HM QJontpU Sam Bt^aal ffiibraty ir- »-«_ Corne " University Library KF 399.S88 1877 v.1 Commentaries on equity jurisprudence as 3 1924 018 822 951 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/cu31924018822951 COMMENTARIES ON EQUITY JURISPRUDENCE, AS ADMINISTERED IN ENGLAND AND AMERICA. By JOSEPH SJORY, LL.D. TWELFTH EDITION", CAREFULLY REVISED, WITH NOTES AND NEW CASES ADDED, By JAIRUS W. PERRY, AUTHOR OF THE TREATISE ON TRUSTS. IN TWO VOLUMES. VOLUME I. BOSTON: LITTLE, BROWN, AND COMPANY. 1877. WcHLaUjt Entered accoromglBAct of Congress, in the year 1857, by WILLIAM W. STOEY, In the Clerk's Office of the District Court of the District of Massachusetts. Eutered according to Act of Congress, in the year 1861, by WILLIAM W. STORY, In the Clerk's Office of the District Court of the District of Massachusetts. Entered according to Act of Congress, in the year 1866, by WILLIAM W. STORY, In the Clerk's Office of the District Court of the District of Massachusetts. iSntered according to Act of Congress, in the year 1870, by WILLIAM W. STORY, In the Clerk's Office of the District Court of the District of Massachusetts. Entered according to Act of Congress, in the year 1873, by WILLIAM W. STORY, In the Office of the Librarian of Congress, at Washington. Entered according to Act of Congress, in the year 1877, by WILLIAM W. STORY, In the Office of the Librarian of Congress, at Washington. CAMBRIDGE : PRESS OF JOHN WILSON AND SON. TO THE HONORABLE WILLIAM PRESCOTT, LL. D. Sir, It affords me sincere gratification to be allowed to dedicate this work to you, upon your retirement from the Bar, of which you have been so long a distinguished ornament. More than one- third of a century has elapsed, since, upon my first admission to practice, I had the honor of forming an acquaintance with you, which has ripened into a degree of friendship of which I may be truly proud. It has been my good fortune, through the whole in- termediate period, to have been a witness of your professional labors, — labors equally remarkable for the eminent ability, untir- ing research, profound learning, and unsullied dignity, with which they were accompanied. They have brought with them the just reward due to a life of consistent principles, and public spirit, and private virtue, in the universal confidence and respect which have followed you in your retreat from the active scenes of business. This is a silent but expressive praise, whose true value is not easily overestimated. I trust that you may live many years to enjoy it, for the reason so finely touched by one of the great Jurists of Antiquity : Quia Conscientia bene actse vitse, multorumque bene- factorum Recordatio jucundissima est. JOSEPH STORY. Cambridge, December, 1835. ADVERTISEMENT TO THE TWELFTH EDITION. Another edition of this treatise is here given to the pro- fession and the public. It contains all the original text of Judge Story as he left it in the fifth edition, together with additions made by Judge Redfield, which are distinguished from the original text by brackets [*]. Many lawyers have expressed a desire that the original text of the dis- tinguished author should be restored and preserved ; and the present editor carefully considered the book to that end, but upon examination it was found that the sections inserted by Judge Redfield had been largely referred to and cited by Judges in their opinions as well as by authors in elementary treatises, and that to relegate so many sections upon so many different topics to the notes would tend to create confusion, and, if all were preserved, would tend to overwhelm the text with notes. On the other hand, if the sections of Judge Redfield were omitted, his labors and re- searches would be lost to the profession. It was therefore considered that it would be most convenient and useful to those engaged in the administration of justice to leave the- text as it stood in the eleventh edition, and only to modify some of his peculiarities of style. Between eight and nine hundred cases, selected from the latest and most important decisions, have been added to the authorities before cited. The notes of the present editor have been assimilated with the whole body of notes to the various sections of the book. The notes of the various editors are distinguished from the notes of the author by vi ADVERTISEMENT TO THE TWELFTH EDITION. brackets [ ], it not having been thought important to dis- tinguish the notes of mere editors from each other. Al- though very considerable matter has been added to the notes in this edition, yet, by the elimination of unimportant matter and by a new arrangement and condensation of the notes, about a hundred pages have been saved in the size of each volume. Eleven large editions of this work have been absorbed into the literature of the law. After such an indorsement, it seems little short of presumption either to criticise or com- mend it ; but a careful study of the book in the preparation of this edition, as well as a study for many years of many of the topics embraced in it, emboldens the editor to say that this treatise is a wonderful exposition of the Jurisprudence of Equity. Its plan and purpose are vast and comprehen- sive. Its style is clear and animated. Its discussions of the great principles of equity are accurate and exhaustive, and the whole is illustrated by numerous and full citations of precedents, in which these great principles have been judicially applied in the affairs of men. It is an enduring monument to the industry, learning, and genius of its dis- tinguished author. Salem, January, 1877. PREFACE. The present work embraces another portion of the labors, de- volved upon me by the Founder of the Dane Professorship of Law in Harvard University. In submitting it to the Profession, it is impossible for me not to feel great diffidence and solicitude, as to its merits, as well as to its reception by the public. The subject is one of such vast variety and extent that it would seem to require a long life of labor to do more than to bring together some of the more general elements of the System of Equity Jurisprudence, as administered in England and America. In many branches of this most complicated System, composed (as it is) partly of the principles of natural law, and partly of artificial modifications of those principles, the ramifications are almost infinitely diversified ; and the Sources, as well as the Extent of these branches are often obscure and ill-defined, and sometimes incapable of any exact de- velopment. I have endeavored to collect together, as far as my own imperfect studies would admit, the more general principles belonging to the System in those branches which are of daily use and practical importance. My main object has been to trace out and define the various sources and limits of Equity Jurisdiction, as far as they may be ascertained by a careful examination of the authorities, and a close Analysis of each distinct ground of that Jurisdiction, as it has been practically expounded and applied in different ages. Another object has been to incorporate into the text some of the leading doctrines which guide and govern Courts of Equity in the exercise of their jurisdiction ; and especially in those cases where the