay of Ballysadare, where, by one month, they discharge their waters into the bay," and then it described how the flow of their waters was interrupted by ledges of rocks, which prevented salmon get- ting up the. river, and it recited the conveyance by Sir Edward Crofton to the lunatic, "and his heirs and assigns for ever," of the whole eastern bank of the riyer, "together with the salmon fishery, and all other the fisheries of the river," possessed by Sir Edward Crofton ; that the lunatic after the conveyance, and up to the time of his death, "did uninterruptedly exercise and enjoy the exclusive right of taking the salmon which so as aforesaid annually congre- 682 • COOPER V. PHIBBS. [CHAP. V. gate within the mouth of the said united rivers" ; that the lunatic died in June, 1837, "whereby all the aforesaid estates, towns, -lands, and fishery, have descended to, and are now vested in, the said Edward Joshua Cooper, who is the nephew and heir at law of" the lunatic ; that "the said Edward Joshua Cooper is de- sirous of constructing canals or water cuts at his own expense," in consideration of the exclusive right of fishery being vested in him, his heirs, and assigns. And it was therefore enacted that the powers to make the cuts and canals, etc., should be granted to him, provided that the cuts "shall be altogether situated on the estate and property of the said Edward Joshua Cooper," etc. There were various other provisions, in all of which Edward Joshua Cooper was spoken of as the owner of the estate, and the title of the act, as altered after the death of the lunatic, was, "An act to enable Edward Joshua Cooper, Esq., to establish and protect a salmon fishery upon the lakes and rivers of Owen- more and Arrow, and also within the bay of Ballysadare, in the county of Sligo." Edward Joshua Cooper constructed the canals and cuts, and im- proved the salmon fishery, as provided for by this act, and he continued in possession thereof, and of the estates to which he had succeeded, until his death. By his second marriage he had five daughters, but no son. Richard Wordsworth Cooper had also married, and he died in 1850, leaving the appellant, his eldest son and heir at law. In 1858 the appellant married, and on the 8th of August, 1858, a disentailing deed, and then a settlement, of the Sligo estates, were executed by Edward Joshua Cooper, the estates being settled as subject to the uses of the settlement of 1827. During the life of Edward Joshua Cooper he, apparently believ- ing that the act (1 Vict. c. 89) vested the fee simple of the fishery in him, discharged from the limitations of the settlement of 1827, always spoke of himself as the absolute owner of the fishery, and, as alleged in the cause petition of the appellant, always as- sumed such to be the fact. In September, 1858, the appellant joined with Edward Joshua Cooper in a lease, renewable forever, of two and a half acres of land adjoining the fishery, which lease was granted to a Mr. Leech, as trustee for Edward Joshua Cooper, who afterwards built on this land a messuage known as the "Rapids Cottage," with a coach house, and other premises. In April, 1863, Edward Joshua Cooper died intestate, leaving his five daughters (but no male issue) him surviving. On his CHAP, v.] COOPER V. PHIBBS. 683 death the appellant entered into possession of the estates, and on the 14th of October, 1863, there was executed between him and Phibbs, who, under the settlement upon Edward Joshua:'s second marriage, acted as trustee for the daughters, an agreement for a lease," which the appellant now sought to cancel. It was in the following terms : "W. Phibbs agrees to let, and Colonel Edward Cooper agrees to take, for a term of three years, to be computed from the 1st day of November next, the salmon fishery at Ballysa- dare, county Sligo, together with the Rapids Cottage, coach house, and gate house, at the yearly rent of £550 sterling, said rent to be payable half-yearly, on every 1st day of May and 1st day of November in each year. The said Edward Cooper shall, during the tenancy, keep proper books, showing the receipts and expendi- ture of said fishery, and weights in pounds of number of fish taken," and shall allow Phibbs to inspect the books, and to have free access to the fishery. Before the first half year's payment became due, the appellant purchased and read the act of parliament (1 Vict. c. 89), and then believing that it had not the effect which had always been attributed to it, he filed his cause petition, in the court of chancery in Ireland, to have the agreement set aside. To this cause petition Mr. Phibbs and the five daughters of Edward Joshua Cooper were made defendants, and the prayer was that the agreement of the 14th of October, 1863, might be delivered up to be cancelled, and the defendant, Mr. Phibbs, perpetually restrained from suing upon the same, the petitioner submitting to any terms which the court might impose as the condition for granting the said relief, and (after naming the defendants) asking for such farther relief as "the nature of the case would admit of, and as to the court might seem fit." Affidavits in answer were put in, and witnesses examined, and the cause was heard before the lord chancellor of Ireland, who, on the 14th of June, 1865, made a decretal order dismissing the petition, with costs, but without prejudice to any question as to the ultimate right to the fishery. Sir John Rolt, Atty. Gen., and G. M. Giffard, Q. C. (Mr. Fetherston H. was with them), for appellant. Mr. Lawson, Q. C. (of the Irish bar), and Sir Roundell Palmer, Q. C, for respondents. Lord Westbury. My lords, for the purpose of determin- ing the question raised by this cause petition, it is necessary to 684 COOPER V. PHIBBS. [CHAP. V. ascertain the rights and interests of the parties at the time of mak- ing it. Now, it is clear, I think, beyond the possibility of argu- ment, that the hereditaments which constitute the estate of Bal- lysadare, including the fishery, were comprised in the covenant and agreement of Edward Synge Cooper and Edward Joshua Cooper, contained in the settlement of 1827. That settlement plainly indicates, in every part of it, the agreement of the parties to include all the estates that should descend from the lunatic, Joshua Edward Cooper. First, with regard to an annuity given as a provision for Edward Joshua Cooper, it is charged on all the estates, "on all and every the other, estates of Joshua Edward Cooper, situate in the county of Sligo," not comprised in two in- dentures which are therein specified; and then the covenant and agreement comprehended "all other the estates of inheritance," whereof the lunatic, Joshua Edward Cooper, should die seised. The effect, therefore, of this extent of the deed of 1827 was to make Joshua Edward Cooper, at the time of the obtaining of the act of parliament of 1 Vict., a trustee in fee seised of the legal estate in 'fee for the parties entitled under the uses and trusts of that settlement. Now, I must of necessity assume that Edward Joshua Cooper had the intention of stating the truth and the fact to the legisla- ture. When, therefore, I find in this act of parliament a recital that this fishery, together with the other hereditaments, on the death of the lunatic, descended to Edward Joshua Cooper in fee, that must be taken to represent to parliament that the trust estate did so descend. Your lordships are bound to assume Edward Joshua Cooper's honesty and integrity of purpose, and therefore you cannot for a moment impute to him that he intended to con- ceal from the- legislature the fact of the property being bound by the trusts of the settlement. You must take the recital contained in the act of parliament as a recital intended to denote the descent of the legal estate in fee held by him upon trust, and you cannot impute to him an intention of representing to parliament that it was his own property, because you cannot for a moment suppose that he was ignorant of the agreement or contract contained in that deed, or that he intended to repudiate the obligation which he had contracted under that deed. Then, if it be taken that he stood before parliament as trustee, the powers and authorities conferred upon him by that act of parliament are conferred upon him in his character of trustee. They are attached to the ownership in fee, which he represents CHAP, v.] COOPER V. PHIBBS. 685 himself to have had, and as that ownership was subject to the trust, the powers and authorities attached to the ownership are in Hke manner subject to the obligation of that trust, and the things acquired by virtue of those powers and authorities would also be subject to the trusts which affected the individual who becomes the parliamentary donee of those powers. There can be no doubt for a moment, therefore, with regard to the settled principles of equity, that what was given to him in the character of owner in trust for the other persons, and what was acquired by him by virtue of these powers, became also subject to that trust. The result, therefore, is, that all that he acquired by virtue of the parliamentary powers would become subject to the trusts of the settlement of 1827, svjbject only to the repayment to him by the parties entitled under those trusts of the moneys properly ex- pended by him in acquiring additional rights of fishery, and im- proving the whole. The act of parliament contemplates that there would be one fishery only, a fishery constituted of the original right in the fishery of Ballysadare, and augmented and improved by gathering in other rights of fishery, extending over the shore of the bay, which he had the power of acquiring, so that there might be one large profitable fishery. Now, the fishery, in point of fact, ends with the estuary, and with the beginning of the cut, because the cut or canal was intended only to improve the fishery, I might almost even say to continue the fishery, because we well know that there can be no fishery from the resort of salmon, unless the salmon have the means of ascending to the breeding grounds in the higher quarters, and they resort to those places only when they have that opportunity. One fishery, therefore, was constituted by virtue of those powers, and that fishery was again conveyed by the settlement of 1858, under which the present petitioner is tenant for life. The result, therefore, is that at the time of the agreement for the lease which it is the object of this petition to set aside, the parties dealt with one another under a mutual mistake as to their respective rights. The petitioner did not suppose that he was, what in truth he was, tenant for life of the fishery. The other parties acted upon the impression, given to them by their father, that he (their father) was the owner of the fishery, and that the fishery had descended to them. In such a state of things there can be no doubt of the rule of a court of equity with regard to the dealing with that agreement. It is said, "Ignorantia juris 686 COOPER V. PHIBBS. [CHAP. V. haud excusat;" but in that maxim the word "jus" is used in the sense of denoting general law, the ordinary law of the country. But where the word "jus" is used in the sense of denoting a private right, that maxim has no application. Private right of ownership is a matter of fact. It may be the result also of matter of law. But if parties contract under a mutual mistake and mis- apprehension as to their relative and respective rights, the result is that that agreement is liable to be set aside as having proceeded upon a common mistake. Now, that was the case with these parties. The respondents believed themselves to be entitled to the property. The petitioner believed that he was a stranger to it. The mistake is discovered, and the agreement cannot stand. But then, when the appellant comes here to set aside the agree- ment, an obligation lies upon him so to constitute his suit as to enable a court of equity to deal with the whole of the subject- matter, and once for all to dispose of the rights and interests of the parties in the settlement. Now although the agreement was inoperative for the purpose of giving to the petitioner a valid lease of the property, yet it might operate to this extent, that, so far as the respondents had in equity a lien upon the property, their estates and interests in respect of that lien might be affected by the agreement. And there is another particular, also, which must be noticed, which for the moment, I think, in the preparation of these minutes, has escaped our attention, namely, that unquestion- ably the respondents were entitled to the cottage and to the piece of land, upon which no rent has been paid. But, during the time that has elapsed, I understand the fact to be that the petitioner has had the possession and enjoyment of that cottage and of that piece of land. In respect of those particulars, therefore, a proper occupation rent ought to be paid by him. What, then, are the rights and interests of the parties which ought to be ascertained? They are, as I have already observed, the sum of money due to the respondents, and charged upon the property, as being the expenditure of their father, the benefit of which the petitioner, as tenant for life, has enjoyed. Now, tto doubt that expenditure constitutes a lien, — a charge in the nature of a mortgage charge upon the property. It must be ascertained, and an obligation lies upon the present appellant to give the court the means of ascertaining it. That is the reason, therefore, why the decree is proposed to be put in the form which your lordships have heard, namely, that although a declaration is made in order to show the basis upon which the opinion of the house is f ourtded. CHAP, v.] COOPER V. PHIBBS. 687 with respect to the invalidity of the agreement, yet the house stops short of giving positive relief, except on the terms imposed on the petitioner, to which in reality by the prayer of his petition, he submits, by giving an opportunity to the respondents to ascertain the full measure of their rights and interests, in order that com- plete justice may be done, by declaring that they will be entitled to a charge for the principal money so ascertained, and to interest thereon, at the rate of 4 per cent, from the time of the death of their father, Edward Joshua Cooper, who was the last person in possession of the fishery antecedent to the title of the present appellant, and, declaring also (which must be added to that), that they are entitled to an occupation rent during the time that the present appellant has been in possession and enjoyment of the cottage and the piece of land. My lords, these terms, I have very little doubt, will be submitted to by the petitioner, because they are consistent with the willing- ness, which he has expressed in his petition, to have the whole of the rights ascertained. And if that be done, and if he brings before the court, by supplemental cause petition, the parties who are interested in the ascertainment of those rights, the subject will be disposed of ; but,- if he does not do so, then he has brought forward an insufficient and incompetent petition, upon which full equity and full relief cannot be given, and the only result must be, that his petition to the court below ought to be dismissed, though it must be dismissed upon quite different grounds. My lords, I regret to find that observations have been made in the court below, though I cannot at all suppose that they were the ratio decidendi, that upon some extrinsic evidence it appeared to the court below that the fishery was not intended to be comprised in the deed of 1827. When there is an application to correct an instrument, or to set aside an instrument, the intention of the parties is to be collected from the words they have used ; and no words can be more pertinent or more comprehensive than the words in the settlement of 1827, and the words in the settlement of 1858, to denote the intention of including the fishery in the provisions of those deeds, and making it subject to the trusts which are thereby created. 688 BLAKEMAN V. BLAKEMAN. [CHAP. V. BLAKEMAN v. BLAKEMAN. (39 Conn. 320.) [Supreme Court of Connecticut, 1872.] Butler, C. J. The petitioner purchased and the respondent sold the tract of land in question for a consideration which covered a right of way through the lane, and which would not have been paid for the land alone. It does not expressly appear, but I think it is fairly to be implied, that there had been an ap- purtenant right of way, which had ceased by operation of law. The respondent represented to the petitioner that such a way still existed and would pass by virtue of the clause in relation to privileges and appurtenances in the deed, and the petitioner took the deed relying upon the truth of that representation. Both parties were mistaken then in relation to the fact of the existence of the way — a mutual mistake. There was no mistake as to the legal effect of the deed, for it would have conveyed the appur- tenant way, if in existence, and in fee, if such a way could be conveyed in fee. The law is so that an appurtenant right of way cannot exist where both tracts are owned by the same person. Of this the parties were ignorant, and the effect of the union of the estates and the destruction of the way thereby did not enter into their contemplation. The respondent sold then, and the defendant bought, an extinct thing, both supposing it to be existent, and both ignorant that from the nature of the case, and as matter of law, the object could not exist. There was not here a mistake as to the legal effect of a deed, but a mistake as to the existence of a part of the subject-matter of it. Nor was there a mistake as to the nature and operation of any known or contemplated principle of law operative upon the contract. There was super-added to the mistake of fact, ignorance of a principle of law which, if known and contemplated, would have prevented the mistake under which the parties acted. We think the petitioner was entitled to relief and the Court of Common Pleas is so advised. In this opinion the other judges concurred. CHAP, v.] ERKENS V. NICOLIN. 689 ERKENS V. NICOLIN. (39 Minn. 461.) [Supreme Court of Minnesota, 1888.] Appeal by defendant from an order of the district court for Scott county, Edson, J., presiding, refusing a new trial after a trial by the court. Mitchell, J. Actiop to recover back the money paid by plain- tiff to defendant for a quitclaim deed of a piece of land in the village of Jordan. The facts, as disclosed by the evidence, are that defendant platted into lots a tract of land, of which he was the owner, lying between Water street and Sand creek. As shown upon the plat, the north and south lines of the lots extended from Water street to the creek. The distance marked on the plat gave the length of these lines as 80 feet, but the actual distance from Water street to the creek was 1 10 feet. One of these lots, and the adjoining 35 feet of another, had been conveyed by de- fendant, according to the plat, to plaintiff or plaintiff's grantor. Subsequently defendant claimed and stated to plaintiff, in sub- stance, that the lots only extended back 80 feet, according to the distance indicated on the plat, and hence that he still owned the strip of 30 feet next to the creek. Plaintiff knew that defendant's claim was based wholly upon the theory that the distance given on the plat would control, arid hence that his claim of title was in fact but expressions of opinion as to the legal effect and construction to be given to the plat. So far as the evidence shows, defendant made this claim in good faith, and honestly supposed that his deeds of the lots only conveyed 80 feet. Plaintiff took the matter under consideration for nearly a month, and went to the register's office and examined the plat for himself. He then obtained from de- fendant and wife a quitclaim deed of all the land down to the creek, and paid therefor the money which he now seeks to recover. When he paid the money he knew all the facts, and had the same means of knowledge of them which defendant had. The trans- action was unaffected by any fraud, trust, confidence, or the like. The parties dealt with each other at arm's length. Plaintiff was not laboring under any mistake of facts. He took the deed and 44 690 JACOBS V. MORANGE. [CHAP. V. paid his money^ under a mistake of law as to his antecedent exist- ing legal rights in the propeirty, supposing that, according to the proper legal construction of the plat, the lots were only 80 feet deep. However, under the doctrine of Nicolin v. Schneiderhan, 37 Minn. 63, 33 N. W. Rep. 33, since decided by this court, it is now settled that a deed of lots according to this plat would cover all the land down to the creek,« under the rule that distances must yield to natural boundaries called for in a deed. We are unable to see that this case differs in principle from Perkins v. Trinka, 30 Minn. 241, 15 N. W. Rep. 115, and Hall v. Wheeler, i7 Minn. 522,35 N. W. Rep.377. It is unnecessary to enter into any discussion of the question (left in great confusion in the books) when, if ever, relief will be granted on the ground of mistake in law alone, or whether there is any difference between mistake of law and ignorance of law, or between ignoraince or mistake as to a general rule of law and ignorance or mistake of law as to existing individual rights in the property which is the subject-matter of the contract We hold that money paid under mistake of law cannot be recovered back where the transaction is unaffected by any fraud, trust, confidence, or the like, but both parties acted in good faith, knew all the facts, and had equal means of knowing them, especially where, as was evidently the fact in this case, the transaction was intended to remove or settle a question of doubt as to title. It would be impossible to foresee all the consequences which would result from allowing parties to avoid their contracts in such cases on the mere plea of ignorance or mistake of law affecting their rights. It would be difficult to tell what titles would stand, or what con- tracts would be binding, if grantors and grantees were at liberty to set up such a plea. This may seem to work inequitably in the present case, but more mischief will always result from at- tempting to mould the law to what seems natural justice in a par- ticular case than from a steady adherence to general principles. Order reversed. JACOBS V. MORANGE. (47 N. Y. 57.) [Court of Appeals of New York, 1871.] Appeal from judgment of the New York common pleas, affirm- ing judgment for plaintiff. CHAP, v.] JACOBS V. MORANGE. 691 ■ Peckham, J. The defendant in this suit is a lawyer. The plaintiff some years since brought an action against the defendant in the marine court, in the city of New York. The defendant recovered a verdict in that suit, of $86 against the plaintiff. Without taking the case to the general term of that court, the plaintiff carried it for review to the court of common pleas of that city, and after argument there that court reversed the judgment, with costs. The defendant paid these costs voluntarily without the entry of any judgment. Within a year thereafter the court of appeals decided that the court of common pleas had no juris- diction of a case from the marine court, until it had been first heard and decided by the general term of that court. The com- mon pleas had previotisly held the other way, viz., that it had jurisdiction in such case. Some nine years after this reversal in the common pleas the defendant issued an execution in the marine court, and then the plaintiff instituted this suit in equity to stay his proceedings, and a judgment is obtained for a perpetual stay on the ground that the judgment in the marine court was erron- eous, and that both parties in the review in the common pleas had acted under a mutual mistake of law. This presents the question, can a court of equity grant relief in a case of this character upon the sole ground of a mistake of law ? There is no circumstance of any description that adds anything to this ground of relief. Ignorantia legis neminem excusat and kin- dred maxims are old in the law. If they are true, this judgment is erroneous. In early times the jurisdiction of the court of chancery in the hands of chancellors unskilled in the law was almost without limit ; but for very many years that court has been guided by rules and precedents, by the science of the law as much as courts of common law. Their jurisdiction and modes of relief are well settled. The statutes and laws of the land are as much the law there as in any other court. 1 Story Eq.,.§ 19; Id., §§ 17, 18. The whole' basis for this relief is founded upon the fact that an inferior court made an erroneous decision upon a question of law ; that the plaintiff was misled thereby and suffered this loss. This is the best position the plaintiff can take. This must be the "surprise" sometimes spoken of in the books. Jeremy Eq. Jur. 366. What a flood of litigation would such a rule open? If this can be regarded as the "surprise" that requires or justifies equitable relief, how broad is the principle, how extensive its ramifications ? 692 JACOBS V. MORANGE. [CHAP. V. Almost every case reversed by this court would form a basis for such "surprise," especially where courts of last resort reverse or modify their own decisions. How many cases are lost at the trial or upon review by the ignorance of counsel in failing to perceive the point, or in failing to present it properly for review. How easy to get up cases, in the orc^nary affairs of life, of a misunder- standing of the law. Thus the same principle would extend to courts of equity for errors committed or assumed to be committed there. Under such a system of jurisprudence it would be difficult to reach the end of a lawsuit. In this case the statute of this state provided a mode of review of judgments rendered in the marine court. The time and the man- ner -were prescribed. This statute was well known to these parties, or should have been but for their negligence. Yet the plaintiff, with the statute before him, passed for the sole purpose of en- abling the party aggrieved to review a judgment in the marine court, comes to a court of equity for relief against his ignorance of the manner of obtaining such review. We are referred to no principle or authority to sustain such an action, and I think none can be found. On this point Chancellor Kent observed : "A subsequent decision of a higher court in a different case, giving a different exposition of a point of law from the one declared and known when a settle- ment between parties takes place, cannot have a retrospective effect and overturn such settlement. Every man is to be charged at his peril with a knowledge of the law." Lyon v. Richmond, 2 Johns. Ch. 51, 60. Though the decree in that case was reversed by the court of errors ( 14 Johns, 501 ) , it was entirely upon other grounds. In Storrs v. Barker, 6 Johns. Ch. 166; 10 Am. IDec. 316, where ■ignorance of the law was set up as a ground of defense, the court affirmed the rule that ignorance of the law with a knowledge of the facts was no ground of defense. See 1 Story Eq., § 120, to the same effect. Suppose the plaintiff had misunderstood Ihe statute as to the time of appeal, could a court of equity extend the time prescribed by the statute ? Many such cases have occurred from a misappre- hension of the law as to when a judgment is perfected. Courts of law could grant no relief, and I am not aware that any lawyer has supposed that a court of equity had any more power to extend the statute. In Champlin v. Laytin, 18 Wend. 407; 31 Am. Dec. 382, in the CHAP, v.] MORELAND V. ATCHISON. 693 court of errors on appeal from chancery, Bronson, J., reviewed the authorities in a sound opinion, showing as he claimed that there was really no authority against the rule that ignorance of the law simply was no ground for relief. The opinion of Paige, Senator, the other way, does not seem to me to be well grounded. He w|is of opinion that the judgment in that case could be affirmed upon other grounds. But the prin- ciple laid down by him denies relief to the plaintiff in this case He recognized a difference between ignorance of the law and a mistake of the law. Adopting the language of Johnson, J., in Lawrence v. Beaubien, 2 Bailey, 623; 23 Am. Dec. 155, who says : "The former is passive, and does not presume the reason. The latter presumes to know when it does not, and supplies pal- pable evidence, of its existence." He would grant relief in the former, not in the latter. , The difficulty of proving the one or the other seems to consti- tute all the difference in the cases. Without any special review of authorities on this question which we have particularly examined, it is enough to say that it is conceded that no case has been found warranting the interference of a court of equity upon facts like these, and no sound principle will authorize it. The decree must be reversed, without costs. All concur. MORELAND v. ATCHISON. (19 Tex. 303.) [Supreme Court of Texas, 1857.] Wheeler, J. Whatever differences of opinion adjudged cases may exhibit, as to the cases where the purchaser of land will be entitled to have the contract rescinded, or to be relieved against securities given for the purchase money, where there is no charge of fraud, it is clearly settled beyond controversy, that chancery will decree a return of the purchase money, for insufficiency of title, even after the purchase has been carried completely into execution, by delivery of the deed and payment of the money, and whether the deed was with or without covenants, provided there had been a fraudulent representation as to the title. (Edwards v. McLedy, Cooper's Eq. R. 308; Fenton v. Browne, 14 Ves., 144; 094 MORELAND V. ATCHISON. [CHAP. V. Denston v. Morris, 2 Edwards' Ch. R. 37; 2 Kent, Com. 471.) The petition avers such fraudulent representation; and the only question is, whether it was of a matter respecting which the party can claim to be relieved, on the ground of the deception and fraud, — whether he was not bound to know the law, which disabled the defendant from making title, and whether, to grant him relief woiild not be to relieve against ignorance or mistake of law. The maxim ignorantia legis neminem excusat, is respected equally in courts of equity and law. The legal presumption is, that every man who is not non compos mentis, knows the law, where he knows the facts ; and this presumption, though arbitrary and false in fact, is founded upon reasons of sound policy; for although a thorough knowledge of the law presupposes a life devoted to the laborious study of its principles, and in the application of the knowledge thus acquired, to the complicated affairs of men, there will questions arise upon which the best informed will differ in opinion, and no such thing as absolute certainty can be attained, yet without some arbitrary rule, imposing upon all the duty of well considering and understanding the consequences of their, acts and contracts, there would be no limit to the excuse of ignorance, no safety to society, and no security in any obligation. The law presumes therefore that every man who makes a contract, acts advisedly and with a knowledge of its legal effect and conse- quences. The question whether, in any case, mere ignorance or mistake of law will entitle a party to relief, has been much dis- cussed by judges and commentators, and is still a disputed ques- tion. (1 Story's Eq. Ch. 5, Sec. HI to 138.) Judge Story says that "agreements made and acts done under a mistake of law, are (if not otherwise objectionable) generally held valid and obliga- tory. The doctrine is laid down in this guarded and qualified manner, because it is not to be disguised, that there are authorities which are supposed to contradict it, or at least to form exceptions to it." (Id. Sec. 116.) Chancellor Kent was equally guarded in his statement of the rule, in Storrs v. Barker, (6 Johns. Ch. R, 169, 170.) The supreme court of the United States, in Hunt v. Rousmanier, (8 Wheaton, 214,) while they expressed a decided affirmation of the general rule, qualified it by the admission that it was not universal, and that there may be cases in which mere ignorance of law alone would entitle a party to relief in a civil matter, on the ground of the presumption of imbecility, or fraud, which might arise. In noticing this case, Chief Justice Robertson, in delivering the opinion of the court of appeals of Kentucky in CHAP, v.] MORELAND V. ATCHISON. 695 Underwood v. Brockman, (4 Dana, 309,) where he examines the subject in an elaborate opinion, says the court might have added also, the additiotial and more conclusive and plain ground of a want of consideration. In South Carolina and Kentucky the universal application of the general rule is not admitted. (Lowndes V. Chisholm, 2 McCord Ch. 455 ; Lawrence v. Beauhien, 2 Bail. 623; Hopkins' Ex^rs v. Mazyck, 1 Hill. Ch. 242; Underwood v. Brockman, 4 Dana, 309.) The review of the decisions by Judge Story, shows that there are very many apparent, and he dares not deny that there are some, though he thinks but few, real excep- tions to the general rule; and he says they generally stand upon some very urgent pressure of circumstances. (Story's Eq. Sec. 137.) The general rule, it has been truly said, is justified by considerations of public policy; and yet so harsh a rule, founded upon a presumption so arbitrary, ought to be modified in its application, by every exception which can be admitted without defeating its policy. "If there be, at the time a contract is entered into, a mistake of the law applicable thereto, which entirely modi- fies it, to enforce such an agreement is to create a new contract, which was never assented to understandingly, and to impose duties and liabilities, which the party never contemplated assum- ing. So, also, if there be a promise, or an actual performance of a contract; upon the supposition of liability, that liability be- comes the very basis of the contract, and its non-existence being an utter failure of consideration, an executory or executed contract founded thereupon, would, by one of the first principles relating to contracts, be wholly void." (Story on Con. 407, note.) Admit- ting the rule that ignorance of the law, with a knowledge of the facts, cannot generally be set up as a defence, (6 Johns. Ch. R. 169, 170,) there are other elements in the present case, which bring it within the exceptions, or take it out of the operation of the rule, and entitle the party to relief. It is not a case of mere ignorance of law, unmixed with fraud and ignorance of fact. There was both fraud and ignorance of fact, as well as law. And it has been the constant practice of courts of chancery to. grant relief, where the case did not depend upon a mere mistake of law, stripped of all other circumstances, but upon an admixture of other ingredients, going to establish misrepresentation, imposition, undue confidence, undue influence, or advantage taken of another's situation. (Story's Eq. 120, et seq. and notes.) There was, in this case; misrepresentation and fraud, if corruptly deceiving one, as to matter of law, amounts to fraud, in a legal sense ; and we 696 MORELAND V. ATCHISON. [CHAP. V. do not doubt that it may, where, as in this case, advantage is taken of the ignorance of the party. An immigrant arrives in the country, and his first object is to procure a home. He, of course, is ignorant respecting the land titles of the country ; and he meets with an old citizen who professes familiarity with them, and who proposes to sell him land to which he assures him he had a per- fectly good title. The immigrant relies on his superior informa- tion, and trusts to his representation ; and has he not a right to do so? When one who has had superior means of information, pro- fesses a superior knowledge, even of the law, and thereby obtains an unconscientious advantage of another, who is confessedly ignorant, and who has not been in a situation to be informed, is not the injured party as much entitled to relief, on the ground of fraud, as if the misrepresentation were of a matter of fact ? We think he is. The plaintiff is not supposed to have had a knowledge of the laws of this state until he came within their influence. Igiiorance of the law signifies ignorance of the laws of one's own country ; ignorance of the law of a foreign government, is ignor- ance of fact. {Haven \. Foster, 9 Pick. R. 112, 130.) To deny him relief against a ruinous contract, induced by the misrepre- sentation of one who professes a knowledge of the subject, and who has been in a situation to be informed, while he has not, and when, if he had been informed, he would not have made the contract, >vould not only be extremely unreasonable and unjust to the injured party, but it would be giving a premium to the other party for taking advantage of his ignorance. It would be plainly repugnant to good morals and fair dealing. There, can be no good reason why the law, in this case more than any other, should suffer one who has no right or title, to retain that which is the property of another. But the truth or falsehood of the representation did not depend upon a mere question of law ; nor would a knowledge of the law alone have enabled the plaintiff to detect its falsehood. He might have known that the land included within the boundaries of the colony was reserved by law from location and pre-emption, and still have been ignorant of the fact that this land was within the bounds of the reserved territory. Whether the defendant had or could make a good title to the land was a question of fact as well as law, no less iji this, than in other cases where there had been a prior appropriation of the land. The misrepresentation, there- fore, was of matter of fact, as well as layv. The consequence is, that the defendant has obtained the property of the plaintiff with- CHAP, v.] ROGERS Z/. INGHAM. 697 out consideration, and by means which do not divest the latter of his title, and ought not, on principle, to deprive him of his remedy. We conclude that the plaintiff has stated a case which entitled him to his action to recover back his property or its value ; and that the court erred in dismissing the petition. The judgment is therefore reversed and the cause remanded. ROGERS V. INGHAM. (L. R. 3 Ch. Div. 351.) [Chancery Division, 1876.] John Ingham, by his will, bequeathed the residue of his estate to W. Taylor and W. Ingham upon trust to divide the same be- tween his children and their children as therein mentioned. He died in 1847, and his will was proved by W. Taylor and W. Ingham. In 1866 Mary Rogers, one of the testator's children, who had, under the will, an estate for life in one-fourth of the estate, died, leaving, her surviving, two children, Martha Rogers and R. R. Rogers, and also Thomas Wheatley, husband and ad- ministrator of Hester Wheatley, another child, who had died in the lifetime of Mary Rogers. W. Ingham, who had survived W. Taylor, paid the interest in that one-fourth of the estate for some time equally between Martha Rogers and R. R. Rogers, being of opinion that the share of Hester Wheatley had gone to them as survivors, and after the death of R. R. Rogers he paid the interest to Martha Rogers as surviving. W. Ingham then died, and J. W. Ingham took out letters of administration to his estate. J. W. Ingham took the opinion of counsel on the will, and was advised that the share of Hester Wheatley did not survive, but had become vested in her, and passed to her husband as ad- ministrator, and, consequently, that the interest had been paid to Martha Rogers in error. Her solicitors took the opinion of another counsel, and wrote to the solicitors of J. W. Ingham as follows : "We have taken an opinion on this matter, and may as well state it confirms the opinion of your counsel, but whether our client will be satisfied or not with it we cannot say. It is certainly a very great disappointment to her, and will be very hard indeed should Mr. Ingham and Mr. Wheatley insist on making the deductions 698 ROGERS V. INGHAM. [CHAP. V. you propose. Surely Mr. Wheatley will not look for the whole of the arrears of interest being paid to him. You must admit it is a very hard case, as far as Mrs. Rogers is concerned. Will you kindly see your clients and write us what they are inclined to do, and we will endeavor to bring the matter to a conclusion at the end of the week." The solicitors of Mr. Ingham, however, made out an account of the whole estate, debiting Martha Rogers with interest as paid to her in mistake, making £274. 16s. 7d., as due to her from the estate of John Ingham. Some more letters as to the accounts passed, and on the 2d of July, 1873, a cheque for £274. 16s. 7d. was sent for Martha Rogers, and the receipt was acknowledged by her solicitors. At the same time £454. 15s. 3d. was paid to Thomas Wheatley as the share of Hester Wheatley, with the arrears of interest paid to Martha Rogers. as by mistake. On the 14th of June, 1875, Martha Rogers filed her bill against J. W. Ingham and Thomas Wheatley, stating the will of W. Ingham and submitting that, on the true construction of the will, the share did not vest in Hester Wheatley, but passed to R. R. Rogers (to whom Martha Rogers was administratrix), and Martha Rogers as surviving, and praying that Thomas Wheatley might be ordered to repay the same, with interest. The suit came on for hearing before Vice Chancellor Hall on the 13th of January, 1876. Hall, V. C. It appears to me that the plaintiff is not entitled to recall the money which was paid over to the defendant Wheat- ley, under the circumstances which are disclosed in his answer. [His lordship then stated the facts of the case.] There being a family dispute between the parties as to the true construction of this will, in order, no doubt, to avoid litigation, the fund was divided in a given way. That having taken place on the 2d of July, 1873, upon the 12th of August, 1875, two years afterwards, this bill is filed to raise the question of construction which had been the subject of discussion between the parties, and upon which two opinions had been taken, these two opinions agreeing as to the construction of the will. There has, up to this time, been no judicial determination to the contrary, and I think that the court should not, under the circumstances, put a judicial construction upon the will. It seems to me that the fund was divided as a matter of arrangement between the parties, and that having taken place more than two years before the bill was filed, I ought not to give the assistance of this court for the purpose of recalling CHAP, v.] ROGERS V. INGHAM. 699 that fund from the defendant, who received it upon the faith and footing of what took place on that occasion. This has been acquiesced in, and the executor has been permitted to distribute the fund accordingly, which fund, for aught I know, Wheatley may have spent and may not be in a position to restore. Under these circumstances, it appears to me that the plaintiff's case fails, and taking that view, it is not necessary for me to determine — ^nor do I determine — what is the true construction of the will. The plaintiff appealed, and the appeal came on to be heard on the 18th of July, 1876. James, L. J. I am of opinion that the judgment of the vice chancellor ought to be affirmed. In arriving at that conclusion I entirely put aside anytfiing that has been said about any supposed "or conditional consideration connected with the matter. It really is to be looked at as between the two persons who alone are now in litigation before us, — that is, the plaintiff on the one part, and Wheatley on the other part ; and the greater portion of the argu- ment seems to me to be disposed of by this consideration: that there really is no question of trust, trust estate, or trust money, to be dealt with. When a trustee, by the direction or with the authority of his cestui que trust, pays money to a third person, no matter under what claim of right, or under what circumstances, it is exactly the same as if the cestui que trust had received the money from the trustee, and had herself paid it to that person. It is simply a question of money paid by the lady, or by the lady's direction, out of money of hers which the trustee had in hand, to a person who said that he had a claim to the money. That be- ing so, it is reduced, as it appears to me, to a mere action for money had and received, and it is the same as if A., through a third person, had paid, money to B., thinking that B. was entitled to it, B. thinking, also, that he was entitled to it; there having been, as it is now said, a mistake of law which was common to both parties. No authority whatever has been cited to us in support of the proposition that an action for money had and received would lie against a person who has received money from another, with perfect knowledge of all the facts common to both, merely because it was said that the claim to the money was not well founded in point of law. Of course, cases of that kind must have continually occurred, and yet no case has been produced in which a suit of this kind has succeeded. And really, when it is treated as the common case of money paid to B. under a mis- take, the law on the subject was exactly the same in the old court 700 ROGERS V. INGHAm". [CHAP. V. of chancery as in the old courts of common law. There were no more equities affecting the conscience of the person receiving the money in the one court than in the other court, for the action for money had and received proceeded upon equitable considera- tions. Here the money has got into the hands of one person, and he received it honestly, with no mistake on his part, and no mistake on the part of the lady or the trustee, the intermediate hand through whom the money passed and by whom it was actually paid. I have no doubt that there are some cases, which have been relied on, in which this court has not adhered strictly to the rule that a mistake in law is not always incapable of being, remedied in this court; but relief has never been given in the case of a simple money demand by one person against another, there being,- between those two persons, no fiduciary relation whatever, and no equity to supervene by reason of the conduct of either of the parties. It is said that there have been two cases of that kind. In Bingham v. Bingham, 1 Ves. Sr. 126, a man was held to be entitled to get his money back when he had paid it for a convey- ance of his own land from, another person. It was held in that case that he was entitled to recover back the money because he had ^ not the consideration for which he had bargained. The other case is Davis v. Morier, 2 Colly. 303, where the relation of trustee and c,estui que trust existed between the parties ; but where the facts of that case come to be looked into, the person who received the whole income of the fund on trust to apply the same properly, and who was the trustee, retained to himself all, except £500 a year, and it appeared that the £500 a year was not all that he ought to have paid to the cestui que trust, and, that being so, Vice Chancellor Knight Bruce directed an inquiry — First, as to whether he had retained more than he ought to have retained; and, secondly, under what circumstances and whether the other cestuis que trustent had in any manner assented to such a retainer, that is to say, had acquiesced in it so as to show whether they had given it up. Therefore, there was there a question of a cestui que trust against a trustee, which trustee, no doubt under mistake, had retained trust money in his own possession. That is the nearest case that I have been able to find to the case now before us, but that case is far from establishing the . proposition contended for. If that proposition were true in re- spect to this case, it must be true in respect to every case in the high court of justice where money has been paid under a mistake CHAP, v.] ROGERS V. INGHAM. 701 as to legal rights, and it would open a fearful amount of litigation and evil in the cases of distribution of estates, and it would be difficult to say what limit could be placed to this kind of claim, if it could be made after an executor or trustee had distributed the whole estate among the persons supposed to be entitled, every one of them having knowledge of all the facts, and having given a release. The thing has never been done, and it is not a thing which, in my opinion, is to be encouraged. Where people have a knowledge of all the facts, and take advice, and, whether they get proper advice or not, the money is divided and the business is settled, it is not for the good of mankind that it should be re- opened by one of the parties saying: "You have received your money by mistake. I acquiesced in your receipt of it under that mistake, and, therefore, I ask you to give it to me back." I am of opinion, therefore, that the decision of the vice chancellor is. perfectly correct, and ought to be affirmed. Mellish, L. J. I am entirely of the same opinion. There is no doubt as to the rule of law that money paid with a full knowl- edge of all the facts, although, it may be, under a mistake of law on the part of both parties, cannot be recovered back ; and I think it is equally clear that, as a general rule, the court of equity did not, in such cases, interfere with the courts of law. Nothing, in my opinion, would be more mischievous than for us to say that money paid, for instance, under a mercantile contract, according to the construction which the parties themselves put upon that contract, might, years afterwards, be recovered, because perhaps some court of justice, upon a similar contract, gave to it a differ- ent construction from that which the parties had put on it. I think there is no doubt that the rule at law is in itself an equitable and just rule, which is not interfered with by courts of equity; but, on the other hand, I think that, no doubt, as was said by Lord Justice Turner, "this court has power (as I feel no doubt that it has) to relieve against mistakes in law as well as against mistakes in fact" {Stone v. Godfrey, 5 De Gex, M. & G. 90), that is to say, if there is any equitable ground which makes it, under the particular facts of the case, inequitable that the party who. re- ceived the money should retain it. Now, is there any such ground in this case? It appears that there was a trustee in possession of a fund which belonged either to the plaintiff or to the defendant. All the facts were perfectly well known. The trustee was in communication with both parties. Both parties were well aware that the question was then to be 702 ROGERS V. INGHAM. [CHAP. V. decided. The plaintiff's attention and the attention of the plain- tiff's legal advisers were called to all the facts and circumstances. She took advice upon the point, and she and her advisers being all of them aware that, if she had not assented to the view that the trustee took, the natural consequence would be that the money would have been paid into court under the trustee relief act, and that she would have been obliged to have tfie question then de- cided. Therefore, having all the facts before her, and Ijefore her solicitors, and being advised, she thinks it better for her not to contest the matter, but to allow it to be settled in that way ; and there is no doubt that she was advised properly. Thereupon the money was divided, and of course would not be paid into court, and the matter would not be litigated. Then the question is, whether a person who has acted in this way is now entitled, be- cause she has changed her mind, to litigate this question, which before she had been advised and had determined not to litigate. It seems to me that it would be contrary to the ordinary rule of law, and that the defendant is entitled to say: "I received this money believing it to be my own. The person by whose direction it was paid was the counter claimant against me. She knew all the facts, and elected at the time not to litigate the question, and therefore I have received the money just as if the question had been determined in open court." In my opinion, it would be most unsafe to estates in general if we were to hold, in a case of this kind, that money paid under those circumstances could be got back. I agree, therefore, with the lord justice in thinking that the judgment of the vice chancellor ought to be affirmed. ,Baggallay, J. A. I am of the same opinion, and I merely wish to add that, while I give a general assent to the passage in the judgment of Lord Brougham (3 Mylne & K. 99) which has been referred to in the course of the argument, in which he expressed himself to the effect that cases might arise in which it would be the duty of the court to relieve against an error of law, I do not think that the present is a proper case for the application of such a principle. JameSj L. J, The appeal will be dismissed, with costs. CHAP, v.] GLASS V. HULBERT. 703 B. Mutual Mistake. GLASS V. HULBERT. (102 Mass. 24.) [Supreme Judicial Court of Massachusetts, 1869.] Bill in equity for the reformation of a conveyance of lands, and for further relief. The case was reserved by the chief jus- tice "for the consideration and decision of the full court upon the question whether, upon the allegations of the bill, the plaintiff is entitled to relief in equity, and whether the plaintiff has not a full, adequate, and complete remedy at law; the defendant also relying in his answer upon the statute of frauds." Wells, J. The plaintiff purchased certain lots of the defend- ant, received a deed, and paid the whole amount of the purchase money. This suit is brought for relief or redress in several par- ticulars, dissimilar in character, but all connected with the alleged oral contract of purchase. He complains : First. That a proviso was inserted in his deed, imposing upon him the burden of sup- porting the whole fence upon the south line of the land conveyed ; and that he was induced to assent to its insertion upon the con- sideration, and false representation of the defendant, that the whole fence upon the east side of said land was to be maintained by the adjoining proprietor, Patrick McDaniels, by virtue of a written obligation to that effect, and that the plaintiff would be relieved from all liability to maintain any fence upon that side; as well as by certain other false representations of the defendant in relation theretd. Second. That he delivered to the defendant, in part payment of said purchase money, three bonds of the United States of $1,000 each, upon the agreement of the defendant that he would allow the full market value of the same, including premium and accrued interest at the time of the transfer thereof ; and that the defendant refuses to allow and pay him the value of such premium and interest, amounting together to the sum of $315 ; that sum being in excess of the whole purchase money due 704 GLASS V. HULBERT. [CHAP. V. to the defendant. Third. 'That during the negotiations for the sale and purchase of said lands the defendant pointed out the southeast corner of the premises proposed for sale, and repre- sented that the land of the adjoining proprietor, McDaniels, ex- tended to that point, and that the southerly line of the land sold would extend from the same corner to a point on the highway near a l^ridge ; that the deed was accordingly written and accepted, describing the land as bounded on the south by a line running from the southwest corner of land of said McDaniels, at right angles to the westerly line of said McDaniels, to the highway, the defendant representing said line to be the same line previously pointed out by him to the plaintiff, and that it would strike the highway within one rod of said bridge ; whereas in fact the land of said McDaniels did not extend so far as to the southeast cor- ner of the defendant's land as pointed out by him, and the south line, running at right angles therefrom to the highway, did not strike the same within one rod of said bridge; and the deed so written and accepted did not include -a considerable part of the land so offered and represented to be sold, and intended and un- derstood by the plaintiff to have been purchased by him ; the part so excluded consisting of about 17 acres of land, comprising the greater part of the meadow land in the tract as pointed out by the defendant. The defendant, by his bill, does not seek to rescind the contract and conveyance, and does not offer to reconvey or release to the defendant the land conveyed, nor pray that he may be allowed to do so, and recover back the purchase money paid and bonds delivered in payment. The relief prayed for is that the defendant may be required to convey to the plaintiff the portion of the tract which was so by fraud or mistake omitted from the conveyance already made to release the plaintiff from the proviso in his deed in regard to the fence, and to pay to the plaintiff the aforesaid amount of premium and interest upon said bonds. The argument of the plaintiff is addressed mainly to the ques- tion of the equity jurisdiction of this court in cases of fraud or mistake like that alleged in the present suit. There can be no doubt upon that point. There is no ground upon which jurisdic- tion in equity is so readily entertained and freely exercised. It is given to this court without restriction, if the parties have not a plain, adequate, and complete remedy at law. Gen. St. c. 113, § 2. JIaving jurisdiction, the question is as to 'the appropriate remedy. Jurisdiction in equity is often maintained, even when CHAP, v.] GLASS V. HULBERT. 705 there is a remedy at law, for the sake of the greater facility it affords for adapting the proper relief to the peculiar necessities - of each case. If the party suing is entitled to no relief other than that which may be had in an action at law, he is remitted to his remedy in that fomi. Even in a proper case for an appeal to equity the remedy must be sought in reference to certain recog- nized rules and principles of chancery jurisprudence, and is often restricted by provisions of positive law. It is not administered arbitrarily. It must flow out of and accord with the agreements and obligations of the parties, and be adapted to the condition of facts to which it is to be applied. In the present case, the principal ground of action is the fraud or mistake by which an important part of the subject-matter of the alleged contract of sale and purchase was omitted from the deed of conveyance. If the allegations of the bill should be sus- tained by the proofs, they would show a clear right to have a re- scission of the contract ; and, upon reconveyance of the land cov- ered by the deed, to have restoration of the bonds and money that were delivered in payment. But this relief the plaintiff does not seek ; and his bill contains no offer to reconvey, without which he cannot have such relief. The prayer of the bill, and its sole purpose in this particular, is that the defendant may be com- pelled to convey to the plaintiff the 17 acres of land which he alleges were included in the oral contract of sale, or represented by the defendant to be so included, but omitted from the deed. If the case stood merely upon the oral contract of sale, with a conveyance of part and a neglect or refusal to convey another part of the land which was the subject of the alleged contract, we do not think it would be contended that the plaintiff could compel a conveyance of the other land, against a party denying the con- tract and setting up the statute of frauds. Courts are bound to regard that statute in equity as well as at law. The only remedy in equity, in such case, would be by a rescission of the entire con- tract, in which the aid of the court could be obtained, if necessary, upon proper grounds. There has been no part performance here, such as, according to the general practice in courts of equity, would be held to take tlie case out of the statute of frauds. 1. Payment of the whole consideration is not stifificient for that purpose. Hughes v. Morris, 2 De Gex, M. & G. 356; Thampson v. Gould, 20 Pick. 134, 138; Browne, St. Frauds, § 461; Fry, Spec. Perf. § 403; Dale v. Hamilton, 5 Hare 369; Clinan v. 45 706 GLASS V. HULBERT. [CHAP. V. Cooke, 1 Schoales & L. 22, 41 ; Allen's Estate, 1 Watts & S. 383 ; Purceli v. Miner, 4 Wall. 513. 2. Possession by the purchaser, under such a deed as was given to the plaintiff, is possession according to the title thereby con- veyed; and is not such a possession as to afford ground for en- forcing an alleged oral agreement to convey other land, claimed to have been embraced in the same oral agreement with that con- veyed. Moale V. Buchanan, 11 Gill & J. 314. The plaintiff does not appear to have been let into actual possession of the 17 acres, nor to have been induced to do any acts thereon, as owner, under his supposed rights as purchaser. 3. The conveyance of a portion of the land is neither a part performance, nor is it a recognition of the alleged oral contract, so far as it relates to the remaining land not included in the deed. On the contrary, it is indistinct disregard and implied dis- avowal of such a contract. The deed was given and accepted in execution of the entire con'tract of sale. Its terms are in literal conformity with the agreement as made. The plaintiff concedes that the southern boundary was stipulated to be described as it is written in the deed, to wit, running from the southwesterly corner of land of McDaniels, and at right angles with his westerly line, to the highway. But the plaintiff claims that he in fact purchased the whole of a certain tract of land which included the 17 acres now in dis- pute ; that the description of the boundaries, as agreed upon and inserted in the deed, was so agreed on and inserted upon the representation of the defendant and the belief of the plaintiff that it did include said 17 acres ; and that the failure of the deed to embrape and convey that part of the land was occasioned either by the mutual mistake of the parties as to the position of the southwest corner of land of McDaniels, or else by the misrepre- sentation, deceit, and fraud of the defendant in relation thereto. In either alternative, the plaintiff contends that he is entitled to a reformation of the deed, to make it conform to the sale actually contracted by the parties. Such a reformation not only requires a description of the sub- ject-matter of the sale, different, from the express terms of the oral contract, but would enlarge the effect and operation of the deed as a conveyance. It involves the transfer of the legal title to land not covered by the deed already given. It requires a new deed to be executed and delivered by the defendant to the plaintiff. Whether that deed shall embrace the entire subject of the alleged CHAP, v.] GLASS V. HULBERT. 707 contract of purchase, with a corrected description to make it con- form to facts and abuttals as they were represented to be, or merely convey the 17 acres omitted from the deed already given, the order for its execution will enforce the specific performance of a contract for the sale of lands, for which there exists no memorandum, note, or other evidence in writing signed by the party to be charged therewith. As to the 17 acres in, dispute, the obligation to convey them rests solely in the oral contract. The defendant denies any contract which includes them. The plaintiff seeks to establish such a contract by parol evidence, and enforce it. The deed itself furnishes no means of making the correction sought for, and no evidence of the contract relied on for this purpose ; nor is' it in any sense an acknowledgment of the substance of the alleged oral agreement. The power to rectify deeds and other written instruments un- doubtedly exists in this court, under the clauses of the statqte giving equity jurisdiction in cases of fraud, accident, and mis- take, or the clause giving it generally where there is no adequate remedy at law. It has been exercised in several cases. Canedy v. Marcy, 13 Gray 373 ; Metcalf v. Putman, 9 Allen 97. But the power will be exercised in subordination to other fixed principles of ^a^v, and especially to statute provisions. If the rules, restrict- ing the administration of judicial remedies, which are prescribed by the statute of frauds, were to be disregarded in this branch of equity procedure, it would open the door to all the forms of fraud which that statute was intended to prevent. The statute is not a mere rule of evidence, but a limitation of judicial au- thority to afford a remedy. It requires that contracts for the sale of lands, in order to be enforced by judicial proceedings, must be substantiated by some writing. This provision of law cannot be dispensed with merely for the reason that the want of such writing was occasioned by accident, mistake, or fraudulent repre- sentations, unless some other ingredient enters into the case to give rise to equities stronger than those which stand upon the oral contract alone, which estop the other party from setting up the statute. It makes no difference whether the want of a writing was acci- dental or intentional, by way of refusal or by reason of mutual mistake ; nor that there were false representations, and a pretense of conveying the land, but a fraudulent evasion, by means whereof there was no conveyance in fact, and no proper written evidence of the agreement to convey. From the oral agreement there can 708 GLASS V. HULBERT. [CHAP. V. be derived no legal right, either to have performance of its stipu- lations or written'CvidenCe of its terms. So long, therefore, as the effect of the fraud or mistake extends no further than to prevent the execution, or withhold from the other party written evidence of the agreement, it does not furnish sufficient ground for the court to disregard the statute of frauds, and enter into the inves- tigation of the oral agreement for the purpose of enforcing it. And we do not see that the present case stands otherwise in this respect than it would if there had been no conveyance of any part of the land. As already shown, that conveyance was not in execution or recognition of the contract which the plaintiff seeks, by this bill, to enforce ; and does not furnish any reason for taking the case out of the statute, on the ground of part performance. Indeed, the rule seems to be that no part performance by the party sought to be charged will take an agreement out of the statute of frauds, except in those cases where the statute itself provides for such effect. It is part performance by the party seeking to enforce, and not by the other party, to which courts of equity look, in giving relief from the statute. Caton v. Caton, 1 Ch. App.. 137, L. R. 2 H. L. 127; Mundy v. Joliffe, 5 Mylne & C. 167; Buckmaster v. Harrop, 7 Ves. 369; Browne, St. Frauds, §453. When the proposed reformation of an instrument involves the specific enforcement of an oral agreement within the statute of frauds, or when the term sought to be added would so modify the instrument as to make it operate to convey an interest or secure a right which can only be conveyed or secured through an in- strument in writing, and for which no writing has ever existed, the statute of frauds is a sufficient answer to such a proceeding, unless the plea of the statute can be met by some ground of estop- pel to deprive the party of the right to set up that defence. Jor- dan v. Sawkins, 1 Ves. Jr. 402; Osborn v. Phelps, 19 Conn. 63; Clinan V. Cooke, 1 Schoales & L. 22. The fact that the omission or defect in the writing, by reason of which it failed to convey the land or express the obligation which it is sought to make it convey or express, was occasioned by mistake, or by deceit and fraud, will not alone constitute such an estoppel. There must concur, also, some change in the condi- tion or position of the party seeking relief, by reason of being induced to enter upon the execution of the agreement, or to do acts upon the faith of it as if it were executed, with the knowledge CHAP, v.] GLASS t'. HULBERT. 709 and acquiescence of the other party, either express or implied, for which he would be left without redress if the agreement were to he defeated. Upon a somewhat extended examination of the decisions in regard to the effect of the statute of frauds upon the right to have equitable relief where the writing is defective, although many of them, where relief has been granted, hardly come within this definition in the apparent character of the particular facts upon which they were decided, yet we are satisfied that this prin- ciple of discrimination is the only one which, can give consistency to the great mass of authorities upon this subject. The case of Smith v. Underdunck, 1 Sandf. Ch. 579, is nearly like the present in its facts ; and the opinion of the assistant vice- chancellor would seem to sustain the right of the plaintiff here. There was no fraud in the preparation of the deed. The judg- ment was based mainly upon the ground of part performance. It was held to be sufficient to take the case out of the statute that the plaintiff had been let into possession as purchaser ; and the opinion indicates that possession under and in accordance with a deed of part would be a sufficient possession of the whole for the purpose of requiring a deed of the remainder. But the decision rests upon the fact of possession by the plaintiff of the entire premises, in- cluding the part for which the bill was brought. The case arose upon demurrer to the bill, which of course admitted the contract, and the alleged possession of the whole tract. The question of the statute of frauds did not arise therefore. That the purchaser has been let into possession in pursuance of a parol agreement has been very generally recognized as sufficient to take it out of the statute. The reasoning by which this result was reached is far from satisfactory ; and even where the rule prevails there are frequent intimations that it is regarded as trenching too closely upon the spirit as well as the letter of the statute. If it were now open to settle the rule anew, we cannot doubt that it would be limited to possession accompanied with or followed by such change of position of the purchaser as would subject him to loss for which he could not otherwise have ade- quate compensation or other redress; and that mere change of possession would not be held to take a case out of the statute. However it may be elsewhere, we are disposed to hold the rule to be so in Massachusetts. Previously to the Statutes of 1855, c. 194, and 1856, c. 38 710 GLASS V. HULBERT. [CHAP. V. (Gen. St. c. 113, § 2), the power of the court to direct specific performance was confined to written contracts. Rev. St. c. 74, § 8. That power was held to be strictly limited to contracts in which the whole obligation to be enforced was expressed in the writing. D wight v. Pomeroy, 17 Mass. 303; Brooks v. Wheelock, 11 Pick. 439; Leach v. Leach, 18 Pick. 68; Buck v. Dowley, 16 Gray 555 ; Park v. Johnson, 4 Allen 259. The pro- vision conferring that power specifically in case of written con- tracts is still retained in the Gen. St. c. 113, § 2. If the sub- sequent clauses, conferring jurisdiction generally, are to be con- strued, as we think they are, to extend the power of the court, so as to give relief by way of specific performance, either of con- tracts wholly unwritten, or of stipulations proved by parol and incorporated into a contract by judicial rectification of a written instrument, as in Metcalf v. Putman, 9 Allen 97, still that power ought to be exercised with constant reference and in subordina- tion to the condition that "the party asking relief has not a plain, adequate, and complete remedy at common law," which accom- panied each enlargement of the equity power of the court, and which prefaces and closes the enumeration of those powers in the General Statutes. The force of this consideration is not lessened when applied to agreements within the statute of frauds. Mere possession of land does not expose the party to loss or danger of loss without redress at law. The parol agreement of sale and purchase, with permission to enter, though not to be enforced as a valid contract of sale, will constitute such a license as will protect the party from liability for acts done before the license is revoked, and for all acts necessary to enable him to remove himself and his property from the premises after such revocation. If possession be taken without such permission, ex- press or implied, it is no foundation for relief in equity, according to any of the authorities. The argument, for the admission of parol evidence to prove an agreement within the statute of frauds in order to enforce it in equity, drawn from the admissibility of such evidence to maintain a defence, either at law or in equity, seems to be based upon a misconception of the purport and force of the statute, which reaches no farther than to deny the right of action to enforce such agreements. In this commonwealth, the possession of land by a purchaser is not even notice to a third party of an unrecorded deed. The whole spirit of our laws in respect to real estate is against the CHAP, v.] GLASS Z;. HULBERT. 711 policy of enabling parties to acquire or confer title, either legal or equitable, by mereparol and delivery of possession. The pos- session of the plaintiff, therefore, even if it extended to the tract in dispute, is not sufficient to entitle him to relief against the statute. The principle, on which courts of equity rectify an instrument, so as to enlarge its operation, or to convey or enforce rights not found in the writing itself, and make it conform to the agreement as proved by parol evidence, on the ground of an omission, by mutual mistake, in the reduction of the agreement to writing, is, as we understand it, that in equity the previous oral agreement is held to subsist as a binding contract, notwithstanding the at- tempt to put it in writing ; and upon clear proof of its terms the courts compel the incorporation of the omitted clause, or the modification of that which is inserted, so that the whole agree- ment, as actually intended to be made, shall be truly expressed and executed. Hunt v. Rousmaniere, 1 Pet. 1 ; Oliver v. Mutual Commercial Marine Ins. Co., 2 Curt. 277, Fed Cas. No. 10,498. But when the omitted term or obligation is within the statute of frauds, there is no valid agreement which the court is author- ized to enforce, outside of the writing. In such case, relief may be had against the enforcement of the contract as written, or the assertion of rights acquired under it contrary to the terms and intent of the real agreement of the parties. Such relief may be given as well upon the suit of a plaintiff seeking to have a written contract, or some of its terms, set aside, annulled, or restricted, as to a defendant resisting its specific performance. Canedy v. Marcy, 13 Gray 373 ; Gillespie v. Moon, 2 Johns. Ch. 585 ; Keis- selbrack v. Livingston, 4 Johns. Ch. 148. Relief in this form, although procured by parol evidence of an agreement differing from the written contract, with proof that the difference was the result of accident or mistake, does not conflict with the provisions of the statute of frauds.. That statute forbids the enforcement of certain kinds of agreement without writing ; but it does not forbid the defeat or restriction of written contracts ; nor the use of parol evidence for the purpose of estab- lishing the equitable grounds therefor. The parol evidence is introduced, not to establish an oral agreernent independently of the writing, but to show that the written instrument contained something contrary to or in excess of the real agreement of the parties, or does not properly express that agreement. Higginson 712 GLASS V. HULBERT. [CHAP. V. \. (Clowes, 15 Ves. 516; Clowes v. Higginson, 1 Ves. & B. 524; Squier v. Campbell, 1 Mylne.& C. 459, 480.- But rectification by making the contract include obligations or subject-matter to which its written terms will not apply is a direct enforcement of the oral agreement, as much in conflict with the statute of frauds as if there were no writing at all. Mode v. Buchanan, 11 Gill& J. 314; Osbornw. Phelps, -19 Conn. 63; Elder V. Elder, 10 Me. 80. In Parkhurst v. Van Cortland, 14 Johns. 15, 32, it is said that, "where it is necessary to make out a contract in writing, no parol evidence can be admitted to supply any de- fects in the writing." Per Thompson, C. J. Such rectification, when the enlarged operation includes that which is within the statute of frauds, must be accomplished, if at all, under the other head of equity jurisdiction, namely, fraud. Irnham v. Child, 1 Brown Ch. 92 ; 1 Story, Eq. Jur. § 770a ; Davies v. Fitton, 2 Dru. & War. 225 ; Wilson v. Wilson, 5 H. L. Cas. 40, 65 ; Manser v. Back, 6 Hare 443; Clarke v. Grant, 14 Ves. 519; Clinan v. Cook, 1 Schoales & L. 22. The fraud most commonly treated as taking an agreement out of the statute of frauds is that which consists in setting up the statute against its performance, after the other party has been induced to make expenditures, or a change of situation in regard to the subject-matter of the agreement, or upon the supposition that it was to be carried into execution, and the assumption of rights thereby to be acquired ; so that the refusal to complete the execution of the agreement is not merely a denial of rights which it was intended to confer, but the infliction of an unjust and un- conscientious injury and loss. In such case, the party is held, by force of his acts or silent acquiescence, which have misled the other to his harm, to be estopped from setting up the statute of frauds. Hawkins v. Holmes, 1 P. Wms. 770; Parkhurst v. Van Cortland, l' Johns. Ch. 274, 14 Johns. 15; Browne, St. Frauds, § 437, et seq.; Fry, Spec. Perf. §§ 384-388; Caton v. Caton, 1 Ch. App. 137, 147, L. R. 2 H. L. 127. In the last named case it is said that "the right to relief in such cases rests not merely on the contract, but on what has been dorie in pursuance of the contract." Per JLord Chancellor Cranworth. See, also, 1 Story, Eq. Jur. § 579. But the present case, as we have already seen, does not come within the. principle of this ground of equi- table relief. Fraud, which relates only to the preparation, form, and execu- CHAP, v.] GLASS V. HULBERT. 713 tion of the writing, is sufficient to vitiate the instrument so made. It may be set aside either in equity or at law. If it is made to in- clude land not the subject of the actual sale, it is inoperative as to such landj and the fraud may be shown, for the purpose of defeating its recovery, in an action at law. Walker v. Swasey, 2 Allen 312, 4 Allen 527; Bartlett v. Drake, 100 Mass. 174. It has been questioned whether any other effect can be given to such fraud than to defeat the operation of the instrument alto-- gether ; and whether a court of equity can reform by giving it a narrower operation, as modified by parol proof, in a case within the statute of frjauds. Attorney General v. Sitwell, 1 Younge & C. Exch. 559. The difficulty is that, if the fraud vitiates and de- feats the instrument, then the modified agreement to be enforced must be that which is proved by parol evidence; and this seems to violate the statute. But the instrument, in such case, is not void. It is voidable only ; and that not at the election of the party who committed the fraud. He is not entitled to control the extent of the effect that shall be given to his fraudulent conduct ; and it is not for him to object that the fraud is availed of only to defeat the rights, which he has secured by fraud, beyond what he is fairly entitled to by the terms of the real agreement between the parties. When those are separable, and the nature of the case will admit of it, the court may enforce the written contract in accordance with its terms, giving relief against the fraudulent excess, or the clause improperly inserted. Parol testimony, used to defeat a title or limit an interest acquired under a written in- strument, or to convert it into a trust, does not necessarily con- flict with the statute of frauds. It has been held that an absolute deed may, in this mode, be controverted, in equity, into a mort- gage. Washburn v. Merrill, 1 Day 140; Taylor v. Luther, 2 Sumn. 228, Fed. Cas. No. 13,796; Jenkins v. Eldredge, 3 Story 181, 293, Fed. Cas. No. 7,266; Morris v. Nixon, 1 How. 118; 4 Kent, Comm. (6th Ed.) 143. Whether this can be done in Massachusetts has not yet been decided. Newton v. Fay, 10 Allen 505. But if it were to be so held, it would not be upon the ground of enforcing a parol agreement to reconvey ; but upon the ground that such an agreement, together with proof that the deed was given and accepted only as security for a debt, made out a case of fraud, or trust, which would warrant a decree vacating the title of the grantee, as far as he attempted to hold contrary to the purposes of the conveyance. In such cases the court acts upon 714 GLASS V. HULBERT. [CHAP. V. the estate or rights acquired under the written instrument; and within the power over that instrument which is derived from the fraud or other ground of jurisdiction. But when it is sought to extend that power to interests in land not included in the in- strument, and in relation to which there is no agreement in writ- ing, the case stands differently. Fraud may vitiate the writing which is tainted by it, but it does not supply that which the statute requires. It may destroy a title or right acquired by its means; but it has no creative force. It will not confer title. In the ab- sence of a legal contract by the agreement of the parties, it will not establish one, nor authorize the court to declare one, by its decree. This distinction is illustrated by the analogous rule in regard to implied trusts; Gen. St. c. 100, § 19. Parol evidence may charge the grantee of lands conveyed with a resulting or implied trust, which equity will enforce. But such evidence will not cre- ate a trust in lands already held by an absolute title. A fraudulent misrepresentation, although sufficient to sustain an action for damages, cannot be converted into a contract to be enforced as such. Neither will it furnish the measure by which a written contract may be reformed. In this discussion we have asstimed that there was a clear agreement between the parties, which the deed fails to carry out, and to which it might properly be made to conform, but for the obstacle in the statute of frauds. It has- been often asserted that where one by deceit or fraudulent contrivance prevents an agreement intended to be put in writing from being properly written or executed, he shall not avail him- self of the omission, and shall not be permitted to set up the statute of fraud against the proof and enforcement of the parol agreement, or of the parol stipulation improperly omitted. But in our opinion this doctrine would practically annul the statute. The tendency of the human mind, when fraud and injustice are manifest, is to strain every point to compass its defeat; and to render full redress to the party upon whom it has been practiced. Mundy v. JolMe, 5 Mylne & Co. 167 ; Taylor v. Luther, 2 Sumn. 233, Fed. Cas. No. 13,796. This influence has led to decisions in which the facts of the particular case were regarded more than the general considerations, of public policy upon which the statute is founded and entitled to be maintained. Courts have sometimes regarded it as a matter of judicial merit to wrest from under the statute all cases in which the lineaments of fraud in any form CHAP, v.] GLASS V. HULBERT. 715 were discernible. But the impulse of moral reprobation of de- ceit and fraud, however commendable in itself, is liable to mis- lead, if taken as the guide to judicial decrees. We apprehend that in most instances where fraud occasioning a failure of written evidence of an agreement or particular stipu- lation has been held to take the case out of the statute of frauds, there was some fact of prejudice to the party, or change of situa- tion consequent upon the fraud, which was regarded as sufficient to make up the elements of an equitable estoppel. In such case, the argument is transferred to the simple question of the suf- ficiency of the additional circumstance for that purpose. The cases most frequently referred to are those arising out of agree- ments for marriage settlements. In such cases the marriage, although not regarded as a part performance of the agreement for a marriage settlement, is such an irretrievable change of situation, that, if procured by artifice, upon the faith that the settlement had been, or the assurance that it would be, executed, the other party is held to make good the agreement, and not permitted to defeat it by pleading the statute. Maxwell v. Mountacute, Prec. Ch. 526; Browne, St. Frauds, §§ 441-445. Another class of cases are those where a party acquires prop- erty by conveyance or devise secured to himself under assurances that he will transfer the property to, or hold and appropriate it for the use and benefit of, another. A trust for the benefit of such other person is charged upon the property, not by reason merely of the oral promise, but because of the fact that by means of such promise he had induced the transfer of the property to himself. Brown v. Lynch, 1 Paige 147 ; Thynn v. Thynn, 1 Vern. 296 ; Oldham v. Litchfield, 2 Vern. 506 ; Devenish v. Baines, Prec. Ch. 3; 1 Story, Eq. Jur. § 768. When these cases are cited in support of the doctrine that ar- tifice or fraud in evading or preventing the execution of the writ- ing is alone sufficient to induce a court of equity to disregard the statute and enforce the oral agreement, the subsequent change of situation or transfer of property, without which the deceit would be innocuous, seems to be overlooked, because it is not strictly in part performance of the agreement sought to be enforced. It must be manifest, however, that without such consequent act there would be no standing for the case in a court of equity. That which moves the court to a decree to enforce the agreement is not the artifice by which the execution of the writing has been 716 GLASS V. HULBERT. [CHAP. V. evaded, but what the other party has been induced to do upon the faith of the agreement for such a writing. It is not that deceit, misrepresentation, or fraud, of itself, entitles a party to an equi- table remedy ; but that equity will interfere to prevent the accom- plishment of the fraud which would result from the enforcement of legal rights contrary to the real agreement of the parties. Indeed, the fraud which alone justifies this exercise of equity powers by relief against the statute of frauds consists in the at- tempt to take advantage of that which has been done in per- formance or upon the faith of an agreement, while repudiating its obligations under cover of the statute. When a writing has been executed, the courts allow the fraud or mistake by which an omission or defect in the instrument has been occasioned to defeat the conclusiveness of the writing, and open the door for proof of the real agreement. But the obstacle of the statute of frauds to the enforcement of obligations, or the se- curity, of rights not expressed in the instrument remains to be removed in the same manner as if there were no writing. Phyfe v. Warden, 2 Edw. Ch. 47; Mode v. Buchanan, U Gill & J. 314. The power to reform the instrument is not an independent power or branch of equity jurisdiction, but only a means of exercising the power of the court under its general jurisdiction in cases of fraud, accident, and mistake. We are aware that the limitation which we have undertaken to define has not been uniformly observed or recognized. In Wiswall v. Hall, 3 Paige 313, Chancellor Walworth granted a perpetual injunction, and ordered a deed of release of title to land omitted from a deed by fraud and secret contrivance. There , was no discussion of the authorities, nor of the principles upon which the case was decided; and no reference to the statute of frauds; and the. statute does not appear, by the report, to have been set up against the prayer for relief. In De Peyster v. Hasbrouck, 11 N. Y. 591, a similar decision was made in the court of appeals in New York. Here again there is no reference to the statute of frauds, no discussion of the principles involved in the decision, and no authority or precedent cited except that of Wiswall v. Hall. The mortgagor whose deed was reformed put in no answer whatever. The defence was made by parties claiming under him, and the statute of frauds does not appear to have been pleaded. Denio, C. J., in giving the opinion, proceeds to say: "It is unnecessary CHAP, v.] GLASS V. HULBERT. 717 to refer to cases to establish the familiar doctrine that when through mistake or fraud a contract or conveyance fails to ex- press the actual agreement of the parties, it will be reformed by a court of equity, so as to correspond with such actual agreement. The English cases have been ably digested by Chancellor Kent, and the principle has been stated with his accustomed care and accuracy, in Gillespie v. Moon, 2 Johns. Ch. 585." But in Gillespie v. Moon the relief sought and granted was by way of restricting, and not by enlarging, the operation of the deed. Such relief would not, as already- shown, conflict with the statute of frauds ; and neither the discussion in that case nor the citation of authorities had reference to the bearing of the statute of frauds upon the question of affording relief upon contracts relating to land. Indeed, the English cases furnish but little aid upon that point, for the reason that the courts there have gen- erally, without reference to the statute of frauds, refused to en- force written contracts with a modification or- variation set up by parol proof. Woollam v. Hearn, 7 Ves. 211, and notes on the same in 2 Lead. Cas. Eq. 404; Nurse v. Seymour, 13 Beav. 254. The principle which was maintained by Chancellor Kent, and upon which the English authorities were cited by him in Gillespie ' v. Moon, was that relief in equity against the operation of a writ- ten instrument, on the ground that by fraud or mistake it did not express the true contract of the parties, might be afforded to a plaintiff seeking a modification of the. contract, as well . as to a defendant resisting its enforcement. That proposition must be considered as fully established. 1 Story, Eq. Jur. § 161. It is quite another proposition, to enlarge the subject-matter of the con- tract, or to add a new term to the writing, by parol evidence, and enforce it. No such proposition was presented by the case of Gillespie v. Moon, and it does not sustain the right to such relief against the statute of frauds. That Chancellor Walworth, in Wiswall v. Hall, did not intend to decide that the statute of frauds could be disregarded if prop- erly set up against such an enlargement of the operation of the written contract is apparent from the remarks of the same learned judge in the subsequent case of Cowles v. Bowne, 10 Paige 535. He says: "Whether a party can come into this court for the specific performance of a mere executory agreement for the sale of lands, which in its terms is materially variant frOm the written agreement between the parties that has been executed according 718 GLASS V. HULBERT. [CHAP. V. to the statute, where there has been no part performance or other equitable circumstance sufficient to take the case out of the statute of frauds, as a mere parol contract between the parties, is a question which it will not be necessary for me to consider in this case." In Gouverneur v. Titus, 1 Edw. Ch. 480, there was a deed of land described as being in the northwest corner of a township by mistake for the northeast corner. The grantor admitted the real contract; and had corrected the mistake by deed. The only ques- tion was whether equity would enforce the corrected deed against the lien of a judgment creditor, who had notice of the mistake. In the opinion it is said : "It is a case in which this court would interfere, as between the immediate paities, to correct the mis- take.v" The judgment was clearly right. The dictum we are disposed to question, unless the deed itself contained some other description by means of which the land might be identified and the mistake corrected. In Newson v. Bufferlaw, 1 Dev. Eq. 379, a deed was reformed, which was made by fraud, to include land not sold; and the fraudulent grantee was required to execute a reconveyance of the excess. The opinion contains a remark of the court that this power may be exercised as well by inserting what was omitted as by striking out what was wrongfully included. But this re- mark is clearly obiter dictum, and is not sustained by the authority cited, namely, Gillespie v. Moon. In Blodgett v. Hobart, 18 Vern. 414, a mortgage was reformed by including other lands omitted by mistake. The statute of frauds was not set up in the answer nor referred to in the opinion of the court, and the answer was considered by the court to be evasive in regard to the alleged agreement for security upon such other lands. In Tilton v. Tilton, 9 N. H. 385, the court controvert the doc- trine of such a limitation, as declared in Elder V. Elder, 10 Me. 80; but the decision did not involve the question so discussed The case arose from an attempted partition between tenants in common of real estate. There was a written agreement for par- tition accbrding to the award of certain arbitrators named, and the only question was as to the effect of a substitution of other arbitrators by parol. Deeds had been executed, and the plaintiff had fully performed his part of the agreement. It was a case of part performance sufficient to take the case out of the statute of CHAP, v.] GLASS V. HULBERT. 719 frauds, and was decided upon that ground. Besides, a partition of lands, though effected by mutual deeds of release, is not a con- tract for the sale of land. Craig V. Kittridge, 3 Fost. (N. H.) 231, arose upon a parti- tion, and was decided upon the authority of Tilton v. Tilton. Smith V. Greeley, 14 N. H. 378, was a decree upon default, with- out argument or opinion, against the executors and heirs of a party whose deed, by mutual mistake, failed to include certain land sold. It does not appear whether there was written evidence of the agreement, nor whether there 'was possession or acts of performance. It was sufficient, perhaps, that the statute was not pleaded, and the default admitted the agreement. Caldwell v. Carrington, 9 Pet. 86, was an agreement for ex- change of lands, and stands entirely upon the ground of part performance. Notwithstanding contrary decisions and dicta, we are satisfied that upon principle the conveyance of land cannot be decreed in equity by reason merely of an oral agreement therefor against a party denying the alleged agreement and relying upon the statute of frauds, in the absence of evidence of change of situation or part performance creating an estoppel against the plea of the statute. This rule applies as well to the enforcement of such an agreement by way of rectifying a deed as to a direct suit for its specific performance. We are satisfied also that this is the rule to be derived from a great preponderance of the authorities. Whitchurch v. Bevis, 2 Brown, Ch. 559; Woollam v. Hearn, 7 Ves. 211; 2 Lead. Cas. Eq. (3d Am. Ed.) notes,' [*414], Am. Notes, 691 ; Townshend v. Stangroom, 6 Ves. 328 ; Beaumont v. Bramley, Turn. & R. 41. See, also, Moale v. Buchanan, 11 Gill & J. 314 ; Osborn v. Phelps, 19 Conn. 63 ; and Elder v. Elder, 10 Me. 80, already cited above; Adams, Eq. 171, 172; Churchill v. Rogers, 3 T. B. Mon. 81 ; Purcell v. Miner, 4 Wall. 513. The prayer in regard to the fence stands differently. If that stipulation had been fraudulently inserted in the deed, the agree- ment being otherwise, the deed might be reformed by striking out that provision, or requiring a release of it, so as to make the writing correspond with the actual agreement. But upon the allegations of the bill there Is no other agreement by which to reform the deed, and to which to make it conform. The plaintiff admits that the stipulation in the deed is precisely in accordance with the actual agreement. The fraud which he alleges relates 720 HITCHINS V. PETTINGILL. [CHAP. V. only to the consideration or inducement upon which he was led to make that agreement; not to the forrji of the agreement itself. If that stipulation were to be stricken out, the writing would then not express the agreement actually made by the parties. The court cannot rectify an instrument otherwise than in accordarice with the actual agreement. It cannot make an agreement for the parties. Hunt v. Rotismaniere, 1 Pet. 1, 14; Brooks V. Stolley, 3 McLean 523, Fed. Cas. No. 1,962. If the subject-matter of this stipulation were of sufficient materiality, the fraud alleged might have the effect to defeat the whole in- strument. But this effect is not sought. The plaintiff's remedy, therefore, is at law, in damages for the deceit and false repre- sentation. The alleged agreement in regard to the premium and accrued interest upon the bonds transferred in payment for the land will not sustain a bill in equity. If such an agreement was made and broken, we see no reason why an action of assumpsit will not lie upon the agreement, or for the overpayment of the agreed price of the purchase. The remedy at law is as effectual as it can be in equity. The entry must therefore be. Bill dismissed. HITCHINS V. PETTINGILL. (58 iV. H.386.) [Supreme Court of New Hampshire, 1878.] FosTBR, J. When reformation is sought of a deed, which, /through fraud or- mistake, conveyed less land than was orally bought and paid for, the case does not stand as if there were no deed ; and the error may be corrected without proof of such part performance as is necessary for a decree of specific performance compelling a conveyance of the whole land when no part of it has been conveyed. 1 Story, Eq. Jur. §§ 152-161 ; Adams, Eq. 169, 171 ; 3 Greenl. Ev. §§ 360, 363 ; Bloomer v. Spittle, Fisher, Ann. Dig. (1872) 131; Tilton v. Tilton, 9 N. H. 385, 392; Purcell v. Miner, 4 Wall. 513; Prescott v. Hawkins, 12 N. H. 19; 28; 16 N. H. 122; Way v. Cutting, 17 N. H. 450, 451 ; Bellows v. Stone, 14 N. H. 175, 201 ; Smith v. Greeley, 14 N. H. 378 ; Craig v. Kitt- redge, 23 N. H. 231, 236; Busby v. LittleMd, 31 N. H. 193, 199, CHAP, v.] HITCHINS V. PETTINGILL. 721 33 N. H. 76; Webster v. Webster, 33 N. H. 18, 22, 23, 25; Doe V. Doe, 37 N. H. 268, 285 ; Herbert v..Odlin, 40 N. H. 267 ; Brown V. Glines, 42 N. H. 160; Kennard v. George, 44 N. H. 440; Leach V. Noyes, 45 N. H. 364 ; Peterson v. Grover, 20 Me. 363 ; Farley V. Bryant, 32 Me. 475 ; Tucker v. Madden, 44 Me. 206 ; Adams v. Stevens, 49 Me. 362; Bwn- v. Hutchinson, 61 Me. 514; Beardsley V. ifni^Af, 10 Vt. 185, 190; Griswold v. S'wM, 10 Vt. 452; Goorfe« V. FieW, 15 Vt. 44«; Blodgett v. //o&af^, 18 Vt. 414; Brown V. Lamphear, 35 Vt. 252; Shattuck v. Goy, 45 Vt. 87;. /4//eM V. Brown, 6 R. I. 386; Holabird v. BMrr, 17 Conn. 556; Wooden v. Haviland, 18 Conn. 101 ; Stedwell v. Anderson, 21 Conn. 139; Knapp v. W^te, 23 Conn. 529; Blakeman v. Blake- man, 39 Conn. 320; Gillespie v. Moon, 2 Johns. Ch. 585 ; Wiswall V. ifaS, 3 Paige 313; Johnson v. Tafe^r, 10 N. Y. 319; £>e P^y- .yft-r V. Hasbrouck, 11 N. Y. 582; Rider Y.Powell, 28 N. Y. 310; Welles V. Foto, 44 N. Y. 525; Bush v. Hicks, 60 N. Y. 298; Ginschio V. Ley, 1 Phila. 383 ; Bartle v. Vosbury, 3 Grant, Cas. 277; fTyc/i^ v. Greene, 16 Ga. 49; DMrawf v. Bacot, 13 N. J. Eq. 201 ; Wetter v. Rolason, 17 N. J. Eq. 13 ; Ehleringer v. Moriarty, 10 Iowa 78; Barber v. Lyo«, 15 Iowa 37; Canedy v.Marcy, 13 Gray 373 ; Metcdf v. Putnam, 9 Allen 97, 100. In the last of these cases, Bigelow, J., delivering the opinion, says: "Upon elementary principles, the plaintiff is entitled to have his deed reformed so that it may truly set forth the whole contract. * * * Upon proof of fraud in the omission of material stipulations in a written contract, a court of equity will admit parol evidence to establish the agreement, as it was under- stood and concluded between the parties." The defendants rely upon Glass v. Hulber't, 102 Mass. 24, where the doctrine of re- formation of written contracts was subjected to a limitation at variance with the settled law of this state. A court cannot disregard a valid statute, nor regard it with favor or disfavor, nor take out of its operation a case that is within it, nor grant relief,.at law or in equity, against it. The judicial question is. What purpose of the legislature appears in its acts, upon the established rules of construction ? "No action shall be maintained upon a contract for the sale of land, unless the agreement upon which it is brought, or some memorandum thereof, is in writing." Gen. St. c. 201, § 12. "The Supreme Court shall have the powers of a court of Equity in cases cog- nizable in such 'court, and may hear and determine, according to 4S 722 HITCHINS V. PETTINGILL. [CHAP. V. the course of equity, in case of charitable uses, trusts, fraud, accident, or mistake ; * * * Qf specific performance of con- tracts; * * * and in all other cases where there is riot a plain, adequate, and complete remedy at law." Gen. St. c. 190, § 1. These provisions, though printed in dififerent chapters, are consistent parts of one law. We are not to give either of them a strained construction, liberal or strict, for the special pur- pose of justice in a particular case, or for the general purpose of making the law what in our judgment it ought to be. The mean- ing of one act may be shown by other acts. There may be sev- eral acts, neither of which can be properly administered in a particular case, except as part of one law comprising them all. It may be necessary to consider one statute on any subject a- part of the whole law, statutory and common, on that subject, as it is necessary to consider one section or word of a statute a part of that statute. The statute of frauds, severed from all other law, written and unwritten, and taken in its literal sense, would deny these plaintififs the relief of specific performance, even if they had taken possession of the ten-acre lot and made valuable improve- ments upon it, and would leave people remediless in a great num- be'r of cases of fraud, accident, or mistake, for which ample reme- dies are provided by the statute of equity jurisdiction; and the latter statute, torn from the general body of the law, taken liter- ally, and administered as if there were no other law, would de- prive the community of safeguards which the statute 6i frauds and the common law were designed to afford, and which the statute of equity was not designed to take away. The well-known general objects of these statutes are the principal guides for their construction. The statute of equity authorizes this court to ad- minister the legal principles of the general system of equity, which, as a great branch of the law of their native country, was brought over by the colonists, and has always existed as a part of the common law, in its broadest sense, in New Hampshire. V. Pierce, 27 N. H. 503, 512; Walker v. Cheever, 35 N. H.= -. 349. The statute of frauds prevents wrong being done in cer- tain cases by the testimony of witnesses. If, without written evidence of a contract for the sale of land, the vendee pays for the land, and, with the knowledge and consent of the vendor, takes possession of it, and makes valuable improve- ments upon it, he is. entitled to the relief of specific performance. Upon the literal construction of the statute of frauds there could CHAP, v.] GRYMES V. SANDERS. 723 not be a decree for specific performance in such a case, and there could not be, by parol evidence, a reformation of a deed enlarging its operation; but the statute, rightly construed, does- not destroy either of these remedies, as the statute of limitations does not de- stroy the remedy in cases of fraudulent concealment of the cause of action (Bank v. Fairbanks, 49 N. H. 131, 141), as the registry laws do not destroy the effect of actual notice of an unrecorded deed (Gooding v. Riley, SO N. H. 400), and as the statute of frauds does not disturb a boundary fixed" by parol agreement and possession (Kellogg v. Smith, 7 Cush. 375; Knowles v. Tooth- aker,58Me.l72). The plaintiffs are entitled to a decree for a conveyance of the ten-acre lot. Case discharged. Stanley, J., did not sit. C. Mistake of Fact. GRYMES V. SANDERS. (93 U. S. 55.) [Supreme Court of the United States, 1876.] Appeal from the Circuit Court of the United States for the eastern district of Virginia. Mr. Justice Swayne. The appellant was the defendant in the court below. The record discloses no ground for any imputation against him. It was not claimed in the discussion at the bar, nor is it insisted in the printed arguments submitted by the counsel for the appellees, that there was on his part any misrepresenta- tion, intentional or otherwise, or any indirection whatsoever. Nor has it been alleged that there was any intentional misrepresenta- tion or purpose to deceive on the part of others. The case rests entirely upon the ground of mistake. The ques- tion presented for our determination is whether that mistake was of such a character, and attended with such circumstances, as en- title the appellees to the relief sought by their bill and decreed to them by the court below. Peyton Grymes, the appellant, owned two tracts of land in Orange county, Va., lying about twenty-five miles from Orange 724 GRYMES V. SANDERS. [CHA*. V. courthouse. The larger tract was regarded as valuable, on ac- count of the gold supposed to be upon it. The two tracts were separated by intervening gold-bearing lands, which the appellant had sold to others. Catlett applied to him for authority to sell the two tracts, which the appellant still owned. It was given by parol; and the appellant agreed to give, as Catlett's compensa- tion, all he could get for the property above $20,000. Catlett ofifered to sell to Lahagan. Lanagan was unable to spare the time to visit the property, but proposed to send Howel Fisher to ex- amine it. This was assented to; and Catlett thereupon wrote to Peyton Grymes, Jr., the son of the appellant, to have a convey- ance ready for Fisher and himself at the courthouse upon their arrival. The conveyance was provided accordingly, and Peyton Grymes, Jr., drove them to the lands. They arrived after dark, and stayed all night at a house on the gold-bearing tract. Fisher insisted that he must be back at the courthouse in time to take a designated train east the ensuing day. This involved the neces- sity of an early start the next morning. It was arranged that Peyton Grymes, Jr., should have Peyton Hume, who lived near at hand, meet Fisher on the premises in the morning and show them to him, while Grymes got his team ready for their return to the courthouse. Hume met Fisher accordingly, and showed him a place where there had been washing for surface-gold, and then took him to an abandoned shaft, which he supposed was on the premises. There Fisher examined the quartz and other debris lying about. But a very few minutes had elapsed when Grymes announced that his team was ready. The party immediately started back to the courthouse. Arriving too late for the train, they drove to the house of the appellant; and Fisher remained there until one o'clock that night. While Fisher was there, con- siderable conversation occurred between him and the appellant in relation to the property ; but it does not appear that anything was said, material to either party in this controversy. Fisher pro- ceeded to Philadelphia, and reported favorably to Lanagan, and subsequently, at his request, to Repplier, who became a party to the negotiation. He represented to both of them that the aban- doned shaft was upon the premises. Catlett went to Philadelphia, and there he sold the property to the appellees for $25,000. Fisher was sent to the courthouse to investigate the title. He -employed Mr. Williams, a legal gentleman living there, to assist him. A deed was prepared by Mr. Williams, and executed by CHAP, v.] GRYMES V. SANDERS. 725 the appellant on the 21st of March, 1866. On the 7th of April ensuing, the appellees paid over $12,500 of the purchase-money, and gave their bond to the appellant for the same amount, payable six months from date, with interest. The deed was placed in the hands of a depositary, to be held as an escrow until the bond should be paid. Catlett, under a power of attorney, received the first installment, paid over to the appellant $10,000, and retained the residue on account of the compensation to which he was entitled under the contract between them. The vendees requested Hume to hold possession of the property for them until they should make some other arrangement. He occupied the premises until the following July, when, with their consent, he transferred the possession to Gordon. In that month, Lanagan and Repplier came to see the property. Hume was there washing for gold. He began to do so with the permission of the appellant before the sale, and had continued the work without intermission. The appellees desired to be shown the boundary-lines. Hume said he did not know where they were, and referred them to Johnson. Johnson came. The appellees desired to be taken to the shaft which had been shown to Fisher. Johnson said it was not on the premises. Hume thought it was. Johnsofl was positive ; and he was right. The appellees seemed surprised, but said little on the subject. They proceeded to examine the premises within the lines, and, before taking their departure, employed Gordon to ex- plore the property for gold. Subsequently this arrangement was abandoned, and they paid him for the time and money he had expended in getting ready for the work. In September, they sent Bowman as their agent to make the exploration. On his way, he stopped at the courthouse, and told the appellant that the shaft shown to Fisher as on the land was not on it. The appellant -replied instantly, "that there was no shaft on the land he had sold to Repplier and Lanagan, and that he had never represented to any one that there was a shaft on the land, and that he had never authorized any one to make such a representation, nor did he know or have reason to believe that any such representation had, in fact, been made by any one." It does not appear that his at- tention had before been called to the subject, or that he was before advised that any mistake as to the shaft had occurred. Bowman spent some days upon the land, and made a number of cuts, all of which were shallow. The deepest was only fifteen feet in depth. It was made under the direction of Embry and John- 726 GRYMES V. SANDERS. [CHAP. V. son, two experienced miners living in the neighborhood. It reached a vein of quartz, but penetrated only a little way into it. They thought the prospect very encouraging, and urged that the cut should be made deeper. Bowman declined to do anything more, and left the premises. No further exploration was ever made. Johnson says, "I know the land well, and know there has been gold found upon it, and a great deal of gold, too, — that is to say, surface-gold, — ^but it has never been worked for vein-gold. The ^old that I refer to was found by the defendant, Grymes, and those that worked under him." He considered Bowman's examination "imperfect and insuffi- cient." He had had "twenty-three years' experience in mining for gold." Embry's testimony is to the same effect, both as to the surface- gold and the character of the examination made by Bowman. The premises lie between the Melville and the Greenwood Mines. Before the war, a bucket of ore, of from three to four gallons, taken from the latter mine, yielded $2,400 of gold. This, how- ever, was exceptional. In the spring of 1869 a vein was struck, from forty to fifty feet below the surface, yielding $500 to the ton. Work was stopped by the influx of water. It was to be resumed as soon as an engine, which was ordered, should arrive. Ore at that depth, yielding from eight to ten dollars a ton, will pay a profit. Embry says he is well acquainted with the courses of the veins in the Melville and the Greenwood Mines, and that "the Greenwood veins do pass through the land in controversy, and some of the Melville veins do also." Speaking of Bowman and his last cut, he says : — "At the place I showed him where to cut he struck a vein, but just cut into the top of it; he did not go down through it, or across it. From the appearance of the vein, I was very certain that he would find gold ore, if he would cut across it and go deep into it, and I told him so at the time ; but he said that they had sent for him to return home, and he couldn't stay longer to make the examination, and went of3F, leaving the cut as it was; and the exploration to this day has never been renewed. I am still satisfied, that, whenever a proper examination is made, gold, and a great deal of it, will be found in that vein; for it is the same vein which passes through the Greenwood Mine, which was struck last spring, and yielded $500 to the ton. His examination in other respects, as well as this, was imperfect and insufificient. CHAP. V-l GRYMES V. SANDERS. 727 I don't think he did anything like making a proper exploration for gold. I don't think he had more than three or four hands, and they were not enpjaged more than eight or ten days at the utmost." In September, 1866, Repplier instructed Catlett to advise the appellant, that, by reason of the mistake as to the shaft, the appellees demanded the return of the purchase-money which had been paid. In the spring of 1867, Lanagan, upon the same ground, made the same demand in person. The appellant replied, that he had parted with the money. He promised to reflect on the subject, and address Lanagan by letter. He did write ac- cordingly, but the appellees have not produced the letter. This bill was filed on the 2kt of March, 1868. A mistake as to a matter of fact, to warrant relief in equity, must be material, and. the fact must be such that it animated and controlled the conduct of the party. It must go to the essence of the object in view, and not be merely incidental. The court must be satisfied, that but for the mistake the complainant would not have assumed the obligation from which he seeks to be re- lieved. Kerr on Mistake and Fraud, 408; Trigg v. Read, 5 Humph. 529; Jennings v. Broughton, 17 Beav. 241; Thompson V. Jackson, 3 Rand. 507 ; Harrod's Heirs v. Cowan, Hardin 553 ; Hill v. Bush, 19 Barb. (Ark.) 522; Jusan v. Toulmin, 9 Ala. 662. Does the case in hand come within this category? When Fisher made his examination at the shaft, it had been abandoned. This was prima facie proof that it was of no account. It does not appear that he thought of having an analysis made of any of the debris about it, nor that the debris indicated in any wise the presence of gold. He requested Hume to send him specimens from the shafts on the contiguous tracts, and it was done. No such request was made touching the shaft in question, and none were sent. It is neither alleged nor proved that there was a purpose at any time, on the part of the appellees, to work the shaft. The quartz found was certainly not more encouraging than that taken from the last cut made by Bowman under the advice of Embry and Johnson. This cut he refused to deepen, and abandoned. When Lanagan and Repplier were told by Johnson that the shaft was not on the premises, they said nothing about abandoning the contract, and nothing which manifested that they attached any particular consequence to the matter, and certainly nothing which indicated that they regarded the shaft as vital to 728 GRYMES V. SANDERS. [CHAP. V. the value of the property. They proceeded with their examina- tion of the premises as if the discovery had not been made. On his way to Philadelphia, after this visit, Lanagan saw and talked several times with Williams, who had prepared the deed. Will- iams says, "I cannot recollect all that was said in those conversa- tions, but I do know that nothing was said about the shaft, and that he said nothing to produce the impression that he was dis- satisfied or disappointed in any respect with the property after the examination that he had made of it." Lanagan's conversa- tion with Houseworth was to the same effect. The subsequent conduct of the appellees shows that the mis- take had no effect upon their minds for a considerable period after its discovery, and then it seems to have been rather a pre- text than a cause. Mistake to be available in equity, must -not have arisen from negligence, where the means of knowledge were easily accessible. The party complaining must have exercised at least the degree of diligence "which may be fairly expected from a reasonable person." Kerr on Fraud and Mistake, 407. Fisher, the agent of the appellees, who had the deed prepared, was within a few hours' travel of the land when the deed was executed. He knew the grantor had sold contiguous lands upon which veins of gold had been found, and that the course and di- rection of those veins were important to the premises in question. He could easily have taken measures* to see and verify the boun- dary-lines on the ground. He did nothing of the kind. The appellees paid their money without even inquiring of any one professing to know where the lines were; The courses and dis- tances specified in the deed show that a surveyor had been em- ployed. Why was he not called upon ? The appellants sat quietly in the dark, until the mistake was' developed by the light of subse- quent events. Full knowledge was within their reach all the time, from the beginning of the negotiation until the transaction was closed. It was their own fault that they did not avail them- selves of it. In Shirley v. Davis, 6 Ves. 678, the complainant, being desirous to become a freeholder in Essex, bought a house which he supposed to be in that county. It proved to be in Kent. He was compelled in equity to complete the purchase. The mis- take there, as here, was the result of the want of proper diligence. See, also, Seton v. Slade, 7 Ves. 269 ; 2 Kent's Com. 485 ; 1 Story's Eq., sects. 146, 147; Attwood v. Small, 6 CI. & Fin. 338; CHAP, v.] GRYMES V. SANDERS. 729 Jennings v. Br ought on, 17 Beav. 234; Campbell v. Ingilby, 1 De G. & J. 405 ; Garrett v. Burleson, 25 Tex. 44 ; Warner v. Daniels et al.j 1 Woodb. & M. 91 ; Person v. Sanger, id. 139 ; Lamb v. Harris, 8 Ga. 546 ; Trigg v. i?^ac?, 5 Humph. 529 ; Haywood v. Co/)^, 25 Beav. 143. Where a party desires to rescind upon the ground of mistake or fraud, he must, upon the discovery of the facts, at once an- nounce his purpose, and adhere to it. If he be silent, and con- tinue to treat the property as his own, he will be held to have waived the objection, and will be conclusively bound by the con- tract, as if the mistake or fraud had not occurred. He is not per- mitted to play fast and loose. TDelay and vacillation are fatal to the right which had before subsisted. These remarks are pecu- liarly applicable to speculative property like that here in question, which is liable to large and constant fluctuations in value. Thomas v. Bartow, 48 N. Y. 200 ; Flint v. W^oodin, 9 Hare 622 ; Jennings v. Broughton, 5 De G., M. & G. 139 ; Lloyd v. Brewster, 4 Paige 537 ; Saratoga & S. R. R. Co. v. Row, 24 Wend. 74 ; Min- turn v. Main, 3 Seld. 220; 7 Rob. Prac, c. 25, sect. 2, p. 432; Campbell v. Fleming, 1 Ad. & El. 41; Sugd. Vend. '(14th Ed.) 335 ; T)iman v. Providence, W. & B. R. R. Co., 5 R. I. 130. A court of equity is always reluctant to rescind, unless the parties can be put back in statu quo. If this cannot be done, it- will give such relief only where the clearest and strongest equity imperatively demands it. Here the appellant received the money paid on the contract in entire good faith. He parted with it be- fore he was aware of the claim of the appellees, and cannot con- veniently restore it. The imperfect and abortive exploration made by Bowman has injured the credit of the property. Times have since changed. There is less demand for such property, and it has fallen largely in market value. Under the circumstances, the loss ought not to be borne by the appellant. Hunt v. Silk, 5 East 452; Minturn v. Main, 3 Seld. 227; Okill v. Whittaker, 2 Phill. 340; Brisbane v. Dacres, 5 Taunt. 144; Andrew v. Han- cock, 1 Brod. & B. 37; Skyring v. Greenwood, 4 Barn. & C. 289; Jennings v. Broughton, 5 De G., M. & G. 139. The parties, in dealing with the property in question, stood upon a footing of equality. They judged and acted respectively for themselves. The contract was deliberately entered into on both sides. The appellant guaranteed the title, and nothing more. The appellees assumed the payment of the purchase-money. They 730 COBB V. COLE. [chap. V. assumed no other liability. There was neither obligation nor liability on either side, beyond what was expressly stipu- lated. If the property had p^oved unexpectedly to be of inestimable value, the appellant could, have no further or other claim. If entirely worthless, the appellees assumed the risk, and must take the consequences. Segur V. Tingley, 11 Conn. 142; Haywood v. Cope, 25 Beav. 140; Jennings v. Brought on, 17 id. 234; Attwood v. Small, 6 CI. & Fin. 497; Marvin v. Bennett, 8 Paige 321 ; Thomas v. Bartow, 48 N. Y. 198 ; Hunter v. Goudy, 1 Ham. 451 ; Hall v. Thompson, 1 Sm. & M. 481. The bill, we have shown, cannot be maintained. In our examination o£ the case, we have assumed that those who are alleged to have spoken to the agent of the appellees upon the subject of the shaft, before the sale, had the requisite author- ity from the appellant. Considering this to be as claimed by the appellees, our views are as we have expressed them. We have not, therefore, found it necessary to consider the question of such authority; and hence have said nothing upon that subject, and nothing as to the aspect the case would present if that question were resolved in the negative. Decree reversed, and case remanded with directions to Dismiss the bill. COBB V. COLE. (44 Minn. 278.) Appeal by plaintiffs fronl an order of the district court for Dakota county, Crosby, J., presiding, refusing a new trial. Dickinson, J. It appears from the pleadings that the plain- tiffs and the defendant had formerly been engaged in partnership business. The partnership was dissolved by mutual consent, it being agreed, as is alleged in the complaint, that the defendant should retire from the firm, and sell his interest therein to them ; that he should pay to the plaintiffs "such sum as would make his interest in said firm equal to that of each of the plaintiffs therein, to-wit, one-third interest," (except as to a matter which n^ed not be particularly referred to,) and the plaintiffs were to pay defendant "a sum equal to his one-third interest in the firm busi- ness, as the same then appeared upon the books of the firm." The CHAP, v.] COBB z;. COLE. 731 complaint alleges that a statement was made, from the books, of the resources and liabilities of the firm and of the interest of each partner therein; and that, relying upon the correctness of that statement, the plaintiffs paid to the defendant the amount thus appearing to be the value of the defendant's interest, it hav- ing been mutually agreed that if any errors should be discovered in the statement they should be corrected. The complaint then alleges the existence of errors in the statement, since discovered, which rendered the result of the computation of the defendant's interest in the partnership erroneous to the extent of more than $1,400, as appears from the books of the firm, by reason of which mistake the plaintiffs overpaid the defendant in an amount stated, which they seek to recoyer in this action. The defendant put in issue (1) the alleged mistake; (2) the allegation that he agreed to pay to the plaintiffs such sum as would make his interest equal to that of each of the plaintiffs; (3) the allegation of an agree- ment that any errors in the statement of the accounts should be corrected ; and (4) the- defendant alleged that the plaintiffs, having charge of the books of the firm, and representing to the defendant the state of the accounts, which they profess to know, offered to pay to the defendant a specified sum for his interest in the partnership business, (excepting as to certain matters,) which sum, being accepted by him, was paid. When the cause was called for trial the defendant demanded a trial of all the issues by a jury. The plaintiffs moved the trial of the cause by the court. The court, in terms, denied both mo- tions, and directed that these two issues be submitted to a jury: First, whether there was any express agreement between the parties that errors which might be discovered in the statement of the accounts should be corrected; and, second, whether the de- fendant agreed to pay to the plaintiffs such sum as would make his interest in the firm equal to that of each of the plaintiffs. The court added that the other issues in the action would be tried by the court or a referee, as the court might determine. A jury was then called, and the trial proceeded before the jury. When the evidence was closed the court instructed the jury as to the two issues submitted to them. The jury returned a negative answer to each of the questions put to them. Some time subsequently the plaintiffs moved the court that the findings of the jury be disregarded as immaterial, and that the court try the case without a jury, as a court case. The defendant at the same time moved the court for judgment in his favor "upon the evidence and the 732 COBB V. COLE. [chap. v. findings of the jury." The court denied the motion of the plain- tiffs, but directed judgment to be entered in favor of the de- fendant "upon the findings of the jury," the court considering that the findings of the jury disposed of the whole case. The plaintiffs then moved for a new trial, which was refused, and from that refusal this appeal is taken. We do not understand that judgment was in fact entered. The action was of an equitable nature, properly triable by the court. It involved, aside from the specific issues .submitted to the jury, the issue as to whether there had been, a mutual mistake of fact as to the state of the accounts by reason of which the plaintiffs, had been led to pay to the defendant more than, by the terms of the agreement, the latter was entitled to. That would constitute a cause of action, even though there were no express agreement that if mistakes should be discovered they should be corrected. The attention of the court seems to have been diverted from the alleged mistake, as of itself entitling the plaintiffs to a remedy in equity, by the allegation of an express agreement that mistakes should be corrected, upon which the defendant joined issue. The determination of the issue as to the express agreement left the issue of mistake in fact still undetermined, and judgment should not have been entered' upon the special verdict which did not fully decide the issues jn the case. It is obvious from the state- ment we have made of the case that the only issues tried were the two which were submitted to the jury. But the plaintiff's motion, for a new trial of the cause was properly refused, for the plain- tiffs were only entitled to a trial of the issues as yet untried. The court had authority, of its own motion, to direct the trial of spe- cific questions by a jury, as it did do, (Gen. St. 1878, c. 66, § 217;) and we find no error justifying a new trial. While it may be probable, from the fact tha:t the court ordered judgment to be entered on the verdict of the jury, that the court would have re- fused to try the issues which had not been tried, still the order refusing a new trial was'not erroneous, and should be affirmed. The order for judgment was probably erroneous, for the reasons above stated, but that error is not reached by a motion for a new trial. - Order oMrmed. ^-CHAP. VI.] PHILLIPS V. PULLEN. 733 CHAPTER VI. SPECIFIC PERFORMANCE. A. Generally. PHILLIPS V. PULLEN. (45 N. J. Eq. 5.) [Court of Chancery of New Jersey, 1888.] On- order to show cause why an injunction shall not issue to restrain the defendant from taking proceedings to enforce a judgment at law. Bill for injunction by George "E. Phillips against Ralph L. Pullen to restrain proceedings to enforce- a judgment. McGiLL, Ch. The judgment in question was recovered in a a suit upon an agreement by the complainant to pay $7,500 in settlement of an action that had been commenced against him by the defendant for damages for debauching the defendant's wife, enticing her away, and harboring her. Upon a writ of error to Mercer circuit court, where the cause in which the judgment was recovered was tried, the court of errors and appeals affirmed the judgment of the court below, and thereby confirmed the decision of many of the questions sought to be again raised by the bill in this case. That decision determined that the complainant's at- torney had authority to make the agreement sued upon ; that the agreement did not lack consideration; that the consideration of the agreement was not executory; that there was no abandon- ment or rescission of the agreement by the defendant, Pullen; and that proof of the fraud, which is here alleged, was admissible in defense in that suit, but that the evidence of it there offered and admitted, was inadequate to establish it. Phillips v. Pullen, 50 N. J. Law, 439, 14 Atl. 222. All those matters must now be 734 PHILLIPS V. PULLEN. [CHAP. VI. considered as settled between the parties to this suit. The doc- trine is well settled that this court will not, on the application of the defendant in a judgment at law, who has had a fair oppor- tunity to be heard upon a defense, over which the court pro- nouncing the judgment had full jurisdiction, enjoin the enforce- ment of the judgment simply on the ground that it is unjust. A court of equity limits its interference with the enforcement oi a judgment at law to cases where that appears which clearly shows it to be against conscience to execute the judgment, and of which the injured party could not have availed himself in the court of law; or of which he might have availed himself at law, but was prevented by fraud or acpident, unmixed with any fault or negli- gence, in himself or his agents. Insurance Co. v. Hodgson, 7 Cranch 332 ;' Hendrickson v. Hinckley, 17 How. 443 ; Power £ Exfrs V. Butler's Adm'r, 4 N. J. Eq. 465 ; Vaughn v. Johnson, 9 N. J. Eq. 173; Moore v. Gamble, Id. 246; Reeves v. Cooper, 12 N. J. Eq. 223; Holmes v. Steele, 28 N. J. Eq. 173; Bank v. Manufacturing Co., 33 N. J. Eq. 486, 35 N. J. Eq. 344; Simpson V. Hart, 1 Johns. Ch. 91 ; 3 Pom. Eq. Jur. § 1361, and note. It is insisted for the complainant that the contract, upon which the judgment in question is based, was so grossly unconscionable that this court will here interfere, and stay the enforcement of the judgment. The action of the court must depend upon the ques- tions whether the defendant is too late in his application, whether the gross unconscionableness of the contract is a distinct principle of equity which could not be urged in defense of the suit at law, and whether in fact the contract was grossly unconscionable. I will cbnsider these questions in the order in which I have stated them. The complainant makes his application by supplemental bill, in which he alleges that by his original bill he sought to avoid the agreement for fraud, and because it was grossly unconscionable ; and that he was denied an injunction to restrain the suit at law, because the grounds upon which the equity of his bill rested were good defenses to the action, at law. The defendant, by his an- swer to the supplemental bill, claims that the decision of the chancellor (Runyon) was based upon the defendant's denial of the facts upon which the equity of the complainant's bill was founded. No reasons for the chancellor's decision were given. It appears to me to be better that I shall assume that the merits of the last two questions under consideration- were not passed CHAP. VI.] PHILLIPS V. PULLEN. 735 upon, and that the original appHcation for injunction affords an excuse for the apparent laches of the complainant in asking the aid of this court. It is established that for mere inadequacy of consideration, unconnected with fraud, a court of equity will not set aside a contract. Willis v. Jernegan, 2 Atk. 251 ; Griffith v. Spratley, 1 Cox, 383 ; Gibson v. J eyes, 6 Ves. 266 ; Low v. Barch- ard, 8 Ves. 133 ; Osgood v. Franklin, 2 Johns. Ch. 1 ; Crane v. Conklin, 1 N. J. Eq. 346 ; Wintermute's Ex'rs v. Snyder's Ex'rs, 3 N. J. Eq. 489 ; Weher v. Weitling, 18 N. J. Eq. 441 ; 1 Story, Eq. Jur. 251 ; 2 Pom. Eq. Jur. 925. The cases of expectant heirs or reversioners, who have bound themselves in unconscionable bar- gains with respect to their expectancies, have been regarded in many cases as an exception to this rule. Berny v. Pitt, 2 Vern. 14 ; Nott v. Hill, Id 27 ; Wiseman v. Beake, Id. 121 ; Twisleton v. Griffith, 1 P. Wms. 310 ; Curwyn v. Milner, note c, 3 P. Wms. 292 ; Barnardiston v. Lingood, 2 Atk. lZi;'Gwynne v. Heaton, 1 Brown, Ch. 9; Coles v. Trecothick, 9 Ves. 246; Evans v. Peacock, 16 Ves. 512. Where, however, such inadequacy of price is so gross that it shocks the conscience, courts of equity will interfere, not upon distinct principle, but upon the ground that such inadequacy amounts to conclusive evidence of fraud. In Osgood v. Franklin, 2 Johns. Ch. 18, Chancellor Kent said : "The doctrine is settled that in setting aside contracts on account of inadequate consid- eration, the ground is fraud arising from gross inequality." In Copis V. Middleton, 2 Madd. 410, the vice-chancellor said : "Mere inadequacy of price, to invalidate a contract, must, per se, be so excessive as to be demonstrative of fraud." In Wintermute's Ex'rs^ V. Snyder's Ex'rs, 3 N. J. Eq. 489, 496, Chancellor Vroom said : "Still there may be such unconscionableness, such palpable and excessive inequality in a bargain, as to induce equitable in- terference. But in all such cases the court goes on the ground of fraud, being satisfied that gross imposition or undue influence must have been practiced. If the inadequacy be such as to shock conscience, it will amount to evidence of fraud, and will be so considered." In Gifford v. Thorn, 9 N. J. Eq. 702, 740, in the court of errors and appeals. Justice Potts uses this language: "Undoubtedly, if this transaction is to be considered as a matter of bargain and sale, here is a gross inadequacy of consideration ; such an inadequacy as raises a violent presumption of fraud, de- ception, ignorance or imbecility." In Weber v. Weitling, 18 N. J. Eq. 441, Chancellor Zabriskie said: "For mere inadequacy of consideration equity does nof set aside a deed, unless accom- 736 PHILLIPS V. PULLEN: [chap. VI. panied by fraud, or unless the inadequacy is so gross as to imply fraud." Judge Story, in his work on Equity Jurisprudence (vol- ume 1, p. 256), after saying that inadequacy of consideration is not of itself a distinct principle of relief in equity, adds : "Still, -however, there may be such an unconscionableness or inadequacy in a bargain as to demonstrate some gross imposition or some undue influence, and in sUch cases courts of equity ought to in- terfere upon the satisfactory ground of fraud. But then such unconscionableness, or such inadequacy, should be made out as would (to use an expressive phrase) shock the conscience, and amount in itself to conclusive and decisive evidence of fraud." Professor Pomeroy, in his work on Equity Jurisprudence (sec- tion 927) says : "Although the actual cases in which a contract or conveyance has been canceled on account of gross inadequacy merely, without other equitable incidents, are very few; yet the doctrine is settled by a consensus of decisions and dicta, that, even in the absence of all other circumstances, when the inade- quacy of the price is so gross that it shocks the conscience, and furnishes satisfactory and decisive evidence of fraud, it will be a sufificient ground for canceling a conveyance or contract, whether executed or executory. Even then fraud, and not inadequacy of price, is the true and only cause for the interposition of equity, and the granting of relief." At this point we are again confronted with the adjudication already had -between the parties to this cause. Equity can inter- fere only upon the ground of fraud ; and the question of fraud in the agreement, as I have ststed, has been heard by a court having full jurisdiction over that question, and decided. Justice Magie, who wrote the opinion of the court of errors and appeals fn the case there between the parties to the suit, disposed of the sugges- tion that the price Phillips agreed to pay is evidence of fraud, in the concluding sentences of that opinion, as follows: "In an action on an undertaking to pay a specific sum, the rule for meas- uring damages is compensation, which can only be afforded by a verdict for that sum, with interest. No reason why this case should be taken out of that rule is suggested, but that the agree- ment was unreasonable or unconscionable. But, if it might have been avoided in equity upon that ground, nothing short of fraud will affect it at law ; and fraud would not be ground for reducing damages, but for defeating recovery. There is nothing in the stipulated sum to justify an inference of fraud. The original suit sought to recover damages incapable of accurate determination. CHAP. VI.] MARBLE CO. V. RIPLEY. 737 Had it proceeded to trial, the quantum of damages must have been determined by a jury upon the circumstances. Where the parties, knowing the circumstances, liquidated the damages by an agree- ment not brought about by deceit or imposition, it cannot be said that such damages are unconscionable." If gross unconscionable- ness of a bargain were a distinct principle upon which equity would relieve, it would be impossible for me to say that the bar- gain, in this instance, was of that character. Lord Thurlow, in Gwynne v. Heaton, 1 Brown, Ch. 8, said of such bargains: "There must be an inequality so strong, gross, and manifest that it must be impossible to state it to a man. of common sense, with- out producing an exclamation at the inequality of it." If there is nbthing in the sum agreed to be paid that will justify an in- ference of fraud in the law courts, it can hardly be that there is so much in it here as to shock the conscience of this court. The reasoning of Justice Magie, in which I concurred in the court of errors and appeals, satisfies me that there is nothing in the stipulated sum to manifest gross inequality. Nor is there any- thing in the condition of the parties to make such gross inequality apparent. Both are farmers. Pullen has property valued at $1,000 or $1,500, and Phillips admits that he is worth $12,000, while the answer puts his estate at $40,000. I will discharge the order to show cause, with costs. MARBLE CO. v. RIPLEY. (10 Wall. 339.) [Supreme Court of the United States, 1870.] Copyright, by the Banks Law Publishing Company, 1871. Appeals from the Circuit Court for the district of Vermont. On the 22d of January, 1850, the one Ripley and the one Barnes together owned a tract of land in Rutland township, Ver- mont, containing about twenty-one acres, in which was a valuable marble quarry. On that day Ripley, by his deed, released and quit-claimed unto his co-tenant Barnes, in fee simple, the tract of land. The deed contained a reservation to the releasor, his heirs, executors, administrators, and assigns, of "the right to enter upon and take possession of the said twenty-one acres, for the purpose of digging, quarrying, and carrying away all the marble he or they might want, according to the stipulations and 47 738 MARBLE CO; V. RIPLEY. [CHAP. VI. conditions of a contract that day made and concluded between the said Ripley and Barnes, in case the said Barnes, his heirs, ex- ecutors, administrators, and assigns, should refuse, or fail on their part to fulfill the conditions and stipulations of the said contract." By the contract referred to, which was made on the same day, Barnes agreed, "for himself, his heirs, executors, ad- ministrators, and assigns, to quarry marble from the marble quarry, and draw and deliver at the mill of the said Ripley, in Rutland, from the layers of marble usually denominated the white layers in said quarry, all the marble that the said Ripley might want to saw, manufacture, and sell, in good sound blocks, of suitable size, shape, and proportion, and to quarry to order as might be wanted to keep the mill fully supplied at all times, the amount to be not less than 75,000 feet per annum, and for so long a time as the said Ripley, his heirs, executors, administrators, and assigns might want." It was also stipulated that Ripley might abandon the contract at any time on giving one year's notice. The contract further stipulated that if Barnes, his heirs, executors, administrators, or assigns should fail or refuse to fulfill its con- ditions, Ripley, his heirs, executors, administrators, or assigns, or his or their agents, might enter upon the quarry and the premises attached to, and connected with it, and might quarry and dig, take and ca^ry away, as much marble as they might want; and might have the use of, and enjoy all the rights, priv- ileges, and appurtenances belonging to, or connected with, the said quarry, without hindrance or obstruction, or in any way paying for the same, and might keep possession until Barnes, his heirs, executors, administrators, or assigns, should be ready and willing to fulfill the conditions of the contract on their part; it being also provided that if, after making an entry as aforesaid, Ripley, or his heirs, &c., should make an opening, or put the quarry in a better condition for getting out marble, Barnes, his heirs, executors, administrators, or assigns should not re-enter, or resume possession, until. Ripley, his heirs, &c., should have had the benefit of the work done and money expended by them, unless Barnes should make payment for the same. It was further provided that Ripley, his heirs, executors, administrators, and assigns should receive the marble blocks so delivered at the mill ; should saw, trim, and prepare them for market ; should sell them, advancing from time to time' to Barnes, as the blocks should be delivered, twelve cents per foot of two-inch marble, as payment for drawing and quarrying, and retaining from the proceeds of CHAP. VI.] MARBLE CO. V. RIPLEY. 739 sales of the marble an equal sum per foot, as payment for sawing and trimming, retaining also from the proceeds of sales and ex- penses of transportation to market, and all the necessary expenses of doing the business and collecting payment for the marble (not including payment for his own time and labor), and should di- vide the remainder of the proceeds of sale equally between Barnes and himself, as collected. By mesne conveyances, the property became vested in the com- plainant, the Rutland Marble Company, subject to the rights re- served to Ripley. After performance for several years, disputes arose between the parties. Owing to changes in the marble busi- ness, the contract became unprofitable to the marble company while yielding large returns to Ripley. Ultimately, Ripley en- tered and excluded the marble company from possession, though the latter had fully performed its part of the contract. There- upon the complainant filed this bill, praying for an injunction against further unlawful interference and for a rescission of the contract, principally upon the ground of its breach by Ripley, and because it had become grossly unfair and unequal. Defendants attempted to justify the entry, and in a cross-bill asked for specific performance of the contract. Mr. Justice Strong. * * * The next question is, whether Ripley, the defendant, was entitled, upon his cross-bill, to a decree against the marble company for a specific performance of the contract. The court below substantially directed such per- formance, and from that decree the marble company have ap- pealed, and they now urge that the contract, though supposed to be fair and equal when made, has, in the lapse of time, and by the operation of unforeseen causes, arising from changed cir- cumstances, become exceedingly unfair, unreasonable, and un- conscionable, so that a decree for its specific performance would tend to their oppression and ruin. It may be doubted, however, whether the hardship of the contract is any greater than must have been contemplated when it was made. It is not unconscion- able because Ripley obtains a larger profit from it than was at first expected, or because the other party obtains less. Those were contingencies, the possibility of which might have been foreseen. It could not have escaped the thought of the contract- ing parties that the expense of quarrying might possibly. increase, and that the expense of sawing and preparing for market might either increase or diminish in the progress of time. Of that they took their chances. Besides, it is by no means clear that a court 740 MARBLE CO. V. RIPLEY. [CHAP. VI. of equity will refuse to decree the specific performance of a con- tract, fair when it was made, 'but which has become a hard one by the force of subsequent circumstances or changing events. Mr. Fry, in his work on Specific Performance (page 116, and see entire chapter 6), asserts that "the question of the hardship of a contract is generally to be judged of at the time at which it is .entered into ; that if it be then fair and just, it will be immaterial that it may, by the force of subsequent circumstances or change of events, have become less beneficial to one party, except when these subsequent events have been in some way due to the party who seeks the performance of the contract." Judge Story, in- deed (Eq. Jur. §§ 750, 776), states the rule somewhat differently, and there are some cases that support his statement ; but the rule as stated by Mr. Fry must be applicable to contracts that do not look to completed performance within a defined or reasonable time, but contemplate a continuous performance, extending through an indefinite number of years, or perpetually. There are other objections, however, to a decree for a specific performance in this case which are more serious. Such a decree is not a matter of right. It rests in the sound discretion of the court, and generally it will not be made in favor of a party who has himself been in default. In Story's Equity Jurisprudence (section 736) it is said that "in cases of covenants and other con- tracts, where a specific performance is sought, it is often material to consider how far the reciprocal obligations of the party seeking the relief have been fairly and fully performed. For, if the latter have been disregarded, or they are incapable of. being substan- tially performed on the part of the party so seeking relief, or from their nature they have ceased to have any just application by subsequent events, or it is against public policy to enforce them, courts of equity will not interfere." To the same effect are Smith's Principles of Equity (page 220) ; Thompson v. Tod, Pet. C. C. 380, Fed. Cas. No. U,97?,;Lezvis v. Wood, 4 How. (Miss.) 86, and many other cases. Applying these principles to the case in hand, it would appear that the conduct of the cross-complain- ant has not been such as to justify the court in decreeing a specific performance, at his suit, against the marble company. Without relying upon his alleged unfounded claims set up from time to time, or his alleged refusals or failures to make the payments due from him at the times required by the contract, or his alleged comfort given to the turn-out of the workmen, and his advice that the company should resist it, his unlawful and unwarranted CHAP. VI.] MARBLE CO. V. RIPLEY. 741 entry and ouster of the marble company was such an invasion of the contract as leaves him no standing as a complainant asking for its performance in a court of equity. Another serious objection to a decree for a specific performance is found in the peculiar character of the contract itself, and in the duties which it requires of the owners of the quarries. These duties are continuous. They involve skill, personal labor, and cultivated judgment. It is, in effect, a personal contract to de- liver marble of certain kinds, and in blocks of a kind, that the court is incapable of determining whether they accord with the contract or not. The agreement being for a perpetual supply of marble, no decree the court can iriake will end the controversy. If performance be decreed, the case must remain in court forever, and the court to the end of time may be called upon to determine not only whether the prescribed quantity of marble has been de- livered, but whether every block was from the right place, whether it was sound, whether it was of suitable size, or shape, or pro- portion. Meanwhile the parties may be constantly changing. The marble company are liable so long as they hold the land, and Ripley's rights exist oflly while he holds the mill. It is manifest that the court cannot superintend the execution of such a decree. It is quite impracticable. And it is certain that equity will not interfere to enforce part of a contract, unless that part is clearly severable from the remainder. Ogden v. Fossick, 9 Jur. (N. S.) 238. Many of the difificulties in the way of decreeing specific performance of a contract, requiring, as this does, continuous personal action, and running through an indefinite period of time, are well stated in Port Clinton R. Co. v. Cleveland & T. R. Co., 13 Ohio 544. Another reason why specific performance -should not be de- creed in this case is found in the want of mutuality. Such per- formance by Ripley could not be decreed or enforced at the suit of the marble company, for the contract expressly stipulates that he may relinquish the business and abandon the contract at any time on giving one year's notice. And it is a general principle that when, from personal incapacity, the nature of the contract, or any other cause, a contract is incapable of being enforced against one party, that party is equally incapable of enforcing it specifically against the other, though its execution in the latter way might in itself be free from the difficulty attending its execu- tion in the former. Fry, Spec. Perf. § 286. But what is a still more satisfactory reason for withholding a 742 OLD COLONY R. R^ CORPORATION V. EVANS. [CHAP. VI. decree for specific performance is, that the party who asks for it has an entirely adequate remedy provided by the reservation in his deed, and by the contract itself. In addition to his remedy by suit at law, he has a right of entry and the privilege of supplying himself with marble, as much as he may want, if the owners of the land do not fulfill the conditions and stipulations of the con- tract. He may take marble without making payment for it, and in case of such entry he may hold possession until the tenants of the fee are ready and willing to carry out the agreement, and until he has been compensated for all his expenditure. This is a remedy more adequate and full than any decree for specific performance could give him, and it renders such interference of a court of equity entirely unnecessary. For these reasons we are of opinion that the Circuit Court should not have decreed performance in specie of the contract, but should have left the cross-complaint to his action at law, or to the remedy reserved in his deed. It is true that the marble company, on the 18th of June, 1864, gave notice to Ripley that they would claim that the facts set forth in their bill amounted to a permaneflt breach and violation on his part of the- contract, authorizing them to treat is as re- scinded, and that they therefore rescinded it, asserting that they had always performed it on their part until it was thus violated and broken by him. But this was after his wrongful entry,, which certainly relieved them for a time from delivering marble, and the notice in no way interferes with any remedy he may have at law, or with any right he has to enter under the reservation in his deed. The decree, so far as it orders specific performance, will there- fore be reversed, as also all the decretal orders that direct the mode of performance. OLD COLONY RAILROAD CORPORATION v. EVANS (6 Gray 25.) [Supreme Judicial Court of Massachusetts, 1856.] Bill in Equity to enforce the specific performance of a "writ- ten contract. The bill alleged that the defendant, having agreed with the' city of Boston to haul a large quantity of gravel onto CHAP. VI.] OLD COLONY R. R. CORPORATION V. EVANS. 743 a certain "neck lands" belonging to the city, on the 14th of Jan- uary, 1848, entered into a written contract with the plaintiffs, by which they agreed to purchase "a certain tract of land, called Mount Hope, containing about forty acres, situated on the south- erly side of Neponsit River, in Quincy," and the defendant agreed to take gravel from Mount Hope and convey it, in his own cars, over the road of the plaintiffs to Boston, paying there- for a specified toll; that, pursuant to this contract, the plaintiffs purchased the tract of land, called Mount Hope, by two deeds, dated respectively the 8th and the 10th of April, 1848, one of fifty-eight acres, and the other of eleven acres, describing the premises particularly ; and afterwards sold about ten acres thereof to N. Ward & Co., ahd located a branch railroad over another part ; and the defendant began and continued to take gravel from Mount Hope, according to the contract, until he became dissatis- fied with the gravel there, and made to the plaintiffs the follow- ing proposition in writing: "Boston, March 18th, 1849. To the Directors of the Old Colony Railroad Corporation. Gentlemen: Being desirous to resume, as soon as may be, the delivery of gravel to the city, I propose to you to put on a gravel train forthwith, between your old gravel pit on the east side of your main tract in Quincy and the neck lands in Boston, on the following terms, viz : 1st. Noth- ing in this arrangement shall in any way impair my contract with you to remove Mount Hope into Boston. 2d. I will remove from this pit, at a week's notice, whenever directed to do so by you, and will transfer the train to Mount Hope. 3d. The train from the old pit to be run, while continued, on the same terms and conditions as the Mount Hope trains. 4th. I will, whenever desired by you, put on a train from Mount Hope in addition. And I will further propose to you, that if you will purchase or hire the Taylor Farm in Quincy, where three shafts have been sunk this week, and lay a turnout to such farm from the main line, I will accept the same as a substitute for Mount Hope, and pay to you the cost of Mount Hope, in three annual installments, with interest, deducting the portion included in the location of the branch railroad, and the portion sold ; and I will give security for such purchase ; and the company to give me the benefit of the advance pay by N. Ward & Co. ,..^^ Evans." The bill then alleged that the plaintiffs accepted this proposi- tion, and gave the defendant notice of their acceptance; and, on 744 OLD COLONY R. R. CORPORATION V. EVANS. [CHAP. VI. the 29th of January, 1849, purchased the Taylor Farm, and laid a turnout to it, and Evans accepted that farm as a substitute for Mount Hope, and abandoned work at the latter place, and com- menced working at the Taylor Farm, and had since continued to work there ; that they caused a deed to be prepared and executed, conveying to the defendant all of the tract of land called Mount Hope, except the portion sold and that included in their location, and tendered the same to the defendant for acceptance, and de- manded of him to secure to them the payment in three annual installments, with interest, of the amount which the tract so oiifered to be conveyed had cost them, which amount they averred to be $17,042.56; and that the defendant, after consulting coun- sel, refused to accept the deed. The bill then alleged the readi- ness of the plaintiffs, and the refusal of the defendant to per- form the agreement, Dewey, J. 1. The general power of the court of chancery to compel the performance of specific contracts is unquestionable. It is clearly recognized in the elementary books and in the re- ported cases. It is directly given to this court by Rev. Sta. c. 81, § 8, in "all suits for specific performance of any written contract, where there is not a plain and adequate remedy at law." A recurrence of the books of authority on this subject will also fully show that the power of this court may be invoked, in this respect, as well in behalf of the vendor of real estate, as of the vendee; and, in all proper cases, the vendor may therefore come to this court and obtain a decree in his behalf against his vendee, for the execution of a written contract made by the latter to pur- chase real estate. The English cases are abundant to the effect. But what .is more directly an authority for this court, our own decisions show the repeated exercise of this power. Salisbury v. Bigelow, 20 Pick. 174 ; Haven v. Lowell, 5 Met. 35 ; Hillard v. Allen, 4 Cush. 532. There may be open to the vendee a broader ground of defence against such a bill, that would ordinarily arise in the case of a vendee seeking to compel a conveyance by the vendor; but, in the absence of any good defence, the vendee is alike amenable to this process. 2. The next inquiry is as to the nature of the contract in the present case, and whe1>her there is such want of mutuality in it, that the bill, should be dismissed on that ground. The de- fendant relies upon the position, that unless both parties were so bound by the agreement that each could enforce it against the other, by a proceeding at law or in equity, there is no valid CHAP. VI.] OLD COLONY R. R. CORPORATION V. EVANS. 745 agreement upon which a specific performance can properly be decreed. This contract now sought to be enforced, it is conceded, was only signed by the defendant. If that fact shows such a want of mutuality as forbids maintaining this bill, then the bill must be dismissed. The defendant insists that such is the effect, and re- lies upon the following cases : Benedict v. Lynch, 1 Johns. Ch. 370 ; Geiger v. Green, 4 Gill. 472 ; Lawrenson v. Butler, 1 Sch. & Lef. 13. If this written instrument, signed by the defendant, were to be considered in no other light than as a mere proposition to the plaintiffs, not acted upon by them, and not accepted, then clearly there would be no binding contract. But such is not the case; the evidence showing .clearly that, upon the execution of this writing by tfie defendant, the plaintiffs, agreeable to the terms and conditions therein stated, proceeded to hire the Taylor Farm for the term of seven years, with the right to take gravel there, paying for the use of the land for that purpose $10,800 ; that they permitted' the defendant to use for a time the old gravel pit, and then to take gravel from the Taylor Farm. The plaintiffs there- for acted upon this promise of the defendant, and made large expenditures in performing the conditions and stipulations on their part to be performed as conditions precedent to the per- formance of the agreement on the part of the defendant. And the plaintiffs' acceptance of the proposal was known to the de- fendant, and he went into the occupation of the Taylor Farm. (Here the judge referred in detail to those portions of the evi- dence upon which these conclusions were based.) We do not understand that it is essential to the validity of a contract, required by the statute of frauds to be in writing and signed by the party, that each party should be alike bound to the performance of the contract, by his written signature thereto. The statute itself only requires that "the promise or some memo- randum or note thereof shall be in writing, and signed by the party to be charged therewith." Rev. Sts. c. 74, § 1. The cases cited by the defendant certainly hold a different lan- guage and, if good authority, would maintain his position. The case of Lawrenson v. Butler, in 1 Sch. & Lef. 18, affirms that view strongly, as does also Geiger v. Green, 4 Gill. 476. These cases, and that of Benedict v. Lynch, 1 Johns. Ch. 370, apparently of like bearing, having led us necessarily to a pretty full exami- nation of- the authorities upon this point. In Chitty on Contracts (8th Amer. Ed.), 4, note, it is said "that 746 OLD COLONY R. R. CORPORATION V. EVANS. [CHAP. VI. a party may sue on a contract, although it be void as against himself for want of his signature, under the statute of frauds." The reason as more fully stated in the text is this : That the sig- nature is prescribed rather as necessary evidence of the contract, than as an essential or constituent part of the engagement itself. On p. 17 of the same work, after stating that the assent must be mutual, and the agreement must, in general, be obligatory upon both parties, or it will bind neither, yet it is added: "A contract may not bind one party, in consequence of his omitting to sign it according to the statute of frauds ; and yet he may sue the other party who has complied with the act ; for, in this case, the objection merely goes to the evidence of the agreement." Again, more directly, on p. 355: "It is sufficient that the de- fendant, whether he be the vendor or the vendee, has signed the contract; and it is no objection that he has no remedy thereon against the plaintifif, inasmuch as the latter has not signed it." 2 Stark. Ev. (4th Anier. Ed.) 614, and Roberts on Frauds 124, state the same rule. The weight of authority from adjudicated cases will be found fully to sustain the doctrine thus stated. Egerton v. Mathews, 6 East 307, is to that effect. In Allen v. Bennet, 3 Taunt. 176, Mansfield, C. J., said: "Everydne knows it is the daily prac- tice of the court of chancery to establish contracts signed by one person only." Douglass v. Spears, 2 Nott & McCord 207, holds the same doctrine. The case of Penniman v. Hartshorn, 13 Mass. 91, is directly to the point, that both parties need not be bound in writing. Parker, C. J., says : "The bargain was undoubtedly mutual, although the parties might not have been equally vigilant in obtaining the legal writtien evidence to prove it." Barstow v. Gray, 3 Greenl. 415, holds it sufficient if signed by the party sought to be charged. But the case of Clason v. Bailey, 14 Johns. 484, is more par- ticularly to be referred to as containing a very full examination of the authorities upon this question by Chancellor Kent, in which he says the point is now too well settled to be further questioned, though his earlier impressions were otherwise. He also states, that the then Lord Chancellor of Ireland, Lord Manners, had not followed the opinion of Lord Redesdale in 1 Sch. & Lef. 18, but held the contrary, as will be seen in Ormond v. Anderson, 2 Ball & Beat. 370. It seems quite unnecessary to pursue the inquiry further; and we will only add the cases of M'Crea v. Purmont, 16 Wend. 460, CHAP. VI.] OLD COLONY R. R. CORPORATION V. EVANS. 747 and In re Hunter, 1 Edw. Ch. 5, as fully confirming the views of Chancellor Kent, and showing the decisions of the court of New York upon this question. The result is, therefore, that there may be a mutual contract, to which both parties have given their assent, though the evidence of such assent may exist in a different form as regards the two' parties ; that, as to one it may be verbal, while the other's is ex- pressed by his signature in writing, and that the latter may be bound to perform his contract, while the first party might avoid his by reason of the statute of frauds. 3. The next inquiry is, whether there exists, in a case like the present, such plain and adequate remedy at law as to oust this court of jurisdiction as a court of equity. No doubt a remedy exists at law for breach of a contract to purchase real estate. The only doubt is as to the extent and perfectness of the remedy. It is said, on the part of the defend- ant, to be fully adequate, because all that is or can be sought by the plaintiffs is the payment of money, the court of law can ren- der judgment for the full damages in money.' The reply to this part of the defence must depend upon the view we take of the rule of damages in an action at law on such a contract. If it be held, as is supposed by the counsel for the de- fendant, that the vendee is to be charged with the whole amount of the purchase money in an action at law, if he refuses to per- form such a contract, the result as to the damages would be the same as in proceedings in equity. But we apprehend that the rule of damages, however applicable it may be to cases of contracts for the sale of personal property, where, by force and effect of a mere delivery, or ty a judgment at law for the value of an article, the property may become vested in the party paying damages therefor, does not apply to real estate, which can only be transferred by deed. In actions against the vendee, on a contract for the purchase of real estate, we had supposed it to be a well settled rule, that, when a party agrees to purchase real estate at a certain stipulated price, and subsequently refuses to perform his contract, the loss in the bargain consti- tutes the measure of damages, and that is the difference between the fixed price in the contract and the saleable value of the land at the time the contract was to be executed. The examination of the authorities upon this subject does not show an entire uniformity of views. The rule we have stated is said by Mr. Sedgwick to be the English rule. Sedgwick on Dam- 748 OLD COLONY R. R. CORPORATION V. EVANS. [CHAP. VI. ages (2d Ed.), 190. See Laird v. Pirn, 7 M. & W. 474, where this subject is much discussed. In Alna v. Plummer, 4 Greenl. 258, which was a contract for the sale of a pew in a meeting- house, it was held that, upon the tender of a deed, the vendor might recover the full price, though the other party refused to accept the same. The question was, however, apparently very little discussed. In some of the New York cases, as in Franchot v. Leach, 5 Cow. 506, it seems to be assumed that the vendor would recover the whole price agreed to be paid, if he was ready to fulfill the contract on his part. The English rule seems to be recognized in Sawyer v. Mclntyre, 18 Verm. 27. Several cases .from our own reports are relied upon by the de- fendant as sustaining the position that relief, in a case like the present, should be sought solely in a court of law. The case of Sears v. Boston, 16 Pick. 357, arose upon a con- tract in which the defendants agreed to remove a bank of gravel from the land of the plaintiff, and pay him therefor at the rate of one dollar a square. The contract was only partially performed, and plaintiff brought his bill for a specific performance. Cer- tain difficulties arose, preventing the performance of the work in the manner anticipated, and the defence was principally put upon a change of circumstances, and the court held that the specific performance of a contract was not to be enforced, "where, through inadvertence or mistake, or by the intravention of un- foreseen causes, the performance becomes impossible or unrea- sonable." Although the court remark, in the opinion in the ease, that "if the plaintiff had sustained any damages by the non-com- . pletion of the contract, it might be fully compensated in dam- ages," yet they do not intimate that those damages would be the entire sum agreed upon to be paid for 'the gravel. The case of Gill v. Bicknell, 2 Cush. 358, more distinctly sus- tains the position that, in case of the tender of a deed by one party and a refusal by the other to receive it, the measure of damages would be the money stipulated to be paid for th^ land, and thus the party would have an adequate remedy at law in such cases. This was said, however, in a case where the court had already stated that the bill in equity could not be maintained, for the reason that no written contract had ever been executed by the defendant. In the case of Jacobs v. Peterborough &• Shirley Railroad, 8 Cush. 223, was much to the same effect, and the suggestion was there made under similar circumstances as in the case last cited. CHAP. VI.] GRACE V. DENISON. 749 The court there also had announced the opinion that the case failed to show that the defendant had ever signed any contract agreeing to purchase the land. Having done so, they state as a further objection that the remedy at law would be complete,, as the agreed price might be recovered in an action at law. In neither of these last two cases was this question essential to the decision. Upon more full consideration of the question of the measure of damages in an action at law, where the defendant has refused to receive the deed tendered him, the court are of opinion that the proper ruleof damages in such a case is the difference between the price agreed to be paid for the land and the saleable value of the land at the time the contract was broken. GRACE V. DENISON. (114 Mass. 16.) [Supreme Judicial Court of Massachusetts, 1873.] Bill in Equity for specific performance, alleging that the defendant, being seized of a parcel of land, and the house thereon, situated on Hayward Place, in Boston, sold it to the plaintiff for $25,000; $50 to be paid down, $4,950 to be paid on the delivery of the deed, and $20,000, bearing five per cent interest, to remain upon a mortgage in the usual form. The plaintiff alleged that he paid the $50, and that the defendant had signed this agreement : "Boston, February 18, 1873. Received from J. J. Grace the sum of fifty dollars as part payment of house No. 2, Hayward Place, sold to him on this day for ($25,000) twenty-five thousand dollars, and mortgage to remain at 5 per cent for five years. Charles H. Denison." Wells, J. The memorandum of agreement indicates that a part of the purchase money was agreed to be secured by mort- gage of the premises to be conveyed. But it does not disclose nor furnish any means for the court to ascertain what part or amount is to remain upon mortgage, and what paid cash upon delivery of the deed. The statute of frauds does not permit such a contract to be enforced without a memorandum of it in writing, signed by the party to be charged. The court cannot, therefore, go outside of this writing to ascertain what the real agreement of the parties was in this particular. The writing being incomplete in one of 750 LYNES V. HAYDEN. [CHAP. VI. its essential terms, and the court having no means to which it can lawfully resort to supply the defect, specific performance must fail; Fry on Specific Performances, §§ 221, 222 and note 7; Browne on St. Frauds, §§ 376, 381 ; Boston & Maine Railroad v. Bdbcock, 3 Cush. 228, 232. Demurrer sustained. LYNES V. HAYDEN. (119 Mass. 482.) [Supreme Judicial Court of Massachusetts, 1876.] Appeal from a decree of the Probate Court, granting a peti- tion under the Gen. Sts. c. 117, § 5, for the specific performance of the following agreement, signed by Washington F. Somerby, the defendant's intestate: "Cambridge, July 20, 1871. In consideration of ten dollars to me paid by E. G. Lynes, of Cambridge, and other valuable con- siderations, I hereby agree to deed to said Lynes from twenty-six to twenty-eight thousand feet of land situated on Walden Street and Vassel Lane in said Cambridge, when the bounds are fixed and the street laid out, the street to be forty feet wide and two hundred feet long, said deed to be subject to the conditions of a mortgage running to Fordyce M. Stimpson, and recorded with Middlesex deeds." Gray, C. J. The jurisdiction to enforce specific performance of written agreements of persons deceased, conferred upon the Probate Court by the Gen. Sts. c. 117, § 5, is concurrent with the jurisdiction of this court in equity under the Gen. Sts. c. 113, § 2, and must be governed by the same rules. The agreement signed by the intestate describing the boun- daries of the land by the adjoining streets on the northeast and northwest only, and looks to the fixing of the bounds, and the laying out of another street, before the conveyance. The report finds that the bounds were not fixed, nor the location of the pro- posed street determined, in his lifetime. The agreement is too indefinite to be specifically enforced. Boston & Maine Railroad v. Babcock, 3 Cush. 228; Pray v. Clark, 113 Mass. 283; Grace v. Denison, 114 Mass. 16; Jordan v. Fay, 40 Maine 130. Petition dismissed. CHAP. VI.] MEAD Z/. PARKER. 751 MEAD V. PARKER. (115 Mass. 413.) [Supreme Judicial Court of Massachusetts, 1874.] Contract to recover damages for an alleged breach of the following contract in writing signed by the defendant : "Boston, December 17, 1872. This is to certify that I, Jonas Parker, have sold to Franklin Mead on Church Street for the. sum of fifty-five thousand dollars ; and, in payment, said Mead assumes the mort- gage of twenty-nine hundred dollars, and pays cash one hundred dollars ; balance, bill of sale of a steam engine and crushing ma- chine, and trucks and railway, and all the implements in the building; and also the building in which the said machinery and tools, now with the same; and papers necessary to convey above to be made and passed on or before the 25th of December, 1872." The declaration alleged that the house referred to was on Church Street, Somerville. Wells, J. In the opinion of the majority of the court, there is no substantial point of diflference by which to distinguish this case fi^om Hurley v. Brown, 98 Mass. 545, in that the writing disclosed an agreement for the sale of "a house and lot of land situated on Amity Street." There being several such, parol evi- dence was admitted to show that there was one only which the defendant had any right to convey, and that the parties had been in treaty for the sale and purchase of it. The court held that the subject-matter of the contract might thus be identified; and so when ascertained the writing might be construed to apply to it; and was thus made sufficiently definite and certain for spec^ific enforcement in equity. In that case, the location of the property in Lynn appeared from the writing. In the present case, the writing bears date at Boston; which might indicate that the property was in Boston. But that is an inference of fact, not conclusive. If it appeared that there was no Church Street in Boston, or that the defendant had no house there, but did own one upon Church Street in Somerville, the identification of that as the subject of the nego- tiation and agreement might be effected by parol evidence upon 752 merchants' trading co. v. banner. [chap. VI. the same principle and by the same rule as was applied in Hurley V. Brown. It is not a question of the sufficiency of the writing under the statute of frauds, so much as it is of the right to resort' to parol evidence in aid of the writing, where an ambiguity exists in respect to the property intended to be sold, or to which the contract relates. The most specific and precise description of the property intended requires some parol proof to complete its identification. A more general description requires more. When all the circumstances of possession, ownership, situation of the parties, and of their relation to each other and to the property, as they were when the negotiations took place and the writing was made, are disclosed, if the meaning and application of the writing, read in the light of those circumstances, are certain and plain, the parties will be bound by it as a sufficient written con- tract or memorandum of their agreement. That parol evidence is competent to furnish these means of interpreting and applying written agreements is settled by the uniform current of authori- ties. Baker v. Hathaway, S Allen 103; Farwell v. Mather, 10 Allen 322 ; Putnam v. Bond, 100 Mass. 58 ; Stoops v. Smith, 100 Mass. 63, and cases there cited ; 1 Greenl. Ev. §§ 286, 288. The case finds that "evidence was offered by the plaintiff of the identity of this property, and that the bargain was made between the. parties on the premises." No question is made of the suf- ficiency of this evidence for the purpose, if it was competent so to connect the writing with its subject-matter. The objection is that as the writing does not of itself describe the subject of the sale with any degree of certainty, it is therefore insufficient as a memorandum under the statute of frauds; and the parol evi- dence cannot be resorted to in order to identify the property and relieve the ambiguity. We think the writing is sufficient to satisfy the statute of frauds; and if, when the facts are shown, the ambiguity disap- pears, it was capable of being enforced as a contract. Exceptions overruled. MERCHANTS' TRADING COMPANY v. BANNER. (L. R. 12 Eq. C. 18.) [Chancery Cases, 1871.] This was a demurrer. The bill contains allegations to the fol- lowing effect : CHAP. VI.] merchants' TRADING CO. V. BANNER. 753 The plaintiffs, being the owners of a screw seamship called the Bolivian, and being desirous that certain alterations should be made in the vessel, in the month of January, 1870, entered into a contract for that purpose with a firm of W. C. Miller & Sons, then carrying on business as shipbuilders at Garston, near Liv- erpool. The agreement (the terms of which were in writing) provided that Messrs. W. C. Miller & Sons should cut in two, lengthen, complete, and finish for the plaintiffs the screw steam- ship Bolivian in accordance with a specification, and would use • their best endeavors to complete, finish, and duly deliver to the plaintiffs the said steamship with all reasonable despatch, and contained provisions authorizing the plaintiff's engineer to in- spect the ship at all reasonable times; and in consideration of the premises the plaintiffs agreed to pay to Messrs. W. C. Miller & Sons for the price of such alterations and additions of and to the said steamship the sum of $27,600 by the installments and at the times therein mentioned; and Messrs. W. C. Miller & Sons were to have a lien on the ship for securing the due payment of all the installments. The agreement then proceeded as follows: "Provided also, and it is hereby agreed and declared by and between the said parties -hereto that during the alteration of the said steam-vessel so much and such parts of the said steam-vessel, and of her engines, boilers, and machinery, as shall be added to, and built in and to, the said vessel shall be deemed to be, and shall be, the property of the said company, its successors or as- signs, but without prejudice to the lien of .the said W. C. Miller & Sons for any unpaid installments ; and in case the said . W. C. Miller & Sons shall refuse, neglect, or fail to carry on and com- plete the said steam-vessel according to the true intent and mean- ing of these presents, then and in that case the said company, its successors or assigns, shall be entitled not only to the possession of so much and such parts of the 'said steam-vessel, and of her engines, boilers, and machinery, as shall be built in, and added to, the said steamship, but also to all such articles, matters, and things as shall be then lying and being in and about the said yard and wharf as shall by the said W. C. Miller & Sons be intended for the alteration and completion of the said steamship, on the terms that the said company shall pay to the said W. C. Miller & Sons, their executors, administrators, or assigns, such a rea- sonable amount as shall be ascertained by arbitrators, as herein- after mentioned to be the value of the said articles in the condi- tion in which the same may be at the time. And it is hereby 4S 754 merchants' trading co. v. banner. [chap. vi. further agreed that in case of such refusal or failure as afore- said it shall and may be lawful for the said company, its succes- sors, or assigns, with workmen or others, to enter and go into the yard or dock of the said W. C. Miller & Sons wherein the said vessel shall be building or be in progress of construction, and either to take away the said steam-vessel, or. parts thereof, and the said engines, boilers, and machinery, or parts thereof, or to employ workmen to finish the same without any molestation _ or hindrance whatsoever from the said W. C. Miller & Sons, their executors, administrators, and assigns, or the workmen or other persons employed by them, and without making any allowance for the use of the said dock yard, machinery, or premises." Messrs. W. C. Miller & Sons subsequently to entering into the agreement took the vessel into the dock at Garston, in which they carried on business, and they proceeded to cut the vessel in two, but made no further progress with the alterations. The vessel was still lying in the dock, cut in two pieces. In November, 1870, Messrs. W. C, Miller & Sons were adjudi- cated bankrupts, and the defendant was appointed trustee under their bankruptcy. As such trustee the defendant caused adver- tisements to be issued of the sale of the graving-dock, machinery, and other property of Messrs. W. C. Miller & Sons. Amongst the property so intended to be sold were divers articles, intended for the alteration and completion of the Bolivian. The adver- tisement took no notice of the plaintiffs' rights under their agree- ment. ■ The bill prayed for a declaration that the plaintiffs were en- titled to complete the alterations in the said steamship Bolivian agreed to be executed by the said W. C. Miller & Sons, and that the plaintiffs and their workmen were entitled to enter upon, go into, and use the graving-dock, workshops, machinery, and prem- ises of the said W. C. Miller & Sons in which the said ship was, and the said alterations were being carried on, without making any allowance for the use of the said dock yard, machinery, and premises, and that the plaintiffs were entitled to all such articles, matters, and things lying in or about the said yard or wharf of the said W. C. Miller & Sons as were intended by them for the alteration and completion of the said steamship, upon paying for such articles, matters, and things in the manner provided for by the said agreement; and for an injunction to restrain the defend- ant from selling or otherwise dealing with the dock in which the said steamship was lying, and the workshops, machinery, and CHAP. VI.] . merchants' trading CO. V. BANNER. 755 premises in and by means of which the Said alterations in the said ship were being made, in such manner as to exclude or in- terfere with the right of the said company, their successors or assigns, to complete the alteration in the said steamship in the said dock, and their right, and the right of their workmen, to enter and go into the said dock and yard, and to use the said dock, jvorkshops, machinery, and premises for completing the altera- tions in the said steamship ; and that the defendant might in like manner be restrained from removing the said ship or- the said machinery from the said premises, and from removing or selling the articles, matters, and things lying and being in or about the said dock yard and premises which were intended by the said W. C. Miller & Sons for the alterations and completion of the said steamship, the plaintiffs being willing and thereby offering to pay for such articles, matters, and things according to the said agreement. April 21. Lord Romilly, M. R. I cannot avoid allowing the demurrer in this case. It appears, to me totally impossible to give relief upon this agreement in a court of equity. I am of opinion that this must be looked at exactly as if it were a suit for the specific performance without any bankruptcy at all; and that the defendant, or rather the persons for whom the defend- ant is a trustee, have either refused or declined to perform the agreement. The agreement is of a singular description. If this agreement could be specifically enforced, what railway contract is there for making a tunnel, or the like which could not be specifically enforced? There is a stipulation that if Messrs. Miller refuse or neglect' to perform the contract (which in my opinion they have done, for I think that the bankruptcy amounts to that) there is a power to the plaintiff to take possession and complete the vessel. That exists in all railway contracts ; and the only difference is this, that in all railway contracts there is usually added (at least in all those which I have seen) a provision » to charge the person with whom they have made the contract with the expenses of performing the contract. But that is not so here. It is merely a power to enter. That can make no difference, and it appears to me to be a contract which the Court cannot possibly perform. Then, as was laid down by Lord Eldon in Clarke v. Price, 2 Wils. C. C. 157, if the court cannot perform the contract as a whole, it will not enforce performance of a part ; and if th?re is any remedy it must be at law. In Morris v. Col- man, 18 Ves. 437, and Lumley v. Wagner, 1 D. M. & G. 604, 756 . PARK V. JOHNSON. . [CHAP. VI. there appear to have been some "grounds on which it was held that those cases were taken out of the rule. In the former case Lord Eldon granted an injunction because the defendant, as part of a partnership transaction, which he and the plaintiff had entered into as proprietors of the Haymarket Theatre, had agreed to write plays for that theatre, while his partner was to get up the performances. In Lumley v. Wagner the court seems to have treated it as if there was a separate and distinct contract in which, one said, "In consideration of my doing so and so, you shall not perform for anybody else." Thereupon the court en- joined the defendant from performing in any other place. At all events, I do not think any of the cases touch the real prin- ciple, which is, that where the stipulation sought to be enforced is really a part of the contract itself, this court cannot specifically perform the contract piecemeal, but it must be performed in its entirety, neither can it perform any particular portion of it. Here it is obvious that the contract cannot be performed in its en- tirety." The result, no doubt, is that a very serious evil is in- flicted upon the Merchants' Trading Company ; but I think under the Bankruptcy Act, the parties will be able to get such relief as in the case of any person who has a large claim upon a bank- rupt which he cannot obtain in any other form, or in any other way. I presume the Court of Bankruptcy will give them some means of getting their vessel out of the dock, and the like. At air events, I am of, opinion that I cannot do it by specific per- formance; and therefore I allow the demurrer. PARK V. JOHNSON. (4 Ail. 259.) [Supreme Judicial Court of Massachusetts, 1862.] Bill in Equity to. enforce specific performance of the follow- ing contract : "Agreement made this 27th day of October, A. D. 1860, by and between Richard F. Park, of Chelsea, and Samuel T. Johnson, of Charlestown, botlT in Massachusetts, witnesseth, That the said Park agrees to sell to said Johnson, for the con- sideration hereinafter mentioned, two houses on Second Street in said Chelsea (here followed the description of the land) ; also a house and land on Poplar Street in said Chelsea (here followed' a description of the land) ; and the said Park agrees to make, CHAP. VI.] PARK V. JOHNSON. 757 execute, acknowledge and deliver the deeds necessary to convey said estates, with release of dower and homestead ; and the said Johnson agrees to buy the said houses, and pay him therefor as follows ; by making, executing and delivering and acknowledging to said Park the necessary deeds for conveying to said Park, with release of dower and homestead, the old Deacon Travers farm in West Natick." The bill alleged that the defendant refused to perform the agreement, though requested, and though the plain- tiff tendered to him good and sufficient deeds of the estates in Chelsea, and a form of deed of the estate in West Natick for him to execute. The defendant in his answer averred that the written contract did not contain the whcrfe agreement between the "parties, but that in addition to the consideration therein expressed the plaintiff was to deliver to him a gold watch and chain, of the value of $100; that the plaintiff made to him certain misrepresentations as to the condition and value of the estates, and as to certain mortgages thereon, by which the defendant was deceived and thereby induced to enter into said contract ; that the plaintiff has a plain, adequate remedy at law ; and that the bargain claimed by the plaintiff would be unconscionable. The case was heard before the chief justice, upon the bill, an- swer and evidence introduced by both parties, which it is un- necessary to recite here, the material facts being stated in the opinion, and was reserved . for the determination of the whole court. Dewey, J. Notwithstanding the right of the plaintiff to resort to his action in a court of law, to recover damages for the breach of the contract set out in the bill, he may at his election resort to his bill, in equity to compel specific performance of the contract. An action at law is not a perfect remedy in such a case, and it is only by a bill in equity that he can inforce the full performance of the contract. Hence it is well settled that the objection that the party has "a plain, complete and adequate remedy at law" does not apply to such bill for specific performance. Old Colony Railroad V. Evans, 6 Gray 25. The plaintiff, having showed the due execution of the instru- ment set forth in his bill, and a readiness on his part to perform the contract as set forth in such instrument, is now entitled to a specific performance thereof on the part of the defendant, unless some good and sufficient reason is shown justifying his refusal to perform it. 758 PARK V. JOHNSON. [ CHAP. VI. This he attempts to maintain and justify upon several dis- tinct grounds. •1. That the court has no power to decree a specific perform- ance of a contract in writing, unless every part of the actual agreement was reduced to writing; and that it is open to the defendant to show such omission in bar of the right to maintain the bill. If this were the "case of the plaintiff in a bill in equity seeking the specific performance of a contract in writing, but to the terms of which he would add further provisions in his favor alleged to have been omitted by mistake, and which he asked to have inforced as a part of the contract, the court would not in such case order a specific performance. Such was the case of Dwight v. Pomeroy, 17 Mass. 328. But in the present case, the whole claim of the plaintiff arises upon the written contract. He does not ask to supply any omission, or^in any manner to vary it; and in an action at law to recover damages for its nofl-ful- fiUment, the contract as reduced to writing and executed by the parties would be the contract to be enforced. In equity, to a certain extent, a different rule prevails; and a court of equity will refuse to entertain a bill for specific performance of the writ- ten contract, when it is clearly shown that an omission exists in the same materially affecting the rights of the defendant; and oral evidence is competent to show such mistake. In such case, courts of equity withhold the exercise of their powers, unless the party seeking relief will do full justice to the other party according to the facts which are shown to exist as to the real contract intended by the parties. The case of Dwight v. Pomeroy goes no further than this. The case of Brooki v. Wheelock, 11 Pick. 439, was also a case where the' plaintiff in a bill in equity attempted to add to the terms of the written contract a verbal promise, and, with the written contract thus enlarged by the oral one, to obtain a specific performance thereof; but the court refused the same. These cases furnish no authority for holding that, where the plaintiff is content to abide by the terms of the written contract, and asks no relief beyond its provisions, nor seeks to add to it, the fact of an omission by mistake to insert in the written contract all the oral stipulations as to the bargain, upon being shown by the defendant, necessarily defeats the bill. Such omission is clearly open to the defendant as an objection to inforcing literally the written contract, and would prevail unless that equity which authorizes the introduction of such oral evi- CHAP. VI.] PARK V. JOHNSON. 759 dence is fully met by the offer, on the part of the plaintiff, to treat the written agreement as modified by the part omitted, and thus give full effect to the actual intentions of the party, and require no more to be done than would have been required had the omitted part been recited in the written contract. The alleged omission here' has no reference to the acts to be done by the defendant, but was the omission to recite the full extent of the consideration of those acts, or what was to be done by the plaintiff for the benefit of the defendant. The written con- tract fails to recite that the plaintiff was, in addition to the three lots of land, or, more accurately speaking, the right in equity to redeem the three certain lots of land named on the written contract, also to give {o the defendant a gold watch and chain. The defendant insists that this omission is absolutely fatal to the right of the plaintiff to any decree for specific performance, even though the plaintiff has been always ready and willing *to deliver such watch and chain as a part of his contract, and has brought the same into court, and made a tender thereof to the defendant. In reference to this point we have various authorities which seem to have a bearing thereon, and shall refer to the most important of them. Thus, in 2 Story on Equity § 770a, it is said : "Where the defendant sets up, in his defence to a bill for the specific performance of a written contract, that there has been a parol variation or addition thereto by the parties, if the plaintiff assents thereto he may amend his bill and, at his election, have a specific performance af the written contract, with such varia- tions or additions so set up ; for, under such circumstances, there is a written admission of each party to the parol variation or addition." The case of London & Birmingham Railway v. Winter, 1 Craig & Phillips 57, is to this point. Lord Cottenham first states the rule that the plaintiff cannot, in case of a contract in writing, set forth such contract and then proceed to set forth certain oral variations and additions, and ask the court to order a specific performance of the contract as thus modified by the oral evi- dence ; but he adds : "On the other hand, it is quite competent for the defendant to set up a variation from the written contract, and it will depend upon the particular circumstances of each case whether that is to defeat the plaintiff's title to have a specific performance, or whether the court will perform the contract, taking care that the subject matter of this parol agreement or 760 PARK V. JOHNSON. [CHAP. VI. understanding is carried into effect, so that all parties may have the benefit of what they contracted for." Townsend v. Stangroom, 6 Ves. 328, and Ramsbottom V. Gos- den, 1 Ves. & B. 165, sustain this view of the question. In the latter case. Sir William Grant put it to the plaintiff whether he would have specific performance of the contract taken with the conditions and modifications established by the parol testimony, or' whether he would have the bill dismissed. In the case of Gordon v. Hertford, 2 Jiadd. 106, the plaintiff was allowed to have a decree for specific performance upon the contract, -as varied by the parol evidence introduced by the de- fendant. In Clark v. Moore, 1 Jones & Lat. 723, performance was or- dered upon the plaintiff's electing to take the same with the parol variations. And in Clark v. Grant, 14 Ves. 519,. a similar decree was passed, the plaintiff assenting to take the same with the varia- tion set up by the defendant. On the other hand, there are cases where the court have, upon the fact of such omission of a part of the contract being shown, dismissed the bill, although the plaintiff upon the hearing offered to take his order for specific performance upon the contract as modified by supplying its omissions. But we think such ruling was under peculiar circumstances, and where the plaintiff had attempted in the first instance to impose upon the court, and per- petrated a fraud, or wh.ere the claim was wholly inequitable, or there had been great laches. This last ground existed in the case of Garrard v. Grinling, 2 Swanst. 244, cited by the defendant. The case of Molloy v. Egan, 7 Irish Eq. 590, was apparently more relied upon. It was a case where the bill was dismissed on the parol evidence of a material omission in the written contract, although the plaintiff at the hearing offered to perform the true agreement. The reasons for dismissing the bill in that case are very fully stated by Lord Chancellor Sugden, in giving the opinion of the court. In the view of the court the plaintiff there was attempting to commit a fraud upon the defendant. The 4)laintiff had agreed to lease two stores to the defendant for a certain sum, but in drafting the contract one of the stores was wholly omitted, and the contract, as written, purported to be an agreement to lease one store only, for which the sum agreed upon as the rent of both stores was to be paid. The plaintiff, well knowing this, filed his bill seeking to inforce the contract as written, but, being met by the parol evidence of the real contract, was then willing CHAP. VI.] PARK V. JOHNSON. 761 to take his decree upon the contract as including the two stores. The Chancellor says : "If he attempts to perpetrate a fraud and fails, I shall take care that he fails altogether." The present case has no such element of fraudulent attempt to enforce a contract literally, to the exclusion of any matter omitted by mistake to be stated in the written contract. The plaintiff, as it seems, has ever been ready to take the actual agreement, and fully to perform the omitted stipulation. The weight of authority seems clearly with the plaintiff on this point ; and while the court would refuse to give their aid in com- pelHng the literal execution of a written contract which does not contain the whole agreement, they allow the objection to operate no farther than to reqnire the party seeking the aid of the court to modify the written contract so as to embrace all the stipulations that are alleged to have been omitted or subsequently varied. In the case of a fraudulent attempt to enforce literally the written contract, the court would Wholly refuse to sustain the bill. In the citation made from 2 Story on Eq., § 770, it would seem that it might be necessary to amend the bill, where such a defence was relied upon, by introducing the oral agreement alleged to have been omitted. But this does not appear to have been re- quired in the cases to which we have referred. To require such amendment would be to assume that the bill was originally de- fective. But the legal contract between the parties is the written contract, and the plaintiff could not properly set forth any addi- tion or variation by parol. At law the written contract would control, and the defendant would be estopped from setting up a parol variation. It is only because the proceeding is in equity that this evidence is admitted. Here he may introduce it, and thus present an equitable defence to the bill, unless the other party will obviate the objection by giving the defendant the full benefit of the part omitted in the written contract. If he will do so, that objection is removed. This can be done effectually by adapting the decree to the case thus admitted by the parties, and thus full equity will be done to all parties. 3. The further ground. urged in defence is, that a decree re- quiring a specific performance would be inequitable and ought to be refused, upon the ground that the defendant would receive no adequate consideration for the property he is to transfer, and that the bargain was unequal and greatly prejudicial to the defendant. 762 PARK V. JOHNSON. [CHAP. VI. Upon this point something more must be shown than that the bargain was an unequal one, and that too high an estimate was put upon the property of the plaintiff. The general language of the authorities on this subject is, that mere inadequacy of con- sideration constitutes no defence to a bill for specific performance, unless the inadequacy is such as amounts to evidence of fraud. Fry on Specif. Perf., § 280 ; Viele v. Troy & Boston Railroad, 21 Barb. 381 ; Coles v. Trecothick, 9 Ves. 234; Abbott v. Sworder, 4 De Gex & Sm. 448 ; Cathcart v. Robinson, 5 Pet. 263. It is, however, stated in terms somewhat modified thus: "Mere inadequacy of price is not per se sufficient to set aside a transac- tion, yet when it is so great as to give to the contract the character of unreasonableness and hardship, the court may be induced to stay the exercise of its discretionary power in inforcing the spe- cific performance of a private contract for the sale of land." Adams on Eq. 79, note, and many cases there cited on the point. Taking the case upon this latter view, 'the defence fails. Upon the question of value of real estate, there may be ex- pected to be found much difference in the estimate. Such we find to be the case here. Taking the estimate of the witnesses of the plaintiff, the difference betwen the real value and that at which it was estimated by the parties would wholly fail to present a case where the court should decline to interfere for this cause. Taking the estimate of some of the defendant's witnesses, it would seem to be certainly a very unequal bargain. But the witnesses for the defendant differ much among themselves as to the value of the property. The fact that this was wholly an exchange of property, without the payment of any money on either side, is a feature of the case not t9 be overlooked. The property of the plaintiff was of a kind susceptible of rise and fall from its location, and its value likely to change by future circumstance. All these considerations were or ought to have been regarded by the parties; and no fraud being shown, and the parties having fixed their own estimate of the relative values of the property that each was to receive from the other in exchange, they must now be bound by their contracts as to the same. As to the objection that the court will not decree specific per- formance of the agreement so far as relates to the release of dower by wife of the defendant, if the prayer of the bill is that the wife shall execute the release, it would, of course, be denied, she not being a party to this contract, nor under any obligation CHAP. VI.] CONGER V. NEW YORK, W. S. & B. R. CO. 763 to execute such release. Squire v. Harder, 1 Paige 494. But this will not prevent the court from compelling the defendant to execute the contract on his part, so far as it is personal to him, and also charging him damages for the inability to execute his agreement in that respect. The plaintiff will therefore be entitled to a decree in his favor requiring the defendant to execute the contract on his part, the plaintiff also performing the stipulations on his part, including the oral stipulation; and that upon failure to procure the release of dower by the wife of the defendant, proper damages be assessed therefor against him, and that the case be referred to a master to report as to the same. CONGER V. NEW YORK, W. S. & B. R. CO. (120 N. Y. 29.) [Court of Appeals of New York, 1890.] Appeal from Supreme Court, General Term, Second Depart- ment. , Action by Clarence R. Conger and. another against the New York, West Shore & Buffalo Railroad Company. A judgment in favor of defendant, entered upon the decision of the special term, was afSrmed at the general term, and plaintiff again ap- peals. Haight, J. This action was brought to compel a specific per formance of a contract. The Jersey City & Albany Railway Com- pany was incorporated for the purpose of constructing and oper- ating a railroad from Fort Montgomery, in the County of Orange, to a point on the Hudson river opposite to the City of New York. As such incorporation it entered into a written agreement with one Catherine A. Hedges, the plaintiff's grantor, in and by the terms of which she gave to the company a right of way across her premises in Rockland county upon certain conditions, one of which was that the company should locate a station in the gorge commonly known as the "Long Clove," and stop thereat five express trains each way daily. Subsequently the Jersey City & Albany Railway Company was consolidated with the North River Railway Company, under the name of the North River Railroad Company, and that company was consolidated with the defendant, 764 CONGER V. NEW YORK, W. S. & B. R. CO. [CHAP. VI. which was incorporated for the purpose of consti^ucting and oper- ating a railroad from the New Jersey state line, through the. state of New York, to the city of Buffalo. The defendant has entered upon the lands of the said Catherine A. Hedges, and constructed its road-bed across the same, but it has not constructed any sta- tion thereon in the Long Clove gorge, or stopped any of its express trains thereat. The trial court has found as facts that a suitable station for the accommodation of passengers, and the receipt and delivery of freight, at the Long Clove gorge, could be built by the defendant only at a considerable expense, because of the nature of the ground at that point ; that the place where the plaintiffs demand that the station be located is near the mouth of a long tunnel, and at a sharp curve in the defendant's railroad, upon the side of a steep mountain approached by steep grades in both directions; that it is sparsely settled, and if a station were established there it would be of no use to the public; that very little, if any, benefit would result to the plaintiffs, by the erection of a station, or the stoppage of the trains thereat ; that the public convenience would not be promoted, but the public travel would be delayed ; and, as a conclusion of law, that a specific enforcement of the agreement would work hardship and injustice to the de- fendant, and such enforcement will not subserve the ends of jus- tice ; that specific performance should be denied, and the plaintiffs left to their action for damages for a breach of the contract. The evidence sustains the findings of the trial court, which have been affirmed by the general term. The questions for our consideration are, therefore, narrowed to a determination as to whether the conclusions of law reached are justified under the findings of fact. It has been the well-settled doctrine of this court that the spe- cific performance of a contract is discretionary with the court, and that performance will not be decreed where it will result in great hardship and injustice to one party, without any considera- tion, gain, or utility to the other, or in a case where the public interest would be prejudiced thereby. Clarke v. Railroad Co., 18 Barb. 350; Trustees v. Thatcher, 87 N. Y. 311-317; Murd- feldt v. Railway Co., 102 N. Y. 703, 7 N. E. Rep. 404; Day v. Hunt, 112 N. Y. 191-195, 19 N. E. Rep. 414. As we have seen, the Long Clove gorge is located upon the side of a steep mountain, in a sparsely settled district, and is approached by a steep grade, and that a passenger station, with an approach thereat, could be constructed only at a considerable CHAP, yi.] FISH V. LESER. 765 expense. These are reasons worthy of consideration, but, if there were no others, the trial court might not have deemed them suffi- cient to refuse specific performance. But they are followed by another, which gives additional force and weight, and that is that the public travel will be delayed by the stoppage of the trains, and that the public convenience will not be promoted. The de- fendant is a corporation organized under the laws of the state and is a common carrier of passengers and freight. Its duties are largely of a public nature, and it is bound to so run its trains and operate its road as to promote the public interest and con- venience, and, in view of the fact that but little if any benefit would result to the plaintiffs by the erection of a station and the stoppage of trains thereat, as found by the trial court, it appears to us that that court properly refused to decree specific perform- ance and remanded the plaintiffs to their action for damages. The judgment should be affirmed, with costs. All. concur, except Brown, ]., not sitting. FISH V. LESER. (69 /;/. 394.) [Supreme Court of Illinois, 1873.] Appeal from Superior Court, Cook county; Joseph E. Gary, Judge. This was a bill for specific performance, filed by John Fish against John Leser and Johanna Leser, his wife. Craig, J. This was a bill, filed in the Superior Court of Cook county, by John Fish, appellant, against John Leser and Johanna Leser, appellees, to enforce the specific performance of a contract for the sale of a certain lot in Chicago. Upon the hearing of the case, the court entered a decree dismissing the bill and the com- plainant prosecuted this appeal. Courts of equity will not always enforce the specific perform- ance of a contract. Such applications are addressed to the sound legal discretion of the court, and the court must be governed, to a great extent, by the facts of each case, as it is presented. A specific performance will not be decreed unless the agree- ment has been entered into with perfect fairness, and without mis- apprehension, misrepresentation or oppression. Frishy v. Bal- lance, 4 Scam. 287; Underwood v. Hitchcock, 2 Ves. Sr. 279. 766 FISH V. LESER. [CHAP. VI. The contract must be fair, equitable and just, and the complainant should be prepared to show that it will not be unjust or oppres- sive on the defendant to have the contract enforced. Stone v. Pratt, 25 111. 25. We will, then, examine some of the leading facts in this case, and see if the complainant has brought himself within the prin- ciples announced, which are necessary in order to enable him to obtain the relief he asks, in a court of equity. It appears that the defendants, or one of them, in the fall of ,1871, were the owners of the property in question, and had owned and resided upon it for many years. The appellees are foreign- ers by birth with but little education, and are not well acquainted with our language; they transacted but little business — indeed, the evidence shows that John Leser has, for several .years, been scarcely competent to transact any business ; they can write, but are unable to read our writing. ■ The house in which they resided, on the property in question,- together with other property on the same street, was destroyed by the fire of October 9, 1871. Previous to the fire their property was not desirable, and could not readily be sold in the market, on account of the bad repute of other houses on the same street. The fire, however, removed this objection to the street, and prop- erty immediately began to advance. Farwell & Co. commenced to build on the same street, on the next block west, which also caused property to advance. These facts were unknown to the Lesers, but were well known to enterprising business men. Under these circumstances, the Lesers, soon after the fire, were sought out by one John P. White, a real estate agent in the city, who desired to get an agency to sell their property. This property, at the time of the sale, as near as we are able to judge from the evidence, was worth $30,000 — some of appel- lees' witnesses place it as high as $35,000, while iippellant's wit- nesses fix its value at $21,000 to $22,000. Burt, who owned the east half of the same lot, testifies he fixed the price of his lot at $30,000, but withdrew it from the market, and would not sell at that price, and his opinion is this lof is worth that amount. White had several interviews with the Lesers. He wanted to act as their agent; advised them to sell; claimed that property would depreciate rather than increase in value. He never in- formed them that Farwell & Co., and others, were buying and preparing to build in that neighborhood — a f^ct that was well known to business men. CHAP. VI.] FISH V. LESER. 767 Johanna Leser, in her evidence, says : "White came again ; said he had a man to buy the lot, and he would give $20,000, and we told him we would not sell for that ; he said it would not be worth more in ten years. My husband said, if you give me $21,000 I will sell to you. This he refused. White told me to coax my husband to take $20,000. I told him I would not. He then said, well, I will not take another step towards selling your lot, and before spring you will offer it to me for $18,000." During this time appellant was frequently at White's office, and he and White were negotiating on the lot. White, in his testimony, says, they had given him verbal author- ity to sell the lot ; that, after having several interviews, he called on them with an offer, from appellant of $20,000 cash for the property. This they did not decide to take, but the next day he called again to see if they would accept the offer he had made them for appellant. He prepared and took with him a paper for them to execute, authorizing him to sell the lot. After discussing the matter some time, they would not accept appellant's offer, but they made this proposition: they would take $16,000 cash, and the purchaser assume and pay a mortgage of $5,000 that was on the lot, and pay commissions to White; he informed them he did not believe appellant would give that, but he would make him the offer. The next day, which was November 1st, White called on John Leser, where he and his two sons were at work, and obtained his signature to a paper, which turned out to be authority to sell the lot, which reads as follows : "Chicago, Oct., 31, 1871. "John P. White, real estate agent. In consideration of one dol- lar, by us received, we hereby authorize you to sell our lot, being the west half of lot 7, in block 94, in the school section addition to Chicago, for the sum of twenty-one thousand dollars ($21,000) net ; you to have all over that amount you can get, for your com- missions for such sale. The terms of payment we require is all cash, except the assumption of a mortgage of $5,000 by the buyer, now upon said lot ; we to furnish abstract showing title good in us,, subject to the said $5,000 mortgage. This proposition good for ten days from date hereof. "Yours, etc. "John Leser. [Seal.] "Johanna Leser. [Seal.]" 768 FISH V. LESER. . [CHAP. VI. White testifies that the paper was read' to Leser, and he and his two sons understood what it was. But in this he was contradicted by Leser and his two sons. They swear a portion of it was read in a low tone, but none of them understood it. They did not know that Leser was giving any authority to White to sell the lot ; supposed it was a writing that Leser would wait ten days before making a sale, but did not know it was anything further. White then carried the paper to Johanna Leser, and she, as she testifies, saw her husband had signed it, and not knowing • what it was, also executed the paper. " On November 8th White sold the property to appellant, by a written contract, as follows : "Chicago, Nov. 8, 1871. "Received of John Fish five hundred dollars ($500) to apply as a payment on the following described real estate, this day bar- gained and sold to the said Fish, to-wit : the west half of lot seven (7), in block ninety-four (94), in the school section addition to Chicago, sold at and for the price or sum of twenty-one thousand dollars ($21,000), upon the following terms of payment, to-wit: the said Fish is to assume and pay a certain mortgage of five thousand ($5,000) dollars, which is now upon s'aid property, with interest from date hereof, according to its tenor and eflfect, and the remainder of the purchase money, to-wit: fifteen thousand five hundred ($15,500) dollars, as soon hereafter as we deliver him a good and sufficient deed of conveyance to the said described real estate, with release of dower, free and clear of all hens or in- cumbrances, except the above mentioned $5,000 mortgage, which the said* Fish assumes; we to furnish an abstract showing title good in us, said abstract to be delivered within ten days from date hereqf; and the said deed to be delivered within thirty days from date hereof. "Witness our hand and seals this day and date first above written. "John Lesek. [Seal.] "Johanna Leser. [Seal.] "By John P. White, Their Agent. "John Fish." When appellees were notified of the contract, they refused to ratify it. Can it be said that this contract, which appellant is seeking to CHAP. VI.] FISH V. LESER. 769 enforce, has been entered into with fairness, and without misap- prehension? Important facts were artfully concealed from the Lesers by one who claimed to be -their agent, and if they had been known, U cannot be pretended the authority would have been given to sell. The fact is apparent, the Lesers, who were weak-minded and unacquainted with business — terror-stricken with the great fire which, in a moment, swept away the home they had occupied for years — ^were overreached by a shrewd real estate dealer, who acted in the interest of another, under the guise of a friend and agent of them. The contract can neither be said to be fair, equitable, or just. To take from them property worth $30,000 for $21,000, when considered in connection with the other facts disclosed by this record, is an outrage that a court of equity cannot for a moment tolerate or sanction. There is, however, another principle which, when applied to this case, forbids a court of equity from decreeing a specific per- formance of this contract. An agent employed to sell, cannot him- self become the purchaser ; or an agent employed to buy, cannot be the seller. And, upon the same principle, it is held that a con- tract made by one who acts as the agent of both parties may be avoided by either principal. Story, Ag. § 211. Before this written authority to sell was given, White came to the Lesers with a proposition from appellant of $20,000, and urged them to accept it. His commissions were to come from ap- pellant. As soon as he executes the contract of sale, he goes with appellant to the recorder's office and has it placed on^ record. Under his counsel and advice, appellant makes a tender of the purchase money. He takes appellant to an attorney for advice, and introduces him; nor does he stop at this. He offers to pay appellees' counsel their fees, not to exceed $1,000, if, upon an examination of the papers, they should advise and effect a, ratifi- cation of the contract by appellees. These facts tend to show that this agent was employed to buy as well as to sell. Appellees had bargained for the skill and labor of White, their agent, and had a right to expect -and demand his undivided services in their behalf and for their interest. This they have not secured, and a court of chancery will not lend its aid to enforce a contract which, in equity, is regarded as con- structively fraudulent. Other questions have been discussed by the counsel on each 49 770 BREWER V. HERBERT. [CHAP. VI. side of this case, but, in the view we have taken of the case, it becomes unnecessary to decide them. The decree of the Superior Court will be affirmed. Decree aMrmed. BREWER V. HERBERT. (30 Md. 301.) [Court of Appeals of Maryland, 1869.] Appeal from Circuit Court, Washington county, as a court of equity. The bill in this case was filed by the appellee for an injunction to restrain proceedings at law and for the specific performance of a contract. The appellee was the owner of a dwelling house and half lot of ground situate in Hagerstown, and sold the same to the appellant on the 9th of October, 1865, by their agree- ment in writing, as follows, to wit: "Articles of agreement made and concluded this 9th day of October, 1865, between F. Dorsey Herbert and John A. K. Brewer, both of Washington county and State of Maryland, wit- nesseth : That in consideration of the sum of four thousand dol- lars, to be paid as hereinafter mentioned, the said Herbert has this day sold to the said Brewer his house and half lot of ground, situated on the corner of West Washington and Prospect streets, in Hagerstown; and the said John A. K. Brewer on his part agrees to pay the said sum of four thousand dollars, as follows: Two theusand dollars on the 1st day of April, 1866; one thou- sand dollars on the 1st day of April, 1867 ; and one thousand dol- lars on the 1st day of April, 1868j — ^with interest from the 1st day of April, 1866; and the said Herbert doth further agree to give the said Brewer possession of the same on the 1st day of April, -1866, and on payment of the whole purchase money to make a good and sufficient deed for the same, clear of all incum- brances, to the said Brewer. In witness whereof the parties hereto have set their hands and seals on the day and year first above written. "[Signed] F. Dorsey Herbert. [Seal] "J. A. K. Brewer. [Seal.]" Of the $2,000 to be paid by the agreement on the 1st day of April, 1866, the appellant, at the request of the appellee, paid CHAP. VI.] BREWER z;. HERBERT. 771 $1,000 on the 10th day of October, 1865. At the time of sale the said premises were under lease by Herbert to Dr. Berry, whose term expired on the 1st day of April, 1866. The appellee held .a policy of insurance for $1,000 on the house at the time of sale, which was allowed by him to expire about the last of January, 1866. On the Sth day of February, 1866, the house was totally destroyed by fire, but without any fault on the part of the appellee or his tenant. Berry. On Monday, the 2d day of April, 1866, the 1st being Sunday, the appellee made a tender of the premises, then a vacant lot, to the appellant, which he refused to receive in its destroyed condition. The appellant having refused to receive the ground, and holding that the appellee was unable to perform his part of the contract, by reason of the destruction of the house, brought suit on the law side of the court, to recover from the appellee the said $1,000, so as aforesaid paid to him. Whereupon the appellee filed the bill in this cause to enjoin said proceedings at law and for a specific execution of the agreement. The court below by its decree enjoined said proceedings at law, and decreed a specific execution. From this decree the present appeal was taken. Before Bartol, C. J., and Grason, Miller and Robinson, JJ. Miller, J. After the execution of the written contract for the sale of the house and lot, and before the day fixed for delivery of possession and payment of the first installment of purchase money, the house was accidentally destroyed by fire, without fault of either party or of the tenant then in possession of the same. The vendor had a fee simple title to the property, and at the proper time, under the contract, offered to deliver possesson of the prem- ises in the condition in which they then were. This the vendee re- fused to receive because of the destruction of the house by fire, and the main question in the case is, can he on this ground suc- cessfully resist this application in equity by the vendor for a specific performance of the contract? In contracts of this kind between private parties, the vendee is in equity the owner of the estate from the time of the contract of sale, and must sustain the loss if the estate be destroyed be- tween the agreement and the conveyance, and will be entitled to any benefit which may accrue to it in the interim. This doctrine, notwithstanding the dictum in Stent v. Bailey, 2 P. Wms. 290, to the contrary, was plainly announced and settled by the decision of Lord Eldon, in Paine v. Metier, 6 Ves. 349, a case very similar in its circumstances to the present, where it was held that if there 772 BREWER V. HERBERT. [CHAP. VI. was no objection to the title of the vendor, or it had been ac- cepted in fact by the vendee before the houses were burned, no solid objection to the bill for specific performance could be founded on the mere effect of the accident before conveyance, "for if the party," says the lord chancellor, "by the contract has become in equity the owner of the premises, they are his to all intents and purposes. They are vendible as his, chargeable as his, capable of being incumbered as his ; they may be devised as his; they may be assets; and they would descend to his heir." This decision has always been regarded as fixing the true equi- table rule in such cases. It was recognized by Sir Thomas Plumer in Harford v. Furrier, 1 Madd. Ch. 287, and in Rawlins V. Burgis, 2 Ves. & B. 387, and by Lord Chancellor Manners in Revell V. Hussey, 2 Ball & B. 287. From these and other authorities of equal weight announcing the maxim that equity regards as done that which was agreed to be done is deduced as the established doctrine in equity that from the time the owner of an estate enters into a binding agreement for its sale he holds the same in trust for the purchaser, and the latter becomes a trus- tee of the purchase money for the vendor, and being thus in equity the owner the vendee must bear any loss which may happen, and is entitled to any benefit which may accrue to the estate in the in- terim between the agreement and the conveyance. 1 Sugd. Vend. 228, 388-391 ; 2 Powell, Cont. 69; Dart, Vend. 114-118; 2 Story, Eq. § 1212. The contract here is not for a sale at a future day; it does not use in this respect prospective or contingent terms. Its language is: The vendor "has this day sold to" the vendee his house and lot, which clearly imports a binding contract then exe- cuted and consummatefd. By such terms the title in equity passes from the date of the contract, and if there were nothing else in it there would be no room for argument, for it would be impos- sible to withdraw the case from the operation of the rule above stated. But it has been earnestly and strenuously urged by the appel- lant's counsel that as the contract contains an agreement by the vendor to deliver possession of the house and lot to the vendee on the 1st of April, 1866, the destruction of the house by fire before that period rendered performance by the vendor of this part of the contract impossible, and he cannot, therefore, either in law or equity, ask the vendee to perform his part of it; and this circumstance, it is insisted, distinguishes the case from those cited, and prevents it from falling within the principle established CHAP. VI.] BREWER V. HERBERT. 773 by them. Let us test the soundness of this argument. The vendee knew before and at the time of the contract there was a tenant in possession whose term would not expire until the 1st of April, and the first installment of the purchase money is made payable on, and interest on the deferred payments runs from, that day. The subject-matter of sale is realty — a lot of ground with a house upon it, described as a house and lot. The agreement as to de- livery is not like the usual covenant by a tenant in a lease, to deliver in as good condition and repair as when the contract was made. There is also no difficulty about delivery, except that the premises were not, as to the buildings upon them, in the same condition as at the date of the contract. The*question then re- solves itself into this, does the fact of the insertion into a contract like the present for the sale of real estate, of an agreement to de- liver possession at a future day, make any difference in the appli- cation of the rule ? It is true it does not appear in the cases cited there were in the contracts any stipulations as to delivery of pos- session at a future day, nor is this circumstance alluded to, but they explicitly say it is the passing of the title in equity which throws the risk of loss upon the vendee, and entitles him to accru- ing benefits. To this, as we have seen, a conveyance is not neces- sary, nor is payment of the purchase money or any part of it; for in Hampson v. Edelen, 2 Har. & J. 66, this court has de- cided that "a contract for land bona fide made for a valuable con- sideration vests the equitable interest in the vendee from the time of the execution of the contract, although the money is not paid' at that time." See, also, Siter's Appeal, 26 Pa. 180. Neither can possession nor delivery of possession be necessary, for, if the con- tract had been silent on this subject, the vendor would have had the right to retain possession at least until the 1st of April, when the first installment of the purchase money was payable, and if the vendee had obtained possession before he would have been restrained in equity from exercising any acts of ownership preju- dicial to the inheritance (Crockford v. Alexander, 15 Ves. 138; Reed v. Lukens, 44 Pa. 202) ; and yet the equitable title would all the while have been in him, subject to his disposition by deed or will, and liable for his debts. If, then, in the absence of a stipu- lation to deliver at a future day, there is an implied right in the vendor to retain possession until that period, and this would make no difference as to the liability of the vendee for an intermediate loss, how can the insertion of such a stipulation have in equity any different effect? The whole foundation of this doctrine of equity 774 BREWER V. HERBERT. [CHAP. VI. is that the equitable title and interest passes by the contract of sale, and from the time of its execution, and it contemplates delivery of possession as well as payment of purchase money, and a con- veyance at a future period. Hence Sir Edward Sugden and Sir Thomas Plumer both cite, as in exact accord with the decision of Lord Eldon, the rule of the civil law, where the very case is put in the Institutes : "Cum autem emptio et venditio contracta sit, periculum rei venditae statim ad emptorem pertinet, tametsi adhuc ea res emptori tradita non sit: Itaque, si cedes totae vel aliqua ex parte incendio consumptae fuerint — emptoris damnum est, cut necesse est, licet rem non fuerit nactus, pretium solvere." In sales of personal property delivery of the goods sold is not neces- sary to pass the title as between the parties, where the statute of frauds has been gratified by giving something in earnest, or pay- ment of the whole or part of the purchase money, or a sufficient note or memorandum in writing of the bargain, and in such case the property is at the buyer's risk before delivery. Franklin v. Long, 7 Gill & J. 418. And even where the seller remaining in actual possession agrees to deliver the property at a particular place, and it is destroyed by fire before such delivery, the loss will fall on the purchaser. Terry v. Wheeler, 25 N. Y. 520. Where sales are made under authority of a court, the contract is not regarded as consummated until it has received the court's sanc- tion or ratification, and therefore any loss happening before con- firmation falls upon the vendor. Ex parte Minor, 11 Ves, 559; ■Wagner v. Cohen, 6 Gill, 102. But where a loss occurs after con- firmation, by. which the contract is consummated, it falls upon the vendee, even though no purchase money has been paid, and the vendor remains in possession. This was expressly decided in Robertson v. Skelton, 12 Beav. 260, where Lord Langdale also said : "In equity the estate belongs to the purchaser from the date of the order to confirm the report, and the right of possession belongs to the vendor till the purchase money, for which it is security, has been paid." Again, if we look to the contract itself, and gather therefrom the intent of the parties, it is clear from the language used their intention was that the equitable title and in- terest should pass from the day of its execution. Upon this point its terms are too positive and explicit to admit of doubt. Delivery of possession and payment of purchase money were postponed to a future day for the convenience of each party respectively, and we cannot construe the agreement to deliver into a condition that the contract shall be void if there is any change in the state or CHAP, VI.] BREWER V. HERBERT. 