doctrines are peculiar to those Courts, or are applied in a manner unknown to the Courts of Common Law. In many cases I have endeavored to show the reasons upon which these doctrines are founded ; and to illustrate them by principles drawn from foreign jurisprudence, as well as from the Roman VIU PREFACE. Civil Law. Of course the reader will not expect to find in these Commentaries a minute, or even a general survey of all the doc- trines belonging to any one branch of Equity Jurisprudence ; but such expositions only as may most fully explain the Nature and Limits of Equity Jurisdiction. In order to accomplish even this task in any suitable manner, it has become necessary to bestow a degree of labor in the examination and comparison of authorities, from which many jurists would shrink, and which will scarcely be suspected by those who may consult the work only for occasional exigencies. It will be readily seen that the same train of remark, and sometimes the same illustrations, are repeated in different places. As the work is designed for elementary instruction, this course seemed indispensable, to escape from the inconvenience of perpetual references to other passages, where the same subject is treated under other aspects. The work is divided into three great heads. First, the Concur- rent Jurisdiction of Courts of Equity; secondly, the Exclusive Jurisdiction ; and thirdly, the Auxiliary or Assistant Jurisdiction. The Concurrent Jurisdiction is again subdivided into two branches : the one, where the subject-matter constitutes the principal (though rarely the sole) ground of the jurisdiction ; the other, where the peculiar remedies administered in Equity constitute the principal (though not always the sole) ground of Jurisdiction. The present volume embraces the first only of these branches of Concurrent Jurisdiction. The remaining subjects will be fully discussed in the succeeding volume. I hope also to find leisure to present, as a fit conclusion of these Commentaries, a general review of the doctrines of Equity Pleading, and of the Course of Practice in Equity Proceedings. In dismissing the work to the indulgent consideration of the Profession, I venture to hope that it will not be found, that more has been promised than is performed ; and that, if much has been omitted, something will yet be found to lighten the labors of the inquisitive, if not to supply the wants of the learned. Cambridge, Mass., December, 1835. CONTENTS OF YOL. I. [Fob an Analysis op bach Chapter, see the beginning of the Chapteb in the body of the Wobk.] Page Index to Cases Cited xi CHAPTER I. Section The True Nature and Character of Equity Jurisprudence . 1-37 CHAPTER II. The Origin and History of Equity Jurisprudence . . . 38-58 CHAPTER III. General View of Equity Jurisdiction 59-74 e CHAPTER IV. Concurrent Jurisdiction of Equity — Accident .... 75-109 CHAPTER V. Mistake 110-183 CHAPTER VI. Actual or Positive Fraud 184-257 e CHAPTER VII. Constructive Fraud 258-440 d X CONTENTS. CHAPTER VIII. Section Account 441-529 CHAPTER IX. Administration 530-589 c CHAPTER X. Legacies 590-608 CHAPTER XI. Confusion of Boundaries 609-623 CHAPTER XII. Dower 624-632 b CHAPTER XIII. Marshalling of Securities 633-645 c CHAPTER XIV. Partition 646-658 a CHAPTER XV. Partnership 659-683 a CHAPTER XVI. Matters of Rent 684-687 CHAPTER XVII. Peculiar Remedies in Equity — Discovery — Cancellation and Delivery of Instruments 688-711 a CHAPTER XVIII. Specific Performance of Agreements and other Duties . . 712-793 v NEW HAYEN CO. BAR LIBRARY. INDEX TO CASES CITED IN THE TWO VOLUMES. THE REFERENCES ARE TO THE SECTIONS. Abbey «. Deyo Abbott v. Dermott v. Middleton v. Strattan v. Winchester Abell v. Howe Aberaman Iron W. Co. v. Wick- ens 203/, 694 a, 695 a, 779 Aberdeen R. Co.V Blaikie 323 Abernethy v. Hutchinson 949 Abraham v. Bubb 913, 915 Section 1401c 149 1077 6 1020, 1503 b 1370 977, 1503 b Ackroyd v. Smithson Ackworth v. Ackworth 790, 793 1115 Acton v. Blundell 927 a v. Pearce 136, 739, 1371 v. White 1390, 1394 v. Woodgate 793 b, 1036 6 972, 1036 a, , 1045, 1046 Adair v. Shaw 465, 532, 581, 582 1257, 1284 Adams v. Adams 543 a, 579 a, 973, 1059, 1423 v. Barrett 298 v. Barry v. Blodgett i). Buchanan 1496 370 1228 v. Claxton 418, 1034, 1043, 1044, 1269 v. Clifton 1275 v. Curtis 1370 v. Flanagan v. Gay v. Lambert 499 e 304 1164 v. Robarts 604 a v. Shelby v. Stevens 203 a 138 k, 165 v. Whitcomb 1469 v. Winne 125 Section Adamson v. Armitage 1382, 1383 Adderley v. Dixon 717, 718, 719, 722, 722 a, 723, 724 a, 746, 796 Addington v. McDonnell 771 Addis v. Knight 1437 Addison v. Bowie 1097 v. Cox 1023 e, 1040 e v. Dawson 225, 229 Adley v. The Whitstable Co. 503, 691 Adlington v. Cann 1173 Adye v. Feuilleteau 1273, 1274 Affleck v. Affleck 170 Agar v. Blethyn 1378 v. Fairfax 650, 651, 656 v. Macklew 670, 1457 v. Regent's Canal Co. 870 Agard v. Valencia 767, 896 Agra, Bank v. Barry 400 b Aguilar v. Aguilar 1376, 1398, 1399 Ahearn v. Hogan 314 Aiken o. Bruen 428 Akin v. Peay 496 a Aiman v. Stout 238 Ainslee v. Goff 1455 Ainsley v. Mead 33, 1400 Ainslie v. Medlycott 150, 193 Ainsworth v. Walmsley 951 Aislabie v. Rice 291 Aitchison v. Dixon 1403 Akely v. Akely 1457 b Akerly v. Vilas 900 Albany City Bank v. Schemerhorn 833, 833 6, 891 Albert v. Perry 1338 a Albretch v. Wolf 1520 a Alcock v. Sparhawk 1247 Aldborough, Earl of, v. Frye 334, 336, 338, 342, 343, 345, 347 Alderson, Ex parte 1044, 1047 Xll INDEX TO CASES CITED. Alderson v. White 1020 a Aldrich's Adm'r v. Hapgood 499 Aldrich v. Cooper 499, 502, 557 to 560, 562 to 565, 588, 633, 638, 1233 a, 1376 Aldridge v. Thompson 807, 811 v. Westbrook 547 Alexander v. Alexander 1065 a v. Duke of Welling- ton 1040/ v. Mills 777 a v. Newton 168 v. Pendleton 410, 853, 854, 857 to 860 Alger v. Thacher 292 Allan v. Allan 1490, 1511 v. Backhouse 487, 1064 v. Bower 764 v. Grott 566 c Allen v. Addington 212 a v. Allen 566 v. Anderson 1094, 1096 v. Anthony ^00 v. Arme 433 u. Atchison 406 v. Berry 64 e v. Bonnett 373 v. Brown 164/ v. Buffalo 700 v. Center Valley Co. 675 v. Coster 1355 Ex parte 235 v. Gaillard 1270, 1274, 1275 v. Hammond 143 a, 143 b v. Harding 725 v. Hearn 294 v. Hopson 74, 74 e v. Knight 1020 v. Macpherson 184, 238, 1446 v. Lathrop 1023 b v. Loring 1218 v. Martin 928 v. Papworth 1396 v. Poulton 1096 v. Scott 1273/ v. Talbot 1562 v. Walker 1380 v. Webster 1065 e Allendorf v. Black 935 Alley i>. Deschamps 714, 717 a,741, 776 Allhusen v. Whittell 482 Allison v. Shilling 735 v. Sutherlin 499 e Alloway v. Braine 769 a Allsopp v. Wheatcroft 292 a Almony v. Hicks 700 Almy v. Reed 82 Alnete v. Bettam 808 Alsager v. Rowley 423, 581 Alsops v. Patten 760 Alston v. Trollope 1521a Alter's Appeal 180 a Alton v. Harrison 370, 432 6 Ambler v. Whipple 673 Ambrose v. Ambrose 1201 v. The Dunmow Union 455, 891a American Academy v. Harvard CoUege 1164 c American Bank Note Co. v. Edson 667 Ames v. Ames 64 e v. Clark 974 a v. King 951 a v. Snider 146 Amesbury v. Brown 486, 488 Amonett v. Amis 1021 a Amory v. Francis 564 b v. Green 1269 a v. Meredith 174 a, 1062 a Amoskeag Man. Co. v. Garner 951 v. Spear 951 Amsinck v. Barklay 1473 Ancaster ». Mayor 571, 572, 575, 576, 1248 e Anderson v. Abbott 1087 b v. Anderson 673 a, 1384 v. Dawson 1394 v. Elsworth 706 b v. Gregg 1277 v. McCarthy 119 t>. McGowan 1062 v. Pignet 629 v. Roberts 381, 435 v. Talbot 700 Anding v. Davis 1018 a v. Strobh 656 b v. Tydings 176 Andrew v. Clarke 1208 v. N. Y. Bible and Prayer- book Society 1154 c v. Spurr 134 a v. Wrigley 422, 580, 1129 Andrews.^. Bell 771 v. Berry 1494 v. Bishop 571 v. Brown 797, 798, 799 v. Essex F. & M. Ins. Company 153, 158 v. Fiske 1027 v. Jones 317 v. Keith 677 v. Pavis 184 i>. Salt 1347 e v. Sparhawk 1132 a v. Torrey 1018 d v. Trinity Hall 1091 Andrews's Will, In re 1067 b Anewalt's Appeal 1214 a INDEX TO CASES CITED. Xlll Angel v. Smith 831, 833, 833 a, 891 v. Stone 33 AngeU v. Angell 1483, 1501, 1507, 1508, 1513, 1514 v. Hadden 807, 808, 811, 822, 1401 Angier v. Angier 1425, 1472 v. Webber 893 a Angus v. Angus 1296, 1300 Anon. 74 d, 673 a, 705, 1340 Anon. i'. Lyne 1382 Ansdell v. Ansdell 1479 a Anshutz v. Anshutz 847 Anthony v. Anthony 1035 Antrobus v. Davidson 639 v. Smith 433, 706 a, 793 i, 987 Aplyn v. Brewer 1280 a Appleby v. Dodd 471 Applegate v. Mason 633 Appleton v. Rowley 1383 Appleyard ». Seton 74 a, 74 / Arbuthnot v. Norton 1040/ Arcedeckne v. Kelk 927 a Archer's Case 448, 991 Archer v. Hudson 309 v. Meadows 440 v. Preston 743, 744, 899 Arden v. Goodacre 1039 v. Patterson 1049, 1050 Ardis v. Printup 987 Argles v. Herseman 473 a Arkenden u. Starkey 44 Arkwright o. Gill 927 a Armitage v. Baldwin 499 5, 499 c u. Pulver 497 a, 498 v. Wadsworth 79, 88, 703 Armstrong v. Armstrong 833 a v. Gilchrist 71, 456, 457 v. Ross 1226 v. Toler 61 Arnald v. Arnald 608 Arnold v. Chapman 565, 1180, 1181 v. Garner 1268 v. Kempstead 1088 v. Richmond Iron Works 228 v. Woodhams 974 a, 1382 a Arnott v. Briscoe 208, 1528 Arnsby v. Woodward 1323 Arrington v. Liscomb 700 Arrowsmith, In re 604 a Arthington v. Fawkes 855 Arthur v. Arthur 138/ u. Bokenham 1040 v. Case 927 Artz v. Grove 755 Arundel v. Phipps 372, 709, 710, 717 a, 1368 v. Trevillian 263 Ashbrook v. Ryon's Adm'r 607 a Ashburton v. Ashburton 1357 Ashby v. Palmer 790 Ashcombe's Case 1057 Ashhurst v. Mill 138/ Ashley v. Baillie 537 Ashmore v. Evans 771 Ashton v. Atlantic Bank 400, 977 a v. Blackshaw • 1380 v. Corrigan 730 v. M'Dougall 273, 1384 Ashton's Charity 1178 Ashurst's Appeal 1520 o Astle v. Wright 669 a Astley v. Reynolds 298 v. Weldon 1314, 1318 Aston v. Aston 915 v. Heron 891 v. Lord Exeter 74 d, 620, 1493 v . Pye 705 a v. Robinson 742 o. Wood 979 a, 1167, 1196 a Astor v. L'Amoreux 760 v. Wells 404, 408 Atcheson v. Mallon 293 Athenseum Life Ins. Co. v. Pooley 907 Atherford v. Beard 294 Atherton v. Nowell 1424 Athol Machine Co. v. Fuller 1400 Athol v. Earl of Derby 743 Atkins v. Chilson 926, 1314 v. Farr 274 v. Hatton 617, 619 v. Hill 590, 591, 593 v. Rison 89, 776 v. Tredgold 1521 b Atkinson v. Atkinson 1353 v. Elliot 1435 v. Leonard 64 i, 80, 81, 1470, 1473 v. Littlewood 1088, 1105 v. Manks 806 to 809, 816, 817, 821, 824 v. Ritchie 1307 v. Webb 1104 Atkinsons v. Allen 1582 Atlanta, &c. R.R. v. Speer 729 Atty.-Gen. v. Baines 1171, 1172 v. Balliol Col. 1237 v. Berryman 1167 v. Birmingham 925 a v. Boucherett 131 a, 1191 v. Boultbee 1169, 1176 w.Bowyerll43, 1153, 1155, 1170, 1171 v. Brentwood School 1153, 1154 a v. Brereton 1143, 1147, 1149, 1163 XIV INDEX TO CASES CITED. Atty.-Gen. v. Bright 1067 b v. Browley 1178 v. Brown 1147, 1164 v. Bruiming 552 b v. Bunce 1191 a v. Burdett 1171 v. Caldwell 1180 v. Cambridge Gas Co. 927 c v. Chester, Bishop of 1164, 1170, 1184 v. Christ's Hospital 1192 a v. Clarendon 1161, 1195 v. Clark 1164, 1190 v. Cleaver 893, 923, 924 a v. Clements 1361 v. Cohoes 921, 923 i). Colney Hatch L. Asylum 927 v. Combe 1170, 1172 v. Comber 1164 v. Cooper's Co. 1167, 1176, 1178, 1181, 1289 v. Cornethwaite 546 v. Corporation of Ches- ter 1194 e v. Corporation of Roch- ester 1178 v. Coventry, Mayor of 684 c, 1191 v. Craven 1181 v. Day 740, 755, 759 v. Dean, &c. of Wind- sor 1536, 1580 v. Dimond 583 v. Dixie 1161, 1178 v. Doughty 924 a v. Downing 1170, 1190 t>. Drapers' Co. 1167, 1176, 1178, 1181 v. Duplesis 1490 v. Earl of Lonsdale 1086, 1164 v. Ely, &c. R.R. Co. 959 m v. Errington 809 v. Fishmongers' Com- pany , 1520 v. Forbes 921, 923, 924 v. Foundling Hospital 1191 v. Fullerton 619, 620 v. Gardner 1191 a v. Garrison 1287 v. Gee 927 v. Gibson 1170 a v. Gladstone 1164 Atty.-Gen. v. Gleg 1175 v. Goulding 1190 o. Graves 1180, 1181 v. Great East. R.R. Co. 928 v. Great Northern R.R. 927 v. Green 1169 v. Guise 1168 i7. Haberdashers' Co. 1178 v. Halefax 925 a v. Hall 1073 v. Hamilton 652 v. Hankey ■ 1177 v. Harrow School 1163 v. Heelis 1164 v. Herrick 1164, 1190 v. Hewer 1164 v. Hickman 1166 v. Hicks 1177 v. Hodgson 604 a v. Hulton 1191 a v. Hurst 569, 1178, 1180 to 1182 v. Ironmongers' Co. 1117, 1167, 1170 a, 1176, . 1178, 1182 v. Jackson 1166, 1451, 1456 v. Jeanes 1163 v. Johnson 922, 924 v. Kell 1164 v. Kirk 955 a v. LandafE 1170 a v. Leeds Corporation 927 v. Lepine 1184, 1186, 1300 v. London, City of 1170 a, 1184, 1190 v. Lunatic Asylum 925 a v Marchant 1178 c v. Marlborough 915 v. Matthews 1190, 1191 v. Mayor of Bristol 1178 v. Mayor of Carlisle 1164 v. Mayor of Duhlin 449, 1147, 1153, 1154 a, 1164 v. Merrimack Man. Co. 1164 v. Middleton 1149, 1163, 1190, 1191 v. Mid. Kent, &c. R.R. Co. 929 6 v. Minshall 1176 v. Moore 1191, 1191 a v. Morgan 700 v. Munro 1191 a v. Murdock 1191 a v. Newman 1147 INDEX TO CASES CITED. XV Afty.-Gen. v. Nichol 917, 924 a, 925, 926 v. Oglander 1169, 1170 a, 1190 v. Oxford, Bishop of 1190 v. Painters' Company 1190 v. Parker 1163 v. Parkhurst 225 v. Parnther 229, 229 a v. Peacock 1170 v. Pearce , 1164 v. Pearson 1183, 1191 a v. Piatt 1170, 1175 v. Power 1164, 1168 v. Price 1163, 1190 v. Proprietors of Brad'd Canal 927 e v. Pyle 595 v. Ranee 1164 u. Ray 1513 v. Read 1361 v. Richards 922 v. Richmond 927 v. Rye 1152, 1171 v. Salem 959 m v. Sheffield Gas Co. 927 c v. Shore 1191 o v. Sittingbourne, &c. R.R. Co. 1231 b v. Sitwell 154, 157, 159, 161, 330, 755, 768, 769 v. Skinners' Co. 1153, 1154 a v. Smart 1163 v. Sothen 239 v. Soule 1163, 1169 v. South Sea Company 1191 v. Stephens 400 d, 622 v. Stepney 1164, 1176 v. Stewart 924, 1170 a, 1194 v. St. John's Hospital 1194 b v. Syderfin 1167, 1170 v. Tancred 1146, 1151 v. The Miners' Co. 1194 e v. Tomkins 1180, 1181 v. Trinity Church 1194 a v. Trinity College, Cam- bridge 1181 v. Tudor Ice Co. 33, 927, 959 m v. Turner 1446, 1447 v. Tyndall 558, 563, 569, 633, 1180, 1181 v. United Kingdom E. T. Co. 925 b v. Utica Insurance Co. 927, 1191 Atty.-Gen. v. Visitors of Lunatic Asylum 927 d v. Wansey 1169, 1190 v. Wax Chandlers' Co. 1178 c v. Whitchurch 1176 v. Whitely 1163 v. Whorwood 1408 v. Wigan 890 a v. Williams 1164 v. Wilson 1177, 1178, 1181, . 