775 value of the property on the day of delivery, nor interpolate any such words into the instrument. We are, therefore, constrained to hold the argument founded on this delivery clause to be un- availing to the appellant. But it is said speQific execution of contracts is in all cases not a matter of. absolute right, but of sound discretion in the court, and as the vendor cannot now deliver the house which was the main inducement to the vendee to buy, and constituted the chief value of the property, it would be inequitable to enforce the contract as against him. If this objection were sounds this doctrine of losses and benefits could never have been established. But, whilst it is conceded an application for specific performance is always addressed to the sound discretion of the court, yet where a con- tract respecting real estate is in writing, and is in its nature and circumstances unobjectionable, it is as much a matter of course for a court of equity to decree a specific performance of it as it is for a court of law to give damages for a breach of it. Smoot v. Rea, 19 Md. 405; 2 Story, Eq. Jur. § 751. "The fairness or hardship of a contract, like all its other qualities, must be judged of at the time it was entered into, not by subsequent events." If it was then certain, mutual, fair in all its parts, and for an ade- quate consideration, it is immaterial that by force of subsequent circumstances it has become less beneficial to one party, unless such change is in some way the fault of the party seeking its specific execution. Revell v. Hussey,2 Ball & B. 288; Lawder v. Blackford, Beat. 526; Webb v. Railway Co., 9 Hare 129; Low v. Treadwell, 3 Fairf. 541 ; Fry, Spec. Perf . 93, 98. Adherence to principle compels the courts to overlook the hardship of par- ticular cases. But ihe doctrine upon which this decision rests is founded in strict justice and equity, for whilst the vendee may think it hard to be compelled to pay for that which he cannot have in the condition it was when he purchased, the vendor, with equal justice, might think it hard to lose his money after a bona fide sale of his property, because of an accident accruing to it without fault on his part. It is to be remeimbered, too, that whilst the rule burthens the vendee with a loss it also entitles him to all benefits. Thus where a reversionary interest is agreed to be pur- chased, and lives drop, or One agrees to purchase an estate in cdn- sideration of a life annuity to the vendor, and the cestui que vie dies, or where there is a sudden rise in the value of the land from its being required for a public purpose, before conveyance, in all such cases the vendee reaps the benefit. So in the case before us, 776- BREWER V. HERBERT. [CHAP. VI. • if a valuable mine had been discovered on the premises the day after the contract, or by any unforeseen or unexpected circum- stances their value had been increased a hundred fold, the benefit would have resulted to the' vendee, and the vendor could not have been released from his contract. We cannot, therefore, sus- tain this objection to the bill. It appears that at the date of the contract the vendor held a policy of insurance upon the house, which by accident he allowed to expire without renewal before the fire, and of this the vendee received from him no notice. A similar state of facts existed in Paine v. Meller, and was held to constitute no objection to the vendor's bill. It is admitted there was no understanding between the parties that the vendor should keep the policy alive. They did not contract on any such basis. After the contract the vendee had an insurable interest in the house, and, in the absence of all agreement on the subject, the presumption is he intended to pro- ~ tect himself by insuring in his own name, or to take the risk of a failure to insure. The vendor was not bound to keep up the insurance or give notice to the vendee of its having expired. If the policy had existed at the time of the loss, the vendor could have recovered from the insurance company, but, being trustee of the premises for the vendee, he would be bound in equity to account to the latter for the money so received {Reed v. Lukens, 44 Pa. 200) ; but his failure to renew or to give notice cannot deprive him of his right to enforce the contract of sale. It also appears there was at the date of the contract a judgment against the vendor for $2,363.38, but he had at that time entered an appeal from the judgment to the court of appeals, and given an appeal bond with security amply sufficient, for that purpose to pay the amount of the judgment with costs, in case he should fail to prosecute his appeal with effect. The authorities are clear that equity will not compel a vendee to take an imperfect or de- fective title, yet cases of high authority are to be found in which a pecuniary charge against which adequate security has been given has been held not to constitute a defect in title, and also where equity, has enforced the agreement where a per- fect title can be made at the time of the decree. But this judgment thus appealed from, with appeal bond given, does not, in the sense in which courts of equity use the terms, make this such an imperfect or defective or incumbered title as will pre- vent specific execution, and especially not where the decree itself, as that appealed from in fact does, can protect the vendee by pro- CHAP. VI.] TAYLOR J/. MERCHANTS' FIRE INS. CO. ,777 viding that the judgment debt may be paid by him out of the purchase money due on the contract and in discharge thereof. We have bestowed upon the case our best care and consider- ation. We find nothing in the authorities cited by the appellant's counsel sufficient to overthrow the doctrine upon which we have based our decision, and can discover no ground upon which, in justice and equity, the appellee can be denied the relief he seeks. The decree must be affirmed. Decree affirmed. TAYLOR V. MERCHANTS' FIRE INSURANCE CO. ■• (9 How. 390.) [Supreme Court of the United States, 1849.] Nelson, J., delivered the opinion of the court. This is an ap- peal from a decree of the Circuit Court for the district of Mary- land, which was rendered for the defendant. The case in the court below was this : William H. Taylor, of Richmond county, Virginia, applied to John Minor, the agent of the defendants, residing at Fredericksburg, in that State, for an insurance upon his dwelling house, to the amount of $8,000 for one year, and as he was about leaving home for the State of Alabama, desired the agent to make the application in his behalf. The application was made accordingly, under the date of 25th of November, 1844, and an answer received from the secretary of the company, stating that the risk would be taken at seventy- - five cents on a thousand dollars, the premium amounting to the sum of fifty-six dollars. The- agent stated in the application to the company the reason why it had not been signed by Taylor; that he had gone to the State of Alabama on business, and would not return till February following; and that he was desired to communicate to him at that place the answer of the company. On receiving answer, the agent mailed a letter directed to Tay- lor, under date of the 2d of December, advising him of the terms of the insurance, and adding: "Should you desire to effect the insurance send me your check payable to my order for $57, and the business is concluded." The additional dollar was added for the policy. This letter, in consequence of a misdirection, did not reach Taylor till the 20th of the month ; who, on the next day, mailed a letter m answer to the agent, expressing his assent to the terms, 778 TAYLOR V. merchants' FIRE INS. CO. [CHAP. VI, and inelosing his check for the premium as requested. He also desired that the policy should be deposited in the bank for safe- keeping. The letter of acceptance was received on the 31st at Fredericksburg, by the agent, who mailed a letter in answer the next day, communicating to Taylor his refusal to carry into effect the insurance, on the ground that his acceptance came too late, the center building of the dwelling house in the meantime, on the 22d of the month, having been consumed by fire. The company, on being . advised of the facts, confirmed the view taken of the case by their agent, and refused to issue the policy, or pay the loss. A bill was filed in fhe court below by the insured against the company, setting forth, substantially, the above facts, and praying that the defendants might be decreed to pay the loss, or such other relief as the complainant might be entitled to. 1. Several objections have been taken to the right of the com- plainant to recover, which it will be necessary to notice, but the principal one is, that the contract of insurance was not complete at the time the loss happened, and therefore, that the risk pro- posed to be assumed had never attached. Two positions Tiave been taken by the counsel for the company for the purpose of establishing this ground of defence : 1. The want of notice to the agent of the company of the ac- ceptance of the terms of the insurance ; and, 2. The non-payment of the premium. The first position assumes that, where the company have made an offer through the mail to insure upon certain terms, the agree- ment is not consummated by the mere acceptance of the offer by the party to whom it is addressed; that the contract is still open and incomplete until the notice of acceptance is received: and that the company is at liberty to withdraw the offer at any time before the arrival of the notice ; and this even without communi- cating notice of the withdrawal to the applicant ; in other words, that the assent of the company, express or implied, after the ac- ceptance of the terms proposed by the insured, is essential to a consummation of the contract. The effect of this construction is, to leave the property of the insured uncovered until his acceptance of the offer has reached the company, and has received their assent; for, if the contract is incomplete until notice of the ac- ceptance, till then the company may. retract the offer, as neither party is bound until the negotiation has resulted in a complete bargain between the parties. CHAP. VI.] TAYLOR V. MERCHANTS' FIRE INS. CO. 779 In our apprehension, this view of the transaction is not in ac- cordance with the usages and practice of these companies in taking risks ; nor with the understanding of merchants and other business men dealing with them; nor with the principles of law, settled in analogous cases, governing contracts entered into by correspondence between parties residing at a distance. On the contrary, we are of opinion that an offer under the circumstances stated, prescribing the terms of insurance, is in- tended, and is to be deemed, a valid undertaking on the part of the company, that they will be bound, according to the terms tendered, if an answer is transmitted in due course of mail, accept- ing them ; and that it cannot be withdrawn, unless the withdrawal reaches the party to wh6m it is addressed before his letter of reply announcing his acceptance has been transmitted. This view of the effect of the correspondence seems to us to be but carrying out the intent of the parties manifested by their act and declaration. On the acceptance of the terms proposed, transmitted by due course of mail to the company, the minds of both parties have met on the subject, in the mode contemplated at the time of enter- ing upon the negotiation, and the contract becomes complete. The party to whom the proposal is addressed has a right to re- gard it as intended as a continuing offer until it shall have reached him^ and shall be in due time accepted or rejected. Such is the plain import of the offer, and, besides, upon any other view, the proposal amounts to nothing, as the acceptance would be but the adoption of the terms tendered, to be, in turn, proposed by the applicant to the company for their approval or rejection. For, if the contract is still open until the company is advised of an acceptance, it follows, of course, that the acceptance may be repudiated at any time before the notice is received. Nothing is effectually accomplished by an act of acceptance. It is apparent, therefore, that such an interpretation of the acts of the parties would defeat the object which both had in view in entering upon the correspondence. The fallacy of the argument, in our judgment, consists in the assumption that the contract cannot be consummated without a knowledge on the part of the company that the offer has been accepted. This is the point of the objection. But a little reflec- tion will show that, in all cases of contracts entered into between parties at a distance by correspondence, it is impossible that both 780 TAYLOR V. merchants' FIRE INS. CO. [CHAP. VI. shoulci have a knowledge of it the moment it becomes complete. This can only exist where both parties are present. The position may be illustrated by the case before us. If the contract became complete, as we think it did, on the acceptance of the offer by the applicant, on the 21st of December, 1844, the company, of course, could have no knowledge of it until the letter of acceptance reached the agent, on the 31st of the month; and, on the other hand, upon the hypothesis it was not complete until notice of the acceptance, and then became so, the applicant could have no knowledge of it at the time it took effect. In either aspect, and, indeed, in any aspect in which the case can be pre- sented, one of the parties must be unadvised of the time when the contract takes effect, as its consummation must depend upon the act of one of them in the absence of the other. The negotiation being carried on through the mail, the offer and acceptance can- not occur at the same moment of time ; nor, for the same reason, can the meeting of the minds of the parties on the subject be known by each at the moment of concurrence; the acceptance must succeed the offer after the lapse of some interval of time; and, if the process is to be carried further in order to complete the bargain, and notice of the acceptance must be received, the only effect is to reverse the position of the parties, changing the knowledge of the completion from the one party to the other. It is obviously impossible, therefore, under the circumstances stated,' ever to perfect a contract by correspondence,' if a knowl- edge of both parties at the moment they become bound is an essential element in making out the obligation. And as it must take effect, if effect is given at all to an endeavor t6 eqter into a contract by correspondence, in the absence of the knowledge of one of the parties at the time of its consummation, it seems to us more consistent with the acts and declarations of the parties, to consider it complete on the transmission of the acceptance of the offer in the way they themselves contemplated; instead of post- poning its completion till notice of such acceptance has been re- ceived and assented to by the company. For why make the offer, unless intended that an assent to its terms should bind them? And why require any further assent on their part after an unconditional acceptance by the party to whom it is addressed? We have said that this view is in accordance with the usages and practice of these companies, as well as with the general prin- ciples of law governing contracts entered into by absent parties. CHAP. VI.] TAYLOR V. MERCHANTS' FIRE INS. CO. 781 In the instruction of this company to their agent at Fredericks- burg, he is advised to transmit all applications for insurance to the office for consideration; and that, upon the receipt of an answer, if the applicant accepts the terms, the contract is con- sidered complete without waiting to communicate the acceptance to the company ; and the policy, to be thereafter issued is to bear date from the time of the acceptance. The company desire no further communication on the subject, after they have settled upon the terms of the risk, and sent them for the inspection of the applicant, in order to the consummation of the bargain. The communication of the acceptance by the agent afterwards is to enable them to make out the policy. The contract is regarded as complete on the acceptance of the terms. This appears, also, to have been the understanding of the agent ; for, on communication to the insured the terms received from the company, he observes : "Should you desire to effect the above insurance, send me your check payable to my order for fifty- seven dollars, and the business is concluded"; obviously enough importing, that no other step would be necessary to give effect to the insurance of the property upon the terms stated. The case of Adams v. Lindsell, 1 Barn. & Aid. 681, and Mactie 's Adm'rs v. Frith, 6 Wend. 103, are authorities to show that the above view is in conformity with the general principles of law governing the formation of all contracts entered into between parties residing at a distance by means of correspond- ence. The unqualified acceptance by the one of the terms proposed by the other, transmitted by due course of mail, is regarded as closing the bargain, from the time of the transmission of the acceptance. This is, also, the effect Of the case of Eliason v. Henshaw, 4 Wheat. 228, in this court, though the point was not necessarily involved in the decision of the case. The acceptance there had not been according to the terms of the bargain proposed, for which reason the plaintiff failed. 2. The next position against the claim is the non-payment of the premium. One of the conditions annexed to the policies of the company- is, that no insurance will be considered as made or binding until the premium be actually paid ; and one of the instructions to the agent was, that no credit should be given for premiums under any circumstances. 782 TAYLOR Z'. merchants' FIRE INS. CO. [ CHAP. VI. But the answer to this objection is, that the premium, in judgment of law, was actually paid at the time the contract became complete. The mode of payment had not been prescribed by the company, whether in specie, bills of a particular bank, or otherwise; the agent, therefore, was at liberty to exercise a dis- cretion in the matter, and prescribe the mode of payment; and, accordingly, we find him directing, in this case, that it may be paid by a check payable to his order for the amount. It is ad- mitted that the insured had funds in the bank upon which it was drawn, at all times from the date of the check till it was received by the agent, sufificient to meet it; and that it would have been paid on presentment. It is not doubted that, if the check for the premium had been received by the agent from the hands of the insured, it would have been sufficient; and in the view we have taken of the case, the transmission of it by mail, according to the direction given, amounts, in judgment of law, to the same thing. Doubtless, if the check had been lost or destroyed in the transmission, the in- sured would have been bound to make it good ; but the agent, in this respect, trusted to his responsibility, having full confidence in his ability and good faith in the transaction. II. Another /objection taken to the recovery is, that the usual preliminary proofs were not furnished according to the require- ment of the 7th article of the conditions annexed to the policies of the company. These are required to be furnished within a reasonable time after the happening of the loss. The fire occurred on the 22d of December, 1844, and the preliminary proofs were not furnished till the 24th of November, 1845. This was doubt- less too late, and the objection would have been fatal to the right of the complainant, if the production of these proofs were essen- tial to the recovery. But the answer is, that the ground upon which the company originally placed their resistance to the payment of the loss, and which is still mainly relied on as fatal to the proceedings, operated as a waiver of the necessity for the production of the preliminary proofs; and that is, that no obligation to insure the loss was ever entered into by the company, the contract being incomplete at the time that it occurred. On this aground they refused to issue the policy, which would have imposed upon the insured a strict compliance with its conditions ; or to recognize any obli- gations arising out of the arrangement between him and their agent. CHAP. VI.] TAYLOR V. MERCHANTS' FIRE INS. CO. 783i The objection went to the foundation of the claim, which, in connection with the refusal to issue the policy, superseded the necessity of producing these proofs; as the production would have been but an idle ceremony on the part of the insured, in the further prosecution of his right. Why produce them after the company denied the contract, and refused the policy? The case of the Columbian Insurance Company v. Lawrence, 2 Pet. 25, has been referred to on this point. An objection was there taken, on the trial, to the sufficiency of the preliminary proofs, on the ground that the certificate of the magistrate was not in conformity with the 9th article of the conditions. The particular objection had not been taken by the company when the proofs were furnished, although several others had been, to their liability; and the court left to the jury the question, among others, whether the company had not thereby waived the objec- tion to the sufficiency of the certificate. The plaintifif recovered ; and on the motion for a flew trial, among other grounds assigned for granting it, was this instruction of the court. It was held that there was no evidence in the case from which the jury could properly infer a waiver. The preliminary proofs had been presented to the company on the 16th of February, 1824, soon after the loss. The suit was discontinued, and a new certificate procured from the magistrate correcting the defects in the first, and furnished to the com- pany, on the 14th of February, 1829, five years after the first had been delivered. A new suit was brought, and the case as reported the second time will be found in 10 Pet. -507. On the second trial, the objection was taken that the certificate had not been produced within a reasonable time after the loss; but the court held otherwise, placing their decision upon the ground, that the laches were not property imputable to the in- sured, but to the company, on account of their neglect to give notice of the defect when the first certificate was presented, and of the mistaken confidence which the party had placed in them. The court say: "If the company had contemplated the objec- tion, it would have been but ordinary fair dealing to have ap- praised the plaintiff of it ; for it was then obvious that the defect might have been immediately supplied; as it was, the company, unintentionally it may be, by their silence misled him. It is manifest, on an examination of the two cases, that the doctrine of the first on this point of waiver was virtually overruled, for, if maintained in the second, it would have upheld the ruling at 784 TAYLOR V. merchants' FIRE INS. CO. [CHAP. VI. the Circuit Court in the first. The reasons given in support of the corrected certificate, procured and furnished some five years after the loss, are cogent and unanswerable in favor of the posi- tion, that the conduct of the company in not objecting to the defect in the first one, at the time it was furnished, operated to mislead the party, and should have been regarded as a waiver of the objjection. The cases are very full upon this point, and clearly establish the position that the preliminary proofs, under the circumstances stated in this case, were dispensed with by the company, as inferable from the ground upon which they placed their denial of liability. 9 Wend. 165; 25 ibid. 378, 382; 6 Harr. & Johns. 412; 6 Cow. 404. III. It has also been objected, that the plaintiff had an ade- quate remedy at law, and was not, therefore, under the neces- sity of resorting to a court of equity ; which may well be admitted. But it by no means follows from this, that a court of chan- cery will not entertain jurisdiction. Had the suit been instituted before the loss occurred, the appropriate, if not the only, remedy would have been in that court, to enforce a specific perform- ance, and compel the company to issue the policy.. And this remedy is as appropriate after as before the loss, if not as essen- tial, in order to facilitate the proceeditigs at law. No doubt a count could have been framed upon the agreement to insure, so as to have maintained the action at law. But the proceedings would have been more complicated and embarrassing than upon the policy. The party, therefore, had a right to resort to a court of equity to compel the delivery of the policy, either be- fore or after the happening of the loss; and being properly in that court after the loss happened, it is according to the estab- lished course of proceedings, in order to avoid delay and expense to the parties, to proceed and give such final relief as the circum- stances of the case demand. Such relief was given in the case of Matteax v. The London Assurance Company, 1 Atk. 545, and in Perkins v. The Wash- ington Insurance Company, 4 Cow. 645. See, also, 1 Duer. 66 and 110, and 2 Phillips 583. As the only real question in the case Is the one which a court of equity must necessarily have to decide, in the exercise of its peculiar jurisdiction in enforcing a specific execution of the agreement, it would be an idle technicality for that court to turn the party over to his remedy at law upon the policy. And, CHAP, yi.] TAYLOR V. MERCHANTS' FIRE INS. CO. 785 no doubt, it was a strong sense of this injustice that led the court at an early day to establish the rule, that, having properly acquired jurisdiction over the subject for a necessary purpose, it was the duty of the court to proceed and do final and complete justice between the parties,' where it could as well be done in that court as in proceedings at law. IV. It is further objected, that, admitting the claim to be properly enforceable in equity, still, the complainant is not en- titled to the relief sought, on the ground that the bill contains no sufficient statement of the contract, or of the performance of the conditions, and also for want of a proper prayer. We are of opinion that these several objections are not well founded. The contract as set forth we have already considered, and held complete and binding on the company; and further that the denial of having entered into the agreement, and refusal to issue the policy, also set forth, are sufficient ground upon which to infer a waiver of the production of the preliminary proofs, as a condition of liability; and if sufficient ground to infer a waiver, it was of course unnecessary to set forth these proofs in the bill. And as -to the prayer, it is sufficient to say, that the prayer for general relief which is here found, will enable the court to make such a decree as the complainant may show himself entitled to, upon the facts set forth in the stating part of the bill. The pleading is not very formal, not very cautiously drawn, and, in the absence of the prayer for general relief, might have led to embarrassment in making the proper decree in the case. There is a specific prayer for a decree for the loss, but it would have been more formal and appropriate, regarding the ground of jurisdiction in these cases, to have added also a prayer for a specific performance of the agreement to insure. But the particular relief permitted under a general prayer, where the statement in the body of a bill is sufficient to entitle the party to it, meets the difficulty suggested, and well warrants the decree purposed to be entered. Story Eq. PI. §§ 41, 42, and cases. Upon the whole, without pursuing the examination further, we are of opinion that the decree of the court below should be reversed, and that the cause be remitted, with directions to the court to take such further proceedings therein as may be neces- sary to carry into effect the opinion of this court. so 786 iJARNAKD V. LEE. [CHAP. VI. B. Time of the Essence of the Contract. BARNARD v. LEE. (97 Mass. 92.) [Supreme Judicial Court of Massachusetts, 1867.] Bill in Equity alleging that the respondent, being seized in fee of a certain tract of land in Deerfield, entered into an agree- ment with the complainant for the sale thereof, and executed and delivered to him a bond, dated August 2, 1865, which was fully recited to him in the bill. The condition of this bond was that if the complainant should, "on or before the first day of April, A. D. 1866, pay or cause to be paid the full sum of six hundred dollars and the interest accruing upon the same," and "upon request," the respondent should "make and deliver to said Bar- nard a good and valid deed in fee" of the land, then the obUga- tion should be void. The bill further alleged that the complainant, after the execution of this bond, was in possession of the land with the knowledge and consent of the respondent, and cultivated and improved it ; that the respondent made no tender of a deed on April 1, 1866; that on May 25, 1866, the complainant ten- dered him six hundred dollars, with interest thereon, "according to the tenor of the bond," and demanded of him a conveyance of the land, which he thereupon refused to give ; and that since the latter day the complainant has always been and is ready and willing to pay the price, but that the respondent still refuses to convey the land. The prayer of the bill was for a decree to compel such a conveyance. The respondent filed a general de- murrer, and the case was reserved by Chapman, J., for determi- nation by the full court. Gray, J. The doctrine that time is not the essence of a con- tract is generally appUed in equity to stipulations for the pay- ment of money upon an agreement for the sale and purchase of real estate, the principal grounds of the doctrine are that of the common law, requiring performance of every contract at the appointed day, is often harsh and unjust in its operation; that CHAP. VI.] BARNARD Ji. LEE. 787 although some time of performance by each party is usually named in an agreement for the sale of land, it is often not re- garded by the parties as one of the essential terms of their con- tract; and that a court of chancery has the power of moulding the remedy according to the circumstances of each case, and of making due compensation for delay, without punishing it by a forfeiture of all right to relief. This equitable doctrine was for- merly carried to an unreasonable extent, and the specific per- formance of contracts enforced after such a lapse of time and change of circumstances as to produce as much injustice as it avoided. In modern times, the doctrine has been more guardedly applied, and it is now held that time, although not ordinarily of the essence of a contracf in equity, yet may be made so by clear manifestation of the intent of the parties in the contract itself, by subsequent notice from one party to the other, by laches in the party seeking to enforce it, or by change in the value of the land or other circumstances which would make a decree for the specific performance inequitable. The best statement, in the English book, of the rule and its reasons and limitations are perhaps to be found in the opinion of the judges whose practical experience in the common law en- abled them more intelligently to restrain the application of the rule within proper limits ; as, for instance, by Lord Eldon in the leading case of Seaton v. Slade, 7 Ves. 273, 274, by Lord Ers- kinne in Hearne v. Tenant, 13 Ves. 288, and by Baron Alderson in Hipwell v. Knight, 1 Y. & Col. Exch. 411, 415, 416. In this age and country, as suggested by Mr. Justice Livingston in his dissenting opinion in Hepburn v. Auld, 5 Cranch. 279, by Mr. Justice Chapnjan, in Richmond v. Gray, 3 Allen, 30, 31, and Gold- smith v. Guild, 10 Allen, 241, 242, and by many judges in other states, the more frequent fluctuations in the value of land, and in the business and circumstances of men, than in England when the doctrine was established, are important to be considered in each case, and especially when the vendor sues to compel the specific performance of a contract for the purchase of land to which he is unable to make a good title at the time of bringing his suit. But the general doctrine has been adopted by American courts of chancery, and has been repeatedly recognized and affirmed by the Supreme Court of the United States and by this court. Hethurn v. Dunlop, 1 Wheat. 196; Brashier v. Gratz, 6 Wheat. 533; Taylor v. Longworth, 14 Pet. 174, 175; Fuller v. Hovey, 2 Allen, 325 ; Goldsmith v. Guild, 10 Allen, 241. 788 BARNARD V. LEE [CHAP. VI. Although the parties may make time of the essence of their contract by express stipulations to that effect, it is not sufficient that they should name the time of performance in the contract, and thus manifest their intention distinctly enough for the pur- pose of a court at law. But it must appear that they really in- tend to make such time an essential element of their agreement; in the words of Lofd Erskine in 13 Ves. 289 "a material object to which they looked in the first conception of it ;" or, as Baron Al- derson, in 1 Y. & Col. Exch. 415, stated the result of the previous authorities, "A court of equity is to be governed by this prin- ciple : it is to examine the contract, not merely as a court of law does, to ascertain what the parties have in terms expressed to be the contract, but what is in truth the real intention of the par- ties, and to carry that into effect." The mere .circumstance there- fore that the instrument i« in ordinary form of a bond conclud- ing with the clause that, it shall be void in case of a breach of the condition, otherwise remain in full force, does not necessarily make time of the essence of the contract. Molloy v. Egan, 7 Irish Eq. 592; Jones v. Robbins, 29 Maine, 351. It is doubtless for the party who, having failed to perform his part of the contract according to its terms, yet asks to have the agreement of the other party specifically performed, to satisfy the court that he is entitled to the relief which he seeks. Hipzvell v. Knight, 1 Y. & Col. Exch. 415 ; Taylor v. Longworth, 14 Pet. 175 ; Todd v. Taft, 3 Allen 377. But the fact that the obligee, with the knowledge and consent of the obligor, had entered upon and occupied the premises and made improvements thereon, is ordi- narily decisive to entitle him to the favorable interposition of a court of equity, when it does not appear that there has been any other change in the value of the land, when time was not orig- inally of the essence of the contract and has not been made so by notice, and he had been guilty of no laches in applying for a re- lease. Gibson v. Patterson, 4 Ves. 690, note ; West Ch. 235 and note ; Waters v. Trams, 9 Johns 466, 467 ; ^dgerton v. Peckham, 11 Paige 352. The decisions of this court afford no precedent for sustaining the demurrer. In Richmond v. Gray, 3 Allen, 25, the suit was by the obligor; it was one of the terms of the contract that the title should be examined; the defendant, who had entered by agreement before such examination and removed a cellar wall, cut trees, and done other similar acts upon the premises, abandoned the possession, upon discovering that the title was defective, and. CHAP. VI.] BARNARD Z;. LEE. 789 after vain attempts to make arrangements with the plaintiff to perfect the title, gave him notice that he should not accept a con- veyance; and the plaintiff was unable to make a title untilsix months after such notice, and even then subject to a liability for debts which continued when the suit was brought. In Fuller v. Hovey, 2 Allen 324, the plaintiff, after requesting and being re- fused ah extension of the time of payment of a sum already due by the terms of his agreement, neglected for more than three years to make any payment or bring his suit. In Goldsmith v. Guild, 10 Allen 239, the land was in Boston, > and there was evi- dence that it was subject to frequent fluctuations and had actually altered in value. The land described in this bill is in the country, and there is nothing in the case as now presented to show that its value was subject to fluctuations or had in fact changed between the dates of the agreement and of the tender of payment ; and it is alleged in the bill and admitted by the demurrer, that the price agreed, with interest, was tendered by the plaintiff within two months after the time stipulated, and before any demand or notice by the defendant; and that the plaintiff, from the date of the agree- ment, with the knowledge and consent of the defendant, was in possession of the premises and cultivated and improved the same. Upon proof of such a state of facts, unqualified by other evidence, time could not be held to be of the essence of the agreement. The question whether time is to be deemed of the essence of the contract depends upon all the circumstances of the case, and is not ordinarily to be decided until the hearing. Levy v. Lindo, 3 Meriv. 81 ; Foxlowe v. Amcoats, 3 Beav. 496 ; Verplank v. Caines, 1 Johns, Ch. 59. If, indeed, it were clear upon the face of the bill that proof of all its allegations exactly as stated would not support it, the de- fendant might make the objections by demurrer, without being put to the trouble and expense of further proceedings. Foster v Hodgsdon, 19 Ves. 184 ; Hovenden v. Annesley, 2 Sch. & Lef. 638. But as upon the case set forth in this bill the plaintiff shows him- self to be entitled to the specific performance for which he prays, the order must be Demurrer overruled. 790 STURTEVANT V. JAQUES. [CHAP. VI. C. Cloud on Title. STURTEVANT v. JAQUES. (14 All. 523.) . [Supreme Judicial Court of Massachusetts, 1867.] Bill in Equity brought by Dwight Sturtevant and Eugene Sturtevant, children and heirs at law of Newall Sturtevant, de- ceased, and Hannah Sturtevant, widow of the said Newall, to compel specific performance by the defendant of an agreement in writing made between them and the defendant, dated June 15th, 1866, by which the plaintiffs agreed, within five months from date, and upon the simultaneous payment by the defendant of $26,666.67, to execute and deliver to him good and sufficient deeds of conveyance in fee simple of two undivided thirds of a dwelling house and land on Boylston street in Boston, free from all incumbrances, except certain provisions and restrictions (now immaterial) set forth in a deed from the city of Boston to a former owner of the premises ; and the defendant agreed upon tender of said deeds to accept the same and pay the said sum therefor. The bill alleged that said Dwight Sturtevant and Eugene Stur- tevant were owners of two undivided third parts of said estate in fee simple and without incumbrances, except the right of doweti of Hannah Sturtevant, wliich two undivided third parts has descended to them at law of their father, Newell Sturtevant, who acquired his title under a deed to him from Charles J. Fox, dated September 19, 1850, and under an assignment to him of a certain mortgage and the note- secured thereby, made by said Fox to Samuel K. Williams,- which assignment was as follows : "Know to all men by these presents that I, Samuel K. Williams, the mortgagee within named, in consideration of fourteen thou- sand six hundred and three and 92/100 dollars (being the amount of principal and interest due on the within mortgage), to me paid ty Newell Sturtevant, of said Boston, trustee, the receipt whereof is hereby acknowledged, do hereby assign, transfer and convey CHAP. VI.] STURTEVANT V. JAQUES. 791 unto the said Sturtevant, trustee, all my right, title, interest and estate in and to the land and premises within described, together with this mortgage deed, the promissory note within described, and the debt secured thereby ; to have and to hold the same to the said Newell .Sturtevant, trustee, and his heirs and assigns, to his and their own use forever, subject to the right of the mortgagee within named to redeem the same according to law, but without recourse to me in any event whatsoever. Witness my hand and seal the twentieth day of December, A. D. eighteen hundred and fifty-two. Samuel K. Williams." The note secured by said mortgage bore the following indorse- ment : "Pay to the within Newell Sturtevant, trustee, without re- course. Samuel K. Williams." The bill further alleged the making of the agreement by the defendants, as above described ; a tender to the defendant, within the stipulated time, of a deed executed by Dwight Sturtevant and Eugene Sturtevant, and a release of dower by Hannah Sturte- vant, conforming to the agreement ; a refusal by the defendant to accept the same, or to pay the stipulated price, he pretending that by force of the assignment of said mortgage a trust in said estate was created and declared, which trust still subsisted, and formed an incumbrance upon the estate; that no such trust was consti- tuted by said agreement, and that if a trust in said estate ever existed the same has been discharged; and that Newell Sturte- vant died on the 22d of December, 1856, and an administrator of his estate was appointed, but no debt or claim on account of said trust has ever been presented against said estate. The defendant in his answer averred that the share of Dwight Sturtevant and Eugene Sturtevant was object to a trust, the terms, objects, purposes and extent of which were wholly un- known to the defendant, but the existence was disclosed by the assignment of the mortgage, which was on record. The case was reserved, by Hoar, J., upon the bill and answer, for the determination of the whole court. Chapman, J. In order to maintain this bill, the plaintiff must prove that the title they offer to convey is good beyond a reason- able doubt, and will not expose the defendant to litigation. Fry on Specif. Perf. 253, et seq; Richmond v. Gray, 3 Allen 25. They claim title as the heirs of Newell Sturtevant, deceased. He de- rived his title from Charles J. Fox, by deed dated September 19, 1850. The only defect that appears to have existed in this title was a mortgage previously made by him to Samuel K. Wil- 792 STURTEVANT V. JAQUES. [CHAP. VI. liams, to secure a promissory note. Therefore Newell Sturte- vant took the equity of redemption, and nothing more. On the 20th of December, 1852, Williams assigned the mort- gage and indorsed the note to Sturtevant. If it had been a simple assignment, the title thus acquired would have been, perfect. But the assignment was to him as "trustee," and the note was also indorsed to him as "trustee." This is a notice that he took the note and mortgage in trust, and raises a presumption that a trust existed. What the trust was does not appear, nor does it appear that any written declaration of trust is on record or in existence. But it is obvious that the property purporting to be thus held in trust was the sum of money due on the note, and the mortgage was merely a security for the money. The debt is always the principle, and the mortgage is merely the accessory. If the debt is assigned without the mortgage, the mortgage is held in trust for the assignee. Parsons v. Welles, 17 Mass. 425. A valid trust of chattels may be created, established and proved by mere parol dec- laration, as well since the statute of frauds as before. Hill on Trustees, 57, and cases cited. Here, then, is a notice of a trust which need not appear of record, and of such a character that it would not be extinguished by the. union of the legal and equitable title to the land of Newell Sturtevant. As the mortgage has not been foreclosed, it remains apparently a trust of a chattel, secured by the mortgage. On the decease of Sturtevant, the legal title to the note and mortgage passed to his administrator and not to his heirs, because he held it in trust. The heirs hold the equity of redemption subject to the mortgage, and the title which they offer to convey is apparently subject to the mortgage. Undoubtedly . the administrator may collect the note and discharge the mortgage by which it is secured, and he will then hold the money subject to such trust as may be estab- lished, and the title of the plaintiffs to the land will be perfect.. But though he has permitted the plaintiffs, who are the heirs, to bring the note and mortgage into court, yet he is not a party to the suit, nor has he accepted payment or given a release ; and if there is a trust they are not authorized to receive the money or discharge the incumbrance. As the parties have submitted the case upon bill and answer, in which no more facts- than those above referred to are established, it does not appear that the title which the plaintiffs offer to make is unincumbered. They allege in their bill that no trust in fact existed ; and that CHAP. VI.] FIRST AFRIC. METH. EPISC. SOC. Z/. BROWN. 793 if it ever did exist it has been discharged ; but they fail to estab- hsh the fact. If either fact were true, it would have been easy to procure the removal of the cloud from the title by taking up the note and procuring a discharge or release from the adminis- trator. But as this has not been done the cloud "remains. Bill dismissed with costs. FIRST AFRICAN METHODIST EPISCOPAL SOCIETY v. BROWN. (147 Mass. 296.) [Supreme Judicia-l Court of Massachusetts, 1888.] Devens, J. There is no provision by statute for filing in the registry of deeds a document of a character similar to that which Scott was permitted there to place upon record. It ac- quired no greater importance from being thus filed, nor did it for this reason constitute a cloud upon the title of the plaintiff. Pub. Sts., c. 126, § 13; Nickerson v. Loud, 115 Mass. 84. The ques- tion presented by the case at bar is, therefore, whether a mere assertion by the plaintiff's grantor, some seven years since, un- supported by any evidence or any subsequent action on his part, that the deed from him to the plaintiff was obtained by fraud, and that he shall dispute its validity, renders the plaintiff's title so doubtful that the defendant will not be compelled to accept it and comply with his contract to pay for the land. In Nickerson V. Loud, ubi supra, a paper signed and recorded in the registry of deeds by A, who was not the plaintiff's grantor, stating that cer- tain real estate, the record title to which was in B, was held by B subject to a trust in favor of A and others, and that A would dispute any title that B might attempt to make, was held not to constitute a cloud on the title. Whether recorded or unrecorded, such statement could not, under such circumstances, be evidence against B or in favor of A, and it was held that B was not en- titled to an order directing the paper to be withdrawn by A from the registry, or surrendered to him. The general rule is well settled, that, in order to maintain a bill for specific performance of a purchase of land, the plaifitiff must show that the title tendered by him is good beyond reason- able doubt. But a doubt must be reasonable and such as would cause a prudent man to pause and hesitate before investing his 794 FIRST AFRIC. METH. EPISC. SOC. V. BROWN. [CHAP. VI money. It would be seldom that a case could occur where some state of facts might not be imagined which, if it existed, would defeat a title. When questions as to the validity of a title are settled beyond a reasonable doubt, although there may be still the possibility of a defect, such mere possibility will not exempt one from his liability to complete the purchase he has made. Hayes V. Harmony Grove Cemetery, 108 Mass. 400. Thus, it might be conceived in a case similar to that at bar that the plain- tiff's grantor, from infancy, insanity, or similar cause, was with- out legal capacity to have conveyed to it, but the plaintiff would not therefore be required to prove affirmatively the existence of such capacity before he could insist on the performance by the defendant of his contract. It would be often practically impos- sible for a party to negative all objections which might be imag- ined and which, if they existed, would defeat his title. Whether a party shall be compelled to perform a contract for the purchase of land is often, therefore, a matter of discretion of the court ; not certainly or arbitrary or capricious discretion, but, as said Mr. Justice Story, "Of that sound and reasonable discretion which governs itself as far as it may by general rules and principles, but which at the same time withholds or grants relief, according to the circumstances of each particular case, when these rules and principles will not furnish any exact measure between the par- ties." Story Eq. Jur. § 742, and authorities cited. Where an appointment was made by a husband and wife to their eldest in default of such appointment to all their children, the husband daughter under a settlement giving them successive life estates with a remainder to their children as they should appoint, and, and wife appointed the whole estate to their eldest daughter, and a short time after such an appointment, with the eldest daughter, made a mortgage, under the foreclosure of which the plaintiff claimed title. One of the younger children had given notice to the plaintiff not to complete his title, or to pay the purchase money, as the appointment and mortgage had been made in fraud of the settlement. It was held that a mere allegation of this sort, which was only a statement of a possibility, which every one could see on looking at the transaction might have existed without a single fact being brought forward to impeach the deeds, and which had not been followed by any proceedings to set them aside, did not afford any reason why the contract or purchase should not be performed. Green v. Pulsford, 2 Beav. 70. This case is .restated with approval, and followed by Lord Chancellor Truro, CHAP. VI.] FIRST AFRIC. METH. EPISC. SOC. V. BROWN. 795 in Grove v. Bastard, 1 DeG. M. & G. 69, where the inquiry sug- gested by it arose incidentally on a question of costs. The precise question here discussed has never been decided in this court, but an examination of our cases on the general sub- ject will show that, in all which a defendant in a bill for specific performance has been held not bound to accept a title, facts hav- ing appeared showing that the property was or might be subjected to adverse claims such as might reasonably be expected to expose the purchasor to controversy in order to maintain his title. Jeff- ries V. Jeffries, 117 Mass. 184. A doubt, says Lord Eldon, "must be a considerable, a rational doubt," and such as would induce a prudent man to pause and hesitate. Stapylton v. Scott, 16 Ves. 272. Although the remark is made with reference to a doubt as to the construction of a deed, it has equal application where it arises from a possible or conceivable state of facts. We have found no case where a stranger to a contract, even if the grantor from whom the party seeking to enforce it derives a title, has been able by mere assertion practically to destroy the market- ability of the title which he had granted, and thus to throw such a stain upon it that for purpose of sale it is valueless. Kosten- bader v. Stotts, 80 Penn. St. 430 ; Vreeland v. Blauvelt, 8 C. E. Green, 483. But even in any case we should be willing to hold that mere threats would make a title doubtful, the case at bar has this peculiar feature, that for more than six years the in- jured party, as he alleges himself to be, has slept upon his rights, and made no attempt to assert them. Where one takes a fraudu- lent title with notice thereof, or of facts and circumstances which fairly puts him on his inquiry as to whether a fraud has not been committed, he is not indeed held to be an innocent purchaser, even if he has paid full value. But where no facts or circum- stances either of suspicion or doubt have been brought to his attention, he cannot be deemed to have lost that character, even if he has heard of an assertion, made more than six years ago, like that of the plaintiff's grantor, unsupported by any evidence, and unsiistained during that time by any proceedings to avoid or annul the conveyance. Carroll v. Hayward, 124 Mass. 120 ; Hop- kins V. Langton, 30 Wis. 379. Decree for plaintiff. 796 FORRER V. NASH. [CHAP. VI, FORRER V. NASH. (35 Beav. 167.) [In Chancery, Rolls Court, 1865.] By an agreement, dated the 2d of September, 1864, the plaintiff agreed to let to the defendant the ground floor, etc., of No. 2 Hanover street "from Michaelmas-day, 1864, with the right to a lease of the above-named premises, for seven, fourteen or 'twenty-one years;" also with the right to re-let the premises, if he desired it, for any business that would not interfere with Mr. Forrer's business. It turned out afterwards that Mr. Forrer, the plaintiff; was himself a mere lessee of the property for a term, of which twenty and a quarter years only remained unexpired. It also appeared that his lease contained covenants restricting the carrying on, upon the premises, any trade or business except that of jeweler and from underletting the premises without the consent of his landlord. The Master of the Rolls. In this case I am of opinion that the contract was perfectly good, and that it is well proved ; but, under the circumstances, I am of opinion that the plaintiff is not entitled to a decree for spe- cific performance. The contract was for a lease for twenty-one years, with the right to relet the premises ; but the plaintiff had only the power to grant a lease for about twenty years, and the assent of Mr. Leslie, the freeholder, was required to enable the plaintiff to grant a lease for twenty-one years. In addition to this, the covenant in the plaintiff's lease made it impossible for him to grant to the defendant a "right to re-let the premises for any business which would not interfere with" the plaintiff's business ; the assent of the freeholder was also necessary for that purpose. As soon as the defendant found that the plaintiff had no power to grant the lease for which he contracted, his solicitor wrote, requiring the assent of the landlord, and pointing out that the plaintiff had not the power to perform his agreement. [The Master of the Rolls commented on the subsequent correspond- ence, and continued :] It is important to observe that, during this CHAP. VI.] FORRER V. NASH. 797 time, the plaintiff had no power to grant the lease, and therefore the case was like that of a person undertaking to sell a property which does not belong to him. Tt appears, from the correspond- ence, that the defendant set the plaintiff at defiance in the month of September, 1864. It is also to be observed that the shop was wanted by the defendant for the purpose of carrying on his trade, he being desirous of keeping up his connection; and if he had taken possession of the premises he might have been turned out by the lessor at any time if he thought fit to dissent from the lease granted, and, besides, the defendant could not have had the lease for the full term with the power to re-let, which he had contracted for. The plaintiff, at the hearing, says, "I have now the power to grant you the lease," and for that purpose he produces an affi- davit from Mr. Leslie, filed the 21st of April, 1865, in which he says he is ready to do all acts necessary to enable the plaintiff. to fulfil his contract. If he had made this statement in Septem- ber, 1864, and the plaintiff had communicated it to the defendant, there would have been an end to the question. But how long was the defendant to go on and wait to know whether the plaintiff could make out a good title ? The plaintiff, it appears, had several interviews with Mr. Leslie, the freeholder, and it is not contra- dicted that in January- of the present year the plaintiff could not make a title, for, at that time, Mr. Leslie refused to join in the lease, and it was not until April of the present year that he con- sents to do so. How long was this to go on ? The plaintiff files his bill in October, 1864, and it is proved that in January, 1865, he was not able to grant the lease he had agreed to grant, and he does not show that he was ever able to complete his contract until April, 1865. Is a person entitled to keep another in suspense during that time? If so, it may go on any length of time. Besides this, it is to be observed that there was no mutuality, for the defendant could not have had a decree against the plain- tiff to perform the contract, because the court does not attempt to compel a person to do what is impossible. The plaintiff had no power to grant a leased and neither the court nor the defendant could have compelled him to do so. I am of opinion that when a person sells property which he is neither able to convey himself nor has the power to compel a conveyance of it from any other person, the purchaser, as 798 FREEMAN V. FREEMAN. [CHAP. VI. soon as he finds that to be the case, may say, "I will have noth- ing to do with it." The purchaser is not bound to wait to see whether the vendor can induce some third person (who has the power) to join in making a good title to the property sold. The bill will be dismissed with costs. D. Part Performance. FREEMAN v. FREEMAN. (43 N. Y. 34.) [Court of Appeals of New York, 1870.] Grover, J. As the order of the General Term does not show that it was based upon errors of fact, it must, be assumed by this court to have been based upon errors of law only. The facts must be assumed to have been correctly found by the referee. The only legal questions arise upon the exception taken by the ■respondent to the legal conclusion drawn by the referee from the facts found by him. 'That. conclusion was, that although the plaintiff gave said premises to the defendant, yet said gift, being by parol, was not valid and passed no title either legal or equitable to the premises set out in the complaint, and therefore he ordered judgment for the plaintiff for the recovery of the possession thereof. If this legal conclusion from the facts found be cor- rect, the General Term erred in reversing the judgment, and the order appealed from must be reversed. While the evidence con- tained in the case and exceptions cannot be looked into for the purpose of finding additional facts, as a ground for the reversal of the judgment, yet it may be for the purpose of ' determining the meaning of the findings of the referee. When these are read, aided by this light, the referee finds that when the plaintiff pur- chased the lands in controversy, being about forty acres of land, wild, with the exception of about six acres which had been wholly or partially cleared, he gave it to the defendants. That is, that he promised to give it to them for their lives and the life of the survivor, in case they would move to and reside thereon, and that in pursuance of such promise, the defendants moved to the prem- ises and occupied the same from February, 1860, to the time of CHAP. VI.] FREEMAN V. FREEMAN. 799, the trial of the action. That the defendants cleared twelve or fifteen acres of land and fenced the same, and built an addition to the house tipon the premises, being somewhat assisted therein by the plaintiff. That the defendants have paid a portion of the taxes assessed upon the land. I have assumed that the referee by the words "gave the land to the defendants" meant to be understood that he promised to give it to them. That such was his meaning appears from the evidence, as there was no evidence of any attempt at the former, while the proof of the latter was ample. The question then is, whether a parol promise by one owning lands to give the same to another will be enforced in equity, when the promisee has been induced by the promise to go into possession, and, with the knowledge of the promissor, make comparatively large expenditures in permanent improvements upon the land. It is, and must be conceded, that if the promise by parol was to sell the land for a valuable consideration to be paid therefor by the prornisee, such promise under this precise state of facts would be enforced. The ground upoti which this equi- table jurisdiction is exercised, although sometimes said to be part performance, really is to prevent a fraud being practiced upon the parol purchaser by the seller, by inducing him to expend his money upon improvements upon the faith of the contract, and then deprive him of the benefit of the expenditure, and secure it to the seller by permitting the latter to avoid the performance of his contract. In the case supposed, there has been no part per- formance of the contract, strictly speaking, except the taking pos- session; no part of the purchase money having been paid, and yet the cases are numerous where performance of such contract has been decreed in equity, where pftssession has been taken under the contract and large expenditures upon permanent improve- ment made. In the present case, possession has been taken under the promise and the expenditures upon improvements made, yet it is insisted that equity will not enforce the promise for the reason that it was to give, instead of having been to sell the land for a valuable consideration. Permitting the promissor to avoid per- formance operates as a fraud as much in the latter as in the for- mer case, so far as expenditures upon improvements are con- cerned. The counsel for the appellant insists that there has been no part performance of the contract to give the land. The answer to this is, that possession has been taken, and valuable improve- ments made upon the faith of the promise.' These acts consti- tute part performance by the respondents. It is true that the 800 BURNS V. DAGGETT. [CHAP. VI. plaintiff has done nothing by way of performance on his part. It is not necessary that he should. Part performance by the party seeking to enforce the contract is sufficient. It is further insisted that an executory promise, not founded upon any valu- able considera.tion, is a mere nude pact, furnishing no grounds for an action at law, and that performance of such a promise will not be enforced in equity. This is true so long as the prom- ise has no consideration. Anything that may be detrimental to the promissee or beneficial to the promissor in legal estimation will constitute a good consideration for a promise. Expenditures made upon permanent improvements upon land with the knowledge of the owner, induced by his promise, made to the party making the expenditure, to give the land to such party, constitute in equity a consideration for the promise. {Loh- dell V. Lobdelh 33 How. 347,. td., 1, 32; CrosUe v. McDaul, 13 Vesey 147 ; Shephard v. Bivin, 9 Gill. 32 ; Parsons on Contracts, 3d Vol., p. 359.) The statute of frauds has no bearing upon the case. If the promise reduced to writing could, under the circum- stances, be enforced in equity, it may be, although by parol. (2 Statutes at Large, 139, § 10.) The order granting a new trial must be affirmed, and judgment final upon the stipulation rendered against the plaintiff. All concurring. Order of General Term affirmed and judg- ment for defendant ordered. BURNS V. DAGGETT. (141 Mass. 368.) [Supreme Judicial Court of Massachusetts, 1886.] W. Allen, J. There is no sufficient memorandum in writing, as required by the statute of frauds. Pub. Sts. C. 78, § 1, Ci. 4;. and the only question is, whether there has been such part per- formance of the oral contract by the plaintiff as to entitle him to a decree against the defendant for specific performance. The only part performance relied upon is the occupation of the premises, and the making of repairs and improvements upon them. These do not of themselves constitute such part perform- ance as to do away with the statute. To have that effect, the occupation of the premises and the expenditures upon them must have been induced by the contract, and in reliance upon its per- formance, and such that adequate compensation could not be CHAP. VI.] BURNS t;. DAGGETT. 801 made for them by the defendant except by the conveyance of the premises, so that it would be fraudulent in him to withhold a con- veyance, and he would be estopped from setting up the statute of frauds against the plaintiff's demand for a deed. Glass v. Hulbert, 102 Mass. 24; Potter v. Jacobs, 111 Mass. 32. The agreement was for the conveyance of two acres of land and a house for $700, $10 to be paid each month and annual inter- est on the balance till all should be paid ; and the plaintiff was to make- necessary repair's on the house and pay the taxes. The agreement was made in 1871, and the plaintiff then' went into ' possession and continued the occupation, without interruption, until 1881, and in that time spent about $100 in repairs on the house, and set out a few fruit trees and vines, and cleared off bushes, and improved a small piece of land, at slight expense. The master found that a reasonable rent for the premises was $7 a month. Up to April 16, 1881, both parties appeared to have been acting under the oral contract, although there seems to have been some misunderstanding as to the terms. The plain- tiff had paid to the defendant, besides the taxes and the $100 for repairs on the house, about $550 on the contract debt, $400 of which was for interest and the rest on the principal of $700, and had had the use of the premises, worth, at $7 a month, over $850. Under these circumstances, the defendant went upon the premises in April, 1881, with a surveyor, for the purpose of sur- veying the land included in the contract, and a disagreement arose between the parties as to the lines of the land agreed upon. The plaintiff then told the defendant that he would have nothing more to do with the place, and all he wanted was that the defend- ant should pay him what he owed him; and the defendant told him he would do so whenever the plaintiff would leave the house. The plaintiff made no further payment, and there was no further communication between the parties, the plaintiff continuing to occupy the premises until December, 1881, when the defendant entered upon the premises and constructed a road through them. The plaintiff then objected to the making of the road, and de- manded a deed, but made no tender of payment. After the sur- vey was completed, in April, 1881, the plaintiff expressed himself, but not to the defendant, as satisfied with the lines run, and afterwards built a fence, at the cost of $25. In November, 1882, the defendant tendered to the plaintiff the amount he had paid on the contract above the interest, and requested him to quit the premises. 51 802 BURNS V. DAGGETT. [CHAP. VI. These facts do not show such a part performance of the con- tract by the plaintiff as to entitle him to a decree for specific per- formance. It is enough to refer to the cases of Glass v. Hulbert and Potter v. Jacobs, ubi supra. The principles upon which the acts of a party give him an equitable right to enforce a contract which the statute says shall not be enforced by action, are fully considered in the former case and practically applied in the latter. In the latter case, the oral contract was made in 1868, by which the defendant agreed to convey a lot of land for $500. The plain- tiffs went into possession, cultivated and improved the land, and erected a house upon it, which they occupied. In December. 1870, when the plaintiffs were proposing to place a building upon the land, a difference arose between the parties as to the restriction which formed part of the contract, and it was finally agreed that the defendant should give a deed without the restriction, in con- sideration of the additional sum of $100, and the plaintiffs pro- ceeded to move the building upon the land, and make expendi- tures upon the premises to the ainount of $1,700, and made sev- eral payments on account of the purchase money. All this was with the knowledge and consent of the defendant, and, by infer- ence, with the knowledge that it was done by the plaintiffs in expectation of receiving a deed. The defendant, in November, 1869, executed a deed, which was shown to the plaintiff, and which contained the restriction which the plaintiffs desired re- rnoved. About January 1, 1871, one month after the change in the contract doing away with the restriction, the defendant exe- cuted a deed and tendered it to the plaintiffs on condition of the payment of the amount claimed by the defendant to be due. The plaintiffs denied that there was as mlich due as was claimed by the defendant, and made no tender of payment after January 4, 1871. The amount then due was $244.80, which was materially less than was claimed by the defendant. Within a fortnight after tendering the deed and demanding payment, the defendant refused to make a conveyance on any terms,' and commenced legal proceed- ings against the plaintiffs. Upon these facts, it appears that the plaintiffs were induced by the defendant to do acts, in reliance upon the performance of the contract, for which there could be no ade- quate compensation if the contract should not be performed ; and the court held that "There was possession taken, accompanied by part payment and such change of position that the purchasers can- not now be restored to their rights if the contract be aban(loned. The refusal to complete it is in the nature of a fraud, and the CHAP. VI.} BURNS V. DAGGETT. 803 defendant is estopped to set up the statute of frauds in defence." The facts in the case at bar afford no such conclusion. After the plaintiff had enjoyed the use of the premises foi* nearly ten years, and had made no improvements of any amount, and ex- pended but $100 for necessary repairs, and had paid but a small portion of the consideration, and in all less than the value of the use and occupation, so far from having done acts for which he could have no redress if the contract were abandoned, it may have been for his advantage that the parties should not be held to the contract. If he could receive back the portion of the principle of the purchase money which he had paid, and be relieved from further paymients, he would have received, in the value of the use of the premises, mofe than double the whole amount he had expended. Whether the conversation of April 16, 1881, was in itself a rescission of the contract is immaterial ; in connection of the circumstances, it is conclusive "that the plaintiff had not then done acts under the contract for which he could have redress only by carrying out the contract, and the defendant's acquiescence in which would make the defence that the contract was not in writ- ing fraudulent. After that, the plaintiff continued to occupy the premises for a year and a half, but made no payment, or offer of payment, of the consideration, but expended $25 for fencing. When the defendant, eight months after the conversation of April 16, having heard nothing from the plaintiff, entered upon the premises, it is not at all clear that the act was contrary to an existing verbal contract ;but, if it were, it was not such a fraudu- lent or wrongful violation of it that he would Be estopped to set up its validity. The subsequent occupation of the premises by the plaintiff for a year, without tendering any part of the con- sideration, or making any expenditure upon the place, though accompanied with demands for a deed, does not present the con- duct of the defendant in a fraudulent aspect, and the tender by him of all that the plaintiff claimed to be due on the rescission of the contract shows that no wrong incapable of compensation was done to the plaintiff. The facts found by the master, if they do not show that the use and occupation of the premises were full compensation and indemnity to the plaintiff for all that he did upon them, cer- tainly fail to show any equity in him, in consequence of part per- formance of the verbal contract, sufficient to override and set aside the statute of frauds. Bill dismissed. 804 BRONSON V. CAHILL. [CHAP. VI. BRONSON V. CAHILL. (4 McLean, 19.) [Circuit Court of the United States, 1845.] Opinion of the Court. This is a bill for the specific execution of a contract by the vendor. It states t^at Bronson made an agreement for himself, and as agent for Ward, and by virtue of authority derived from him, to sell to the defendant one hundred and fifty acres of land in Michigan, which' is particularly described, for the considera- tion of eight hundred dollars. And the bill avers that the land is still worth that sum. This agreement was made on the Uth of June, 1840. That Bronson returned to New York, the place of his residence, and also the residence of Ward, and that about the 28th of July executed a deed, which was acknowledged on the llth of August ensuing. On the 26fh of July of the same year they prepared a bond and mortgage on the land, to secure the purchase money. OA the 24th of August they inclosed the deed, bond and mortgage to one Walter Clark, of Michigan, which was delivered to H. H. Comstock, then in New York, but a resident of Michigan, and which was to be delivered to said Clark, on his return, which he promised to do. But the package was not delivered. On the 22d of November, 1840, Walter Clark, as agent of the complainant, tendered the deed, and re- quired the bond and mortgage to be executed. To this bill the defendant filed a general demurrer. The demujrer admits the facts stated in the bill, and on those facts the question rises must be determined. That a court of chancery will decree a specific execution of a contract in behalf of the vendor, as well as in behalf of the purchaser, will not be questioned. But it must appear, to authorize such a decree, that the contract has been fair, mutual, and that he has offered to convey at least within a reasonable time. On the demurrer the defendant cannot rely on CHAP. VI.] BRONSON V. CAHILL. 805 any change in the value of the property, or hardship against the fulfillment of the contract. He can set up nothing that does not appear' upon the face of the bill, which is only the lapse of time for a few months, which the complainants allege is reason- ably accounted for and covered by an averment in the bill that the land had not deteriorated in value. Under these circum- stances the court will overrule the demurrer and require the defendant to answer. In this mode we can better reach the equity of the case. An answer being filed, the cause came again before the court. It is objected that there was no mutuality in the contract of purchase, as Bronson did not name his partner, Ward. On read- ing the agreement, it is obvious that the defendant must have considered himself as dealing only with Bronson, and that he was the sole owner of the land. There is no allegation in the bill that the interest of. Ward in the premises was made known to the defendant. There was nothing on the face of the agree- ment which could give the defendant a claim against Ward for his interest in the land. There was then a want of mutuality in the contract, and this is essential to a decree for a specific execution of the contract. Benedict v. Lynch, 1 John. Ch. 370; Parkhurst v. Van Cortland, 2 Ibid, 282; German v. Marchir, 6 Paige, 288. By the agreement a warranty deed was to be given ; and it is objected that this deed does not come strictly within that descrip- tion. The old doctrine of warranty, lineally and collaterally, having in a great degree grown out of use, the inquiry may be made, what is the import of the terms warranty deed ? Chancellor Kent, 4 Conn. 471, says. that "the usual covenants in a deed are five. 1. That the grantor is lawfully seized. 2. That he has good right to convey. 3. That the land is free from incumbrance. 4. That the grantee shall quietly enjoy. 5. That the grantor will war- rant and defend the title against all lawful claims." And it is argued that the deed tendered contains but one of these cove- nants — ^"that of quiet enjoyment" — the least valuable of all those enumerated, because it is not broken until there is an actual eviction. There may be an outstanding title ; there may be a cloud of incumbrances, which would prevent the sale of the land, and yet be no breach of the covenant. The same objection applies to a covenant of warranty.. In either case, an actual ouster or eviction is necessary to constitute a breach. 806 BRONSON V. CAHILL. [CHAP. VI. We are not prepared to say that a contract to convey by a general warranty deed would not be good, if ■ any one of the covenants named by Chancellor Kent should be omitted. it is also objected that the deed tendered is not properly exe- cuted and acknowledged. A deed to be recorded in Michigan, when executed in a foreign state or territory, must have attached to it the certificate of the proper county clerk that it is executed accordfng to the laws of such state or territory. To this deed no such certificc^te is attached. Law of Michigan, 1840, p. 166, §2. There is another objection to the deed, that the acknowledg- ment of the wife of Bronson was not strictly in accordance with the requirements of the statute. The fourth section provides that the certificate of acknowledg- ment must state that the wife acknowledged that she executed the deed without fear or compulsion of her husband, or anyone else. The latter words are omitted in the acknowledgment. It is a well settled principle that a married woman can make a valid conveyance only in the mode required by statute. The words omitted cannot be considered as surplusage. They are the words used in the statute, and we can readily see that they were intended to secure, by great caution, the voluntary action of a feme covert, in relinquishing her right to real estate. And it is not for, the court to say that the legislature have made an unneces- sary provision. Upon the whole, we think that the complainants are not entitled to a specific execution of the contract. And in coming to this conclusion we rely chiefly on the fact that there was a want of mutuality in the contract, which the complainants ask the court to carry into efifect. The bill must be dismissed at the cost of the complainant. CHAP. VII.] HENDRICKSON V. HINCKLEY. 807 CHAPTER VII. INJUNCTIONS. A. GENERALLY. HENDRICKSON v. HINCKLEY. (17 How. 443.) [Supreme Court of the United States^ 1854.] The facts are stated in the opinion of the court. Curtis, J., delivered the opinion of the court. The complainant filed his bill in the Circuit Court of the United States for the district of Ohio, and that court having ordered the bill to be dismissed, on a demurrer, for want of equity, the complainant appealed. v The object of the bill is to obtain relief against a judgment at law, founded on three promissory notes, signed by the com- plainant, and one Campbell, since deceased. i A court of equity does not interfere with judgments at law, unless the complainant has an equitable defence, of which he could not avail himself at law, because it did not amount to a legal defence, or had a good defence at law, which he was pre- vented from availing himself of by fraud or accident, unmixed with, negligence of himself or his agents. Marine Ins. Co. v. Hodgson, 7 Cranch, 333 ; Creath v. Sims, 5 Haw. 192 ; Walker v. Robbins, 14 How. 584. The application of this rule to the case stated in the bill leaves the complainant no equity whatever. The contract under which these notes were taken was made in December, 1841. One of the notes is dated in December, 1841, and the others in January, 1842. In April, 1848, suit was brought on the notes. In October, 1850, the trial was had and judgment recovered. The reasons alleged by the bill for enjoining the judgment are: 808 HENDRICKSON V. HINCKLEY. [CHAP. VII. 1. That the consideration of the notes was the sale of certain property, and the complainant and Campbell were defrauded in that sale. But this alleged fraud was pleaded, in the action at law, as a defence to the notes, and the jury found against the defendants. Moreover, upwards of six years elapsed after the sale, and before the suit was brought; and the vendees, who do not pretend to have been ignorant of the alleged fraud during any considerable part of that period of time, did not offer to rescind the contract, nor did they, at any time, either return or offer to return the property sold. 2.' The bill alleges certain promises to have been made by an agent of the defendant, concerning the time and mode of pay- ment of the notes when they were given. These promises could not be availed of in any court, as a defence to the notes; for, to allow them such effect, would be to alter written contracts by parol evidence, which cannot be done in equity any more than at law, in the absence of fraud or mistake. Sprigg v. Bank of Mount Pleasant, 14 Pet. 201- But whatever substance there was in this defence, it was set up, at law, and upon this also the verdict was against the defend- ants ; and the same is true of the alleged partial failure of con- sideration. 3. The next ground is, that on the trial at law, letters from the joint defendant, Campbell, containing admissions adverse to the defence, were read in evidence to the jury; and the bill avers that Campbell was not truly informed concerning the subjects on which he wrote,, and that, until the letters were produced at the trial, the complainant was not aware of their existence, and so was surprised. To this there are two answers, either of which is sufficient. The first is that the complainant and Campbell, being jointly interested in the purchase and ownership of the property for which these notes were given, and the joint defendants in the action at law, and there being no allegation of any collusion be- tween Campbell and the plaintiff in that action, the complainant cannot be, allowed to allege this surprise. If he did not know what admission Campbell had made, he might, and with the use of due diligence, would have known them; and he must be treated, in equity as well as at law, as if he had himself made the admissions. Another answer is, that if there was surprise at the trial, a motion for delay, as is practiced in some circuits, or a motion for CHAP. VII.] HENDRICKSON V. HINCKLEY. 809 a new trial, according to the practice in others, afforded a com- plete remedy at law. 4. The complainant asserts that he has claims against the de- fendant, and he prays that, inasmuch as the defendant resides out of the jurisdiction of the court, these claims may be set oif against the judgment recovered at law by the decree of the court upon this bill. But upon this subject the bill states, speaking of the action at law : "Your orator frequently conferred with L. D. Campbell, one of his attorneys, in reference to the said cause, and frequently spoke to him of the claims which your orator and said Andrew Campbell had against the said Hinckley, as hereinafter specifically set forth; but the said Campbell, .attorney, regarded the defence pleaded as so amply sufficient as that neither he nor •your orator ever thought it necessary to exhibit said demands against said Hinckley as matter of defence, could it even have been done consistently with the defence made as aforesaid." He purposely omitted to set oif these alleged claims in the action at law, and now asks a court of equity to try these unliqui- dated claims and ascertain their amount, and enable him to have the same advantage which he has once waived, when it was di- rectly presented to him in the regular course of legal proceed- ings. Courts of equity do not assist those whose condition is attributable only to want of due diligence, nor lend their aid to parties, who, having had a plain, adequate and complete remedy at law, have purposely omitted to avail themselves of it. it is suggested that courts of equity have an original jurisdic- tion in cases of set-off, and that this jurisdiction is not taken away by the statutes of set-off, which have given the right at law. This may be admitted, though it has been found exceed- ingly difficult to determine what was the original jurisdiction in equity over this subject. 2 Story, Eq. 656, 664. But whatever may have been its exact limits, there can be no doubt that a party sued at law has his election to set off his claim, or resort to his separate action. And if he deliberately elects the last, he cannot come into a court of equity and asked to be allowed to make a different determination, and to be restored to the right which he has once voluntarily waived. Barker v. Elkins, 1 Johns. Ch. 465 ; Greene v. Darling, 5 Mason, 201, Fed. Cas. No. 5,765. Similar considerations are fatal to the plaintiff's claim for relief, on the ground that the defendant resides out of the state, and that therefore he should have the aid of a court of equity, to subject the judgment at law to the payment of the complainant's 810 WOODBURY SAV. BK. V. CHARTER OAK INS. CO. [CHAP. VII. claim. When the plaintiff elected not to file these claims in set-off in the action at law, he knew that defendant, who was the plain- tiff in that action, resided out of the state. If that fact was deemed by the complainant insufficient to induce him to avail himself of his complete legal remedy, it can hardly be supposed that it can induce a court of equity to interpose to create one for him. The question is not merely whether he now has a legal remedy, but whether he has had one and waived it. And as this clearly ap- pears, equity will not interfere. The decree of the court below is affirmed. WOODBURY SAVINGS BANK v. CHARTER OAK , INSURANCE CO. (31 Conn. 517.) [Supreme Court of Connecticut, 1863.] Button, J. The respondents issued their policy, intending to insure the petitioners on a mortgage interest which they held in the property in question. The agent of the petitioners represented to the local agent of the respondents what their object was, and that the legal title to the property had become so complicated and doubtful that he could not accurately describe it, and re- quested him to make the necessary examinations and issue sUch a policy as would insure their interest. This the agent attempted to do, but through mistake and misapprehension as to the proper mode of doing it, he made out the policy in the name of the original mortgagees, without their knowledge or co-operation, payable in case of loss to the petitioners as owners of the mort- gage. After the building had been burnt the respondents refused to pay the loss, on the ground that the conditions' of the policy as to the description of the title to the property had not been complied with. The petitioners then brough their action at law, which is still pending, on the policy. This court held that on such a policy no action at law would lie in favor of the mortgagees. 29 Conn. R., 374. This petition was then brought, praying for a correction of the mistakes and an injunction against the defend- ants taking advantage of the failure to comply with the conditions of the policy. The respondents deny that the local agent, in entering a description of the property in the application for the CHAP. VII.] WOODBURY SAV. BK. V. CHARTER OAK INS. CO. 811 insurance, was their agent. The principal question is, whether, under these circumstances, which as we ^iroceed, will be more particularly noticed, the petitioners are entitled to a relief. There are other questions involved, which will be considered before we close. The records of the courts of this state will show that we have maintained the integrity of contracts, and the necessity of a strict compliance with all conditions affecting their validity, although, in some instances, almost to the denial of justice. Thus, in Glendale Woolen Co. v. Protection Ins. Co., 21 Conn., 19, and in Sheldon v. Hartford Fire Ins. Co., 22 Id., 235, this court held that the answer, "There is a watchman nights," to the question, "Is there a watchman in the mill during the night?" implied that there was a watchman in the mill during the whole of each night, and that consequently the absence of the watchman from twelve o'clock Saturday night until twelve o'clock Sunday night was at law an unexplainable breach of the condition and prevented recovery. It is difficult to reconcile the common mind to the justice of such decisions, and we can hardly satisfy our- selves that the failure to recover was not owing more to the mis- fortune than to the fault of the plaintiff, and that in all proba- bility the insurance would have been made by the company just as soon and at the same rate if the description had been strictly accurate. But in such cases, no doubt, public policy requires a strict enforcement of the terms of the contract. So in Bouton v. Am. Mut. Life Ins. Co., 25 Conn., 542, a failure to pay the premium on the day, even with the consent of the local agent, where there was not sufficient proof that such agent was authorized to waive the time of payment, was held to bar a recovery. The case of Treadway \. Hamilton Mutual Ins. Co., 29 Conn., 68, and the former decision in this case, 29 Conn., 374, show the same deter- mination to apply the strict rules of law to policies of insurance, although,' in the former, the grossness of the misdescription, and in the latter ,^ the manifest inadmissibility of the evidence, divest the cases of any claim to sympathy. The case of Lounsbury v. Protection Ins. Co., 8 Conn., 459, in which the condition specified "carpenters in their own shops or in buildings erecting or repairing," as extra-hazardous, and as avoiding a policy unless named in it, and in which it was held that the condition was not broken by the use of a room in the building for repairing the machinery ; and the case of Billings v. Tollard County Mut. Fire Ins. Co., 20 Conn., 139, in which it was 812 WOODBURY SAV. BK. V. CHARTER OAK INS. CO. [CHAP. VII. held that the temporary use of a barn for slacking lime and mix- ing paints, and leaving the materials for a short time in the barn, were not, when in conformity with common usage, a fatal de- parture from the description — "all the above described barn is used for hay, straw, grain, tjnthrashed, stabling and shelter," may seem to indicate a relaxation of strict rules; yet they will b6 found not to have gone further at least in that direction than the cases of Dobson v. Sotheby, 1 Wood. & Mai., 90, and Shaw Robberds, 6 Adol. & EL, 75. But the courts of this state have not thought it proper to fol- low the precedents made by some other courts, of regarding local agents, in rendering aid in the issuing of policies, as the agents of the applicants rather than of the insurance companies. They have rather taken the ground, that public policy and the protection of the community require that the contrary rule should be adopted. A modern policy is a very complicated contract. Before execut- ing almost any other instrument of equal perplexity, the parties would deem it necessary to take the advice of able counsel. Fre- quently questions arise as to the proper construction of the terms used, which divide the opinions of the most learned jurist. Yet the insured are bound at their peril, however ignorant they may be on points of law, to give them their true legal construction. Now, we know, from common observation, that not one in a hun- dred of those who procure policies give any attention whatever to the finely printed page containing the conditions of a policy, they cannot afford to spend the time required to study them over, and they take it for granted that they would not be enlightened if they should. They rely, with full confidence, and whatever may be the law, or whatever stipulations may be inserted in the policy, they always will rely, on the representations of their agents, and always will regard them as the representatives of the companies, and will always consider themselves as safe in doing whatever receives their sanction. These local agents, however, are under a strong temptation to use undue influence to increase their business, and at the same time to screen, as far as possible, their employers from loss. It is well remarked by Ellsworth, J. (29 Conn., 477), "There is great danger that injustice will be done to persons obtaining insurance who are inexperienced in the business and place full confidence in the word of an insurance agent, accredited as he is by his public appointment." This court have, therefore, iri a series of deci- sions, held companies bound by the acts of local agents whenever CHAP, VII.] WOODBURY SAV. BK. V. CHARTER OAK INS. CO. 813 it could be done consistently with the evidence and rules of law. Thus, in Beehe v. Hartford County Mut. Fire Ins. Co., 25 Conn., 51, it was held that an agent whose business it was to receive and forward to the company applications for insurance,. is the agent of the company, to receive a disclosure of facts, although they instruct him privately to regard himself in so doing as the agent of the applicant. In Bouton v. American Mut. Life Ins. Co., 25 Conn., 542, it was held that a local agent could receive premiums, and could agree to be personally responsible for the premium without actual payment of it, so as to bind the company. In Sheldon v. Conn.- Mut. Life Ins. Co., 25 Conn., 207, it was left to the jury to say, from all the circumstances, whether the agree- ment pf the local agent that the premium might be paid at a subsequent day, contrary to the express conditions of the policy, was binding on the company. And in Hough v. City Fire Ins^ Co., 29 Conn., 10, evidence was permitted to go to the jury, that the applicant stated to the local agent the exact condition of the property, and that the application was filled out by the agent him- self, accompanied with evidence tending to show that the defend- ants gave their assent to such conduct on the part of the agent. These were all actions at law, but the case of the Malleable Iron Works V. Pheonix Ins. Co., 25- Conn., 465, which was a petition in chancery, is more directly in point. The business of the agent in that case was to procure applications for insurance and forward them to the company for acceptance. The application was in several particulars made out incorrectly by the direction or direct act of the agent himself. The facts were correctly stated by the applicant to him. The petition prayed for a correction of the mistake as having occurred between the applicant and the com- pany itself. The court held that, in regard to whatever was inci- dent to the business of procuring and forwarding applications, the agent could fairly be considered as representing the company, and granted the relief sought. That case was, undoubtedly, • regarded by the present petitioner as a precedent which he could safely follow. Let us see, then, whether Parsons and Brooks ought not, from the facts found by the court below, to be regarded as agents of the company in making the preliminary contract to insure. First, was Parsons their agent? He had publicly advertised himself generally as the agent of the company, and this must be pre- sumed to have been with their knowledge. He inserted his name as the agent of the company in every policy which was issued 814 WOODBURY SAV. BK. V. CHARTER OAK INS. CO. [CHAP. VII, through his office. A corporation must necessarily act by agents. This, unexplained, would be conclusive proof of a general agency, and would authorize him to transact any regular business of the company. There is nothing whatever to restrict, his agency, ex- cept the fact that it was generally known that he was a local agent, and the general understanding of the limitation of the powers of such an agent. But we know of no such limitation that would prevent a local agent, whose peculiar business it is to receive appli- cations for insurance and generally to issue policies in pursuance of theta, from making any agreement relating to this particular business which any agent of the company could do. Any such restriction would be extremely embarrassing and would lead to injustice. Some part of the arrangement was made with Brooks, but he too was the agent of the respondents, and whatever he did was approved of by Parsons. Brooks was employed by Parsons in pursuance of a general custom which prevailed among local agents, and which was known to and approved of by the com- panies generally and by this company in particular. The respond- ents had the benefit of his services. A portion of the premium was received by him, and he must, therefore, be considered as in the employment of the respondents. The case, then, is one where there was an agreement on the part of the company to insure the petitioners on their interest as mortgagees in the property in question. There was a mutual mistake as to the proper mode of filling out the papers on both sides. The application was made out in the wrong name and the policy was made to the wrong person. But there was no fraud or misrepresentation. The papers would have been made out right if they had known how to do it, and it is immaterial whether the mistake was one of fact or of law. Sted- well v. Anderson, 21 Conn., 139. It is found that the company privately instructed Parsons that he must not insure mortgaged interests. This, however, could not afifect the petitioners, who had no knowledge of any such- restriction on the powers of the agent. Beebe v. Hartford County Mut. Fire Ins. Co., 25 Conn., 51. It is claimed that no relief can be granted because the limita- tion for the bringing of suits contained in the conditions of the policy expired before this suit was brought. If relief only had been prayed for, we think the objection would have been fatal. The long array of cases cited by the counsel for the respondents CHAP. VII.] TUCK V. PRIESTER. 815 is decisive. But the petitioners bring this bill in aid of the suit at law, which was confessedly commenced before the limitation ex- pired, alid which is still pending. Whatever further is asked for may be regarded as barred, without affecting this part of the petition. It would be taking very strong grounds indeed to hold that the right of prosecuting a suit in the ordinary way, although the issuing of new process might be necessary, has been relin- quished by such condition. The object of the condition evidently was in part to prevent delay in the determination of all questions of loss, and in part to enable the company to know in season whether a claim will be prosecuted. The object of the respondents has been answered, and it would be manifestly unjust to allow such an objection to prevail. No cases have been cited which sustain the ground taken by the respondents. A point was made that Hopkins, a trustee, in insolvency, had, subsequently to the issuing of this policy, procured a policy of insurance on the property in question, which was not indorsed on this policy, and 6f which these respondents were not notified. But, aside from the fact that that policy was obtained by a stranger, without the co-operation or knowledge of the petitioners, and the fact that it was issued by Parsons, as agent of another company, at the same time that he was agent of the respondents, and viewing this as a policy on the mortgage interest, there was no subsequent insurance on the same property. The petitioners are entitled to a decree correcting the mistakes found by the court below, and enjoining the defendants in the suit at law against objecting to the evidence offered by the plaintiffs on any ground which such a correction would remove, and from claiming and introducing evidence to show that the property described in said policy was not the property of the petitioners. In this opinion the other judges concurred. TUCK V. PRIESTER. (L. R. 19, Q. B. D. 629.) [Supreme Court of Judicature, 1887.] Lord Esher, M. R. The plaintiffs entered into a written con- tract with the defendant by which the defendant undertook to 816 TUCK V. PRIESTER. [CHAP. VII. make a specified number of copies of a picture which belonged to the plaintiffs, in order that the plaintiffs might be able to sell those copies for their own profit. The contract being a written one, it must be construed by the writing alone, and the plain, honest meaning of it was this, "You are to make those copies for us, and then you are to return the picture to us, and you are not to make any other copies for your own benefit." That term was implied as plainly as anything could be. Instead of doing this the defend- ant, after he had made the specified number of copies for the plaintiffs, made other copies of the picture for himself, with the intention of selling them for his own profit, and he sent a number of these copies to England with the intention of selling them there, and, what was worse, of selling them at a lower price than that at which the plaintiffs were selling theirs. This was a plain breach of contract, and under such circumstances I cannot doubt that, quite irrespectively of the Act of 1862, a Court of Equity would grant an injunction and damages against the defendant. The question is, whether, under the statute, the plaintiffs have the same rights, and, perhaps, more, and this depends on the construction of the Act. I will not read the preamble of the Act ; 1 will assume it to be true that no "copyright" in works of art existed before- the Act. Then, what is the effect of Sec. 1 ? If that section had stood alone, and there had been nothing else in the Act, and there had been no copyright before the Act, it would have given to the author of any of the works mentioned in the section a copyright in the work from the moment he had made it, and a right to sue for the breach of that copyright. Which of these two things is a "benefit" to him? What would be the use of a "copyright" without the right to sue for an infringement of it? It would be a mere name, and of no practical value at all. If Sec. 1 had stood alone it would have been given the author of the work this right and this benefit, and, no time being mentioned from which the right is to begin, it would begin from the time of the making of the work. This construction is fortified by Sees. 2 and 3, both of which seem to assume that the "copyright" exists from the tnoment when the work is made. And Graves' Case (1) seems to mean absolute authority for this construction. What, then, is the effect of Sec. 4 ? It was not needed to give the copyright, which had been already given by Sec. 1, or to give the right to sue for the infringement of that copyright. It seems to me to bridle the right — ^to limit it. The legislature desired to force the owner of the copyright to register it, and having described CHAP. VII.] TUCK V. PRIESTER. 817 that which, to my mind, is the "benefit" of the Act— the right to sue for an infringement to the copyright— they say, "You shall not be entitled to that benefit, you shall not be able to sue for a breach of your copyright, until after registration." If the words "no proprietor of any such copyright shall be entitled to the benefit of this act until such registration" had stood alone, the proprietor of the copyright might, after registration, have sued for a breach committed before registration ; at any rate, it would have been very doubtful whether he could not have done so. The legislature wished to limit the right to sue still further, and, therefore, they added the words, "no action shall, be sustainable, nor any penalty be recoverable in respect of anything done, be- fore registration.". Tlje proprietor of the copyright has no right to sue at all for a breach of it until after registration, and, even when he has acquired the right to sue, he cannot recover in re- spect of anything done before registration. That is an additional limitation of this right to sue. The copyright exists from the moment when the work is made ; from the moment of registration the proprietor can sue in respect of breach of it, but he can only recover in respect of a breach committed after registration. That, as it seems to me, is the effect of Sec. 4. I will pass over Sec. 6 for the present, and will proceed to consider Sec. 11. That sec- tion provides that if any person not being the proprietor for the timfe being of the copyright, shall, without the consent of such proprietor, copy the work for sale, or shall import into the United Kingdom, or sell, any copy of work made without such consent, the proprietor may recover damages in an action on the case against the person so offending, and may also, in addition, in the same action, recover and enforce the delivery to him of all un- lawful copies, or may recover damages for the retention or con- version thereof. What is the breach in respect of which the pro- prietor may recover damages? If the breach relied upon is the making of a copy of the work before the registration of the copy- right, then, by reason of the final clause of Sec. 4, the proprietor cannot recover damages in respect of that breach. But then, Sec. 1 1 says, "or sell .... any copy made without such consent," that is, the consent of the proprietor. What is the limit of time ? The thing described is a copy made without the consent of the proprie- tor. Does not that hit the present case exactly ? The copies sold by the defendant were made without the plaintiff's consent, and were sold after registration. I can not doubt that the words of Sec. 11 exactly describe what was done by the defendant. A 52 818 TUCK V. PRIESTER. [CHAP. VII. copyright existed in the picture, and, without the consent of the proprietors, copies were made by the defendant. By reason of a statutory limitation the plaintiffs cannot sue the defendant for making the copies, because they were made before registration. But I cannot doubt that it was absolutely wrong to make copies of that in which another man had the copyright, without his consent. By reason of an administrative difficulty — ^the want of registration — the plaintiffs cannot sue in respect of that wrong. But then, after registration, the defendant goes on and sells copies which he had made before registration, and in respect of that sale the plaintiffs can recover damages. What does the word "unlawful," in Sec. 11, mean? There is but one meaning which can be given to it. The existence of the copyright made it wrong- to copy the work without the consent of the proprietor — it is the copying without his consent, and nothing else, that makes the copy "un- lawful." "Unlawful" is equivalent to "made without the consent of the proprietor." If the proprietor registers his copyright after the piracy of copying it has been committed, and then, after the regis- tration, the man who has committed the piracy, persists in doing any of the other things mentioned in Sec. 11, such as selling the pirated copies, he is liable to damages for that which he does after the registration, though what I have called the bridle, con- tained in Sec. 4, prevents the owner of the copyright from re- covering damages for that which was done before the registration. The plaintiffs, therefore, are entitled, under the general law, by reason of the defendant's breach of contract, and of the trust reposed in him, to an injunction and damages, and they are en- titled to the same injunction and damages under the statute. But, then comes the question whether the plaintiffs are also entitled to recover penalties under Sec. 6. We must be very careful in con- struing that section, because it imposes a penalty. If there is a reasonable interpretation which will avoid the penalty in any par- ticular case we must adopt that construction. If there are two reasonable constructions we must give the more lenient one. That is the settled rule for the construction of penal sections. After fully considering Sec. 6 I have, though with considerable hesita- tion, come to the conclusion that it may be seasonably read as not irnposing the penalty when the copy sold was made in a for- eign country, not in England. The making in a foreign country of a copy of a work in which there is a copyright only in England, may reasonably be said not to be "unlawful," and, if so, the sale CHAP. VII.] WASHBURN V. MILLER. ' 819 of such a copy in England is not a sale of a copy "unlawfully made." Sec. 6 is expressed diflferently from Sec. 11, and it is a penal section. On the whole, I prefer the construction that penal- ties cannot be recovered in such a case. The plaintiffs are, therefore, entitled to damages and an in- junction, but not to penalties, and the judgment of the Divisional Court must be varied accordingly. Under the circumstances, I think the plaintiffs ought to have their costs of the trials and also their costs in the Divisional Court and in this Court. B. TRESPASS. WASHBURN V. MILLER. (117 Mass. 376.) [Supreme Judicial Court of Massachusetts, 1875.] Bill in equity, filed April 24, 1873, alleging the following facts : In 1822 the plaintiff became the owner in fee of a lot of land in Auburndale, and in 1847 laid out a private way over a portion of it and built a fence on the line of the way. In 1858 the plaintiff sold a portion of the land bounding it on the way, and conveyed to Ai Blood a right to use the way by a deed which is set forth in the preceding case, ante, 371. It was the understanding and agreement between the plaintiff and Blood that the way was only to be used for reaching the northerly portion of the land conveyed to him, and that all buildings put upon the said land by Blood and his assigns should be built northerly of the plaintiif 's house on the other side of the way. The bill set forth the conveyance by Blood to Miller of the southerly portion of the lot, that Miller had built a. house and barn southerly of the line, in violation of the agreement between the plaintiff and Blood, had taken down the fence along the private way and had filled up a gutter which the plaintiif had built on the westerly side of said way for the purpose of keeping the water from the highway from flowing on his land ; that Miller had com- mitted various trespasses on the private way ; and had brought an action at law for an alleged trespass by the plaintiff, which action was still pending. 