1191a v. Winchelsea 569, 1178, 1180, 1181 v. Wood 924 a v. Woolrich 225 Attridge v. Billings 1261 a, 1357 Atwell v. Atwell 1214 a Atwood v. Fisk 61, 701 v. Lamprey 111 v. Maude 665 a v. Meredith 677 v. Meriweather 440 a v. Small 191, 192, 198, 200, 200 a v. "Vincent 64 e, 499 Aubin v. Daly 1067 b Aubrey v. Middleton 1247 Auburn, &c. Plank Road v. Doug- lass 927 Audenried v. Phila., &c. R.R. 929 b Audsley v. Horn 604 a August v. Seeskind 406 Ault v. Goodrich 1520 Auriol u. Smith 1452, 1459 Aurora, The 1241 Austen v. Boys 951 d Austin v. Austin 1326 a v. Bell 1036 a v. Chamber 310 v. Ewell 779 v. Halsey 1226 v. Taylor 973 Auter v. Miller 742 Avent v. McCorkle 1228 Averall «. Wade 416, 475, 483, 492, 499, 503, 633, 634, 640, 1216, 1233 a Averill v. Guthrie 419 v. Loucks 553, 674 Avery v. Griffin 793 o v. Holland 74 e v. Petten 493, 599 a Ayer v. Hawkins 459 a v. Stewart 1520 Ayers v. Husted 634, 642 Aylesford v. Morris 344 Aylett v. Ashton 1397 v. Dodd 1190 Ayliffe v. Murray 321 XVI INDEX TO CASES CITED. Aylward v. Kearny 320 Aynsley v. Glover 926 v. Woodsworth 479, 481 Ayres v. Methodist Church 1154 c v. Waite 1028 B. Babcoek v. Case 195 v. McCammant 252 v. New Jersey, &c. Co. 927 v. Smith 997 a Bachelder v. Sargent 1401 i Back v. Andrew 1204 v. Kett 1094 v. Stacy 926, 927 Backus v. Murphy 678 Backus's Appeal 769 Backwell's Case 544 Bacon v. Bacon 1281 v. Bronson 184, 203 v. Cottrell 799 a, 1016 b v. Husband 1043 v. Jones 934, 959 a v. O'Connor 400 b Badeau v. Rogers 806, 807 Badger v. Badger 527, 529, 1520 v. Boardman 737 Badgley v. Bruse 632 Baggett v. Meux 1384 Bagot v. Oughton 576 Bagott ». Mullen 498 Bagshaw v. Eastern Union Co. 959, 1559 v. Parker 673 a Bagster v. Portsmouth 297 Baile v. Baile 1233 6 Bailey v. iEtna Ins. Co. 1027 v. Bailey 161 v. Briggs 544 v. Devereux 891 v. Ekins 552, 1064 b, 1131 v. Hobson 655, 916 v. James 141 v. Lloyd 1062 a v. Sisson 658 v. Taylor 933, 942 Baillie v. Baillie 890 Bain v. Brown 315 v. Sadler 552, 554, 557, 579 a Bainbridge v. Smith 173 Baine v. Bickett 735 Baines v. Dixon 1064 Baird v. Baird 406 v. Torrey 1341 a Baker v. Bayley 989 v. Biddle 33, 974 v. Bradley 309 a Ex parte 1364 r v. Gilman 371 v. Hathaway 735 v. Kline 190 • v. Mellish 903 v. Monk 337 6 v. Morgan 1575 v. Newton 1382 a v. Paine 153, 154, 158 to 161 v. Parson 44 v. Peck 321 v. Rogers 187 v. Shelbury 730 xi. Sutton 1157, 1164 v. Tucker 309 v . White 274 v. Whiting 1048, 1050 v. Williams ■ 303, 606, 607 a Baldwin v. Cawthorne 371 v. Dougherty 578 v. Kochfort 322 v. Salter 771, 776 v. Soc. for Useful Knowl- edge 959 a Bale v. Ray 928 Balfour v. Welland 1124, 1130, 1134 v. Weston 102 Balkum v. Breane 452 Ball v. Ball 1341 v. Coggs 722 v. Coutts 1361, 1418, 1419 v. Harris 1064 b, 1127 a, 1130, 1131 v. Mannin 225, 236 v. Montgomery 273, 1419, 1422, 1423, 1426, 1476 v. Ray 927 e v. Smith 1207 v. Storie 153, 156, 161 Ballet v. Spraiuger 487 Ballin v. Dellage 1401 i Ballinger v. Edwards 301 Balmain v. Shore 1208 Baltimore v. Gill 893 a Baltimore, &c. R.R. Co. v. Strauss 924 a Baltimore and Ohio Railroad Co. v. Wheeling 1559 Bambury v. Briscoe 704 Bamfield v. Windham 572 Bancroft v. Cousen 972 v. Curtis 1375 v. Dumas 459 a Band v. Fardell 1269 Banfleld v. Whipple 370 Bangs ». Smith 1062 o Bank of. Auburn v. Roberts 1021 a Augusta v. Earle 1562 Australia v. Mas 1578 Commerce v. Bogy 1043 Commerce v. Owens 632 INDEX TO CASES CITED. xvn Bank of Commerce, Appeal of 1023 c England v. Glynn 85 Hindustan, In re 1233 6 Ireland v. Beresford 883, 904 Louisville v. Hall 674 Rochester v. Emerson 138/ Scotland v. Christie 459 a, 595 e The Republic v. Baxter 212 a Westminster v. White 1018 Bant v. Campbell 499 v. Carrolton R.R. 677 v. Hill 482 Bank, Mechanics', of Alexandria, v. Lynn 750 a Merchants', v. Packard 824 United States v. Beverly 1060 v. Biddle 74 c v. Daniel 125, 137 v. Etting 324 Bankart v. Houghton 1537 v. Tennant 1537 Bankhead v. Alloway 196, 527 Banks v. Evans 705 v. Gibson 667 v. Sutton 629 Banta v. Palmer 203/ Baptist Association v. Hart's Ex'rs 113V, 1146, 1154, 1156, 1169, 1183 Baptist Association v. Smith 1168, 1184, 1191 Barber v. Barber 1520 Barbone v. Brent 894, 895 Barden v. Grady 633 Bardwell v. Perry 645 a Barfleld v. Nicholson 958 Barford v. Street 1394 Bariantinski, In re 1965 a Baring v. Dix 673 v. Nash 647, 649, 653, 656, Barker v. Barker 564 a v. Dacie 455, 457, 458, 517 v. Elkins 895, 896 v. Goodair 677, 678 v. Hodgson 1307 v. Mar. Ins. Co. 315 v. May 552, 640 v. Ray ■ 184, 1445 v. Swain 824 a Barkley v. Barkley 722 v. Lane 972 Barkworth v. Young 987 a Barling v. Bishop 361 Barlow v. Bishop 1386 v. Grant 1355 EQ. JUB. — VOL. I. Barlow v. Scott 749 c Barnard v. Bagehaw 1277 e v. Campbell 1545 v. Jennison 1018 v. Jewett 1201 v. Large 996 v. Lee 776 v. Lord, Case of 915 v. Wallis 959 6 Barnardstown v. Lingwood 335 Barnawell v. Smith 15216 Barned v. Barned 1028 6 Barnes o. Baker 923 v. Barnes 721, 747 v. Camart 162 v. Patch 1065 6, 1071 v. Rackster 633, 634, 1233 a v. Wood 735, 779 Barnesley v. Powell 166, 254, 310, 440, 730 Barnett v. Barnett 146 ». Spratt 246 v. Weston 419 Barney v. Beak 348 v. Myers 1025 Barnsdale v. Lowe 1516 Baron v. Husband 1039, 1043 Barr v. Hatch 172 v. Lapsley 708, 724 v. Spears 673 Barratt v. Wyatt 1277 e Barrell v. Joy 972, 1268 v. Sabine 1019 Barret v. Alton and Sangamon Railway 1558 Barrett v. Baxter 230 v. Beckford 1103, 1122 v. Hartley 1023 e, 1268 Barrington v. Home 731 Barrisford v. Done 292 Barron v. Grillard 1496 v. Paulling 1016 v. Porter 1047 v. Bobbins 700 Barrow v. Barrow 385, 1080 a v. Greenough 256, 781 v. Paxton 1030 ». Rhinelander 523 v. Richards 926 a Barrs v. Fewkes 1208 Barry v. Abbot 829 v. Croskey 33, 190 6 v. Stevens 462 a Barrymore v. Ellis 1384, 1394 Barstow v. Kilvington 160 Bartholomew v. May 571 v. McKinstry 377 Bartle v. Vorbury 138 k Bartlett v. Bartlett 1197, 1400 xvm INDEX TO CASES CITED. Bartlett v. Broderick 166 v. Hodgson 1285 v. Johnson 1032 v. Nye 1154 d v. Pickersgill 758, 1201 a, 1202 v. Salmon 203 b, 212 a Bartlett's Case 203/ Barwick v. English Joint Stock Bank 193 a Barzizer v. Story 316 Bascom v. Albertson 1154 c, 1183 Baskerville v. Brown 1440 Baskins v. Calhoun 165 Baskomb v. Beckwith 749 b Bass v. Bass 741 v. Dawbee 951 <7 Bassett v. Brown 33, 203 a v. Company 925/ v. Granger 1065 d v. Percival 575 Batchelder v. Batchelder 589 c v. Sargent 1401 i Batdorf v. Albut 203/ Bate v. Hooper 1269, 1275 a, 1534 v. Scales 1284 Bateman v. Bateman 1063 v. Ross 1428 v. Willoe 895, 896 Bates i'. Dandy 1410 v. Graves 1447 v. Johnson 1227 v. Kempton 607 d v. Lilly 824 a Bates and Henckil, Ex parte 162 Bates' Case 1040 g Bath, Earl of, v. Sherwin 59, 63, 64 a, 76, 78, 859 and Montague's Case 190, 238, 251 Bathurst v. Burden 721, 926 v. Murray 1361 Batten v. Earnlay 603, 604, 845 Battersbee u. Farrington 352, 356, 987 a Battersley v. Smith 296 Battine, Ex parte 1040 e Batture, Case of the 865 Battle v. Davis 831 Batstone v. Salter 1206 Batty v. Chester 61, 296 a Baugh v. Price 335 v. Read 1111 Bax, Ex parte 448, 449 Baxter v. Conolly 722 v. Earl of Portsmouth 225, 227, 228 v. Wiley 1522 a Bayard v. Hoffman 355, 359, 368 Bayler v. Commonwealth 729 Bayles v. Baxter 982 a Bayley v. Boulcott 793 d v. Edwards 623 „. Greenleaf 1217, 1228. 1229 v. Powell 1208 v. TyrreU 1049 v. Williams 300 b Baylies v. Payson 972, 1266 Bayliss v. Williams 311 Baynard v. Norris 109, 400 Baynum v. Baynum 1476, 1477 Bayspoole v. Collins 706 c Bazeley v. Forder 1347 b Beach o. Bestor 370 Beadell v. Perry 929 b Beal v. Hayes 1318 Beall v. Fox 1154 c Bean v. Smith 434, 435 Beard v. Beard 1374 v. Bedolph 1372 v. Linthieum 764 v. Nuthall 987 v. Travers 1360 Beardsley v. Knight 138/ Bearry v. Pitt 331 Bears' Estate 370 Beasley v. Arcy 1436 v. Maggreth 239 v. Watson 1354 a Beatie v. Johnson 1338 a Beatson v. Beatson 793 c Beaty v. Kurtz 927 Beauchampw. Huntley, Marquis of 899 v. Winn 164 Ji Beauford, Duke of, v. Berty 1330, 1337, 1339, 1341 v. Roy 239 v. Wellesley 1351 Beaumont v. Boultbee ■ 218, 523 v. Bromley 160 v. Oliveira 572, 645 c, 1164 b v. Reese 296 v. Squire 284 v. Stubbs 883 Beavor v. Luck 1023, 1023 e Bechinall v. Arnold 1503 Beck v. Burn 604 a v. Kantorowicz 315, 323 Becker v. Smith 776 v. Sweetser 1040 g Beckett v. Cordley 64 d, 385, 390, 391 Bsckford o. Kemble 899, 900 c. Wade 1529 Bsckley v. Backhouse 402 INDEX TO CASES CITED. XIX Beckley v. Coke 297 v. Dorrington 423, 481 «. Newland 265, 343 to 345, 785, 1040 b Bedell v. Carll 607 a v. Hoffman . 