820 WASHBURN V. MILLER. [CHAP. VII. Devens, J. The plaintiff seeks to maintain the bill upon the ground of repeated trespasses by the defendant upon his private way by passing th-ereon, and by doing thereon various other acts for the purpose of rendering the same more convenient for his own use. It is not doubted that an injunction could properly be issued to restrain one from the commission of an alleged trespass where the damage, liable to be occasioned thereby, would be irreparable ; but in such case it would be for the purpose only of enabling the party, whose rights were alleged to be invaded, to test them in a court of law. So, where acts of the nature alleged in the bill had been held, in previous suits brought by the plaintiff, to be tres- passes, and his title thus fully shown, and it further appeared that damages would not be an adequate compensation for them, it might be proper that a party continuing to commit them should be permanently restrained by injunction. No such case is here pre- sented; it is not averred that irreparable damage is liable to be done, nor are any facts stated which indicate that damages would not adequately compensate the plaintiff. No suit at law has ap- parently been brought by the plaintiff to establish his right to the way in question as against the defendant; but, it does appear that the defendant has brought a suit against the plaintiff for interfering with him in the use of it by certain alterations made by him, and against the prosecution of this suit the plaintiff prays for an injunction. By the bill, therefore, he simply endeavors to remove into this court the determination of the rights of the par- ties in the use of the way. This should not be done; it is a mat- ter appropriate to the jurisdiction of a court of common law, and if the rights of the plaintiff have been invaded, its powers are ample to afford him an adequate remedy. Nor can the bill be maintained because it will prevent a multi- plicity of suits. All the trespasses, as set forth, may be made the subject of a single action, in which the plaintiff may recover such damages as he shall show he has sustained. There are no em- barrassments arising from complicated or conflicting rights of dif- ferent parties which would justify this court sitting as a court of equity in taking jurisdiction of the controversy. The other ground, upon which the plaintiff relies, is equally untenable. He alleges that he conveyed to Blood a tract of land, the southerly half of which is now owned by Miller by subsequent conveyance from Blood, and that at the time of the conveyance to Blood it was understood and agreed, although not expressed in CHAP. VII.] LEMBECK V. NYE. 821 the deed, that all buildings put upon the land by Blood and his assigns should be built below the lower line of the plaintiff's house, and further avers that the defandant, since the conveyance to him, has proceeded to erect a house and barn upon the land so con- veyed, which are above the line referr.ed to. It is unnecessary to consider what would be the effect of the understanding or agreement as alleged to have been made with Blood. It was, apparently, verbal, and no consideration for it is suggested, unless we are to infer one from the fact that a convey- ance of land was made to him by the plaintiff. But even if it were a\i agreement binding upon Blood, it cannot effect those who purchase the land without knowledge of its existence. There is no averment that the defendant had any such knowledge ; and as it was not expressed in the deed, he has a right to enjoy the title which, by that deed, Blood was empowered to convey to him unaffected by it. Demurrer sustained. LEMBECK V. NYE. (47 Ohio St. 336.) [Supreme Court of Ohio, 1890.] Bradbury, J. The contention between the parties to this action is over their respective rights to and in Chippewa Lake, a non- navigable body of Tvater in Madina county, in this state, having an area of about four hundred acres, oval in form, though its ex- tension from north to south is about twice as great as that from east to west. It is true that the plaintiff in error claims that the waters of the lake have subsided by reason of the deepening of the channel of its natural outlet, whereby a narrow strip of land en- tirely around the lake has been recovered, but as this claim is not sufficiently supported by the agreed statement of facts to require any consideration of the principles or authorities upon which he founds his claim to title thereto, it will not be further noticed in the decision of the cause. The lake is situated in the Western Reserve lands, and upon the division of the lands of the Conn. Land Company was, to- gether with a body of land entirely surrounding it, allotted to Samuel Fowler and three others, and which, by sundry convey- ances and certain procee'dings in partition became the property, in fee simple, of Samuel Fowler and James Fowler, as early as 822 LEMBECK V. NYE. [CHAP. VIl. the year 1815, to whom all the parties to this proceeding trace title. By the conveyances and proceedings above noticed, the title to the lake, as well as the title to the lands enclosing it, rested in the Fowlers, if it is susceptible of private ownership, which we think it clearly is. Bristow V. Cormican, 3 App. Cas. 641, 652. "A lake which is not really useful for navigation, al- though of considerable size compared with ordinary fresh water streams, may be private property." Gould on Waters, Section 83 ; Ledyard v. Ten Eyck, 36 Barb. 102; Hogg v. Beerman, 41 Ohio St. 81. Many other authorities could be cited in support of this proposition, but it is too well settled to require it to be done, even if controverted, which it is not in this action, although material to its determination. It is agreed that, from an early period in the history of the state, hunters and fishermen, without license, resorted at will to the lake to hunt and fish, and that for more than forty years the public has had free access to it for boating, hunting and fishing. It is not readily perceived how this early and continued custom can be said to cast any material light upon the intention of the parties in respect of the deeds by which the lands around the lake were from time to time conveyed ; it can only be material, therefore, as tending to show a dedication of the lake by its owners to the public, and a consequent extinguishment of their private property therein. These facts may constitute a link in the chain of evidence necessary to prove a dedication of the lake to the public, but fall far short of establishing "that fact. In truth, when consideration is given to the early customs of the people of this state in this respect — their well-known habit of hunting and fishing upon all lands and waters where fish or game might be found, irrespective of their ownership, or whether enclosed with fences or not — ^it is apparent that this class of evidence ought to be received and weighed with extreme cautign as proof of a dedication to such uses. Private owners are not to be deemed to have devoted their property to uses of this kind simply because they interposed no objections to their neighbors, or even to strangers, hunting and fishing upon it; other circumstances must appear, manifesting that it was his intention to do so. Dedication depends upon the intention of the owner to devote his lands to a public use, and should be made to appear clearly and satisfactorily. 5 Am. & Eng. Ency. of Law, 400-401; Smith v. State; (N. J.) 712; Wash, on Easements, 209. CHAP. VII.] ' LEMBECK V. NYE. 823 Here the owner did no act indicating an intention to devote the lake to the use of the public ; it does not even appear Ihat the owner had any knowledge that the public was using it in the manner that the agreed statement shows it to have been, in fact, used; and as dedication by parol, or in pais, acts by way of estoppel on the proprietor, used by the public unknown to him, can have no appreciable probative force to establish a dedication against him. The lake, as we have seen, being susceptible of private owner- ship, and having been allotted to the Fowlers, or to them and pthers whose title they obtained, upon the division of the Western Reserve lands, and not having been dedicated to the use of the public, passed by the deed made by the Fowlers, August 11, 1876, to Ainsworth and McClure, under whom the plaintiff de- rives title, unless it had already passed to some, or all, of the purchasers of the lands surrounding the lake by virtue of the prior deeds of the Fowlers made to such purchasers. This de- pends upon the descriptions in those deeds and the rules of law law that apply to conveyances of lands bounded by non-navigable inland lakes. By a series of deeds, the first of which bears date of October 16, 1823, and the last January 24, 1868, the Fowlers conveyed all the lands that surrounded the lake to various parties, under which the same are now held, and such parts of the lake as may have passed by virtue of these conveyances could not, of course, have been conveyed by a subsequent deed of the Fowlers under which the plaintiff in error derives title; and it is, there- fore, of the first importance to ascertain what those conveyances, in fact, include, which necessitates a construction of their respec- tive descriptions. These descriptions may be divided into three classes. In the first class are two deeds, one from James Fowler et al. to Delan- son De Forrest, the other from James Fowler and wife to Fred B. Chamberlain, wherein the lake itself is made one boundary of the land thereby conveyed ; in the second class are four deeds, one from James Fowler to Catharine and Sally Trump, one from James Fowler to Charles Wheeler, one from James Fowler to William Walter, and the other from James Fowler to Charles Wright, wherein the margin of Chippewa lake is made either a corner or one of the boundary lines of the lands conveyed by them respectively; while in the third class are two deeds, one from James Fowler et al. to Abraham Fritz, the other from James Fowler et al. to Conrad Snyder, in which the lands conveyed are 824 LEMBECK V. NYE. [CHAP. VII. described by metes and bounds only, no reference whatever being made to the lake. The rule that lands, one boundary of which is a navigable river running through this state, extend to the middle of the stream subject to easement of navigation, was laid down by this court as early as the year' 1828, Gavit v. Chambers et al., 3 Ohio, 496. The same rule was applied to calls in a survey bounding, lands upon a non-navigable stream, shortly thereafter, Benners" Lessee V. Platter et al., 6 Ohio, 505 ; since which time the doctrine therein annotmced has been firmly maintained by this court. Curtis v. The State, 5 Ohio, 324; Lamb v. Rickets, 11 Ohio, 311 ; Walker V. Board of Public Works, 16 Ohio, 540; June v. Purcell, 36 Ohio St. 396; Day v. R. R. Co., 44 Ohio St. 406. The rule, however, is otherwise in respect to calls in a deed bounding the lands conveyed by it on the waters of Lake Erie. Sloan v. Biemiller, 34 Ohio St. 492. And in the case of lands bounded on the Ohio river the clear tendency of judicial opinion in this state is to limit the title of the riparian proprietor to low- water mark. Benners" Lessee v. Platter, 6 Ohio,' 508 ; Lessee of Blanchard v. Porter et al., 11 Ohio, 138, 142; Booth v. Hubbard, 8 Ohio St. 247 ; but the effect to be given to a call in a deed that makes a non-navigable lake one boundary of the lands conveyed by it has not heretofore received the attention of this court. The authorities upon the question are in conflict, and seem to be incapable of reconciliation. In some of the states, and in Eng- land, the rule is to limit the operation of the conveyance to the water edge. Gould on Waters, § 80, p. 155. Bloomiield v. Johnston, Jr., R. 8 c. L. 68 ; Bradley v. Rice, 13 Me. 198 ; Wood V. Kelly, 30 Me. 47 ; Wheeler v. Spinola, 54 N. Y. 377. In other states, notably Indiana and Michigan, the contrary rule may be considered as established. Ridgway v. Ludlow, 58 Ind. 248; Stoner v. Rice, 22 N. E. Rep. 968; Clute V. Fisher, 65 Mich. 48. In this conflict of authority we are at liberty to adopt such rule on the subject as best comports with the presumed inten- tions of the parties, a sound public policy, and the analogies of the rules in force in this state respecting boundaries upon run- ning streams. - It may be conceded that the numerical weight of authority supports the rule that a call in a deed making a non- navigable lake a boundary, only passes title to the land to low water mark ; but, be that as it may, no solid ground is readily perceived for limiting, in that case, the deed to the water's edge, CHAP. VII.] LEMBECK V. NYE. 825 and in the case of a running stream, extending its operation to the center or thread thereof; and in this state, where the rule is so firmly established that a boundary on a running stream carries the land to the middle, or thread thereof, principles of analogy afford strong grounds for applying it to non-navigable lakes. The main reasons for the rule in one case apply equally to the other. The existence of "strips or gores" of land along the margin of non-navigable lakes, to' which the title may be held in abeyance for indefinite periods of time, is as great an evil as are strips and gores of land along highways or running streams ; the litigation that may arise therefrom after long years or the happening of some unexpected event, is equally probable, and alike vexatious in each of the cases, and that public policy which would seek to prevent this by a construction that would carry the title to the center of a highway, running stream or non- navigable lake that may be made a boundary of the lands con- veyed, applies indifferently, and with equal force, to all of them. It would seem, also, that whatever inference might arise, from the presumed intention of the parties, against the reservation of the land underlying the water, would be as strong in one case as in either of the others. The practical difficulties in the application of the rule may arise where the lake is so nearly round that it cannot be said to have any length as distinguished from its breadth, or when the side lines of the respective parcels of land bounding on the lake approach it in such direction that if they should be extended to the center thereof they would cross each other is apparent. The latter difficulty is not at all unusual in the case of lands bounding on running streams, but does not prevent the applica- tion of the rule. 3 Wash. 459, star note; Angell on Water Courses, §55, where the subject is learnedly discussed by those able authors, and this difficulty overcome. Whether there are in Ohio non-navigable lakes of such shape that no length can be affirmed of them does not appear; if there are any such, and the rule applicable to running streams and to non-navigable lakes distinctly longer than they are wide, cannot be applied to them, other appropriate rules must be adopted which, in the light of all the circumstances, may be regarded as effectuating the intention of the parties, and are consistent with public policy; one main object in all cases of this kind being to adopt and apply such rules as will accomplish those important ends. Whatever difficulties may be conjectured as liable to arise in 826 LEMBECK V. NYE. - [CHAP. VII. possible cases to the application of the rule we have adopted, in fact would arise in the case before us, for Chippewa Lake is distinctly longer than it is wide, and a prolongation to its center of the side lines of the respective parcels lying along its sides will not cause them to cross each other. The rule, of course, excludes those lands which merely touch the end of the lake, and 4p not at all extend along its sides. This rule, however, is "applicable to but two of the conveyances, that to Delanson De Forrest and that to Fred B- Chamberlain. While, if the parties to a deed make a running stream, a non- navigable lake, or a highway, one boundary of the lands con- veyed by it, public policy and the presumed intention of the parties will extend the line to the middle of such monument, yet it is competent *for them to limit the conveyance to the side of the highway, the top of the bank of the running stream or to the edge of the water of the lake. Lessee 'of Blanchard v. Por- ter et al., 11 Ohio, 138; Lough v. Macklin, 40 Ohio St. 332; and the question is whether the parties to the other deeds conveying the land surrounding Chippewa lake have not done so. As has been shown in four of the conveyances of the Fowlers, of the lands bordering on the lake, the "margin" of the lake is made a boundary or corner instead of the lake itself. "Margin of the lake" is a term of unequivocal import, meaning the line where the earth and water meet around the lake; by the use of the words the parties have declared their intention to make, not the midde, but another part of the lake — ^the edge of the water — the boundary line. No other construction can be given to the words the parties have themselves chosen, without doing violence to their meaning; and an intention contrary to the one expressed by the very words selected by the parties themselves cannot be presumed. Lessee of McCullock v. Aten, 2 Ohio, 308; Lamb v. Rickets, 11 Ohio, 311; Hopkins v. Kent, 9 Ohio, 13; Gould on Waters, § 199. In the remaining deeds from the Fowlers to the lands around the lake the lands were described by metes and bounds, no men- tion of the lake being made. In descriptions of this class only the lands within the bounds pass. "When lands are granted by metes and bounds, all the area within those bounds, and no more, passes." Lockwood et al. v. Wildman et al., 13 Ohio, 430. Indeed, where the parties have by their deed inclosed the land "by agreed lines, without any reference whatever to adjacent natural objects, it is difficult to conceive of a principle that would CHAP. VII.] LEMBECK V. NYE. 827 extend those lines to include those natural objects, however convenient they might be to the enjoyment of the land actually conveyed. From the construction we have given to the descrip- tions contained in deeds made by the Fowlers conveying away the several parcels of land that surround the lake, it follows that the deeds made to Delanson De Forrest and Fred B. Chamberlain make the center of the lake one boundary of the tracts conveyed to them respectively, and that the other deeds carry title no further than the edge of the water, and that, therefore, the title to all the bed of the lake, except what was covered by the De Forrest and Fred B. Chamberlain deeds, remained in the Fowlers, and by their deed of August 11, 1876, was conveyed to D. H. Ainsworth and A. W. McClure, and is now owned by the plaintiff in error by virtue of mesne conveyances from Ainsworth and McClure, as set forth in the agreed statement of facts. .It also follows, that as the defendant Andrews claims title under conveyances, which constitute the margin of the lake a boundary, he has no title to any portion of the bed of the lake, nor has the defendant John Nye a title to any portion thereof; for the reason that, although the deed from the Fowlers to Delanson De Forrest, and the mesne conveyances from the latter to J. H. Barrett, conveyed title to the center of the lake, yet the deed from J. H. Barrett to Levi Nye, the lessor of de- fendant John Nye, limits its operation to the edge of the lake by expressly making the margin thereof its boundary on the sid6, or end, of the tract abutting thereon. We, therefore, hold that the plaintiff in error is the owner in fee simple of all that part of the bed of Chippewa lake not covered by the deeds made by the Fowlers to Delanson De Forrest and Fred B. Chamber- lain, and that those two deeds cover such parts thereof as are enclosed by a prolongation to its center, of those lines of the description that approach the sides of the lake. The bed of the lake being private property the public has not right to fish in, and boat upon its waters ; nor have the defendants the right to engage in the business of letting for hire boats and fishmg tackle to such portions of the public as may resort to the lake to boat and fish for their pleasure and recreation. That the latter right is one that can be acquired by prescription may be admitted, but the facts agreed upon fall short of establishing it by that method, even if that contention was maintained on behalf of the defendants in error, which we do not understand 828 LEMBECK V. NYE. [CHAP. VII. is the fact, in view of the arguments presented in the able brief of their counsel. The agreed statement of facts in respect to this question is as follows : "The defendants and their grantors have for more than forty years occupied continuously their respective lands to the water in all its variations^ and have enjoyed the free use of the water in connection with their lands for the purpose of watering cattle, washing sheep, boating and fishing, and without license or con- sent of anyone." This does not show that the enjoyment was adverse or under a claim of right. Both of these elements must exist, according to the current of authority, in connection with the prescribed period of enjoyment to create a right by prescription. Wash- burn on Easements,- ISO; Tootle v. Clifton, 22 Ohio St., 247. However, conceding that these are not necessary elements of prescription, and that the defendants at least acquired a prescrip- tive right to water cattle, wash sheep, boat and fish in the lake, yet it by no means follows that because they may do these things, that they may s\so erect docks extending into the water and embark in the business of keeping boats and fishing tackle to let for hire to pleasure seekers who may resort to the lake to boat and fish for recreation upon its waters. The two rights are clearly distinguishable from each other; and the contention is over the latter right only, in respect to which the agreed state- ment of facts, while it states that the defendants are exercising it, is salient as to the duration of their enjoyment thereof, and therefore does not establish the right by prescription. That a riparian proprietor by virtue of his ownership to the edge of the water of a private stream or lake has access to, and the right to use the water for domestic and agricultural purposes, is not controverted by the plaintiff in error. Such use may fairly be considered as within the presumed intention of the par- ties. That the lake is valuable for the purpose of gathering ice from its frozen surface appears from the agreed statement of facts, and the right of the defendant to gather it was asserted on one side and denied by the other in the course of the argument, but the question is not made by the parties in their pleadings and therefore cannot be noticed in the decree. The agreed statement of facts shows that the defendant, Nye, is insolvent, and that the financial condition of Andrews doubtful ; CHAP. VII.] NEEDHAM V. N. Y. & NEW ENGLAND R. R. 829 but aside from this, and were they both solvent and fully able to respond to any damages that might be recovered against them in actions of trespass, yet, it is apparent from the whole record that such actions would not afford an adequate remedy for the violations of the rights of the plaintiff in error in the past ; and those threatened in the future were, and are, during certain ■ seasons of the year of daily, if not hourly occurrence under the claim of right to do "so; besides the injury resulting from each act would be trifling, and the damages recoverable therefor scarcely equal to a tithe of the expense necessary to prosecute separate actions therefor. It follows from the holding of the court respecting the effect to be given the several descriptions in the conveyances made by the Fowlers and others to the various parcels of land that sur- round the lake, that neither of the defendants has shown a right to erect docks and let to hire for use thereon boats and fishing tackle; it also follows that insofar as these acts affect those por- tions of the lake to which the title of plaintiff does not extend, he is not entitled to relief against them; but is entitled to have so much thereof as his title covers protected from those unwar- ranted violations'. There should be a decree, therefore, finding, that as against the defendants herein, the plaintiff in error is the owner in fee simple and entitled to the exclusive possession of all the lands underlying the waters of Chippewa lake except those parts thereof that, according to the rules hereinbefore laid down, were conveyed by the Fowlers to Delanson De Forrest and Fred B. Chamberlain, and restraining the defendants from letting to hire either boats or fishing tackle, to be used on the water over- lying the lands so found to belong to him. Judgment accordingly. C. NUISANCE. NEEDHAM v. NEW YORK AND NEW ENGLAND RAILROAD. (152 Mass. 61.) [Supreme Judicial Court of Massachusetts, 1890.] Bill in equity, filed in the Superior Court on June 6, 1889, by the inhabitants of the town of Needham, and by its selectmen act- 830 NEEDHAM V. N. Y. & NEW ENGLAND R. R. [CHAP. VII. ing as surveyors of highways, against the New York and New England Railroad Company, containing the following allegations : "First. That there is in said town of Needham a certain public way called Oak Street, extending from Chestnut Street northerly across the location of said railroad company to Maple Street, over which the inhabitants of said town have a right to pass free and unobstructed, as they may do upon other public ways in said town. Second.- That the said railroad corporation, without right, at a point or points on said street, near the location of the said railroad, have erected a fence or fences, barriers, and railings upon and across said public way, by which the inhabitants of said town are wholly obstructed and prevented from passing over and along said street, as they have a right to do, and aS they have heretofore done. Third. That said way is a town way, and the free and unobstructed use of the same is necessary to the convenience of a large number of the inhabitants of the town of Needham and other towns in this state; that said way has been an open and public highway, and extensively used and traveled for more than twenty years along its entire length, and until the same was ob- structed as aforesaid ; that there is no other public way or street in said town which will accommodate the travel which was wont to pass upon and along Oak Street as aforesaid ; and by said ob- structions great inconvenience is caused by the people of said Needham and other said towns, and the same is a public nuisance." Field, J. Although the surveyors of highways may remove "whatever obstructs or encumbers a highway or town way, or hinders, incommodes, or endangers persons traveling thereon," (Pub. Sts. c. 52, § 10,) they have no rights of property in the public ways, and cannot, as surveyors, maintain suits against per- sons who obstruct the ways. When a public way is obstructed so as to constitute a public nuisance, the remedy at law is by indict- ment, and in equity by an information by the Attorney General, or by some other officer representing the Commonwealth. When the interference with a public right of way is of such a nature that a town may be put to expense in repairing the way, or may be liable in damages for injuries received from the obstruction, or when the town owes the fee of the land under the way, and the interference is by digging up or removing a part of the land, there are intimations, if not decisions, in our reports, that suits therefor may be niaintained by the town. See Springfield v. Connecticut River Railroad, 4 Cush. 63 ; New Salem v. Eagle Mill Co., 138 Mass. 8 ; Quincy v. Boston, 148 Mass. 389, 390. CHAP. VII.] BROWN V. PERKINS. 831 What constituted a special damage to a town, whereby it can maintain a suit in this class of cases, has never been very carefully considered. It is, however, enough for this case to say, that the bill alleges no special damage to the inhabitants of Needham, dis- tinct or different from that suffered by the public generally. If the nuisance described is one which requires the interposition of a court of equity, the proceedings must be taken by the Attorney General, or by some officer who represents the commonwealth. Attorney General v. Metropolitan Railroad, 125 Mass. 515 ; At- torney General v. Jamaica Pond Aqueduct, 133 Mass. 361. Decree dismissing the bill affirmed. BROWN V. PERKINS. (12 Gray, 89.) [Supreme Judicial Court of Massachusetts, 1858.] Shaw, C. J. This is an action for breaking and entering the plaintiff's shop, and destroying various articles of property. The defendants, denying the facts, and putting the plaintiff to proof, insists that if it is proved that they were chargeable with the breaking and entering, it was justifiable by law, on the ground that the shop was a place used for the sale of spirituous liquors, and so was declared to be a nuisance; that they had a right to abate a nuisance, and for that purpose to break and enter the shop, as the proof shows that it was done; that the shop contained spirituous liquors kept for sale; that the so keeping them was a nuisance by statute; that they had a right to enter by force and destroy them; that they entered for that purpose and destroyed such articles, and did no more damage than was necessary for that purpose. A great many points were raised in the report, and argued, upon which the court have not passed ; the^ are all passed over now for the purpose of coming to the main points which are deci- sive of the case. The judge wjio sat at the trial stated that he ruled the law and directed the jury as stated in the report, subject to the opinion of the whole court, and when many other points were raised, he stated that it might be more convenient to report the whole case, so far as controverted points were presented, for the consideration 832 BROWN V. PERKINS. [CHAP. VII. of the whole court; and this, it was understood, was assented to by counsel. Passing over- all questions as to the plaintiff!s case, the coming to the justification set forth in the answer, the court are of opinion, after argument, that the ruling and instructions to the jury were not correct in matter of law. 1. The Court are of opinion that spirituous liquors are not, of themselves, a common nuisance, but the act of keeping them for sale by statute creates a nuisance; and the only mode in which they can be lawfully destroyed is the one directed by statute, for the seizure by warrant, bringing them before a magistrate, and giving the owner of the property an opportunity to defend his right to it. Therefore, it is not lawful for any person to destroy them by way of abatement of a common nuisance, and a fortiori not lawful to use force for that purpose. 2. It is not lawful by the common law for any and all persons to abate a common nuisance, merely because it is a common nuis- ance, though the doctrine may have been sometimes stated in terms so general as to give countenance to this supposition. The right and power is never entrusted to individuals in general, without process of law, by wa^ of vindicating the public right, but solely for the relief of a party whose right is obstructed by such nuisance. 3. If such were intended to be made the law by force of the statute, it would be contrary to the provisions of the constitution, which directs that no man's property can be taken from him with- out compensation, except by the judgment of his peers or the law of the land; and no person can be twice punished for the same offence. And it is clear that under the statutes spirituous liquors are property, and entitled to protection as such. The power of abatement of a public or common nuisance does not place the penal law of the Commonwealth in private hands. 4. The true theory of abatement of nuisance is that an indi- vidual citizen may abate a private nuisance injurious to him, when he could also bring an action ; and also, when a common nuisance obstructs his individual right, he may remove it to enable him to enjoy that right, and he cannot be called in question for so doing. As in the case of the obstruction across a highway, and an un- authorized bridge over a navigable watercourse, if he has occasion to use it, he may remove it by way of abatement. But this would not justify strangers, being inhabitants of other parts of the Commonwealth, having no such occasion to use it, to do the same. CHAP. VII.] ST, Helen's smelting co. v. tipping. 833 Some of the earlier cases, perhaps, in laying down the general proposition that private subjects may abate a common nuisance, did not expressly mark this, distinction; but we think, upon the authority of modern cases, where the distinctions are more ac- curately made, and upon principle, this is the true rule of law. Lonsdale v. Nelson, 2 B. & C. 311, 312, and 3 D. & R. 566, 567; Mayor, fyc. of Colchester v. Brooke, 7 Ad. & El. N. R. 376, 377 ; Gray v. Ayres, 7 Dana, 375 ; State v. Paul, 5 R. I. 185. 5. As it is the use of a building, or the keeping of spirituous liquors in it, which in general constitutes the nuisance, the abate- ment consists in putting a stop to such use. 6. The keeping of a building for the sale of intoxicating liquors, if a nuisance at all, is exclusively a common nuisance ; and the fact that the husbands, wives, children or servants of any person do frequent such a place and get intoxicating liquor there, does not make it a special nuisance or injury to their private rights, so as to authorize and justify such persons in breaking into the shop or building where it is thus sold, and destroying the liquor there found, and the vessels in which it may be kept; but it can only be prosecuted as a public or common nuisance in the mode prescribed by law. Upon these grounds, without reference to others, which may be reported in detail hereafter, the court are of opinion that the verdict for the defendants must be set aside and a New trial had. ST. HELEN'S SMELTING CO. v. TIPPING. (11 //. L. C. 642.) [House of Lokd's Case, 1865.] This was an action brought by the plaintiff to recover from the defendants damages for injuries done to his trees and crops, by their works. The defendants are the directors and share- holders of the St. Helen's Copper Smelting Company (Limited). The plaintiff, in 1860, purchased a large portion of the Bold Hall estate, consisting of the manor house and about 1,300 acres of land, within a short distance of which stood the works of the defendants. The declaration alleged that, "the defendants erected, used, and continued to use, certain smelting works upon land near to the said dwelling house and lands of the plaintiff, S3 834 ST. Helen's smelting co. v. tipping. [chap. vii. and caused large quantities of noxious gases, vapours, arid other noxious matter, to issue from the said works, and diffuse them- selves over the land and premises of the plaintiff, whereby the hedges, trees, shrubs, fruit and herbage were greatly injured; the cattle were rendered unhealthy, and the plaintiff was pre- vented from having so beneficial a use of the said land and prem- ises as he would otherwise have enjoyed, and also the revesionary lands and premises were depreciated in value." The defendants pleaded, not guilty. The Lord Chancellor. My Lords, in matters of this de- scription it appears to me that it is a yery desirable thing to mark the difference between an action brought for a nuisance upon the ground that the alleged nuisance produces material injury to the property, and an action brought for a nuisance on the ground that the thing alleged to be a nuisance is productive of sensible personal discomfort. With regard to the latter namely, the personal inconvenience and interference with one's enjoyment, one's quiet, one's personal freedom, anything that discomposes or injuriously effects the senses or the nerves, whether that may or may not be denominated a nuisance, must undoubtedly depend greatly on the circumstances of the place where the thing complained of actually occurs. If a man lives in a town, it is necessary that he should subject himself to the consequences of those operations of trade which may be carried on in the immediate, locality, which are actually necessary for trade and commerce, and also for the enjoyment of property, and for the benefit of the inhabitants of the town and of the public at large. If a man lives in a street where there are nu- merous shops, and a shop is opened next door to him, which is carried on in a fair and reasonable way, he has no ground for complaint, because to himself individually there may ' arise much discomfort from the trade carried on in that shop. But when an occupation is carried on by one person in the neighbor- hood of another, and the result of that trade, or occupation, or business, is a material injury to property, then there unques- tionably arises a very different consideration. I think, my Lords, that in a case of that description, the submission which is required from persons living in society to that amount of discomfort which may be necessary for the legitimate and free exercise of the trade of their neighbors, would not apply to circumstances the immediate result of which is sensible injury to the value of the property. CHAP. VII.] ST. Helen's smelting co. v. tipping. 835 Now, in the present case, it appears that the plaintiff purchased a very valuable estate, which lies within a mile and a half from certain large smelting works. What the occupation of these copper-smelting premises was anterior to the year 1860 does not clearly appear. The plaintiff became the proprietor of an estate of great value in the month of June, 1860. In the month of September, 1860, very extensive smelting operation^ began on the property of the present appellants, in their works at St. Helen's. Of the effect of the vapours exhaling from these works upon the plaintiff's property, and the injury done to his trees and shrubs, there is abundance of evidence in the case. My Lords, the action has been brought upon that, and the jurors have found the existence of the injury; and the only ground upon which your Lordships are asked to set aside that verdict, and to direct a new trial, is this, that the whole neigh- borhood where these copper-smelting works were carried on, is a neighborhood more or less devoted to manufacturing purposes of a similar kind, and therefore it is said, that inasmuch as this copper smelting is carried on in what the appellant contends is a fit place, it may be carried on with impunity, although the result may be the utter destruction, or the very considerable diminution, of the value of the plaintiff's property. My Lords, I apprehend that that is not the meaning of the word "suitable," or the meaning of the word "convenient," which has been used as applicable to the subject. The word "suitable" unquestionably cannot carry with it this consequence, that a trade may be carried on in a particular locality, the consequence of which trade may be injury and destruction to the neighboring property. Of course, my Lords, I except cases where any prescriptive right has been acquired by the lengthened user of the place. On these grounds, therefore, shortly, without dilating further upon them (and they are sufficiently unfolded by the judgment of the learned judges in the court below), I advise your Lordships to affirm the decision of the court below, and to refuse the new trial, and to dismiss the appeal with costs. Lord Cranworth. My Lords, I entirely concur in opinion with my noble and learned friend on the woolsack, and also in the opinion expressed by the learned judges, that this has been considered to be the proper mode of directing a jury, as Mr. Baron Martin said, for at least twenty years ; I believe I should have carried it back rather further. In stating what I always understood the proper question to be, I cannot do better than 836 GAUNT V. FYNNEY. [CHAP. VII. adopt the language of Mr. Justice Mellor. He says, "It must be plain, that persons using a limekiln, or other works which emit noxious vapours, may not do an actionable injury to another, and that any place where such an operation is carried on, so that it does occasion an actionable injury to another, is not, in the meaning of the law, a convenient place." I always under- stood that to be so ; but in truth, as was observed in one of the cases by the learned judges, it is extremely difficult to lay down any actual definition of what constitutes an injury, because it is always a question of compound facts, which must be looked to to see whether or not the mode of carrying on a business did or did not occasion so serious an injury as to interfere with the comfort of life and enjoyment of property. I perfectly well remember, when I had the honor of being one of the Barons of the Court of Exchequer, trying a case in the country of Durham, where there was an action for injury arising from smoke, in the town of Shields. It was proved incontestable that smoke did come, and in some degree interfered with a certain per- son ; but I said, "You must look at it not with a view to the ques- tion whether, abstractedly, that quantity of smoke was a nuisance, but whether it was a nuisance to a person living in the town of Shields" ; because, if it only added in an ifafinitesimal degree to the quantity of smoke, I held that the state of the town rendered it al- together impossible to call that an actionable nuisance. There is nothing of that sort, however, in the present case. It seems to me that the distinction, in matters of fact, was most correctly pointed out by Mr. Justice Mellor, and I do not think he could possibly have stated the law, either abstractedly or with reference to the facts, better than he has done in this case. Judgment of the Exchequer Chamber ofRrming the judgment of the Court of Queen's Bench affirmed; and appeal dismissed with costs. GAUNT V. FYNNEY. (L. R. 8 Ch. A. 8.) [Court of Appeal in Chancery, 1872.] This was a suit instituted by the owners of a house for the pur- pose of obtaining an injunction to restrain the owners of adjoin- ing buildings from causing nuisance by noise, and from trespass- CHAP. VII.} GAUNT V. FYNNEY. 837 ing by encroachment, and from interfering with an ancient light, and for the purpose of obtaining damages. The Master of the Rolls refused to grant an injunction, but made a decree for an inquiry as to damages, and for payment by the defendant of the costs of the suit. Lord Selborne, L. C. The plaintiffs, who are unmarried ladies, living at Leek, in Staffordshire, ask for an injunction (with damages) to restrain an alleged nuisance by noise and vibration, and to restrain alleged trespasses by encroachment on land and obstruction of light. The Master of the Rolls has made a decree, refusing an injunction, but granting an inquiry as to damages, from which decree both parties appeal. Leek is a town in which the manufacture of silk is carried on. The plaintiffs' house faces a street called Derby Street, to the south, and has a garden of some size to the north, with two stables to the east, separate from the house and from each other. East- ward and southward of the nearer of these stables (called the old stable), which is about nineteen yards from the house and garden, is a silk mill belonging to and worked by the defendant. The plaintiffs state that the defendant was formerly in the em- ployment of the plaintiffs' father, who was a mill owner, carrying on the manufacture of silk in part of the buildings now occupied by the defendant. The defendant states that the plaintiffs' father (from whom they derived their title) deliberately placed his house (the same house in which the plaintiffs now live) close to the mill. The mill has, however, been much enlarged by the addition of new buildings since that time. Down to the winter of 1864-5 it was worked by hand power, and a narrow strip of land between the northern part of it and the eastern wall of the plaintiffs' old stable remained unbuilt upon. In that winter the defendant caused this intervening space to be covered over, and erected a small steam engine, of about four horse power, in the chamber so formed, connecting this iengine by proper gearing with the machinery in the mill, which, from that time forward, .was worked by steam. The plaintiffs made no complaint of any annoyance till the sum- mer of 1870; and they were in the habit of keeping three or more horses or ponies in the old stable, till the end of October in that year. I consider it to be admitted upon the plaintiffs' pleadings, and established by their evidence, that there was no nuisance from noise or vibration, either to the house, or to the garden, or to the 838 GAUNT V. FYNNEY. [CHAP. VII. Stables, prior to the end of May, or the beginning of June, 1870. But the plaintiflfs all^e that; the defendant's mill then began to be worked with such a degree of noise as to become, after that time, a serious nuisance, that they remonstrated and received promises of redress, but that nothing was effectually done to remedy the evil, and that in and after October, 1870, the noise and vibration increased daily, destroying or materially diminishing the comfort, salubrity, and value of their house and garden, and rendering the old stable unsafe and unfit for horses, in conse- quence of which their horses were removed from it at the end of October, or the beginning of November, 1870. The bill was filed on the 28th of November, 1870. The question of trespass has emerged during the progress of the controversy ; but this rests on distinct grounds, and must be separately consid- ered. The case thus made 'is met by the defendant with a general denial of the material facts alleged. He says that no changes have been made in his engine or machinery since January, 1865, except some which were made in 1870, to meet (as far as pes-: sible) the plaintiffs' objections, that the manner of working them has been throughout both- in kind and in degree the same ; that there has been no increase either of noise or vibration; that the state of things of which the plaintiffs now complain is a mere continuation of that which ejtisted without complaint during the five preceding years, and which is admitted not to have then con- stituted a nuisance. In these statements he is supported by the evidence of every witness in the cause who has aiiy knowledge of the interior working of the mill. [His Lordship then read passages from the report (2)]. There may, of course, be such a thing as a legal nuisance from noise in a manufacturing or other populous town, of vvhich the case oi Soltau v. De Held (3) is an example. But a nuisance of this kind is much more difficult to prove than when the injury complained of is the demonstrable effect of a visible or tangible cause, as when waters are fouled by sewage, or when the fumes of mineral acids pass from the chimneys of factories or other works over land or houses, producing delaterious physical changes which science can trace and explain. A nuisance by noise (supposing malice to be out of the question) is emphatically a question of degree. If my neighbor builds, a house against a party wall, next to my own, and I hear through the wall more than is agreeable to me of the sounds from his nursery or his music room, it does CHAP. VII.] GAUNT V. FYNNEY. 839 not follow (even if I am nervously sensitive or in infirm health) that I can bring an action or obtain an injunction. Such things, to offend against the law, must be done in a manner which, beyond fair controversy, ought to be regarded as exceptive and unreason- able. I am far from saying that there may not be a case in which the owner of a house very near a mill in amanufacturing town may be entitled to protection against noises resulting from the in- troduction into the mill of new machinery, or of new modes and processes of working. But in every case of this kind it ought to be clearly made out that the mill owner has exceeded his rights. ■\Vhen there has been no introduction of new machinery, and nothing new in the manner of working — when everything within the mill has gone on without change in the usual and accustomed course of the manufacturer's business — a plaintiff undertaking to prove that at and after a definite time the noise from the mill, admitted to have been previously lawful and harmless, became excessive and noxious, imposes upon himself (to say the least) an arduous task. And how have the plaintiffs acquitted themselves of this bur- den? I see no reason to doubt that they, and their servants and friends, who are witnesses in this case (several of whom have not been cross-examined), do themselves believe that the con- siderable increase of noise, of which they speak, has really taken place, and are persuaded that this noise is a serious nuisance. But it is not impossible that this should be the case, and yet that the witnesses for the defendant (none of whom have been cross- examined) should be believed. Those who compare the noise which they hear today with the noise which they heard months or years ago, are witnesses (within certain limits) to impressions upon the mind rather than to facts. Those who speak of the manner in which the engine and machinery have been worked and the business of the mill carried on, speak of facts, and not of impressions on the mind. Mr. Fry made, in a part of his argument, a happy use of a passage in a recent work upon mental science (1), which (treating of the influence of the mind upon the sense of hearing) says "that the thought uppermost in the mind, the predominant idea or expectation, makes a real sensation from without, assume a different character." Every one must have had some experience of the truth of this state- ment ; a nervous, or anxious, or prepossessed listener hears sounds which would otherwise have passed unnoticed, and magnifies and 840 GAUNT V. FYNNEY. [CHAP. VII. exaggerates into some new significance, originating within him- self, sounds which at other times would have been passively heard and not regarded. In the present case, I have no doubt that a real "whirring sound," such as the plaintiffs' witnesses describe, did proceed from the machinery in the mill when at work, at all times, before as well as after the erection of the steam engine in 1864-1865. I have no doubt' that this sound (and also the sound of the steam engine) after its erection, was often, if not always, perceptible in the plaintiffs' garden, and in some of the rooms of their house, especially when the windows were open; I have no doubt that it was louder and more audible at some times, and when the wind was in particular quarters, than at other times and other states of the wind. I have no doubt that it must always have been more or less heard in the old stable, where the heads of the horses, as they stood in their stables, were turned towards the wall (described as a thin wall) on the other side of which the engine was fixed, and where there was a small window, which, but for its being closed by certain boards, would have opened directly into the engine room itself. But all this is admitted to have gone on from January, 1865, to June, 1870, without amounting to a nuis- ance. [His Lordship then stated that in June, 1870, a sudden noise had alarmed the servants of the plaintiffs, and that since that time the plaintiffs have entertained the idea of some danger from the boiler used by the defendant. That from this time forth the engine and its noise were to the plaintiffs a permanent source of irritation and uneasiness. His Lordship then examined the evi- dence on both sides as to the house, and then the evidence as to the effect of the noise and vibration on the horses in the stable. Wit- nesses for the plaintiffs have stated that on one occasion the horses of a visitor when put in a stable suffered tremiors, as to which his Lordship said that this evidence did not make a powerful im- pression on his mind. The case of Cooke v. Forbes (1) showed that it was not every occasional and accidental noise which might frighten a horse in a stable on a particular day that would entitle a plaintiff to an injunction, if the general case of habitual nuis- ance, alleged in the bill, was not satisfactorily proved. His Lord- ship came to the conclusion that no sufficient case was made out and that the bill, so far as it sought relief on the ground of nuis- ance, must be dismissed. As to the trespass, it appeared that part of the defendant's engine house overhung the plinth of one of the plaintiffs' walls. The defendant, however, disputed the right of the plaintiffs to the plinth, and His Lordship would not decide CHAP. VII.] GAUNT V. FYNNEY. 841 this question.] His Lordship then proceeded to say : It is enough, in my opinion, to dispose of this part of the bill, that the defend- ant had been, for nearly six years before the filing of the bill, in undisputed possession in a manner patent to the plaintiffs, though they may have not known the particular arrangement or position of his engine or machinery; and that the title to this small piece of land is in controversy between the parties. A bill for ejectment, by way of mandatory injunction, cannot, -in my opinion, be supported under such circumstances. This part, there- fore, of the bill must also be dismissed. There is left only one more question, that of the obstruction of a window in the plaintiffs' old stable by the boards placed against it, and also by the roof, of the defendant's engine room. As to this I have felt some embarrassment. On the one hand, it seems to me that an unlawful obstruction by the defendant of an an- cient, though not very valuable light has been established. On the other hand, this obstruction took place nearly six years before the bill was filed, under the very eyes of the plaintiffs or their servants, who can never have gone into the stable without per- ceiving it; and the light does not appear to have been, for any practical purpose, missed or wanted since its obstruction. A bill for an injunction in such a case would, I think, before the passing of Lord Cairns' Act, have been dismissed, and the plaintiffs would have been left to their remedy at law. Since that act, if the bill were not dismissed, I would certainly agree with the Master of the Rolls in thinking the case one for an inquiry as to damages, and not for an injunction. But, finding myself obliged to leave the plaintiffs to their legal remedy (if any) as to the other mat- ters complained of, and being of opinion that the obstruction of light is so connected with the other alleged trespass as to make it possible that some injustice might be done if damages as to the light were given here, and the plaintiffs at the same time left in possession of all their legal remedies as to the plinth of their wall and the disputed slip of land, I have come to the conclusion that the bill ought to be altogether dismissed, without prejudice to any action which the plaintiffs may be advised to bring. The costs of the suit will follow the event; the plaintiffs' ap- peal will be dismissed with costs. There will be no costs of the defendant's appeal ; but the deposit will be returned. 842 PLATT BROS. V. WATERBURY. [CHAP. VII. D. WATER RIGHTS. 1. Running Streams. PLATT BROS. v. WATERBURY. • (72 Conn. 531.) [StjPEEME Court of Connecticut, 1900.] Hamersley, J. There is no error in the disposition of the pre- liminary motions. The demurrer to the special defense was properly sustained. Under the charter of the city of Waterbury the board of sewer commissioners is established to execute certain powers vested in the city, and the municipal corporation is responsible for the acts of the commissioners within the scope of their authority. The action complained of in the complaint was the action of the city. West Hartford v. Board of Water Com'rs, 44 Conn. 360, 369. Sustaining the demurrer to the three special defenses subsequently filed is not ground for a -new trial. These defenses contained cer- tain allegations of facts that may be admissible under the issues formed by the denials of the several paragraphs of the com- plaint ; possibly some of these allegations might have been retained in the answer as explained the nature of the denials, but if so, the defendant has not been injured. It has gone to trial on the denial of the facts stated in the complaint, and it has had the benefit of all evidence that it could have introduced under the special defenses. All claims of law arising on these defenses are also fully presented in the record by the action of the court in over- ruling the claims of the defendant as to the legal effect of the facts found, and will be considered in disposing of those claims. The court did not err in overruling the defendant's claims set forth in paragraph 33 of the finding. To understand the precise nature of the questions of law involved, it is convenient to briefly restate the material facts. The plaintiff owned an ancient water- privilege on the Naugatuck river below the defendant city, and CHAP. VII.] PLATT BROS. V. WATERBURY. 843 also the land on the river, and .large manufacturing establish- ments run by the water power; the river drains a section some- what thickly populated and largely used for manufacturing; by this use of the river, reaching back to the early settlement of the Naugatuck valley, its water, prior to 1884, had become pol- luted to a considerable extent, rendering it unfit for primary uses ; about 1884 the defendant constructed, under authority from the legislature, certain main and lateral sewers, by means of which filthy and noxious substances, accumulated by inhabitants of the city, were collected and discharged into the river in such quanti- ties that the water was inadequate to dilute such sewage, and the same was carried to the premises of the plaintiflf, producing the injuries complained of; before the construction of the sewer the pollution of the river was not of such a nature as to produce such injuries. The defendant claimed that its use of the river is a reasonable use, and is justified by the fact that the water of the river has - been, for an indefinite period, given up to secondary -uses. This claim is substantially disposed of by the court as a question of fact. Whether or not the use of a river by a riparian proprie- tor is a reasonable use in view of the rights of other riparian proprietors, depends largely on the circumstances of each case,"and is essentially a question of fact. Keemsey & Wood Mfg. Co. v. Union Mfg. Co., 39 Conn. 576, 581. The inference of the trial cburt from the special facts found, that the city's use of the river is an unreasonable one, is the only inference that can legally be drawn from those facts. The use of a stream for drainage may, under some circumstances, be reasonable, although the water is thereby rendered unfit for its primary use; but the concentration of the filth accumulated by one proprietor, whether an individual or a municipal corporation, and its discharge into the river in such quantities that it is necessarily carried to the premises of an- other, where it produces a nuisance, dangerous to his health, and destructive of the value of his property, must be unreasonable. Morgan v. Danbury, 67 Conn. 484, 493. If the defendant has, as claimed, a prescriptive right to pollute the river in the manner used prior to 1884, that right does not justify it in further pol- luting the river by an additional and different use; and the de- fendant cannot acquire, by any prescription, a right to maintain a nuisance like that described in the finding. Nolan v. New Brit-, ain, 69 Conn. 668, 683. Its defense, therefore, must rest wholly on legislative authority. 844 PLATT BROS. V. WATERBURY. [CHAP. VII. The main contention of the defendant may be stated in this way: The use of the sewers, under authority of the legislature, in the manner described, is a public governmental use; the in- juries to the plaintiffs result from this governmMital use, and are not direct, but merely consequential; the victim of consequential injuries resulting from a governmental use is entitled to no remedy for consequential injuries resulting from the use of said sewers ; ergo the plaintiff has no remedy, and its damage is damnus absque injuria. The premises essential to this conclusion are untrue. A govern- mental use may include any act which the state may lawfully per- form or authorize. There are, however, governmental acts to which certain immunities attach; and it is with this restricted meaning that the phrase is used by the defendant. In this sense a governmental act is one done in pursuance of some duty imposed by the state on a person, individual or corporate, which duty is one pertaining to the administration of government, and is im- posed as an absolute obligation on a person who receives no profit or advantage, peculiar .to himself, from its execution. It is the state, exercising its governmental powfer through an agent, who in this matter is the agent of the state, and nothing more. It is to be distinguished from a large class of governmental acts which the state, by way of grant or special privilege, authorizes persons to perform in part for their personal benefit. The prin- cipal immunities belonging to a governmental act, in this re- stricted sense, are: 1. Freedom from personal responsibility for the consequences of the act done. So long as a lawful mandate of the state is faithfully executed, the agent acting within the scope of that authority enjoys the exemption from suit which be- longs to the state. 2. Freedom from personal responsibility for the negligence of his servants. The rule of respondeat superior does not apply, because the agent of the state is not the superior ; the real superior is the state itself. The defendant claims these immunities. It may be doubted whether the use of sewers, under the charter of the defendant, for the collection and disposition of refuse belonging to its citi- zens, is a governrnental act within the definition given. The charter authorized the construction of sewers for that purpose, but no absolute duty was imposed upon the city ; action in pursu- ance of the authority was at its option, and could not have been enforced by any process of law without further legislation. While sewers or drains for the disposition of surface waters, collecting CHAP. VII.] PLATT BROS. V. WATERBURY. 845 in highways, may be considered as mere adjuncts of a highway, partaking of its nature as a governmental use {Cone v. Hartford, 28 Conn. 363, i72), it is different with sewers for the disposition of refuse and filth accumulated on private property. The dispo- sition of such stuff is, in part, for the benefit of the property- holder. The city represents, in such respects, the interests of its inhabitants, and is granted certain special powers, in part for the promotion of their interests. Branson v. Wallingford, 54 Conn. 573, 519. It is well settled that there is a clear distinction be- tween those governmental duties imposed upon a city as a mere agent of government, and those governmental powers granted as a privilege primarily for the personal benefit of its inhabitants. But the tests for the demarcation of the two classes of power are not so well settled. When the terms of the statute are clear they furnish the most reliable test ; and some weight, perhaps, may be given to the nature of the power as commonly regarded (Jewett v. New Haven, 38 Conn. 368, 377, 379, 387, 389; Jones v. New. Haven, 34 id. 1, 11, 13, 14), care being taken not to clothe an individual with the immunity of the state beyond the necessity of his agency. The distinction must always be, in some cases, a difficult one to draw. We think it evident that the mere granting authority to a city to construct, for the convenience and benefit of its inhabitants, sewers adapted to carry off their refuse matter to -some neighboring stream, does not necessarily make such use of the sewers a governmental use in the sense indicated. On the other hand, it is also evident that the legislature may impose the duty of constructing sewers in such manner as to make the performance of that duty strictly a governmental act. But if, for the purpose of this case, we concede the defendant's claim that the use is a governmental use, it is, nevertheless, liable to the plaintiff. The injury described by the complaint is not a mere consequential damage, like that resulting wholly from the lawful use of one's own property, or the lawful exercise of governmental power; it is a direct appropriation of well recog- nized property rights within the guaranty of the constitution, — "The property of no person shall be taken for public use without just compensation therefor"— (A^'o/aM v. New Britain, supra, p. 681), and so the defendant's claim that its charter does not authorize the condemnation of the plaintiff's property rights, is immaterial. Upon a careful examination of the charter, as enacted in 1871 (7 Special Acts, 206), and amended in 1881 (9 id. 233 et seq., 237), in 1883 (9 id. 839), and in 1884 (9 id. 846 PLATT BROS. V. WATERBURY. [CHAP. VII. 954); and applying the rule which requires a law to be so con- strued, if reasonably possible, as to give it validity, we think the city is authorized to make compensation by agreement, or, after appraised, for any private property taken for the purpose of the maintenance and use of the sewers authorized. But if it were otherwise, the defendant would not be benefited. Its whole defense of acting under lawful state authority would then fail, and the mere finding of the facts alleged in the complaint would clearly support the judgment. The defendant's brief presents its claim in a form somewhat different from that stated in the finding, and certainly novel in this state. It is substantially this: 1. A riparian city has a right to use the river for surface drainage, and such surface drainage necessarily pollutes the water to some extent, increasing with the growth of the city. 2. The use of these legitimate drains to carry off the noxious refuse accumulated by its inhabitants, be- comes in time an absolute necessity. 3. The right of surface drainage is thereby enlarged so as to include the right to dis- charge into the river, by. means of these drains, such noxious refuse. Therefore, the necessities of municipal growth give to the city a right to convey these noxious substances to the property of down-stream proprietors, and so to appropriate that property for public use without compensation. It is unnecessary now to discuss the limitations , to the right of surface drainage, for the second and third propositions are clearly wrong. The right to pour into the river surface drainage does not include the right to mix with that drainage noxious sub- stances in such quantities that the river cannot dilute them nor safely carry them off without injury to the property of others. The latter act is, in- effect, an appropriation of the bed of the river as an open sewer, and the proposition that it may became lawful by reason of necessity is inconsistent with undoubted ax- ioms of jurisprudence. The appropriation of the river to carry such substances to the property of another, is an invasion of his right of property. When done for a private purpose it is an unjustifiable wrong. When done for a public purpose it may became justifiable, but only upon payment. of-compensation for the property thus taken. Public necessity may justify the taking, but cannot justify the taking without compensation. It may be necessary for a city to thus mix with its drainage such substances, but it is not neces- .sary to pour such mixture into the river, without purification ; CHAP. VII.] PLATT BROS. V. WATERBURY. 847 indeed, the purification is coming to be recognized as a necessity. But, however great the necessity may be, it can have no effect on the right to compensation for property taken. The mandate of the constitution is intended to express a universally accepted prin- ciple of justice, and should receive a construction in accordance with that principle, broad enough to enable the court to protect every person in the rights of property thus secured by funda- mental law. There are certain apparent, but not real, exceptions to this pro- tection. Emergencies may be such as to justify the taking of property without waiting to provide for compensation; property may be destroyed without compensation in certain cases when used unlawfully, or wh^ it has become a thing of danger. But this is not a case of war or conflagration. The plaintiff has not so used its property as to subject it to the harsh police power of confiscation. The plaintiff has certain rights as a riparian land- owner. The^e rights are property within the meaning of our constitutional guaranty, and an invasion of these rights, such as the defendant has made, is a taking of that property. The legis- lature has no power to authorize such taking except for public use, and then only upon providing for just compensation. Kel- logg V. New Britain, 62 Conn. 232, 239 ; Wadsworth v. Tillotson, 15 id. 366, 373'; Harding v. Stamford Water Co., 41 id. 87, 93 ; Nolan V. New Britain, 69 id. 668, 681 ; Fisk v. Hartford, 70 Conn. 720, 731 ; Seifert v. Brooklyn, 101 N. Y. 136 ; Chapman v. Roch- ester, 110 id. 273, 277. In England the protection of property from appropriation for public use without compensation does not depend on any funda- mental law, but upon inherent justice; and the principle is care- fully recognized in all legislation authorizing an infringement of private rights. So the legislative authority for emptying the sewage of cities into watercourses and rivers, is coupled with the provision that no nuisance is thereby authorized. Such legisla- tion protects private rights in a manner similar to our constitu- tional legislation. The city of Leeds, having obtained an act of parliament for emptying its sewage into the river Aire, claimed that the usual protection was not included in the act, and, there- fore, the city was not responsible for nuisances maintained under an act of parliament, urging the same plea of necessity pressed in this case. James, V. C, held that the act would not bear the construction claimed, and said he would be bound to put any con- struction on the act "which would prevent such a monstrous in- 848 PLATT BROS. V. WATERBURY. [CHAP. VII. justice." This decision was affirmed by the appellate court, Gif- ford, L. J., saying: "In construing the act, one must always con- sider that, if it had a different meaning, it would be against com- mon sense." Attorney General v. Leeds Corporation, L. R. 5 Ch. App. 583, 588, 596. The theory of the defendant that the necessities of a city may not only justify the taking of riparian rights, but the taking without compensation, seems to find support in some Indiana cases. Richmond v. Test, 18 Ind. App. 482 ; Barnard v. Sherley, 135 Ind. 547; Valparaiso v. Hagen, 153 id. 337. We do not find other cases that take this extreme ground. The right to compen- sation cannot be questioned in this state. The defendant claims that the plaintiff is not entitled to equi- table relief, because it contributed to its own injury: (1) by not arranging its dam and canal so as to effectually prevent the ac- cumulation of noxious substances brought down by the river; (2) by using the sewers in the same manner as other inhabitants of the city. The court finds that devices were used by the plaintiff to mitigate the evil, and that "it did not appear from the evidence that any means could reasonably be adopted and preserve the full efficiency of the water power;" and also finds that the plaintiff owned property in Waterbury which, prior to 1884, drained into the Naugatuck river, and that after that date, in compliance, with the city ordinances, the plaintiff connected this property with the sewer. These facts fall far short of proving that the nuisance complained of was due in part to the fault of the plaintiff, so that it does not come into court with clean hands. It appears that some steps have been taken by the legislature looking toward the adoption of a plan of sewage for the whole Naugatuck valley. The present rights of the plaintiff are not contingent on the future action of the legislature; and there is no public policy which forbids the issue of an injunction to pro- tect its rights because of such possible legislative action. It was plainly unnecessary to incorporate in the order of in- junction a provision that it is made subject to the authority of future legislation, or that it should become inoperative if the defendant should hereafter acquire the plaintiff's premises by condemnation. The claim is made that the court abused its discretion in grant- ing an injunction under all the circumstances of the case. "The granting or refusal of an injunction rests .... in the sound discretion of the court, exercised according to the recognized prin- CHAP. VII.] PLATT BROS. V. WATERBURY. 849 ciples of equity." Fisk v. Hartford supra, p. 732. We think the trial court has acted within the Umits of its discretion. The plaintiff cannot initiate proceedings of condemnation, and it is difficult to see how it can obtain adequate remedy except by in- junction. We fail to see how any great public mischief will be .produced by compelling the city, within the time limited, either to make compensation for the property taken, or to provide proper means for the disposition of its sewage. Under the Practice Act the plaintiff was entitled to claim damages for the injury already done, and an injunction against its continuance. There is no error in the rulings upon evidence. The testimony of Mr. Piatt (stated in paragraph 24 of the finding), that his foreman, refused to take charge of the premises because of the stench, was not admissible to prove the fact of the stench, but was admissible to prove the fact that the foreman refused to act on that ground. It was offered for no other purpose. Moreover, the fact that the stench was fully established by direct and proper testimony. The testimony of Franklin G. Newbert (par. 25), that he had refused to work on the plaintiff's premises for a similar reason, was not inadmissible because the refusal was made after the action was brought, although that fact might affect its weight. The court properly refused to admit the evidence referred to in paragraph 26. It was offered for the purpose of proving the construction of the Act of 1881, and fqr that purpose was an irrelevant fact. For similar reasons the evidence referred to in paragraph 27 was properly excluded. j The defendant was not injured by the admission of evidence of a verbal notice given to the sewer cominission (par. 32), as notice to the city was duly proved. The complaint charged that the noxious substances committed to the river by the defendant produced certain deleterious effects upon the premises of the plaintiff; and it was competent for the plaintiff, certainly in the absence of all objection, to show that this effect was accomplished by the current of the river deposit- ing these substances in the plaintiff's pond and canal leading to its manufacturing establishment, and the court did not err in find- ing that fact. There is no error in the judgment of the Superior Court. In this opinion the other judges concurred. U 850 CITY OF SPRINGFIELD V. HARRIS. [CHAP. VII. CITY OF SPRINGFIELD v. HARRIS. - (4 Allen, 494.) [Supreme Judicial Court of Massachusetts, 1862.] Merrick, J. It appears-from the pleadings and from the facts stated in the bill of exceptions, that Garden Brook is a natural stream, running by and over the land of the defendant, and thence through Main Street in the city of Springfield. The plaintiffs claim to be owners in fee of all the land included within the limits of said street, and that they are entitled to have the water flow in said stream at all times without obstruction, in order that they may use it, as they have a right to do, for sewer- age, for extinguishing fires, and for all other purposes essential to the health and safety of the city. The -defendant is the owner and occupant of a mill standing upon said land; and he admits that during the whole period in which the obstruction complained of is alleged to have occurred, he has operated his mill and the works contained in it, used the water of said stream by means of a dam, which for that purpose he has erected and maintained across it. The plaintiffs in their declaration allege that this dam was and is "of a larger magnitude than is adapted to the use and capacity of the stream, and to the quantity of water usually flow- ing therein." And this is the particular grievance of which they complain, and which they set forth as their cause of action against the defendant. The action can be maintained only by the proof of this material allegation; for the defendant had a right to use the water in a reasonable and lawful manner to work and operate, his mill., whatever might be the. effect of such use in reference to any easement to which proprietors of land situate at any point below it might otherwise be entitled. Each proprietor of land through which a natural watercourse flows has a right as owner of such land,- and as inseparably con- nected with and incident to it, to the natural flow of the stream for any hydraulic purpose to which he may think fit to apply it ; and it is a necessary consequence from this principle that such proprietor cannot be held responsible for any injurious conse- CHAP. VII.] CITY OF SPRINGFIELD V. HARRIS. 851 quences which result to others, if the water is used in a reason- able manner, and the quantity used is limited by, and does not exceed, what is reasonably and necessarily required for the opera- tion and propulsion of works of such character and magnitude as are adapted and appropriate to the size and capacity of the stream and the quantity of water usually flowing therein. Thurber v. Martin, 2 Gray, 394; Gould v. Boston Duck Co. 13 Gray, 442; Tourtellot v. Phelps, 4 Gray, 376. The jury having found, under instructions in matter of law which are admitted to have been correct and unobjectionable, that the plaintiffs have failed to establish the material allegations in their declaration relative to the dam erected and ma,intained by* the defendant across the stream, and having also found that the said dam is only of such magnitude as is adapted to the size and capacity of the stream and to the quantity of water usually flow- ing therein, and that the manner in which he used the water was not an unusual or unreasonable use of it, according to the general custom of the country in cases of dams upon similar streams, it is obvious that the plaintiffs were not entitled to recover any damages, and, therefore, that the verdict was properly rendered for the defendant. It is objected that the court erred in ruling that the plaintiffs had not, upon the evidence, shown that they had acquired any prescriptive right to the water in the brook, and in directing the jury for that reason to return a verdict for the defendants. It- would have been more regular to reserve the directions, which were predicated wholly upon questions of law, and to submit to the jury the question of facts in issue, which were specially sub- mitted to them with instructions that if they found the first in the affirmative and the second in the negative, they should, in that case, render a verdict for the defendant. But as" we do not perceive that the plaintiffs were at all prejudiced or subjected to any disadvantage by the course pursued, such irregularity affords no sufficient cause for disturbing the verdict, which was rendered exclusively upon particular questions of facts which were wholly independent of and distinct from the questions of law. And as the finding of the jury upon those particular questions makes it certain that the plaintiffs could in no event maintain their action, it becomes unnecessary to consider whether the ruling of the court in relation to the plaintiffs' alleged title was correct ; for whether they owned the soil, or had acquired any prescriptive right to the use of the water, or were mere riparian proprietors, it is obvious 852 CHATFIELD V. WILSON. [CHAP. VII. that judgment must necessarily, upon the finding of the jury upon those questions of facts, be rendered for the defandant. Exceptions overruled. 2. Subterranean Waters. 'CHATFIELD v. WILSON. (28 Vt. 49.) [Supreme Court of Vermont, 1855.] Bennett, J. This is the first time, within my knowledge, that the question has ever come before our courts, in relation to the rights of adjoining proprietors of lands to water percolating under the surface, through wet and porous ground, and the case may be considered somewhat important in principle, as well as novel, in this state. The court 1)elow, on this point, told the jury, in substance, that the defendant had the right to prevent the escape of water from his own land to the plaintiff's tub, which he had sunk on his own land, and that he might lawfully do all that was necessary to restore the water to its original flow, and that it was not material what his motive was ; and that he had the right, on his own land, to prevent the natural flow or escape of water, in or under ground, from his to the plaintiff's^ land, pro- vided it was done to secure, in a reasonable manner, a supply of. water for himself, his farm, and cattle; but if done solely to injure the plaintiff, and deprive him of water, and not to benefit himself, then he would be liable. This charge is evidently based upon the ground that there were certain correlative rights exist- ing between these parties, in the use of the water percolating in and under the surface of the earth. The rules of law which govern the use of a stream of water, flowing in its natural course over the surface of lands belonging to different proprietors, as well settled, and the correlative rights of the adjoining proprie- tors are clearly defined. Each proprietor of the land has the right to have the stream flow in its natural, course over his land, and to use the same as he pleases for his own purposes, not in- consistent with a similar right in the proprietors of the land above or below him, but no proprietor above can diminish the quantity or injure the quality of the water, which would otherwise natur- ally descend, nor can any proprietor below throw back the water CHAP. VII.] CHATFIELD V. WILSON. 853 upon the proprietor above, without some license or grant. But we think the law governing running streams is not. applicable to underground water, and that no light can be obtained from the law of surface streams; and if it is to be established that there are correlative rights existing, between adjoining proprietors of land, to the use of water percolating the earth, an entire new chapter in the law will be necessary to define what these rights are, and to put them on some tangible and practical ground, that the rules concerning them may be applied to common use. But from the very nature of the case, this seems impracticable. The laws of the existence of water under ground, and of its progress while there, are not uniform, and cannot be known with any degree of certainty, nor can its progress be regulated. It sometimes rises to a great height, and sometimes moves in col- lateral directions, by some secret influence, beyond our compre- hension. The secret, changeable, and uncontrollable character of under- ground water, in its operations, is so diverse and uncertain that we cannot well subject it to the regulations of law, nor build upon it a system of rules, as is done in the case of surface streams. Their nature is defined, and their progress over the surface may be seen and known, and is uniform. They are not in the earth and a part of it, and no secret influence move them, but they assume a distinct character from that of the earth, and become subject to a certain law, — ^the great law of gravitation. There is, then, no difficulty in recognizing a right to the use of water flowing in a stream as private property, and regulating that use by settled principles of law. We think the practical uncer- tainties which must ever attend subterranean waters is reason enough why it should not be attempted to subject them to cer- tain and fixed rules of law, and that it is better to leave them to be enjoyed absolutely by the owner of the land, as one of its natural advantages, and in the eye of the law a part of it, and we think we are warranted in this view by well-considered cases. In the case-of Acton v. Blundell et al., 12 M. & W. 324, it was held that the owner of land, who had made a well in it, and thereby enjoyed the benefit of underground water, had no right of action against an adjoining proprietor, who, in sinking for and getting coal from his own soil, in the usual and in a proper man- ner, caused the well to become dry. A query is added whether it would have made any difference if the well had been enjoyed by the plaintiff for more than twenty years. In the case of Koath V. Driscoll, 20 Conn., the doctrine is fully advanced that 854 - CHATFIELD V. WILSON. [CHAP. VII. no right is gained by a mere continued preoccupancy of water under the surface by any artificial means for a period of fifteen years or more. The court say, "each owner has ah equal and complete right to the use of his land and to the water which is in it;" and they say "the water combined with the earth, or passing through it by per- colation, or by filtration, or chemical attraction, has no distinctive character of ownership from the earth itself, any more than the metallic oxyds, of which the earth is composed," and they further add, "water, whether moving of motionless, in the earth, is not, in the eye of the law, distinct from the earth." If it is true that subterranean water is to be treated as a part of the earth, it must follow that there are no correlative rights in the enjoyment of such water, between adjoining proprietors of land, and both the case in the 12th of M. & W. and 20 Conn, proceed upon that ground. The case of Greenleaf v. Francis, 18 Pick. 117, goes upon the same principle, and it was there held that no action would lie against a man who dug a well on his own land, although he thereby took the water from his neighbor's well, in the absence of all right acquired by grant, or an adverse user. The case is really put upon the ground that "every one has the liberty of doing, on his own ground, whatever he pleases, even though he occasion some damage to his neighbor ;" and the court say, "there is nothing in the case, then at bar, which limited or restrained the owner of the estates severally, from having the absolute do- minion of the soil extending upwards, and below the surface, as far as each pleased." This, in effect, negates the position that there can be, upon common principles, correlative rights in under- ground water. The case of Dickinson v. The Grand Junction Canal Company, 9 Eng. Law and Eq. 520, is not opposed to the viwes taken in the foregoing cases. In that case the water was proved to have been taken from the river, after it formed a part of the stream, not by reasonable use by another riparian proprietor, but by digging a well; and this was treated as a diversion of surface water, and actionable at com- mon law; and, in regard to the abstraction of the water which, never did form part of the river, but had been prevented from doing so by the sinking of the wells, it was held, that the mill owners, being entitled to the benefit of the stream in its natural course, were deprived of part of that benefit, if the natural supply CHAP. VII.] CHATFIELD V. WILSON. 855 of the stream was cut off, and might have their action, whether the water cut of was a part of an underground water course, or percolated through the strata of the earth. In this case the injury complained of was the diminution of water in a surface stream, and the law applicable to surface streams were applied. The cases cited by the plaintiff's counsel, which relate to surface streams can give little or no aid in the question before us. The case of Smith V. Adams, 6 Paige 435, is also a case where the under- ground water, which was cut off by an excavation on the de- fendant's land, supplied a spring, and this spring caused a flow of surface water, and the decision was, that the person who had the right to the use of the water in its natural course, or by a prescriptive right, out^ of its natural course, and was injured by the excavation, might have redress for the injury. Here, too, the person complaining was injured in his rights to the use of flowing water. Such is also the case in Balston v. Benstead, 1 Campbell 463,. and no doubt other cases of a like character may be found in the books. There is no ground to claim that the plaintiff has been injured in his right to the use of water in a surface stream flowing in its natural channel, so far as the case is now before the court, and he can claim no prescriptive right to the water. The tub was sunk by the plaintiff on his own land, in 1852, and as his evidence tended to prove, a foot or more below the channel of the brook, and that, from this tub, the water was taken by artificial means for the use of the plaintiff ; and the case shows that the plaintiff's evidence tended to prove that this tub was supplied with water, which filtrated under ground from the brook, and also from the adjoining land of the defendant; and the case, so far as it is sent up to us, only concerns the right of the defendant to cut off the filtration of the water from his own land to the plaintiff's tub by artificial means, and the consequences, if wantonly done. This, then, is fairly a question, as to the rights of the plaintiff in underground water. Putting this case, then, upon the ground that the water in question, while in the earth of the defendant, though percolating through it, is not distinct from it, in the eye of the law it becomes an important inquiry whether the act of the defendant, in the obstruction of the. underground water upon his own premises, can be made actionable, simply upon the ground that the motive was bad which induced it. The act of the defend- ant in the obstruction of the water, being in itself lawful, could 856 CHATFIELD V. WILSON. [CHAP. VII. not subject the defendant to damages unless, by reason thereof, some right of the plaintiff has been violated. The maxim, "Sic utere tuo, ut alienum non laedas," applies only to cases where the act complained of violates some legal right of the party ; and it lias been' attempted to be shown that this underground water cannot be made the subject of correlative rights. It is said in Comyn's Digest, under the head of Nuisance, that an action on the case does not lie for the reasonable use of any right, though it be to the annoyance of another. This, it may be said, implies that an action would lie if the use of one's right was unreasonable. This, no doubt, is true, under proper limitations, as in cases where there is a right common to both parties, as in the use of a public highway, or of the air ; or where there is a duty to perform, and a correlative right growing out of it, as the repair of a ruinous house standing so near to the house of another, as to endanger it from its fall. In such a case, no doubt, a repair could be compelled ; and, in case of the fall, an action would lie for the special damage. There are also many cases in the books, relating to the relative use of surface streams, where the case has turned upon the question, whether the use was reasonable, and for the party's own convenience or benefit, or wanton and malicious, and done to prejudice the rights of another. In such cases there are correlative rights to the use of the water, and the boundary of the right is a reasonable use of it. But such cases have no an- alogy to the case at law, and it may be laid down as a position not to be controverted, that an act legal in itself, violating no right, cannot be made actionable on the ground of the motive which induced it. Such was the case oi South Royalton Bank v. Suffolk Bank, 27 Vt. 505. If the act is lawful, although it may be preju- dicial, it is damnum absque injuria. On this point the case of Mahan v. Brown, 13 Wend. 261, is a direct authority. There the defendant had built a high fence for the sole purpose of obstructing the lights of his neighbor's house; and it was held, that no action would lie, where the lights were not ancient, and no right had been acquired by grant or user ; and that the motive with which the act was done was immaterial. This case goes upon the ground that the plaintiff was not injured. in a legal right. This is not like the case where the air is contaminated so as to become noxious. There a correlative right is invaded. In the case of Greenleaf v. Francis, 18 Pick. 117, it is true, the court charged the jury that if the defe.idant dug the well where he did, upon his own land for the purpose of injuring the plaintiff, and CHAP. VII.] WHEELER V. CITY OF WORCESTER. 857 not for the purpose of obtaining the "water for his own use, the defendant was liable in that action. In that case, the verdict was for the defendant, and the plaintiff was the exception party. The plaintiff could not complain of that part of the charge; and, in bank, there was no occasion to review that part of it ; and it is no point in the decision, though Judge Putman does remark, in the course of his opinion, that "the rights of the defendant should not be exercised from mere malice as the judge ruled below," but no such point was in judgment. The exceptions came from the plaintiff, and it can only be regarded as an obiter dictum of the judge ; the case found, that the defendant had dug his well in that place on his land, where it was most convenient for him; and we think, as applied to a case like the one then at bar, and the one now before us, the position was unsound, and against principle and authority. Judgment of the County Court reversed, and the cause remanded. 3. Surface Waters. WHEELER V. CITY OF WORCESTER. (10 Allen, 591.) [Supreme Judicial Court of Massachusetts, 1865.] Colt, J. The plaintiff is a riparian proprietor upon Mil] Brook, a natural watercourse flowing through the city of Worcester, and has the right to have it flow through and from his premises in a free and unobstructed channel. He may maintain this action against those parties who interfere with that right, or against any one of them who by his unlawful act contributes substantially to the injury which he suffers, unless the party or parties charged with creating the obstruction can claim the protection of the statutes known as the mill acts, or those other statutes which provide compensation in a particular mode for injuries done by public authority in, the exercise of the right of eminent domain. If the injury is produced by the joint action of several parties, and especially if it is the result of the independent action of several parties contributing thereto, though not in combination or by concert, it is no defense that all are not made defendants ; for when the injury does not arise from privity of contract, but 858 WHEELER V. CITY OF WORCESTER. [CHAP. VII. is a mere misfeasance, misjoinder of defendants cannot be availed of to defeat the action. The suggestion that the damage to the plaintiff is produced by the independent acts and trespasses of .others can be considered only upon the question of damages. The report of the auditors establishes the fact that the plaintiff within six years past has suffered serious damages by water set back upon his premises, which would not have occurred if Mill Brook had remained in condition in which it was in 1846. The causes which have produced the injury are various, numerous, and in their combined action unusually complicated. From 1828 to 1846 the existence of the Blackstone Canal, terminating at or near the plaintiff's premises, furnished a sort of artificial channel, for the brook, which to the advantage of the plaintiff was kept dredged and deepened for the uses of the channel. In that year the channel was discontinued, through the first lock gate below, which sets back water to near the outlet of the plaintiff's drain, was continued by law for mill purposes, and has since been and is now so used. The discontinuing of the canal and the continu- ance of the dam at- the lock gate it is found naturally and inevit- ably caused the filling up of the bed of the channel, so that no -complete or permanent relief can be had to the plaintiff without the removal or reduction of the dam. In 1846, the year of the discontinuance of the canal. Front Street bridge was built by the, defendants across the brook, at a point below the plaintiff's premises, upon a public street of that name ; and such is the size and form of its arch that, in connection with other causes, it now tends in freshets to increase the height of the water above, so as to affect in some degree the height at the outlet of the plaintiff's drain, and increase back water on his premises. in 1849 or 1850 the bridges on Exchange and Bridge Streets were constructed by the Norwich and Worcester Railroad, and are described as direct and efficient causes of the flooding, in con- nection with the encroachments which have from time to time been made upon the stream by buildings, embankments and millsj on both sides, constructed by riparian proprietors and parties other than the city, and by obstructions in and over the stream, placed there by such parties. The reports find that the chief and by far the most efficient cause arises from the acts and neglects of riparian opcupants and parties other than the city, who make the brook a receptacle for all kinds of waste material, so that since the discontinuance of CHAP. VII.] WHEELER V. CITY OF WORCESTER. 859 the canal the channel has become filled with sand, gravel, bricks, stones and rubbish of all kinds, washed or thrown in, making at the outlet of the plaintiff's drain the bed of the stream three and a half feet higher now than the bed of the old canal. During this time, the surface wash from the streets of the city rapidly enlarging their limits, and to some extent the sediment from the underground sewers which it is inferred have been con- structed, by the city since 1846, have contributed to the filling up of the channel. Of these cooperating causes, thus briefly indicated, the case requires us to consider only those which it is alleged the city is responsible for. 1. The surface wash from the street. This is stated to be inci- dental to the growth of the city and the construction of the streets. It finds its way naturally into Mill Brook, which furnishes the only channel for the accumulated surface water of the vicinity. No new watercourse has been diverted into it. It receives no more water than would be collected by the natural surface of the land, but, by the changed uses to which a dense population have appropriated it, the soil of the numerous streets has been more rapidly carried into the stream. To hold the defendants liable to an action from such cause would be to say that the owner of the land must be restricted to such uses of it as will not, by the ordinary action of the elements, cause the soil to wash in and fill to any increased extent the adjacent brooks and streams. The injury which results to. the plaintiff from this cause must be regarded as damnum absque injuria. There is another answer to this claim of the plaintiff. The city, by their proper authorities and agents, are charged with the public duty of constructing 'and maintaining the public streets. They must construct and maintain them in such places and in such manner as the public convenience and necessity require. They must provide for and dispose of the surface water which falls upon them, and, in the discharge of fhis duty, neither the city nor their agents can be proceeded against in an action of torts for damage sustained by a private citizen. In the construction of streets, highways and bridges, it is the right of the public to take all private property necessary, and do all other necessary incidental damage to the individual. The law of the commonwealth provides compensa- tion for such injury, but the remedy must be sought in the manner pointed out by the statutes, and not by action of tort against the city or their agents. If the public work is built so as to cause 860 WHEELER V. CITY OF WORCESTER. [CHAP. VII. unnecessary damage by want of reasonable care and skill in its construction, then the right of eminent domain will not protect the parties by whom the work is done, but they may be liable in tort for such unnecessary injury. The case does not find that the surface wash from the streets was not the necessary and inevitable consequence of their construction, or that the streets were laid out and built without reasonable care and skill. Flagg V. Worcester, 13 Gray, 601 ; Sprague v. Worcester, lb. 193 ; Perry v. Worcester, 6 Gray, 544 ; Parks v. Newbury port, 10 Gray, 28 ; Mellen v. Western Railroad, 4 Gray, 303. 2. The report finds that the deposits from the underground sewers have contributed in some manner to the filling up of the brook, but that the sediment carried by them into it is less in amount and less injurious in kind than would have been carried in from the surface by the same water, if the sewers had not been built ; and further, that these deposits have not been sufficient to exert any appreciable effect on the plaintiff ; and this seems to dispose of this cause of complaint upon two good grounds. 3. The bridges at Exchange and Bridge Streets it appears are so built that their abutments and arches are direct and efficient causes of the plaintiff's injury. They were built by the railroad corporation for the purpose of both railroad and highway cross- ings, and we must presume were built under the authority of the charter and the law of the commonwealth. The city has no power to prevent or to dictate the mode of the erection. This was a matter over which the .county commissioners had exclusive jurisdiction in the last resort. The assent of mayor and aldermen would not render the city responsible. They were not agents of the city for such purposes. Nor would the use of those bridges for public travel to which they were adapted make them struc- tures, for a defect in the original erection of which the city would be responsible. The only party at fault is the railroad corpora- tion. If constructed with reasonable care and skill, the plaintiff's remedy for an injury caused by them would be, as before sug- gested, by application for damages to the county commissioners. If the work was not authorized by the charter or was improperly executed, an action of tort might be sustained against the party in fault. It does not follow necessarily, from the fact that injury to the plaintiff is occasioned by these bridges, that anyone is liable in this form of action. Sts. 1846, c. 271; 1849, c. 159. Gen. Sts. c. 63, §§ 55, 62: Sawyer v. NortMeld, 7 Cush. 490; Gardiner v. Boston & Worcester Railroad, 9 Cush. 1 ; Mellen v. CHAP. VII.] WHEELER V. CITY OF WORCESTER. 861 Western Railroad, 4 Gray, 301 ; Vinal v. Dorchester, 7 Gray, 421 ; Child V. Boston, 4 AH,en, 41. 4. The only remaining obstruction which is charged upon the defendants is the Front Street bridge. This structure was erected by the city authorities for the accommodation of the pubHc travel. They were bound to construct it with reasonable care and skill, providing waterways sufficiently capacious to accommodate the flow of the stream at all seasons of the year, and all times of ordinary high water or freshets. The considerations above stated apply here. If this bridge was properly built, then, though the plaintiff suffers, his remedy is not by an action of this description. But without depending upon this view of the case as respects this bridge, we think, there are not facts enough disclosed in' the report to justify charging the defendants with any part of the damage to the plaintiff caused by defect in its construction. The burden of the proof is upon the plaintiff. He must make out his case. The facts found must be such as to satisfy us reason- ably of the defendant's fault, and that their fault contributed appreciably to the plaintiff's damage. The report finds that if the stream were now in the condition in which it was in 1846, when the bridge was built, the bridge as it stands would probably not sensibly affect the plaintiff's premises ; and that if the bridge were enlarged or removed, the water would still continue to set back upon the plaintiff's premises, by the other causes named. To this the plaintiff answers that the city was bound to provide for such future alterations in the character of the stream as could reasonably be anticipated. As to changes produced by natural causes alone, this may be true. But it cannot be required of the city that they should have built this bridge in anticipation of changes and obstructions produced by the exercise of the char- tered rights of other corporations, or the mere trespass of riparian proprietors unlawfully filling up and encroaching upon the stream. We cannot construe the report as affirmatively showing that this bridge, in connection with natural causes, or others which might reasonably have been anticipated when the bridge was built, and independently of those causes which have arisen since from the acts of others than the city, would have caused any ap- preciable damage to the plaintiff. Lawrence v. Fairhaven, 5 Gray, 110; Rowe v. Granite Bridge, 21 Pick., 348; Sprague v. Worcester, 13 Gray, 193. In the result to which we come, it is not necessary to consider the ground, much relied on by the defendants, that the plaintiff 862 KEATS V. HUGO. [CHAP. VII. contributed to his own injury by excavating his basement and extending his drain after the discontinuance 'of the canal in 1846. Judgment for the defendants. E. INTERFERENCE WITH LIGHT AND AIR. KEATS V. HUGO. (115 Mass. 204.) [Supreme Judicial Court of Massachusetts, 1874.] Gray, C. J. In each of these cases, the counsel have argued with learning and ability the question whether a person who sells a house having windows overlooking land retained by him, thereby deprives himself of the right to build on that land so as to obstruct the passage of light and air to the windows. This question is presented in the simplest and most direct form in the case in Bristol. But as each of the justices who did not sit in that case was present at the argument of the same question in one of the cases in Suffolk, all the justices have taken part in the consultation, and the opinion now announced is the judg- ment of the whole court. The question being of great practical importance to owners of real estate, and having heretofore been the subject of some variety and conflict of judicial opinion, we have thought this a suitable occasion to review the cases in this commonwealth,, and to refer to the principal ones in other states. By the common law of England, as declared by the English courts, a right to have light and air pass to the windows of a house over adjoining land might be presumed from long con- tinuous adverse enjoyment, unexplained, where the house and land belonged to different persons; and was granted by implica- tion, if the owner of both house and land sold the house, retaining the land. In Story v. Odin, 12 Mass. 157, which is the earliest American case, the law was stated in accordance with the English authori- ties. But it is to be observed that no suggestion appears to have been made of any difference between the laws of the two countries in this respect, and that the facts of the case hardly required a decision upon the general question. The building sold to the CHAP. VII.] KEATS V. HUGO. 863 plaintiff hjad not only windows, but a door, in each story, over- looking the vacant land retained by the grantor and afterwards sold to and built tipon by the defendant ; and the tenants of the first building and of the other buildings surrounding the vacant land had been accustomed to use it, with the permission of the owner, as a passageway for the purpose of receiving goods into the buildings, and of depositing empty casks and boxes. The only objections made to the maintenance of the action were, 1st, that the plaintiff had not declared for an ancient and prescriptive right to the windows and doors ; 2d, that the plaintiff purchased the building within twenty years ; 3d, that the defendant purchased his land from the same grantor. Such were the circumstances under which a verdict was obtained for the plaintiff, and a motion for a new trial overruled. The obiter dicta in Thurston V. Hancock, 12 Mass. 220 ; Grant V. Chas, 17 Mass. 443, and United States v. Appleton, 1 Sumner, 492, are based upon the English authorities and the case of Story V. Odin ; and in neither of them was there any adjudication of the question. Thurston v. Hancock, turned upon a question of the right of support. Grant v. Chase was a case of a right of way. United States v. Appleton was an action of trespass by the owner of land against his grantor for swinging a door over the land granted. In the subsequent cases, the question of acquiring a right to light and air over the land of another by presumption or implica- tion has been more fully considered on- principle, and the constant tendency of judicial decision in this and most other states has •been to deny the right. In no judgment of this court since Story V. Odin, has any right of air been upheld, except by express grant or agreement. As early as 1818, in Ingraham v. Hutchinson, 2 Conn. 584, Judge Gould doubted whether the English rule had been adopted in this country ; and pointed out the anomaly of holding that any right could be created by the existence of windows which did not project over or encroach upon the land of the adjoining pro- prietor, or in any way deprive him of the use of his land. In 3 Dane Ab. 55, it is said : "This doctrine is vague and loose, the enjoyment must be adverse. What is adverse enjoyment? An enjoyment claimed as rightful by one party and denied by the other — or by mere silent acquiescence ? What is to be under- stood by the expression unexplained? A., twenty years ago, built his house near the line of B.'s land, and made a window 864 KEATS V. HUGO. [CHAP. VII. looking into it. B. since has pastured, mowed or tilled his land, and had no occasion tQ build on it; not a word has been said, or an act done by either par-ty in regard to this window, a case of every day's practice. Is this a case unexplained? Or has A. adversely enjoyed his window?" In Parker v. Foote, 19 Wend. 309, it was observed that in the case of ways, commons, markets, watercourses and the like, the use or enjoyment, if not rightful, has been an immediate and. continuing injury to the person against whom the presumption is made, his property has been invaded or his beneficial interest in it rendered less valuable, the injury has been of such a charac- ter that he might have immediate redress by action, and therefore long continued acquiescence affords strong presumptive evidence of right. "But in the case of windows overlooking the land of another, the injury, if any, is merely ideal or imaginary. The light and air which they admit are not the subjects of property beyond the moment of actual occupancy; and for overlooking one's privacy no action can be maintained. The party has no remedy but to build on the adjoining land opposite the offensive window." "There is no adverse user, nor indeed any use what- ever of another's property ; and no foundation is laid for indulging any presumption against the rightful owner." "No one has trespassed upon his land, or done him a legal injury of any kind. He has submitted to nothing but the exercise of a lawful right on the part of his neighbor. How then has he forfeited the bene- ficial interest in his property? . He has neglected to incur the expense of building a wall twenty or fifty feet high, as the case may be — not for his own benefit, but for the sole purpose of annoying his neighbors." And it was held that the English doctrine of acquiring a right to light by prescriptions was without foundation in principle, not adapted to the existing state of things in the United States, and could not be applied in the growing, cities and villages of this country without working the most mischievous consequences. Like decisions have been made upon similar reasons in many other states. Pierre v. Fernald, 26 Maine, 436; Napier v. Bul- winkle, 5 Rich. 311; Cherry v. Stein, 11 Md. 1; Haverstick v. Sipe, 33 Penn. State, 368; Hubbard v. Town, 33 Vt. 295; Ward V. Neal, 37 Ala. 500; Mullen v. Strieker, 19 Ohio State, 135, 142. In Atkins v. Chilson, 7 Met. 398, and Fifty Associates v. Tudor, 6 Gray, 255, the objection to sanctioning the English rule as to acquiring a perpetual right of light and air by twenty years' CHAP. VII.] . KEATS V. HUGO. 865 enjoyment were raised, but not passed upon because unnecessary to the decision in either case ; the first, which was a bill in equity by a reversioner for an injunction, being disposed of upon the ground that no irreparable injury was shown; and the second, because it did not appear that the new wall, which was ten feet from the windows, substantially deprived them of light. While the question remained unsettled by judicial decision in this com- monwealth the legislature repeatedly restricted the acquisition of such rights. The St. of 1824, c. 52, provided after the passing of that act no right should by lapse of time accrue to any person to have any privilege of air, light or way over the land of any other person who should have recorded and served a notice of his intention to prevent it. The Revised Statutes extended that provision to easements of every kind; and also provided that "no person shall acquire any right or privilege of way, air or light, nor any other easement, from, in, upon or over the land of an- other, by the adverse use or enjoyment thereof, unless such use shall have been continued uninterrupted for twenty years." Rev. Sts. c. 60, §§ "27, 28. Each of those statutes, while it prevented the acquiring of the rights in question by lapse of time, except as therein mentioned, left the question whether they could be acquired by enjoyment under any circumstances, unaffected by legislation, to be decided by the law as it previously existed. The St. of 1852, c. 144, went further, and, still leaving it to the courts to determine how far rights of light and air had already been acquired, prevented their acquisition by mere enjoyment for the future, by providing that, except by written assent, "no person who has erected any house or other building near the land of any other person, with windows overlooking such land of such other person, shall, by the mere continuance of such windows, acquire any easements of light and air, so as to prevent such other person, and those claiming under him, from erecting any building on such land." See also Gen. Sts. c. 90, §§ 32-35. In Rogers v. Sawin, 10 Gray, 376, it was directly adjudged that the mere open and unobstructed use of a window for more than twenty years before the passage of the St. of 1852, did not entitle the owner of the window, to an easement of light and air ; that the fact that the window had a sill projecting over the neighbor's land did not alter the case, unless the owner 'had exercised some right, other than the mere ordinary use of the window for the admission of light and air, and working some wrong to the neighbor or depriving him of some beneficial right; 65 866 KEATS V. HUGO. [CHAP. VII. and that the common law of England upon this subject was not the common law of Massachusetts, for the reasons already given by the courts of other states, which Mr. Justice Metcalf summed up thus: "1st. That the making of a window in one's building, on his own land, and overlooking the land of his neighbor, is no encroachment on his neighbor's' rights, and therefore cannot be regarded as adverse to him; 2d. That the English doctrine is not applicable to the state of things in this country, and would, if applied, work mischievous consequences in our cities and vil- lages." In Carrig v. Dee, 14 Gray, 583, it was held that the fact that a window was on hinges, swinging outward over the adjoining land, did not constitute such an adverse possessory use of that land, as to make any difference in the principle; because, in the words of Chief Justice Shaw, "it was not such a use as to en- croach visibly or tangibly on the beneficial use and enjoyment of the land, over which such swinging window occasionally turned, or to diminish the owner's enjoyment, and so bring it within the principle that the law presumes that a man will not suffer another to make use of his property to his injury and inconvenience, and therefore presumes, if one man does make such use of another's property without objection on the owner's part, it is because he has a right by some instrument or grant, which is lost or cannot be produced." So in Richardson v. Pond, 15 Gray, 387, (which in its leading facts curiously resembles Story v. Odin,) it was held that the possession and use for more than twenty years of a window over- looking a neighbor's land, with shutters swinging over the land, created rib easement of light and air, and gave no right to main- tain an action for erecting a building on the land, except so far as it interfered with the right of swinging the shutters as inci- dental to a right to use the land for a passageway and for hoisting merchandise into the windows. The steps have thus been traced by which it has come to be established as the law of this commonwealth, that no right of light and air could be obtained by prescription. The cases bearing more directly upon implying a grant of such a right from a conveyance of a house remain to be considered. In Atkins v. Bordman, 20 Pick. 291, and 2 Met. 457, the owner of two houses extending westwardly an equal distance from the street, and standing five feet apart, conveyed the lower one by a deed in which it was agreed that if the grantee should make an CHAP. VII.] KEATS V. HUGO. 867 addition of building westwardly, he should not bring it nearer the other building; and it was held that he was not thereby restricted from raising the height of his own building, although by so doing he interrupted the access of light and air to the win- dows of the grantor's house. in Fijty Associates v. Tudor, 6 Gray, 255, Chief Justice Shaw treated "an easement for light and air, derived from use and enjoyment, or implied grant," as governed, in either alternative, by the same considerations. In Collier v. Pierce, 7 Gray, 18, the owner of two adjoining lots of land, on one of which was a building with a window in the wall close to the dividing line, overlooking the other lot, sold both by auction on the same day, and conveyed them to the respective purchasers, with the privileges and appurtenances thereto belonging, but without expressing, either by the terms of sale or by the deeds, that any specific easement of light or air was granted or reserved to one over the other. It was held, that the purchaser of the lot on which the building stood acquired no right to light and air by implication over the other lot, although the sale and conveyance to him respectively preceded the sale and conveyance of the other lot ; and Chief Justice Shaw distinguished the case from Swansborough v. Coventry, 9 Bing. 305 ; S. C. 2 Mo. & Sc. 362 ; upon the ground in that case, by the word "lights," the right to lights, as they then actually existed, was expressly granted. In Randall v. Sanderson, 111 Mass. 114, a house contained three windows, one in each story, which were the only means of lighting the rooms in which they were placed,, overlooking the land adjoining. The house and land having been owned by one person, some of his heirs conveyed to the others the house "and all rights and privileges thereto belonging;" and on the same day all the heirs conveyed to a stranger the adjoining land, with a covenant against encumbrances. It was held that the grantee of the house took no easement of light and air over the land; and there is no intimation in the opinion that the decision would have been different if the deed of the land had not contained such a covenant, and had been made after the deed of the house. In Paine v. Boston, 4 Allen, 168, which was a petition for the damages for taking part of a lot of land for a street, the petitioner offered evidence that the lot was overlooked by ancient windows in an adjacent house, which the owner thereof claimed the right to maintain, and that the taking of part of the petitioner's lot made 868 KEATS V. HUGO. [CHAP. VII. the right so claimed more injurious to the residue, than it had previously been. But this court, in the judgment delivered by Chief Justice Bigelow, held that the evidence was inadmissible, for a reason that a right to keep the windows open was not shown, "and never could exist except by actual grant." In Brooks V. Reynolds, 106 Mass. 31, and Royce v. Guggen- heim, lb. 201, it was assumed to be the law of Massachusetts, that no right of light and air over adjoining lands could exist but by express grant or covenant. That proposition, though not in the strictest sense necessary to the decision of either of these cases, is yet involved in the course of reasoning by which they were de- cided, and seems to. us to be a logical inference from the previous adjudications of this court. In Brooks v. Reynolds, the question was of the right acquired under a deed which bounded the premises by a passageway, ex- pressly agreed to be kept open for light and air, and particularly described. It was ruled in the Superior Court that /the grantee took only the common l.aw right of air and light ; and that ruling was supported in argument here by reference to the case of Fifty Associates v. Tudor, 6 Gray, 255. But this court, referring to -Rogers v. Sawin, Carrig v. Dee, and Richardson v. Pond, above cited, was of opinion that there was no such common law rights in this Commonwealth, and that the terms of the grant itself were therefore the only test of the extent of the right granted; and upon the ground held that the right was not limited to a protection against a substantial deprivation of light and air, and that the grantor could not build over any part of the passageway. In Royce v. Guggenheim, the lessor of a house erected a build- - ing against the windows of fwo rooms therein, making them unfit for use. The tenant- relied on this as an eviction ; and, in an action brought against him for rent, obtained a verdict. It was considered by the court, that if the new building, was erected upon land not included in the lease, and for the purpose of im- proving that land, it was a lawful act, which violated -no obliga- tion of the lessor to the lessee ; and the plaintiff's exceptions were overruled, solely upon the ground that they did not show that the new buildjng was not upon the demised premises. By nature, air and light do not flow in definite channels, but are universally diffused. The supposed necessity for their passage in a particular line or direction to any lot of land is created not by the relative situation of that lot to the surrounding lands, but by the manner in which that lot has been built upon. The actual CHAP. VII. J KEATS V. HUGO. 869 enjoyment of the air and light by the owner of the house is upon his own land only. He makes no tangible or visible use of the adjoining lands, nor indeed any use of them which can be made the subject of an action by their owner, or which in any way inter- feres with the latter's enjoyment of the light and air upon his own lands, or with any use of those lands in their existing condition. In short, the owner of the adjoining lands has submitted to noth- ing which actually encroached upon his rights, and cannot there- fore be presumed to have assented to any such encroachment. The use and enjoyment of the adjoining lands are certainly no more subordinate to those of the house where both are owned by one man, than where the owners are different. The reasons, upon which it has be^ held that no grant of a right to air and light can be implied from any length of continuous enjoyment, are . equally strong against implying a grant of such a right from the mere conveyance of a house with windows overlooking the land of the grantor. To imply the grant of such a right in either case, without express words, would greatly embarrass the improvement of estates, and, by reason of the very indefinite character of the right asserted, promote litigation. The simplest rule, and that best suited to a country like ours, in which changes are continu- ally taking place in the ownership and the use of lands, is that no right of this character can be acquired without express grant of an interest in, or covenant relating to, the lands over which the right is claimed. In accordance with these views, the English doctrine of implied grants of rights of light and air has been wholly rejected in several well considered cases. Palmer v. Wetmore, 2 Sandf. 316; Myers V. Gemmel, lO Barb. 537; Haverstick v. Sipe, 33 Penn. State, 368; Mullen v. Sticker, 10 Ohio State, 135; Morrison v. Mar- quardt, 24 Iowa, 35. And with the single exception of Janes v. Jenkins, 34 Md. 1, all the opinions of American judges, with which the learning and research of counsel have supplied us, in favor of the acquirement of such a right by mere implication from the conveyance of a house, have been either, as in Lampman v. Milks, 21 N. Y. 505, 512, obiter dicta, or, as in Robeson v. Pitten- ger, 1 Green Ch. 57, in those states in which a like right is held to exist by prescription, and therefore of no weight as authority in this Commonwealth. Considering, therefore, that by the preponderance of reason and of authority no grant of any right of light and air over adjoining lands is to be implied from the conveyance of a house, we have 870 FAY V. WHITMAN. [CHAP. VII. only to apply this rule to the facts of the cases pending before us. In the case of Keats v. Hugo, the action, being merely for the the interruption of the access of light, and air to the plaintiff's windows and door by building on the defendants' own land, can- not be maintained, and there must be Judgment for the defendants. So in the case of Eaton v. Evans, the deed made by the ad- ministrator of Sarah Davies, under a license of court to sell for the payment of debts, conveys by metes and bounds a parcel of - land and the house upon it, without any mention of windows, light or air. Assuming (without deciding) that this deed had the same effect as a like conveyance from the owner in fee of , the same house and land, no grant of any right of air and light over ' the adjoining lands can be implied. And the deed by which the defendant derives his title does not admit the validity of any claim of such a right. The boundary of the plaintiffs' lot is shown by the terms of the deeds, and the actual occupation of the parties and of those under whom they claim title, to be the line of the wall of the plaintiffs' house. The fact that the eaves and cornices thereof projected over that line gave them no title to the land, and no right to prevent the defendant, owning that land, from erecting any build- ing upon it, so long as he did not cut off or interfere with the eaves or cornices of their house. Randall v. Sanderson, 111. Mass. 114. The plaintiffs, therefore, fails to show any claim to the interfer- ence of a court of equity, and their bill must be Dismissed zvith costs. F. INTERFERENCE WITH PURE AIR. FAY V. WHITMAN. (100 Mass. 76.) [Supreme Judicial Court of Massachusetts, 1868.] Tort by a land owner in Westborough against the owner of adjoining land for causing and maintaining noxious stenches at intervals from June 5, 1865, to the date of the writ, June 8, 1866. At the trial in the superior court, before Rockwell, J., it ap- CHAP. VII.] FAY V. WHITMAN. 871 peared that on the plaintiff's land there was a dwelling-house which he occupied with his family during the period in question ; and, on the defendant's land, at a distance of one hundred and twenty-five feet from his dwelling house, there was a barn thirty- six feet long, with a pen of the same length adjoining, in which barn the defendant during that period slaughtered from thirty to fifty calves weekly, and kept in the pen constantly from five to twenty hogs; that, "at a certain time during said period the defendant removed from the slaughter-house and the said pig pen such quantity of filth, manure and offensive matter that there arose from the same very offensive smells and odors, which so came into and around the house of the plaintiff that his occupa- tion of the Scune was "thereby rendered disagreeable and uncom- fortable;" and that there arose from the barn and pen, as often as on two or three days of each week in every month, except the winter months, during the whole period, noxious smells, which disturbed the plaintiff in a similar manner in his occupation of his dwelling house. "The plaintiff offered to prove by certain persons who resided at a greater distance from the slaughter house and pig pen than he did, that in their houses, as often as two days in a week during , all but the winter months which occurred during the time covered by the declaration, there came from said slaughter house and pig pen into and around their residences noxious and offensive smells and odors, which were exceedingly disagreeable to them and ren- dered the occupation of their residences by them uncomfortable. The evidence was objected to by the defendant, decided inadmis- sible, and ruled out." The judge instructed the jury as follows: "1. The plaintiff had a right to occupy his house with the power to introduce pure air into it from the atmosphere surrounding it ; and this right may be infringed upon. 2. This right may be affected so slightly that there is no appreciable injury to it ; or it may be affected to a degree that does substantially and appreciably injure a valuable right, viz.: his right of living in his house in ordinary pure air around it and coming into it from external sources. 3. Smells arising from occasional or periodical necessary removals of filth and manure, periodically done, are not actionable, unless the nature of the business is such that such removals are more frequent than in ordinary business. 4. If they arise permanently or frequently, from a business or occupation, they may be actionable upon the principle before stated. 5. The injury must not be fanciful, but 872 FAY V. WHITMAN. [CHAP. VII. must be real ; affecting not persons peculiarly f astidibus, but irri- tating and annoying to persons ordinarily susceptible, to be ac- tionable. 6. If one is thus injured by his neighbor's slaughter house, he may recover the damages which he proves affirmatively upon the whole evidence." The plaintiff objected to rulings 3 and 4 ; and in place of rul- ings 1, 2, 5 and 6 requested the judge to rule "that, if a person keeps his hogs or other noisome animals, or sets up and exercises any offensive trade, so near to the house of .another that the stench therefrom incommodes him, or is offensive or disagreeable to his senses, or renders the enjoyment of his life and property uncomfortable, such injuries are a legal ground of damage; and that pure air is an indispensable requisite to every dwelling, and any infringement on the same by any one, to any degree, is a legal cause of action." He also requested rulings "that the trade of slaughtering animals, though a lawful and necessary trade, is prima facie a nuisance to those dwelling near, and should only be exercised in places, remote from any habitation;" and, "that, if there was no other person than the plaintiff who was in any way affected by the slaughter house and its appendages, that would not be any reason why the plaintiff should be prevented' from recover- ing damages for the injury from said slaughter house." All these requests the judge refused; the jury returned a verdict for the defendant; and the plaintiff alleged exceptiotis. Wells, J. The instructions given to the, jury at the trial were sufficiently favorable to the plaintiff. The third instruction is somewhat obscure and ambiguous ; but, when taken in connection with the others, the meaning of the whole is clear; to wit, that, while no liability results from those occasional or periodical ex- halations that arise from such removals of filth as usually be- comes necessary from the occupation of lands for purposes of business, or even domestic use, yet, when the nature of the busi- ness is such that removals become unusually frequent, or that such exhalations become permanent or frequent, an action will lie for the injury occasioned thereby to another in the enjoyment of his own premises.. The instructions asked for by the plaintiff made no such discrimination. They required an immunity from any degree of impurity of air, which would be incompatible with the assemblage of men into communities. They were, therefore, rightly refused. The substance of all the prayers, except so far as obnoxious to this objection, was embraced in the instructions actually given. CHAP. VII.] CRUMP V. LAMBERT. 873 The testimony, offered by the plaintiff, from other persons re- siding in the vicinity, but at a greater distance from the slaughter house than himself, appears to us to have been improperly ex- cluded. It tended to show the existence, the character and the frequency of the offensive odors that came from the defendant's premises. It was not competent for the plaintiff to show that the property of other persons were injuriously affected by the cause of which he complained. But he might show the existence of the cause, by the testimony of any persons who had observed it, from any position, not peculiarly exposed to its influence. If the proposed testimony was all included in one offer, the fact that a part was incornpetent did not require nor warrant the exclusion of that park which was competent and proper for the consideration of the jury. Such testimony having been excluded by the court upon the objection of the defendant, the Exceptions must be sustained. CRUMP V. LAMBERT. (L. R. 3 Eq. C. 408;) [Cases in Equity, 1867.] Lord Romilly, M. R. The plaintiff in this cause is the occu- - pier and owner of a house in Walsall, in Staffordshire, and com- plains that the defendants have recently erected an iron factory adjoining his grounds, the smoke, noise and effluvia proceeding from which occasion a nuisance which he applies to this court to abat^. The defence is, in substance, two fold; first, one of law, and secondly, one of facts. The defendants say that smoke alone does not entitle a person to come here for an injunction; that a disagreeable smell alone does not entitle a plaintiff to ask for an injunction; that noise alone does not entitle a plaintiff to ask for an injunction. Secondly, they insist that the evidence shows that there are no noxious gases emitted from the defendants' works, and that the evidence on the part of the plaintiff is grossly exag- gerated, and that, having regard to the smoke and noise which always prevail in and about Walsall, the defendants' factory has only made an inappreciable addition to what already existed. With respect to the question of Law, I consider it to be estab- lished by numerous decisions that smoke, unaccompanied with noise or noxious vapor, that noise alone, that offensive vapors 874 CRUMP V. LAMBERT. [CHAP. VII. alone, although not injurious to health, may severally constitute a nuisance to the owner of adjoining or neighboring property; that if they do so, substantial damages may be recovered at law, and that this court, if applied to, will restrain the continuance of the nuisance by injunction in all cases where substantial damages could be recovered by law. Elliotson v. Feetham, 2 Bing. N. C. 134 (E. C. L. R. rel. 29), and Soltau v. De Held, 2 Sim. N. S. 133, are instances relating to noise alone. In the former, dam- ages were recovered in an action at law ; and in the second, an injunction was granted on account of sound alone. What constitutes a nuisance is thus defined by Lord Justice Knight Bruce, when vice-chancellor, in Walter v. Sehfe, 4 de G. & Sm. 322: "Both on principle and authority the important point next for decision may properly, I conceive, be thus put : Ought this inconvenience to be considered in fact as more than fanciful, more than one of mere delicacy or fastidiousness, as an inconvenience materially interfering with the ordinary comfort, physically, of human existence, not merely according to elegant or dainty modes and habits of living, but according to plain and sober and simple notions among the English people? This definition is adopted in Soltau v. De Held by Vice-Chancellor Kindersley, and is, I appre- hend, strictly correct; and it agrees with the principle of all the cases referred to at common law and approved of in the case of St. Helen's Smelting Co. v. Tipping, 11 H. L. C. 642, which set- tled the law as regards another part of this case, to which I shall presently have occasion, when citing Hole v. Barlow, 4 C, B. N. S. 334 (E. C. L. R. vol. 93), to refer< The law on this subject is, I apprehend, the same, whether it be enforced by action at law or by bill in equity. In any case where a plaintiff could obtain, substantial damages, at law, he is entitled to an injunction to re- strain the nuisance in this court. There is, I apprehend, no dis- tinction between any of the cases, whether it be smoke, smell, noise, vapor, or water, or any other gas or fluid. The owner of one tenement cannot cause or permit to pass over, or flow into, his neighbor's tenement any one or more of these things in such a way as materially to interfere with the ordinary comfort of the occu- pier of the neighboring tenement, or so as to injure his property. It is true that, by lapse of time, if the owner of the adjoining tene- ment, which, in case of light or water, is usually called the servient tenement, has not resisted for a period of twenty years, then the owner of the dominant tenement has acquired the right of dis- charging the gases or fluid, or sending smoke or noise from his CHAP. VII.] CRUMP V. LAMBERT. ' 875 tenement over the tenement of his neighbor ; but until that time has elapsed, the owner of the adjoining or neighboring tenements, whether he has or has not previously occupied it, — in other words, whether he comes to the nuisance or the nuisance comes to him, — retains his right to have the air that passes over his head pure and unpolluted, and the soil and produce of it uninjured by the passage of gases, but the deposit of deleterious substances, or by the flow of water. And the doctrine suggested in Hole v. Bar- low, that the spot from whence the nuisance proceeded was a fit, proper, and convenient spot for carrying on the business which produced the nuisance, is no excuse for the act, and cannot be made available as a defence either at law or in equity. The real question iij all the cases is the question of fact, viz., whether the annoyance is such as materially to interfere with the ordinary' comfort of human existence.' This is what is established in St. Helen's Smelting Co. v. Tipping, 1 1 H. L. C. 642, that this is the question which is to be tried in the present case. The evidence shows, as indeed might have been expected from a house situated within the town of Walsall, although at the ex- tremity of the town, that before the defendants erected their pres- ent works a great deal of smoke and some noise occasionally affected the plaintiff's property, and that more or less of smoke is constantly in the neighborhood, arising from factories which have existed for more than twenty years, but after giving full consideration to all the evidence on this subject, I am of opinion that the smoke of the defendant's factory has produced a com- pletely new state of things as regards the plaintiff's house and grounds, and that the smoke and noise materially interfere with the comfort of human existence in" the plaintiff's house and grounds. Indeed, I think the evidence overpowering on this point, and that it is not really touched by the evidence adduced by the defendants. I am of opinion that the smoke and noise, proceeding from the works of the defendants constitute a substantial unisance, and that the plaintiff is entitled to the assistance of this court to have it abated. I do not feel sufficient doubt about the case to induce me to grant an issue. I shall make such an order as the vice- chancellor made in Walter v. Selfe, 4 De G. & Sm. 315, that is, an injunction restraining the defendants, their servants, workmen, and agents from allowing smoke and effluvia to issue from their said factory so as to occasion nuisance, disturbance, and annoy- ance to the plaintiff, as owner or occupier of the tenement in the 876 GILMORE V. DRISCOLL. [CHAP. Vll. bill mentioned; and a similar injunction to restrain the defend- ants, their servants, workmen, and agents from making or causing to be made, noises in the factory, so as to occasion nuisance, dis- turbance, and annoyance to the plaintiff, a,s the owner or occupier of the said messuage in the bill mentioned. I can not make the order more precise; it is always a question of degree ; and if the defendants can continue to carry on their works in such manner as to avoid any substantial issue of smoke or noise, they will not violate the injunction. Whether they do so or not may have to be tried in another proceeding. The cost must follow the event up to and including the hearing. Reserve liberty to apply. - G. INJURY TO LATERAL SUPPORT. GILMORE V. DRISCOLL. (122 Mass. 199.) [Supreme Judicial Court of Massachusetts, 1877.] Gray, C. J. The right of an owner of land to the support of land adjoining is jure naturae, like the right in a flowing stream. Every owner of land is entitled, as against his neighbor, to have the earth stand and the water flow in its natural condition. In the case of running water, the owner of each estate by which it flows has only the right to the use of the water for reasonable purposes, qualified by a like right in every other owner above or below him on the same stream. But in the case of land, which is fixed in its place, each owner has the absolute right to have his land remain in its natural condition, unaffected by any act of his neighbor; and, if the neighbor digs ponds or improves his own land so as to injure this right, may maintain an action against him', without proof of negligence. But this right of property is only in the land in its natural condition, and the damages in such an action are limited to the injury to the land itself, and do not include any injury to the buildings or improvements thereon. While each owner may build upon or improve his own estate at his pleasure, provided he does not infringe upon the natural right of his CHAP. VII.] GILMORE V. DRISCOLL. 877 neighbor, no one can by his own act enlarge the liability of his neighbor for an interference with this natural right. If a man is not content to enjoy his land in its natural condition, but wishes, to build upon or improve it, he must either make an agreement with his neighbor, or dig his foundation so deep, or take such other precautions, as to insure the stability of his buildings or improve- ments, whatever excavation the neighbor may afterwards make upon his own land in the exercise of his right. In 2 Rol. Ab. 564, it is stated that in Wild v. Minsterley, in IS Car. 1, it was decided in the Kings Bench after a verdict for the plaintiff, that "if A. seised in fee of copyhold land next adjoining to the land of B., and A. erects a new house upon his copyhold land, and some part of J:he house is erected upon the confines of his land next adjoining to the land of B., and B. afterwards digs his land so near to the foundation of A's house, but no part of A's land, that thereby the foundation of the house and the house itself fall into the pit, yet no action lies by A. against B., because it was A's own fault that he built his house so near the land of B., for he by his act cannot hinder B. for making the best use of his own land that he can. But it seems that a man who has land next adjoining to my land cannot dig his land so near my land that thereby my land shall go into' his pit ; and therefore, if the action had been brought for this, it would lie." In the same court, in 15 Car. 11., Justices Twisdem and Wind- ham said that it had been adjudged that, "if I, being seised of land, lease forty foot thereof to A. to build a house thereon, and other forty foot to B. to build a house, and one of them builds a house, and then the other digs a cellar in his land, where- by the wall of the first house adjoining falls, no action lies for that, because each one may make the best advantage of his dig- ging ;" "but it seemed to them that the law is otherwise, if it was an ancient wall or house that falls by such digging." Palmer v. FlesheeSj 1 Sid. 167. In another report, corresponding statement is, that "it was adjudged that two having ground adjoining, the one built de novo, and the other in his ground dig so near, that the other fell, and no remedy, the house being new." Palmer v. Fles- sier, 1 Keb. 625. The adjudication is referred to in Siderfin as "7 Jac. in Pigott and Surie's case," and in Keble as "7 Car." But Sury v. Pigott, decided in 1 Car. 1, and fully reported in Popham, 166, was upon another point, and is so stated in Keble, ubi supra; and it would seem that the reference intended may have been to the case of Wilde v. Minsterley, above cited. 878 GILMORE V. DRISCOLL. [CHAP. VII. There are indeed two or three early cases, in which actions appear to have been sustained for undermining houses by digging on adjoining land. Slingsby v. Barnard, 14 Jac. 1, and IRol. R. 430; Smith v. Martin, 23 Car. 2, 2 Saund. 400; Barwell v. Ken- sey, 35 Car. 2, 3 Lev. 171: S. C. 1. Mod. Entr. 195, but in Slingsby v. Barnard, and in Smith v. Martin, the objections made were not to the right to maintain the action, but only to par- ticulars in the form of the declaration ; and in Barwell v. Kensey, the declaration, as construed by the majority of the court, alleged not merely digging near the plaintiff's foundation, but digging that foundation itself. In Tenant v. Goldwin, 2 Ld. Rayn. 1089, and 1094, Lord Holt and Justice Powell are reported to have "held that a man cannot build so near another man's house as to throw it down." But the only point adjudged was the same as in Ball v. Nye, 99 Mass. 582, that a man is bound, of- common right, to keep a vault upon his own land in repair, so that the filth shall not flow upon his neighbor's land, "for he whose dirt it is must keep it that it may not trespass." S. C. 1 Salk. 360, 361 : 6 Mod. 311 : 1 Salk. 21 : Holt, 500, and upon a comparison of the various reports it is evident that the digging so near another's wall as to weaken it was not spoken of as given a right of action to the owner of the wall, but as limiting his liability for the escape of filth caused by the new digging. The latest and the most authoritative statement of the law of England upon this point before the American Revolution is that of Chief Baron Cornyns, who, citing Rolle's Abridgement and Sid- erfin's Reports, ubi supra, says that an action upon the case lies for a nuisance, "if a man dig a pit in his land, so near that my land falls into the pit ;" but does not lie, "if a man build a house, and makes cellars upon his soil, whereby a house newly built in an adjoining soil falls down." Com. Dig. Action upon the Case for a. Nuisance, A., C. In Thurston v. Hancock, 12 Mass. 220, which was decided in 1815, and is the leading American case on this subject, plaintiff 1802 bought a parcel of land upon Beacon Hill in Boston, bounded on the west by land of the town of Boston ; and in 1804 built a brick dwelling house thereon, with its rear two feet from this boundary, and its foundation fifteen feet below the ancient surface of the land. The defendants in 1811 took a deed of the adjoin- ing land from the town and began to dig and remove the earth therefrom, and, though notified by the plaintiff that his house CHAP. VII.] GILMORE V. DRISCOLL. 879 was endangered, continued to do so to the depth of forty-five feet, and within six feet of the rear of the plaintiff's house and thereby caused part of the earth on the surface of the plaintiff's land to fall away and slide upon the defendant's land, and rendered the foundation of the plaintiff's house insecure, and the occupation thereof dangerous, so that he was obliged to abandon it. The court, after advisement, and upon a review of the earlier English authorities, held that the plaintiff could recover for the loss of or injury to the soil merely, and not for the damage to the house; and Chief Justice Parker, delivering judgment said: "it is a common principle of the civil and of the common law, that the proprietor of land, unless restrained by covenant or cus- tom, has the entire dominion, not only of the soil, but the space above and below the surface, to any extent he may choose to oc- cupy. The law, founded upon principles of reason and common utility, has admitted a qualification to this dominion, restricting the proprietor so to use his own as not to injure the property or impair any actual existing right of another. Sic utere tuo ut alienum non laedas. "But this subjection of the use of a man's own property to the convenience of his neighbor is- founded upon a supposed pre-existing right in his neighbor to have and enjoy the privilege which by such act is impaired." 12 Mass. 224. "A man, in digging upon his own land,, is to have regard to the posi- tion of his neighbor's land, and the probable consequences to his neighbor, if he digs too near his line ; and if he disturbs the natural state of the soil, he shall answer in damages ; but he is answerable only for the natural and necessary consequences of his act, and not for the value of the house put upon or near the line by his neighbor." "The plaintiff built his house within two feet of the western line of the lot, knowing that the town, or those who should hold under it, had a right to build equally near to the line, or to dig down into the soil for any other lawful purpose. He knew also the shape and nature of the ground, and that it was impossible to dig there without causing excavation. He built at -his peril; for it was not possible for him, merely by building" upon his own ground, to deprive the other party of such use of his as he should deem most advantageous. There was no right acquired by his ten years' occupation, to keep his neighbor at a convenient distance from him." "It is, in fact, damnum absque injurie." 12 Mass. 229. Upon the facts of that case, it was questionable whether the acts of the defendant would not have caused the falling away of the 880 GILMORE V. DRISCOLL. [CHAP. VII. plaintiff's land if no house had been built thereon; and yet the court held the plaintiff not to be entitled to recover any damages for the fall of his house, without regard to the question whether the weight of the house did or did not contribjite to the fall of his soil into the pit digged by the defendant. No claim for like damages was made in this Commonwealth until more than forty years afterwards, when the decision in Thurston v. Hancock was followed and confirmed. Foley v. Wyeth, 2 Allen, 131. In Foley v. Wyeth, the court, after stating that the right of support from adjoining soil fot: land in its natural state stands on natural justice, and is essential to the protection and enjoyment of property in the soil, and is a right of property which passes with the soil without any grant for the purpose, said: "it is a necessary consequence from this principle, that for any injury to his soil, resulting from the removal of the natural support to which it is entitled, by means of excavation of an adjoining tract, the owner has a legal remedy in an action at law against the party by whom the work has been done and the mischief thereby oc- casioned. This does not depend upon negligence or unskilfulness, but upon the violation of the right of property which has been invaded and disturbed. This unqualified rule is limited to injur- ies caused to the land itself, and does not afford relief for damages by the same means to artificial structures. For an injury to build- ings, which is unavoidably incident to the depression or slide of the soil on which they stand, caused by the excavation of a pit on an adjoining land, an action can only be maintained when a want of due care or skill or positive negligence, has contributed to produce it." 2 Allen, 133. And it was accordingly adjudged that, if the defendant in that case, by excavating and carrying away earth on her own land, caused the plaintiff's land to fall and sink into the pit which she had dug, she was liable for the injury to the soil of the plaintiff ; but that, in the absence of any proof of negligence in the execution of the work, the jury could not take into consideration, as an element of damage for which compensation could be recovered, the fact that the foundation of the plaintiff's house had been made to crack and settle, although the weight of his house did not contribute to the sliding and crumbling away of the soil. The decisions in Thurston v. Hancock, and Foley v. Wyeth, are not, affected by those in Hartshorn v. Worcester, 113 Mass. Ill, and Marsten v. Cambridge, 114 Mass. 490, which related to claims for injury done in the making of a highway, and was based upon CHAP. VII.] GILMOKE V. DRISCOLL. 881 the terms of the statutes upon that subject, and not upon the rule of the common law governing proprietors of adjoining lands. By the modern authorities in Great Britain, it is clear that a right to the support of a building by adjacent land- can arise' only by grant or prescription. Wyatt v. Harrison, 3 B. & Ad. 871; Partridge v. Scott, 3 M. & W. 220 ; Caledonian Railway v. Sprot, 2 Macq. 449 ; Bonomi v. Backhouse, E. B. & E. 622, and 9 H. L. Cas. 503. In Bonomi v. Backhouse, in which an action was maintained by an owner of land and of an ancient house, for damage occur- ring within six years, from the working of coal mines, two hun- dred and eighty yards from the house, more than six years before the commencement of the action, Mr. Justice Willes, delivering the judgment in the Exchequer Chamber, which is affirmed by the House of Lords, said: "The right to support of land and the right to support of buildings stand upon different footings as to the mode of acquiring them; the former being prima facie a right of property analogous to the flow of a natural river, or of air, though there may be cases in which it would be sustained as matter of grant ; whilst the latter must be founded upon pre- scription or grant, express or implied. But the character of the rights, when acquired, is in each case the same." E., B.,& E. 654, 655. And Lord Wensleydale said: "I think it perfectly clear that the right in this case was not in the nature of an ease- ment, but that the right was to the enjoyment of his own property, and that the obligation was cast upon the owner of the neighbor- ing property not to interrupt that enjoyment." 9 H. L. Cas. 513. The cases of Brown v. Robins, 4 H. & N. 186, Hunt v. Peake, H. R. V. Johns. 705, and Stroyan v. Knowles, 6 H. & N. 454, in which it was held that in an action for causing soil to sink, which ■ would have sunk if there had been no building upon it, the dam- ages recovered might ■ include the injury to the buildings, also are directly opposed to our own cases. Thurston v. Hancock and Foley V. Wyeth, in the latter of which Brown v. Robins was before the court. Upon a question of this kind affecting all the lands in the commonwealth, it would be unjustifiable and mischievous for the court to change a rule of law which has been established and acted upon here for sixty years. Even in England it is held that for digging upon neighboring land, and thereby causing the plaintiff's land to sink and his building to fall* although the jury find that the land would have sunk if there had been no 56 882 GILMORE V. DRISCOLL. [CHAP. VII. building upon it, yet no action will lie if no appreciable damage is proved to the land without the building. Smith v. Thackerah, L. R. I. C. P. 564. The weight of American authorities is in accordance with the decisions of this court. It has generally been considered that for an excavation causing an injury to the soil in its natural state an action would lie ; but that, without proof of a right by grant or prescription in the plaintifif, or of actual negligence on the part of the defendant, no action would lie for an injury to build- ings by excavating ad j oining land not previously built upon. Pan- ton v. Holland, 17 Johns. 92 "Lasala v. Holbrook, 4 Paige, 169 ; Hay v. Cohoes Co. 2 Const. 159, 162 ; McGuire v. Grant, 1 Butcher 356 ; Richart v. Scott, 7 Watts, 460 ; Richardson v. Vermont Cen- tral Railroad, 25 Vt.465; Beard v. Murphy, 37 Vt. 99, 102; Shrieve v. Stokes, 8 B. Mon. 453 ; Charless v. Rankin, 22 Misso. 566. It is difficult to see how the owner of a house can acquire by prescription a right to have it supported by the adjoining land, inasmuch as he does nothing upon, and has no use of, that land, which can be seen or known or interrupted or sued for by the owner thereof, and therefore no assent of the latter can Be pre- sumed to the acquirement of any right in his land by the former. The English cases are founded on an analogy to the doctrine of ancient lights, which is not in force in this country. Hide v. Thornborough, 2 Car. & K. 250, 255; and Stansell v. Jollard, there cited ; Solomon v. Vintners' Co. 4 H. & N. 585, 599, 602 ; Chasemore v. Richards, 7 H. L. Cas. 349, 385, 386 ; Greenleaf v. Francis, 18 Pick. 117, 122; Keats v. Hugo, 115 Mass. 204, 215; Richart v. Scott, 7 Watts, 460, 462 ; Napier v. Bulwinkle, 5 Rich. 311, 324. But this case does not require us to determine that question, because there is no evidence that the structures and improvements upon the plaintiff's land had been there for twenty years. " Nor is it necessary to consider whether negligence on the part of the defendant could enlarge the measure of the liability ; be- cause the case stated does not find that he was negligent, nor set out any facts in which actual negligence can be inferred. The cause of action is that the plaintiff has an absolute right to have her soil stand in its natural condition, and that anyone who injures that right is a wrongdoer independently of any question of negli- gence. Foley V. Wyeth, 2 Allen, 131, 133; Hay v. Cohoes Co. CHAP. VII.J GILMORE V. DRISCOLL. 883 2 Const. 159, 162; 'Richardson v. Vermont Central Railroad, 25 Vt. 465, 471 ; Humphries v. Brogden, 12 Q. B. 739. The fact that the defendant was not the owner of the adjoin- ing land affords him no exemption. It was never considered necessary, in an action ,of this kind, to allege that the defendant owned or occupied the land on which the digging was done that injured the plaintiff's soil. Smith v.. Martin, 2 Saund. 400 ahd note; Nicklin v. Williams, 10 Exch. 259. Even an agent of the owner of the adjoining land would be liable for his own negli- gence and positive wrong; for -his principal could not confer upon him any authority to commit a tort upon the property or the rights of another. Bell v. Josselyn, 3 Gray, 309. Story on Agency, § 311. And upon the case stated the defendant appears not to have been an agent of the owner of the land, but to have removed the soil therefrom for his own benefit, by permission of Gillighan, who had a like agreement with and license from the owner, and it is at least doubtfiil whether the owner of the land could be held responsible for the defendant's acts. Gayford v. Nicholls, 9 Exch. 702 ; Milliard v. Richardson, 3 Gray, 349. The case finds that the defendant ceased his work towards the end of October, and left the bank in such a shape that by the effect of rains and frosts it was rendered insufficient to hold the soil of the plaintiff in its natural condition, began to give way at once, although the plaintiff's soil was not actually disturbed till the month of March following. Necessary .inference is that by the operation of natural and ordinary causes upon the land as it was left by the excavation of the defendant, and which he took no precaution to guard against, part of the soil of the plain- tiff's land slid and fell off; and for the injury so caused to her soil this action may be maintained. But she cannot maintain an action for the injury to her fences and shrubbery, because her natural right and her corresponding remedy are confined to the land itself, and do not include buildings or other improvements thereon. The remaining question is of the measure of damages. The peculiar form of the case stated, in this respect, as might be inferred from its terms, and was admitted at the argument, has been occasioned by incorporating into it the substance of the award of an arbitrator. It is agreed that the "damages occasioned to the plaintiff, by loss of and injury to her soil alone, caused by the acts of the defendant, amount to $95.00." We are of opinion that she is entitled to recover .that sum, and no more. 884 HENDRICKS V. S. M. & I. CO. [CHAP. VII. She is clearly not entitled to recover the cost of putting her land into and maintaining it in its former condition, because that is no test of the amount of the injury. McGuvre v. Grant, 1 Dutcher, 356. She cannot recover the difference in market value, because it does not appear that difference is wholly due to the injury to her natural right in the land; it may depend upon the present shape of the lot, upon the improvement thereon or upon other artificial circumstances which have nothing to do with the natural conditions of the soil. Judgment for the plaintiff for $95. HENDRICKS v. S. M. & I. CO. (58 Cal. 190.) [Supreme Court of California, 1881.] Ross, J. Plaintiff and defendant owfied adjoining mining claims. Which was the prior location d6es not appear. The claims were what are known as "deep diggings," and such as are worked by the hydraulic process. In mining its own ground the defendant washed away the gravel to a point distant, in one place seventy feet and at others from one hundred to one hun- dred and fifty feet from the plaintiff's claim. At these points the bank was deep and the result was that it caved, and in doing so a portion of the surface of the plaintiff's claim gave way and fell on the ground of the defendant. This portion contained a small amount of gold bearing gravel, a part of which the de- fendant washed away, but the value of the gold extracted there- from was much less than the necessary cost of extracting it. Some time after the defendant ceased to work its ground near the plaintiff's line, large portions of the surface of the plaintiff's claim caved and fell upon the adjoining ground of the defendant, where it still remains. AU of the caving was caused by the mining done by the defendant, but it is not claimed that the defendant's work was performed in- a careless or improper manner. The question in the case is, whether the doctrine of lateral support ap- plies to cases like the present. We think not. The very purpose of locating the ground, both on the part of the plaintiff and the defendant was to tear it down and wash it away. Its only value consisted in the gold it contaijied. To apply the doctrine con- tended for by the appellant to ground of this character, would CHAP. VII.] ROGERS V. ELLIOTT. 885 therefore to a great extent defeat the very purpose for which it was located. Defendant would be liable for the amount of gold, taken from the gravel that fell from the plaintiff's claim, but for the fact that its value was less than the necessary cost of extracting it. Maye V. Tappan, 23 Cal. 306; Goller v. Fett, 30 Id. 481. Judgment and order uMrmed. H. NUISANCE BY NOISE. R6GERS v. ELLIOTT. (146 Mow. 349.) [Supreme Judicial Court of Massachusetts, 1888.] Knowlton, J. The defendant was the custodian and author- ized manager of the property of the Roman Catholic Church used for religious worship. The acts for which the plaintiff seeks to hold him responsible were done in the use of this property, and the sole question before us is whether or not that use was unlawful. The plaintiff's case rests upon the proposition that the ringing of the bell was a nuisance. The consideration of this proposition involves an inquiry into what the defendant could properly do in the use of the real estate which he had in charge, and what was the standard by which his rights were to be meas- ured. It appears that the church was built upon a public street in a thickly settled part of the town, and if the ringing of the bell on Sunday had materially affected the health and comfort of all in the vicinity, whether residing or passing there, this use of the property would have been a public nuisance, for which there would have been a remedy by indictment. Individuals suffering from it in their persons or their property could have recovered damages for a private jiuisance. Wesson v. Washburn Iron Co. 13 Allen, 95. In an action of this kind a fundamental question is, by what standard, as against the interests of a neighbor, is one's right to use his real estate to be measured. In densely populated com- munities the use of property in many ways which are legitimate and proper necessarily affects in greater or less degree the prop- 886 ROGERS V. ELLIOTT. [CHAP. VII. erty or persons of others in the vicinity. In such cases the inquiry always is, when rights are called in question, what is reasonable' under the circumstances. If a use of property is objectionable solely on account of the noise which it makes, it is a nuisance, if at all, by reason of its effect upon the health or comfort of those who are within hearing. The right to make a noise for a proper purpose must be measured in reference to the degree of annoyance which others may reasonably be required to submit to. In connection with the importance of the business from which it proceeds, that must be determined by the effect of noise upon people generally, and not upon those, on the one hand, who are peculiarly susceptible to it, or those, on the other, who by long experience have learned to endure it without inconvenience; not upon those whose strong nerves and robust health enable them to endure the greatest disturbances without suffering, nor upon those whose mental or physical condition makes them painfully sensitive to everything about them. That this must be the rule in regard to public nuisances is obvious. It is the rule as well, and for reasons nearly if not quite as satisfactory, in relation to private nuisances. Upon a question whether one can lawfully ring his factory bell, or run his noisy machinery, or whether the noise will be a private nui- sance to the occupant of a house near by, it is necessary to ascer- tain the natural and probable effect of the sound upon ordinary persons in that house, — not how it will affect a particular person who happen^ to be there today, or who may chance to' come tomorrow. Fay v. Whitman, 100 Mass. 76 ; Davis v. Sawyer, 133 Mass. 289. Walter v. Selfe, 4 DeG. & Sm. 315, 323 ; Soltau v. DeHeld, 2 Sim. (N. S.) 133 ; St. Helen's Smelting Co. v. Tipping, 11 H. L. Cas. 642. In Walter -v. Selfe, Vice-Chancellor Knight Bruce, after elab- orating his statement of the rule, concludes as follaws: "They have, I think, established that the- defendant's intended proceeding will, if prosecuted, abridge and diminish seriously and materially the ordinary comfort of existence to the occupier and inmates of the plaintiff's house, whatever their rank of station, whatever their age, or whatever their state of health." It is said by Lord Romilly, Master of the Rolls, in Crump v. Lambert, L. R. 3 Eq. 409, that "the real question in all the cases is the question of fact, viz., whether the annoyance is such as materially to interfere with the ordinary comfort of human existence." CHAP. VII.] ROGERS V. ELLIOTT. 887- In the opinion in Sparhawk v. Union Passenger Railway, 54 Penn. St. 401, these words are used: "It seems to me that the rule expressed in the cases referred to is the only true one in judging of injury from alleged nuisances, viz., such as naturally and necessarily result to all alike who come within their influence." In the case of Westcott v. Middleton, 16 Stew. (N. J.) 478, it appeared that the defendant carried on the business of an under- taker, and the windows of the plaintiff's house looked out upon his yard, where boxes which had been used to preserve the bodies of the, dead were frequently washed, and where other objects were visible and other work was going on which affected the tender sensibilities of the plaintiff and caused him great dis- comfort. Vice-chancellor Bird, in dismissing the bill for an injunction against carrying on the business there, said: "The inquiry inevitably arises, if a decision is rendered in Mr. West- cott's favor because he is so morally or mentally constituted that the particular business complained of is an offence or a nuisance to him, or destructive to his comfort or his enjoyment of his home, how many other cases will arise and claim the benefit of the same principle, however different the facts may be, or whatever may be the mental condition of the party complaining. * * * A wide range has indeed been given to courts of equity in dealing with these matters ; but I find no case where the court has extended aid unless the act complained of was, as I have above said, of a nature to affect all reasonable persons, similarly situated, alike." If one's right to use his property were to depend upon the effect of the use upon a person of peculiar temperament or dis- position, or upon one suffering from an uncommon disease, the standard for measuring it would be so uncertairj and fluctuating as to paralyze industrial enterprises. The owner of a factory containing noisy machinery, with dwelling houses all about it, might find his business lawful as to all but one of the tenants of the houses, and as to that one, who dwelt no nearer than the others, it might be a nuisance. The character of his business^ might change from legal to illegal, or illegal to legal, with every change of tenants of an adjacent estate; or with an arrival or departure of a guest or boarder at a house near by ; or even with the wakefulness or the tranquil repose of an invalid neighbor on a particular night. Legal rights to the use of property cannot be left to such uncertainty. When an act is of such a nature as to extend its influence to those in the vicinity, and its leg-al 888 WALKER V. BREWSTER. [CHAP. VII. quality depends upon the eifect of that influence, it is as impor- tant that the rightfulness of it should be tried by the experience of ordinary people, as it is in determining a question as to negli- gence, that the test should be the common' care of persons of ordinary prudence, without regard to the peculiarities of him whose conduct is on trial. In the case at bar it is not contended that the ringing of the bell for church services in the manner shown by the evidence materially affected the health or comfort of ordinary people in the vicinity, but the plaintiff's claim rests upon the injury done him on account of his 'peculiar condition. However his request should have been tredted by the defendant upon considerations of humanity, we think he should not put himself in a place of expos- ure to noise and demand as of legal right that the bell should not be used. The plaintiff, in his brief, concedes that there was no evidence of express malice on the part of the defendant, but contends that malice was implied in his acts. In the absence of evidence that he acted wantonly or with express malice, this implication could not come from his exercise of his legal rights. How far and under what circumstances malice may be material in cases of this kind, it is unnecessary to consider. Judgment on the verdict. WALKER V. BREWSTER. (L. R. 5 Eq. C. 25.) [Cases in Equity, 1867.] This was a suit for the purpose of restraining the defendant, the lessee of Molineux House and grounds, Wolverhampton, from holding in such grounds certain fetes as advertised, or any other fetes of a similar character, and from permitting the grounds to be used for displays of fireworks, or for public music or dancing, or for any other public entertainment whereby large numbers of idle persons might be drawn together in the imme- diate neighborhood of the plaintiff's premises. The plaintiff was the 'owner in fee simple of a house and grounds called Waterloo House, in the outskirts of Wolverhamp- ton, and divided by a narrow pathway from the grounds of Molineux House, which occupy an area of about four acres. CHAP. VII.] WALKER V. BREWSTER. 889 Molineux House had been occupied for many years, until 1860, as a private residence, and afterwards by a Mr. Tyrer as a school, and in May, 1867, the premises were leased to the defendant, Brewster, the proprietor of a music hall in Wolverhampton, for two years. Brewster entered into possession, and shortly afterwards adver- tised and held in the grounds a monster fete on Whit Monday, the 10th of June. These Whitsun diversions, which were attended by great numbers of persons, were followed by fetes of a similar character every Monday and Friday evening, with music, dancing and fireworks (omitting the fireworks on Fridays). The plain- tiff's complaint was thus stated in his bill: "These fetes also brought together, and still continue to bring together, great crowds of persons, many of whom are of idle and dissolute habits, to the great annoyance of the pkintiff and the inhabitants of his house. The bands of music played for nine or ten hours each Monday and Friday without cessation. Great numbers of boys climb on the walls of the plaintiff's grounds adjoining Molineux House and destroy their privacy. The shoutings of the assembled people are loud and continuous and almost beyond endurance. The reports from the fireworks are frequent and most annoying, and have so frightened the plaintiff's horses in their stable as to cause them to break loose from their fastenings and sustain serious injury. The rocket sticks fall thickly on the roofs of the plaintiff's house and out- buildings and in the garden, breaking glass on the green houses and conservatories, and there is great fear of the buildings on the plaintiff's grounds, especially his stables, being set on fire by the fireworks falling upon them. The whole effect of these fetes is to destroy the peace and comfort of the plaintiff and his fajnily, and to render it impossible for the plaintiff to continue to occupy his said house and premises unless the said fetes be stopped. The said fetes are, in fact, a most grievous nuisance, and if allowed to proceed will destroy the possibility of the plain- tiff's house being used as a gentleman's residence and depreciate the value of his estate from il,000 to £2,000." The bill, which was filed on the 1st of July, was directed spec- ially against three "monster fetes" advertised for the 8th, 9th and 10th of that month during the fair week. On the 4th of July the plaintiff moved for an injunction. The defendant had not then had time to answer plaintiff's affidavits, and as the plaintiff declined to give an undertaking to be answer- 890 WALKER V. BREWSTER. [CHAP. VII. able in damages the question was ordered to stand over until the next seal. On the 1 1th of July, upon an undertaking by the defendant not to let off any fire balloons or ascending fireworks, or any fireworks the sparks from which could fall on plaintiff's buildings, the motion ordered -to stand over until the hearing of the cause, with liberty to apply to expedite the same. Sir W. Page Wood, V. C. : When this case was before me upon the motion for an interlocutory injunction, I was impressed with the defence of acquiescence which was raised against the plaintiff. But when one comes to look into the matter, this de- fence breaks down altogether, as there is no evidence whatever of any single entertainment having been given for hire in these grounds during the last ten years. The only two which were allowed by Mr. Tyrer, the plaintiff's predecessor during the four years immediately preceding the plaintiff's tenancy, were for the benefit of charitable institutions, and the affidavit of Mr. Tyrer showed that even these entertainments were so productive of annoyance that he never allowed any other fete to take place as long as he was the occupant of the property. What, then; is the nuisance complained of? Three things are alleged: First: The noise of a very powerful band of eighteen performers, which performs regularly twice a week, from two or three in the after- noon until eleven at night. The second evil complained of is a serious one, the throwing of rockets, to say nothing of the noise and gjare of the fireworks in the immediate neighborhood of plaintiff's premises, and the risk to his garden and greenhouses from the falling of the rocket sticks. The third nuisance com- plained of is exactly the case of Rex v. Moore, 3 B. & Ad. 184 (E. C. L. R. Vol. 23), which stands upon grounds that are unim- peachable. The plaintiff complains that when these fetes are given great crowds of idle people are drawn together who, being idle, do not pass on, but occupy the road and the plaintiff's wall so as to obtain a view of the fireworks and other entertainments. On this part of the case no serious contradiction is to be found in the evidence. The chief constable of police and two of his offi- cers have been brought forward and state that the entertainments have been conducted in a most orderly and respectable manner, and that admittance has been refused to persons of improper character. The defendant, very much to his credit, seems to have been anxious to prevent anything like immorality, and stationed policemen at the entrance to keep out prostitutes and other im- CHAP. VII.] WALKER V. BREWSTER. . 891 ■proper characters. But the complaint of the plaintiff is' not against the persons who are actually in the grounds, but against those who have been shut out and had admission refused to them. In Rex V. Moore it was expressly stated that the defendant had driven off the disorder ly~ people from his own ground in the same way as the defendant here excludes them from these gardens ; and yet it was held that .the collection of these disorderly people out- side amounted to a nuisance. It is to be observed that the chief constable, in his evidence as to the orderly character of the enter- tainment, does not allude to this main ground of complaint on the part of plaintiff as to the conduct of the crowds collected outside, which is supported by evidence on behalf of the plaintiff as to the annoyance pfoduced by the blocking up of Waterloo Road by a crowd on the fete nights. Everything is, in fact, admit- ted on this head by the defendant's witnesses. The policemen stationed at the entrances say that on one occasion some prosti- tutes had applied for admission, and that on being refused admit- tance they at once retired. Where did they retire to? It is only reasonable to suppose that they retired to the crowd from which they had come — ^that crowd which is complained of, and through which the people have to force their way. According to Rex v. Moore, 3 B. & Ad. 184 (E. C. L. R. Vol. 23), which is in many ways a very instructive case, the thing is plain and clear. The very argument addressed to me by Mr. Kay was there mentioned. It was argued that if the defendant was to be held guilty of a nuisance by the collection of crowds outside who were not admit- ted to the grounds, and over whom he had no control, not a ball or rout could be given in London without rendering the enter- tainers liable for a nuisance. Mr. Joy, during his argument, re- ferred to what was said by Lord EUenborough in Rex v. Cross, 3 Camp. 224, "in allusion to the mention by counsel of the possi- bility of a hundred indictments every time a rout was given by a lady of the west end town." He says Lord EUenborough puts this question : "Is there any doubt that if coaches, on the occasion of a rout, wait an unreasonable length of time in a public street ' and obstruct the transit of his majesty's subjects, the persons who cause and permit such coaches so to wait are guilty of a nui- sance?" By which he appears to have meant, not that the lady herself ought to be indicted, but only such of her guests as blocked up the way by ordering their carriages to wait instead of drawing off and returning when wanted. They, of course, as obstructing the way by their equipages and servants, would be 892 WALKER V. BREWSTER. [CHAP. VII. responsible, and not the person who invited them. And the pres- ent case is more favorable to the defendant, for he did not even invite the persons who committed the nuisance/' It was also ob- served by Mr. Joy, during the same argument: "It does not fol- low that when a collection of idle people commit a nuisance, the attraction which drew them together may not be perfectly inno- cent, otherwise the exhibition of prints in a windbw would render a print seller liable to an indictment wherever the footpath was obstructed by the number of gazers." In answer to this observation it was decided, in the case of Carlisle, the printer, that the exhibition of prints in a shop window in Fleet Street, by causing the collection of a crowd, amounted to a nuisance. The truth isj that common sense must be used with reference to transactions of this kind. If persons use their houses for the enjoyment of life, and one of the ordinary enjoyments of life is supposed to be the occasional entertainment of one's friends at a rout,t it would be very difficult for any one complaining of the noise and inconvenience caused by a rout to obtain an indictment at law; still more so, I apprehend, to persuade this court to inter- fere. At all events, that differs altogether from a case like this, where the defendant makes a business and a profit by giving entertainments; which are carried on so as to induce this crowd of idle people to collect in large numbers to the annoyance of the plaintiff. In this respect the language of Lord Tenterden in Rex v. Moore. 3 B. & Ad. 184 (E. C. L. R. Vol. 23), is exactly applicable to the present case : "The defendant asks us to allow him to make a profit to the annoyance of all his neighbors. * * * If a person collects together a crowd of people to the annoyance of his neighbors, that is a nuisance for which he is answerable." There the nuisance complained of was the trampling of grass and destruction of fences. Here it assumes a much worse form, as persons cannot reach their houses without having to force their way through these crowds. Again, in the same case, Little- dale, J., says : "It has been contended that to render the defend- ant liable, it must be his object to create a nuisance, or else that that must be the necessary and inevitable result of his act. No doubt it was not his object; but I do not agree with the other position, because if it be the probable consequence of his act he is answerable as if it were his actual object. If the experience of mankind must lead any one to expect the result he will be answer- able for it. Mr. Justice Taunton refers to Hawkins' Pleas of the Crown, CHAP. VII.] DICKERSON V. DE LA VERGNE. 893 where it is laid down, "that all common stages for rope dancers, and 'also all common gaming houses, are nuisances in the eye of the law * * * not only because they are great temptations to idleness; but because they are apt to draw together great numbers of disorderly persons, which can not but l)e very inconvenient to the neighborhood." It appears to me, therefore, that a clear case of nuisance is established in the collecting of the crowd alone; and further, that I am not bound to specify the other nuisances to which this gentleman has been subjected. Having regard to the fact of this Court having restrained the ringing of bells {Soltau v. De Held, 2 Sim. N. S. 133), I confess I have a strong opinion that the setting up a powerful brass band, which plays twice a week for several hours in the immediate vicinity of a gentleman's house, is a nuisance which this Court would restrain. I have a still clearer opinion that the noise of fireworks, as contrasted with the noise of the tolling of a bell, to say nothing of the damage that may be occasioned by falling rocket-sticks, is a serious nuisance. But that the collection of crowds is a nuisance has been fully established ; and in the neigh- borhood of a populous town the letting off fireworks and per- formance of powerful bands will collect together crowds as a necessary and not merely a probable consequence. On this ground, therefore, the plaintiff is. entitled to relief, and there will be a perpetual injunction to restrain the defendant Brewster from continuing to hold, and from permitting to be held, upon the grounds in the bill mentioned as being in his occupation, any public exhibition or other entertainment whereby a nuisance may be occasioned to the annoyance and injury of the plaintiff. I. INFRINGEMENT OF PATENTS. DICKERSON V. DE LA VERGNE. (35 Fed. R. 143.) [Circuit Court of the United States, 1888.] Lacombe, J, This is an application for a preliminary injunc- tion to restrain the manufacture and sale of refrigerating ma- chines, which it is contended infringe several of the claims under 894 DICKERSON V. DE LA VERGNE. [CHAP. VII. letters patent No. 302,-294, granted July 22, 1884, to Julius J. Suckert, and which have passed by mesne conveyances to the plaintiffs. The defendants qualifiedly dispute the validity of the patent, and qualifiedly deny infringement. In other words, if the patent is construed as they insist it should be, they admit its validity, but assert that they do not infringe; if, however, it be construed as plaintiffs insist it should be, then defendants admit that their machine infringe, but assert that the patent is void for want of novelty. The argument on the physics of the case has been adjourned till after examination of the other question, but it has been sufficiently developed to show that on this branch of the case there arises a conflict susceptible of elaborate and extended dis- cussion, and not determined without careful deliberation. By this defense the validity of complainants' patent is questioned with sufficient directness to require them to establish to the satisfaction of the court that there is such a presumption in favor of its validity as will, under the decisions, warrant the issuing of a preliminary injunction. Patents are granted after examination by, and under the allow- ance of, officials whose business it is to critically examine the applications therefor in connection with outstanding patents and the state of the art. The letters patent which evidence the favor- able decision of these officials in that regard are prima facie valid. The experience of the courts, however, with these patent-office decisions seems not to have, been altogether happy, and we find them repeatedly declining to concede that a presumption of valid- ity arises from the uattended letters patent. "Under the uniform ruling of the courts of the United States for more than half a century, if there has been no decision on the patent by a United States court, on the merits, the party is driven to show that his patent went into use^ undisputed, for a sufficient time to raise a prima facie case in his favor." Manufacturing Co. v. White, 1 Fed. Rep. 604. And see White v. Manufacturing Co., 3 Fed. Rep. 161 ; Manufacturing Co. v. Charles Parker Co., 17 Fed. Rep. 240 ; De Ver Warner v. Bassett, 7 Fed. Rep. 468 ; Potter v. Muller, 2 Fish. Pat. Cas. 465 ; Tappan v. Bank Note Co., Id. 195 ; Machine Co. v. Williams, Id. 135 ; North v. Kershaw, 4 Blatchf. 70. Careful search has not disclosed any decision of this circuit repudiating this rule as the guide to be followed upon motions for preliminary injunctions, although in other circuits it is not always adhered to. Manufacturing Co. v. Deering, 20 Fed. Rep. 795; CHAP. VII.] DICKERSON V. DE LA VERGNE. 895 Foster v. Crossin, 23 Fed. Rep. 400. In the last cited case Judge Carpenter refers to two authorities in this circuit as in accord witli his decision, but, upon examination, they will be found not incon- sistent with the rule above quoted. Thus, in Lantern Co. v. Miller, 8 Fed. Rep. 315, Judge Shipman, it is true, granted a preliminary injunction. He held, however, that the plaintiffs must, upon such a motion, establish the infringement beyond reasonable doubt, and that, as ^uch question often depends upon the proper construction of the patent, its claims should ordinarily have been construed by a court of competent jurisdiction, or should have been practically construed by the consent and acquiescence of that part of the public which is cognizant of the extent of the monop- oly. Such construction he found in the case before him in a decision on part of the claims, and in fact that in another suit an elaborate argument in support of the patent so impressed the judge who heard it that he required defendants to file a bond as the condition of refusing the injunction, that suit being sub- sequently settled by the payment of $210,000. "I am satisfied," says Judge Shipman, "that by virtue of all the recited decisions and the circumstances of this case, the question has been so far settled that I ought not to refuse an injunction upon- the ground of non-adjudication." So, too, in Sugar Co. v. Sugar Co., 10 Fed. Rep. 835, Judge Wallace speaks of the rule that a prelim- inary injunction would not be granted unless the right secured by the patent was fortified by evidence of an exclusive or recog- nized enjoyment, or by former adjudications, as "relaxed in more recent practice." Such relaxation, however, he finds only when the validity of the patent is not assailed, and the proof of infringe- ment clear. In the case at bar it cannot be said either that the validity of the patent is not assailed or that proof of infringement is clear, and there has not been a sufficiently long-continued, recognized, and exclusive enjoyment. Inasmuch, therefore, as the whole- some and salutary rule which has for half a century been followed in deciding applications for preliminary injunction in patent cases stands unqualified by reported decisions in this circuit, it will be accepted as controlling of this motion. To sustain their claim plaintiffs must, therefore, show an adjudication in their favor, or its equivalent. There is no such adjudication, but the plaintiffs contend that its equivalent is found in an interference decision, to "which defendants were parties or privies. The letters patent in suit were issued to Suckert, July 22, 1884, upon an application 896 DICKERSON V. DE LA VERGNE. [CHAP. VII. filed December 3, 1883. Subsequently, one Louis Block filed an application for a patent for improvements in refrigerating ma- chines, and an interference was declared and contested in the patent office between himself and Suckert. Block was in the employ of the De La Vergne Company, which paid the expenses of the interference, and was in fact the contesting party. The complainants claim that under these circumstances "every ques- tion contested and necessary to be contested in that interference is, at least so far as a preliminary injunction" is concerned, res ad judicata inter' partes." The question raised by the interfer- ence was whether Suckert or Block was the prior inventor. That question was decided in favor of Suckert, and Block's application for a patent refused. Before the case came on for final hearing, Block moved for the suspension and dissolution of the interfer- ence, upon several grounds. The commissioner held that "the motion would not be sustained. First, because there was not sufficient showing why the motion had not been filed earlier, as contemplated by the rules ; and, second, because the grounds are not such as would justify the approval of the motion." Be- cause by this motion Block sought to question the validity of Suckert's invention, it is now claimed that defendants are estopped from denying such validity on this motion upon any defenses advanced, or within their knowledge at the time the patent office decided in Suckert's favor. It is not understood that the defendants dispute the entire validity of plaintiffs' patent. On the contrary, they admit its validity if it be construed according to their theory, and con- tend that only if it be given the construction plaintiffs put upon it, is it void for want of novelty. Therefore, they insist that there is nothing in their present position at variance with the decision in the interference case. Whether this be so or not need not now be considered, unless it appears that there has been a decision in the interference case such as the court will accept as equivalent to an adjudication in support of the patent. As stated above, 'the courts long ago reached the conclusion that the decisions of the patent office (being in most cases official opinions, formed without the illumination derived from the vigorous encounter of private interests) were ordinarily unsatisfactory foundations upon which to base preliminary injunctions. These are cases, however, in which an application for a patent being in interference with some pending application or unexpired patent, a determination of the question of priority of invention is required by statute (Rev. CHAP. VII.] DICKERSON V. DE LA VERGNE. 897 St. § 4904), and is made after an examination, in which the con- trasting parties have abundant opportunity to offer proof, and argue in support of their respective claims; and where, before final action, either party has (under the rules) the opportunity to lay before the commissioner any evidence he may have touching the novelty and patent ability of the inventor. In some of these cases the courts have, within the past ten years, accepted the official decision of the patent office as sufficient to sustain the presumption of validity, which is essential to the granting of an injunction. The decisions which the- statutes contemplate are determinations of the commissioner as to priority of invention (section 4904), as to novelty, utility, and patentability (section 4893), and are evidenc'ed by the action he takes. Thus, if the interference is between two applicants," his issuing of the patent to one determines all these points in his favor and against the other. If the interference is between a patentee and an applicant, a decision in favor of the applicant determines all these points in his favor ; but a decision against the applicant does not necessarily determine all these points the other way. Thus, although satis- fied that the applicant was in reality the prior inventor, the com- missioner may refuse to issue the patent to him, because, since the first patent was issued, the patent office may have become convinced that the subject matter was not patentable or novel. The statute^ which has given him no power to recall an issued patent, has provided for no official action by which he can pro- nounce it valid or invalid, except that by granting a patent for the same invention to an interfering applicant he decides the invention to be meritorious, but the first patentee not entitled to it. In the case at bar the patent to Suckert was issued before Block's application, and the decision rendered under section 9404 declared that, as between them, Suckert was the prior inventor.- AVhatever may have been the opinion of the patent office after the interference as to the patentability and novelty of the invention, the statute has not provided for its official utterance. As to the Block invention, it having been determined that he had taken it from Suckert, his application was to be denied on that ground. As to the Suckert patent the commissioner was functus ofhcii. A careful examination . of the reported cases which have ac- cepted interference decisions as sufficient to sustain prelirninary injunctions fails to show a single one in which the determination accepted in support of the patent was one which was not evi- denced by the performance of some official act required by the 57 898 DICKERSON V. DE LA VERGNE. [CHAP. VII. Statute: (1) In Penllarge v. Beeston (1877), 14 Blatchf. 352, neither the novelty or patentability of the invention was assailed. (2) In Greenwood v. Bracher (1880), 1 Fed. Rep. 856, the de- fendant had a patent in 1878. Bigelow (plaintiff's assignor), ap- plied January, 1879. Interference was declared, and patent sub- sequently issued to Bigelow. (3) Peck v. Lindsay (1880), 2 Fed. Rep. 688. The report of this case is not very full, but the granting of reissued letters to complainant's assignor seems to have been after interference with defendant's assignor. (4) HolUday v. Pickhardt (1882), 12 Fed. Rep. 147. Th'e extremely meager report of this case affords little opportunity for analysis. Whether the validity of plaintiff's patent was attacked does not appear. Patents were apparently issued both to himself and Caro (defendant's assignor) ; and, as it is stated that upon inter- ference 'the question of priority of invention was decided in favor of Holliday, his patent was apparently granted after interference. (5) Smith v. Halkyard (1883), 16 Fed. Rep. 414. Here inter- ference was declared between two applicants, one of whom raised the point that there had been a prior public use of the machine for two years. The subsequent issuance of the patent was an official determination of that question. ,(6) Shuter v. Davis (1883), 16 Fed. Rep. 564. Application for final decree, and, therefore, hardly applicable. Upon interference between the patentee and defendants, the question of priority was determined in his favor. The defense of want of novelty was held by the court to be undoubtedly open to the defendants, (7) Swift v. Jenks (1884), 19 Fed. Rep. 641. A patent was first issued to' defendant. Subsequently, after interference, and evidence intro- duced by defendant tending to show want of novelty, a patent was issued to complainant. (8) Manufacturing Co. v. Collar and .Cuff Co. (1885), 24 Fed. Rep. 275. In this case interference was between rival claimants before the issue of any patent. (9) Hubel V. Tucker (1885), 24 Fed. Rep. 701, deals only with a pro- ceeding under section 4918, between interfering patents. (10) Machine Co. v. Stevenson (1882), 11 Fed. Rep. 155. A meager report, but, as both parties held patents, and it appeared that there had been an interference, the later one must have been issued after interference. (11) Edward Barr Co. v. Sprinker Co. (1887), 32 Fed. Rep. 79. The only question determined in this case was as to what constituted privity. The patent sued on was issued after interference. An examination of these decisions shows that the court have CHAP. VII.] TOMPKINS V. HALLECK. 899 heretofore been cautious in accepting the decisions of the patent office in interference. Their effect is strictly confined to parties and privies. No case is found in which a preHminary injunction has been granted on the patent office decision of a question raised in interference, where that decision was not deducible as a neces- sary implication from statutory action, and there is no good rea- son for further modifying the wholesome and well-settled rule which requires an adjudication in court, or public acquiescence, as a necessary prerequisite to granting the relief here prayed for. The force of an interference decision is also sometimes supplied by the doctrine of estoppel ; the party who has received a patent, or who has asked for one, being estopped from subsequently claiming that the subject matter thereof was not patentable. In the case at bar, however, the defendant's claim is that the patent is void only when it is given the construction which the plaintiffs contend for. There is not in this anything necessarily inconsistent with an application for a patent to be construed on defendant's theory. The motion for preliminary injunction should be denied. J. COPYRIGHT. TOMPKINS V. HALLECK. (133 Mass. 32.) [Supreme Judicial Court of Massachusetts, 1882.] Devens, J. This is a bill in equity to restrain the defendant from representing at his theatre in Boston a drama called "The World," and for furtTier relief. It appears from the report of the judge who heard the case, that this drama was originally composed in England, where, after being presented, it was sold to one Colville in New York, who caused it to be altered and amended, to suit the presumed taste of an American audience, by one Stevenson. It was successfully represented at Wallack's Theatre in New York, and was' then assigned to the plaintiffs, with the exclusive right to represent the same in the New England States. The drama does not appear ever to have been copyrighted or printed. While repre- 900 TOMPKINS V. HALLECK. [CHAP. VII. sented at Wallack's Theatre, one Byron and one Mora attended the representation, on three or more occasions, with the intent of copying and reproducing the drama as there enacted. Byron committed as much of the play as he could to memory, and, after each performance, dictated it to Mora until the copy was com- pleted. It was not shown that either took any notes or written memoranda in the theatre. Byron subsequently made an agree- ment with the defendant to produce the same; and, against the remonstrance of the plaintiffs, who informed him of their owner- ship, it was advertised and produced by the defendant at his theatre, known as the Alhambra. As produced by the defend- ant it was called "The [World," and is found to be in all sub- . stantial particulars identical with the plaintiffs' drama of the same name. It being found by the judge who heard the cause that the dialogue and incidents of the drama wpre acquired by memory by Byron, who visited Wallack's Theatre sufficiently often for that purpose, that no written or stenographic minutes were made either by him or Mora in the theatre, and that there was no violation of any trust or confidence reposed in them by the plain- tiffs or their assignors, he ruled that no injunction could issue; but, at the request of the plaintiffs, reported the case for the consideration of the full court. If the ruling is sustained, the bill i« to be dismissed; otherwise, an injunction is to issue, and the case to be referred to a master for the assessment of dam- ages. These facts bring the case clearly within the principles de- cided in Keene v. Kimball, 16 Gray, 545 ; and it is frankly admit- ted by the counsel for the plaintiffs that, unless that decision shall be reconsidered and reversed, no injunction can issue ac- cording to the prayer of the bill. The question decided in Keene v. Kimball had never until then been directly determined in any reported case. It had been discussed with great ability by Judge Cadwalader in the Circuit Court of the United States for the Eastern District of Pennsylvania, where a decision of it was not necessary in order to dispose of the case before him. Keene v. Wheatley, 9 Am. Law Reg. 33. Adopting the views there expressed, "it was held in Keene v. Kimball "that the literary proprietor of an unprinted play cannot, after making or sanction- ing its representation before an indiscriminate audience, maintain an objection to any such literary or dramatic republication by 6thers as they may be enabled, either directly or secondarily, to CHAP. VII.] TOMPKINS V. HALLECK. 901 make from its being retained in the memory of any .of the audi- ence." The case of Keene v. Kimball has not since been re- afiSrmed here, nor, so far as we are aware, elsewhere, nor has it been distinctly denied by the decision of any adjudicated case, except that of French v. Conelly, decided by the Superior Court of New York, which is not the final tribunal in that state. 1 N. Y. Weekly Dig. 196. The defendants were there charged with representing an unprinted play, "Around the World in Eighty Days," in violation of the rights of the plaintiff. They sought to maintain a defence upon the ground that they had themselves dramatized the story from Jules Verne's work of the same name. They were unsuccessful in this, and, it having been proved that the cgpy used by them was obtained by the memory of individuals after witnessing its public representation, an injunction was issued restraining the defendants from further representing it. An examination will show various and conflicting opinions ex- pressed by jurists, as well as by text- writers of high respectabil- ity,^ upon the question involved. Keene v. Clarke, 5 Rob. (N. Y.) 38. Palmer v. De Witt, 2 Sweeny, 530; 7 Rob, (N. Y.) 530; 36 How. Pr. 222 ; and 47 N. Y. 532. Crowe v. Aiken, 2 Biss. 208. Shook V. Rankin, 6 Biss. 477. Boucicault v. Fox, 5 Blatchf. C. C. 87. Drone on Copyright, 558-564. In view of this contrariejty of opinion, it is not an unreason- able request on the part of the plaintiffs that the question in- volved should be re-examined, in order that the court may con- sider whether the decision in Keene v. Kimball expresses cor- rectly the rights of parties, and gives to the proprietors of un- published plays the full protection to which they are entitled. The St. of 8 Anne, c. 19, which is the foundation of the English copyright law, while it included plays and dramatic compositions, protected the author in his exclusive right to publish in print, but not in that of public representation of his work. It has since been modified by the St. 3 & 4 Will. IV. c. 15, and subse- quently by that of.5 & 6 Vict. c. 45. The U. S. St. of February 3, 1831, was similar in this respect to the original English law, and, like it, has been so changed by the U. S. St. of August 18, 1856, that protection in the exclusive representation is ndw afforded where the play is published in print. It is perhaps somewhat remarkable that protection in the right of exclusive representation was not afforded by the St. of 8 Anne, c. 19, which is said in D' Almaine v. Boosey, 1 Y. & C. Ex. 288, by 902 TOMPKINS V. HALLECK. [CHAP. VII. Lord Lyndhurst, to have been one of the most laboriously con- sidered acts ever passed by the British Parliament. Although the result of the petitions of the English booksellers, it was sub- mitted to, and carefully examined and passed upon by, commit- tees of which many distinguished literary men were members. When it is remembered that among these were such dramatic writers as Addison and Steele, it would seem that this right would have been carefully guarded. Dramatic compositions differ from other literary productions not intended for oral delivery in this, that they have two dis- tinct values, each worthy of protection; — that which they have as books or publications for the reader, and that which they have by reason of their capacity for scenic representation. They are works, in prose or poetry, in which stories are told or characters represented both by conversation and action. Some are poems cast in a dramatic form, capable of representation upon the scene rather than adapted to it, arid whose most valu- able characteristic is their purely literary merit. Others, of but slight literary pretensions, and affording but little satisfaction in the perusal, are found agreeable in representation from the spirited development of the story which is told in action, the vivacity and interest of the events displayed, even if the con- versations of the imaginary characters, out of this . connection, would appear tame and unattractive. The most perfect are those which, like some of the tragedies of Shakespeare, as Hamlet or Macbeth, are adapted alike to the library and the stage, and which address themselves more agreeably to those who read or those who hear, as such persons themselves differ in their respective capacities for enjoyment. That the right of property which an author has in his works continues until by publication a right to their use- has been con- ferred upon or dedicated to the public, has never been disputed. If such publication be made in print of a work of which no copy- right has been obtained, it is a complete dedication thereof for all purposes to the public. Wheaton v. Peters, 8 Pet. 591. Stevens v. Gladding, 17 How. 447. If of a work of which a copyright has been obtained, it is so dedicated, subject to the protection afforded by the laws of copyright, the author accept- ing the statutory rights thereby given in place of his common- law rights. But the representation of an unprinted work upon the stage is not a publication which will deprive the author or his assignee of his rights of property therein. Roberts v. Myers, CHAP. VII.] TOMPKINS V. HALLECK. 903 U. S. C. C. Mass. Dist. 23 Law Rep. 396. It will not interfere with his claim to obtain a copyright therefor. Keene v. Kimball, ubi supra. Nor will it deprive him of his power to prevent a publication in print thereof by another. Macklin v. Richardson, Ambl. 694. Nor can we perceive why it should deprive him of his right to restrain the public representation thereqf by another. It is said, indeed, in Keene v. Kimball, that the court is not aware of any case then existing, either in England or America, "in which the representation of a play has been restrained^ by injtinction, where no copyright had been acquired, and where the proprietor had permitted its public representation for money, except the case of Morris v. Kelly, 1 Jac. & Walk. 481," the authority of which is doubted, it being deemed impossible to reconcile it with the earlier case of Coleman v. Wathen, 5 T. R. 245, or with the sub- sequent decision in Murray v. Eliiston, 5 B. & Aid. 657. This statement, taken in connection with the general terms in which the conclusion of the court is expressed, at the end of the opin- ion, — "that the representation by the defendant of a dramatic work, of which the proprietor has no copyright, and which she had previously caused to be publicly represented and exhibited for money, is no violation of any right of property, although done without license from such proprietor, and, as it does not appear to have been done in violation of any contract or trust, cannot be restrained by injunction," — would indicate that, in the view of the court, even if a copy were obtained, either by notes, writ- ing or stenography, although the copy was in fact obtained in the case then adjudicated by means of memory alone, there might properly be a ^subsequent public representation by the possessor of such a copy. In this vew, public representation is treated as a complete dedication of such a work for that purpose to all yvho can obtain in any way, from the representation itself, a copy thereof. The case of Coleman v. Wathen, ubi supra, was an action brought, by the owner of the copyright of O'Keefe's farce called "The Agreeable Surprise," against the manager of a theatre in Richmond, on account of its performance, for the penalty im- posed by the St. of 8 Anne, c. 19, as for an unauthorized pub- lication. The verdict having been in his favor, it was set aside upon the ground that the only publication by which the statu- tory penalty could be incurred was a publication in print. It was argued by Mr. Erskine, for the plaintiff, that, independently 904 TOMPKINS V. HALLECK. [CHAP./VII. of the statute, there was a common-law right, by which the au- thor had an exclusive property in his works ; but it is obvious that this portion of his argument had little relevancy in an action for a penalty imposed by statute. The case was heard in 1793, before Lord Kenyon and Mr. Justice Buller, and may be dis- missed as having no bearing upon an inquiry as to the rights of a person to be protected against the unauthorized representation of a play of which no copyright has been obtained. The case of Morris v. Kelly, ubi supra, was that of a bill filed in 1820 by the proprietor of another farce of O'Keefe for an injunction to prevent its performance at a rival theatre. The play was one which had been long performed and had been copy- righted, but had never been printed by authority of the author or proprietor, or otherwise published than by representation. An injunction was granted by Lord Eldon. The report of the case is very brief, and no opinion of the Lord Chancellor is pre- served, which is much to be regretted, as his discussion of the question involved would have been of value. In 1822, Mr. Murray, the publisher and owner of the copy- right of Lord Byron's .tragedy of "Marino Faliero," who had printed and published it for sale, applied for an injunction to re- strain Mr. Elliston, the manager of Drury Lane Theatre, from representing it in an abridged form on the stage of that theatre. The injunction was granted by Lord Eldon, who sent to the King's Bench the question whether the plaintiff could, under such circumstances, maintain an action against the defendant for publicly representing the tragedy thus abridged ; and that court certified its opinion in the negative. Murray v. Elliston, ubi supra. As no opinion was delivered, it is impossible to ascertain upon what ground the decision of the Court of King's Bench was placed. It may have been upon the ground that the abridgement was a fair one, and that thus no invasion of the author's rights had been committed, the English law being extremely liberal to one who abridges the work of another. It may have been upon the ground that, as there had been a publication in print, there was no redress for an unauthorized theatrical representation, or upon the ground that there was no such redress in any case where the party had copyrighted his play, as he then accepted the pro- tection which the statute afforded, in lieu of any which he might have at common law. If decided upon the latter ground, the case is not reconcilable with that of Morris v. Kelly, and this for the reason that, meagre as the report is, it clearly appeai"S CHAP. VII.] TOMPKINS V. HALLECK. 905 upon examination that the play which was there the subject of controversy was one of which a copyright had been obtained. Were it otherwise, the cases could well stand together. "After the decision of Murray v. Elliston, 5 B. & Aid. 657," says Lord Denman in Russell v. Smith, 12 Q. B. 236, "it seems to have been considered that publication to an audience was not within the provision of the acts relating to copyright: conse- quently St. 3 & 4 Wm. IV. c. 15, was passed, and, in respect to dramatic literary property, gave to authors the profits arising from publication by representing the piece on the stage." These three cases, relating to plays in which copyrights ex- isted, and the rights to representation which proprietors possess in such plays, have but little bearing upon the inquiry whether the owner of a play which is unprinted, and of which he has no copyright, who has exhibited it for money, may be protected from public representation thereof by another. The case of Macklin v. Richardson, Ambl. 694, decided in 1770, is of much more importance in this connection. The plaintiff was the author of a farce called "Love a la Mode,*' which had never been printed or copyrighted. It had been performed under his direction, and also by his authority, for which he received compensation. Great care was taken by him of the manuscript, which was always kept in his own posses- sion. The defendants, who were proprietors of a journal, em- ployed a stenographer, who took down the words of the play, and his copy as written out was afterwards corrected by one of the proprietors of the journal, who published one act in their journal, and advertised the publication of the remainder in their next number. Upon application to the Lord Chancellor, an in- junction forbidding such publication was issued, which was after- wards continued until the final hearing. When the case came on for final hearing, the Great Seal was in commission, and the injunction was made perpetual by the Lords Commissioners. "It can scarcely be necessary," to use the words of Judge- Cad- walader in Keene v. Wheatley, "to refer to Morris v. Kelly, or any other case, to show that, on the principle of this decree, the performance of Love a la Mode at- another theatre, from the short-hand writer's report, would also have been prevented by an injunction." Postponing for a moment the question as to what is unlawfully obtaining a copy of a play which has not been copyrighted, and which has been exhibited for money, and whether there is a / 906 TOMPKINS V. HALLECK. [CHAP. Vll. distinction between the representation from a copy obtained by memory and from one obtained by stenography or similar means, the proposition that the representation of such a play, the copy of which has' been unlawfully obtained, will be re- strained by injunction, is certainly supported by much author- ity since the case of Keene v. Kimball was decided, nor has it been controverted by the adjudication of any case. Boucicault V. Fox, ubi supra; Shook v. Daly, 49 How. Pr. 366; French v. Maguire, 55 How. Pr. 471 ; Shook v. Rankin, ubi supra; Crowe V. Aiken, ubi supra; Palmer v. De Witt, ubi supra; Boucicault v. Wood, 2 Biss. 34. In Crowe v. Aiken, ubi suprQ,, it was held that the author's rights in a manuscript play, of which no copyright had been obtained, were in no manner affected or limited by the acts of congress as to copyright, and that, although previously per- formed, an injunction against an unauthorized performance would be granted. In giving the opinion of the court. Judge Drum- mond remarks, "I am also of opinion that, as the law now exists in this country, the mere representation of a play" does not of itself dedicate it to the public, except, possibly, so far as those who witness its performance can recollect it, and that the spec- tators have not the right to secure its reproduction by phono- graphic or other verbatim report, independent of memory." The play in question was one written by Taylor, and known as "Mary Warner." As, upon the evidence, it was found as a fact by the court that the copy was obtained by a short-hand reporter, it did not there become necessary to consider whether that which is stated as a possible exception actually was one. In Keene v. Kimball, it is said that it is not intended "to intimate that there is any right to report, phonographically or otherwise, a lecture or other written discourse, which its autiior delivers before a public audience, and which he desires again to use in like manner for his own profit, and to publish it without his consent, or to make any use of a copy thus ob- tained." But no distinction can be made between works cast in the dramatic form and other literary productions intended for public delivery to those who pay a suitable compensation for the amusement or instruction they expect to obtain. The right to be protected against' the unauthorized representation of a dramatic work is in principle the same as the right to be pro- tected against the unauthorized oral delivery of a public lecture. An ingenious argument was indeed made in Keene v. Kimball, CHAP. Vll.] TOMPKINS z;. HALLECK. 907 derived from the principles and ideas of the Puritan founders of the Commonwealth, that a dramatic composition was not equally under the protection of the law with other literary works ; but it was held by the court to be quite clearly otherwise. The late Mr. Charles Dickens was an accomplished public reader of selections from his own works. If he had selected a story which had never been published or copyrighted, according to the suggestion above quoted from Keene v. Kimball, there would have been no right on the part of an auditor to report it, phonographically. or otherwise, so as to avail himself of the copy by a subsequent oral delivery by himself or another to whom he might transfer it. The genius of Mr. Dickens was essentially dramatic; if he had seen fit to prepare and read himself, as he might have done, a drama, representing its various characters, such a literary production would not have been any less pro- tected than a written discourse or lecture. Nor can it be per- ceived that, if, instead of reading such a drama himself, he had permitted it to be represented on the stage, which is but a read- ing by several persons instead of one, accompanied by music, scenery, and the usual accessories of the stage, his rights as an author to protection would be in any way diminished. Bouci- cault v. FoJe, ubi supra. The decision in Keene v. Kimball must be sustained, if at all, upon the ground that there is a distinction between the use of a copy of a manuscript play obtained by means of the memory or combined memories of those who may attend the play as specta- tors, it having been publicly represented for money, and of one obtained by notes, stenography, or similar means, by persons attending the representation; — ^that in the former case the un- authorized representation of. the play would be legal, while in the latter it would not be. The case of. Keene v. Kimball involved a controversy as to the right to represent the same play, the right of representing which was involved m 'Keene v. Wheatley, ubi supra. It was "The American Cousin ;" to use the language of the answer in Keene v. Wheatley, "a piece presenting, in suitable situations, those ec- centricities usually attributed on the stage to Yankees;" and appears to have had much success, both on this account, and as presenting those absurdities usually attributed on the stage to the exquisite or dandy. In Keene v. Wheatley, the controversy was as to the title to the play as a literary production, as it then existed, it having been in some parts curtailed, and having also 908 TOMPKINS V. HALLECK. [CHAP. VII. received certain additions, both written and unwritten, and also as to the mode in which the defendant obtained it. It was deemed to be proved that the play in its existing form was the property of the plaintiflf, and that the defendants had obtained their acting copy from her by a breach of confidence on the part of an actor employed by the plaintiff, who had communicated it to the defendants ; and that the plaintiff was therefore entitled to an injunction. The opinion of the circuit court, as delivered by Judge Cad- walader, is a very elaborate discussion of the whole subject of literary property, and embraces many questions not involved in the judgment of the case. Among these is included the question, whether a public representation will authorize another, who may obtain a copy by memory, to afterwards represent the play so performed. The theory advanced by him, which was apparently original, and in support of which he cites no adjudicated case, is that the act of public performance of a play is a general publication; and that, "when a literary proprietor has made a general publication in any of the modes which have been de- scribed, other persons acquire unlimited rights of republishing in any rnodes iu which his publication may directly or secondar- ily enable them to republish." If this be correct to the full ex- tent of the proposition, the manner in which a copy is obtained for other representations must be unimportant, as the right to subsequently represent is made to rest upon the fact that there has been a public representation. But in order that the play shall be thus represented, he contends that a copy must be obtained by "fair means." Those- which he Refines as "fair means" are the impressions on the memory of some persons whose constant attendance at the performance of the play may enable them to write or repeat elsewhere that which they have heard; but he holds that no one may lawfully mak^ use, for this purpose, of stenography, writing or , notes. According to the facts as they were provided in Keene v. Kimball^ by the allega- tions of the bill and the admission of the demurrer, the copy there used for representation was obtained solely by memory. Judge Cadwalader further remarks, "that the manager of a theatre may prevent a reporter from noting the words of such a play phonographically or stenographically, or otherwise. As one of the audience, he would, in doing so, transgress the privi- leges conceded in his admission. But the privileges of listening and of retention in the memory cannot be restrained. Where CHAP. VII.J TOMPKINS V. HALLEXIK. 909 the audience is not a select one, these privileges cannot be lim- ited in either their immediate or ulterior consequences." The effect of this argument is, that as the privilege: of listening is conceded, and as memory cannot be restrained, any use of mem- ory would be legitimate; and that a spectator, either alone or actiijig in concert with others, if able to carry away in memory the contents of a play, acquires a lawful right to make any use of the play he chooses, however destructive to the literary property of its author. Adopting the views of Judge Cadwalader, it is said in Keene V. Kimball, that, "if persons, by frequent attendance at her" (the plaintiff's) "theatre, have committed to memory any part or the whole of the play, they have a right to repeat what they heard to others." The repetition thus contemplated as right- ful, as shown by the sentence heretofore quoted from the same opinion, is by public representation of the play so committed to memory. It is added, "We know of no right of property in gestures, tones, or scenery, which would forbid such repro- duction of them by the spectators as their powers of imitation might enable them to accomplish." The theory that the lawful right to represent a play may be acquired through the exercise of the memory, but not through the use of stenography, writing or notes, is entirely unsatis- factory: "The public," it is true, as is said in Keene v. Kim- ball, "acquire a right to the extent of the dedication, whether complete or partial, which the proprietor has made of it to the public." But the question is as to the extent of that dedica- tion. It is not easy to understand why the author, by admitting the public to the performance of his manuscript play, any more concedes to them the right to exercise their memory in getting possession of his play for the purpose of subsequent representa- tion, than he does the privilege of using writing or stenography for that purpose. Drone on Copyright, 568, 569. The specta- tor of a play is entitled to all the enjoyment he can derive from its exhibition. He may make it afterwards the subject of conversa- tion, of agreeable recollection, or of just criticism, but we cannot perpeive that in paying for his ticket of admission he has paid ■for any right to reproduce it. The mode in which the literary prdperty of another is taken possession of, cannot be iinportant. The rights of the author cannot be made to depend merely on his capacity to enforce them, or those of the spectator on his abil- ity to assert them. One may .abandon his property, or may dedi- 910 TOMPKINS V. HALLECK. [CHAP. VII. cate it to the use of the public ; but while it remains his, the fact that another is able to get possession of it in no way affects his rights. If the performance of a manuscript play is hot a complete dedication to the public, (and from the time of the decision in Macklin v. Richardson, ubi supra, there is no case known to us which has so held), subsequent performances by others, whether they obtain their copies by memory or by stenography, are alike injurious. Cases are not unknown of memories so tena- cious that their possessors could, by attending one or two repre- sentations, retain the text of an entire play; and the dramatic profession is one in which the faculty of memory is highly culti- vated. There is no reason why the exercise of this faculty should be in any way restrained: it is not that the spectator learns the whole play which' entitles the author to object ; it is the use that is sought to be made of that which is learned that affords just ground for complaint. "Such use," as remarked by Judge Monell, "is as much an infringement of the author's common-law right of property, as if his manuscript had been feloniously taken from his possession," Palmer v. De Witt, 2 Sweeney, 558. Following the decision in Keene v. Kimball, the judge who presided at the trial of the case before us held that, although the copy of the drama called "The World" was obtained by the memory of persons who formed part of the audience, who attended the performance for the purpose, who wrote out a manuscript, comparing their recollections, and testing them by subsequent visits to the performance, as no violation of trust or confidence was shown, no injunction could be granted. But the acts done by these persons, like those proved in Keene v. Kim- ball, were, as we view them, in a legal sense violations of contract and confidence. The author had a right to believe that, in pur- chasing their tickets of admission, these persons did so for the pleasure or instruction that the performance of his drama would afford, and that they did not do so in order to invade his priv- ilege of representation, which, as it was of value, he must have desired to preserve. The lectures of an accomplished medical professor are of high pecuniary value. They are repeated from year to year before different classes, with only such changes as advancing science may require, or such new illustrations as experience may dictate. The student is not only permitted, but invited, to take written CHAP. VII.] TOMPKINS Z/. HALLECK. 911 notes. He is entitled to all the instruction he can obtain from the lectures, using both notes and memory to retain it; he may employ the information he has derived in his practice; he may ^reproduce it in his own discourses, with such other information as his education or experience may give him, should he desire himself to discuss a similar subject; but he cannot therefore orally deliver or publish in print the lecture of which he has been an auditor. Where persons are admitted, as pupils or otherwise, to hear public lectures, it is upon the implied confidence and contract that they will not use any means to injure or take away the exclusive' right of the lecturer in his own lectures-, whether that be to publication in |M-int or oral delivery. Abernethy v. Hutch- inson, 3 L. J. Ch. 209, was a bill brought by the celebrated sur- geon Abernethy to restrain the defendants from publishing his lectures. It was held by Lord Eldon, that while those pupils who were rightfully admitted to the lectures might take them down for their own information, they could not publish them for profit, or sell them to others to publish. Bartlette v. Crittenden, 4 McLean, 300, goes even further. It was there held that an author did not dedicate his manuscript to the public by using it to instruct others; and that, even if he permitted his pupils to take complete copies, they could not use such copies for publica- tion. In these cases there was nothing wrongful in obtaining or keeping possession of the copies which had been permitted; it was the use sought to be made of them that was restrained. The implied contract of the author of a play, which is not printed or copyrighted, with the spectator, is closely analogous to that of the lecturer with his pupil. It is a violation of contract and con- fidence when the spectator, obtaining possession of a copy of the drama, whether by memory, notes or stenography, undertakes to use it for publication in print, or for another public represen- tation. 