807, 824 Bedford and Con. R. Co. v. Stan- ley 778 d Bedilian v. Seaton 972, 1198 Beebe v. Knapp 193 Beecker v. Beecker 591. 592 Beegle v. Wentz 1198 Beemont v. Fell 180 Beer v. Beer 481 Beeson v. Beeson 321 Beiorley v. Carter 777 a Belcher v. Belcher 231 v. Butler 416 Belchier, Ex parte v. Parsons 1269, 1271, 1280 Belfast v. Chichester 1511 Belford v. Crane 372 b Belknap v. Belknap 870, 1268 a v. Sealey 778 v. Trimble 927 Bell v. Coleman 1122 v. Fleming 564 b v. Gardiner . 138 c, 146 v. Greenwood 896 v. Holtey 777 a u. Hunt 806 v. Locke 951, 951 a w. London and Northwestern Railway 1044 r. McCawley 434 a v. Nevin 676 c v. Phyn 674, 1074 e, 1207 v. Quin 293 b 44 v. Whitehead 940 v. Wilson 515 a Bell's Appeal 1060 Bellamy u. Burrow 295 v. Jones 1514 v. Sabine 129, 132 Bellasis v. Uthwatt 1103, 1105, 1109, 1111 Bellew v. Russell 311 to 313 Bellows v. Stone 161 Beman v. Rufford 959, 1559 Benbow v. Townsend 972, 1199, 1202 Bench v. Viles 1247 Bending v. Bending 1088 a Benfield a. Solomons 301, 422, 423 Bengough v. Walker 1103, 1115 Benjamin v. Elmira, &c. R.R. 1021a Benn v. Dixon 604 Bennet v. Bachelor 64/, 596, 1208 v. Bedford Bank 362 Bennet v. Davis 1380 Ex parte 322 v. Mayhew 1210 v. Wade 184, 236, 1500 v. Whitehead ' 511, 512 Bennett v. Abrams 722, 747, 793 r v. Aburrow 1062 a v. Fulmer 1201c v. Hayter 1140 u. Hotchkiss 700 v. Marshall 180 a v. Robinson 285, 291 b v. Smith 959 a v. Titheringto n 400 6 v. Walker 1503 a v. Welch 793 s v. Wyndham 1064 e Bennett's Will 604 a Bensley v. Burden 1040 Benson v. Baldwin 87, 684, 686 v. Benson 1384 v. Gibson 1314 v. Heathorn 315, 466 a v. Le Roy 552, 890 v. Whittam 1069 Bent v. Bent 1372, 1375 v. Cullen 1064 a, 1065 a ». Young 589 Bentley v. Craven 323 v. MacKay 694 a, 706 b v. Phelps 1018 Benwell v. Inns 292 Benyon v. Nettleford 74 a, 296, 697, 1494 Berdoe v. Dawson 337 d Beresford v. Hobson 1404, 1421 a Berg v. Radcliffe 164 Bergey's Appeal 1372 Berkhamstead School Case 1170 a Bernal v. Donegal 336, 344 Bernard v. Minshull 1068 b Berney v. Pitt 331 v. Sewell 837 Berrie v. Howitt 1233 c Berrington v. Evans 1248, 1249 Berrisford v. Milward 390 Berrill v. Hammond 664 Berry, In re 1365 b v. Mutual Ins. Co. 64 d, 393, 419, 1020 v. Skinner 1027 v. Wade 731 Berta Lodge v. Leleverton 760 Berthold v. Berthold 499, 499 b Bertie v. Faulkland 288, 1315 v. Lord Abington 488, 835 Bescb. v. Frolich 673 a Best v. Stamford 790, 998, 1001 v. Stow 141, 144, 161 XX INDEX TO CASES CITED. Best's Settlement 997 a Bettesford v. Dean of St. Paul's 716, 728, 738 Bettinger v. Bettinger 973 Betts v. Gallais 799 v. Gann 145 v. Neilson 799 Beverley v. Beverley 274, 387 v. Peter 1212 Beverley's Case 224 to 226, 229, 230, 1328, 1333, 1336, 1362 Beverly v. Walden 238 BexweU v. Christie 201, 293 Beyfuss v. Bullock 361 Bibb v. Pope 1400 Bicknell u. Evans 393 v. Field 900 Bidder v. Trinidad P. Co. 710 b Biddle v. Moore 64 i v. Ranney 457 Bigelow i). Foss 1553 a v. Topliff 1018 Bigland v. Huddlestone 1080, 1085 Big Mt., &c. Co.'s Appeal 928 Bilbie v. Lumley 111, 125, 1255 Bill v. Cureton 371, 425, 793 b v. Kinaston 604 v. Price 348 v. Sierra Nevada L. W. & M. Co. 959/ Billage v. Southee 314 Billings v. Sprague 499 e Billingslea v. Ward 762, 769 Billon v. Hyde 457 Bindley v. Mulloney 1428 Bingham v. Bingham 111, 124, 137, 141 Bingham's Appeal 1062 a Bininger v. Clark 667 Binkes v. Rokeby 778 Binstead v. Colman 763 Birch v. Blagrave 297 v. Corbin 814 v. Ellames 395, 1020 v. Tebbutt 459 b i>. Wade 1061 v. Wright 1013 n Birchard v. Scott 1169 Birchell, Ex parte 1338 Birchett v. Boiling 666, 722 Birch- Wolfe v. Birch 518 a, 915 Bird v. Harris 1208 v. Railroad Co. 514 a v. Webster 1069 b Birds v. Askey 1074 b Birdsall v. Colie 672 a Birmingham v. Kirwan 1075, 1077, 1088, 1088 a Birmingham, &c. R. Co. v. Ratcliff 457 Biscoe v. Perkins 996, 997 Bishoff v. Wethered 1578 Bishop v. Breckles 667 v. Church 158, 162, 518, 1437 v. Day 327 v. Schneider 404 v. Webster 1458 Bishop of Cloyne v. Young 1208 Winchester v. Beaver 908 v. Founier 700 V. Mid-Hants R. Co. 1231 b v. Paine 908 Bissell v. Axtel 542 v. Kellogg 301, 700, 1023 c Bittick v. Wilkins 499 e Bize v. Dickason 1256 Black v. Black 33 v. Gregg 1018 v. Lamb 72, 164 a v. Phila., &c. R.R. Co. 924 v. Thornton 428 Blackburn v. Edgley 309 v. Gregson 1220, 1222, 1226, 1228 v. Staples 160, 984 Blackett v. Bates 729, 778 b Blackford v. Christian 235 to 237 ■». Davis 1018 c v. Preston 295 Blackhall v. Coombs 897 Blacklow v. Laws 1382, 1383 Blackman v. Dunkirk 1040 d Blackmore v. Shelby 317 Blacknall v. Parish 768 Blackwell v. Bull 1065 b, 1065 c Blackwood v. Jones 1540 Blades v. Blades 397 Blagden v. Bradbear 757 Ex parte 1432, 1433, 1437 Blagge v. Miles 1062 a Blagrave v. Routh 310, 312 Blaiklock a. Grindle 1091 Blain v. Harrison 624, 626, 630, 631 Blair v. Bromley 25C , 1226, 1521 a v. Chamblin 799 a Blaisdell v. Stearns 400 Blake v. Banbury 1077, 1086, 1089 v. Blake 541, 603, 839, 1077, 1086, 1089 v. Brooklyn 929 v. Butler 531 v. Dorgan 673 Ex parte 1216, 1241 v. Hungerford 64 d v. Langdon 1437 a v. Luxton 989 Blakely v. Brady 793 c Blakeman v. Blakeman 120 INDEX TO CASES CITED. XXI Blakemore v. The Glamorganshire Canal Co. 959 Blanchard v. Blood 1380 v. Detroit R.R. Co. 751 v. Doering 928 !i. Hill 951 a Blanchett v. Foster 303 Bland v. Floyd 320 v. Middleton 1315 v. White 326, 883 Blandheir v. Moore 832 Blandy v. Kimber 307 v. Widmore 1104, 1106, 1107 Blaney v. Blaney 645 b Blatch v. Wilder 1060 Blatchford v. Ross 959 m, 1556 Blatchley v. Osborn 410 Blauvelt v. Ackerman 1261 Blaydes v. Calvert 1470, 1473, 1474 Bleakley's Appeal 64 e Blenkinsopp v. Blenkinsopp 273 Blennerhasset v. Day 1455 Blessing v. Galveston 959 a Blewith v. Roberts 1065 a Blewitt, In re 1064 a Bligh v. Brent 674 !'