2 Story Eq. Jur. §§ 949, 950. The special use of his play made by the author, for his own advantage, by a representation thereof for money, is not an aban- donment of his property nor a complete dedication of it to the public, but is entirely consistent with an exclusive right to con- trol such representation. Robert v. Myers, ubi supra. If the spectator desires, there is no reason why he should not be per- mitted to take notes for any fair purpose ; as, if he is a dramatic critic, for fair comment on the production, which is offered to the favorable consideration of the public; or if a student of 912 EYRE V. HIGBEE. [CHAP. VII. dramatic literature, for comparison with other works of its class. We should not- be wilUng to admit that police arrangements could be allowed to interfere with this, any more than with the taking of notes by one who attends a course of scientific lectures. The taking of notes in order to obtain a copy for representation is a different matter; it is the use intended to be made that ren- ders it proper to restrain such an act. The ticket of admission is a license to witness the play, but it cannot be treated as a license to the spectator to represent the drama if he can by mem- ory recollect it, while it is not a license so to do if the copy is obtained 'by notes or stenography. In whatever mode the copy is obtained, it is the use of it for representation which operates to deprive the author df his rights. For the reasons stated, we are brought to the result that the decision in Keene v. Kimball cannot be sustained.. The presid- ing judge having, at the hearing of this case, ruled in accordance with it, his decree must be reversed. The plaintiffs are entitled to a decree restraining the defendant from exhibiting the play called "The World," and referring the case to a master to assess the damages sustained by them by reason of its unauthorized exhibition by the defendant. Decree reversed. EYRE V. HIGBEE. (35 Barb. 502.) [Supreme Court of New York, 1861.] This was an appeal from a judgment ordered at a special term, upon the report of a referee. The complaint alleged that Tobias Lear, in his lifetime, was the owner and possessor of a large number of letters addressed to him by General Washington ; that said Tobias Lear continued to possess the same until his death, which occurred in 1816; that they remained in his family until 1856, when they were delivered to the defendant, Mrs. Higbee, for a special purpose, by the widow of Tobias Lear. The plaintiff is the granddaughter of Tobias Lear. In 1857 letters of administration upon the estate of Col. Lear were taken out by Nelson Eyre, one of the plaintiffs who afterwards sold the letters in question to one Hays, without consideration, and the latter, also without consideration, transferred them to Mrs. CHAP. VII.] EYRE V. HIGBEE. 913 Eyre, the other plaintiff. The residuary legatee of Benj. L. Lear had also conveyed to Mrs. Eyre whatever interest she had in the letters. The complaint alleged that neither of the defendants had ever been authorized by the widow of Tobias Lear to take possession of the letters; that the plaintiff, Mrs. Eyre, was the sole owner of the same, and had demanded them of the defendants, who had refused to deliver them up to her. The plaintiffs prayed that the defendants might be decreed to deliver up the letters to them. The answer set up a title to the letters in the defendants, under the widow of Col. Lear. The referee found that the defendant, Mrs. Higbee, took the papers into her custody during the last illness of Mrs. Lear, and had retained them ever since, and that no other title or right to the letters was shown by the defendant. He did not, however, find that the acquisition or possession was wrongful. The judg- ment was for the plaintiff and the defendants appealed. MuLLiN, J. The letters which are the subject matter of this litigation were written by General Washington to Colonel Tobias Lear, his private and military secretary. The first and important question in the case is, what property, if any. Col. Lear acquired or had in those letters at the time of his death. ' That letters written by one person to another, whether in regard to matters of business or friendship (aside from the question whether they have any literary value), are property is perfectly, well settled. Gee v. Pritchard, 2 Swanst. 402 ; 2 Story's Eq. Jur. § 945 et seq; Eden on Irij., 2nd Am. Ed. 324, 5. On the death of Col. Lear these letters. would have passed to his administrator, had one been appointed. Earl of Grannard v. Durkin, 1 Ball & Beat. 207 ; Ex'rs of Lord Chesterfield v. Stan- hope, Amb. 737 ; Pope v. Curl, 2 Atkyns, 342. But though letters pass to the personal representative, they are not assets, which may be sold in the course of administration to pay debts. The property which the receiver of a letter acquires in it is not such a property as the holder must have in order to make them assets. In 2 Williams on Executors, 1514, it is said: "The absolute property of the goods must have been vested in the testator, in order to make thiem assets in the hands of the executor." Hence it has been held that property held by the testator or intestate in trust is not assets. 58 914 EYRE V. HIGBEE. , [CHAP. VII. The same author, at page 1510, says: "If the patron of a church grants to the testator the next avoidance, and the church becomes void and the testator dies before he presents, and after his death his executor presents and has the benefit of preferring his son or his friend, yet this shall make no assets in his hands, because he could not lawfully take money to present. Toller, in his Law of Executors and Administrators, page 118, says: "But to give the executor title, or to constitute assets, the absolute property of such chattels must have been vested in the testator. Therefore, if A take a bond in trust for B and die, it shall form no part of the assets of A. So if the obligee sign a bond, and covenant not to revoke the assignment, the bond shall not be included amongst his assets. Nor shall goods bailed or delivered for a particular purpose, as to a carrier to convey to London, or to an innkeeper to keep in his inn, be assets in the hands of their respective administrators. Nor shall goods pledged or pawned, in the hands of the executor of the pavvnor, nor goods distrained, for rent or other lawful cause, be considered as the asset of the party distraining. Nor, if the testator were outlawed at the time of his death, shall his effects be so considered." It was held in Pope v. Curl, 2 Atk. 342, that the writer of letters addressed' and sent to another does not part wholly with his property in the literary compositions, nor give the receiver the power of publishing them ; that at most the receiver has only •a special property in them, and possibly may have the property of the paper. But this does not give a license to any person whatsoever to publish them, and at most the receiver has only a joint property with the writer. Lord Eldon, in Gee v. Pritchard, 2 Swans. 402, speaking of the property which the receiver of a letter has in it, says: The property is qualified in some respects ; that by sending the letter the writer has given, for the purpose of reading it, and in some' cases of keeping it, a property to the person to whom it is addressed, yet that the gift is so restrained that beyond the pur- poses for which the letter is sent, the property is in the sender. Under such circumstances it is immaterial whether the intended publication is for the purpose of profit or not. If profit, the party is then selling ; if not for profit, he is then giving, 'that, a portion of which belongs to the writer. Although the Lord Chancellor was speaking, in the cases cited, of letters which were of some literary value; yet the English CHAP. VII.] EYRE V. HIGBEE. 915 Court of Chancery has extended its protection, , by means of injunction, over letters on matters of business or friendship, and for the reason that the writer had an interest in them, and it would not permit a breach of his confidence by allowing their publication. Chancellor Walworth, in Hoyt v. Mackenzie, 3 Bardb. Ch. 320, follows the English Court of Chancery in protecting letters as literary property, but refuses to restrain the publication of letters that have no literary value. Whether the Chancellor was right in refusing to enjoin the publication of such letters, is not now important to inquire. But I do not understand him as holding or contending that the receiver of such letters has any higher or greater right of property in them than in those which are of literary value. At all events, the property of the receiver of a letter is not absolute. The writer has for some purposes an interest in it, and such a property is not assets in the hands of the executor or administrator. I cannot find that in any instance in this country or in England, has it ever been attempted to make letters received by a person in his lifetime assets on his death, and hence the subject of sale to pay debts and legacies. If such a right has existed, all classes and descriptions of men have, until now, elected to waive it, and have left the sanctity of private confidence uninvaided, and the letters of affection and friendship to remain in the custody of their relatives and friends, who are best calculated to guard them and most likely to respect them. But this universal acquiesence evidences something more than a mere waiver of a right through respect for either the living or the dead ; it demonstrates that no such right ever has existed ; that such property is not the subject of sale — but like the remains of the dead, is sacred from the rapacity of creditors or the ava- rice or malice of surviving friends or enemies. It would be a disgrace to the age in which we live, and to the government whose laws we administer, if the letters from a testator's or intestate's wife or child could be made the subject of sale at auction, and the peace of families, the character of individuals, the secrets of governments published to the world, in order that a few pence might be realized in order to pay a debt or legacy. Such things, I trust, cannot be done. In no imag- inable contingency can I be induced to give my sanction to such a' monstrous doctrine. 916 EYRE V. HIGBEE. [CHAP. VII. At common law, the property in the coffin, shroud and other apparel of the dead, was in the executor. Toller' s Executors, 118, but were these things therefore assets and the subject of sale? And yet I do not perceive why it would not be as high an evi- dence of civilization and refinement to sell them as the letters which the dead man had received from those who loved and trusted him, and which may have -been to him as dear as the apple of his eye. It seems to me, therefore, that letters, notwithstanding they pass to the executor or administrator, are not assets in his hands, and cannot be made the subject of sale by him. Col. Lear left him surviving his widow, and Benj. Lincoln Lear, his only son and heir at law. These letters were at the time of Col. Lear's death in his house, and remained thereafter, during the life of his widow, in her possession. The son and widow lived together in the same house till her death in 1856. The widow then had the custody of the letters for a period of forty years, with the knowledge of the son, as it clearly appears. Other letters from Gen. Washington to Col. Lear were in the custody of the son, and by the evidence of Mr. Rush, it would seem that the son recognized the possession of his mother as' lawful and right, as between them. It would seem, also, that Mrs. Lear exercised acts of ownership over these letters, giving some to Mr. Rush, and through him one to President Polk, and making at one time arrangements to transfer all that remained to the State of Virginia. In 1857 letters of administration upon the estate of Col. Lear were taken out, in the city of New York, by Nelson Eyre, one of the plaintiffs, who afterwards sold the. letters in question to one Hays, without consideration, who, without consideration, transferred them to Mrs. Eyre, the other plaintiff. The residuary legatee of Benjamin L. Lear has also conveyed to Mrs. Eyre whatever interest she may have had in the letters in question. The referee finds that the defendant, Mrs. Higbee, took the papers into her custody during the last illness of Mrs. Lear, and has had their custody ever since, and no other title or right to the letters is shown by the defendants. As already suggested, it is doubtless true that the letters would have passed, on' the granting administration, to the person ap- pointed administrator, and that he might have maintained an action for the recovery thereof. But during the forty years that Col. Lear was without a representative the letters were in the CHAP. VII.J EYRE V. HIGBEE. 917 actual custody of the widow, with whom the son and heir of the intestate lived. It is not shown what share of the estate of an intestate passed on distribution, to his widow, by the law of the District of Colum- _ bia. We must presume, therefore, that the common law which was in force in this country at the time of our separation from Great Britain was in force there^ at the time of the death of Col. Lear. By the law of England the widow was entitled to one-third part of the personal estate, after the payment of debts, and the next of kin to the remainder. Tlffe widow and Benj. L. Lear, then, were the persons solely entitled to the personal estate of Col. Lear, and they owned it as tenants in common, subject to the payment of the debts. As widow and next of kin, however, they could maintain no suit for its recovery. But being in the actual possession they could defend their interest in it against all the world, except the administrator. In this case the administrator has asserted his title, sold the property, and the purchaser brings this suit. If I am right in supposing that the letters are not assets, then the administrator could not sell. He could only acquire the possession for the purpose of transferring them to the widow and next of kin. While at law he might maintain an action against the latter for the recovery of the possession, would a court of equity permit the administrator to come into that court and recover the pos- session from the widow or next of kin, when immediately upon its delivery to him they would be entitled to demand it back ? The plaintiffs cannot claim that their title to these letters shall be protected as bona £de purchasers from the administrator. If the letters were not assets, the administrator had no power of sale, and the purchaser from him knew it, or is presumed to have known it. But if they did not know they were not assets, neither the first purchaser nor the plaintiffs have paid value, and thus the very foundation for their title fails. If I am right in supposing that the widow and next of kin could lawfully hold possession of the letters as against all the world except the administrator, and as against him, in equity, as the letters are not assets, the question recurs whether any exclusive right is shown in Mrs. Lear, from whom the defendant Mrs. Higbee obtained the possession. It seems to me the evidence of Mr. Rush shows Mrs. Lear in 918 EYRE V. HIGBEE. [CHAP. VII. the exclusive possession and exercising acts of ownership over the letters, for many years, with the knowledge and assent of Benjamin L. Lear. As against him and his personal representa- tives we must, after so great a lapse of time, presume a grant of the letters from him to her. In 1 Cowan & Hill's Notes to Phillips on Evidence, 302, it is said long acquiescence by one in the adverse enjoyment of a right by another, leads to an infer- ence that the former has parted with it in the legal form, and in time may lead to the presumption of the necessary instruments of assurance, or of the requisites to make existing assurances valid against him. It is alleged in the complaint that the defendant Mrs. Higbee acquired the possession of the letters, not only without the knowl- edge or assent of Mrs. Lear, but against her will. These allega-- tions are denied by the answer, and the plaintiffs have introduced a servant, who resides in their family, to establish the truth of the averment. The referee, very properly, I thiiik, has neglected to find the allegation proved; but he does find that during Mrs. Lear's last illness, Mrs. Higbee took the letters into her custody, and the defendants have ever since detained them. The referee further finds that the defendants did not prove any title or right of possession, or both or either of them, as to said papers. The finding does not show the possession of the defendants unlawful, or that the acquisition of the possession was wrongful. The ref- eree merely finds that the defendants were in the actual posses- sion of the letters, and that they were obtained from the posses- sion of Mrs. Lear. As against every person but Mrs. Lear's personal representative, this possession of the defendants is law- ful, and will enable them to assert their interest in the property against every person not clothed with the rights of Mrs. Lear. My conclusions, then, are: 1st. That the letters in question were not assets in the hands of the administrator of Col. Lear. 2d. Not being assets they could not be sold, but belonged to . the widow and next of kin. 3d. That the widow, in her lifetime, acquired the interest that Benjamin L. Lear had in the letters, and became thus the legal owner of them. 4th. That the plaintiffs acquired no title to the letters by their purchase ; ( 1 ) because the administrator had no authority to sell ; and (2) because they were not bona fide purchasers for value paid. CHAP. Vn.] EYRE V. HIGBEE. 919 5th. That the defendants, being lawfully in possession of the property, have the right to retain that possession against all the world except the legal representative of Mrs. Lear, and they are not parties. In my opinion, therefore, the plaintiffs cannot maintain this action, and the judgment should be reversed. Gould, J. For the purpose of deciding this case, it is not neces- sary to pass on the question whether the letters, which are the subject of the controversy, are, or are not, property; at least in the view I take of the case. The first difficulty in the plaintiff's case seems to me to be that it appears from undisputed proof that an administrator has, with- out consideration, an^ for the sole purpose of putting title (to what he calls property) out of the estate he is to .administer, assigned the letters to a stranger; who, thereupon, and without consideration, assigns them to the wife of the administrator ; and then this administrator, not in his representative capacity, but as an individual, joins his wife in the suit to recover the letters. It is a fraud on .the estate; and the law cannot sanction it, by allow- ing a representative so to avoid his trust, and assign property for his own benefit. If the letters are property at all, the title remains in the administrator; and these plaintiffs cannot recover. Again, granting the claim that the letters are property, it would be unheard of, that forty years' possession and control, as owner (plainly so by all the testimony), did not constitute a bar, under the statute of limitations, in favor of Mrs. Lear and her estate. But the proofs are so abundantly strong as to the whole course, acts and declarations of Benjamin Lear in regard to these letters, that there can be no doubt that, as between him (and his estate) and Mrs. Frances Lear, these letters were by their joint under- standing and agreement, hers — hers by such an agreement as, accompanied by actual and continued possession, would of itself make full title to them. Then, if they are to be treated as a part of anyone's estate, they are a part of her estate ; and, in the absence of any disposi- tion by her, either during her life or by will, they would go to her next of kin. And Mrs. Higbee is one of those; while the plaintiffs claim not only by a different and adverse title, but are strangers in blood to Mrs. Lear. The plaintiffs' claim seems to me utterly without foundation. Upon the question of any property in these letters : The right of publication, as one of literary property, would, for a reasonable 920 EYRE V. HIGBEE. [CHAP. VII. length of time (to allow its assertion by publication), remain in the writer and his personal representatives. After such a period had elapsed, that there ceased to be a probability that this right to publish was treated as a legal right, anyone might publish who could procure copies. Before publication, however, and after ■ it, and during all the time, the right to the papers themselves — ^as separate from publishing — ^would remain in the person to whom the letters were addressed. Whether that right would be treated as so far having value as to constitute property in the letters, and render them assets in the hand of an executor or administrator, is a very different question. And as it is one which, if settled at all, must be so settled as to be applicable to all classes and kinds of correspondence, of every individual in society — including the most confidential communications, as well as the most trivial — it seems to me very dangerous to hold a rule, by which rude hands and strange eyes might invade every secret of domestic life, and destroy the happiness of half the families of the land. It is far safer to leave such matters to be, as they have been, controlled by family considerations and family arrangements. The few cases where (as here) even the lapse of sixty years gives a pecuniary value to the papers, do not offer a reason of force sufficient to risk all the other evils of a different rule. They should not be called property, in the eye of the law. Ingraham, J. I do not think it necessary, for the decision of this case, that we should express any opinion upon the question whether the receiver of letters has any property in them -which would pass to his executor; but I do not wish, by a mere con- currence in the decision of this case, to assent to the proposition that any such property rests in the executor, which he could assign, or which would be in his hands assets belonging to the estate. Whatever property there is in the letters vests in the writer, and not in the receiver. He may have a right to retain them when he obtains the possession, in the same way as he would a receipt or account, to aid him in the settlement of the estate, if they contain anything bearing upon the subject. But further than that, he has no property in them to sell or assign, and they can in no way be used as assets belonging to the estate. If such letters were of such a character as in the opinion of the executor would be productive of injury (if published) to the writer or others, he may "destroy them. If he does so, no one could call him to account therefor, and when as the holder of them, he as executor assigns his property in them to another, he CHAP. VII.] HOBERSON V. ROCHESTER FOLDING BOX CO. 921 gives no title, and confers no right which would vest in the as- signee, a right of action therefor. In other matters treated of in the opinions of my brethren I fully concur, as well as in the conclusion adopted by them. Judgment reversed and new trial ordered. Costs to abide the event. ROBERSON V. ROCHESTER FOLDING BOX COMPANY, (171 N. Y. 538.) [New York Court of Appeals, 1902.] Appeal, by permission, from a judgment of the Appellate Di- vision of the Supreme Court in the Fourth Judicial Department, entered July 30, 1901, affirming an interlocutory judgment in favor of plaintiff entered upon a decision of the court at Special Term overruling demurrers to the complaint. The nature of the action, the facts, so far as material, and the questions certified are stated in the opinion. Parker, Ch. J. The Appellate Division has certified that the following questions of law have arisen in this case, arid ought to be reviewed by this court: 1. Does the complaint herein state a cause of action at law against the defendants or either of them ? 2. Does the complaint herein state a cause of action in equity against the defendants or either of them? These questions are presented ' by a demurrer to the complaint, which is put upon the ground that the complaint does not state facts sufficient. to constitute a cause of action. As a demurrer admits not only those facts which are expressly alleged in complaint, but everything which can be implied by fair and reasonable intendment from its allegations {Marie v. Garri- son, 83 N. Y. 14, 23) we are to inquire whether the complaint, regarded from the standpoints of this rule, can be said to show any right to relief either in law or in equity. The complaint alleges that the Franklin Mills Co., one of the defendants, was engaged in a general milling business and in the manufacture and sale of flour; that before the commencement of the action, without the knowledge or consent of plaintiff, defendants, knowing that they had no right or authority so to do, had obtained, made, printed, sold and circulated about 25,000 lithographic prints, photographs and likenesses of plaintiff, made 922 ROBERSON V. ROCHESTER FOLDING BOX CO. [CHAP. VII. in a manner particularly set up in the complaint; that upon the paper upon which the likenesses were printed and above the portrait there were printed, in large, plain letters, the words, "Flour of the Family," and below the portrait in large capital letters, "Franklin Mills Flour," and in the lower right-hand corner in. smaller capital letters, "Rochester Folding Box Co., Rochester, N. Y. ;" that upon the same sheet were other adver- tisements of the flour of the Franklin Mills Co. ; that those 25,000 likenesses of the plaintiff thus ornamented have been conspic- uously posted and displayed in stores, warehouses, saloons and other public places; that they have been recognized by friends of the plaintiff and other people with the result that plaintiff has been greatly humiliated by the scoffs and jeers of persons who have recognized her face and picture on this advertisement and her good name has been attacked, causing her great distress and suffering both in body and mind; that she was made sick and suffered a severe nervous shock, was confined to her bed and coqipelled to employ a physician, because of these facts; that defendants had continued to print, make, use, sell and circulate the said lithographs, and that by reason of the foregoing facts plaintiff has suffered damages in the sum of $15,000. The com- plaint prays that defendants be enjoined from making, printing, publishing, circulating or using in any manner any likenesses of plaintiff in any form whatever, for further relief (which it is not necessary to consider here) and for damages. It will be obesrved that there is no complaint made that plaintiff was libeled by this publication of her portrait. The likeness is said to be a very good one, and one that her friends and acquaint- ances were able to recognize; indeed, her grievance is that a good portrait of her, and, therefore, one easily recognized, has been used to attract attention toward the paper upon which defendant mill company's advertisements appear. Such publicity, which some find agreeable, is to plaintiff very distasteful, and thus, because of defendants' impertinence in using her picture without her consent for their own business purposes, she has been caused to suffer mental distress where others would have appreciated the compliment to their beauty implied in the selec- tion of the picture for such purposes; but as it is distasteful to her, she seeks the aid of the courts to enjoin a further circulation of the lithographic prints containing her portrait made as alleged in the complaint, and as an incident thereto, to reimburse her for CHAP. VII.] ROBERSON V. ROCHESTER FOLDING BOX CO. 923 the damages to her feelings, which the complaint fixes at the sum of $15,000. There is no precedent for such an action to be found in the decisions of this court ; indeed the learned judge who wrote the very able and interesting opinion in the Appellate Division said, while upon the threshold of the discussion of the question; "It may be said in the first place that the theory upon which this action is predicated is new, at least in instance if not in principle, and that, few precedents can be found to sustain the claim made by the plaintiff, if indeed it can be said that there are any author- itative cases establishing her right to recover in this action." Nevertheless, that court reached the conclusion that plaintiff had a good cause of action against defendants, in that defendants had invaded what is called a "right of privacy" — in other words, the right to be let alone. Mention of such a right is not to be found in Blackstone, Kent or any other of the great commentators upon the law, nor so far as the learning of counsel or the courts in this case have been able to discover, does its existence seem to have been asserted prior to about the year 1890, when it was pre- sented with attractiveness and no inconsiderable ability in the Harvard Law Review (Vol. IV, page 193) in an article entitled, "The Right of Privacy." The so-called right of privacy is, as the phrase suggests, founded upon the claim that a man has the right to pass through this world, if he wills, without having his picture published, his business enterprises discussed, his successful experiments written up for the benefit of others, or his eccentricities commented upon either in handbills, circulars, catalogues, periodicals or newspa- pers, and necessarily, that the things which may not be written and published of him must not be spoken of him by his neighbors, whether the comment be favorable or otherwise. While most persons would much prefer to have a good likeness of themselves appear in a responsible periodical or leading newspaper rather than upon an advertising card or sheet, the doctrine which the courts are asked to create for this case would apply as well to the one publication as to the other, for the principle which a court of equity is asked to assert in support of a recovery in this action is that the right of privacy exists and is enforceable in equity, and that the publication of that which purports to be a portrait of another person, even if obtained upon the street by an impertinent individual with a camera, will be restrained in equity on the ground that an individual has the right to prevent 924 ROBERSON V. ROCHESTER FOLDING BOX CO. [CHAP. VII. his features from becoming known to those outside of his circle of friends and acquaintances. If such a principle be incorporated into the body of the law through the instrumentality of a court of equity, the attempts. to logically apply the principle will necessarily result, not only in a vast amount of litigation, but in litigation bordering upon the absurd, for the right of privacy, once established as a legal doctrine, cannot be confined to the restraint of the publication of a likeness but must necessarily embrace as well the publication of a word-pictiire, a comment upon one's looks, conduct, domestic relations or habits. And were the right of privacy once legally asserted it would necessarily be held to include the same things if spoken instead of printed, for one, as well as the other, invades the right to be absolutely let alone.. An insult would certainly be in violation of such a right and with many persons would more seriously wound the feelings than would the publication of their picture. And so We might add to the list of things that are spoken and done day by day which seriously offend the sensi- bilities of good people to which the principle which the plaintiff seeks to have imbedded in the doctrine of the law would seem to apply. I have gone only far enough to barely suggest the vast field of litigation which would necessarily be opened up should this court hold that privacy exists as a legal right enforceable in equity by injunction, and by damages where they seem neces- sary to give complete relief. The legislative body could very well interfere and arbitrarily provide that no one should be permitted for his own selfish purpose to use the picture or the name of another for advertising purposes without his consent. In such event no embarrassment would result to the general body of the law, for the rule would be applicable only to cases provided for by the statute. The courts, however, being without authority to legislate, are required to decide cases upon principle, and so are necessarily embarrassed by precedents created by an extreme, and, therefore, unjustifiable application of an old principle. The court below properly said that, "while it may be true that the fact that no precedent can be found to sustain an action in any given case, is cogent evidence that a principle does not exist upon which the right may be based, it is not the rule that the want of a precedent is a sufficient reason for turning the plaintiff out of court," provided — I think should be added — there can be found a clear and unequivocal principle of the common law which CHAP. VII.] ROBERSON V. ROCHESTER FOLDING BOX CO. 925 either directly or mediately governs it or which by analogy or parity of reasoning ought to govern it. It is undoubtedly true that in the early days of chancery juris- diction in England the chancellors were accustomed to deliver their judgments without regard to principles or precedents and in that way the process of building up the system of equity went on, the chancellor disregarding absolutely many established prin- ciples of the common law. "In no other way," says Pomeroy, "could the system of equity jurisprudence have been commenced and continued so as to arrive at its present proportions." (Pome- roy's Eq, Jur. Sec. 48.) In their work the chancellors were guided not only by what they regarded as the eternal principles of absolute right, but also by their individual consciences, but after a time when "the period of infancy was passed and an orderly system of equitable principles, doctrines and rules began to be de- veloped out of the increasing mass of precedents, this theory of a personal conscience was abandoned; and 'the conscience,' which is an element of the equitable jurisdiction, came to be re- garded and has so continued to the present day,, as a meta- phorical term, designating the common standard of civil right and expediency combined, based upon general principles and limited by established doctrines to which the court appeals, and by which it tests the conduct and rights of suitors — a juridical and not a personal conscience." (Pomeroy's Eq. Jur. Sec. 57.) The importance of observing the spirit of this rule cannot be overestimated, for, while justice in a given case may be worked out by a decision of the court according to the notions of right which govern the individual judge or body of judges compris- ing the court, the mischief which will finally result may be almost incalculable under our system which makes a decision in one case a precedent for decisions in all future cases which are akin to it in the essential facts. So in a case like the one before us, which is concededly new to this court, it is important that the court should have in. mind the effect upon future litigation and upon the development of the law which would necessarily result from a step so far outside of the beaten paths of both common law and equity, assuming — what I shall attempt to show in a moment — that the right of privacy as a legal doctrine enforceable in equity has not, down to this time, been established by decisions. The history of the phrase "right of privacy" in this country seems to have begun in 1890 in a clever article in the Harvard 926 ROBERSON V. ROCHESTER FOLDING BOX CO. [CHAP. VII. Law Review — already referred to — in which a number of English cases were analyzed, ' and reasoning by analogy, the conclusion was reached that — ^notwithstanding the unanimity of the courts in resting their decisions upon property rights in cases where publi- cation is prevented by injunction — in reality such prevention was due to the necessity of affording protection to thoughts and sentiments expressed through the medium of writing, printing and the arts, which is like the right not to be assaulted or beaten ; in other words, that the principle, actually involved though not always appreciated, was that of an inviolate personality, not that of private property. This article brought forth a reply from the Northwestern Re- view (Vol. III., page 1), urging that equity has no concern with the feelings of an individual or with considerations of moral fit- ness, except as the inconvenience or discomfort which the person may suffer is connected with the possession or enjoyment of property, and that the English authorities cited are consistent with such view. Those authorities are now to be examined in order that we may see whether they are intended to and did mark a departure from the established rule which had been enforced for generations ; or, on the other hand, are entirely consistent with it. The first case in Prince Albert, v. Strange, 1 M. & G. 25 ; 2 De G. & S. 652. , The queen and the prince, having made etchings and drawings for their own amusement, decided to have copies struck off from the etched plates for presentation to friends and for their own use. The workman employed, however, printed some copies on his own account, which afterwards came into the hands of Strange, who proposed exhibiting them, and pub- lished a descriptive catalogue. Prince Albert applied for an in- junction as to both exhibition and catalogue, and the vice-chan- cellor granted it, restraining defendant from publishing "at least by, printing or writing, though not by copy or resemblance," a description of the etching. An examination of the opinion of the vice-chancellor discloses that he found two reasons for grant- ing the injunction, namely, that the property rights of Prince Albert had been infringed, and that there was a breach of trust by the workman in retaining some impressions for himself. The opinion contained no hint whatever of a right of privacy separate and distinct from the right of property. Pollard v. Photographic Co. L. R. 40 Ch. Div. 345, is certainly not an authority for granting an injunction on the ground of threatened injury to the feelings, although it is true, as stated CHAP. VII.] ROBERSON V. ROCHESTER FOLDING BOX CO. 927 in the opinion of the appellate division,' that the court did say in the course of the discussion that the right to grant an injunction does not depend upon the existence of property ; but the decision was, in fact, placed upon the ground that there was a breach of an implied contract. The facts, briefly stated, were that a photographer had been applied to by a woman to take her photo- graph, she ordering a certain number of copies, as is usual in such cases. The photographer made copies for himself and undertook to exhibit them, and also sold copies to a stationer, who used them as Christmas cards. Their action was restrained by the court on the ground that there was an implied contract not to use the negative for any other purpose than to supply the sitter with copies of it for a price. During the argument of plaintiff's counsel, the court asked this question: "Do yoii dis- pute that if the negative likeness were taken on the sly, the per- son who took it might exhibit copies ?" Counsel replied : "In that case there would be no consideration to support a contract." In Gee v. Prit chard, 2 Swanst. 402, B. attempted to print a private letter written him by A., and he was restrained on the ground that the property of that private letter remained in A., B. having it only for the qualified purpose for which it was sent to him, the basis of the decision, therefore, being the idea of plaintiff's property in the thing published, as being the product of his mind, written by him and put into the hands of B. for a limited purpose only. The same judge. Lord Eldon, also granted the injunction in Abernathy v. Hutchinson, 3 L. J. Ch. 209, restraining the publi- cation in the "Lancet" of lectures delivered at a hospital by the plaintiff. The court expressed a doubt in that case whether there could be property in lectures which had not been reduced to writing, but granted the injunction on the ground that it was a breach of confidence on the part of a pupil who was admitted to hear the lectures to publish them, inasmuch as they were de- livered for the information of the pupils and not for sale and profit by' them. Mayhall v. Higbey, 1 H. & C. 188, was also a case where an injunction was granted and. nominal damages awarded on the ground that plaintiff had a property right in certain photographic negatives which he had loaned to a person who, subsequently, became insolvent and whose assignee, without right, sold them to defendant who printed copies from them which he published and sold. 928 ROBERSON V. ROCHESTER FOLDING BOX CO. [CHAP. VII. In Duke of Queensbury v. Shebbeare, 2 Eden. 329, the Earl of Clarendon delivered to one Gwynne an original manuscript of his father's, "Lord Clarendon's History." Gwynne's adminis- trator afterwards sold it to Shebbeare, and the court, upon the application of the personal representatives of Lord Clarendon, restrained its publication on the ground that they had a property right in the manuscript which it was not intended that Gwynne should have the benefit of by multiplying the number of copies in print for profit. In not one of these cases, therefore, was it the basis of the decision that the defendant could be restrained from performing the act he was doing or threatening to do on the ground that the feelings of the plaintiff would be thereby injured; but, on the contrary, each decision was rested either upon the ground of breach of trust or that plaintiff had a property right in the sub^ ject of litigation which the court could protect. A more recent English case, decided in 1898, is more nearly in point and negatives the contention that plaintiff may restrain an unauthorized publication which is offensive to him — ^namely, Dockrell v. Dougall, 78 L. T. R. 840. In that case defendant, the owner of a medicine called "Sallyco," published the following substantially true but unauthorized statement about plaintiff: "Dr. Morgan Dockrell, physician to St. John's Hospital, London, is prescribing Sallyco as an habitual drink. Dr. Dockrell says nothing has done his gout so much good." In the course of the opinion the court said, in effect, that plaintiff claimed to be en- titled to an injunction restraining defendant from using plain- tiff's name in his advertisements on the ground that an injunc- tion should be granted in every such case where it can be shown that the use of the plaintiff's name is unauthorized and is calcu- lated to injure him in his profession, and after saying that he did not think that this was right, he stated the proper rule to be that, "In order that an injunction may issue to restrain a defend- ant from using a plaintiff's name the use of it must be such as to injure the plaintiff's reputation or property." None of the other English cases brought to our attention are claimed to have a direct ^bearing upon this question, and it seems to us very clear that they do not in anywise support the position of plaintiff. The case that seems to have been more relied upon than any other by the learned appellate division in reaching the conclusion that the complaint in this case states a cause of action is Schuyler CHAP, yil.] ROBERSON V. ROCHESTER FOLDING BOX CO. 929 V. Curtis, 147 N. Y. 434. In that case certain persons attempted to erect a statue or bust of a woman no longer living, and one of her relatives commenced an action in equity to restrain such erection, alleging that his feelings and the feelings of other rela- tives of deceased would be injured thereby. At special term an injunction was granted on that ground ; 19 N. Y. Sup. 264. The general term affirmed the decision; 64 Hun. 594. This court reversed the judgment, Judge Peckham writing, and so far as the decision is concerned, therefore, it is not authority for the existence of a right of privacy which entitles a party to restrain another from doing an act which, though not actionable at com- mon law, occasions plaintiff mental distress. In the course of the arg;ument, however, expressions were used which it is now claimed indicate that the court recognized the existence of such a right. A sufficient answer to that contention is to be found in the opinion written on the motion for reargument in Colonial City Tr. Co. v. Kingston City R. R. Co., 154 N. Y. 493, in which it was said; "It was not our intention to decide any case but the one before us. * * * If, as sometimes happens, broader state- ments were made by way of argument or otherwise than were essential to the decision of the questions presented, they are the dicta of the writer of the opinion and not of the decision of the court. A judicial opinion, like evidence, is only binding so far as it is relevant, and when it wanders from the point at issue it no longer has force as an official utterance." The question up for decision in the Schuyler case was whether the relatives could restrain the threatened action of defendants, and not whether Mrs. Schuyler could have restrained it had she been living. The latter question not being before the court it was not called upon to decide it, and, as we read the opinfon, there is no expression in it which indicates an intention either to decide it or to seriously consider it, but rather, it proceeds upon the assumption that if such a right did exist in Mrs. Schuyler, hjr relatives did not suc- ceed to it upon her death; all of which will sufficiently appear from the following extracts from the opinion: "This action is of a nature sorriewhat unusual and dependent for its support upon the application of certain principles which are themselves not very clearly defined, or their boundaries very well recognized or plainly laid down. Briefly described, the action is founded upon the alleged violation of what is termed the right of privacy.'' "It is not necessary, however, to the view which we take of 59 930 ROBERSON V. ROCHESTER FOLDING BOX CO. [CHAP. VII. this case, to lay down precise and accurate rules which shall apply to all cases touching upon this alleged right."- "For the purposes we have in view, it is unnecessary to wholly deny the existence of the right of privacy to which the plaintiff appeals as the foundation of his cause of action." "While not assuming to decide what this right of privacy is in all cases, we are quite clear that such a right would not be violated by the proposed action of the defendants." There are two other cases in this state bearing upon this ques- tion: Marks V. Jaffa (26 N. Y. Supp. 908), decided at special term, and Murray v. Gast Lithographic and Engraving Co. (8 Misc. Rep. 36), decided at an equity term of the court of com- mon pleas at New York. In the first case the relief prayed for was granted upon the authority of the decision of the general term in the Schuyler case, which was subsequently reversed in this court. . In the Murray case, in a well-reasoned opinion by Judge Bischoff, it is held that a parent cannot maintain an action to enjoin an unauthorized publication of the portrait of an infant child, and for damages for injuries to his sensibilities caused by the invasion of his child's privacy, because "the law takes no cognizance of a sentimental injury, independent of a wrong to person or property." In the course of his opinion he quotes from the opinion of Lumpkin, J., in Chapman v. West U. T. Co. (88 Ga. 763), as follows: "The law protects the person and the purse. The person includes the reputation. The body, reputa- tion and property of the citizen are not to be invaded without responsibility in damages to the sufferer. But, outside these pro- tected spheres, the law does not attempt to guard the peace of mind, the feelings or the ' happiness of everyone by giving re- covery of damages for mental anguish produced by mere negli- gence. There is no right, capable of enforcement by process of law, to possess or maintain, without disturbance, any particular condition of feeling. The law leaves feeling to be helped and vindicated by the tremendous force of sympathy. The tempera- ments of individuals are varioiis and variable, and the imagina- tion exerts a powerful and incalculable influence in injuries of this kind. There are many moral obligations too delicate and subtle to be enforced in the rude way of giving money compensa- tion for their violation. Perhaps the feelings find as full protec- tion as it is possible to give in moral law, and a responsive public opinion. The civil law is a practical business system dealing CHAP, VH.] ROBERSON V. ROCHESTER FOLDING BOX CO. 931 with what is tangible, and does not undertake to redress psycho- logical injuries." Outside of this jurisdiction the question seems to have been presented in two other cases in this country: Corliss v. E. W. Walker Co (57 Fed. Rep. 434; 64 Fed. Rep. 280), and Atkinson V. Doherty (121 Mich, 372). The Corliss case was an action in equity to restrain the pubHcation of the biography and picture of Mr. Corliss. It was based upon an alleged invasion of the right of privacy. The court denied the injunction as to the publica- tion of the biography, but granted it as to the use of certain plates, from which the defendant was to make a picture of Mr. Corliss, upon the ground that they had been obtained upon a condition which defendant had not complied with. In the course of the opinion the court said: "Under our laws one can speak and publish what he desires, provided he commit no offense against public morals or private reputation. * * * * There is another objection which meets us at the threshold of this case. The subject-matter of the jurisdiction of a court of equity is civil property, and injury to property, whether actual or pros- pective is the foundation on which its. jurisdiction rests. (Re Sawyer, 124 U. S. 200, 210; Kerr. Inj., 2d ed., p. 1.) It fol- lows from this principle that a court of equity has no power to restrain a libelous publication." Both the opinion and the decis- ion necessarily negative the existence of an actionable right of privacy; but subsequently upon a motion to dissolve the injunc- tion, which was granted upon the ground that Mr. Corliss was a public character, and hence the publishers were entitled to use his picture, the learned court expressed the opinion that a private individual has the right to be protected from the publication of his portrait in any form. Now, while this suggestion was obliter, it merits discussion, and an examination of that which it promul- gates as doctrine discloses what we deem a fatal objection to the establishment of a rule of privacy. The learned judge says: "I believe the law to be that a private individual has a right to be protected in the representation of his portrait in any form; that this is a property as well as a personal right, and that it belongs to the same class of rights which forbids the reproduc- tion of a private manuscript or painting, or the publication of private letters, or of oral lectures delivered by a teacher to his class, or the revelation of the contents of a merchant's book by a clerk. * * * * But, while the right of a private individual to prohibit the reproduction of his picture or photograph should be 932 ROBERSON V. ROCHESTER FOLDING BOX CO. [CHAP. VII. recognized and enforced, this right may be surrendered or dedi- cated to the public by the act of the individual, just the same as a private manuscript, book or painting becomes (when not pro- tected by copyright) public property by the act of publication. The distinction in the case of a picture or photograph lies,, it seems to me, between public and private characters. A private individual should be protected against the publication of any portrait of himself, but where an individual becomes a public character the case is different. A statesman, author, artist or inventor, who asks for and desires public recognition, may be said to have surrendered his right to the public." This distinction between public and private characters cannot possibly be drawn. On what principle does an author or artist forfeit his right of privacy and a great orator, a great preacher, or a great advo- cate retain his? Who can draw a line of demarcation between public characters and private characters, let that line be as waver- ing and irregular as you please? In the very case then before the judge, what had Mr. Corliss done by which he surrendered his right of privacy? In what respect did he by his inventions "ask for and desire public recognition" any more than a banker or merchant who prosecutes his calling? Or is the right of pri- vacy the possession of mediocrity alone, which a person forfeits by giving rein to his ability, spurs to his industry or grandeur to his character? A lady may pass her life in domestic privacy when, by some act of heroism or self-sacrifice, her name and fame fill the public ear. Is she to forfeit, by her good deed, the right of privacy she previously possessed? These considerations suggest the answer we would make to the position of the learned judge and at the same time serve to make more clear what we have elsewhere attempted to point out, namely, the absolute im- possibility of dealing with this subject save by legislative enact- ^ment, by which may be drawn arbitrary distinctions which no court should promulgate as a part of general jurisprudence. Atkinson v. Doherty was a suit in equity brought by the widow of Colonel John Atkinson, a well-known lawyer in Detroit, to enjoin the defendant, a cigar manufacturer, from using the name and portrait of Colonel Atkinson upon boxes of cigars manufactured by defendant. The suit was dismissed by the circuit court, and its decree was unanimously affirmed by the Supreme Court. The case quite closely resembles the Schuyler case, which was brought to the attention of that court, and in the course of the opinion the contention that the Schuyler case inti- CHAP* VII.] ROBERSON V. ROCHESTER FOLDING BOX CO. 933 mated the existence of a right of privacy was met as follows: "We think it should not be considered as containing a dictum even in support of the doctrine contended for." The method adopted by the court in the Atkinson case in treating the question was different from that employed by this court in the Schuyler case, however, for the opinion proceds to a review of the authori- ties upon which the right of privacy is said to rest, reaching the conclusion that all of the authorities which are entitled to respect are based upon property or contract rights, and hence "that Colo- nel Atkinson would himself be remediless were he alive, and the same is true of his friends who survive." The opinion concludes as follows: "This law of privacy seems to have gained a foot- hold at one time in the history of our jurisprudence — not by that name, it is true — ^but in effect. It is evidenced by the old maxim, 'the greater the truth the greater the libel,' and the result has been the emphatic expression of public disapproval, by the eman- cipation of the press and the establishment of freedom of speech, and the abolition in most of the states of the maxim quoted by constitutional provisions. The limitations upon the exercise of these rights being the law of slander and libel, whereby the pub- lication of an untruth that can be presumed or shown to the satisfaction, not of the plaintiff, but of others (i. e., an impartial jury), to be injurious, not alone to the feelings, but to the repu- tation, is actionable. Should it be thought that it is a hard rule that is applied in this case, it is only necessary to call attention to the fact that a ready remedy is to be found in legislation. We are not satisfied, however, that the rule is a hard one, and think that the consensus of opinion must be that the complainants con- tend for a much harder one. The law does not remedy all evils. It cannot, in the nature of things; and deliberation may well be used in considering the propriety of an innovation such as this case suggests. We do not wish to be understood as belittling the complaint. We have no reason to doubt the feeling of an- noyance alleged' Indeed, we symathize with it, and marvel at the impertinence which does not respect it. We can only say that it is one of the ills that under the law cannot be redressed." An examination of the authorities leads us to the conclusion that the so-called "right of privacy" has not as yet found an abiding place in our jurisprudence, and, as we view it, the doc- trine cannot now be incorporated without doing violence to set- tled principles of law by which the profession and the public have long been guided. / 934 ROBERSON V. ROCHESTER FOLDING BOX CO. [CHAP. VII. I do not say that, even under the existing law, in every case of the character of the one before us, or indeed in this case, a party whose likeness is circulated against his will is without remedy. By section 245 of the penal code any malicious publi- cation by picture, eifigy or sign which exposes a person to con- tempt, ridicule or obloquy is a libel, and it would constitute such at common law. Malicious in this definition means simply inten- tional and wilful. There are many articles, especially of medi- cine, whose character is such that using the picture of a person, particularly that of a woman, in connection . with the advertise- ment of those articles might justly be found by a jury to cast ridicule or obloquy on the person whose picture was thus pub- lished. The mafiner or posture in which the person is portrayed might readily have a like effect. In such cases both a civil action and a criminal prosecution could be maintained. But there is no allegation in the complaint before us that this was the tendency of the publication complained of, and the absence of such an al- legation is fatal to the maintenance of the action, treating it as one of libel. This case differs from an action brought for libel- ous words. In such case the alleged libel is stated in the com- plaint, and if the words are libelous per se it is unnecessary to charge that their effect exposes the plaintiff to disgrace, ridicule or obloquy. The law attributes to them that result. But where the libel is a picture which does not appear in the record, to make it libelous there must be a proper allegation as to its char- acter. The judgment of the appellate division and of the special term should be reversed and questions certified answered in the nega- tive, without costs, and with leave to the plaintiff to serve an amended complaint within twenty days, also without costs. Gray, J. (dissenting.) The question arises on the defendants' demurrer to the sufficiency of the complaint to state a cause of action. The complaint alleges that, without the knowledge of the plaintiff; the defendants, "knowing that they had no right or aiuthority so to do, had obtained, made, printed, sold and circu- lated about 25,000 lithographic prints, photographs or likenesses of plaintiff, for the purpose of profit and gain to themselves;" that upon the paper upon which the likeness was printed, are the words above the portrait in large, plain letters, "Flour of the Family," and below, in large capital letters, "Franklin Mills Flour," and in the lower right hand corner, in small capital letters, are the words "Rochester Folding Box Company;" that CHAP. VII.] ROBERSON V ROCHESTER FOLDING BOX CO. 935 upon the same paper are the advertisements of the flour of the Franklin Mills Company; that these 25,000 likenesses of the plaintiff, thus ornamented, have been "conspicuously posted and displayed in stores, warehouses and saloons, throughout the United States and other countries, and particularly in the vicin- ity where the plaintifif resides ;" that the result has been to greatly humiliate her, by the scoffs and jeers of persons who have recog- nized her face upon these advertisements, and her good name has been attacked and that, because of these fafcts, "she was made sick and suffered a severe nervous shock, was confined to her bed and was compelled to employ a physician." The plaintiff further alleges that the defendants "are now wrongfully print- ing, making, using, selling and circulating these lithographs," and that, by reason of these facts, she has suffered damages in the sum of $15,000. The relief demanded is that the defendant be enjoined from making, printing, publishing, obtaining, or using, in any manner, any likeness of the plaintiff in any form whatever. The facts contained within these allegations must be regarded as ad- mitted, under the defendants' demurrer ; as must all other facts which can be implied, by reasonable and fair intendment. (Marie V. Garrison, 83 N. Y. 14.) These defendants stand before the court, admitting that they have made, published and circulated, without the knowledge or the authority of the plaintiff, 25,000 lithographic portraits of her, for the purpose of profit and gain to themselves; that these portraits have been conspicuously posted in stores, warehouses and saloons, in the vicinity of the plaintiflF's residence and throughout the United States, as adver- tisements of their goods ; that the effect has been to humiliate her and to render her ill and, yet, claiming that she makes out no cause for action. They say that no law on the statute books gives her a right of action and that her right to privacy is not an actionable ' right, at law or in equity. Our consideration of the question thus presented has not been foreclosed by the decision in Schuyler v. Curtis (147 N. Y. 434.) In that case it appeared that the defendants were intending to make, to exhibit, at the Columbian Exposition of 1893, a statue of Mrs. Schuyler, formerly Miss Mary M. Hamilton, and conspicu- ous in her lifetime for her philanthropic work, to typify "Woman as the Philanthropist," and as a companion piece, a statue of Miss Susan B. Anthony, to typify the "Representative Reformer." The plaintiff, in behalf of himself, as the nephew of Mrs. Schuy- ler, and of other immediate relatives, sought by the action to 936 ROBERSON V. ROCHESTER FOLDING BOX CO. [CHAP. VII. restrain them from carrying out their intentions as to the statue of Mrs. Schuyler ; upon the grounds, in substance, that they were proceeding without his consent (whose relationship was conceded to be such as to warrant such an action, if it were maintainable at all), or that of the other immediate members of the family; that their proceeding was disagseeable to him, because it would have been disagreeable and obnoxious to his aunt, if living, and that it* was annoying to have Mrs. Schuyler's memory associated with principles, which Miss Susan B. Anthony typified and of which Mrs. Schuyler did not approve. His right to maintain the action was denied and the denial was expressly placed upon the ground that he, as a relative, did not represent any right of privacy which Mrs. Schuyler possessed in her lifetime and that, whatever her right had been, in that respect, it died with her. The existence of the individual's right to be protected against the invasion of his privacy, if not actually affirmed in the opin- ion, was, very certainly, far from being denied. "It may be ad- mitted," Judge Peckham observed, when delivering the opinion of the court, "that the courts have power, in some cases, to en- join the doing of an act, where the nature, or character, of the act itself is well calculated to wound the sensibilities of an indi- vidual, and where the doing of the act is wholly unjustifiable, and is,' in legal contemplation, a wrong, even though the existence of no property, as that term is usually used, is involved in the subject." That the individual has a right to privacy, which he can en- force, and which equity will protect against the invasion of, is a proposition which is not opposed by any decision in this court, and which, in my opinion, is within the field of accepted legal principles. It is within the very case supposed by Judge Peck- ham in Schuyler v. Curtis. In the present case, we may not say that the plaintiff's complaint is fanciful, or that her alleged in- jury is, purely, a sentimental one. Her objection to the de- fendants' acts is not one born of caprice ; nor is it based upon the defendants' acts being merely "distasteful" to her. We are bound to assume, and I find no difficulty in doing so, that the conspicuous display of her likeness, in various public places, has so humiliated her by the notoriety and by the public comments it has provoked, as to cause her distress and suffering, in body and in mind, and to confine her to her bed with illness. If it -v^ere necessary, to be entitled to equitable relief, that the plaintiff's sufferings, by reason of the defendants' acts should be CHAP. VII.] ROBERSON V. ROCHESTER FOLDING BOX CO. 937 serious, and appreciable by a pecuniary standard, clearly we might well say, under the allegations of the complaint, that they were of such degree of gravity. However, I am not of the opin- ion that the gravity of the injury need be such as to be capable of being estimated iby such a standard. If the right of privacy exists, and this complaint makes out a case of its substantial vio- lation, I think that the award of equitable relief, by way of an injunction, preventing the continuance of its invasion by the defendants, will not depend upon the complainants' ability, to prove substantial pecuniary damages and, if the court finds the defendants' act to be without justification and for selfish gain and purposes, and to be of such a character, as is reasonably cal- culated to wound the feelings and to subject the plaintiff to the ridicule, or to the corftempt of others, that her right to the pre- ventive relief of equity will follow ; without considering how far her sufferings may be measurable by a 'pecuniary standard. The right of privacy, or the right of the individual to be let alone, is a personal right, which is not without judicial recog- nition. It is the complement of the right to the immunity of one's person. The individual has always been entitled to be protected in the exclusive use and enjoyment of that which is his own. The common law regarded his person and property is inviolate, and he has the absolute right to be let alone. (Cooley on Torts, p. 29.) The principle is fundamental and essential in organized society that every one, in exercising a personal right and in the use of his property, shall respect the rights and properties of others. He must so conduct himself, in the enjoyment of the rights and privileges which belong to him as a member of society, as that he shall prejudice no one in the possession and enjoyment of those which are exclusively his. When, as here, there is an alleged invasion of some personal right, or privilege, the absence of exact precedent and the fact that early commentators upon the common law have no discussion upon the subject are of no material importance in awarding equitable relief. That the exercise of the preventive power of a court of equity is demanded in a novel case, is not a fatal ob- jection. {Niagara Falls Int. Bridge Co. v. Great Western Ry. Co., 39 Barb. 212 ; Sherman v. Skuse, 166 N. Y. 352 ; Hamilton v. Whitridge, 11 Md. 145.) In the social evolution, which is the march of the arts and sciences and in the resultant effects upon organized society, it is quite intelligible that new conditions must arise in personal relations, which the rules of the common law. 938 ROBERSON V. ROCHESTER FOLDING BOX CO. [CHAP. VII. cast in the rigid mould of an earlier social status, were not designed to meet. It would be a reproach to equitable jurispru- dence if equity were powerless to extend the application of the principles of common law, or of natural justice in remedying a wrong, which in the progress of civilization, has been made possible as the result of new social, or commercial conditions. Sir Henry Maine, in his work on Ancient Law, has observed of equity, that it is an agency "by which law is brought into harmony with society," and that it is one of the factors, which operates in judicial evolution. It succeeds legal fictions, or those judicial assumptions, through which a rule of law is modi- fied in its operation, and it precedes legislation. (See Maine's Ancient Law, pp. 22 to 28.) Equity has neither fixed boundar- ies, nor logical subdivisions and its origin, both in Rome and in England, was that there was a wrong for which there was no remedy at law. (See 1st Story Eq. Juris, Sees. 49 and 50.) It supplements the deficiencies of the common law, by applying,, where otherwise there would result a wrong, those principles of natural justice, which are analogous to settled principles of the common law. (See Story's Eq. Jur. Sec. 671, note.) Lord - Chancellor Cottenham observed, in Wall-worth v. Holt (4 Myl & C. 619), "I think it is the duty of this court (meaning equity), to adopt its practice and course of proceeding to the existing sta!te of society and not, by a strict adherence to forms and rules, under different circumstances, to decline- to administer justice and enforce rights for which there is no other remedy. * * * * If it were necessary to go much further than it is, in opposition to some sanctioned opinions, in order to open the doors of this court to those who could not obtain it elsewhere, I should not shrink from the responsibility of doing so." As I have suggested, that the exercise of this peculiar preventive power of a court of equity is not found in some precisely analogous case, furnishes no valid objection, at all, to the assumption of jurisdiction, if the particular circumstances of the case show the performance, or the threatened performance, of an act by a defendant, which is wrongful, because constituting an invasion, in some novel form, of a right to something, which is, or should be conceded to be, the plaintiff's and as to which the law provides no adequate remedy. It would be a justifiable exercise of power, whether the principle of interference be rested upon analogy to some estab- lished common-law principle, or whether it is one of natural justice. In an article in the Harvard Law Review of December CHAP. VII.] ROBERSON V. ROCHESTER FOLDING BOX CO. 939 15th, 1890, which contains an impressive argument upon the sub- ject of the "right of privacy," it was well said by the authors "that the individual shall have full protection in person and in property is a principle as old as the common law ; but it has been found necessary from time to time to define anew the exact nature and extent of such protection. * * * * The right to life has come to mean the right to enjoy life — the right to be let alone ; the right to liberty secures the exercise of extensive civil privileges; and the term 'property' has grown to comprise every form of possession — intangible, as well as tangible." Instantaneous photography is a modern invention and affords the means of securing a portraiture of an individual's face and form, in invitum their owner. While, so far forth as it merely does that, although a species of aggression, I concede it to be an irremediable and irrepressible feature of the social evolution. But, if it is to be permitted that the portraiture may be put to commercial, or other uses for gain, by the publication of prints therefrom, then an act of invasion of the individual's privacy results, possibly more formidable and more painful in its conse- quences, than an actual bodily assault might be. Security of person is as necessary as the security of property; and for that complete personal security, which will result in the peaceful and wholesome enjoyment of one's privileges as a member of society, there should be afforded protection, not only against the scandal- ous portraiture and display of one's features and person, but against the display and use thereof for another's commercial purposes or gain. The proposition is, to me, an inconceivable one that these defendants may, unauthorizedly, use the likeness of this young woman upon their advertisement, as a method of attracting widespread public attention to their wares, and that she must submit to the mortifying notoriety, without right to invoke the exercise of the preventive power of a court of equity. Such a view, as it seems to me, must have been unduly inilu- enced by a failure to find precedents in analogous cases, or some declaration by the great commentators upon the law of a com- mon-law principle which would, precisely, apply to and govern the action; without taking into consideration that, in the exist- ing state of society, new conditions affecting the relations of persons demand the broader extension of those legal principles, which underlie the immunity of one's person from attack. I think that such a view is unduly restricted, too, by a search for some property, which has been invaded by the defendants' acts. 940 ROBERSON V. ROCHESTER FOLDING BOX CO. [CHAP. VII. Property is not, necessarily, the thing itself, which is owned; it is the right of the owner in relation to it. The right to be protected in one's possession of a thing, or in one's privileges, belonging to him as an individual, or secured to him as a mem- ber of the commonwealth, is property, and as such entitled to tlie protection of the law. The protective power of equity is not exercised upon the tangible thing, but upon the right to enjoy it ; and, so, it is called forth for the protection of the right to that which is one's exclusive possession, as a property right. It seems to me that the principle, which is applicable, is analog- ous to that upon which courts of equity have interfered to pro- tect the right of privacy, in cases of private writings, or of other unpublished products of the mind. The writer, or the lecturer, has been protected in his right to a literary prop^y in a letter, or a lecture, against its unauthorized publication; because it is property, to which the right of privacy attaches. (Woolsey v. Judd, 4 Duer. 399; Gee v. Pritchard, 2 Swanst. 402; Abernathy v. Hutchinson, 3 L. J. Ch. 209 ; Folsom v. Marsh, 2 Story, 100.) I think that this plaintiff has the same property in the right to be protected against the use of her face for defendant's commer- citl purposes, as she would have, if they were publishing her literary compositions. The right would be conceded, if she had sat for her photograph; but if her face, or her portraiture, has a value, the value is- hers exclusively, until the use be granted away to the public. . Any other principle of decision, in my opinion, is as repugnant to equity; as it as shocking to reason. Judge Colt, of the United States Court, in Corliss v. Walker Co. (64 Fed. Rep. 280-5), a case involving the same question of an invasion of the right of privacy, with respect to the publication of a printed likeness of Mr. Corliss, expressed the opinion that "independently of the question of contract, I believe the law to be that a private individual has a right to be protected in the representation of his portrait in any form ; that this is a property as well as a personal right, and that it belongs to the same class of rights which forbids the reproduction of a private manuscript or painting, or the publication of private letters, or of oral lec- tures delivered by a teacher to his class, or the revelation of the contents of a merchant's books by a clerk." The case itself is not in point in its facts ; because the complainant was the widow of Mr. Corliss, and thus it came within the limitations of Schuy- ler v. Curtis. The right to grant the injunction does not depend upon the CHAP. VII.] SOBERSON V. ROCHESTER FOLDING BOX CO. 941 existence of property, which one has in some contractual form. It depends upon the existence of property in any right which be- longs to a person. In Pollard v. Photographic Co. (40 Ch. Div. 345), it was held that the right to grant an injunction against selling copies of plaintiff's photographs did not depend upon the existence of property, and that, "it is quite clear that independ- ently of any question as to the right at law, the court of chan- cery always had an original and independent jurisdiction to pre- vent what that court considered and treated as a wrong, whether arising from a violation of an unquestionable right, or from breach of confidence, or contract, as was pointed out by Lord Cottenham in Prince Albert v. Strange (1 Macn. & G. 25.)" In Prince Albert v. Strange, Lord Chancellor Cottenham sustained the issuance of an injunction, upon the ground that the right of privacy had been invaded by the publication and sale of etchings, made by Prince Albert and Queen Victoria. Upon the original hearing, Vice-Chancellor Knight-Bruce, in granting the injunc- tion, observed that, "upon the principle of protecting property, it is that the common law, in cases not aided or prejudiced by statute, shelters the privacy and seclusion of thoughts and senti- ments committed to writing, and desired by the author to re- main not generally known. It would be, in my opinion, an extraordinary view which, while conceding the right of a person to be protected against the unauthorized circulation of an unpublished lecture, letter, draw- ing, or other ideal property, yet, would deny the same protection to a person, whose portrait was unauthorizedly obtained, and made use of, for commercial purposes. The injury to the plain- tiff is irreparable; because she cannot be wholly compensated in darnages for the various consequences entail.ed by defendants' acts. The only complete relief is an injunction restraining their continuance. Whether, as incidental to that equitable relief, she should be able to recover only nominal damages is not material ; for the issuance of the injunction does not, in such a case, depend upon the amount of the damages in dollars and cents. A careful consideration of the question presented upon this appeal leads me to the conclusion that the judgment appealed from should be affirmed. O'Brien, Cullen and Werner, J J., concur with Parker, C. J.; Bartlett and Haight, JJ., concur with Gray, J. Judgment reversed, etc. 942 MENENDEZ V. HOLT. [CHAP. VII. K. TRADEMARKS. MENENDEZ v. HOLT. (128 U. S. 514.) [Supreme Court of the United States, 1888.] Mr. Chief Justice Fuller delivered the opinion of the court: The fact that Holt & Co. were not the actual manufacturers of the flour, upon which they had for years placed the brand in question, does not deprive them of the right to be protected -in the use of that brand as a trademark. They used the words "La Favorita" to designate flour selected by them, in the exercise of their best judgment, as equal to a certain standard. The brand did not indicate by whom the flour was manufactured, but it did indicate the origin of its selection and classification. It was equivalent to the signature of Holt & Co. to a certificate' that the flour was the genuine article which had been determined by them to possess a certain degree of ex- cellence. It did not, of course, in itself indicate quality, for it was merely a fancy name and in a foreign language, but it evi- denced that the skill, knowledge, and judgment of Holt & Co. had been exercised in ascertaining that the particular flour so marked was possessed of a merit rendered definite by their exami- nation and of a uniformity rendered certain by their selection. The case clearly does not fall within the rule announced in Amoskeag Manufacturing Company v. Trainer, 101 U. S. 51, 55 (25 : 993, 994)-, thai? "letters or figures which, by the custom of traders, or the declaration of the manufacturer of the goods to which they are attached, are only used to denote quality, are incapable of exclusive appropriation, but are open to use by anyone, like the adjectives of the language ;" or in Ragget v. Findlater, L. R. 17 Eq. 29, where an injunction to restrain the use upon a trade label of the term "nourishing stout," was refused on the ob- vious ground that "nourishing" was a mere English word denoting quality. And the fact that flour so marked acquired CHAP. VII.] MENENDEZ V. HOLT. 943 an extensive sale, because the public had discovered that it might be relied on as of a uniformily meritorious quality, demonstrates that the brand deserves protection rather than that it should be debarred therfefrom, on the ground, as argued, of being indica- tive of quality only. Burton v. Stratton, 12 Fed Rep. 696; Godillot v. Harris, 81 N. Y. 263; Ransome v. Graham, 51 L. J. Ch. 897. Holt & Co., then, having acquired the exclusive right to the words "La Favorita," as applfed to this particular vendible com- modity, it is no answer to their action to say that there was no invasion of that right because the name of S. O. Ryder accom- panied the brand upon flour sold by appellants, . instead of the name of Holt & Co. That is an aggravation and not a justifica- tion, for it is openly trading in the name of another upon the reputation acquired by the device of the true proprietor. Gillott V. Esterbrook, 47 Barb. 455 ; S. C. 48 N. Y. 374 ; Coats v. Hol- brook, 2 Sandf. Ch. 586. These views dispose of two of the defences specifically urged on behalf of the appellants, and we do not regard that of prior public use, even if it could be properly considered under the pleadings, as entitled to any greater weight. Evidence was given to the effect that from 1857 to 1860 the words "La Favo- rita" were occasionally used in St. Louis by Sears & Co., then manufacturing in that city, as designating a particular flour; but the witnesses were not able to testify that any had been on sale there under that brand (unless it were that of Holt & Co.) for upwards of twenty years. The use thus proven was causal and such little importance apparently attached to it, that it is doubtful whether Sears & Co. could at any time have success- fully claimed the words as a trademark, and, at all events, such use was discontinued before Holt & Co. appropriated the words to identify their own flour, and there was no attempt to resume it. It is argued, however, that the title of Holt & Co. to the use of the mark was not superior to that of S. O. Ryder, because it is said that Ryder, upon leaving the firm, took with him his share of the good will of the business, and consequently of the trademarks, and hence that the defendants below rightfully sold flour under the brand "La Favorita," when selected by Ryder and so marked by him. Good will was defined by Lord Eldon in Crutwell v. Lye, 17 Ves. 335, 346, to be "nothing more than the probability that the old customers will resort to the old place," but Vice-Chancellor 944 MENENDEZ V. HOLT. [CHAP. VII. Woodj in Churton v. Douglass, Johns (H. R. V.) 174, 188, says it would be taking too narrow a view of what is there laid down by Lord Eldon, to confine it to that, but that it must mean every positive advantage that has been acquired by the old firm in the progress of its business, whether connected with the prem- ises in which the business was previously carried on, or with the name of the late firm, or with any other matter carrying with it the benefit of the business. It may be that where a firm is dissolved and ceases to exist under the old name, each of the former partners would be allowed to obtain "his share" in the good will so far as that might consist in the use of trademarks, by continuing such use in the absence of stipulation to the contrary ; but when a partner retires from a ■firm, assenting to or acquiescing in the retention by the other partners of possession of the old place of business, and the fu- ture conduct of the business by them under the old name, the good will remains with the latter as of course. Holt & Co. commenced business in 1845, and had had an uni- terrupted existence under that name since 1855; the trademark in question was adopted by the senior member of the firm in 1861, and had been thereafter in continuous use; Ryder became a partner in 1861 and retired February 1, 1869, when a circular was issued, in which he participated, announcing the dissolution by his retirement, the continuance of the business by the other partners under the same firm name, and the formation of another partnership by Ryder with one Rowland, to transact the flour and commission business at another place, under the name of Rowland & Ryder. In addition to these facts, it is established,' by the preponder- ance of evidence, that it was verbally agreed, at the time Ryder retired, that he surrendered all interest in the brands belonging to Holt & Co. Ryder attempts to deny this, but his denial is so qualified as to render it unreliable against the direct and positive character of the evidence to the contrary. Indeed, when asked why the brands were not made the subject of appraisement, when he went out, as it was conceded all the other property of the firm was, he says, that it was because he "gave up all right, title and interest to those valuable brands to Robert S. Holt, out of friendship, so there was no occasion for it." In our judgment, Ryder's claim to any interest in the good will of the business of Holt & Co., including the firm's trademarks, ended with his withdrawal from that firm. CHAP. VII.] MENENDEZ V. HOLT. 945 Counsel in conclusion earnestly contends that whatever rights appellees may have'had were lost by laches, and the desire is inti- mated that we should reconsider McLean v. Fleming, 96 U. S. 245 (24:828), so far as it was therein stated that even though a complainant were guilty of such delay in seeking relief upon infringement as to preclude him from obtaining an account of gains, and profits, yet, if he were otherwise so entitled, an injunc- tion against future infringement might properly be awarded. We see no reason to modify this general proposition, and we do not find in the facts as disclosed by the record before us anything to justify us in treating this case as an exception. The intentional use of another's trademark is a fraud, and when the excuse is tj?at the owner permitted such use, that excuse is disposed of by affirmative action to put a stop to it. Persistence then in the use is not innocent, and the wrong is a continuing one, demanding restraint by judicial interposition when properly invoked. Mere delay or acquiescence cannot defeat the remedy by injunction in support of the legal right, unless it has been continued so long and under such circumstances as to defeat the right itself. Hence, upon an application to stay waste, relief will not be refused on the ground that, as the de- fendant had been allowed to cut down half of the trees upon the complainant's land, he had acquired, by that negligence, the right to cut down the remainder. Attorney-General v. Eastlake, 11 Hare, 205. Nor will the issue of an injunction against the infringement of a trademark be denied on the ground that mere procrastination in seeking redress for depredations had deprived the true proprietor of his legal right. Fullwood v. . Fullwood, L. R. 9 Ch. Div. 176. Acquiescence to avail must be such as to create a new right in the defendant. Rodgers v. Nowill, 3 De Gex, M. & G. 614. Where consent by the owner to the use of his trademark by another is to be inferred from his knowledge and silence merely, "It lasts no longer than the silence from which it springs ; it is in reality, no more than a revocable license." Duer, J., Amoskeag Mfg. Co. v. Spear, 2 Sandf. 599; Julian v. Hoosier Drill Co. 78 Ind. 408 ; Taylor v. Carpenter, 3 Story, 458 ; S. C. 2 Woodb. M. 1. So far as the act complained of is cornpleted, acquiescence may defeat the remedy on the principle applicable when action is taken on the strength of encouragement to do it ; but so far as the act is in progress and lies in the future, the right to the intervention of equity is not generally lost by previous delay, in respect to 60 946 Lie. VICTUAL'RS' NEWSP. CO. v. BINGHAM. [CHAP. VII. which the elements of an estoppel could rarely arise. At the same time, as it is in the exercise of discretionary jurisdiction that the doctrine of reasonable diligence is applied, and those who seek equity must do it, a court might hesitate as to the measure of relief, where the use, by others, for a long period, under assumed permission of the owner, had largely enhanced the reputation of a particular brand. But there is nothing here in the nature of an estoppel, nothing which renders it inequitable to arrest at this stage any further invasion of the complainants' rights. There is no pretence of abandonment. That would require proof of non-user by the owner or general surrender of the use to the public. The evidence is positive that Holt & Co. continuously used the trademark, al- ways asserted their exclusive right to it, and never admitted that of any other firm or person, and, in the instance of every party, • including Ryder, who used this brand on flour not of Holt & Co.'s selection, that use, when it came to their knowledge, was objected to by the latter, and personal notice given, while publi- cation was also made in the newspapers, circulating where the flour was usually marketed, containing a statement of Holt & Co.'s rights and warning against imitations. It is idle to talk of acquiescence in view of these facts. Delay in bringing suit there was, and such delay as to preclude recovery for damages for prior infringement ; but there was neither conduct nor negligence which could be held to destroy the right to prevention of further injury. The decree of the Circuit Court will therefore be affirmed. LICENSED VICTUALLERS' NEWSPAPER COMPANY V. BINGHAM. (L. R. 38 Ch. Div. 139.) [Chancery Divis-ion, 1888.] The plaintiff company was registered as a joint stock company on the 28th of January, 1888. On the 3d of February they pub- lished the first number of a weekly newspaper called "The Li- censed Victuallers' Mirror," and on the 4th they were registered as proprietors of Stationer's Hall. They duly deposited copies at the British Museum. Some advertisements of the intention to publish such a paper had been issued, but they did not mention CHAP. VII.] Lie. VICTUAl'rs' NEWSP. CO. V. BINGHAM. 947 its name, and no advertisement containing the name was published till the 6th of February. On the 6th of February the defendant Bingham published the first number of a weekly newspaper with the same name, registered it at Somerset House, under the News- paper Libel and Registration Act, 1881, on the same day, and entered it at Stationer's Hall under 5 and 6 Vict. c. 45. Mr. Gale, the plaintiff's managing director and editor, on the 23d of February deposed that about 100 copies of each of Nos. 1 and 2 had been sold, and that many times that number of copies had been sold of No. 3, which, appeared on the 17th. No particu- lars were given as to the times of the sales. The action was commenced on the 10th of February to restrain Bingham and his publishers from printing, publishing, selling, or disposing of, and from advertising, offering, or exposing for sale any newspaper by the name of "The Licensed Victuallers' Mir- ror," or by any other name so similar to "The Licensed Victual- lers' Mirror," as to induce the public to believe that such newspa- per was that of the plaintiffs published under the aforesaid title. It was deposed to by Mr. Gale, the managing director of the plaintiff company, that in January, 1888, the defendants regis- tered the following newspaper titles, viz., op the 20th of January, "The Licensed Victuallers' Chronicle ;" on the 24th, "The Li- censed Victuallers' Herald," and on the 26th, twenty-six titles, each commencing with "The Licensed Victuallers' ;" but "The Licensed Victuallers' Mirror" did not occur among them. The plaintiff moved before Mr. Justice North for an injunc- tion on the 24th of February, 1888. Cotton, L. J. This is an appeal from a decision of Mr. Justice North refusing an injunction to restr,ain the defendants from continuing to publish a paper with the same name as that of the plaintiffs. The cases where such injunctions have been granted depend on this : That the plaintiffs have obtained by user such a title to the name that another person can be restrained from using it, because by using it he would be passing off his paper as the paper of the plaintiffs. Here the plaintiffs registered their paper on the 3d of February last. It is admitted that mere registration gives no right to the exclusive use of the name. On the 3d of February the plaintiff sold five copies ; on the 4th ten copies, and by the 9th eighty copies in all. That small sale cannot give a right to the title on the ground of reputation. An attempt has been made to get the benefit of the much larger sale which shortly afterwards took place. But the question is, how did the case stand 948 CANAL COMPANY V. CLARK. [CHAP. VII. on the .6th, when the defendants commenced their publication. It cannot be successfully contended that at that time the plaintiffs could have become exclusively entitled to the name on the ground of its being better known as connected with their paper than as connected with that of the defendants. CANAL COMPANY v. CLARK. (13 Wall. 311.) [Supreme Court of the United States, 1871.] This was an action by the plaintiff for an injunction to restrain the defendant from using the name, "Lackawanna Coal," as a trademark. Mr. Justice Strong delivered the opinion of the court : The first and leading question presented by this case is whether the complainants have an exclusive right to the use of the words "Lackawanna Coal" as a distinctive name or trademark for the coal mined by them and transported over their railroad and canal to market. They commenced mining on their land in the Lackawanna Val- ley about the year 1828, and they have ever since been engaged in taking out coal and carrying it to the Hudson River and to the markets of the country. The averment of their bill is, that about the time they commenced their operation they sought out, devised and adopted the name "Lackawanna Coal" as a spiecial, particular and distinctive name or trademark, by which their coal might be introduced to dealers as the product of their mine, in distinction from the coal of other producers, and that prior to their adoption of the word "Lackawanna" it had never been adopted or used in combination with the word "coal" as a name or trademark for any -kind of coal. Their bill also avers that ever since their adoption of the name, their coal has been called and known in the market as "Lackawanna Coal," and by no other name. The averments of the bill are supported by no inconsiderable evidence. The complainants were undoubtedly, if not the first, among the first producers of coal from the Lackawanna Vajley, and the coal sent to market by them has been generally known and designated as Lackawanna coal. Whether the name "Lack- CHAP. VII.] CANAL COMPANY V. CLARK. 949 awanna Coal" was devised or adopted by them as a trademark before it came into common use is not so clearly established. On the contrary, the evidence shows that long before the complain- ants commenced their operations, and long before they had' any existence as a corporation, the region of country in which their mines were situated was called "The Lackawanna Valley;" that it is a region of large dimensions, extending along the Lack- awanna River to its junction with the Susquehanna, embracing within its limits great bodies of coal lands, on a portion of which are the mines of the complainants, and upon other portions of which are the mines of the Pennsylvania Coal Company, those of the Delaware, Lackawanna and Western Railroad Company, and those of other smaller operators. The word "Lackawanna," then, was not devised by the complainants. They found it a settled and known appellative of the district in which their coal deposits and those of others were situated. At the time when they began to use it, it was a recognized description of the region, and of course of the earths and minerals in the region. The bill alleges, however, not only that the compainants de- vised, adopted and appropriated the word, as a name or trade- mark for their coal, but that it had never before been used or applied in combination with the word "coal" as a name or trade- mark for any kind of coal, and it is the combination of the word "Lackawanna" with the word "coal" that constitutes the trade- mark to the exclusive use of which they assert a right. It may be observed there is no averment that the other coal of the Lackawanna Valley differs at all in character or quality from that mined on the complainants' lands. On the contrary, the bill alleges that it cannot easily be distinguished therefrom -by inspection. The bill is therefore an attempt to secure to the complainants the exclusive use of the name "Lackawanna Coal," as applied, not to any manufacture of theirs, but to that portion of the coal of the Lackawanna Valley which they mine and send to market, differing neither in nature or quality from all other coal of the same region. Undoubtedly, words or devices may be adopted as trademarks which are not original inventions of him who adopts them, and courts of equity will protect him against any fraudulent appro- priation or imitation of them by others. Property in a trademark, or rather in the use of a trademark or name, has very little anal- ogy to that which exists in copyrights or in patents for inventions. Words in common use, with some exceptions, may be adopted. 950 CANAL COMPANY V. CLARK. [CHAP. VII. if at the time of their adoption they were not employed to desig- nate the same, or Hke articles of production. The office of a trade- mark is to point out distinctively the origin or ownership of the article to which it is affixed; or, in other words, to give notice who was the producer. This may, in many cases, be done by a name, a mark, or a device well known, but not previously applied to the same article. But though it is not necessary that the word adopted as a trad? name should be a new creation, never before known or used> there are some limits to the right of selection. This will be mani- fest when it is considered that in all cases where rights to the exclusive use of a trademark are invaded, it is invariably held that the essence of the wrong consists in the sale of the goods of one manufacturer or vendor as those of another; and that it is only when this false representation is directly or indirectly made that the party who appeals to a court of equity can have relief. This is the doctrine of all the authorities. Amoskeag Mfg. Co. v. Spear, 2 Sandf . S. C. 599 ; Boardman v. Meriden Britannia Com- pany, 35 Conn. 402; Farina v. Silverlock, 39 Eng. L. & E. 514. Hence the trademark must either by itself, or by association, point distinctively to the origin or ownership of the article to which it is applied. The reason of this is that unless it does, neither can he who first adopted it be injured by any appropriation or limitation of it by others, nor can the public be deceived. The first appropriator of a name or device pointing to his owneirship, or which, by being associated with articles of trade, has acquired an understood reference to the originator, or manufacturer of the articles, is injure'd whenever another adopts the same name or device for similar articles, because such adoption is in effect representing falsely that the productions of the latter are those of the former. Thus the custom and advantages- to which the enterprise and skill of the first appropriator had given him a just right are abstracted for another's use, and this is done by deceiv- ing the public, by inducing the public to purchase the goods and manufactures of one person supposing them to be those of an- other. The trademark must, therefore, be distinctive in its original signification, pointing to the origin of the article, or it must have become such by association. And there are two rules which are not to be overlooked. No one can claim protection for the exclu- sive use of a trademark or trade name which would practically give him a monopoly in the sale of any goods, other than those CHAP. VII.] CANAL COMPANY V. CLARK. 951 produced or made by himself. If he could, the public would be injured rather than protected, for competition would be destroyed. Nor can a generic name, or a name merely descriptive of an article of trade, of its qualities, ingredients, or characteristics,- be em- ployed as a trademark and the exclusive use of it be entitled to legal protection. As we said in the well considered case of Amos- keag Mfg. Co. v. Spear {supra), "the owner of an original trade- mark has an undoubted right to be protected in the exclusive use of all the marks, forms or symbols that were appropriated as designating the true origin or ownership of the article or fabric to which they are afiSxed ; but he has no right to the exclusive use of any words, letters, figures or symbols, which have no relation to the origin or ownership of the goods, but are only meant to indicate their names or quality. He has no right to appropriate a sign or a symbol, which, from the nature of the fact it is used to signify, others may employ with equal truth and, therefore, have an equal right to employ for the same purpose." Vide, Wolfe V. Goulard, 18 How. Pr. 64 ; Fetridge v. Wells, 4 Abb. Pr. 144; Town v. Stetson, 5 Abb. Pr. (N. S.), 218; Phalon v. Wright, 5 Phila. (Pa.) 464; Singleton v. Bolton, 3 Doug. (26 E. C. L.), 293; Perry v. Trueiitt, 6Beav. 66; Canham v. Jones, 2 V. & B. 218; Millington v. Fox, 3 Myl. & Cr. 338. And it is obvious that the same reasons which forbid the exclu- sive appropriation of generic names or of those merely descrip- tive of the article manufactured and which can be employed with truth by other manufacturers, apply with equal force to the appro- priation of geographical names, designating districts of Country. Their nature is such that they cannot point to the origin (per- sonal origin) or' ownership of the articles of trade to which they may be applied. They point only at the place of production, not to the producer, and could they be appropriated exclusively, the appropriation would result in mischievous monopolies. Could such phrases as "Pennsylvania wheat," "Kentucky hemp," "Vir- ginia tobacco," or "Sea Island cotton" be protected as trade- marks? Could anyone prevent all others from using them or from selling articles produced in the districts they describe under those appellations, it would greatly embarrass trade, and secure exclusive rights to individuals in that which is the common right of many. It can be permitted only when the reasons that lie at the foundation of the protection given to trademarks are entirely overlooked. It cannot be said that there is any attempt to deceive the public when one sells as Kentucky hemp, or as Lehigh coal, 952 CANAL COMPANY V. CLARK. [CHAP. VII. that which in truth is such, or that there is any attempt to appro- priate the enterprise or business reputation of another who may have previously sold his goods with the same description. It is not selling one man's goods as and for those of another. Nothing is more common than that a manufacturer sends his products to market, designating them by the name of the place where they were made. But we think no case can be found in which other producers of similar products in the same place have been re- strained from the use of the same name in describing their goods. It is true that in the case of Brooklyn White Lead Co. v. Masury, 25 Barb. 416, where it appeared that the defendant (at first sell- ing his product under the. name "Brooklyn white lead") had added to the name the word "Company" or "Co.," which made it an imitation of the plaintiff's trademark though he was not a company, he was enjoined against the use of the added word. It was a case of fraud. He had assumed a false name in imitation of a prior true one, and with the obvious design of leading the public to think his manufacture was that of the plaintiff. But the court said, as both the plaintiff and defendant dealt in the same article, and both manufactured it at Brooklyn, each had the same right to describe it as Brooklyn white lead. We have been referred by the plaintiffs to three decisions which are supposed to justify the adoption of the name simply of a dis- trict "or town, as a trademark. One of these is Newman v. Alvord, 49 Barb. 588. There it appeared that the complainants had been manufacturers of cement or water-lime at Akron, from beds in the neighborhood in that place, for about thirteen years, and that they had always desig- nated and sold their products as "Akron cement," and "Akron water-lime." The defendants commenced a similar business twelve years later, and manufactured cement from quarries situated near Syratuse, in Onondago County, and called their product "Onon- dago Akron cement, or water-lime." It was not in fact Akron cement (for Akron and Syracuse were a long distance from each other), and the purpose of calling it such was evidently to induce the public to believe that it was the article made by the plaintiffs. The act of the defendants was, therefore, an attempted fraud, and they were restrained from applying the word "Akron" to their manufacture. But the case does not rule ,that any other manufacturer at Akron might not have called his product "Akron cement," or "Akron water-lime." On the contrary, it substantially concedes CHAP. VII.] CANAL COMPANY V. CLARK. 953 that the plamtiifs, by their prior appropriation of the name of the town in connection with the words cement and lime ac- quired no exclusive right to its use, as against anyone who could use it with truth. McAndrews v. Bassett, 10 Jur. (N. S.), 540, is another case cited by the complainants. The plaintiffs in that case were manu- facturers of licorice made from roots and juice imported from Anatolia and Spain, and they sent their goods to market stamped "Anatolia." Soon afterwards the defendants made to order from a sample of the plaintiff's licorice, other licorice which they also stamped "Anatolia." It was a clear case of an attempt to imitate the mark previously existing, and to put upon the market the new manufacture as that of,the first manufacturers. It does not appear, from the report of the case, that the juice or roots from which the defendants' article was made came from Anatolia. If not, their mark was false. Of course the Lord Chancellor enjoined them. In answer to the argument that the word "Anatolia" was in fact the geographical designation of a whole country, a word common to all, and that therefore there could be no property in it, he said, "Property in the word for all purposes cannot exist; but property in that word as applied by way of stamp upon a stick of licorice does exist the moment a stick of licorice goes into the market so stamped and obtains acceptance and reputation in the market." It was not merely the use of the word, but its applica- tion by way of stamp upon each stick of licorice that was pro- tected. Nothing in this case determines that a right to use the name of a region of country as a trademark for an article may be acquired to the exclusion of others who produce or sell a sim- ilar article coming from the same region. Nor is such a doctrine to be found in Seixo v. Provezende, L. R., 1 Ch. App., 192, the remaining case cited by the complanants. The case turned upon an imitation of the plaintiff's device, which was the figure of a coronet combined with the word "Seixo," a word which can hardly be said to have been the name of a dis- trict of country. It means stony, and though applied to two es- tates, it was also the name of the plaintiff. Yet nothing in the decision warrants the inference that the word "Seixo" could alone become a trademark for any article, much less that it could be protected as a trademark for any article to the exclusion of its use in describing other articles coming from the same estate. It must then be considered as sound doctrine that nq one can apply the name of a district of country to a well known article 954 CANAL COMPANY V. CLARK. [CHAP. VII. of commerce, and obtain thereby such an exclusive right to the application as to prevent others inhabiting the district or deahng in similar articles coming from the district, from truthfully using the same designation. It is only when the adoption or imitation of what is claimed to be a trademark amounts to a false repre- sentation, express or implied," designated or incidental, that there is any title to relief against it. True, it may be that the use by a second producer, in describing truthfully his product, of a name or a combination of words already in use by another, may have the effect of causing the public to mistake as to the origin or own- ership of the product; but if it is just as true in its application to his goods as it is to those of another who first applied it and who, therefore, claims an exclusive right to use it, there is no legal or moral wrong. Purchasers may be mistaken, but they are not deceived by false representations, and equity will not enjoin against telling the truth. These principles, founded alike on reason and authority, are decisive of the present case,, and they relieve us from the consid- eration of much that was pressed upon us in the argument. The defendant ha« advertised for sale and he is selling coal not ob- tained from the plaintiffs, not mined or brought to market by them, but coal which he purchased from the Pennsylvania Coal Company, or from the Delaware, Lackawanna and Western Rail- road Company. He has advertised and sold it as Lackawanna coal. It is in fact coal from the Lackawanna region. It is of the same quality and same general appearance as that mined by the complainants. It is taken for the same veins or strata. It is truly described by the term "Lackawanna coal," as is the coal of plain- tiffs. The description does not point to its origin or ownership, ' nor indicate in the slightest degree the person, natural or artifi- cial, who mined the coal or brought it to market. All the coal taken from that region is known or has been known for years by the trade, and rated in public statistics as Lackawanna coal. True the Delaware, Lackawanna and Western Railroad Company have sometimes called their coal Scranton coal and sometimes Scranton coal from the Lackawanna, and the Pennsyl- vania Coal Company have called theirs "Pittston coal," thus refer- ring to the parts of the region in which they mine. But the gen- eric name, the comprehensive name for it all is Lackawanna coal. In all the coal regions there are numerous collieries, owned and operated by different proprietors, yet the product i§ truly and rightfully described as Schuylkill, Lehigh or Lackawanna coal, ac^ CHAP. VII.] MANHATTAN MEDICINE CO. V. WOOD. 955 cording to the region from which it comes. We are therefore of opinion that the defendant has invaded no right to which the plain- tiffs can maintain a claim. By advertising and selling coal brought from the Lackawanna Valley as Lackawanna coal, he has made no false representation, and we see no evidence that he' has at- tempted to sell his coal as and for 'coal of the plaintiffs. If the public are led into mistake, it is by the truth, not by any false pretense. If the complainants' sales are diminished, it is because they are not the only producers of Lackawanna coal, and not because of any fraud of the defendant. The decree of the Circuit Court dismissing the bill must, therefore, be affirmed. The decree of the Circuit Court is afHrmed. MANHATTAN MEDICINE COMPANY v. WOOD. (108 U. S. 218.) [Supreme Court of the United States, 1882.] Copyright by the Banks Law Publishing Company. Bill in equity to restrain the defendants from using an alleged trade-mark of the complainant, upon certain medicine prepared by them, and to compel an accounting for the profits made from its use in their sale of the medicines; also, the pay- ment of damages for their infringement of the complainant's rights. The plaintiff obtained from one Moses Atwood, of George- town, Massachusetts, the recipe and right to manufacture At- wood's Bitters. It used the trade-mark "Atwood's Vegetable Physical Jaundice Bitters," and also stated on the label that it was manufactured by Moses Atwood, Georgetown, Mass., and sold by his agents throughout the United States. The bill alleged that the defendants were manufacturing at Portland, Maine, an imitation medicine and putting it up in bottles similar to those used by the plaintiff, and using the same labels and trade-mark. Mr. Justice Field delivered the opinion of the court. Opinion of the Court. In the view we take of the case, it will not be necessary to consider the first defense mentioned, nor the second, so far as 956 MANHATTAN MEDICINE CO. V. WOOD. [CHAP. VII. to determine whether the right to use the words mentioned as a trade-mark was forfeited absolutely by the assignor's mis- representations as to the manufacture of the article. It is suf- ficient for the disposition of the case, that the misrepresentation has been continued by the complainant. A court of equity will extend no aid to sustaiQ a claim to a trade-mark of an article which is put forth with a misrepresentation to the public as to the manufacturer of the article, and as to the pface where it is manufactured, both of which particulars were originally circum- stances to guide the purchaser of the medicine. It is admitted that whatever value the medicine possesses was given to it by its original manufacturer, Moses Atwood. He lived in Georgetown, Mass. He manufactured the medicine there. He sold it with the designation that it was his prepara- tion, "Atwood's Vegetable Physical Jaundice Bitters," and was manufactured there by him. As the medicine was "tried and proved to be useful, it was sought for tinder that designation, and thaf purchasers might not be misled, it was always accom- panied with a label,, showing by whom and at what place it was prepared. These statements were deemed important in promot- ing the use of the article and its sale, or they would not have been continued by the assignees of the original inventor. And yet they could not be used with any honest purpose when both statements had ceased to be true. It is not honest to state that a medicine is manufactured by Moses Atwood, of Georgetown, Mass., when it is manufactured by the Manhattan Medicine Com- pany in the city of New York. Any one has an unquestionable right to affix to articles manu- factured by him a mark or device not previously appropriated, to distinguish them from articles of the same general character manufactured or sold by others. He may thus notify the public of the origin of the article and secure to himself the benefits of any particular excellence it may possess from the manner or materials of its manufacture. His trade-mark is both a sign of the quality of the article and an assurance to the public that it is the genuine product of his manufacture. It thus often becomes of great value to him, and in its exclusive use the court will protect him against attempts of others to pass off their products upon the public as his. This protection is afforded not only as a matter of justice to him, but to prevent' imposition upon the public. Manufacturing Co. v. Trainer, 101 U. S. 51. CHAP. VII.] MANHATTAN MEDICINE CO. V. WOOD. 957 The object of the trade-mark being to indicate, by its meaning or association, the origin or ownership of the article, it would seem that when a right to its use is transferred to others, either by act of the original manufacturer or by operation of law, the fact of transfer should be stated in connection with its use; otherwise a deception would be practiced upon the public, and the very fraud accompUshed, to prevent which courts of equity interfere to protect the exclusive right of the original manufac- turer. If one affix to goods of his own manufacture signs or marks which indicate that -they are the manufacture of others, he is deceiving the public and attempting to pass upon them goods as possessing a quality and merit which another's skill has given to similar articles, and jvhich his own manufacture does not pos- sess in the estimation of purchasers. To put forth a statement, therefore, in the form of a circular or label attached to an article, that it is manufactured in a particular place, by a person whose manufacture there had acquired a great reputation, when, in fact, it is manufactured by a different person at a different place, is a fraud upon the public which no court of equity will counten- ance. This doctrine is illustrated and asserted in the case of The Leather Cloth Company (limited) v. The American Leather Cloth Company (limited), which was elaborately considered by Lord Chancellor Westbury, and afterwards in the House of Lords on appeal from his decree. 4 DeG. J. & S. 137, and 11 House of Lords' Cases, 523. In that case, an injunction was asked to restrain the defendant from using a trade-mark to designate leather cloth manufactured by it, which trade-mark the complainant claimed to own. The article known as leather cloth was- an American invention, and was originally manufactured by J. R. & C. P. Crockett, at Newark, New Jersey. Agents of theirs sold the article in Eng- land as "Crockett's Leather Cloth." Afterwards a company was formed entitled "The Crockett International Leather Cloth Company," and the business previously carried on by the Crock- etts was transferred to this company, which carried on busi- ness at Newark, m America, as a chartered company, and at West Ham, in England, as a partnership. In 1856, one Dodge took out a patent in England for tanning leather cloth and transferred it to this company. In 1857 the complainant com- pany was incorporated, and the international company sold and assigned to it the business carried on at West Ham, together 958 MANHATTAN MEDICINE CO. V. WOOD. [CHAP. VII. with the letters patent, and full authority to use the trade-mark which had been previously used by it in England. A small part of the leather cloth manufactured by the complainant company was tanned or patented. It, however, used a label which repre- sented that the articles stamped with it were the goods of the Crockett International Leather Cloth Company; that they were manufactured by J. R. & C. P. Crockett; that they were tanned leather cloth ; that they were patented by* a patent obtained in 1856, and were made either in the United States or at West Ham, in England. Each of the statements or representations was un- true so' far as they applied to the goods made, and sold by the complainant. The defendant having used on goods manufactured by it a mark having some resemblance to that used by the complainant, the latter brought suit to enjoin the use. Vice-Chancellor Wood granted the injunction, but on appeal to the Lord Chancellor the decree was reversed and the bill dismissed. In giving his de- cision the Lord Chancellor said that the exclusive right to use a trade-mark with respect to a vendible commodity is rightly called property; that the jurisdiction of the court in the protection of trade-marks rests upon property, and that the court interferes by injunction because that is the only mode by which property of that description can be effectually protected. But, he added: "When the owner of the trade-mark applies for an injunction to Restrain the defendant from injuring his property by making false representations to the public, it is essential that the plaintiff should not in his trade-mark, or in the business connected with it, be himself guilty of any false or misleading representation; for if the plaintiff makes any material false statement in connection with the property he seeks to protect, he loses, and very justly, his right to claim the assistance of a court of equity." And again: "Where a symbol or label, claimed as a trade-mark, is so constructed or worded as to make or contain a distinct assertion which is false, I think no property can be claimed in it, or, in other words, the right to the exclusive use of it cannot be maintained." . When the case reached the House of Lords the correctness of this doctrine was recognized by Lord Cranworth, who said that of the justice of the principle no one could doubt; that it is founded in honesty and good sense, and rests on authority as well as on principle, although the decision of the House was placed on another ground. The soundness of the doctrine declared by the Lord Chancel- lor has been recognized in numerous cases. Indeed, it is but CHAP. VII.] MANHATTAN MEDICINE CO. V. WOOD. 959 an application of the common maxim that he who seeks equity must present himself in court with clean hands. If his case discloses fraud or deception or misrepresentation on his part, relief there will be denied. Long before the case cited was before the courts, this doctrine was applied when protection was sought in the use of trade- marks. In Pidding v. How, 8 Simons, 477, which was before Vice-Chancellor Shadwell in 1837, it appeared, that the com- plainant was engaged in selling a mixed tea, composed of dif- ferent kinds of black tea, under the name of "Howqua's Mix- ture," in packages having on three of their sides a printed label with those words. The defendant having sold tea under the same name,^ and in packages with similar labels, the complainant applied for an injunction to restrain him from so doing. An ex parte injunction, granted in the first instance, was dissolved, it appearing that the complainant had made false statements to the public as to the teas of which his mixture was composed, and as to the mode in which they were procured. "It is a clear rule," said the vice-chancellor, "laid down by courts of equity, not to extend their protection to persons whose case is not founded in truth." In Perry v. TrueUtt, 6 Beav. 66, which was before Lord Lang- dale, master of the rolls, in 1842, a similar ruling was had. There it appeared that one Leathart had invented a mixture for the hair, the secret and recipe for making which he had con- veyed to the plaintiff, a hair dresser and perfumer, who gave to the composition the name of "Medicated Mexican Balm," and sold it as "Perry's Medicated Mexican Balm." The defendant, one Truefitt, a rival hair dresser and perfumer, commenced selling a composition similar to that of plaintiff, in bottles with labels closely resembling those used by him. He designated his composition and sold it as "Truefitt's Medicated Mexican Balm." The plaintiif thereupon filed his bill, alleging that the name or designation of "Medicated Mexican Balm" had become of great value to him as his trade-mark, and seeking to restrain the defendant from its use. It appeared, however, that the plaintiff, in his advertisements to the public, had falsely set forth that the composition was "a highly concentrated extract from vegetable balsamic productions" of Mexico and was prepared from "an original recipe of the learned J. F. Von Blumenbach, and was recently presented to the proprietor by a very near relation of that illustrious physiologist ;" and the court, therefore, 960 MANHATTAN MEDICINE CO. V. WOOD. [CHAP. VII. refused the injunction, the master of the rolls holding that, m the face of such a misrepresentation, the court would not inter- pose in the first instance, citing with' approval the decision in the case of Pidding v. How. In a case in the superior court in the city of New York, Fetridge v. Wells, 4 Abbott (N. Y.), 144, this subject was very elaborately and ably treated by Chief Justice Duer. The plaintiff there had purchased a recipe for niaking a certain cosmetic, which he sold under the name of "The Balm of a Thousand Flowers." The defendants commenced the manufacture and sale of a simi- lar article, which they called "The Balm of Ten Thousand Flowers." The complainant, claiming the name used by him as a trade-mark, brought suit to enjoin the defendants in the alleged infringement upon his rights. A temporary injunction was granted, but afterwards, upon the coming in of the proofs, it was dissolved. It appeared that the main ingredients of the compound were oil, ashes and alcohol, and not an extract or distillation from flowers. Instead of being- a balm, the com- pound was a soap. The court said it was evident that the name was given to it and used to deceive the public, to attract and "impose upon purchasers; that no representation could be more material than that of the ingredients of a compound recom- mended and sold as a medicine; that there was none so likely to induce confidence in its usie, and none, when false, that would more probably be attended with injurious consequences. And, it also said: "Those who come into a court of equity, seeking equity, must come with pure hands and a pure conscience. If they claim relief against the frauds of others, they must themselves be free from the imputation. If the sales made by the plaintiff and his firm are effected, or sought to be, by mis- representation and falsehood, they cannot be listened to when they com- plain that, by the fraudulent rivalry of others, their own fraudulent profits are diminished. An exclusive privilege for deceiving the ptiblic is assur- edly not one that a court of equity can be required to aid or sanction. To do so would be to forfeit its name and character." See also Seabury v. Grosvenor, 14 Blatchford, 262 ; Hobbs v. Francais, 19 How. (N. Y.) 567; Connell v. Reed, 128 Mass. 477; Palmer v. Harris, 60 Penn. St. 156. The doctrine enun- ciated in all these cases is founded in honesty and good sense ; it rebukes fraud and encourages fair dealing with the public. In conformity with it, this case has no standing before a court of equity. The decree of the court below dismissing the bill must there- fore be affirmed; and it is so ordered. CHAP. VII.] LUMLEY V. WAGNER. 961 L. CONTRACTS FOR PERSONAL SERVICES. LUMLEY V. WAGNER. (1 De Gex, M. & G. 604.) [Court of Appeal in Chancery, 1852.] The bill in this suit was filed on the 22d April., 1852, by Ben- jamin Lumley, the lessee of Her Majesty's Theatre, against Jo- hanna Wagner, Albert Wagner, her father, and Frederick Gye, the lessee of Covent Garden Theatre ; it stated that in November, 1851, Joseph Bacher, as the agent of the defendants Albert Wag- ner and Johanna Wagner, came to and concluded at Berlin an agreement in writing in the French language, bearing date the 9th November, 1851, and which agreement being translated into English was as follows: "The undersigned Mr. Benjamin Lumley, possessor of. Her Majesty's Theatre at London, and of the Italian Opera at Paris, of the one part, and ■ Mademoiselle Johanna Wagner, cantatrice, of the Court of His Majesty the King of Prussia, with the consent of her father, Mr. A. Wagner, residing at Berlin of the other part, have concerted and concluded the following contract: First, Mademoiselle Johanna Wagner binds herself to sing three months at the theatre of Mr. Lumley, Her Majesty's, at London, to date from the 1st of April, 1852 (the time necessary for the journey comprised therein), and to give the parts following: 1st. Romeo, Montecchi; 2nd. Fides, Prophete; 3rd. Valentine, Huguenots; 4th. Anna, Don Juan; 5th. Alice, Robert le Diable; 6th. An opera chosen by common accord. Second. The three first parts must necessarily be, 1st, Romeo, 2nd, Fides, 3rd, Valen- tine ; these parts once sung, and then only she will appear, if Mr. Lumley desires it, in the three other operas mentioned aforesaid. Third, These six parts belong exclusively to Mademoiselle. Wag- ner, and any other cantatrice shall not presume to sing them dur- ing the three months of her engagement. If Mr. Lumley hap- pens to be prevented, by any cause soever, from giving these 61 962 LUMLEY V. WAGNER. [CHAP. VII. operas, he is nevertheless held to pay Mademoiselle Johanna Wagner the salary stipulated lower down for the number of her parts as if she had sung them. Fourth, In the case where Made- moiselle Wagner should be prevented by reason of illness from singing in the course of a month as often as it has been stipulated, Mr. Lumley is bound to pay the salary only for the parts sung. Fifth, Mademoiselle Johanna Wagner binds herself to sing twice a week during a run of three months; however, if she herself was hindered from singing twice in any week whatever, she will have the right to give at a later period the omitted representation. Sixth, If Mademoiselle Wagner fulfilling the wishes of the direc- tion, consent to sing more than twice a week in the course of three months, this last will give to Mademoiselle Wagner 50£ sterling for each representation extra. Seventh, Mr. Lumley engages to pay Mademoiselle Wagner a salary of 400£ sterling per month, and payment will take place in such manner that she will receive lOOi sterling each week. Eighth, Mr. Lumley will pay by letters of exchange to Mademoiselle Wagner at Berlin, the 15th of March, 1852, the sum of 300i sterling, a sum which will be deducted froin her engagement in his retaining lOOi each month. Ninth, In all cases except that where a verified illness would place upon her a hindrance, if Mademoiselle Wag- ner shall not arrive in London eight days after that from whence dates her engagement, Mr. Lumley will have the right to regard the nonappearance as a rupture of the contract, and will be able to demand an indemnification. Tenth, In the case where Mr. Lumley should cede his enterprise to another, he has the right to transfer this contract to his successor, and in that case Made- moiselle Wagner has the same obligations and the same rights towards the last as towards Mr. Lumley. Johanna Wagner, "Albert Wagner." "Berlin, the 9th November, 185L" " The bill then stated, that in November, 1851, Joseph Bacher met the plaintiff in Paris, when the plaintiff objected to the agree- ment as not containing a usual and necessary clause, preventing the defendant Johanna Wagner from exercising her professional abilities in England without the consent of the plaintiff, were- upon Joseph Bacher, as the agent of the defendants Johanna Wagner and Albert Wagner, and being fully authorized by them for the purpose, added an article in writing in the French CHAP. VII.] LUMLEY l-. WAGNER. 963 language to the agreement, and which, being translated into English, was as follows: "Mademoiselle Wagner engages herself not to use her talents at any other theatre, nor in any concert, or reunion, public or private, without the written authorization of Mr. Lumley. "Dr. Joseph Bacher, "For Mademoiselle Johanna Wagner, and authorized by her." The bill then stated that the defendants J. and A. Wagner subsequently made another engagement with the defendant F. Gye, by which it was agreed that the defendant J. Wagner should, for a larger sum than that stipulated by the agreement with the plaintiff, sing at the Royal Italian Opera; Covent Gar- den, and abandon the. agreement with the plaintiff. The bill then stated that the defendant F. Gye had full, knowledge of the previous agreement with the plaintiflf, and that the plaintiff had receiyed a protest from the defendants J. and A. Wagner, re- pudiating the agreement on the allegation that the plaintiff had failed to fulfill the pecuniary portion of the agreement. The bill prayed that the defendants Johanna Wagner and Albert Wagner might be restrained from violating or committing any breach of the last article of the agreement ; that the defendant Johanna Wagner might be restrained from singing and perform- ing or singing at the Royal Italian Opera, Covent Garden, or at any other theatre or place without the sanction or permission in writing of the plaintiff during the existence of the agreement with the plaintiff; and that the defendant Albert Wagner might be restrained from permitting or sanctioning the defendant Jo- hanna Wagner singing and performing or singing as aforesaid; that the defendant Frederick Gye might be restrained from ac- cepting the professional services of the defendant Johanna Wag- ner as a singer and performer or singer at the said Royal Italian Opera, Covent Garden, or at any^ other theatre or place, and from permitting her to sing and perform or to sing at the Royal Italian Opera, Covent Garden, during the existence of the agree- ment with the plaintiff, without the permission or sanction of the plaintiff. ^ The answer of the defendants A. and J. Wagner attempted to show that Joseph Bacher was not their authorized agent, at least for the purpose of adding the restrictive clause, and that the plaintiff had failed to make the stipulated payment by the time mentioned in the agreement. The plaintiff having obtained an injunction from the vice chancellor Sir James Parker on the 964 LUMLEY V. WAGNER. [CHAP. VII. 9th May, 1852, the defendants now moved by way of appeal before the lord chancellor to discharge his honor's order. The Lord Chancellor. The question which I have to de- cide in the present case arises out of a very simple contract, the effect of which is, that the defendant Johanna Wagner should sing at her Majesty's Theatre for a certain number of nights, and that she should not sing elsewhere (for that is the true construction) during that period. As I understand the points taken by the defendants' counsel in support of this appeal they in effect come to this, namely, that a court of equity ought not to grant an injunction except in cases connected with specific per- formance, or where the injunction being to compel a party to forbear from committing an act (and not to perform an act), that injunction will complete the whole of the agreement re- maining unexecuted. I have then to consider how the question stands on principle and on authority, and in so doing I shall observe upon some of the cases which have been referred to and commented upon by the defendants in support of their contention. The first was that of Martin v. Nutkin, 2 P. Wms. 266, in which the court issued an injunction restraining an act from being done where it clearly could not have granted any specific performance; but then it was said that that case fell within one of the exceptions which the defendants admit are proper cases for the interference of the court, because there the ringing of the bells, sought to be restrained, had been agreed to be suspended by the defendant in consideration of the erection by the plaintiffs of a cupola and clock, the agreement being in effect the price stipulated for the defendant's relinquishing bell-ringing at stated periods; the de- fendant having accepted the benefit, but rejected the correspond- ing obligation, Lord Macclesfield first granted the injunction which the lords commissioners, at the hearing of the cause, con- tinued for the lives of the plaintiffs. That case therefore, how- ever it may be explained, as one of the exceptional cases, is never- theless a clear authority showing that this court has granted an injunction prohibiting the • commission of an act in respect of which the court could never have interfered by way of specific performance. The next case referred to was that of Barret v. Blagrave, 5 Ves. 555, which came first before Lord Loughborough, and after- wards before Lord Eldon, 6 Ves. 104. There a lease had origin- ally been granted by the plaintiffs, the proprietors of Vauxhall CHAP. VII.] LUMLEY V. WAGNER. 965 Gardens, of an adjoining house, under an express covenant that the lessee would not carry on the trade of a victualler or re- tailer of wines, or generally, any employment that would be to the damage of the proprietors of Vauxhall Gardens. An under- lease having been made to the defendants, who were violating the covenant by the sale of liquors, the proprietors of Vauxhall Gardens filed a bill for an injunction, which was granted by Lord Loughborough. It has been observed in the argument here, that in granting the injunction, Lord Loughborough said: "It is in the nature of specific performance," and that therefore that case also falls under one of the exceptional cases. When that case came before Lord Eldon he dissolved the injunction, but upon a different ground, namely, on that of acquiescence for many years, and in a sense he treated it as a case of specific performance. As far as the words go, the observation of those two eminent judges would seem to justify the argument which has been addressed to me ; in eif ect, however, it was only specific performance, because a prohibition preventing the commission of an act may as effectually perform an agreement as an order for the performance of the act agreed to be done. The agree- ment in that case being that the house should not, be opened for the purpose of entertainment to the detriment of Vauxhall Gar- dens, the court granted the injunction; that was a performance of the agreement in substance, and the term "specific perform- ance" is aptly applied in such a case, but not in the sense in which it has been used before me. It was also contended that the plaintiff's remedy, if any, was at law ; but it is no objection to the exercise of the jurisdiction by injunction that the plaintiff may have a legal remedy. The case of Robinson v. Lord Byron, 1 Brown, Ch. 588, before Lord Thurlow, so very often commented upon by succeeding judges, is a clear illustration of that proposition, because in that case the defendant. Lord Byron, who had large pieces of water in his . park, which supplied the plaintiff's mills, was abusing his right by preventing a regular supply to the plaintiff's mill, and al- though the plaintiff had a remedy at law, yet this court felt no difficulty in restraining Lord Byron by injunction from pre- venting the regular flow of the water. Undoubtedly there are cases such as that cited for the defendants of Collins v. Plumb, 16 Ves. 454, before Lord Eldon, in which this court has declined to exercise the power (which in that instance it was assumed to have had) or preventing the commission of an act, because such 966 LUMLEY V. WAGNER. [CHAPi VII. power could not be properly and beneficially exercised. In that case the negative covenant, not to sell water to the prejudice of the plaintiffs, was not enforced by Lord Eldon, not because he had any doubt about the jurisdiction of the court (for upon that point he had no doubt), but because it was impossible to ascer- tain every time the water was supplied by the defendants, whether it was or not to the damage of the plaintiffs; but whether right or wrong, that learned judge, in refusing to exercise the jurisdic- tion on very sufficient grounds, meant in no respect to break in on the general rules deducible from the previous authorities. At an early stage of the argument I adverted to the familiar cases of attorneys' clerks, and surgeons' and apothecaries' ap- prentices, and the like, in which this court has constantly inter- fered, simply to prevent the violation of negative covenants ; but it was said that in such cases the court only acted on the principle that the clerk or apprentice had received all the benefit^ and that the prohibition operated upon a concluded contract, and that therefore the injunction fell within one of the exceptional cases. I do not, however, apprehend that the jurisdiction of the court depends upon any such principle. It is obvious that in those cases the negative covenant does not come into operation until the servitude is ended, and therefore that the injunction cannot be required or applied for before that period. The familiar case of a tenant covenanting not to do a particu- lar act was also put during the argument ; but it was said that in such a case the jurisdiction springs out of the relation of landlord and tenant, and that the tenant having received the benefit of an executed lease, the injunction operates only so as to give effect to the whole contract. That, however, cannot be the principle on which this court interferes) for, beyond all doubt, where a lease is executed containing affirmative and negative covenants, this court will not attempt to enforce the execution^ of the affirmative covenants, either on the part of the landlord or the tenant, but will leave it entirely to a court of law to measure the damages; though with respect to the negative covenants, if the tenant for example has stipulated not to cut or lop timber, or any other given act of forbearance, the court does not ask how many of the affirmative covenants on either side remain to be performed under the lease, but acts at once by giving effect to the negative covenant, specifically executing it by prohibiting the commission of acts which have been stipulated not to be done. So far then each of the cases to which I have referred appears CHAP. VII.] LUMLEY V. WAGNER. 967 to me to be in direct contravention of the rules which have been so elaborately pressed upon me by the defendants' counsel. The present is a mixed case, consisting not of two correlative acts to be done, one by the plaintiff and the other by the defend- ants, which state of facts may have and in some cases has intro- duced a very important difference, — but of an act to be done by J. Wagner alone, to which is superadded a negative stipulation on her part to abstain from the commission of any act which will break in upon her affirmative covenant, — ^the one being ancillary to, concurrent and operating together with the other. The agreement to sing for the plaintiff during three months at his theatre, and during that time not to sing for anybody else, is not a correlative contract, it is in effect one contract ; and though beyond all doubt this court could not interfere to enforce the specific performance of the whole of this contract, yet in all sound construction and according -to the true spirit of the agreement, the engagement to perform for three months at one theatre must necessarily exclude the right to perform at the same time at another theatre. It was clearly intended that J. Wagner was to exert her vocal abilities to the utmost to aid the theatre to which she agreed to attach herself. I am of opinion, that if she had attempted, even in the absence of any negative stipulation, to perform at another theatre, she would have broken the spirit and true meaning of the contract as much as she would now do with reference to the contract into which she has actually en- tered. Wherever this court has not proper jurisdiction to enforce specific performance, it operates to bind men's consciences, as far as they can be bound, to a true and literal performance of their agreements ; and it will not suffer them to depart from their contracts at their pleasure, leaving the party with whom they have contracted to the mere chance of any damages which a* jury may give. The exercise of this jurisdiction has, I believe, had a wholesome tendency towards the maintenance of that good faith which exists in this country to a much greater degree perhaps than in any other; and although the jurisdiction is not to be extended, yet a judge would desert his duty who did not act up to what his predecessors have handed down as the rule for his guidance in the administration of such an equity. It was objected that the operation of the injimction in the pres- ent case was mischievous, excluding the defendant J. Wagner from performing at any other theatre while this court had no 968 LUMLEY V. WAGNER. [CHAP. VII. power to compel her to perform at Her Majesty's Theatre. It is true, that I have not the means of compelling her to sing, but she has no cause of complaint, if I compel her to abstain from the commission of an act which she has bound herself not to do, and thus possibly cause her to fulfill her engagement. The jurisdiction which I now exercise is w)iolly within the power of the court, and being of opinion that it is a proper case for inter- fering, I shall leave nothing unsatisfied by the "judgment I pro- nounce. The effect too of the injunction, in restraining J. Wag- ner from singing elsewhere may, in the event of an action being brought against her by the plaintiff, prevent any such amount of vindictive damages being given against her as a jury might prob- ably be inclined to give if she had carried her talents and exer- cised them at the rival theatre.; the injunction may also, as I have said, tend to the fulfillment of her engagement, though, in continuing the injunction, I disclaim doing indirectly what I can- not do directly. Referring again to the authorities, I am well aware that they have not been uniform, and that there undoubtedly has been a difference of decision on the question now revived before me. But, after the best consideration which I have been enabled to give to the subject, the conclusion at which I have arrived is, I conceive, supported by the greatest weight of authority. The earliest case most directly bearing on the point is that of Morris v. Colman, 18 Ves. 437. There Mr. Colman was a part proprie- tor with Mr. Morris of the Haymarket Theatre, and they were partners in that concern, and by the deed of partnership Mr. Colman agreed that he would not exercise his dramatic abilities for any other theatre than the Haymarket. He did not, however, covenant that he would write for the Haymarket, but it was merely a negative covenant that he would not write for any other theatre than the Haymarket. Lord Eldon granted an injunction against Mr. Colman writing for any other theatre than the Haymarket ; and the ground on which Lord Eldon assumed that jurisdiction was the subject of some discussion at the bar. It was truly said for the defendants that that was a case of part- nership; and it was said, moreover, that Lord Cottenhara was mistaken in the case of Dietrichsen v. Cabburn, 2 Phil. Ch. 52, when he said that Lord Eldon had not decided Morris v. Col- man on the ground of there being a partnership. I agree that the observations, which fell from Lord Eldon in the subsequent case of Clarke v. Price, 2 Wils, 157, show that he did mainly CHAP. VII.] LUMLEY V. WAGNER. 969 decide it on the ground of partnership ; but he did not decide it exclusively on that ground. In the argument .of Morris v. Col- man, 18 Ves. 437, Sir Samuel Romilly suggested a case almost identical with the present. He contended that the clause restrain- ing Mr. Colman from writing for any other theatre was no more against public policy than a stipulation that Mr. Garrick should not perform at any other theatre than that at which he was en- gaged would have been. Lord Eldon, adverting in his judgment to the case put at the bar, said : "If Mr. Garrick was now living, would it be unreasonable that he should contract with Mr. Col- man to perform only at the Haymarket Theatre, and Mr. Col- ■ man with him to write for the theatre alone? Why should they not thus engage for ^he talents of each other ?" He gives the clearest enunciation of his opinion, that that would be an agree- ment which this court would enforce by way of injunction. The late Vice Chancellor Shadwell, of whom I always wish to be understood to speak with the greatest respect, decided in a different way, in the cases of Kemble v.'Kean, 6 Sim. 333, and Kimberley v. Jennings, Id. 340, on which I shall presently make a few observations. In the former case, he observed that Lord Eldon must be understood in the case of Morris v. Colman, 18 Ves. 437, to have spoken according to the subject-matter before him, and must there be considered to be addressing himself to a case in which Colman and Garrick would both have had a part- nership interest in the theatre. I must, however, entirely dissent from that interpretation. Lord Eldon's words are perfectly plain, they want no comment upon them, they speak for themselves. He was alluding to a case in which Garrick, as a performer, would have had nothing to do with the theatre beyond the im- plied engagement that he would not perform anywhere else ; and i have come to a very clear conclusion that Lord Eldon would have granted the injunction in that case, although there had been no partnership. The authority of Clarke v. Price, 2 Wils. 157, was much pressed upon me by the learned counsel for the defendants; but that is a case which does not properly belong to their argument, because there there was' no negative stipulation, and I quite ad- mit that this court cannot enforce the performance of such an affirmative stipulation as is to be found in that case. There the defendant having agreed to take notes of cases in the court of exchequer, and compose reports, for the plaintiff, and having failed to do so, the plaintiff, Mr. Clarke, filed a bill 970 LUMLEY V. WAGNER. [CHAP. VII. for an injunction, and Lord Eldon, when refusing the injunc- tion, in effect said, I cannot compel Mr. Price to sit in the court of exchequer ' and take notes and compose reports ; and the whole of his judgment shows that he proceeded (and so it has been considered in later cases) on the ground that there was no covenant, on the part of the defendant, that he would not compose reports for any other person. The expressions in the judgment are: "I cannot, as in the other case" (referring to Morris v. Colman, 18 Ves. 437), "say that I will induce him to write for the plaintiff by preventing him from writing for any other person;" and then comes these important words, "for that is not the nature of the agreement." Lord Eldon therefore was of opinion, upon the construction of that agreement, that it would be against its meaning to affix to it a negative quality and import a covenant into, it by implication, and he, therefore, very properly as I conceive, refused that injunction. That case, therefore, in no respect touches the question now before me, and I may at once declare, that if I had only to deal with the affirmative cove- nant of the defendant, J. Wagner, that she would perform at Her Majesty's Theatre,. I should not have granted any injunction. Thus far, I think, the authorities are very strong against the defendants' contention; but the case of Kemble v. Kean, 6 Sim. 333, to which I have already alluded, is the first case which has in point of fact introduced all the difficulties on this part of the law. There Mr. Kean entered into an agreement precisely similar to the present. He agreed that he would perform for Mr. Kemble at Drury Lane, and tha.t he would not perform anywhere else during the time that he had stipulated to perform for Mr. Kemble. Mr. Kean broke his engagement, a bill was filed, and Vice Chancellor Shadwell was of opinion that he could not grant an injunction to restrain Mr. Kean from performing elsewhere, which he was either about to do or actually doing, because the court could not enforce the performance of the affirmative cove- nant that he would perform at Drury Lane for Mr. Kemble. Being pressed by that passage which I have read from in the lord chancellor's judgment in Morris v. Colman, 18 Ves. 437, he put that paraphrase or commentary upon it which I have referred to ; that is, he says: "Lord Eldon is speaking of a case where the parties are in partnership together." I have come to a different conclusion, and I am bound to say that, in my apprehension, the case of Kemble v. Kean was wrongly decided and cannot be main- tained. CHAP. VII.] LUMLEY V. WAGNER. 971 The same learned judge followed up his decision in that case in the subsequent one of Kimberley v. Jennings, 6 Sim. 340. That was a case of hiring and service, and the vice chancellor there virtually admitted that a negative covenant might be enforced in this court, and quoted an instance to that effect within his own knowledge. He said : "I remember a case in which a nephew wished to go on the stage, and his uncle gave him a large sum of money in consideration of his covenanting not to perform within a particular district; the court would execute such a covenant, on the ground that a valuable consideration had been given for it." He admits therefore the jurisdiction of the court, if nothing but that covenant remained to be executed. The learned judge howevtr adds, "but here the negative covenant does not stand by itself. It is coupled with the agreement for service for a certain number of years, and then, for taking the defendant into partnership, * * * this agreement cannot be per- formed in the whole, and therefore this court cannot perform any part of it." Whatever may have been the mutual obligations in that case, which prevented the court from giving effect to the negative covenant, I am not embarrassed with any such diffi- culties here, because, as I have already shown, both the covenants are on the part of the defendants. The case of Hooper v. Brodrick, 11 Sim. 47, was cited, as an instance in which the court had refused an injunction under circumstances like the present; but, in that case, the lessee of an inn had covenanted to use and keep it open as an inn during a certain time, and not to do any act whereby the license might become forfeited. In point of fact the application was that he might be compelled to keep it open,, and the vice chancellor makes this observation : "The court ought not to have restrained the defendant from discontinuing to use and keep open the demised premises as an inn, which is the same in effect as ordering him to carry on the business of an innkeeper; but it might have re- strained him from doing, or causing, or permitting to be done, any act which would have put it out of his power, or the power of any other person, to carry on that business on the premises. It is not, however, shown that the defendant has threatened, or in- tends to do, or to cause or permit to be done, any act whereby the licenses may became forfeited or be refused; and therefore the injunction must be dissolved." That therefore is an authority directly against the defendants, because it shows that if there 972 LUMLEY V. WAGNER. [CHAP. VII. had been an intention to break the negative covenant this court would have granted the injunction. The case of Smith v. Fromont, 2 Swanst. 330, was also relied upon by the defendants, as an instance where the injunction had been refused, but there there was no negative covenant. It was an attempt to restrain, by injunction, a man from supplying horses to a coach for a part of a road, when the party who was applying for the injunction was himself incapable of performing his obligation to horse his part of the road. Lord Eldon, in refusing the injunction and deprecating the interference of the court in such cases, there said : "The only instance I recollect of an application to this court to restrain the driving of coaches occurred in the case of a person who, having sold the business of a coach proprietor from Reading to London, and undertaking to drive no coach on that road, afterwards established one. With some doubt, whether I was not degrading the dignity of this court by interfering, I saw my way in that case ; because one party had there covenanted absolutely against interfering with the business which he had sold to the other." That again is a direct authority, therefore, against the defendants, as Lord Eldon expressly says he had interfered in the case of a negative cove- nant, although he could not interfere on that occasion because" there was no such covenant. Some observations have been made upon a decision of my own in Ireland, in the case of Gervdis v. Edwards, 2 Dru. & W. 80; that decision I believe to be right, but it is quoted to show that I was of opinion that this court cannot interfere to enforce spe- cific pei^formance, unless it can execute the whole of an agree- ment. I abide by the opinion I th^re expressed, and I mean to do nothing in this case which shall in any manner interfere with that opinion. That was properly a case for specific perform- ance, biit from the nature of the contract itself there was a por- tion of it which could not be executed. I said, in effect: I can- not execute this contract which is intended to be binding on both parties ; I cannot execute a portion of this contract for one, and leave the other portion of the contract unexecuted for the other ; and, therefore, as I cannot execute the whole of the contract, I am bound to execute no part of it. That, however, has no bear- 'ing on the present cases, for here I leave nothing unperformed which the court can ever be called upon to perform. In Hills v. Croll, 2 Phil. Ch. 60, Lord Lyndhurst refused to enforce an injunction to restrain the violation of a negative cove- CHAP. VII.] LUMLEY V. WAGNER. 973 nant. It was a case in which A. had given to B. a sum of money, and B. covenanted that he would buy all the acids he wanted from the manufactory of A., who covenanted that he would sup- ply the acids, and B. also covenanted that he would buy his acids from no other person. Lord Lyndhurst refused to prohibit B. from obtaining acids from any other quarter, both because the covenants were correlative, and because he could not compel A. to supply B. with acids; and if, therefore, he had restrained B. from taking acids from any other quarter, he might have ruined him in the event of A. breaking his affirmative covenant to sup- ply the acids. That case has never been rightly understood. It is supposed that Lord Lyndhurst's decision was based upon a wrong principle; that he followed the authority of Gervais v. Edwards and such cases, and that he improperly applied the rule which was in that class of cases properly applied, but under the circumstances of the case before him I think the rule was not improperly applied. The next case which has been so much observed upon was that, before Lord Cottenham, of Dietrichsen V. Cabburn, 2 Phil. Ch. 52. That was a' very simple case, and the question upon what principle it was decided formed the sub- ject of discussion before me. A man, in order to obtain a great circulation of his patent medicine, entered into a contract with a vendor of such articles, giving him a general agency for the sale of the medicine, with 40 per cent discount, and stipulating that he would not supply anybody else at a larger discount than 25 per cent. He violated his contract and was proceeding to em- ploy other agents with a larger discount than 25 per cent. An injunction was applied for and was granted. It was said that it was properly granted, because it was a case of partnership. This, however, was not the fact; it was not a case of partner- ship, but was strictly one of principal and agent ; and it was only because there was the negative covenant that the court gave effect to it. It is impossible to read Lord Cottenham's judgment without being satisfied that he did not consider it to be a part- nership, though he said it was in the nature of a partnership; and in a popular sense it might be so-called, because the parties were there both dealing with respect to the same subject, from which each was to have a benefit, but in no legal sense was it a partnership. o r.i.-i r-u co Up to the period when Dietrichsen v. Cabburn, 2 Phil. Lh. 5A ■was decided, I apprehend that there could have been no doubt on the law as applicable to this case, except for the authority of 974 LUMLEY V. WAGNER. [CHAP. VII. Vice Chancellor Shad well; but with great submission it appears to me that the whole of that learned judge's authority is re- moved by himself by his decision in the later case-of Rolje v. Rolfe, 15 Sim. 88. In that case A. B. and C. were partners as tailors. A. and B. went out of the trade on consideration of receiving £1,000 each, and C. was to continue the business, on his own ac- count. A. entered into a covenant that he would not carry on the trade of a tailor, which he had just sold, within certain limits, and C. entered into a covenant that he would employ A. as cut- ter at a certain allowance. The bill was filed simply for an in- junction to prevent A. from setting up as a tailor within the pre- scribed limits, and the vice chancellor granted that injunction. It was objected that this court could not grant the injunction when there was something remaining to be performed, for that A. had a right to be employed as a cutter, which right this court would not even attempt to deal with or enforce as against C. That case therefore was open to a difficulty which does not occur here; in fact the same difficulty which might have arisen in Hills V. Croll, 2 Phil. Ch. 60, before Lord Lyndhurst. But the vice, chancellor held that to be no difficulty at all, observing that the bill simply asked for an injunction which he would grant, although he could not give effect to the affirmative cove- nant to do the act in respect of which no specific performance was asked. His own decisions in Kemble v. Kean, 6 Sim. 333, and in Kimberly v. Jennings, Id. 340, were pressed upon him; but he observed, "that the bills in the cases cited asked for specific 4)erformance of the agreement, and that the injunctions were sought as only ancillary to that relief, but the -bill in the present case asked merely for an injunction." He no longer put it on the inability of the court to enforce a negative- covenant, but he put it on the form of the pleadings. Whether the form was sufficient to justify his opinion is a question with which I need not deal ; but I am very clear of opinion that the case of Rolfe v. Rolfe, 15 Sim. 88, does remove the whole weight of that learned judge's authority on this subject. It was said in argument that the injunction prayed in Rolfe v. Rolfe, 15 Sim. 88, was merely ancillary to the relief; but it will be seen that was not so, and that the prayer extended only to the injunction, and had nothing to do with relief in the shape of specific performance; and the learned judge himself stated that, if it had gone to that extent, he, following his former de- cisions, would not have granted the injunction. CHAP. VII.] LUMLEY V. WAGNER. 975 From a careful examination of all these authorities I am of opinion that the principles and rules deducible from them are in direct contravention of those principles and rules which were so elaborately pressed upon me during the argument; and I wish it to be distinctly understood that I entertain no doubt whatever that the point of law has been properly decided in the court below. It was nevertheless and with some reason, said that, although the point of law should be decided in the plaintiff's favor, still he might be excluded from having the benefit of it on the merits of the case. His lordship here entered into a minute examination of the statements in the answers and affidavits as to the unauthorized addition of the restrictive clause, and as to the nonfulfillment by the plaintiff of his portion of the agreement. In reference to those points he observed that, whether the clause was originally added with or without authority, the evidence showed a clear acquiescence on the part of the defendants to its remaining in the agreement; that the operation of the agreement had been in the first instance postponed to suit the convenience of the de- fendants ; and that as to the payment of the £300 although the plaintiff could not have come into a court of 'equity to enforce the contract without having tendered the amount stipulated to be paid, yet it was distinctly proved that it had in fact been paid to the common agent of both parties for the purpose of being handed to the defendants. His lordship concluded by saying that, looking at the merits and circumstances of the case, as 'well as at the point of law raised, he must refuse this motion with costs. In the course of the argument, and in order to prove the plaintiff's readiness to perform his part of the contract, an affi- davit made by Dr. Bacher was read, which was to the effect that he had written and sent a letter to the defendant J. Wag- ner, informing her of his having received from the plaintiff the i300, and offering to pay that sum according to her instructions. A letter of the same date as that referred to in the affidavit was admitted to have been received by the defendant J. Wagner, but it was positively denied that it contained any such offer. The letter iself was not forthcoming, and its nonproduction was not accounted for. No copy was kept by Dr. Bacher. The lord chancellor observed that, when the affidavit, as to the contents of the letter was made, Dr. Bacher could not have known that the letter would not be produced; that the affidavit, 976 SHERRY V. PERKINS. [CHAP. VII. therefore, if untrue, was at the imminent peril of exposure by the production of the letter; and that under such circumstances the representation in the affidavit must be taken to be true. M. TORTS. SHERRY V. PERKINS. (147 Mass. 212.) [Supreme Judicial Court of Massachusetts, 1888.] Report from Supreme Judicial Court, Essex county : C. Allen, Judge. Bill in equity, by Patrick P. Sherry against Charles E. Perkins and Charles H. Leach, for an injunction to restrain the defendants, respectively president and secretary of the Lasters' Protective Union, from causing to be carried in front of the plaintiff's shoe factory a banner on which was the following in- scription: "Lasters are requested to keep away from P. P. Sherry's. Per order L. P. U. ;" and also a banner on which was the following: "Lasters on a strike; all lasters are requested to keep away from P. P. Sherry's until the present trouble is settled. Per order L. P. U." The court, at the trial, found as facts that members of the Lasters' Protective Union entered into a scheme, by threats and intimidation, to prevent persons in the employment of the plaintiff, as lasters, from continuing in such employment, and in like manner Ip prevent other persons from entering into such employment as lasters; that the defendants participated in the scheme; that the use of the banner was a part of the scheme, and its use an injury to the plaintiff in his business and property. The court, after finding the facts, reported the case to the full court. The principal question in this case is wiiether this court, as a court of equity, has jurisdiction to enjoin the acts complained of, upon the findings of facts reported by the justice who heard the case. The carrying of a banner or placard before a person's place of business, which injures such person in his business and property, is a private nuisance. An authority directly in point is Gilbert v. Mickle, 4 Sandf. Ch. 357, in which it was held that a CHAP. VII.] SHERRY V. PERKINS. 977 placard paraded or posted in a public street, before the door of an auctioneer, cautioning strangers to beware of mock auctions, constituted a private nuisance remediable by injunction. The in- junction in that case was refused upon grounds not affecting the jurisdiction of the court. If the highway is obstructed by crowds of people in consequence of the banner's being carried as de- scribed in the bill, such carrying of the banner is a public nui- sance. Rex V. Cross, 3 Camp. 224; Rex v. Carlile, 6 Car. & P. 636; Reg. v. Grey, 4 Fost. & F. 73. But as the damage to the business %nd property of the plaintiffs, found in the report, is special to the plaintiffs, they are entitled to an injunction. Walker v. Brewster, L. R. 5 Eq. 25 ; Stetson v. Faxon, 19 Pick. 147 ; Soltau V. De Held, 2 Sim. (N. S.) 133. The entire. scheme, "by threats and intimidation, to prevent persons in the employment of the plaintiffs, as lasters, from continuing in such employment, and in like manner to prevent other persons from entering into such employment as lasters," is a private nuisance to the plain- tiffs. Wood, Nuis. § 141, and cases cited. Among the things which have been held to be private nuisances are a market ille- gally conducted within the limits of an established market, {Yard V. Ford, 2 Saund. 172;) a ferry. carried on, without right, near a duly-licensed ferry. (Stark v. McGowen, 1 Nott. & McC. 387;) the use of a toll-bridge inside the limits of a lawfully established toll-bridge, (Bridge Co. v. Lewis, 63 Barb. 111.) See 1 Com. Dig. "Action on the Case for Nuisance," C. The scheme in which the defendants are found to have participated, has the same elements of injury as these cases of nuisance. It is illegal, injurious to property, and continuous in character. See Railroad Co. V. Church, 108 U. S. 317, 2 Sup. Ct. Rep. 719. This court has full power to restrain a private nuisance by injunction, both under the special provision of the statute, (Pub. St. c. 151, § 2, cl. 9,) and by virtue of its general equity powers conferred by the statute of 1877, c. 178, which is embodied in Pub. St. c. 151, §4. The jurisdiction in equity now possessed by this court is not limited by any restriction contained in the last clause of Gen. St. 0. 113, § 2, but is in all respects as full as that of the English court of chancery. 1 Pom. Eq. Jur. §§ 311, 312. In respect to private nuisances, the English court of chancery has from early times exercised the right to restrain by injunction. This is not limited to cases in which there is no redress at law. In- deed, the ability to recover substantial damages at law has been declared to give the right to ask for an injunction against the 62 978 SHERRY V. PERKINS. [CHAP. VII. continuance of the nuisance. Lord Romilly, M. R., in Crump V. Lambert, L. R. 3 Eq. 409, 412 ; 2 Story Eq. Jur. § 925 et seq. ; 1 Ppm. Eq. Jur. § 252; 3 Pom. Eq. Jur. § 1350; Emperor v. Day, 3 De Gex, F. & J. 240, 241, (Lord Campbell.) The scheme in which the defendants participated was plainly illegal and criminal, both under the statute and by common law. Pub. St. c. 7 A, § 2; Reg. v. Druitt, 10 Cox, Crim. Cas. 592; Com.. v. Hunt, 4 Mete. Ill; Com. v. Dyer, 128 Mass. 70. But the illegality of the nuisance, or its criminal character, does not prevent the court from enjoining it. Gilbert v. Mickle, 4 Sandf. Ch. 358, Lord Cairns in Assurance Co. v. Knott, L. R. 10 Ch. 144. The jurisdiction of courts of chancery over private nuisances is con- current with that of courts of law. Fisk v. Wilber, 7 Barb. 395. This court has repeatedly exercised its jurisdiction to restrain private nuisances. Cadigan v. Brown, 120 Mass. 493; Mills v. Mason, Id. 244; Woodward v. Worcester, 121 Mass. 245; Tucker v. Howard, 122 Mass. 529 ; Davis v. Sawyer, 133 Mass. 289. But, whatever the injury complained of may be called, there is abundant authority for the intervention of a court of equity to prevent injury to property by unlawful or forcible acts, when the injury is continuous. Macaulay v. Shackell, 1 Bligh, (N. S.) 96, 127; Lord Eldon in Gee v. Pritchard, 2 Swanst, 402, 413; Em- peror V. Day, 3 De Gex,.'F. & J. 217, 240, 241, 253; Spinning Co. V. Riley, L. R. 6 Eq. 551, Z7 L. J. Ch. 889, and 19 Law T. (N. S.) 64. The various cases in which the unauthorized use of the plaintiff's name has been restrained, go upon the principle of the injury to property involved. Routh "v. Webster, 10 Beav. 561 ; James v. James, L. R. 13 Eq. 421 ; Hookham v. Pottage, L. R. 8 Ch. 91 ; 3 Pom. Eq. Jur. § 1358. The case of Spinning Co. V. Riley, supra, is almost precisely parallel to the present case, ex- cept that in the present case the placards are paraded in a manner which makes them more distinctly a nuisance than if they were merely posted up. See, also, Dixon v. Holden, L. R. 7 Eq. 488 ; Assurance Co. v. Knott, L. R. 10 Ch. 142; Mulkern v. Ward, X. R. 13 Eq. 619 ; Food Co. v. Massam, 6 Ch. Div. 582. In No- vember, 1874, the judicature act went into effect, and in a de- cision under the act, in the case of Saxby v. Easterbrook, 3 C. P. Div. 339, it was held that, after the jury had found the fact of libel, an injunction would issue against the continuance of the libel. Thomas v. Williams, 14 Ch. Div. 864, (1880,) Fry, J,; Loog v. Bean, 26 Ch. Div. 306. In' this court the case .of Spin- ning Co. v. Riley, was referred to in the case of Diatite Co. v. CHAP. VII.] SHERRY V. PERKINS. 979 Manufacturing Co., 114 Mass. 69, and the dissent there expressed to the views of Malins, V. C, must be understood as applicable only so far as the language of the former case applies to the question of libel, since the question of libel did not arise in that case. The same is true of the reference to the same case in Partridge v. Hood, 120 Mass. 403, 406. See 3 Pom. Eq. Jur. § 1358. As to private nuisance. Bridge v. Bridge, 6 Pick. 376 ; 2 Story, Eq. Jur. §§ 925-928. As to the criminal character of the acts complained of: -The fact that the nuisance is indictable as a nuis- ance does not prevent the court from enjoining its continuance. 1 High, Inj. §§ 745, 752, and cases cited ; Attorney General v. Hun- ter, 1 Dev. Eq. 12 ; People v. St. Louis, 5 Gilman, 351.' The English Judicature act did not enlarge the jurisdiction of courts of equity. Day v. Brownrigg, 10 Ch. Div. 294; Gaskin v. Balls, 13 Ch. Div. 324. As to differences between this court, as a court of equity, and the English chancery court before 1874, see remarks of Wells, J., in Milkman v. Ordway, 106 Mass. 232, 255. The acts are not libelous, but calculated to injure trade by direct interfer- ence. See Bridge v. Bridge, 6 Pick. 398; Carew v. Rutherford, 106 Mass. 1, 15. As to the fiarties against whom the injunction should issue, inasmuch as the Lasters' Protective Union is a voluntary association, and all its members cannot be ascertained by the plaintiff, the same rule applies which makes it proper for a few individuals to sue in behalf of such an organization rep- resented by and associated with the defendants named in the bill. See Birmingham v. Gallagher, 112 Mass. 190; Snow v. Wheeler, 113 Mass. 179; 1 Daniell, Ch. Pr. (4th Ed.) 272, note 5. The carrying of the banner named in the report, in the manner stated in the bill of complaint, is not a nuisance. If the words printed on the banner are- libelous, the complainants have an adequate remedy at law. Equity will not restrain a libel. The manner of the publication of the words on the banner cannot be restrained. 'The case of Spinning Co. v. Riley, L. R. 6 Eq. 551, is not a precedent that establishes the injunctive jurisdiction That case has been expressly overruled by Assurance Co. v. Knott, L. R. 10 Ch. 145, and unfavorably noticed in Diatite Co. V. Manufacturing Co., 114 Mass. 69. The prayer of the bill is so broad that no decree comporting with the terms thereof would be equitable. Allen, J. The case finds that the defendants entered, -with others, into a scheme, by threats and intimidation, to prevent persons in the employment of the plaintiff from continuing in 980 SHERRY V. PERKINS. [CHAP. VII. such employment, and to prevent others from entering into such employment; that the banners, with their inscriptions, were used by the defendants as part of the scheme, and that the plaintiff was thereby injured in his business and property. The act of displaying banners with devices, as a means of threats and in- timidation, to prevent persons from entering- into or continuing in the employment of the plaintiff, was injurious to the plaintiff, and illegal at common law and by statute. Pub. St. c. 74, § 2; Walker v. Cronin, 107 Mass. 555. We think that the plaintiff is not restricted to his remedy by action at law, but is entitled to relief by injunction. The acts and the injury were continuous. •The banners were used more than three months before the filing of the plaintiff's bill, and continued to be used at the time of the hearing. The injury was to the plaintiff's business, and ade- quate remedy could not be given by damages in a suit at law. The wrong is not as argued by the defendants' counsel, a libel upon the plaintiff's business. It is not found that the inscrip- tions upon the banners were false, nor do they appear to have been in disparagement of the plaintiff's business. The scheme, in pursuance of which the banners were displayed and maintained, was to injure the plaintiff's business, not by defaming it to the public, but by intimidating workmen, so as to deter them from keeping or making engagements with the plaintiff. The banner was a standing menace- to all who were or wished to be in the employment of the plaintiff, to deter them from entering the plaintiff's premises. Maintaining it was a continuous, unlawful act, injurious to the plaintiff's business and prop- erty, and was a nuisance, such as a court of equity will grant relief against. Gilbert v. Mickle, 4 Sandf. Ch. 357; Spin- ning Co. V. Riley, L. R. 6 Eq. 551. Diatite Co. y. Manufacturing Co., 114 Mass. 69, was a case of defamation only. Some of the language in Spinning Co. v. Riley has been criticised, but the decision has not been overruled. See Diatite Co. v. Manufac- turing Co., ubi supra; Assurance Co. v. Knott, L. R. 10 Ch. 142 ; Saxby v. Easterbrook, 3 C. P. Div. 339 ; Loog v. Bean, 26 Ch. Div. 306; Food Co. v. Massam, 14 Ch. Div. 763; Thomas v. Williams, Id. 864; Hill v. Davies, 21 Ch. Div. 778; Day v. Brownrigg, 10-Ch. Div. 294; Gaskinv. Balls, 13 Ch. Div. 324. ^ Decree for plaintiff. CHAP. VII.] , VEGELAHN V. GUNTNER. 981 VEGELAHN 7;. GUNTNER. (167 Mass. 92.) [Supreme Judicial Court of Massachusetts^ 1896.] Report from Supreme Judicial ^ourt, Suffolk County ; Oliver Wendell Holmes, judge. Bill by Frederick O. Vegelahn against George M. Guntner and others for an injunction. An injunction issued pendente lite restraining the respondents from interfering with, the plain- tiff's business by patrolling the sidewalk in front of or in the vicinity of the premises occupied by him, for the purpose of pre- venting any person in his employment, or desirous of entering the same, from entering it or continuing in it ; or by obstructing or interfering with any persons in entering or leaving the plaintiff's said premises; or by intimidating any person in the employment of the plaintiff, or desirous of entering the same; or by any scheme or conspiracy for the purpose of annoying, hindering, interfering with, or preventing any person in the employment of the plaintiff, or desirous of entering the same, from entering it, or from continuing therein. This injunction was approved. Allen, J. The principal question in this case is whether the defendants should be enjoined against maintaining the patrol. The report shows that, following upon a strike of the plaintiff's workmen, the defendants conspired to prevent him from getting workmen, and thereby to prevent him from carrying on his business, unless and until he should adopt a certain schedule of prices. The means adopted were persuasion and social pressure, threats of personal injury or unlawful'harm conveyed to persons employed or seeking employment, and a patrol of two men in front of the plaintiff's factory, niaintained from half past six in the morning till half past five in the afternoon, on one of the busiest streets of Boston. The number of men was greater at times, and at times showed some little disposition to stop the plaintiff's door. The patrol proper at times went further than simple ad- vice, not obtruded beyond the point where the other person was willing to listen; and it was found that the patrol would prob- ably be continued if not enjoined. There was also some evidence 982 VEGELAHN V. GUNTNER. [CHAP. VII. of persuasion to break existing contracts. The patrol was main- tained as one of the means of carrying out the defendants' plan, and it was used in combination with social pressure, threats of personal injury or unlawful harm, and persuasion to break exist- ing contracts. It was thus one means of intimidation, indirectly to the plaintiff, and directly to persons actually employed, or .seeking to be jemployed, by the plaintiff, and of rendering such employment unpleasant or intolerable to such persons. Such an act is an unlawful interference with the rights both of em- ployer and of employed. An employer has a right to engage all persons who are willing to work for him, at such prices as may be mutually agreed upon, and persons employed or seeking em- ployment have a corresponding right to enter into or remain in the employment of any person or corporation willing to employ them. These rights are secured by the constitution itself. Cvm. V. Perry, 155 Mass. 117, 28 N. E. 1126; People v. Gillson, 109 N. Y. 389, 17 N. E. 343 ; Braceville Coal Co. v. People, U7 111. 71, 35 N. E. 61; Ritchie v. People, 155 111. 98, 40 N. E. 454; Loiu V. Printing Co. (Neb.) 59 N. W. 362. No one can law- fully interfere by force or intimidation to prevent employers or persons employed or wishing to be employed from the exercise of those rights. It is in Massachusetts, as in some other states, even made a criminal offense for one, by intimidation or force, to prevent, or seek to prevent, a person from entering into or continuing in the employment of a person or corporation. Pub. St. c. 7\ § 2. Intimidation is not limited to threats of violence or of physical injury to person or property. It has a broader signification, and there also may be a moral intimidation which is illegal. Patrolling or picketing, under the circumstances stated in the report, has elements of intimidation like those which were found to exist in Sherry v. Perkins, 147 Mass. 212, 17 N! E. 307. It was declared to be unlawful in Reg. v. Druitt, 10 Cox, Cr. Cas. 592; Reg. v. Hibbert, 13 Cox, Cr. Cas. 82; Reg. v. Bauld, Id. 282. It was assumed to be unlawful in Trollope v. Trader's Fed. (1875) 11 L. T. 228, though in that case the pickets were withdrawn before the bringing of the bill. The patrol was an unlawful interference both with the plaintiff and with the workmen, Vithin the principle of many cases ; and, when instituted for the purpose of interfering with his business, it be- came a private nuisance. See Carew v. Rutherford, 106 Mass. 1 ; Walker v. Cronin, 107 Mass. 555 ; Barr v. Trades Council (N. J. Ch.) 30 Atl. 881; Murdock v. Walker, 152 Pa. St. 595, CHAP. VII.] VEGELAHN V. GUNTNER. 983 25 Atl. 492; China Co. w. Brown, 164 Pa. St. 449, 30 Atl. 261; Coeur D'Alene ConsoL. & Min. Co. v. Miners' Union of Wardner, 51 Fed. 260; Temperton v. Russell [1893] 1 Q. B. 715; Floyd V. Jackson, [1895] 11 L. T. 276; Wright v. Hennessey, 52 Alb. Law J. 104 (a case before Baron Pollock) ; Judge V. Bennett, 36 Wkly. Rep. \0^; Lyons v. Wilkins [1896] 1 Ch. 811. The defendants contend that these acts were justifiable, be- cause they were only seeking to secure better wages for them- selves, by compelling the plaintiff to accept their schedule of wages. This motive or purpose does not justify maintaining a patrol in front of the plaintiff's premises, as a means of carry- ing out their conspiracy. A combination among persons merely to regulate their owA conduct is within allowable competition, and is lawful, although others may be indirectly, affected thereby. But a combination to do injurious acts expressly directed to another, by way of intimidation or constraint, either of himself or of persons employed or seeking to be employed by hirti, is out- side of allowable cofnpetition, and is unlawful. Various decided cases fall within the former class; for example: Worthington v. Waring, 157 Mass. 421, 32 N. E. 744; Snow v. Wheeler, 113 Mass. 179; Bowen v. Matheson, 14 Allen, 499; Com. v. Hunt, 4 Mete. (Mass.) Ill; Heywood v. Tillson,7S Me. 225; Cote v. Murphy, 159 Pa. St. 420, 28 Atl. 190; Bohn Manuf'g Co. v. Hollis, 54 Minn. 223, 55 N. W. 1119; Steamship Co. v. Mc- Gregor [1892] App. Cas. 25; Curran v. Treleaven [1891] 2 Q. B. 545, 561. The present case falls within the latter class. Nor does the fact that the defendant's acts might subject them to an indictment prevent a court of equity from issuing an in- junction. It is true that, ordinarily, a court of equity will de- cline to issue an injunction to restrain the commission of a crime ; but a continuing injury to property or business may be enjoined, although it may also be punishable as a nuisance or other crime. Sherry v. Perkins, 147 Mass. 212, 17 N. E.' 307; In re Debs, 158 U S. 564, 593, 599, 15 Sup. Ct. 900; Baltimore & P. R. Co V Fifth Baptist Church, 108 U. S. 317, 329, 2 Sup. Ct. 719; Cranford v. Tyrrell, 128 N. Y. 341, 344, 28 N. E. 514; Gilbert v. Mickle, 4 Sandf. Ch. 357; Port of Mobile v. Louisville & N. R. Co 84 Ala 115, 126, 4 South. 106; Arthur v. Oakes, 11 C. C. A. 209, 63 Fed. 310; Toledo, A., A. & N. M. Ry. Co. v. Pennsyl- vania Co., 54 Fed. 730, 744; Emperor of Austria v. Day,.iB^ Gex, F. & J. 217, 239, 240, 253 ; Hermann Loog v. Bean, 26 Ch. 984 VEGELAHN V. GUNTNER. [CHAP. VII. Div. 306, 314, 316, 317; Monson v. Tussaud [1894] 1 Q. B. 67l', 689, 690, 698. A question is also presented whether the court should enjoin such interference with persons in the employment of the plaintiff who are not bound by contract to remain with him, or with per- sons who are not under any existing contract, but who are seek- ing or intending to enter into his employment. A conspiracy to interfere with the plaintiff's business by means of threats and in- timidation, and by maintaining a patrol in front of his premises, in order to prevent persons from entering his employment, or in order to prevent persons .who are in his employment from continu- ing tlierein, is unlawful, even though such persons are not bound by contract to enter into or to continue in his employment ; and th^ injunction should not be so limited as to relate only to per- sons who are bound by existing contracts. Walker v. Cronin, 107 Mass. 555, 565 ; Carew v. Rutherford, 106 Mass. 1 ; Sherry V. Perkins, 147 Mass. 212, 17 N. E. 307 ; Templeton v. Russell [1893] 1 Q. B. 715, 728, 731 ; Flood v. Jackson [1895] 11 L. T. 276. We therefore think that the injunction should be in the form as originally issued. So ordered. Field, C. J. (dissenting). The practice of issuing injunctions in cases of this kind is of very recent origin. One of the earliest authorities in the United States for enjoining, in equity, acts somewhat like those alleged against the defendants in the pres- ent case, is Sherry v. Perkins (decided in 1888) 147 Mass. 212, 17 N. E. 307. It was found as a fact in that case that the de- fendants entered into a scheme, by threats and intimidations, to prevent persons in the employment of the plaintiffs as lasters from continuing in such employment, and, in like manner, to prevent other persons from entering into such' employment as lasters ; that the use of the banners was a part of the scheme ; that the first banner was carried from January 8, 1887, to March 22j 1887, and the second banner from March 22, 1887, to the time of the hearing; and that "the plaintiffs have been and are injured in their business and property thereby." The full court say: "The act of displaying banners with devices, as a means of threats and intimidation to prevent persons from entering into or continuing in the employment of the plaintiffs, was injurious to the plaintiffs, and illegal at common law and by statute. Pub. St. c. 74, § 2; Walker v. Cronin, 107 Mass. 555." "The banner was a standing menace to all who were or wished to be in the employment of the plaintiffs, to deter them from entering the CHAP. VII.] VEGELAHN V. GUNTNER. 985 plaintiffs' premises. Maintaining it was a continuous unlawful aet, injurious to the plaintiffs' business and property, and was a nuisance such as a court of equity will grant relief against. Gilbert v. Mickle, 4 Sandf . Ch. 357 ; Spinning Co. v. Riley, L. R. 6 Eq. 551." Gilbert v. Mickle, one of the authorities cited in Sherry v. Perkins, was a suit in equity by an auctioneer against the mayor of the city of New York to restrain him and those acting under him from parading, placing, or keeping before the plaintiff's auction rooms a placard as follows: "Strangers, be- ware of mock auctions." A temporary injunction was issued, but, on hearing, it was dissolved. Notwithstanding what is said in the opinion of the vice chancellor, his conclusion is as follows : "I am satisfied that it is my duty to leave the party to his remedy by an action at law." Spinning Co. v. Riley is a well-known de- cision of Vice Chancellor Malins. The bill prayed that the de- fendants might be "restrained from printing or publishing any placards or advertisements similar to those already set forth." The defendants had caused to be posted on the walls and other public places in the neighborhood of the plaintiff's works, and caused to be printed in certain newspapers, a notice as follows: "Wanted, all well-wishers to the Operative Cotton Spinning &c.. Association not to trouble or cause any annoyance to the Spring- head Spinning Company lees, by knocking at the door of their office, until the dispute between them and the self-actor minders is finally terminated. By special order. Carrodus, 32 Greaves Street, Oldham." The case was heard upon demurrers. The vice chancellor says : "For the reasons I have stated, I overruled these demurrers, because the bill states, and the demurrers admit, acts amounting to the destruction of property." Of this case, the court, in Sherry v. Perkins, say: "Some of the language in Spinning Co. v. Riley has been criticised, but the decision has not been overruled." The cases are there cited in which that decision has been doubted or criticised. Of that decision, this court, in Boston Diatite Co. v. Florence Manf'g Co., 114 Mass. 69, say: "The opinions of Vice Chancellor Malins in Spinning Co. v. Riley, L. R. 6 Eq. 551, in Dixon v. Holden, L. R. 7 Eq. 488, and in Rollins v. Hinks, L. R. 13 Eq. 355, appear to us to be so inconsistent with these authorities [authorities which the court cited], and with well-settled principles, that it would be super- fluous to consider whether, upon the facts before him, his decis- ions can be supported." Much the same language was used by the justices in Assurance Co. v. Knott, 10 Ch. App. 142, a part 986 VEGELAHN V. GUNTNEE. [CHAP. VII. of the headnote of which is: "Dixon v. Holden and Spinning Co. V. Riley overruled." In Temperton v. Russell [1893] 1 Q. B. 435, 438, Lindley, L. J., says of the case of Spinning Co. v. Riley that it was overruled by the court of appeal in Assurance Co. V. Knott. Since the judicature act, however, the courts of England have interfered to restrain, by injunction, the publica- tion or continued publication of libelous statements, particularly those injuriously affecting the business or property of another, as well as injunctions similar to that in the present case. St. Z6 & 37 Vict. c. 66, § 25, subds. 5, 8; Monson v. Tussaud [1894] 1 Q. B. 671, 672; Lyons v. Wilkins [1896] 1 Ch. 811, 827. But, in the absence of any power given by statute, the jurisdiction of a court of equity, having only the powers of the English high court of chancery, does not, I think, extend to enjoining acts like those complained of in the case at bar, unless they amount to a destruction or threatened destruction of property, or an irreparable injury to it. In England the rights of employers and employed with reference to strikes, boycotts, and other similar movements have not, in general, been left to be worked out by the courts from common-law principles, but statutes, from time to time, have been passed defining what may and what may not be permitted. The administration of these statutes largely has been through the criminal courts. As a means of prevention, the remedy given by Pub. St. c. 74, § 2, would seem to be adequate where the section is applicable, uhless the destruction of, or an irreparable injury to, property is threatened; and there is the additional remedy of an indict- ment for a criminal conspiracy at common law, if the acts of the defendant amount to that. If the acts complained of do not amount to intimidation or force, it is not in all respects clear what are lawful and what are not lawful at common law. It seems to be established in this commonwealth that, intentionally and with- out justifiable cause, to entice,, by persuasion, a workman to break an existing contract with his employer, or to leave his em- ployment, is actionable, whether done with actual malice or not. Walker v. Cronin, 107 Mass. 555. What constitutes justifiable cause remains in some respects undetermined. Whether to per- suade a person who is free to choose his employment not to enter into the employment of another person gives a cause of action to such other person, by some courts has been said to de- pend upon the question of actual malice ; and, in considering this question of malice, it is said that it is important to determine CHAP. VII.] VEGELAHN V. GUNTNER. 987 whether the defendant has any lawful interest of his own in. preventing the employment, such as that of competition in busi- ness. For myself, I have been unable to see how malice is neces- sarily decisive. To persuade one man not to enter into the em- ployment of another, by telling the truth to him about such other person and his business, I am not convinced is actionable at com- mon law, whatever the motive may be. Such persuasion, when accompanied by falsehood about such other person or his busi- ness, may be actionable, unless the occasion of making the state- ments is privileged; and then the question of actual malice may be important. This, I think, is the effect of the decision in Rice V. Albee, 164 Mass. 88, 41 N. E. 122. When one man orally advises another not to enter into a third person's employment, it would, I think, be a dangerous principle to leave his liability to be determined by a jury upon the question of his malice or want of malice, except in those cases where the words spoken were false. In the present case, if the establishment of a patrol is using intimidation or force, within the meaning of our statute, it is illegal and criminal. If it does not amount to intimidation or force, but is carried to such a degree as to interfere with the use by the plaintiff of his property, it may be illegal and action- able. But something more is necessary to justify issuing an in- junction. If it is in violation of any ordinance of the city regu- lating the use of streets, there may be a prosecution for that, and the police can enforce the ordinance; but if it is merely a peaceful mode of finding out the persons who intend to enter the plaintiff's premises to apply for work, and of informing them of the actual facts of the case, in order to induce them not to enter the plaintiff's employment, in the absence of any statute relating to the siibject, I doubt if it is illegal, and I see no ground for issuing an injunction against it. As no objection is now made by the defendants to the equitable jurisdiction, I am of opinion on the facts reported, as I under- stand them, that, the decree entered by Mr. Justice Holmes should be affirmed, without modification. Holmes, J. (dissenting). In a case like the present, it seems to me that, whatever the true result may be, it will be of ad- vantage to sound thinking to have the less popular view of the law stated, and therefore, although, when I have been unable to bring my brethren to share my convictions, my almost in- variable practice is to defer to them in silence, I depart from that 988 VEGELAHN V. GUNTNER. [CHAP. VII. practice in this case, notwithstanding my unwillingness to do so, in support of an already rendered judgment of my own. In the first place, a word or two should be said as to the meaning of the report. I assume that my brethren construe it as I meant it to be construed, and that, if they were riot pre- pared to do so, they would give an opportunity to the defend- ants to have it amended in accordance with what I state my meaning to have been. There was no proof of any threat or danger of a. patrol exceeding two men, and as, of course, an injunction is not granted except with reference to what there is reason to expect in its absence, the question on that point is whether a patrol of two men should be enjoined. Again, the defendants are enjoined by the final decree from intimidating by threats, express or implied, of physical harm to body or property, any persons who may be desirous of entering into the employment of the plaintiff, so far as to prevent him from entering the same. In order to test the correctness of the re- fusal to go further, it must be assumed that the defendants obey the express prohibition of the decree. If they do not, they fall within the injunction as it now stands, and are liable to summary punishment. The important difference between the preliminary and the final injunction is that the former goes further, and forbids the defendants to interfere with the plain- tiff's business "by any scheme * * * organized for the purpose of * * * preventing any person or persons who now are or may hereafter be * * * desirous of entering the [plaintiff's em- ployment] from entering it." I quote only a part, and the part which seems to me most objectionable. This includes refusal of social. intercourse, and even organized persuasion or argument, although free from any threat of violence, either express or im- plied. And this is with reference to persons who have a legal right to contract or nol to contract with the plaintiff, as they may see fit. Interference with existing contracts is forbidden by the final decree. I wish to insist a little that the only point of difference which involves a difference of principle between the final decree and the preliminary injunction, which it is pro- posed to restore, is what I have mentioned, in order that it may seem exactly what we are to discuss. It appears to me that the opinion of the majority turns in part on the assumption that the patrol necessarily carries with it a threat of bodily harm. That assumption I think unwarranted, for the reasons which I have given. Furthermore, it cannot be said, I think, that two men, CHAP. VII.] VEGELAHN V, GUNTNER. 989 walking together up and down a sidewalk, and speaking to those who enter a certain shop, do necessarily and always thereby con- vey a threat of force. I do not think it possible to discriminate, and to say that two workmen, or even two representatives of an organization of workmen, do; especially when they are, and are known to be, under the injunction of this court not to do so. See Stimson, Labor Law, § 60, especially pages 290, 298-300; Reg. V. Shepherd, 11 Cox, Cr. Cas. 325. I may add that i think the more intelligent workingmen believe as fully as I do that they no more can be permitted to usurp the state's prerogative of force than can their opponents in their controversies. But, if I am wrong, then the decree as it stands reaches .the patrol, since it applies to all threats of force. With this I passed to the real difference between the interlocutory and the final decree. I agree, whatever may be the law in the case of a single de- fendant {Rice v. Albee, 164 Mass. 88, 41 N. E. 122), that when a plaintiff proves that several persons have combined and con- spired to injure his business, and have done acts producing that effect, he shows temporal damage and a cause of action, unless the facts disclose or the defendants prove some ground of ex- • cuse or justification; and I take it to be settled, and rightly set- tled, that doing that damage by combined persuasion is action- able, as well as doing it by falsehood or by force. Walker v. Cronin, 107 Mass. 555; Morasse v. Brochu, 151 Mass. 567, 25 N. E. 74; Tasker v. Stanley, 153 Mass. 148, 26 N. E. 417. Nevertheless, in numberless instances the law warrants the intentional infliction of temporal damage, because it regards it as justified. It is on the question of what shall amount to a justification, and more especially on the nature of the considera- tions which really determine or ought to determine the answer to that question, that judicial reasoning seems tcTme often to be inadequate. The true grounds of decision are considerations of policy and of social advantage, and it is vain to suppose that solutions can be attained merely by logic and general proposi- tions of law which nobody disputes. Propositions as to public policy rarely are unanimously accepted, and still more rarely, if ever, are capable of unanswerable proof. They require a special 'training to enable any one even to form an intelligent opinion about them. In the early stages of law, at least, they generally are acted on father as inarticulate instincts than as definite ideas, for which a rational defense is ready. 990 VEGELAHN V. GUNTNER. [CHAP. VII. To illustrate what I have said in the last paragraph: It has been the law for centuries that a man may set up a business in a small country town, too small to support more than one, al- though thereby he expects and intends to ruin some one already there, and succeeds in his intent. In such a case he is not held to act "unlawfully and without justifiable cause," as was alleged in Walker v. Cronin and Rice v. Albee. The reason, of course, is that the doctrine generally has been accepted that free compe- tition is worth more to society than it costs, and that on this ground the infliction of the damage is privileged. Com. v. Hunt, 4 Mete. (Mass.) Ill, 134. Yet even this proposition nowadays is disputed by a considerable body of persons, including many whose intelligence is not to be denied, little as we may agree with them. I have chosen this illustration partly with reference to what I have to say next. It shows without the need of further authority that the policy of allowing free competition justifies the inten- tional inflicting of temporal damage, including the damage of interference with a man's business by some means, when the • damage is done, not for its own sake, but as an instrumentality in reaching the end of victory in the battle of trade. In such a case it cannot matter whether the plaintiff is the only rival of the defendant, and so is aimed at specially, or is one of a class all of whom are hit. The only debatable ground is the nature of the means by which such damage may be inflicted. We all agree that it cannot be done by force or threats of force. We all agree, I presume, that it may be done by persuasion to leave a rival's shop, and come to the defendant's. It may be done by the refusal or withdrawal of various pecuniary advantages, which, apart from the consequence, are within the defendant's lawful control. It may be done by the withdrawal of, or threat to withdraw, such advantages from third persons who have a right to deal or not to deal with the plaintiff, as a means of in- ducing them not to deal with him either as customers or serv- ants. Com. V. Hunt, 4 Mete. (Mass.) Ill, 112, 133; Bowen v. Matheson, 14 Allen, 499; Heywood v. Tillson, 75 Me. 225; Steamship Co. v. McGregor [1892] App. Cas. 25. I have seen the suggestion made that the conflict between employers and em- ployed was not competition. But I venture to assume that none of my brethren would rely on that suggestion. If the policy on which our law is founded is too narrowly expressed in the term "free competition," we may substitute "free struggle for life." CHAP. VII.] VEGELAHN V. GUNTNER. 991 Certainly, the policy is not limited to struggles between persons of the same class, competing for the same end. It applies to all conflicts of temporal interests. I pause here to remark that the word "threats" often is used as if, when it appeared that threats had been made, it appeared that unlawful conduct had begun. But it depends on what you threaten. As a general rule, even if subject to some execeptions, what you may do in a certain event you may threaten to do— that is, give warning of your intention to do — in that event, and thus allow the other person the chance of avoiding the consequence. So, as to "compulsion," it depends on how you "compel." Com. v. Hunt, 4 Mete. (Mass.) Ill, 133. So as to "annoyance" or "intimidation." Connor v. Kent, Curran v. Treleaven, 17 Cox. Cr. Cas. 354, 367^ 368, 370. In Sherry v. Perkins, U7 Mass. 212, 17 N. E. 307, it was found as a fact that the display of banners which was enjoined was part of a scheme to prevent workmen from entering or remaining in the plaintiff's employ- ment, "by threats and intimidation." The context showed that the words as there used meant threats of personal violence and intimidation by causing fear of it. So far, I suppose, we are agreed. But there is a notion, which latterly has been insisted on a good deal, that a combination of persons to do what any one of them lawfully might do by him- self will make the otherwise lawful conduct unlawful. It would be rash to say • tliat some as yet unformulated truth may not be hidden under this proposition. But, in the general form in which it has been presented and accepted by many courts, I think it plainly untrue, both on authority and principle. Com. V. Hunt, 4 Mete. (Mass.) Ill; Randall v. Hazelton, 12 Allen, 412, 414. There was combination of the most flagrant and dominant kind in Bowen v. Matheson, and in the Steamship Co. Case, and combination was essefitial to the success achieved. But it is not necessary to cite cases. It is plain from the slightest consideration of practical affairs, or the most- superficial reading of industrial -history, that free competition means combination," and that the organization of the world, now going on so fast, means an ever-increasing might and scope of combination. It seems to me futile to set our faces against this tendency. Whether beneficial on the whole, as I think it, or detrimental, it is inevitable, ujiless the fundamental axioms of society, and even the fundamental conditions of life, are to be changed. One of the eternal conflicts out of which life is made up is thai 992 VEGELAHN V. GUNTNEE. [CHAP. VII. between the eflfort of every man to get the most he can for his services, and that of society, disguised under the name of capital, to get his services for the least possible return. Combination on the one side is patent and powerful. Combination on the other is the necessary and desirable counterpart, if the battle is to be carried on in a fair and equal way. I am unable to recon- cile Teniperton v. Russell [1893] 1 Q. B. 715, and the cases which follow it, with the Steamship Co. case. But Temperton v. Russell is not a binding authority here, and therefore I do not think it necessary to discuss it. If it be true that workingmen may combine with a view, among other- things, to getting as much as they can for their labor, just as capital may combine with a view to getting the greatest possible return, it must be true that, when combined, they have the same liberty that combined capital has, to support their interests by argument, persuasion, and the iiestowal or re- fusal of those advantages which they otherwise lawfully con- trol. I can remember when many people thought that, apart from violence or breach of contract, strikes were wicked, as organized refusals to work. I suppose that intelligent econo- mists and legislators have given up that notion today. I feel pretty confident that .they ec[ually. will abandon the idea that an organized refusal by workmen of social intercourse with a man who shall enter their antagonist's employ is unlawful, if it is dissociated from any threat of violence, and is made for the sole object of prevailing, if possible, in- a contest with their em- ployer about the rate of wages. The fact that the immediate object of the act by which the benefit to themselves is to be gained is to injure their antagonist does not necessarily make it unlawful, 'any more than when a great house lowers the price of goods for the purpose and with the effect of driving a smaller antagonist from the business. Indeed, the question seems to me to have been decided as long ago as 1842, by the good sense of Chief Justice Shaw, in Com. v. Hunt, 4 Mete. (Mass.) 111. I repeat at the end, as I said at the beginning, that this is the point of difference in principle, and the only one, between the inter- locutory and final decree ; and I only desire to add that the dis- tinctions upon which the final decree was framed seem to me to have coincided very accurately with .the results finally reached by legislation and judicial decision in England, apart from what I must regard as the anomalous decisions of Temperton v. Rus- sell and the cases which have followed it. Reg. v. Shepherd, 11 CHAP. VII.] VEGELAHN V. GUNTNER. 993 Cox, Cr. 'Cas. 325 ; Connor v. Kent, Gibson v. Lawson, and Cur- ran V. Treleaven, 17 Cox, Cr. Cas. 354. The general question of the propriety of dealing with this kind of case by injunction I say nothing about, because I understand that the defendants have no objection to the final decree if it goes no further, and that both parties wish a decision upon the matters which I have discussed. 994 TRULL V. SKINNER. [CHAP. VHI. CHAPTER Vin. MORTGAGES. TRULL V. SKINNER. (17 Pick. 213.) [Supreme Judicial Court of Massachusetts, 1835.] Shaw, C. J., delivered the opinion of the court. The plaintiff has brought his bill in equity to redeem certain mortgaged prem- ises therein described, being parcels of real estate situated in Cambridge. He claims title as the purchaser of an equity of redemption, at an officer's sale, made pursuant to the statutes provided for the seizure and sale of equities of redemption for satisfying executions. The sale to the plaintiff was made on May 4, 1833, for $3,500, on an execution and judgment re- covered by Ezra Trull against Royal Makepeace, in a suit in whicli the premises had been attached on mesne process the 11th of April, 1832. The question therefore is, whether Make- peace had such an equity of . redemption, liable to be taken by creditors, either in May, 1833, when it was taken in execution, or in April, 1832, when it was attached. There is no doubt that the transaction of September, 1827, constituted a mortgage. Makepeace conveyed to Skinner & Hurd an estate in fee, consisting of sundry parcels of land; and at the same time an indenture, bearing the same date, was entered into by the parties, reciting the conveyance, reciting that a debt was due from Makepeace to Skinner & Hurd, and containing an agreement that Skinner & Hurd should purchase in the equity of redemption, then about to be sold on execution, should pay off a mortgage due to Dr. Shattuck, should advance further sums of money, and, upon repayment of the sums due to them, should release and reassign to Makepeace. It was further agreed, CHAP. VIII.] TRULL V. SKINNER. 995 that Makepeace might make sales of the lands, from time to time, that Skinner & Hurd would execute releases, pursuant to such sales, that they should receive the money, the proceeds of s-ich sale, and apply it to the payment of the debt, and should account for the surplus; and the whole was to be accomplished in three years. Some small sales were made pursuant to this agreement, and in April, 1831, a large part of the debt remaining unpaid, a new arrangement was made, also by indenture. The instrument of defeasance before held by Makepeace was surrendered and de- livered up to be cancelled, and new stipulations were entered into, by which Skinner & Hurd leased the land to Makepeace for two years, a rent about equal to the interest on the debt, and they further stipulated that, upon the payment of a certain sum by Makepeace in two years, they would convey the estate to him. The first question is, whether this last agreement, surrender- ing and cancelling the instrument of defeasance, was an ex- tingfuishment of the equity of redemption, as between the parties, and against the creditors of the mortgagor. The court are of opinion, that where an absolute deed is given, accompanied by a simultaneous instrument, operating by way of defeasance, and afterwards the parties, by fair mutual stipulations, agreed that the defeasance shall be surrendered and cancelled, with an intent to vest the estate unconditionally in the grantee, by force of the first deed, by such surrender and cancellation the estate becomes absolute in the mortgagee. The original conveyance stands unaffected in form and legal effect; it conveys an estate in fee; the only party who could even claim a right to deny it that opera- tion, by engrafting a condition upon it, has voluntarily surren- dered the only legal evidence, by which that claim cpuld be sup- ported, and is thereby estopped from setting it up. Such cancel- lation does not operate by way of transfer, nor strictly speaking by way of Release working upon the estate, but rather as an estoppel arising from the voluntary surrender of the legal evi- dence, by which alone the claim could be supported : like the can- cellation of an unregistered deed, and a. co;iveyance by the first grantor to a third person without notice. The cancellation re- conveys no interest to the grantor, and yet taken together, such cancellation and conveyance to a third person make a good title to the latter by operation of law. It gives a seisin de facto, a conveyance by deed duly registered being to many purposes equivalent to livery of seisin; Higbee v. Rice, 5 Mass. R. 352; 996 ' TRULL V. SKINNER. [CHAP. VHI. it is good against the grantor and his heirs by force of the second deed, and it is good against the first grantee, and all claiming under him, by force of the registry act. Commonwealth v. Dud- ley, 10 Mass. R. 403. But the point now decided, of the effect of cancelling an instrument of defeasance seems to be settled by authorities. Harrison v. Phillips' Academy, 12 Mass. R. 456; Rice V. Rice, 4 Pick. 349. But this rule is to be taken with this qualification, that the transaction is conducted with perfect fair- ness and good faith, both as between the parties and as against the creditors of the mortgager, and that the rights of third per- sons had riot intervened, before the completion of the transfer by the cancellation. But if these qualifications do exist, if no un- fair advantage is taken of the mortgager, if by mutual agreement all beneficial and available interest of the mortgager is taken away,. in a form which must forever prevent him from enforcing a right to redeem by any legal or equitable proceeding, there seems to be no interest which the creditor of such party can take, for the satisfaction of his claims. 2. The court are also of opinion, that the agreement by Skin- ner & Hurd, to convey upon, certain terms in two years, con- tained in the indenture of April, 1831, did not operate as a de- feasance, so as to constitute with the original conveyance, a new mortgage, because it was not executed at the same time with the conveyance of which it is claimed to be a defeasance, nor as part of one and the same transaction, nor was so under- stood or intended by the parties. Kelleran v. Brown, 4 Mass. R. 443 ; Harrison v. Phillips' Academy, 12 Mass. R. 456. Perhaps where parties by mutual agreement, intending to en- large and extend the time of redemption, should take up an ex- isting instruftient of defeasance, and at the same time execute another, connected with the former by proper recitals and pro- visions, showing an intention to continue the former right of re- demption on foot, in a modified form, by force of this substituted instrument of defeasance, such new instrument might be so con- strued as to relate back to the first deed, and preserve the mort- gage, when such construction would but support and carry into effect, the intent of the parties; of this, however, it is unneces- sary -to express an opinion.- The instrument now relied on as a defeasance, was not only not made at the same time the original deed was executed, nor at the time it took effect, nor was it either actually or constructively part of the same transaction, nor was it a case where the party recognized it as a mortgage, or CHAP.- VIII.] YOULE V. RICHARDS. 997 intended to construe or carry it into eifect, as such. The court are, therefore, of the opinion that by the surrender of the de- feasance, the right in equity was extinguished, the original mort- gagee remained seised by force of the first deed, and the new contract did not constitute a new mortgage, nor keep the exist- ing equity of redemption in force. 3. This leads to the remaining, and perhaps to the parties the most important question, whether this surrender of the defeas- ance and extinguishment of the equity was good against the creditors of Makepeace. This depends mainly on the questions of fact, to which much evidence was taken, whether this ar- ' rangement was made with an intent to delay, defeat or defraud the creditors of Makepeace, whether there was a secret trust on the part- of the respofidents to hold the same, in whole or in part, for the benefit of the mortgager, and whether there was such a disparity between the value of the estate and the amount for which it was taken, as to lead to a reasonable inference of any such fraudulent intent (after an examination and summing up of the evidence.) Upon the whole evidence, the court are of opinion, that the transaction was not fraudulent, that the equity of redemption was relipquished before the attachment, and that the complain- ant did not acquire a right to redeem, under the officer's deed. Bill dismissed. YOULE V. RICHARDS. (1 JV. /. E. 534.) [Court of Chancery of the State of New Jersey, 1832.] The Chancellor. The complainant has set out an equitable right. According to his statement, the conveyance, when coupled with the agreement, is, in equity, nothing more than a mortgage, and he is entitled to redeem on payment of the amount due. He alleges that he tendered the debt and interest, first to the prin- cipal, Richards, and then to Evans, the agent, and that both tenders were made within the year. Richards declined receiv- ing the money tendered without first seeing the agent; and the agent, when called on, declined receiving it, and said it must be paid to the principal. These facts are substantially admitted by the answer. Richards says he agreed to consider the tender 998 YOULE v: richards. [chap. vni. lawful, so far as respected the amount due, but was unwilUng to receive the money, or give any receipt for it, until he" could hear from his agent. And Evans says, that shortly after this, but at what particular time he cannot recollect, the tender was made to him, and that he decHned receiving the money, because he had no authority to take it. So far forth the equity of the bill is admitted by the defendants. The answer alleges, it is true, that after the two several tenders made by the complain- ant, Evans, the agent, called upon the complainant to know if he still wished to redeem ; that he appeared undecided, and prom- ised to let him know in one week, which' he failed to do; and that after the lapse of more than a month, Evans., as the agent of Richards, took possession of the property. Admitting these facts as stated, I do not see that they affect the complainant's equity, or that they gave the defendant a right .to take possession of the property and use it as his own. The fact of possession cannot aid him, for he was not let in by the complainant. The complainant is to be considered in this' court in the light of a mortgager. His situation is not altered by the fact that Richards (as stated in the answer) originally held a mortgage against him, and that upon an arrangement made between them, the complainant agreed to give him, and did actually execute and deliver to him, an absolute deed, on receiving an agreement in writing that he should be at liberty to redeem by paying the money due in one year. The conveyance could operate only as a mortgage in equity, arid the agreement, so far as it restricts the right of redemption to one year, is void. The principle is well settled, that all such restrictions are void. Whenever it can be clearly shown to be the intention of the parties, that real estate, when conveyed, shall be subject to redemption, it is considered as a mere security; and the right of redemption can- not be confined to a limited time, or to a particular class of per- sons. In Kilvington v. Gardner, 1 Verm. 192, it was decreed, that although the condition of the mortgage was to redeem during the life of the mortgagor, the heir might redeem notwith- standing. In Clinch v. Witherly, Cas. Temp. Finch, 376, there was a surrender of a copyhold estate to the use of A. B., with- out any condition expressed in it, but a judgment was given at the same time as a further security ; and it was agreed by a note in writing that if the mortgagor should within a twelve-month pay back the consideration money of the surrender, that he would yield up the copyhold and acknowledge satisfaction on the CHAP. Vin.] YOULE V. RICHARDS. 999 judgment. The court considered the surrender and judgment as securities. only for the repayment of the money, and decreed a redemption sixteen years after the twelve months expired. "Once a mortgage and always a mortgage," is an ancient equity maxim, of approved policy and wisdom. There would have been, with- out it, a door open for the imposition of every kind of restraint on the equity of redemption, and thereby the borrower, through necessity, would have been driven to embrace any terms, how- ever unequal or cruel; which would have tended greatly to the furtherance of usury, and the conversion of the equitable juris- diction of the court into an engine of fraud and oppression. In the chancery of New York, it was held, that every contract for the security of a debt by the conveyance of real estate, is a mortgage; and all agreements of the parties tending to alter, in any subsequent event, the original nature of the mortgage, and prevent the equity of redemption, is void. If the conveyance is a mortgage in the beginning, the right of redemption is an inde- pendent incident, and cannot be restrained or clogged by agree- ments: Henry v. Davis, 7 John. C. R. 42. Such an agreement, says Fonblanque, would be contrary to natural justice in the creation of it, and prove a general mischief, because every lender would, by this method, make himself chancellor in his own case, and prevent the judgment of the court; 2 Fomb. 259. See also Fry v. Porter, 1 Ch. Ca. 141 ; James v. Oades, 2 Vern. 402 ; 5'^- ton v. Slade, 7 Ves. 273; and 1. Pow. on Mortg. 116, et seq. Considering Richards, the defendaht,.as a mortgagee in pos- session, he i$ not authorized to cut down timber and commit waste upon the premises. No act prejudicial to the estate can be justified, in equity. Even if the proceeds of the timber cut were appropriated to the extinquishment of the debt, it would be very questionable policy to allow the mortgagee to pay himself his debt out of the property, according to his own ideas of right. Harson v. Derby, 2 Vern. 392; Farrant v. Lood, 3 Atk. 686; 1 Pow. on Mortg. 188-9; Eden on Inj. 118. Were there no other facts in the case, I should feel no difficulty in retaining the injunction until the hearing on the ground that Richards is a mere mortgagee in possession, and therefore not justified in committing waste on the property; but there is one circumstance in the case which materially varies the whole ground. It appears, according to the complainant's own showing, that the instrument of writing in the nature of a defeasance, which was given for the safety of the comf)lainant, was delivered up 1000 YOULE V. RICHARDS. [CHAP. VIII. to the defendant, Richards, and canceled. This, if a bona Ude- transaction, is binding on the parties. A mortgagor may, for good cause, surrender his right of redemption, and render the mortgagee's title absolute. This is an every day transaction, and does in no way impugn the principles already established. It is alleged, however, by the complainant that this wAs a fraudulent transaction,' and ought not to take away, or even to prejudice, his rights. He states that Evans, one of the defendants, knowing that the original article of agreement was intrusted to William Wayne, called on Wayne to effect a redemption of the land, and, by making divers false representations, induced him to deliver up the article ; that this was contrary to .the wishes of the com- plainant, and he was ignorant of it until some time afterward. If this be true, the complainant's equity is not impaired, and he is entitled to the full aid of the court, not only to protect him in his right, but to expose the fraud by which those rights are sought to be destroyed. I think, however, the answer of the de- fendants sufficiently repels the charge. It sets forth that after the fomplainant neglected to redeem the laijd, the business re- mained unsettled, and that Richards referred it to Evans to make such arrangement with Wayne, who was entrusted with the agreement, and who was the brother-in-law of the complain- ant and acted as his attorney and agent in the matter, as he might think proper and right; and it was accordingly agreed between them that Richards should retain the land, and pay to Youle the sum of two hundred and fifty dollars, in full of all his interest, right of redemption or other claim therein; and that the agree- ment should be cancelled and delivered up. This arrangerflent was acceded to by Richards, and he agreed to pay the money to Wayne on his producing an order from Youle, the complainant, to receive the amount, and also the original agreement. That accordingly, on the Sth of September, 1826, Wayne, acting on behalf of Youle, produced the agreement, and also a written order from Youle, authorizing Richards to pay to Wayne two hundred and fifty dollars, as the balance in full; whereupon he paid the money to Wayne and took his receipt, stating it to be for lands near Martha furnace, purchased by Jesse Evans for Richards' account. This appears to me a complete answer to the charge of fraud. And it is not new matter, which, according to the practice of the court and the reason of the thing, cannot avail the defendant on this motion. It is directly responsive to a material allegation of the CHAP. VIII.] CORNELL V. HALL. 1001 bill. The defendant, in denying a charge against him, has a right to state the whole transaction. In making this arrangement, it appears that Wayne under- took to act as the agent of Youle, the complainant, who now insists that Wayne was not authorized. But we are to take the. defendant's answer as true, upon the present inquiry; and it shows, not only that Wayne acted as agent, and made the con- tract as such, but that the contract was not completed until he produced the written authority of Youle himself to receive the stipulated sum of money, and also produced the original agree- ment or defeasance to be cancelled. This could not have been done without "the knowledge and approbation of the complainant. As the case is presented upon the bill and answer, the title of the defendant is complete, and there is no ground for continuing the injunction. Injunction dissolved. CORNELL V. HALL. (22 Mich. i77.) [Supreme Court of Michigan, 1871.] Graves, J. This was a bill praying that a deed from com- plainant to defendant, and a bond of even date from the latter to the former, providing for a reconveyance on certain terms, should be declared a mortgage, and that complainant should be allowed to redeem. The bill was sworn to and required the de- fendant to answer under oath, and he answered accordingly. A general replication being filed, the proofs were taken ; which, on the part of -complainant, aside from his brief and unimportant note of the 3d of December, 1860, his letter from New Orleans, and the bond, consisted only of his own depositions, and on the part of the defendant, consisted of his deposition and the depo- sitions of Ethan S. Johnson and Henry S. Hall. Both parties have relied on the written evidence in the bond and letters. The court below dismissed the bill and complainant appealed. A glance at the numerous adjudications in controversies of this kind will suffice to show that each case must be decided in view of the peculiar circumstances which belong to it and mark its character, and that the only safe criterion is the intention of the parties, to be ascertained by considering their situation and 1002 CORNELL V. HALL. [CHAP. VIII. the surrounding facts, as well as the written memorials of the transaction. The courts do not presume to change the contracts which the parties have" made, but endeavor to give them that effect to which they are entitled by the principles administered in equity. While these principles will not permit a transaction which in substance is a mortgage, to have the effect of a sale, there is no principle or maxim of policy which forbids the making of a conditional sale, or which will allow the court to interpose and convert one into a mortgage. A contrary position would invest the court of chancery, in the language of Chief Justice Marshall, in a considerable degree with the guardianship of adults as well as of infants. Conway's Executors v. Alexander, 7 Cranch, 218. It is unquestionably true that in cases where, upon all the cir- cumstances, the mind is uncertain whether a security or a sale was intended, the court, when compelled to decide between them, will be somewhat guided by prudential considerations, and will consequently lean to the conclusion that a security was meant as more^ likely than a sale, to subserve the- ends of abstract justice and avert injurious consequences. And where the idea that a security was intended is conveyed with reasonable distinctness by the writings, and no evil practice or mistake appears, the court will incline to regard the transaction as a security rather than a sale, because in such a case the general reasons which favor written evidence concur with the reason just suggested. But if, upon the whole case, it satisfactorily appears that a conditional sale was intended, the transaction must retain the stamp which the parties have themselves given to it. Since, therefore, the intention of the parties is the vital ques- tion, it is essential to attend to their situation, the price fixed in connection with the value of the property, the conduct of the parties before and after, and all the surrounding facts so far as they are adapted to develop and explain the nature and ob- ject of the arrangement. Without adverting more particularly ^:o the doctrine which relates to this class of cases, we may proceed to notice the circumstances peculiar to the subject of this suit; and 'first of all, as likely to present^ the matter in a clearer light, it seems advisable to bring into view certain pre-- liminary facts which are conceded and are necessary for expla- nation, and then to recur at once to the differing statements of the parties in their depositions, where they assume to detail the verbal arrangement which the deed and bond were meant, for the CHAP. VIII.] CORNELL V. HALL. 1003 most part, to carry out. For it is in this part of these two depo- sitions that we find the only material discrepancies in the 'evi- dence; and unless the complainant's version, where it varies from defendant's, finds satisfactory corroboration in other features of the record, it cannot be accepted as sufficient to support the bill. His whole case rests upon his personal evidence and the papers; and if that evidence is opposed in an essential part by credible proof made by the defendant, and is not supported by the writings or other satisfactory media of proof, he cannot succeed. In the fall of the year 1860 the complainant was the owner of several contiguous parcels of land, and among them a parcel of forty-four and a quarter acres, described as being the northwest fractional quarter of the southwest fractional quarter of section six, and forty acres described as the northeast quarter of the southeast quarter of section one, all in township seven north of range seven west in Ionia county. At this time the defend- ant held two mortgages given by complainant, one on the first parcel and the other on a separate parcel, which we do not find described in the record. These mortgages were carrying interest at the rate of ten per cent, and the principal sum and interest upon both were due and unpaid, and amounted to about five hundred dollars. The precise sum is not set forth. The complainant had about seven acres of winter wheat grow- ing on the premises described. The defendant was not press- ing for payment of these mortgages, and expressed himself to complainant as willing to allow the debts to run if the inter- est should be paid. A short time before the Sth of Decem- ber, 1860, when the deed and bond were given, complainant applied to defendant for a loan of two hundred dollars, and pur- posed to secure that sum with the amount due on these mortgages, by a new mortgage on the two parcels of land first mentioned. The defendant refused to make the loan, but offered to. buy these premises and pay nine hundred dollars for them. The complain- ant then proposed to sell them for one thousand dollars, but with- out rejecting the defendant's offer obtained the privilege of con- sidering upon it for two or three days, and finally at the end of that interval accepted it. The verbal agreement thus made, as all admit, contemplated an absolute and unconditional sale of the land, including the wheat. At this stage of" the business the de- fendant, without receding from his first offer which complainant had accepted, made a second and alternative proposition, which it is admitted was accepted and acted upon as the basis of the 1004 CORNELL V. HALL. [CHAP. VIII. final arrangement, and it is this second proposition, as already intimated, that in some points the parties disagree about their depositions. As related Hy complaint, it was in substance that defendant should cancel the two mortgages, and let complainant have money enough, together with what they called for, to make seven hundred and fifty dollars; that complainant should make an absolute conveyance of the eighty-four and a quarter acres to defendant, but should have the right to reedeem in a year by paying nine hundred dollars, which would be the same as a loan of seven hundred and fifty dollars at an interest of twenty per cent ; the defendant should give complainant a contract to recon- vey in case the nine hundred dollars should be paid within the time specified. The complainant, however, admitted on his cross- examination, that he was to have the use of the property for one year, and also that something was said in that connection to the effect that the amount which would conie off of the land in that time would be as much as one hundred and fifty dollars, and he also stated that he understood that the deed he was to give would be a mortgage, though he did not know how the defendant under- stood it. The version given by the defendant is, that he was to buy the land and give nine hundred dollars for it ; that this sum was to be paid by giving up the two mortgages and paying so much money in addition as would make a present cash payment of seven hundred and fifty dollars ; that the remaining one hun- dred and fifty dollars was to be paid by allowing complainant to retain the wheat and occupy and use the premises for a year, with the right to purchase within the year for nine hundred dol- lars, and that defendant should oblige himself by bond to recon- vey at the end of the year, oh condition of being paid nine hun- dred dollars within that time. The defendant also denies in his deposition that either party understood that the deed and bond were to be security. With these party narratives of the bargain before us we proceed to notice the other material facts. The secorid proposition being accepted on the Sth of December, 1-860, the parties immediately proceeded to carry it out. The complain- ant deeded the land to the defendant, by an instrument absolute in form, and the latter canceled the mortgage on the record, gave to complainant a sum of money which, when added to that called for by the mortgages, amounted to seven hundred and fifty dol- lars, and executed the bond for reconveyance, which complainant had himself drawn. The circumstance which, appears to have urged the complainant to obtain money, and to seek the arrange- CHAP. VIII.] CORNELL V. HALL. 1005 ment with that view, was not any pressure upon him by defend- ant, but it was that the time for redeeming certain of the lands in question from a foreclosure, which it seems had theretofore taken place at the instance of a third party, was nearly expired, and the means were wanted to make redemption, and this circum- stance was unknown to defendant until he was about putting his name to the acknowledgment of satisfaction of his mortgages. The complainant then paid to the proper officer the redemption money, and it is a noticeable fact, in this connection, that the cash obtained by complainant was considerably more than was needed to effect the redemption. The business being thus concluded, the complainant remained in possession during the year specified in the bond, took off the wheat and had the use of the premises, and then failing to pay according to the stipulation, yielded possession to the defendant, who entered under the deed, and has since continued to occupy, enjoy and improve the premises as absolute owner. The complainant went to the Southern States in October, 1866, and returned in July, 1867, and except during this in- terval resided near the defendant, and saw him as often as once a month until the bill was filed, and never intimated to him that he deemed the transaction as other than a sale until late in 1866, and then he informed him by letter from New Or- leans, under date of the 19th November, that he, the defendant, was "probably not aware that the deed was, under the circum- stances, neither more nor less than a mortgage;" that he had consulted with one of the best law firms in Ionia and was told that he could redeem the land at any time by paying the money received from defendant, with interest at seven per cent, and that the use of the land, after deducting the cost of working it, could be taken from the amount; and further, that he should have redeemed it before, but lacked the money. In seeking to ascertain whether the parties intended a sale or security, at the time of the bargain, this piece of evidence is alone quite expressive. It shows that as late as the fall of 1866, the complainant believed the defendant to be unaware that he claimed the deed to be a mortgage, and it also implies that complainant had found it needful to be instructed by counsel as to whether the deed and bond after all embodied the indispensable requisite of a mortgage, which- secures to the mort- gagor what is called the "right to redeem." But the force o this evidence is somewhat increased when we find in the bill that this advice was not sought until four or five years after the transaction. 