. Earl of Darnley 566 Blight v. Blight 479 v. Page • 1307 Blinkhorn v. Feast 1208 Blisset v. Daniel .667 Blithman, Re 589 a Blodget v. Blodget 700 Blodgett v. Hildreth 1196, 1201 Blofield v. Grymes 1080 n Bloomer v. Spittle 138 i, 769 Blore v. Sutton 794, 797 Blossom v. Van Amringe 695 a Blount v. Blount 744 a v. Burrow 607 d Blower v. Blower 1521 a Blundell v. Brettargh 103, 1458 a v. Gladstone 891 a Blunden v. Barker 309 Blunt v. Tomlin 763 Boal v. Morgner 1381 Board, &c. Montgomery County v. Elston 64 e Board of Commerce v. Younger 203 g Education v. Edson 1169 Supervisors, &c. v. Henneberry 769 Supervisors v. Her- rington 1520 a Boardman v. Mosman 1284 v. Mostyn 764 v. Thompson 1057 c Boazman v. Johnson 499, 599 Bobb v. Woodward 203 a Bock v. Goppissen 507 Boden v. Dillow 74 d Bodenham v. Purchase 459 a, 459 e, 459/ Bodman v. American Tract Soc. 1170 Bogey v. Shute 918 a Bogle v. Stewart 840 Bogue v. Houlston 939 Bonn v. Headley 425 Boland v. Whitman 193 a Boles v. Bader 1575 a Bolitho v. Hilyar 337 c Boiling v. Doneghy 499 e Bolster v. Catterlin 929 Bolton v. Bolton 653 v. Deane 628, 684 c Duke of, v. Williams 177, 808, 811, 1398 v. Jacks 1060 v. Prentice 1422 v. Ward 646 Bomberger v. Turner 799 a Bonaparte v. Camden and Amboy Railroad Co: 927, 959 6 Bonar v. McDonald 324, 327 a Bond, In re 1338 o v. Bond 228 v. Hays, Ex'r 302 w.Hill 655,6566 v. Hopkins 20, 64 a, 74 d, 529, 903, 975, 1520, 1521 v. Kent 1226 v. Lockwood 518 b v. Simmons 1405, 1415 Bone v. Cook 1284 v. Pollard 1206 Boner v. Montgomery 304 Bonesteel v. Bonesteel 1469 Boney v. Hollingsworth 308 Bonfleld v. Hossel 706 6 Bonner v. Peterson 624 Bonny v. Redgard 422, 424, 1127, 1128 Bononi v. Backhouse 927 a Bonser v. Kinnear 1068 6 v. Cox 326, 560 Booker v. Allen 1118 Boon v. Barnes 1227 Boone v. Chiles 975, 1502, 1520 v. Missouri Iron Co. 749 v. The Hornet 1241 Boosey v. Jeffreys 935 v. Purday 935 Booten v. Scheffer 769, 776 Booth v. Carter 1193 v. Evertson 499 v. Hartley 768 v. Leycester 889 v. Rich 1026 XX11 INDEX TO CASES CITED. Booth v. Vicars 1065 b v. Warrington 1521 Boothby v. Boothby 336 Bootle v. Blundell 571, 572, 1064, 1248 d, 1447 v. Scarisbriek 1074 e Bor v. Bor 1091, 1095 Borell v. Dann 244, 400 a Boren v. Smith 33 Borneman v. Sidlinger 606 a Borr v. Vandall 462 Bosanquet v. Dashwood 239, 298, 300, 302, 303, 446 v. Wray 459 a, 459 d, 459 g, 679 Boschert v. Brown 324 Bostick v. Blakeney 1263 Bostleman v. Bostleman 1201 a Bostock v. Floyer 1268, 1273 e Boston, &c. Co. v. Condit 656, 1062 R.R. v. Bartlett 771 Water-Power Co. o. Gray 1454 Bostwick v. Atkins 317 v. Isbell 831 v. Stiles 89 Bosvill v. Brander 1408, 1410, 1411, 1414 Boswell v. Goodwin 1023 c, 1023 d Boteler v. Allington 996 Botsford v. McLean 147 Bottomley v. Brooke 1436 Bottsford ». Burr 758, 1201, 1201 a, 1202 Boucicault v. Fox 950 Bouck v. Wilber 1458 Boughtonw. Boughton 433, 1077, 1080, 1096 Bouligny v. Fortier 1018 d Boultbee v. Stubbs 226, 234, 449, 883 Boura v. Wright 652 Bourdillon v. Adair 1418 Bourne v. Bourne 790, 1213 a v. Cabot 1056 Boursot v. Savage 977 a Bourtillier v. Tick 1454 BouteUe v. Smith 292 Bouts v. Ellis 607 a Bouverie v. Prentice 621, 622, 684 c Bovey v. Smith 400 a, 1264 Bowaman v. Reeve 565 Bowditch v. Banuelos 976 v. Green 493, 499 v. Soltyk 822 Bowen v. Bowen 1314 v. Clark 876 v. Hoskins 503 v. Largan 550 v. Matheson 292 Bower v. Smith 983 Bowes v. Heaps 331, 335, 337 a v. Law 929 6 v. Strathmore 273 v. Toronto 293 b Bowker v. Bull 502 a, 634 a v. Hunter 1208 Bowles v. Bowles 1065 b v. Orr 895 a, 899, 903 v. Steward 217, 252, 254, 1500 Bowling v. Bowling 704, 846 Bowmaker v. Moore 904 Bowman v. Carruthers 195 v. Floyd 951 d v. Wathen 1520 v. Yeat 622, 684 Bown v. Stenson 769 a Bowser v. Colby 64 e, 1323 Bowsher v. Watkins 840 Bowyer v. Bright 778, 780 v. Pritchard 814 Box v. Allen 924 v. Barrett 180 b, 1086 Boyce's Executor v. Grundy 694 Boyd v. Hunter 746,626 v. Lewis 459 a v. McLean 1201, 1202, 1260 v. Petrie 1027 v. Shorrock 7106 Boyd's Case 1211 Boynton v. Boynton 1098 v. Hazelboom 749 b v. Housler 1198 v. Hubbard 260, 261, 295, 342 to 344 v. Parkhurst 1376 Boyse v. Rossborough 1449 a Brace v. Duchess of Marlborough 413, 414, 416, 419, 421, 436, 506, 1034, 1215 •' v. Wehnert 727 Bracebridge v. Buckley 1321-1323, 1236 a Bracken v. Bently 604, 609 Brackenbury v. Brackenbury 697 Brackett v. Blake 1056 v. Sears 1023 c v. Waite 432 b Bradbury v. Bardin 200 v. Hotten 939 v. The Manchester, &c. Railway Co. 924 Braddick v. Thompson 1452 Braden v. Gardner 1242 Bradford v. Brownjohn 482 v. Marvin 1226 v. Romney 164 d v. Union Bank 152 Bradish v. Gibbs 1370, 1371, 1372, 1380, 1390, 1395 INDEX TO CASES CITED. XX111 Bradley v. Boseley 74 e v. Chester, &c. R. Co. 1027 v. George 1333 b v. Hughes 1384 v. Hunt 607 a, 607 c v. Norton 951 Bradshaw v. Bradshaw 1338, 1355 Bradwin v. Harper 179, 180 Brady v. Waldron 914, 1017 Brady's Appeal 769 Braely v. Crackenthorp 1516 v. Westcott 1394 Braithwaite v. Britain 676, 1127 Bramlet v. Alt 293 Bramwell v. Halcomb 759 a, 934, 939, 940, 959 Branch v. Hurst 239 v. Mitchell 700 Brandao v. Barnett 1253 a Brandley v. Ord 410,419 Brandon v. Brandon 1065 b v. Forest County 203 v. Robinson 974 a, 1392 Brandreth v. Lance 948 Brannan v. Oliver 321 Bransby v. Grantham 1080 Branson v. Kinsie 1026 Brant's Will 566 c, 1088 Brasbridge v. WoodrufEe 1208 Brashier v. Francis 553 v. Gratz 769, 771, 776 v. West 1036, 1036 a, 1037 Brattleboro v. Mead 1190 Breadalbane, Marquis of, v. Chan- dos, Marquis of 895 a Brecknock, &c. Canal Company v. Pritchard 101, 1307 Breedon v. Breedon 1133 Breen u. Seward 1018 d Breese v. Schuler <498 b Bremridge v. Hoare 889 Brent v. Best 488 a Brest v. Offley 1068 Brett v. East India & L. Sh. Co. 793 h v. Green well 1421a Brewer v. Boston Theatre 252, 1252 v. Herbert 64 #, 102, 769, 790 v. Jones 146 v. Marshall 292 v. Pitkin 1036 a v. Wall " 735 Brewster v. Hammett 678 Briant v. Corpening 440 d v. Reed 821 Brice v. Brice 309, 1097 v. Stokes 1281, 1284 Brice's Case 676 Brickenden v. Williams 1061 Bridenbecker v. Lowell 633 Bridge v. Beadon 997 a v. Brown 1354 v. Eggleston 369 v. Hindall 1474 Bridgeman v. Dove 572 v. Gill 1520, 1521 a v. Green 236, 256 Bridger's Case 1538 Bridges v. Longman v. Mitchell 1064 c, 1321 529 Bridgewater, Duke of, v. Edwards Bridgford v. Riddell 1372, 1377 a Bridgman's Trust, In re 1287 Briesch v. McCauley 894 Briggs b. Davis 1023 v. Earl of Oxford 915 Ex parte 400 c v. French 899 v. Jones 1020 v. Penny 1068 a v. Taylor 460 a, 1268 a v. Wilson 1521 b Bright v. Boyd 177, 385, 388, 799 b, 1237, 1238, 1239 v. Bright 763 v. Eynor 184 v. Legerton 1520 c, 1538 Briley v. Suggs 499 6 BrinckerofE v. Lansing 387, 390, 876 v. Lawrence 606 a v. Thalhimer 1025 Brisbane v. Adams 292 v. Dacres 90, 111 Brisben's Appeal 1247 Briscoe v. Power 1025 Bristow v. Skirrow 1061, 1062 a v. Ward 1910 Brittlebank v. Goodwin 1520 a Britton v. Bathurst 90 v. Miller 1065 d v. Twining 1067 b Broadbent v. Barlow 633 v. Imperial Gas Com- pany 925 a Broadhurst v. Balguy 1269, 1284 a Brock v. Barnes 310 Brockenridge v. Holland 321 Brocklehurst v. Jessop 1026 Broderick v. Broderick 191, 196,' 204, 217 Broderick's Will 531 Brodie v. Barry 1096, 1375 a, 1396 Broise v. Pacific Mut. Ins. Co. 115 Brokaw v. Peterson 1065 b Brolasky v. Gally's Executors 1214 a Bromage v. Genning 778 Bromfield, Ex parte 790 Bromley v. Alt 201 XXIV INDEX TO CASES CITED. Bromley v. Holland 64 i, 80 to 82, 85, 692, 696, 698, 700, 700 a v. Miller 1058 v. Smith 61, 298, 300, 302, 337 a, 379 Bronson v. Kinzie 1026 Brook v. Badley 482, 1193 Brookbank v. Kennard 1375 Brooke v. Berry 315 v. Enderby 459 a, 459 g v. Gaily 348 v. Haymes 164 h, 1543 v. Lord Hertford 652, 656 a Brookings v. White 1018 e Brooklyn Wh. L. Co. v. Masury 951 e Brooks v. Brooks 1368 v. Chaplin 763 a v. Chappel 1068 ft ». Curtis 1537 v. Greathed 833 a v. Jennings 99 v. Martin 61 v. Reynolds 540, 547 v. Stolley 74 ft v. Woods 624 Brooksbank v. Smith 1521 a Broome v. Monck 1077 Brophy v. Bellamy 1346 Brotherhood's Case 1539 a Broughton v. Hutt 138 q Broun v. Kennedy 329 6 Brown v. Adams 459/, 1277 g v. Amyott 481 v. Bamford 1384 v. Brewerton 322 v. Brown 555, 607 6, 703, 885, 1065 d, 1080 a, 1087 ft, 1452, 1454, 1496 v. Bulkley . 312 d v. Cassamajor 1289 a v. Clark 1381, 1883 v. Desmond 744 v. Dodbridge 730, 1490 v. Edsall 74 e v. Evans 1452 d v. Gilman 1226 v. Hafi 723, 796, 1469 v. Hammond 1074 a v. Heathcote 1038, 1229 v. Higgs 98, 105 a, 169, 1061, 1061 a, 1068, 1068 a, 1070 v. Hurd 146 v. Joddrell 225, 227 v. Jones 168, 763 v. Kelsey 1166 v. Kennedy • 164 e Browns. Lamphear 138* v. Lawrence 1248 d v. Leach 191, 1016 v. Lee 492, 496 v. Like 1394, 1499 v. Lynch 1262 v. Meeting St. B. Soc. 1191 v. Moore 607 a u. Newell 959 b v. Pacific, &c. Co. 959 m v. Paull 1289 a v. Peck 291 a v. Pitney 1088 v. Pocock 1384 v. Post 316 v. Pring 131, 149 v. Ray 499 t v. Selwin 1209 v. Simpson 1224 v. Tanner 1023 < v. The Monmouthshire Rail- way Company 959, 1562 ». Vermuden 855 v. Wales 704 v. Wright 1273 v. Yeall 1155, 1164 Brown's Appeal 958 a, 959 a Brown's Trust, In re 1023 e Browne v. Savage 408 Brownell v. Brownell 523, 527, 529 Browning v. Morris 298, 300, 302 v. Watkins 821 Brownsmith v. Gilborne 787 Brownsword v. Edwards 1074 c, 1490 Brua's Appeal 303 Bruce v. Bonney 138 I v. Bruce 174 a, 1062 a v. President of Delaware Canal Co. 925 v. Ruler 212 a Bruck i>. Tucker 778 6 Bruin v. Knott 1354 a Brunker, Ex parte 1467, 1468, 1470 Bryan v. Cormick 833 a, 837 v. Cowart 1018 J7. HicksoD 544, 900 v. Robert 710 Bryant v. Carson 1031 ii. Ware 623 Brydges ». Landon 1247 Bryson v Whitehead 292, 722 Bubb v. Yelverton 915 Buecle v. Atleo 542, 544 Buchanan v. Hamilton 1287 w. Rusker 1576 Buck v. Dowley 759, 768 v. Smith 722 17. Swasey 1040, 1206, 1250 17. Warren 1201 c INDEX TO CASES CITED. XXV Buckeridge w. Glassel 1210 Buckland v. Papillon 722 v. Pocknell 1226 Buckle v. Mitchell 352, 426, 693, 742 Buckley v. Howell 175 Buckley's Trust, In re 1365 b Buckmaster v. Harrop 758 to 760 v. Thompson 736 a, 767 Budd v. Long 896 Buden v. Dore 1490 Budge v. Gummow 1273 Buffalow v. Buffalow 238 Buifar v. Bradford 1208 Buffum v. Seaver 677 Buford, W. S. 1039 Bugden v. Bignold 634 a. 1233 a Building Association v. Ashmead 908 Bulare v. Cook 410, 631 Bull Adm'r v. Harris 527 v. Valley Falls Co. Bulkley v. Wilford 219, 310 Bullock v. Adams v. Bennett v. Boyd v. Bommet v. Hubbard v. Menzies v. Narrott Bullpin v. Clarke Buhner v. Hunter v. Jay Bulstrod v. Lechmere Bulteel, Ex parte Bumey v. Annan Bumpus v. Plattner Bunacleugh v. Poolman Bunbury v. Bunbury Bunce v. Gallagher Bunn o. Winthrop 793 a, 793 b 927 321, 1262 776 1074 a 74 e 101, 1307 680 1424, 1426 190 1400, 1401 203/, 371 1065 6 1496 Bunnel v. Witherow Bunse v. Agee Burbank v. Whitney Burch v. Cavanaugh Burchell, Ex parte Burden v. Dean v. Stein v. Sheridan Burdett v. Clay v. Willett Burdjck v. Garrick Burford v. Lenthall Burge v. Burge Burgess v. Burgess i). Lamb v. Wheate 177 729 410 1030 900 700 973, 987 987 a 157 1154 0" 959 m 1338 1408, 1411, 1424 927 1201a 1035 1258 975, 1520 a 1160, 1161, 1188, 1190 994 951a 915, 919 13, 64, 64 g, 1196 b, 1197, 1212, 1217 Burgh v. Burgh Burnam v. Burham Burk v. Brown v. Chrisman Burke v. Anderson v. Green v. Jones v. Parke v. Rogersbn v. Seeley v. Smythe Burk's Appeal Buries v. Popplewell Burleson v. Burleson Burn v. Burn v. Carvalho v. Markham Burnet v. Burnet Burnett v. Saunders Burnham v. Kempton Burns v. Huntingdon Burnside v. Wayman Burpee v. Bunn Burr, Ex'rs of, v. Smith Burr v. Beers v. Sim Burrell v. Dodds Burrough v. Philcox Burroughs v. Elton v. McLain v. McNeill v. State Mut. Co. Burrows v. Jemima v. Lock v. Walls Burt v. Barlow v. Cassety v. Hellyar v. Wilson Burtenshaw v. Gilbert Burton v. Gleason v. Marshall v. Pierpont v. Smith v. Wiley Burwell v. Fauber Bury v. Oppenheim Busen v. Foster Bush v. Western Bushby v. Munday Bushell v. Bushell Butcher v. Buchanan v. Butcher v. Churchill 493 v. Staples Butcher's Benev. Assn. v Bute v. Cunynghame Butler v. Baker 410 650 523 499 d 165 1049 1521 a 1458 323 788 722 735 549 653 161, 162, 164 1040, 1047 607 a 1355 74 a 925/ 499 6 164/ 677 1154 tf- 1016 a' 790 646 169, 1061 a 423 L. Ins. 578 74 d 1400 902 193 322 a 124, 153 694 653 138 I 99 33, 700 959 a 1376, 1380 1216, 1216 a 895, 1574 581 309 a 1572 860 899, 900 397, 1469 134 a 255, 760 499 6, 499 c 763 Cutler 896 499, 559 1080 XXVI INDEX TO CASES CUED. Butler v. Butler 576, 1248 b v. Carter 1520 d v. Cumpston 1401 a v. Freeman 1333, 1339, 1351 to 1353, 1358 v. Gray 1061 v. Haskell 246 v. Hicks 709 v. Huestis 974 v. Miller 1035 c Butman v. Hassey 146 v. Porter 769, 986 Butterworth v. Walker 749 b Buttrick v. Wentworth 1027 Buxton v. James 935 v. Lister 666, 708, 710, 717, 719, 722, 769 Byers v. Domley 653 Byne v. Potter 696 v. Vivian 696, 709 Bynum v. Hill 1246 Byrchell v. Bradford 1263 Byrne v. Edmonds 166 c. C. & A. Railw. v. Stewart 793 a Cabot v. Chrystie 196 Cadbury v. Duval 1132 a v. Smith 1520 b Cadman v. Cadman 1214 a v. Homer 197 Cadogan v. Kennet 352, 353, 359, 362, 369, 955, 956 Cadwallader v. West 221, 246, 314 Cadwallader's Appeal 771 Cafe v. Bent 604 Cafiey v. MeMichael 1355 Cafirey v. Darby 465, 1284 Cage v. Cassidy 896 v. Russell 1315, 1320 Caillard v. Estwick 367 Cain ». Warford 238 Caines v. Lessee of Grant 1206 Cairns v. Colburn 1201 c Calcraft v. Roebuck 777 Caldicott v. Harrison 1065 c CaldweE i£ Ball 64 c v. Baylis 917 v. Creswell 482 v. Renfrew 987 a v. Van Vlissengin 934 v. Wentworth 459 a, 459 g Caledonia Railway Co. v. Sprot 927 a &c. Railway Co. v. Hel- ensburgh Trustees 293 c Calhoun v. Calhoun 1355, 1393 Calkins v- Lockwood 1040 Call v. Caleff 1048 a Callaghan v. Callaghan 706, 793 a, 973, 973 b, 1040 c Callahan v. Boazman 459 b v. DonnoUy 292 Callisher v. Forbes 1023 e, 1040 e Calloway v. Witherspoon 230 Calmady v. Calmady 640, 654 Calvert v. Aldrich 505, 1235 Camblos v. Phil. R.R. Co. 861 Camden M. Ins. Assn. v. Jones 1088 a, 1097 Camden, &c. R.R. v. Stewart 767 Camp v. Bostwick 498 b v. Elston 700 v. Pace 33 Campau v. Campau 653 Campbell v. Bainbridge 983 v. Bank of Charleston 531 v. Bedder 1035 c v. Campbell 64 e, 655, 1123 b v. Dearborn 1018, 1231 d v. Dent 459 g v. French 179, 182, 1418 v. Henry 1227 v. Hicks 771 v. Hodgson 459 a v. Home 255 v. Ingilby 138 q, 1080 a v. Ketcham 231 v. Macomb 633, 641 v. Mesier 469, 493 v. Moulton 325 a v. Mullett 675, 676, 1253 v. Radnor 1184 v. Scott 939, 940 v. Shrum 1248 a v. Twemlow 1455 v. Walker 321, 322 v. Wallace 1058 Campion v. Cotton 372 a Canal Bank v. Bank of Albany 140 Cane v. Lord Allen 311, 322 Canedy v. Marcy 138/ Canham v. Jones 951 a Cann v. Cann 112, 113, 120, 124, 129, 130 to 132, 184, 345, 1507 CanneE v. Buckle 136, 739, 740, 1368, 1370, 1390 Cannon v. Copeland 543 a, 799 a, 1237 v. Johnson 658 a v. McNab 64 i, 691, 1018, 1481 Canterbury, Archb'p of, v. House 537 v. Wills 536, 537 Canton Co. v. Northern, &c. R.R. 736 c Capel v. Butler 326 INDEX TO CASES CITED. X3CV11 Capel b. Girdler 1001 Caperton v. Landcraft 959 m Capp v. Stewart 1400 Capper v. Harris 724 Capps v. Holt 737 a Capron v. Attleborough Bank 1027 Carden v. Butler 1314 Carder v. Com'rs of Fayette County 1088 Cardiff «. Cardiff W. Co. 925 d Cardigan v. Curzon-Howe 988 Carew ». Rutherford 292 Carew's Case 214, 215 Carey v. Askew 603, 1096 v. Wilcox 1458 a Carley v. Lewis 120 Carlisle v. Cooper 924 a, 925 d, 926, 1520 Carlisle, Corp. of, v. Wilson 67, 442, 450, 452, 455, 457 Carlton v. Earl of Dorset 273 v. Leighton 1021, 1040 6 v. Salem 33, 61, 893 a, 959 m Carmichael v. Hughes 1354 a Carmore, Heir of, v. Park 419 Carnan v. Bowles 941 