1006 CORNELL V. HALL. [CHAP. VIII. and three or four subsequent to the surrender of possession to de- fendant, and when the property had become greatly enhanced in value by various causes, and among them by improvements made by defendant. The statement is, that about two years before the bill was filed the complainant took the bond to Soule & Spencer, "for the purpose of consulting them on the subject of his right to re- deem." We find in the record another item of proof which, though not of great weight, possesses some significance as an act of complainant, indicating his contemporaneous understand- ing of the nature of the arrangement with defendant." In 1863, as appears from the deposition of Henry S. Hall, the latter Jiad a conversation with complainant -about buying a parcel of land of him, and that the former, in speaking of the price demanded, alluded to the sum paid by defendant in the bargain in question, and distinctly spoke of that bargain as a sale, and the complain- ant in making reply not only did not impugn this construction, but, on the contrary, seemed- to regard it as correct. We have seen that defendant insists that it was part of the arrangement that complainant should have the use of the prop- erty for the first year, and that this was considered as equivalent to one hundred and fifty dollars; that complainant admits that the right to use the land for such time was part of the bargain, and that something was said to the effect that the prodhcts would be worth one hundred and fifty dollars. On referring to the bill we observe that complainant there states upon oath, that in each year after the first the rents and profits have been three hundred dollars, and we discover nothing in the record to show why they, were not worth as much the first as the second year. In view of these statements and admissions^ and the other facts in the case, we think that it fairly appears that the right to occupy for the year, which was secured to complainant, was valued at one hun- dred and fifty dollars, and was worth that sum. The evidence satisfactorily shows that nine hundred dollars would have been a fair price for the land if sold upon the terms of giving immediate possession, and without reservation or con- ditions. The complainant had, on deliberation, agreed to sell the land and wheat for that price in money, after deducting the amount called for by the mortgages. As it was, he received seven hundred and fifty dollars in the same way for the land alone, but upon terms which gave him the use of the property and deprived the defendant of it for a year, which was equal to one hundred CHAP. VIII.] LOVELL V. LELAND. 1007 and fifty dollars, and he also obtained the right to repurchase within that period, if he could make anything by so doing. We may, therefore, consider that when complainant received seven hundred and fifty dollars for his deed, on the terms men- tioned, he received, and defendant gave, a fair purchase price. It appears, on a careful reading of the record, that defendant steadily declined to make a loan, and that complainant dropped the idea of getting one when he accepted the first proposition, and no proof is discovered that he afterward intimated in words that the negotiations involved one. The old demands were can- celed, and defendant received no covenant or undertaking by which he could compel complainant to pay anything. The bond drawn by complainant, when separately considered, imports an agreement to sell, and does not imply the existence of any debt owing by complainant to defendant, and we discover no evidence that the parties when their bargain was finished supposed their relation to be that of debtor and creditor. The conduct of com- planant was for several years accordant with the notion that a conditional sale had been made, and was radically inconsistent with the idea that he was a mere mortgagor. The surrender of the property upon default in payment, and the omission for so many years to whisper to defendant that he claimed any right, incon- sistent with defendant's absolute ownership, when he had frequent opportunities to do so, and knew that the latter was making im- provements as owner, and under the belief that the title derived from the transaction in question was indefeasible, are facts ex- tremely persuasive against the validity of the present claim ; and when we find them fortified by the other rnaterial circumstances, and observe -that the bond tallies with the theory indicated by the conduct of the parties and the leading facts, we are con- strained to decide that the parties intended a condil^ional sale and not a security, and that the bill was, therefore, properly dis- missed, j.^^ decree below must be affirmed with cost. LOVELL V. LELAND. (3 Vt. 581.) [Supreme Court of Vermont, 1831.] This was an action of assumpsit on a promissory note, exe- cuted by the defendant to the plaintiff, dated June 17, 1820, for 1008 LOVELL V. LELAND. [CHAP. VIII, $400, payable in three years from the 1st day of November next after date. Plea, general, issue. It appeared on the trial in the County Court that the note in question, together with four others, was secured by mortgage on certain real estate in, Weston in the county of Windsor. Before thei note in question became due, the plaintiff assigned the mort- gage and notes to Ichabod Onion, who afterward brought a bill to foreclose the equity of redemption of the mortgaged premises, and in June, 1824, obtained a decree of forecloseure against the defendant, embracing two of the notes only, but not the one in question (the two others having been previously paid and taken up). By the decree, the defendant was required to pay the sum ascertained to be due on the two notes, to-wit, $866.11, by the first day of April, 1825, or be forever foreclosed of all equity of redemption in and to the said mortgaged premises. The de- fendant having neglected to pay said sum according to the decree, the said Onion entered into quiet possession of the premises mort- gaged, and has ever since kept possession thereof. It also ap- peared that said premises were, on the 1st day of April, 1825, of greater value than the sum due on said mortgage, including interest and cost. The plaintiff objected to the admission of evi- dence to prove the foregoing facts; but the objection was over- ruled, and the evidence admitted to go to the jury, who returned a verdict for the defendant. The plaintiff excepted, etc., and the case was reserved for the opinion of this court. Williams, J., delivered the opinion of the court. .The ques- tions which are embraced in the consideration of this case are of very great importance in this State. They have been fully investigated and very ably argued. We have endeavored to be- stow upon them all the consideration which their importance merits, sensible that a decision either way will conflict with opin- ions which have at different times been entertained in this State, and with decisions which have been made in different states." It is contended by the plaintiff that, from the facts which were proved in this case, he ought not to be precluded from pursuing at law for the debt mentioned in the condition of the mortgage deed; that the decree of foreclosure obtained by Onion, his as- signee, cannot operate as a satisfaction, either in whole or in part, of the debt due to him from the defendant ; that he may sue for, and collect in the ordinary way, all the notes executed by the defendant which were secured by the mortgage; and that CHAP. VIII.] LOVELL V. LELAND. 1009 the only effect of thus prosecuting a suit on the notes, is to open the foreclosure. If this is correct, the absolute estate which Onion had in the mortgaged premises has been defeated, and is now an estate upon condition. If this doctrine is recognized, it renders the decree of no effect as to the mortgagee, and gives him every advantage, while it must be considered as conclusive upon the mortgagor. Thus, the mortgagee may appropriate to his own use, and become the absolute owner of the estate mortgaged. If it rises in value, the benefit is his; while on the other hand, if from any cause whatever it should depreciate in value, although it may once have been an ample and adequate satisfaction of the debt, he may call upon the mortgagor, compel him to pay the debt, and take back the property mortgaged at its depreciated value, notwithstanding any inconvenience or injury he may sus- tain arising from the lapse of time, or an alteration of his business or residence. It is certainly worthy of consideration whether any such principle has been established, and whether so flagrant an injustice is sanctioned by law. In Connecticut it has already been considered that a decree of foreclosure, and a possession taken in consequence thereof, was by operation of law, an extinguishment of the mortgage debt. In the case of Derby Bank v. London, 3 Conn. 62, this was recog- nized as the established law in that State, confirmed by repeated decisions. In this State it was once so considered; and when Chief Justice Tyler presided in this court, I remember his direct- ing, when a decree of foreclosure was made, that the notes should be left with the clerk, observing that the debt was satisfied by the decree. Afterward the opinion of the profession changed and was conformable to the views taken in this case by the plain- tiff's counsel, though I do not know that the question was ever presented to the consideration of the court, except in the case of Strong v. Strong, 2 Aiken, 373. Indeed, so general was this opinion, that when the question was first raised in this case in the County Court, I thought it did not admit of a doubt that the plaintiff was entitled to a judgment for the amount of his note. I became convinced, however, on examination, that my previous opinion was well founded, and the County Court were well agreed in making the decision in this case which we are now reviewing. On an examination of the authorities we have all come to the conclusion that there was no foundation for the opinion which has heretofore been entertained; but, on the contrary, that the authorities establish this position, that a decree of foreclosure 64 1010 LOVELL V. LELAND. [CHAP. VIII. and a possession taken is a satisfaction of the debt to the amount of the value of the premises mortgaged, at the period when the right of the mortgagor was extinguished, and, of course, that it is a full satisfaction of the debt, when the mortgaged premises are of greater value than the debt. And although it is laid down that an action may be commenced on the bond, etc., after the decree, yet it is only where the security is insuiEcient, and to recover the difference between the value of the estate and the sum due. Powell, in his treatise on mortgages, page 1077, says that if a mortgagee, after having got a decree to foreclose, which is signed and enrolled,' bring an action of debt on the bond given at the same time for the payment of the money and performance of the covenants of the mortgage deed, such action will open the foreclosure, and let in the equity of redemption of the mortgagor, and he refers to the case of Dashwood v. Blythway, 1 Eq. ca. abr. 371. From this case it has been inferred that a mortgagee might in every case bring an action at law for the debt mentioned in the condition of the mortgage deed, £uid recover the whole amount without regard to the decree of foreclosure, and without being in any way affected by it. There was nothing in the decision of that case, if I am correct in supposing it to be the same which is reported in Mosely, as I shall shortly notice, which would warrant the doctrine laid down by Powell, or in Eq. ca. abr. ; and it must have been an inference of the reporter from the argument of counsel. The case of Dash- wood v. Blythway, in equity cases abridged,^ is marked with an asterisk, as not to be found in the reports before published. It appears to have been decided at the Rolls, Trin. term, 1729. At the same term, and upon the same subject, a case was decided at the Rolls, reported in Mosely's Chancery Reports, 196, by the name of Dashwood v. Bithazy, which is unquestionably the same case that is found in Eq. ca. abr. From the report in Mosely it appears that the bill was for a foreclosure, and the solicitor gen- eral for the plaintiff prayed for a sale of the mortgaged premises instead of a foreclosure, because the security was defective, and urged as a reason for such a decree, that if they should after- ward sue the defendant on his bond, that would open the fore- closure ; and he insisted that such decrees were usual. Tiie Mas- ter of the Rolls, however, did not recognize this as a. common practice, but said it was usual, when the security was defective, to refer to a master to set a valuation on the estate, and for the CHAP. VIII.] LOVELL f. LELAND. lOU plaintiff to take it pro fa«fo; and he referred to two cases, viz.: > Harnsden v. Pilby and Norsworthy v. Sargeant Maynard. He, however, decreed a sale on the authority of the latter case. Now, it is not admitted in this case, that after a decree of foreclosure the creditor may sue on his. bond and recover the whole amount. The object of the solicitor general for the plaintiff was to obtain a sale under a decree of the court, that he might then proceed at law for the balance, without the defendants being let in to redeem. The Master of the Rolls was of opinion that a valua- tion should be set on the estate by a master, and the plaintiff take it for so much. The object which each had in view was, to apply the mortgaged premises in part satisfaction of the debt, the security being defective, and the Master of the Rolls evidently considered a decree as a satisfaction to the amount for which it was taken. From this case I should infer that, although the practice was not fully settled as to the effect of a decree of foreclosure, yet the understanding was that the mortgagee might, when his secur- ity was insufficient, proceed at law for the difference between the debt and the value of the mortgaged premises, which was to be ascertained either by a sale or by a valuation affixed by a master. Birch's case (Gilbert's Reports in Equity, 186) appears to establish the same principle, and goes further, viz., that unless there was a deficiency, the mortgagee had no further remedy on his bond notwithstanding these cases recognize the right of the mortgagee to proceed on his bond for the deficiency after, a sale, it appears it was considered for a long time that the mortgagee, . taking the estate to himself, took it in satisfaction of his debt, and could no longer regard it as a mortgage. Sir Samuel Romilly expresses this opinion in arguing the case of Perry v. Barker, and the bill in the case of Tooke v. Hartley, reported in 2 Brown's C. C. 125, and in Dickens, 725, was brought evidently on the supposition that the mortgagee, by obtaining a decree of fore- closure which had become absolute, had made his election to take the pledge in satisfaction of the debt, and thereby relin- quished his personal remedies. Mr. Mansfield, who was for the . plaintiff, thought it was an ordinary case of that character, and Lord Thurlow, considering it as a new case, granted the injunc- tion upon terms, though his opinion was that the creditor might proceed at law. Chancellor Kent says that the general under- standing formerly was that the mortgagee, by taking the pledge to himself, took it in satisfaction of the debt. 4 Kent's Com. 175. And in Dickens' report of the case of Tooke v. , Lord Thur- 1012 LOVELL V. LELAND. [CHAP. VIII. low was understood to have expressed himself to that effect, and although in this latter report the opinion of Lord Thurlow was mistaken, yet it shows that the opinions of the profession were not settled upon this subject at that time. The case of Tooke v. Hartley, however, appears to have deter- mined that the mortgagee might proceed at law upon his bond, notwithstanding his having obtained a decree of foreclosure; but it will be observed, that in that case the suit which it was the object of the bill to enjoin, was to recover the sum only for which the mortgaged premises on sale had proved deficient. Mr. Maddock, who was of counsel for the defendant in the bill, con- tended only that he was entitled to proceed on the bond for what the pledge proved deficient to pay; and relied on the authority of Dashwood v. Blithway, in Eq. ca. ab. as an authority to that effect. There is evidently a difference in the report' of the case of Tooke v. Hartley in Brown and in Dickens, but notwithstand- ing the opinion which was attributed to the Chancellor by the latter reporter, yet we learn from Lord Eldon and Sir Samuel Romilly, 8 Ves. Jun. 531, and 13 Ves. Jun. 203, the opinion of Lord Thurlow was, that whether the estate was sold to a stranger or remained in the possession of the mortgagee, there was no distinction ; but an action might be brought for the difference. The case of Perry v. Barker, which is reported in 8 Ves. Jun. 527 and 13 Ves. Jun. 198, was a bill to restrain a mortgagee from proceeding at law upon his bond, after a decree of fore- closure and sale, for the balance of the debt which was not raised from the sale. In these cases the principle doubts were as to the effect of the suit upon the decree, and whether, in con- sequence thereof, the mortgagor was at liberty to redeem. Lord Chancellor Erskine, while he admitted as a general rule, that if the security was scanty, the mortgagee might proceed at law to recover the difference, and that in such case he should give the mortgagor an opportunity to redeem, yet, under the circum- stances of that case, he continued the injunction which had been granted by Lord Eldon. On this case it may be remarked, that granting the injunction shows most conclusively that the mort- gagee may not in all cases proceed at law for the difference; much less can he proceed for the whole debt as has been here contended. In the case of Hatch v. White, 2 Gallison 152, the whole of this subject was much considered by Judge Story. It was there con- tended that the foreclosure of the mortgage, was a satisfaction CHAP. VIII.] LOVELL V. LELAND. 1013 of the debt; and he came to the conclusion, that though it was not a satisfaction of the debt, if not of that value, yet he says it is a satisfaction to the value of the estate at the time of the actual extinction of the equity of redemption; and he says ex- pressly that if an estate after foreclosure should become "materi- ally lessened in value, the loss has never been considered the mortgagor's." The cases of Amory v. Fairbanks, 3 Mass. Rep. 562, and Dunckley v. Van Buren, 3 Johns. Ch. Rep. 330, are both to the same effect. I have been thus particular in examining the cases on this sub- ject which have been reported, because the general impression has been that the law was different. We are all fully convinced there are no authorities which support the position contended for, that a mortgagee may at any time after foreclosure com- mence an action at l.aw and recover the whole amount secured by the mortgage, and that the only effect is to let the debtor in to redeem ; but we think that the practice formerly was, when the security was defective, to decree a sale of the mortgaged premises and apply the avails in discharge of the debt, or to ]:efer it to a master to ascertain the value of the estate; and if less than the debt, for the mortgagee to take it pro tanto, leaving the mortgagee, in either case, at liberty to proceed at law for the balance ; that if the foreclosure was taken for the whole sum, it was considered for some time as a satisfaction of the debt. Afterward it was considered that after a foreclosure and sale by the mortgagee, he might, agreeably to the authority of Tooke v. Hartley, proceed at law for the amount due on the mortgage not satisfied by the sale; or, if the premises remained with the mortgagee, he might, according to the authority of the same case, as understood by Lord Eldon and Sir Samuel Romilly, still proceed for the difference between the value of the estate at the time of the existence of the equity of redemption, and the same due on the mortgage; and that this difference might be ascer- tained by an estimate of the value, to be made as in all other cases, where property passes from one to another, without any agreement as to the value; and as the result of this examina- tion, we decide that a mortgagee having obtained a decree of foreclosure, and appropriated the mortgaged estate to himself, divested of any equity of redemption, must be xonsidered as a purchaser of the estate, in satisfaction of his debt, if the value exceeds the amount ascertained to be due by the decree; or, if the value does not amount to that sum, in satisfaction of so much 1014 LOVELL V. LELAND. [CHAP. VIII. of his debt as the mortgaged estate was worth in cash at the time the right of redemption given by the decree expired. The jury having found that the value of these mortgaged premises were of greater value than the principal, interest and cost due on the decree, when the time for redemption expired, the note on which this suit was brought, agreeably to the views here ex- pressed, was satisfied in full. The question whether an action at law for the difference shall be considered as opening the fore- closure, has been brought to our notice in the course of the argu- ment of this case, and although it is not directly involved in the decision, yet it was necessarily considered in investigating the question whether a decree of foreclosure was, or was not, a bar to any further proceedings at law. The cases of Dashwood v. Blythway and Perry v. Barker, expressly recognize that if such action is brought the foreclosure will be opened, and in the latter case it was intimated that time might be given to the mortgagee to get the estate back if he had sold it. It is certainly highly reasonable that if the mortgagee, after having foreclosed the mortgage, is not content with the satisfaction obtained, and seeks to recover a further sum, that the mortgagor should have the privilege, by paying the full amount of the de})t, to receive back the mortgaged estate, if he places a higher estimate upon its value. And when such action is brought, the mortgagee should have it in his power to reconvey on receiving the whole amount of his debt. I should think, however, that commencing an action does not, of itself, destroy the effect of the decree of foreclosure. On the commencement of the action the mortgagor may be enti- tled to bring his bill for a redemption, and, by paying the whole amount due, have his land reconveyed ; but if he does not so elect, and a judgment is rendered for the difference only between the estimated value of the estate and the debt, there would be no equity in allowing him. to redeem thereafter. But inasmuch as the decision of this question is not necessary to the decision of the case, it must be left for future adjudication. We are not unaware that the decision in this case may be con- sidered as overruling the decision made in the case of Strong v. Strong, before mentioned ; and this has been pressed in the argu- ment. On examining that case, it will be found that although the effect of a foreclosure was a point made, and, of course, decided, yet it was not the principle point, nor one on which much stress was laid. The only authority relied on was the one from Con- necticut, and this was opposed by the general impression which CHAP. VIII.] LOVELL e;. LELAND. 1015 had prevailed in this state. The other point which was^ decided in that case was the important one, which occupied the attention of the court and bar almost exclusively. Although I was present at the argument and decision of that case, and it was one which attracted my attention, yet it was forgotten by me that this ques- tion was ever made or decided ; and it was not noticed by me at the trial of this cause in the County Court. It is evident the point was not much considered or investigated, but was lost sight of in the important question which was the principal one in that case. We should have less reluctance, therefore, in overruling that authority if it was necessary on the decision of this case. But it may well be questioned whether the authority of that case may not stand .good as not conflicting with this case. The foreclosure which was relied on in Strong v. Strong, as a satis- faction, was obtained under our statute on the application of the defendant after judgment against him in an action of eject- ment. A mortgagee institutes his act of ejectment to be let into possession, and, in this way, to receive the benefit of his security. In no other way can he receive the rents and profits; and this he may desire to do when he does not intend to fore- close his mortgage. By the seventy-sixth section of. the judiciary act a privilege is given to the defendant in an action instituted against him by the mortgagee, after a judgment is rendered against him for the possession, to have execution of this judg- ment stayed on his application; and after ascertaining the sum which is due on the mortgage, together with the cost, if he pays that sum by a time limited by the court, the judgment is vacated ; and if he does not pay the sum by that time, it is declared by the statute that the plaintiff mortgagee shall hold the land freed and discharged of all right and equity of redemption. As this action of ejectment is not instituted by the mortgagee for the purpose of foreclosing the equity of redemption, but only for the purpose of availing himself of the benefit of his pledge by being let into possession, and as the application and decree, and order thereon, are made at the instance, and for the benefit of the mortgagor, and the mortgagee is thereby prevented from going into posses- sion, possibly no other effect can, or ought to be given to this proceeding, as it respects the mortgagee, then is given by the statute, viz., to foreclose the right of the mortgagor, leaving the mortgagee to pursue his remedies in the same manner as he would have been entitled to if no such application had been made by the defendant. As the creditor does not sue for a foreclosure, 1016 HALLOWELL V. AMES. [CHAP. VIH. but only for possession, he stands upon different ground than he does when he brings his bill in chancery for the very purpose of extinguishing all his debtor's interest in the mortgaged estate. In the one case he compels the foreclosure, in the other it is forced upon him. This view of the case is taken by one of my brethren ; whether it is tenable can be decided when a case similar to the one of Strong v. Strong shall be again presented to the consid- eration of the court. . The judgment of the County Court is affirmed. HALLOWELL v. AMES. (165 Mass. 123.) [Supreme Judicial Court of Massachusetts, 1895.] Bill in equity, filed in the Superior Court' on September 20, 1889, alleging that the defendant, on September 12, 1871, made a promissory note for $2,300, payable on demand to the order of Joseph W. Smith, and secured by a mortgage of land in Law- rence, duly recorded, and which did not contain a power of sale ; that on February 7, 1889, Smith executed a deed of assignment of all his property, including said note and mortgage, to the plaintiff, for the benefit of the creditors of Smith; and that the plaintiff had demanded of the defendant payment of said sum of $2,300, and of the interest thereon, but the defendant had refused to pay the same. The prayer of the bill was that the land conveyed by the mortgage might be sold under the direction of the court, and the proceeds of the sale applied to the payment of said $2,300 and interest, and for general relief. The defend- ant demurred to the bill, for want of equity. The demurer was sustained, and the bill dismissed; and the plaintiff appealed to this court. Knowlton, J. The fundamental question in this case is whether, in the absence of special facts calling for equitable relief, the court has jurisdiction in equity to decree a foreclosure and sale of real estate conveyed by a mortgage deed which does not contain a power of sale. Were there no statutes in regard to the foreclosure of mortgages in this Commonwealth there would be much force in the suggestion that, since the enactment of stat- utes giving the courts full equity jurisdiction, a sale may be ordered by the court in an ordinary suit for the foreclosure of a CHAP. VIII.] HALLOWELL V. AMES. 1017 mortgage which contains no power of sal.e, as is the practice else- where when mortgages are foreclosed under the general juris- diction of courts of chancery. St. 1877, c. 178, § I. Pub. Sts. c. 151, §§ 2, 4. St. 1883, c. 223. But we have long had elaborate statutory provisions for the foreclosure and redemption of mortgages, which fix the rights of mortgagors and mortgagees. Pub. Sts. c. 181. The subject of foreclosure appears in the statute under two heads, "Fore- closure by three years' possession" and "Foreclosure by sale." Section I is as follows: "After a breach of the condition of a mortgage of real estate, the mortgagee may recover possession of the mortgaged premises by action in the manner hereinafter provided; or he may make an open and peaceable entry on such premises, if not opposed by the mortgagor or other person claim- ing the same; and such possession, obtained in either mode, if continued peaceably for three years, shall forever foreclose the right of redemption." Section 14, which is the first under the head of 'foreclosure by sale, is as follows: "When a power of sale is contained in a mortgage, and a conditional judgment has been entered, the demandment may, instead of a writ of posses- sion, have a decree entered that the property be sold pursuant to such power of sale, and thereupon the demandment shall give such notices and do all such acts as are authorized and required by the power or by the court passing the decree." After these sections respectively follow elaborate provisions for obtaining a foreclosure in each of these ways. In §§ 17, 18 and 19 of the same chapter the right of mortgagees holding mortgages con- taining a power of sale to sell under the power without the inter- vention of a court, is recognized and regulated. This .chapter purports to settle the rights of the parties to a mortgage in regard to foreclosure, and we think it should not be held that by a resort to equity a mortgagee can obtain a foreclosure in a shorter time than the statute prescribes. Parties must be presumed to have made their contracts in reference to these statutes. No case in this Commonwealth is known in which a sale has been decreed by a court of equity so as to accomplish a foreclosure in less than three years, in the absence of special provisions in the mortgage -authorizing a sale. To hold that the general language of the later statutes in regard to equity jurisdiction has repealed or modified the statutes in regard to mortgages would give it a force beyond the probable intention of the Legislature. See Husband v. Aldrkh, 135 Mass. 317. 1018 CHICK V. WILLETTS. [CHAP. VIII. We are therefore of opinion that, upon the facts stated in this bill, the plaintiff has a plain, adequate and complete reniedy at common law, and that the decree sustaining the demurrer and dismissing the bill should be AMrmed. CHICK V. WILLETTS. (2 Kan. 384.) [Supreme Coukx of Kansas, 1864.] Error from the District Court, Shawnee County. Crozier, C. J. Two questions are presented by the record: First, which law, the twentieth section of the Code, or the second section of the "amendatory act," prescribes the limitation; and, second,' when an action upon a promissory note, secured by a mortgage on real estate, is barred by the statute of limitations, has the mortgagee any remedy upon the mortgage? These are the facts: On the sixth day of April, 1858, at Kansas City, in the State of Missouri, the defendant executed to the plaintiffs his promissory note, payable one day after date. Afterwards, and on the 12th day of August of that year, the defendant, to secure the payment of the note, executed, in his state, a mortgage upon some lots in Topeka, which mortgage contained a stipulation that if default was made in the payment of the note for two years from the date of the mortgage, that instrument might be fore- closed, etc. On August 13, 1863, a suit was instituted upon the note and mortgage, and the facts, as above stated, being admit- ted, judgment was rendered for the defendant. To reverse that judgment this proceeding is instituted. The note having been made' in Missouri, would, under the act of February 10, 1859, have been barred in two years from the passage of that act, if there were nothing else to be considered. By a stipulation in the mortgage, the time of payment was de- ferred two years from August 12, 1858. The mortgage having been made in this State, was the arrange- ment, with reference to our statute of limitations, a Kansas or Missouri contract? Although no change was made upon the face of the .note, yet the clause of the mortgage referred to was effective to- change its terms as if written across its face. The time of its payment, with reference to the land, was extended two CHAP. VIII.] CHICK V. WILLETTS. 1019 years. Its payment, as against the land, could not be enforced before that time; nor would the limitation laws begin to run against it until the expiration of that time. These changes in the original contract were effected by the paper which was executed in this State. The contract evidenced by the mortgage is essen- tially different from that set out in the liote, and must control it. Therefore, the contract, as it stood, after the making of the mort- gage, was a Kansas contract, and would not be barred in two years. The statutes of limitations of this State are wholly unlike the English statute, and differ materially from the limitation laws of those states which have adhered to the common law fotms of action and modes of jirocedure. Those statutes apply, in terms, to the forms of the action at law. and contain no provisions con- cerning an equitable, proceeding. If a party had concurrent reme- dies, one at law, the other in equity, courts of equity applied the limitation prescribed for the action at law. But in all other cases they were said to act merely in analogy to the statutes, and not in obedience to them. In this State the case is entirely different. The distinction be- tween actions at law and suits in equity is abolished; and the statutes of limitation apply equally to both classes of cases. They were made to apply to the subject matter, and not to the form of the action. In England and the states referred to, a limitation different from that prescribed for simple contracts in writing, was prescribed for specialties. Here, "an action upon a specialty, or any agreement, contract or promise in writing," must be brought within three years; and it matters not. what the relief demanded may be, whether such as could formerly be obtained only in a court of law, or such as might have been afforded by a court of equity exclusively. Mortgages here differ essentially from mortgages at common law, and in the states referred to. At common law, a mortgage was a conveyance with a defeasance, and gave the mortgagee a present right of possession. Upon it, even before the conditions were broken, he might enter peaceably or bring ejectment. If the condition was broken, the conveyance became absolute. If the money was paid when due, the estate reverted to the mortgagor ; if not so paid, the estate was gone from him forever. After a time, the law of mortgage was so modified that the legal title was not considered as having passed until the condition was broken. At a later day another still more important innovation was made. 1020 CHICK V. WILLETTS. [CHAP. VIII. While it was considered that, upon the condition broken, the mort- gagee became invested with the legal title, and was entitled to possession, yet, in that condition of things, his title was subject to a defeasance. The rents and profits operated as cancellation, pro tdnto, of his conveyance; and when they reached a sum suffi- cient to reimburse his original investment, with such use as the law allowed, the legal title reverted to the mortgagor, and he would be entitled to the possession ; and he had a right to facili- tate this operation by payment of the money, and upon applica- tion to a court of equity, his title would be disencumbered of the cloud the mortgage cast upon it. This right of the mortgagor was called "the equity of redemption," and, considering the then prev- alent theory of mortgages, the phrase was peculiarly appropriate and expressive. The title had passed, but he had a right to re- deem; and it is among the highest glories of equitable jurispru- dence, that at so early a day the means of enforcing this right were supplied. Some of the states still adhere to the common law view, more or less modified by the real nature of the transaction ; but in most of them, practically, all that remains of the old theory is their nomenclature. In this state a clean sweep has been made by statute. The common law attributes of mortgages have been wholly set aside ; the ancient theories have been demolished ; and if we could consign to oblivion the terms and phrases — without meaning except in reference to those theories — with which our reflections are still embarrassed, the legal profession on the bench and at the bar would more readily understand and fully realize the new condition of things. The statute gives the mortgagor the right to the possession, even after the money is due, and con- fines the remedy of the mortgagee to an ordinary action and sale of the mortgaged premises; thus negativing any idea of title in the mortgagee. It is a mere security, although in the form of a conditional conveyance; creating a lien upon the property, but vesting no estate whatever, either before or after condition broken. It gives no right of possession, and does not limit the mortgagor's right to control it — except that the security shall not be impaired. He may sell it, and tbe title would pass by his conveyance — sub- ject, of" course, to the lien of the mortgagee. If we are- right in these views as to our statute of limitations, and the operation of a mortgage under our law, the English cases and cases in New York and Ohio, cited by counsel for the plain- tiffs, have no application to the case at bar. The statutes of limi- tation under which they were made, make distinctions between CHAP. VIII.] MILLIKEN V. BAILEY. 1021 notes and mortgages which do not exist here ; and the operations of notes and mortgages there and here are totally different. The decisions are not authorities in this case, for the reason that they are not applicable, and cannot be made so. If our limitation law omitted mortgages, and. our law of conveyances gave the right of possession to the mortgagee, some of them would be in point ; but as neither of these conditions exist here, they throw no light upon the questions under consideration in the case at bar. Our conclusions are, that the twentieth section of the Code prescribes the limitation to an action on the note or mortgage, and as the three years expired on the 12th day of August, 1863, a suit commenced on the 13th was too late. Judgment affirmed. All the justices concurring. MILLIKEN V. BAILEY (61 Me. 316.) [Supreme Judicial Court of Maine, 1872.] Barrows, J. Reed mortgaged the premises which the plaintiff seeks to redeem June 9, 1864, to Mr. Davis, one of the respond- ents. His right of redemption was attached by a creditor Sep- tember 28, 1864, and he again mortgaged the premises in October, 1864, to Robinson. On June 7, 1867, Reed's right to redeem from the Davis mortgage, having been seized on the attaching creditor's execution on the 10th of April preceding, was sold at auction and bought by this plaintiff. But in making his. return on the execution the officer gave as the date of the original attachment September 20, 1866, instead of September 28, 1864, and omitted to state how and to what hour of the day the sale upon the execution was adjourned from June 1, 1867, which was the day designated for the sale in the notices given to the debtor and posted April 10, 1867, and published three weeks successively prior to June 1. And thus his return stood until the August term, 1870, after the commencement of this process, when the officer was permitted to amend his return according to the facts. But in the interim it would seem that Bailey, the other respondent, had taken an assignment of the Robinson mortgage from Robm- son's executors May 27, 1868, and had also, December 31, 1868, received from liis daughter, Mrs. Davis, a transfer of her mort- 1022 MILLIKEN V. BAILEY. [CHAP. VIII. gage which this plaintiff seeks to redeem. His right to do this is sharply contested by. Bailey, who claims a foreclosure of both mortgages; of the Davis mortgage by virtue of entry made and possession taken for that purpose by Mrs. Davis June 4, 1868; of the Robinson mortgage by virtue of a similar proceeding on his own part as assignee of the mortgage. He commenced his answer by denying the mortgage of the premises to Mrs. Davis and the assignment thereof to himself, because in the bill the southern boundary of one parcel is stated to be the "land of William Penny" when it should be "Perry," and part of the northern boundary of the other parcel is said to be "a road leading to one Hutchinson's," when it should read "Hutchins'." The identity of the parcels is, however, sufficiently demonstrated. Falsa demonstratio non nocet, where the misprision is so readily corrected. He next invokes the rule in chancery practice respecting the manner of putting in documentary evidence, and claims that everything except the bill and answers should be excluded, be- cause the rules have not been observed ; but the signature of his counsel admitting the genuineness of one of the documents filed as evidence by the complainant, and the proceedings before the court when the argument of the case was postponed, show clearly that it had been understood by the counsel on both sides that the formalities required by the rule should be waived, and after that it is too late, .and would be unjust to insist upon them. But it is further argued that the plaintiff has no right to re- deem this (Davis) mortgage when he commenced his bill, or if he had such right, that this suit cannot be maintained. And these positions are based for the most part upon the omissions in the officer's return as originally made, above adverted to. The- true answer is that the amendment allowed and made at the August term, 1870, perfected the evidence of the complainant's title, and made it good from the date of the original proceeding, except so far as that construction of it might wrongfully affect intervening third parties, whose rights, where they acted in good faith, were not to be prejudiced by it. How far does this affect the relative positions of the parties in this suit? There is no evidence before us in this case to show that Bailey did not purchase the Robinson mortgage in good faith after the creditor's sale of Reed's right of redemption upon the execution, and before the amendment which carried back the date of the alleged original attachment so as to make it anterior to that mort- CHAP. VIII.] MILLIKEN V. BAILEY. 1023 gage. Upon this showing, then, all Bailey's rights as assignee of the Robinson mortgage must, notwithstanding the amendment, stand upon the same" footing as though the original attachment had been in fact made September 20, 1866, instead of September 28, 1864. It is, therefore, unnecessary. to determine whether the respond- ent can properly introduce the return on the original writ in the creditor's suit to show that, in point of fact, it was Reed's right and interest in real estate in Kennebec county, and not in Saga- dehoc, that the officer returned as attached ; for this view of the effect of the amendment renders it immaterial as between these parties whether the complainant's right originated in the sale of Reed's equity on the execution, or relates to the date of the sup- posed original attachment. But it is one thing to have one's own rights protected from the effects of an officer's mistake, and quite a different thing to make use of that mistake to operate a for- feiture of the rights of another man. AH Bailey's rights honestly acquired -before the amendment, as a prior incumbrance, must be protected, but it does not follow that he should be heard to say that the complainant did not acquire whatever right of re- demption from the DaVis mortgage Reed had at the date of the sale on the execution. In the eye of the law it can make no differ- ence to Bailey whether Reed or his creditor, whom this complain- ant represents, holds that right: The amendment then relates back to the date of the original return, so as to transfer, as of that date, to the complainant, as against Reed and these respondents, all the right of redemption of the Davis mortgage which Reed had at the time of the sale -on execution. The plaintiff is entitled to be considered as the owner of that right when he brought his bill, although until the amendment was filed he was not in a condition to prove it. But still it is insisted that he cannot maintain this process because his demand for an account was made before the amendment, and therefore the respondents were under no obligation to comply with the demand. If the respondents had refused to recognize the complainant as the owner of the equity when the demand was made, we might have felt bound to limit the effect of the amendment so far as to hold that they should not be responsible for any costs in any event; but when the demands were made, the respondents did riot object to rendering an account nor claim that the plaintiff was not the owner of the equity; they gave him accounts which 1024 MILLIKEN V. BAILEY. [CHAP. VHI. are manifestly not correct. The amendment, then, did not change anything in the position which they assumed towards the com- plainant. Now, when the amendment has cured the apparent defect, the respondents cannot be heard to urge that they might have found a flaw in the plaintiff's title at the time of his demand, when they recognized him then as the rightful owner, and any liability to costs to which they may have subjected themselves arises, not from a refusal to give an account, but from an incorrect one. Mrs. Davis in her answer denies that any demand for an ac- count was made on her, by the production in evidence of the statement of her claim, apparently made by her father for her, militates somewhat strongly against the correctness of this posi- tion of her answer. She is a proper party to the suit, although she had assigned her interest in the mortgage before the filing, of the bill, if she received rents or profits while she was in pos- session before her assignment, or rents and profits accrued during that time which she might and ought to have collected and ac- counted for, or if any payment were made to her. And upon these points the parties may properly produce evi- dence before the master. It is true, as remarked by the court in Bailey v. Myrick, 52 Maine, 185, that the taking possession for the purpose of foreclosure under the statute "does not necessarily impose upon the mortgagee the obligation to account for rents, if he should not receive them. But that case was not intended to change the doctrine that when he does in fact receive them, or when it is owing to his own inexcusable default or negligence that he fails to receive them, he will be chargeable therewith at the instance of any one who has a right to complain, while he would not be so accountable to the mortgagee himself, or to those claiming under him if they consented to his remaining in posses- sion without the payment of rent. But that is not, apparently, this case. The master's report will determine it, and until that comes in, and a final decree is entered, the question of costs as to each of the respondents will remain in abeyance. That there were some rents and profits received, at least to the amount of $60 per annum, which ought to have been accounted for, is admitted by the respondent, Bailey, in his statements filed in evidence, and also that none were, in fact, put upon the account as originally rendered. Moreover, the claim for taxes which had not been paid was incorrect. Virtually admitting, as they did, the com- .CHAP. VIII.] MILLIKEN Z/. BAILEY. 1025 plainant's right to an account, they should have made the account a correct one. Finally, it is urged that the respondent, Bailey, has obtained an assignment of the Robinson mortgage, and that that is foreclosed, and thereby the complainant is precluded from redeeming the Davis mortgage. We do not feel called upon to determine at the present time the validity or effect of the Robinson mortgage, and the proceedings under it. Up to the time of the sale of R.eed's right to redeem the Davis mortgage to the plaintiff, it appears that Reed had a subsisting right of redemption from both mort- gages. Everything was, in fact, done at that time which was necessary to convey to the plaintiff his right to redeem from the Davis mortgage, and so far as he was concerned that right then vested in the plaintiff. Such is the effect of the amendment. It is that right which the plaintiff seeks to enforce in this suit, and he claims that it should be passed upon as if the Robinson mort- gage were not in the case. When he commenced this process there is no pretense that the right which Reed originally had to redeem from both or either of these mortgages was foreclosed. When the plaintiff claimed and offered to redeem tlje Davis mortgage, and brought this bill for that purpose, the respondent, Bailey, had nothing in the premises except the security which his mortgages gave him for the payment of whatever was justly due him. His interest in the premises was subject, then, and also when the amendment of the officer's return was made and filed, to the outstanding rights of redemption, and we think that the delay in bringing this case to an issue should not prevent us from deciding it as it must have been decided had it been sooner heard. The plaintiff, for some reason or other that does not appear here, ignored the existence of the Robinson mortgage. In this process, at least, he seeks only to have his right to redeem from the Davis mortgage declared. Whether he can safely or profitably to him- self exercise that right, he does not ask us to decide. Upon what ground he intends to contest Bailey's title under the Robinson mortgage we are not informed. It may be that he supposes that if he can be allowed to redeem the Davis mortgage, he can prevail against the other as not having been made in good faith, or as having been fully paid without breach of the condition. It will be time enough to settle the rights of these parties to this land under the Robinson mortgage and its alleged foreclosure when the issues respecting it are framed and presented 65- 1026 • BOSWELL V. GOODWIN. [CHAP. VIH. At present the question for us to determine is, had the plaintiff the right, when he commenced his bill, to redeem the Davis mort- gage, and maintain this process for that purpose? We think he had. Bill sustained. BOSWELL V. GOODWIN. (31 Conn. 74.) [Supreme Court of Connecticut, 1862.] Sanford, J. The evidence objected to on the hearing before the committee was inadmissible. The bill contained no allegation of the fact which that evidence was introduced to prove ; and the respondents, having no notice of the claim, cannot be supposed to have come to the trial prepared to meet it. For this error of the committee in receiving improper evidence, therefore, as the bill now stands, the respondents, , Seymour & Co., are entitled upon their remonstrance to haVe the report of the committee se't aside. But as the petitioner's bill may be amended, so as to render the evidence objected to admissible, we deem it proper for us to express our opinion upon the merits of the case as presented by the report now before us. It seems to be settled by a series of adjudications, that mort- gages given to secure advancements to be made to the mortgagor or liabilities to be assumed for him by the mortgagee in future,' are to be upheld and enforced against subsequent purchasers, mortgagees and attaching creditors, even where the registration of deeds and mortgages is required by law. Crane v. Denting, 7 Conn. 387; and although it is optional with the mortgagee whether he will make such advancements or assume such liabili- ties or not, provided they are made -or assumed in good faith, and without notice of the subsequent intervening incumbrance. Mc- Daniels v. Calvin, 16 Verm. 300; Shirras v. Caig, 7 Cranch, 34 Story, J., in Conard v. Atlantic Ins. Co., 1 Peters, 655 ; Truscott V. King, 6 Barb., 346. The petitioner's mortgage was given on the 24th 'of August, 1855, and was recorded'the same day. The condition was of the tenor following : "Whereas the said Boswell has agreed, , from time to time, during his pleasure only, to endorse notes for Good- CHAP. VIII.] BOSWELL V. GOODAyiN. 1027 win & Co. as they may desire, but so that there shall not be out- standing endorsements at one time ejcceeding six thousand dol- lars ; and whereas we have given him our joint bond of even date to indemnify and save him harmless from all such endorsements ; now if we keep and fulfill the condition of said bond, "and save him harmless as aforesaid, then this deed shall be void, otherwise ' not." On the 23d of January, 1858, Goodwin & Co. mortgaged the same property to the respondents, Seymour and Sage, consti- tuting the firm of Seymour & Co. The condition of the mortgage recited that the mortgagors had given their penal bond to the mortgagees "in the sum of $12,000, providing that if the grantors shall pay all sums that may be advanced to them under the firm of Goodwin & Co., by the grantees composing the firm of Sey- mour & Co., by note or otherwise, which they are to do for the accommodation of said Goodwin & Co., and save them harmless therefrom, then said bond to be void. And said advances are at no time to exceed $10,000, nor to be made but within five years. Now if we keep and fulfill the condition of said bond, then this deed to be void, otherwise to remain in force." And on the 11th of February, 1859, Goodwin & Co. gave to Seymour & Co. an- other mortgage of the same, together with other property, the condition of which mortgage recited that the said Seymour & Co. had loaned and advanced to them for their accommodation their promissory notes to the amount of five thousand dollars (specify- ing the date and amount of each note, and when, where and to whom payable), and providing that if Goodwin & Co. should well and truly indemnify and save harmless Seymour & Co. from all loss, costs, damage and harm, by reason of said notes, then the deed should be void, otherwise it should remain in force. Both of these mortgages to Seymour & Co. were recorded, the first on the 27th of May, 1858, and the last on the 15th of Feb- ruary, 1859, and in both of them the petitioner's mortgage was expressly mentioned. In pursuance of the agreement between the petitioner and Good- win & Co., the petitioner from time to time endorsed the notes of Goodwin & Co. for their accommodation, down to the 6th day of March, 1861, and on that day endorsed the note of $2,700 described in the bill, and on the 20th of March, 1861, the note for $3,000 described in the "bill. Both of these notes the petitioner has been obliged to pay. The note for $2,700 was the last of a 1028 BOSWELL V. GOODWIN. [CHAP. VIII. series of renewals of a note endorsed by him on the 8th day of January, 1858. Upon this state of the facts the note for $2,700 is entitled to precedence before any of the claims of Seymour & Co. under either of these mortgages. The original note was made and endorsed by the petitioner on the 8th of January, 1858, fifteen days before the earliest of the mortgages of Seymour & Co. was made, and several months before it was recorded, and for that endorsement the petitioner has never yet been "indemnified." And as his original liability has thus been continued through all the successive renewals of the paper, his original security also has continued, and he has now a right to resort to it for indemnity, as he might have done if instead of renewing he had been com- pelled to pay the original note at its maturity. Bolles v. Chaun- cey, 8 Conn. 389; Pond v. Clark, 14 id. 334; Smith v. Prince, id. 472; Dunham v. Day, IS Johns. 555. Of the existence and terms of the petitioner's mortgage Sey- mour & Co. were in legal presumption apprised by the record, and by the law they were apprised of the protection which that mortgage afforded the petitioner for all endorsements made be- . fore the mortgage to them was given, and the extent of that protection. They knew, or at any rate they are chargeable with the knoweldge, that the original note was outstanding, and that the petitioner was liable thereon as endorser when they took their mortgages. Or if they did not know these facts, it was because they had omitted to make such inquiries as men of ordi- nary prudence and sagacity usually make under such circum- stances, and intended to assume the risk; and in either event ought to abide the consequences of their presumption or neglect. The $3,000 note stands upon different ground. That was an original note made and endorsed long after both of the mortgages of Seymour & Co. were executed,, and after advancements had been made under the first of them, amounting to more than $25,000, and under the second to more than $5,000, both of which sums still remain unpaid. And it is found that the petitioner had notice in fact that some inervening mortgages upon the property mortgaged to him had been gived by Goodwin & Co. to Seymour & Co. when this endorsement was made. The peculiar language of the report on this point has not es- caped our notice, but we think the fair import of it is as above expressed, that the petitioner had notice in fact of these inter- vening mortgages — ample notice of the existence of rights of CHAP. VIII.] BOSWELL V. GOODWIN. ' 1029 some kind residing in Seymour & Co., which it was his duty to ,respect, and which he had no right to disregard. We deem it of no essential importance, as aflfecting the rights of these parties, that the petitioner did not know for what "precise purpose" these mortgages had been made,, and did not know that Seymour & Co. had made any advancements to Goodwin & Co. under the first, or paid any of the notes loaned upon the security of the last. He did know that certain mortgages had been made to Seymour & Co., and, consequently, that Seymour & Co. had acquired some rights in the property mortgaged to him, which rights further advancements or endorsements by him, if allowed .to take prece- dence of their claims, would necessarily affect and might seriously impair. He was informed to whom these mortgages had been given, and he knew that the town records would disclose the true character and extent of the incumbrance created by them, and clearly indi- cate the source from which exact and certain information could be obtained. "Whatever," says Mr. Justice Story, "is sufficient to put a party on inquiry (that is, whatever has reasonable certainty as to time, place, circumstances and persons) is an equity hel.d to be good notice to bind him." 2 Story, Eq. Jur. § 400. Or, in the language of Mr. Sugden, "When a man has sufficient information to lead him to a fact, he shall be deemed conusant of it." 2 Sugden Vend., Ch. 23, § 1, p. 552. The petitioner was under no obligation to endorse this note, and in doing it with the knowledge which he had and without inquiry, he disregarded the rights of Seymour & Co. as well as the obvious dictates of ordinary prudence and discretion. His mortgage was indeed on record, but that record, though conclu- sive evidence of notice to subsequent incumbrancers, was notice only that the petitioner had an inchoate mortgage, of no binding force upon either of the parties to it until some endorsements by the petitioner should be made, and the only utility of which notice was, to indicate the source of information and put subse- quent incumbrances on inquity. When one having actually made or undertaken to make ad- vancements, or assumed or undertaken, to assume liabilities for another, has taken a mortgage in proper form for his indemnity, and placed that mortgage upon record, his incumbrance is con- summated, and he may safely leave it to its fate. But when with- out some further act to be done by him the instrument has and 1030 WITC2INSKI V. EVERMAN. [CHAP.VIII. c"an have no effect, and where it is optional with him to do such act or abstain from doing it, why should he not be required, until he does that act, to recognize and regard the intervening rights acquired by others, and be held chargeable with whatever notice of the state of the mortgagor's title the public records may disclose when the act is done? Why should not a mortgage to secure future advancements, to b^ made or not at the option of the mortgagee, be treated in all respects as if it was executed when the contemplated advancements are made in fact? But as upon this point there is understood to be some diversity of opin- ion among the members of the court, we prefer to place our decision upon the ground already indicated, that the petitioner had notice in fact of Seymour & Co.'s incumbrance upon the property mortgaged to him when he endorsed the $3,000 note; and therefore that his claim for that endorsement ought to be postponed to the claims of Seymour & Co. to the amount of $10,000 and interest thereon under their first mortgage, and to the full amount of the notes loaned by them upon the security of their second mortgage. We have expressed these opinions in view of the probable amendment of the plaintiff's bill, but our advice to the Superior Court must of course be predicated upon the record as it stands, and therefore must be that the report be set aside. In this opinion Hinman, C. J., and Button, J., concurred. Butler, J., dissented. WITCZINSKI V. EVERMAN. (5i Miss. 841.) [Supreme Court of Mississippi, 1876.] Campbell, J., delivered the opinion of the court. On the 4th of March, 1872, Storms & Bass executed a mort- gage to secure Everman & Co., the promissory note of Storms & Bass for $350, payable 1st of October, 1872, with ten per cent interest from date, and two and a half per cent for advancing, and as a security for "the prompt payment of all other indebted- ness which may be incurred by said parties of the first part (Storms & Bass) or either of them." The condition of the mort- ■. gage is, that it shall be void "if said promissory note ($350) and all other indebtedness of said parties of the first part, or either CHAP. Vm.] WITCZINSKI V. EVERMAN. 1031 of them, shall be promptly paid ; but upon the failure to so pay said promissory note and other indebtedness, or to perform the agreement hereinafter made, the parties of the second part have full right," etc. The property conveyed by the mortgage is "all the crops of cotton, corn or other agricultural produce now^ being produced, or that may be produced within fifteen months from the date hereof," by the mortgagors or either of them, and the mortgage stipulates for the delivery by the first day of October, 1872, of a sufficiency of said crop of cotton to cover all indebt- edness to that date, and that the mortgagors shall gather and prepare for market as soon as the same can be done, the whole crop of cotton which may be produced by them during the ensu- ing year, and to deliver the said crop of cbtton from time to time, as it is so prepared, to said "mortgagees, at Greenville, Missis- sippi, to be by them sold or shipped for sale, and the proceeds thereof applied to the payment of the sums due or to become due as aforesaid, the surplus to be paid over to the mortgagors." It is recited in the begining of the mortgage that Storms & Bass intend to cultivate a certain plantation during the year 1872, and that for the purpose of enabling them to do so, Everman & Co. have agreed to advance to them in plantation supplies and other articles an amount not exceeding $350. This mortgage was prop- erly acknowledged and duly filed for record in Washington county, where the plantation referred to is situated, on the 7th , of March, 1872. Everman & Co., from time to time, during 1872, made advances under the mortgage to the amount of upwards of $900 and -received on the mortgage cotton and its proceeds to the amount of $797.25, leaving a balance due them, on the cur- rent dealings, of $173.50. Five bales of cotton, yielding $340.90 net, were received by Everman & Co., early in October, 1872, and the remainder later, part of the indebtedness of the mort- gagors accrued prior to 1st of October, 1872, and part afterwards. In December, 1872, Storms & Bass sold a bale of the cotton, covered by said mortgage, to Witkowski & Witczinski, who paid them cash for it, and Everman & Co., learning the fact, demanded the cotton or its value of such purchasers, which demand being refused, Everman & Co. exhibited this bill to hold them account- able as trustees for the value of said cotton which had been sold to them. Said purchasers had no actual knowledge, at the time of their purchase of said cotton, of the state of dealings between Storms & Bass and Everman & Co., and at the time of said pur- chase Everman & Co. had received cotton sufficient to more than 1032 WITCZINSKI V. EVERMAN. * [CHAP. VIII. pay them $350 from Storms & Bass. The foregoing are the facts of this case, as made by the pleadings, and are not varied by the evidence. The contest in the court below was, and is here, whether th? mortgage was a valid incumbrance on the cotton embraced in its terms as against a purchaser of it without actual notice, for a debt contracted under it by the mortgagors, beyond the sum of $350, the only definite sum stated in it. ' The evidence shows that the money paid by Witkowski & Witczinski for the bale of cotton purchased by them was for the most part paid to cotton pickers, who were laborers in making this crop, and entitled to a lien on the cotton, and it is urged that the court shall consider of this as affecting the rights of parties ; but the answer to this suggestion is, that there is nothing in the pleadings to which this evidence applies, and therefore no ques- tion can arise upon it for our consideration. If there was such an issue between the parties, the fact that the mortgage in this case was executed and filed for record before the date of the law giving laborers a lien would perhaps render the claim of a. lien in favor of laborers unavailing as against the mortgage. Is a mortgage to secure a sum stated, and "all other indebted- ness which may be incurred" by the mortgagor to the mortgagee valid as an incumbrance from its date, as against a purchaser of the mortgaged property, for indebtedness incurred under it after the date of the mortgage, and before such purchase? Is such mortgage a valid incumbrance from its date as against such pur- chaser for indebtedness incurred under it after such purchase? We propound both questions, because in this case, while nearly all of the indebtedness of the mortgagors incurred under the mortgage was before the purchase of the cotton by Witkowski & Witczinski, some of it was created afterwards. There has been much diversity of views between courts and law writers on the question of the validity of mortgages for future advances, and the rights of mortgagees in such mortgages as against purchasers and junior incumbrances of the mortgaged property. Some have held that a mortgage which does not specify that for which it is given so distinctly as to give definite infor- mation on the face of the mortgage, of what it secures, so as to render it unnecessary for the inquirer to look beyond the mort- gage and seek information aliunde, is void as against creditors and purchasers. Others have held that a mortgage for future advances is valid as to all advances made under it before notice CHAP. VIII.] WITCZINSKI V. EVERMAN. 1033 by the mortgagee of the supervening rights of purchasers or incumbrancers. Others have announced that a mortgage for future advances to be made or Hability to be incurred, when duly recorded, is vaHd as a security for indebtedness incurred under it, in accordance with its terms. There have been suggested mo(5i- fications of these views, and a distinction has been drawn between mortgages in which the mortgagee is obliged to advance a given sum, and those in which he is not so bound. We decline to follow the devious ways to which we are pointed by conflicting adjudi- cations and suggestions, and prefer to pursue the plain path in which principle directs us, and will declare the rule to be observed in the courts of this state on the subject under consideration, which, strangely enough, has not been heretofore decided in this state. A mortgage to secure future advances, which on its face gives information as to the extent and purpose of the contract, so that a purchaser or junior creditor may, by an inspection of the record, and by ordinary diligence and common prudence, ascertain the extent of the incumbrance, will prevail over the supervening claim of such purchaser or creditor as to all advances made by the mortgagee within the terms of such mortgage, whether made before or after the claim of such purchaser or creditor krose. It is not necessary for a mortgage for future advances to specify any particular or definite sum which it is to secure. It is not necessary for it to be so completely certain as to preclude the necessity of all extraneous inquiry. If it contains enough to show a contract that it is to stand as a security to the mortgagee for such indebtedness as may arise from future dealings between the parties, it is sufficient to put a purchaser or incumbrancer on inquiry, and, if he fails to make it in the proper quarter, he cannot claim protection as a bona fide pur- chaser. The law requires mortgages to be recorded for the pro- tection of creditors and purchasers. When recorded, a mortgage is notice of its contents. If it gives information that it is to stand as se- curity for all future indebtedness to accrue from the mortgagor to the mortgagee, a person examining the record is put upon inquiry as to the state of dealings between the parties and the amount of indebtedness covered by the mortgage, and is duly advised of the right of the mortgagee by the "terms of the mortgage to hold the mortgaged property as security to him for such indebtedness as may accrue to him. Thus informed it Is the folly of any one to buy the mortgaged property, or take a mortgage on it or give credit on it, and, if he does so, his claim must be subordinated 1034 LADUE V. DETROIT CO. [CHAP. VIII. to the paramount right of the senior mortgagee, who in thus securing himself by mortgage, and filing it for record, as required by law, has advertised the world of his paramount cljaim on the property covered by his mortgage, and is entitled to advance money and extend credit according to the terms of his contract thus made with the mortgagor, wht» cannot complain, for such is his contract; and third persons afterwards dealing with him cannot be heard to complain, for they are affected with full notice, by the record, of what has been agreed on by the mortgagor and mortgagee. In the case under consideration the mortgage, which was duly filed for record, sufficiently informs all persons perusing it that it was to cover all indebtedness of the mortgagors to the mort- gagees beyond the sum of $350, for which the note was given, and was sufficient to put persons upon inquiry, and an application to the mortgagees would have resulted in positive information, of the amount for which the mortgage was held. Robinson v. Williams, 22 N. Y. 380; Stoughton v. Pasco, 5 Conn. 442. The mortgage was valid as security for all indebtedness of Storms & Bass, or either of them, and Witkowski & Witczinski, in purchasing the cotton by the mortgage, took it cum onere, and are trustees invitum of it or its proceeds, and liable to account therefor to Ever'man & Co. The decree of the Chancellor is in accordance with these views, and is therefore Affirmed. LADUE V. DETROIT CO. (13 Mich. 380.) [Supreme Court of Michigan, 1865.] Christiancy, J. The mortgage; which the bill in this case seeks to foreclose, was executed by John Ladue to the complain- ant and Frances E. Eldred, composing the firm of Ladue & El- dred, on the 4th day of August, 1852, to secure and indemnify the firm against any endorsements which might be made, or lia- bilities to be incurred, by therh as sureties for John Ladue, as well as for any moneys they might advance for him, according to the condition of a bond to which the mortgage was collateral, and which was of like effect. There was nothing in the papers or in the arrangement between the parties which bound Ladue & CHAP. VIII.] LADUE V. DETROIT CO. 1035 EUlred to make any advances or to endorse any paper for John Ladue, or to incur any liability for him, nor was the latter bound to accept any such accommodation. The effect of the arrange- ment was that such advances and liabilities, if made or incurred, would be. purely optional on the part of the mortgagees. This mortgage was duly recorded on the day of its date. On the 9th day of May, 1853, John Ladue, the mortgagor, sold and conveyed the mortgaged premises to Charles Howard (through whom the railroad company derive their title), by warranty deed, which was duly recorded on the 9th day of July, 1853. John Ladue, however, remained in possession, using the premises as before, until his death, December 4, 1854. . No claim is made for any advances made by Ladue & Eidred to John Ladue, but t'he whole claim under the mortgage is based upon endorsements made for him by the niortgagees, which have been paid by Andrew Ladue, one of the complainants, and all these endorsements, as shown by the proofs, were made some time after the sale to Howard and the recording of his deed. Whatever endorsements were made prior to that time seem to have been taken up by John Ladue; and it does not satisfactorily appear by the evidence that any of these endorsements, made since the recording of Howard's deed, was made in renewal of paper endorse^ by them previous to that time. No endorsements made prior to the recording of Howard's deed are in any way involved, and the case may therefore be considered in all respects in the same light as if no such previous endorsements had ever been made, especially as it does not appear that at the time of- the sale to Howard, or the recording of his deed, there was any existing unsatisfied endorsement, -or any subsisting liability, in- choate or otherwise, incurred by the mortgagees for the mort- gagor. The mortgagees, at the time of the endorsements in question, had no notice of the deed to Howard, unless- the record of that deed is to be considered such notice, the deed having been some months previously recorded. The validity of the mortgage, as between the parties, for any amount of advances which might be made, or liabilities incurred under it, after they should have been thus made or incurred, is not questioned by the defendants; nor is it denied that the record of it would be sufficient notice to subsequent purchasers and incumbrancers, of the amount which the mortgagees might actually have advanced or endorsed for the mortgagor; or, in other words, the amount for which it had 1036 LADUE V. DETKOIT CO. [CHAP. VIII. become an actual and subsisting security, at the time when the question of notice of the mortgage became material, which, for the purposes of this case, is admitted to cover the period from the purchase by Howard down to the time of the recording of his deed, the record of which is claimed to be notice to the mort- gagees as regards any advances made to, or liabilities incurred by them for the mortgagor after the recording of the deed. Nor is it denied, that if the mortgagees, by the contracts or arrange- ments between them and the mortgagor (to secure which, on the part of the latter, was the object of the mortgage), had been bound to make advances or to endorse for the mortgagor, the record of the mortgage would have been full notice to Howard, and the mortgage would have been good against him, though the advances were not in fact made or the paper endorsed until after the deed to him and actual notice of that deed to the mort- gagees. The defendants also admit that the result would be the same under this mortgage, as to any advances made or paper endorsed by the mortgagees for the mortgagor, before they had actual or constructive notice of the sale and deed to Howard. But they insist that, as there was not at the time of Howard's pur- chase or the recording of his deed any debt of the mortgagor, or any liability incurred for him by the mortgagees, absolute or inchoate, nor any obligation on their part to incur such liability, the mortgage was not then an incumbrance in fact or in legal effect; that it could only become such from the time when the advances or endorsements were actually made; and it being Optional with the mortgagees whether they would make any such advances or endorsements, and the endorsements being made sub- sequent to the recording of Howard's deed, the mortgage is, in legal effect, subsequent to the deed, and th# record of the deed was notice to the mortgagees of Howard's rights. The first question, therefore, for our determination is, what was the legal effect of the mortgage (if any) upon the land, at the time of the recording of the mortgagor's deed to Howard? That a mortgage in this state, both at law and in equity, even when given to secure a debt actually subsisting at its date, con- veys no title of the land to the mortgagee (especially since the statute of 1843, taking away ejectment by the mortgagee) ; that the title remains in the mortgagor until foreclosure and sale, and that the mortgage is but a security, in the nature of a specific lien, for the debt, has been already settled by the decisions of this court. Dougherty v. Randall, 3 Mich. 581 ; Caruthers v. Hum- CHAP. VIII.] LADUE V. DETROIT CO. 1037 ^hrey, 12 Mich. 270; and Crippen v. Morrison, to be reported in 13 Mich. This is in accordance with the well settled law of the state of New York, from which our system of law in regard to mortgages has been, in a great measure, derived. Jackson v. Wil- lard, 4 Johns. 41; Collins v. Torrey, 7 Johns. 277; Runyan v. Messerean, 11 Johns. 534; Gardner v. Heartt, 3 Denio^ 232; Edwards v. Insurance Co., 21 Wend. 467 ; Waring v. Smyth, 2 Barb. Ch. 119; Bryan v. Butts, 27 Barb. 504; Bank v. Tollman, 31 Barb. 201 ; Cortright v. Cady, 21 N. Y. 342. This view of a mortgage is also sustained by several of the Eng- lish decisions, and substantially this is a more generally received American doctrine, as will sufficiently appear by reference to the decisions, most of which have been carefully collected in the elab- orate, brief of the defendant's counsel, but which are too numer- ous to be cited here. There are exceptions and peculiarities in particular states, in some of which, as in some of the New Eng- land states and Kentucky, the old idea of an estate upon a con- dition continues to rankle in the law of mortgages, like a foreign substance in the living organism, but is rapidly being eliminated and thrown off by the healthy action of the courts under a more vigorous application of plain common sense. But few of the inci- dents of this antiquated doctrine are now recognized in most of the states of this Union ; the title, for nearly all practical purposes, being now recognized, both at law and in equity, as continuing in the mortgagor, and the mortgage is a mere lien for the security of the debt.. But wherever any vestige of this now nearly ex- ploded idea continues to prevail, in connection with the more lib- eral doctrines of modern times which the courts have been compelled, from time to time, to adopt, it seems only to confuse and deform the law of mortgages by various anomalies and incon- sistencies, making it a chaos of arbitrary and discordant rules, resting upon no broad or just principle; while, by recognizing the mortgage as a mere lien for the security of the debt, at law as well as in equity, and thus giving it effect according to the real understanding and intention of the parties, the law of mort- gages becomes at once a system of homogeneous principles, easily understood and applied, and jiist in. their operation. A mortgage, then, being a mere security for the debt or liability secured by it, necessarily results : (1) That the debt or liability secured is the principal, and the mortgage but an incident or accessory. See cases above cited; also, Richards v. Synes, Barnad. Ch. 90; Roath v. Smith, 5 Conn. 1038 LADUE V. DETROIT CO. [CHAP. Vlll. 133 ; Lucas v. Harris, 20 111. 165 ; Vansant v. Allman, 23 HI. 31 Ord V. McKee, 5 Cal. 615; Ellison v. Daniels, 11 N. H. 274 Hughes V. Edwards, 9 Wheat. 489 ; Green v. Hart, 1 Johns. 580 McGan v. Marshall, 7 Humph. 121 ; 4 Kent, Comm. 193 ; McMil- lan V. Richards, 9 Cal. 365. (2) That anything which transfers the debt (though by parol or mere delivery), transfers the mortgage with it. See cases above cited, especially Vansant v. Allman, 23 111. 31 ; Ord v. McKee, 5 Cal. 615; Ellison v. Daniels, 11 N. H. 274. See, also, Martin v. Mowlin, 2 Burr. 978; Clark v. Beach, 6 Conn. 164; Southern \. Mendane, 5 N. H. 420; Wilson v. Kimball, 27 N. H. 300, 36 N. H. 39; Crawl v. Fance, 4 Iowa, 434; 1 Blackf. 137*; 5 Cow. 202; 9 Wend. 410; 1 Johns. 580. (3) That an assignment of the mortgage without the debt is a mere nullity. Ellison v. Daniels, 11 N. H. 274; Jackson v. Bronson, 19 Johns. 325 ; Wilson v. Throop, 2 Cow. 195 ; WeeTis v. Eaton, 15 N. H. 145 ; Peters v. Jamestown Bridge Co., 5 Cal. 324 ; Webb V. Flanders, 32 Me. 175 ; 4 Kent, Comm., ubi supra.; Thayer V. Campbell, 9 Mo. 277. (4) That payment, release, or anything which extinguishes the debt, ipso facto extinguishes the mortgage. Lane v. Shears, 1 Wend. 433 ; Sherman v. Sherman, 3 Ind. 337 ; Ryan v. Dunlap, 17 111. 40; Armitage v. Wickliffe, 12 B. Mon. 496; Paxon v. Paul, 3 Har. & McH. 399 ; Perkins v. Dibble, 10 Ohio, 433 ; Buck- enridge v. Ormsby, 1 Marsh. 257 ; Cameron v. Irwin, 5 Hill, 272. It will be seen from these authorities that some, if not all, of these incidents or characteristics of a mortgage are recognized by some of the courts which still hold the mortgage to be a con- veyance of the estate, — an idea, however, with which they are utterly inconsistent, as such incidents can only logically flow from the doctrine that the estate still remains in the mortgagor, and that the mortgage is but a lien for security of a debt. These propositions being established, the necessary result is that the mortgage instrument, without any debt, liability, or obli- gation secured by it can have no present legal eiifect as a mortgage or incumbrance upon the land. It is but a shadow without a substance, — an incident without a. principal, — and it can make no difference in the result whether there has once been a debt or liability which has been satisfied, or whether the debt or liability to be secured has not yet been created, and it requires, as in this case, -some future agreement of the parties to give it existence. CHAP. VIII.] LADDE V. DETROIT CO. 1039 At most the difference is only between the nonentity which follows annihilation and that which precedes existence. The instrument can only take effect as a mortgage or incum- brance from the time when some debt or liability shall be created, or some binding contract is made, which is to be secured by it. Until this takes place, neither the land nor the parties, nor third persons, are bound by it. It constitutes, of itself, no binding contract. Either party may disregard or repudiate it at his pleasure. It is but a part of an arrangement, merely contem- plated as probable, and which can only be rendered effectual by the future consent and further acts of the parties. It is but a kind of conditional proposition, neither binding nor intended to 6ind either of the parties, till subsequently assented to or adopted by both. Though the question does not properly arise here, we take it for granted, for the purposes of this case, that the mortgage instrument may, if properly executed, go upon the record, and become effectual between the parties when the debt or liability contemplated shall have been created, unless the mortgagor has, ■ in the meantime, — as he had a clear right to do, — parted with the title and deprived himself of the power of creating an incum- brance upon it. But the mere recording of the instrument would not make it a mortgage or incumbrance in legal effect, if it were not so before, nor give it a greater effect as to third persons than • it had between the parties. The record of such an instrument might be an intimation that advances and indorsements were contemplated as probable, and that they might, therefore, have been already made; and for this reason might, to this extent, properly put a purchaser or incumbrancer upon inquiry. But unless it is to have a greater effect than the record of other mort- gages, it could be notice only of -such facts as might have been ascertained by inspection of the instrument and papers referred to, and by inquiry ; in other words, by a knowledge of the rights of the parties in respect to the land at the time notice became material, which, for the purposes of this case, as already explained, we shall assume to be from the time of Howard's purchase down to the time when he recorded his deed. The result must, there- fore, be the same here as if there had been ne record. Had Howard made the most diligent inquiry in connection with the inspection of the papers, what facts could he have ascertained? Nothing material to the rights of the parties or to his own rights beyond the facts already stated,— nothing which, m 1040 LADUE V. DETROIT CO. [CHAP. VIII. any manner, interfered with the mortgagof's absolute right of sale. He would have learned, in fact, that the instru- ment recorded as a mortgage was not, in legal effect, a mortgage, nor upon any principle of justice or equity an" incum- brance upon the land; that either party had a perfect right to refuse to give that future assent, or to enter into that future contract or arrangement, by which alone it could acquire vitality or fbrce. He had, therefore, a just right to conclude that the record of his deed would be fair notice to the persons mentioned as mortgagees, as the instrument could only become a mortgage subsequent to that time, and then only by reason of some future debt or liability which it required the further assent and agree- ment of the parties to create. He had a, right to conclude that, upon every sound principle, Ladue & Eldred would, as prudent men, be as likely, and ought to be as much bound, to look to the record before making any such advances, or indorsing paper for the mortgagor, as if a new. mortgage for the purpose were to be taken at the time, since they had the same option to make the advances or not, as any new mortgagee would have had, and ought, therefpre, to be governed by the same prudential considerations. And they must be presumed to have known that John Ladue, until such advances or indorsements were made by them, had full power to sell the land free from any incumbrance of the mortgage instrument, which had not as yet become a mortgage. But it is urged, on the part of the complainant, that it was the duty of Howard, on making the purchase, to give actual notice of the fact to the mortgagees, so that they might not afterwards be led to incur further liabilities on the faith of the mortgage. In England, where there is no general registry law by which the record of deeds and mortgages is made notice to all the world, and the state of the title cannot therefore be always ascertained "in this way as with us, and where parties, therefore, can only rely upon actual notice, there may be good reason for requiring actual notice in such a case. But upon no principle which I have been able to comprehend, do I think such actual notice should be required in a case like the present. Nor have I been able to see any just or substantial reason why the record of Howard's deed (which was long before this mortgage instrument took effect as an incumbrance, and therefore prior in fact and law) should not be deemed notice to the mortgagees in the same manner, and to the same extent, as if their mortgage had not been executed CHAP. VIII.] LADUE V. DETROIT CO. 1041 or recorded until the time when it became eflfectual as a mortgage by their indorsements. Within the very spirit and purpose of the registry law, it seems to me, the record of the deed must be held notice in the One case as well as in the other. The opposite view, it seems to me, rests upon the erroneous idea that the recording of a mortgage adds something to its validity as between the parties, and that, even as between them, an instru- ment may be made a mortgage by recording it,' which would not have that operation without the record. This, certainly, is not the effect of our registry laws. If Howard could not rely upon the record of his deed for giving notice to these mortgagees, as to future advances or indorsements, without which their mort- gage instrument cou^d never become effectual, even as between the parties, then it is difficult to see why he. should be allowed to rely upon it as against any person who he might know had contemplated purchasing or taking a mortgage upon the property, and whose efforts or conversations had gone so far as to render it probable to the mind of such person that his preliminary negotiations or conversations might, at some future period, have resulted in a purchase or a mortgage; though at the time of the record of Howard's deed they had not resulted in any binding contract whatever, and both parties were at liberty to disregard them, without any breach of faith. As to all such persons, it has, I think, been generally conceded that the record of a deed is sufficient notice. In Craig v. Tappin, 1 Sandf. Ch. 78, a case cited by complainant's counsel, it was held that notice that a mortgage was about to be made, is not enough to bind a party with notice of the mortgage. And see Gushing v. Hurd, 4 Pick. 252; Warden v. Adams, 15 Mass. 232. I have thus far endeavored to show that upon principles result- ing from the nature of a mortgage, as recognized here, this mort- gage should be considered, in fact and in legal effect, subsequent to the. deed, and that the registry of the deed should, therefore, be considered notice to the mortgagees. The authorities upon this question are not so numerous as ohe would be led to expect ; but the few which are to be found are conflicting. I shall first notice those which are claimed to be opposed to the conclusion at .which I have arrived. The English authorities upon this question I consider of very little, if any, weight, for the reason already stated, and for the further reason that, for several pur- poses, a mortgage is there still held to be a conveyance of the estate upon condition, and the mortgagee as having the legal title 66 1042 LADUE V. DETROIT CO. [CHAP. VIII. — a doctrine upon which the right of tacking (never recognized in this state) to some extent depends, the legal title coupled with an equity being held to prevail over an equity. 4 Kent, Comm. 117; Coote, Mortg. 410 et seq.; opinion of Lord Cranworth in Hopkinson v. Rait, 7 Jur. (N. S.) 1209. The latter remark applies also with equal force to the decisions cited from Kentucky. Nelson's Heirs v. Boyce, 7 J. J. Marsh. 401, goes upon the express ground that the mortgage conveys the legal title, and that the mortgagee, therefore, is not bound to notice the record of a mortgage subsequently made by the mortgagor, who has only the equity of redemption. It cites Bank v. Vance, 4 Litt. 173, as supporting the doctrine of tacking upon this ground. Nelson V. Boyce also assigns, as another reason, why the record should not be notice, a provision of their statute allowing sixty days in which to record a mortgage, and says an examination of the record by the first mortgagee might therefore be of no use. Now it is clear that neither of these reasons for refusing to the record the effect of notice exists here. Of the case of Burdett v. Clay, 8 B. Mon. 287 (besides the fact that the mortgagee there holds the legal estate), it may further be noticed that, though the •previously recorded mortgage was in part to secure future liabil- ities, yet all the liabilities were incurred before the subsequent mortgage. There, are some few cases in this country, decided mainly, if not solely, upon the authority 'of Gordon v. Graham, 7 Vin. Abr. p. 52, 2 Eq. Cas. Abr. 598, which can have little influence here, not only for the reason above stated, but because the case itself is no longer law, even in England. This case decided that a mortgagee holding- a mortgage to secure money lent, and future advances (which he was not bound to make), was entitled to preference over a subsequent mortgagee, even for advances made after notice of the second mortgage. But so far as relates to advances made after such notice, this case was expressly overruled by the house of lords in Hopkinson v. Rait, 7 Jur. (N. S.) 1209, 5 Law Times (N. S.) 90. Most of the cases cited by complainant's counsel against the proposition I have endeavored to establish have no bearing upon the particular question we are now discussing. Bank v. Finch, 3 Barb. Ch. 293, only decides that when a mortgage is given to secure an existing debt, the mortgagee does not lose his security by extending the time and taking a renewal note for the same debt. In Craig V. Tap pin, 2 Sandf. Ch. 78, the question of notice did not arise, and so far as the reasoning of the court has any CHAP. VIII.] LADUE V. DETROIT CO. 1043 bearing upon the present question, it is in favor of the position I have endeavored to establish. In King v. McVickar, 3 Sandf. Ch. 208, Stuyvesant v. Hone, 1 Sandf. Ch. 419, and Stuyvesant v. Hall, 2 Barb. Ch. 151, no question of future advances or liabili- ties was involved ; but the question relating to the effect of the record was similar to that decided in this court in James v. Brown, II Mich. 25, and decided the same way, — a question so entirely foreign to that we are now discussing as to require no comment. Eyer v. Bank, 11 111. 381, only decides that a mortgage subse- quently executed is entitled to preference over one previously executed for future advances, after notice of the second mortgage to the first mortgagee. The notice in this case happened to be an actual notice, byt the question of the effect of the record, as notice, was not involved nor decided. Rowan v. Rifte Co., 29 Conn. 282, has no bearing upon this question. The title Iiad never been in the debtor, but was conveyed by a third person to, and held by, the creditors, in security for future advances for the debtor, which the creditors had agreed to make. The decision stands well upon two grounds : First. The title being iir the cred- itors and not in the debtor, the creditors were not bound to notice the record of a mortgage made by the debtor, who had no title.. Second. That ,the advances were not voluntary, the creditors being bound to advance $40,000, and the balance being advanced to save their interest and to carry the contract into effect. Hence the creditors were allowed priority for all their advances, though part were made after notice of the mortgage. In Wilson V. Russell, 13 Md. 495, the deed of trust, which was in the nature of a mortgage, recited that the mortgagees had . agreed to loan the mortgagors their notes, from time to time, as might be desired, etc. The case seems to have been decided mainly on the authority of Gordon v. Graham, — the authority of which is recognized, though it was not needed in that case. It does not appear whether there was actual notice of the second mortgage, and no difference is intimated between actual notice, and the record. In Taylor v. Man's- Ex'rs, 5 Rawle, 51, the question, so. far as regarded the effect of the record, was similar to that in James v. Brown. The judgment was, in legal effect as well as in date, a prior incumbrance, and the mortgage, in legal effect as well as in date, subsequent to it. There were no future advances in question. There are, however, two cases (and they are the only ones cited, or which I have met with) which are directly opposed to 1044 LADUE V. DETROIT CO, [CHAP. VIII, the conclusion at which I have arrived, and which go to the point that the record of Howard's deed would not be notice to Ladue & Eldred. McDaniels v. Colvin, 16 Vt. 300, and Truscott v. King, 6 Barb. 346 ; s. c. on appeal, 6 N. Y. 166. McDaniels v. Colvin rests upon the authority of English cases, among which is that of Gordon v. Graham, which are adopted by the court as authority. The case expressly holds that the record of the second mortgage could not be held notice, even as to subsequent advances, under the first mortgage. Judge Redfield (afterwards chief jus- tice) dissented. See his remarks upon this question (sustaining the views I have adopted). 12 Am. Law. Reg. p. 191. And in the extent and character of the actual notice to be given by the subsequent to the prior mortgagee, this case would not probably now be recognized as law in any court in this country. Truscott v. King was the case of a judgment to secure a sum due, as well as future advances which might be made, and a mortgage was subsequently made by the debtor. Advances were made by the judgment debtor after the mortgage was recorded. As decided in 6 Barb, it was held that the judgment took precedence for all advances until actual notice of the mortgage, on the ground that the record is only notice to subsequent, and not to prior, incum- brancers. In the court of appeals (6 N. Y.), where the judg- ment was reversed on other grounds. Judge Jewett, who gives the leading opinion of the court, does riot allude to this point. It is only alluded to by Edmonds, J,, who says : "It is well settled that a judgment for future advances is good, not only against the debtor, but also against subsequent incumbrancers, at least up to the time when a subsequent judgment or mortgage should intervene. But when such subsequent incumbrance may be said to intervene is not so well settled, whether at the time it is put upon the recOrd, or at the time the prior incumbrancer has actual notice of it. The supreme court, in deciding the case, held that it ought to be only from the time of actual notice, because the docketing of a judgment or recording of a mortgage was, under the statute, notice only to subsequent, and not to prior, incum- brancers. In this, I am inclined to think, the court was right." Now, it seems to me, the real question which lay at the basis of the inquiry in the above case, and to which that decided by the court was only incidental and secondary, was, which in legal effect was the prior, and which the subsequent,'incumbrance, and this depended solely upon the fact when, as regarded the advances in question, they respectively took effect. Did the judgment, in CHAP. VIII.] LADUE V. DETROIT CO, 1045 legal efifect, become an incumbrance for such advances before they were made and before there was any agreement that they should be made? What were the relative rights of the parties to the judgment at the time the mortgage was recorded? Could the judgment be enforced as an incumbrance for these advances, by reason of any rights or obligations existing between the parties at that time? If not, then, as to these advances, there was no incumbrance at the time the mortgage was recorded and the incumbrance of the judgment was, in legal effect, subsequent to the mortgage. This, which seems to me to be the main question, is neither discussed nor alluded to either by the supreme court or the court of appeals. The court, therefore, is simply saying that the record of the mortgage is notice only to subsequent incum- brancers, assume, as it seems to me, without an attempt to estab- lish, the main point in controversy. There may, perhaps, be some difference, in principle, between a judgmeiit given as security for future advances, and a mortgage given for a like purpose. But if there is, not, and if the decision in Truscott v. King is to be considered as equally applicable to a mortgage, then I cannot resist the conviction that it is in direct conflict with the principles which necessarily result from the uniform course of decision in that state, — holding a mortgage to be a mere security for, and incident of, the debt, incapable of a separate and independent existence. Having examined the cases relied upon by the complainant's counsel, as tending to controvert the conclusions at which I have arrived, I will now refer to those of an opposite tendency, some of which expressly hold the record to be notice of the intervening conveyance or incumbrance. In Collins v. Carlisle, 13 111. 254, there was a mortgage to secure future advances, and a contract subsequent in date and time of record for the sale of the land by the mortgagor, both recorded. It was held, the mortgage was valid for those advances only which were made prior to the recording of the contract. The principle is not discussed, but it seems to be taken for granted that the record of the contract was notice as to advances after- wards made. In Kramer v. Bank, IS Ohio, 253, it was held that a mortgage to indemnify against indorsements to be made for the mortgagor is valid and cpnstitutes a lien, which takes precedence of the lien of a judgment rendered after such indorsements have been made. But it is said the lien of a judgment would probably be preferred 1046 LADUE V. DETROIT CO. [CHAP. VIII. to the lien of the mortgage for advances made subsequent to the recovery of the judgment. The liability of the mortgagee had attached before the subsequent judgment, and, therefore, the point was not involved. But in the subsequent case of Spader v. Law- ler, 17 Ohio, 371, which was also the case of a mortgage to secure future advances, it was held that the mortgage must be postponed to a mortgage subsequently recorded, but before the future ad- vances were made, thus directly holding the record notice as to advances thereafter made under the first recorded mortgage; in other words, treating the first as a subsequent mortgage in reference to advances made after the record of the second. It is true that one of the grounds upon which the decision- seems to be placed is that the record of the mortgage (for the advances) ought to give notice of the amount of the incumbrance. The first case, so far as I have been able to discover, which fully meets and discusses the question upon principle, is that of Terhoven v. Kerns, 2 Barb. 96. It was the case of a judgment to secure future advances, which were optiorial; and it was held that such judgment, as to advances made after the rendition of a subsequent judgment, was not a lien as against the latter. The judgments are treated by the court as standing upon the same grounds as mortgages, and the question is discussed generally. It is held, that a mortgage to secure future advances, which are optional, does not take effect between the parties as a mortgagor or incumbrance until some advance has been made, — ^that, if not made until after another mortgage or incumbrance has been recorded,, it is, in fact, as to such after advances, a subsequent and not a prior incumbrance; and that the record of the subsequent recorded mortgage is notice, as to such after advances, as much as if the mortgage first recorded had not been executed until after such advances were made. The doctrines of this case were fully as strongly reaffirmed in Bank. of Montgomery's Appeal, 36 Pa. 170. (See also Parmenter v. Gillespie, 9 Barr, 86, and Note, "a," as to distinction between cases when the mortgagee is bound to make the advances, and when they are optional.) The doc- trine of these cases is pronounced reasonable by Sanford, Judge, delivering the opinion of the court in Boswell v. Goodwin, 31 Conn. 74, and he pointedly asks why such mortgage should not be treated "in all respects as if executed at the time when the advances are made." But one of the judges dissented as to this point, and the case Was decided upon other grounds. CHAP. VIII.] LADUE V. DETROIT CO. 1047 Judge Redfield, late Chief Justice of Vermont, ably discusses this question in a note to the case of Boswellv. Goodwin, Amer. Law Reg., vol. 12, p. 92, arriving substantially at the same con- clusion as that at which I have arrived. And Mr. Washburn (in 1 Wash, on Real Property, p. 542,) says it seems now to be the general rule. The counsel for the complainant have strongly urged the incon- venience which must result, especially to banks and bankers, . (who are accustomed to take such mortgages) by requiring an examination of the record every time they are called upon to make such advances under such a mortgage. Like Judge Redfield (in the note above cited) I have not "been able to comprehend" this hardship. It is, at most, but the same inconvenience to which all other parties are compelled to submit when they lend money - on the security of real estate^the trouble of looking to the value of the security. But, in truth, the inconvenience is very slight. Under any rule of decision they would be compelled to look to the record title when the mortgage is originally taken. At the next advance they have only to look back to this period, and for any future advance only back to the last: which would generally be but the work of a few minutes, and much less inconvenience than they have to submit to in their ordinary daily business in making enquiries as to the responsibility, the signatures and identity of the parties to commercial paper. But if there be any hardship, it is one which they can readily overcome, by agreeing to make the advances; in other words, by entering into some contract for the performance of which, by the other party, the mortgage may operate as a security. They can hardly be heard to cotnplain of it as a hardship that the courts refuse to give them the benefits of a contract which, from prudential or other considerations, they were unwilling to make, and did not make until after the rights of other parties have intervened. Courts can give effect only to the contracts the parties have made,, and from the time they took effect. The decree must be reversed, and the hill dismissed, and the appellants must recover their costs in both courts. Martin, C. J., and Cooley, J., concurred. Campbell, J., did not sit in this case.