Carncross v. Lorimer 1544 Carnes c. Xesbit 1318 Carny v. Palmer 369 Carpenter v. Am. Ins. Co. 193 v. Bowen 502 v. Carpenter 361 v. Cushman 975 v. Danforth 229 b v. Elliot 239 n. Herriot 309 a v. Ins. Co. 722, 724 a v. Lockhart 1318 v. Miller 1068 6, 1183 v. Mitchell 1217, 1400 v. Muren 370 Carr v. Carr 1018 v. Duvall 767 v. Estabrooke 1092, 1122, 1419, 1426 Ex parte 193 v. Holliday 228 v. Passaic, &c. Co. 767 v. Rising 1018 b v. Silloway 607 a v. Taylor 1414 Carrell v. Potter 788 Carrick v. Ford 1404 Carrico v. Farmers', &c. Bank 1226 Carriers' Company v. Corbett 927 b Carrington v. Holabaird 888, 1574 Carrodus v. Sharp 769 a Carroll v. Wilson 796 Carson v. Carson 1065 b Carson v. Phelps 973 Carswell v. Spencer 534 Carter v. Balfour 1154 c v. Barnardiston 571 v. Barnes 164/ v. Carter 172, 983, 1020, 1408, 1428 Ex parte 1022 v. Neal 1233 v. Palmer 311, 1211 a v. Sims 1227 v. Taggert 1384, 1418 v. Taylor 653 v. United Ins. Co. 1057 o, 1057 6 v. White '983 v. Williams 400 b, 956 a, 1018 6 Carteret, Lord, v. Paschal 1040 v. Petty 1292, 1298 Cartwright v. Green 1496 v. Hateley 74 a v. Pettus 1292, 1298 v. Poultney 653, 658 Carralho v. Burn 1038 Carver v. Bowles 1100, 1111 t>. Richards 174 a, 777, 779 Carville v. Carville 1060 Cary b. Abbott 11*68 v. Bertie 511, 1143, 1147, 1190, 1306, 1315, 1319, 1328, 1334, 1362 v. Cary 1070 v. Faden 940, 941 v. Goodinge 1208 Casady v. Scallen 769 Casburne v. Inglis 1013, 1015, 1016 Case v. Dennison 607 a v. Fishbock 80 v. James 1273 e v. Phelps 361 Cash v. Earnshaw 673 Cassedy v. Jackson 1048 Castelli v. Cook 957 Castle v. Bader 1575 a v. Castle 1289 a v. Wilkinson 735 Castleton b. Fanshaw 1521 a Castrique v. Behrens 1582 a v. Imrie 1582 a Caswell b. Hill 1401 i Catchside v. Ovington 537 Catchcart o. Robinson 352, 362, 432, 669, 723, 750 a, 751, 796, 1716 Catlin v. Fletcher 440 c v. Valentine 924 a Caton b. Caton 762, 987 a, 1522 b Cator b. Bolinbroke 1228 xx vm INDEX TO CASES CITED. Cator v. Cooley 402 Catt v. Tourle 292, 876 a, 958 a Cauley v. Lawson 986 Caulk v. Fox 083 Cavan, Lady, v. Pulteney 1083, 1985 Cavendish v. 1454 Caverley v. Williams 141, 144, 152, 777 Cawdor v. Lewis 385, 1237, 1436, 1437 a Cecil v. Butcher 433 v. Juxen 1387 v. Plaistow 324 Center, &c. Co. v. Black 959 a Central R.R. & B. Co., Georgia, v. Prileau 959 h Central R.R. Co. v. Collins 959 m, 1559 Central R.R. of Venezuela v. Kisch 200 a, 400 c Chadwick p. Doleman 433 v. Turner 398, 1020 Chaffin v. Kimball 428 Chalie v. Pickering 891 Chalk v. Wyatt 924 a, 927 Chalmers v. North 604 a v. Storil 1088 a, 1098 Chamberlain v. Agar 256, 781 v. Chamberlain 90, 781 v. Knapp 1504 v. Meeder 1021 a Chamberlayne v. Brockett 1170 a, 1194 # V. P rimm er 912 Chambers v. Brailsford 1065 b v. Crabbe 273, 337 d v. Livermore 769 v. Minchin 181, 1281, 1284 v. Perry 1361 Chamblin v. Schhchter 700 Champernoon v. Gubbs 684 c, 686 Champion v. Brown 499, 730, 783 to 785,788,789,850,1217, 1228 v. Wenham 252, 1451, 1454 Champlin v. Laytin 1382 e Champney v. Blanchard 607 c p. Cope 1018 e Chaucey v. May 671 Chancey's Case 1120, 1122 Chandler v. Dyer 419 v. Rider 1062 Chandless v. Price 1067 b Chandos v. Brownlow 397 Chandos, Duke of, v. Talbot 783, 1040 Chapel v. Clapp 369 Chapin v. First Uniyersalist So- ciety 1062 v. Waters 1246 Chaplin v. Chaplin 488, 571, 1103, 1109 v. Holmes 653 Chapman ». Beach 673 v. Beardsley 1231 c v. Brown 1156 v. Chapman 33, 794 a, 1200 v. Coats 141 v. Derby 1435 v. Evans 680 v. Hurd 153, 166 v. Kellogg 1370 v. Koops 677 v. Railroads 1552 v. Reynolds 1074 d v. Tanner 1220, 1228 Chappedelaine v. Dechenaux 523 Chappell v. Akin 836 v. Cox 896 v. Davidson 951 o v. Shread 951 a Charge v. Goodyer 1065 b Charles v. Coker 1382 Charles River Bridge v. Warren Bridge 33, 1569 Charlton v. Coombes 291 c v. Earl of Durham 1280 o v. Leighton 1021, 1040 6 v. Low 998 v. Poulter 669 v. Wright 522 a Charnley v. Hansbury 764 Chase v. Barrett 105 v. Cheney 959 m v. McLellan 1018 c v. Redding 607 d v. Walters 370 v. Westmore 506, 1216, 1453 to 1455 v. Woodbury 1333 b Chasemore v. Richards 927 o Chastain v. Smith 760 Chatham v. Niles 523 v. Hoare 254, 257 Chauncy v. Graydon 287 Chauntler's Claim 1034 Chautauque County Bank v. White 385 Chavany v. Van Somers 668 Cheale ». Kenward 724 a Chedworth v. Edwards 468, 623, 907, 955, 1210 Cheek v. Tilley 829 Cheeseborough v. Millard 469, 483, 484, 493, 494, 499, 499 a, 499 c, 501, 502, 559, 562, 569, 633, 636, 638 Cheesman, Ex parte 1241 Cheetham v. Crook 1436, 1437 v. Ward 112 INDEX TO CASES CITED. XXIX Cheever v. Rutland, &c. E.R. 1016 v. Perley 1028 b, 1520 v. Wilson 1393, 1578 Chennell v. Churchman 700 Cherrington v. Abrey 926 Cherry b. Bonetbee 1437 v. Monro 64 d v. Stein 927 a Cherteey Market, In re 1191 Cheslyn t>. Dalby 310, 1451 Chesman v. Nainby 294 Chesslvn v. Smith 1396 Chester v. Chester 1193 v. Willis 1055 b Chesterfield v. Boulton 101 p. Janssen 134, 184, 187, 188, 190, 192, 244, 260, 294, 298, 300, 306, 322, 331 to 334, 336, 337, 341, 342, 345, 379 Chesterman v. Gardner 400 Chetham v. Hoare 1521 a Chetwood v. Brittan 161 Chichester's Executor v. Vass's Administrator 71 Chichester v. Coventry 1110 Chicot v. Duquesne 1450, 1452, 1500 Chilcot v. Bromley 1065 6 Child v. Comber 753, 756 v. Douglas 956, 1533 p. Mann 820 b, 821 v. Pearl 1372 Childs v. Connor 361 v. Dolan 799 a, 1027 Childers v. Childers 1200 Chilliner v. Chilliner 715 Chilton v. Bobbins 502 b Ching v. Ching 1455 Chipman v. Coats 141 v. Morrill 493 Chisolm v. Gadsden 192 Chiswell v. Morris 632 Chitty v. Parker 790, 1200, 1214, 1247 v. Williams 1247 Cholmondeley v. Ashburton 1065 6 Marquis of, v. Lord Clinton 64 a, 952, 975, 1013, 1028 a, 1049, 1520 v. Oxford 1514 Christian v. Austin 1226 v. Cabell 777 Christie v. Craig 957 v. Hale 896 Christmas v. Oliver 1040 Christophers v. Sparks 1028 b Christ's College, Case of 1171 Christ's Hospital v. Hawes 1171 Chubb v. Peckham 769, 793 m Chubb v. Stretch 1398 Chudleigh's Case 968, 991 Chumley, Ex parte 1364 Church v. Mar. Ins. Co. 315 v. Ruland 410, 1198, 1265 v. Walrath 1318 Churchill v. Churchill 1123 c v. Lady Hobson 1820, 1821 v. Roger 144 v. Wells 361 Churchman v. Ireland 1094 Churton v. Douglas 667, 951 d Cincinnati, &c. R.R. ». Wash- burn 729 Cipperly v. Cipperly 1205, 1206 v. Rhodes 252 Circuit v. Perry 1074 6 City Banks. Bangs 822, 824 Cifrjr of London v. Levy 1483 r. Mitford 1324 v. Nash 725, 742, 798 v. Perkins 856 v. Pugh 721 City of Maquoketa v. Willey 326 City, &c. Ins. Co. v. Olmsted 730 Clack v. Calon 1277 e Claggett v. Kilbourne 677 Claucarty v. Latouche 528 Clanricarde v. Henning 310 Clapton v. Martin 152 Clare v. Clare 1067 b v. Earl of Bedford 385, 390 Clarendon, Earl of, v. Barbara 560, 574, 576 v. Hornby 654, 657 Claridge v. Hoare 1494 Claringbold v. Curtis 722 Clark v. Anderson 974 a v. Bogardus 1100 v. Clark 721, 842 to 845 a, 951 e, 1201, 1280 a, 1283, 1341 v. Cost 1434, 1436 a v. Covenant 700 v. Flint 724 v. Freeman 948 a, 951 v. Garfield 1274 v. Guise 1077, 1080, 1086 p. Hart 1541 v. Hogle 546 v. Jefiersonville, &c. R.R. Co. 928 v. Jones 33 v. Kreig 361 v. Lord Abington 1316 a v. Malpas 337 b, 694 a v. Martin 737 v. May 1016 c v. Perrain 296 INDEX TO CASES CITED. Clark ». Pistor v. Price v. River (Lord) v. Royle v. Sewell v. Valentine v. Ward v. Willett v. Williams v. Wright Clarke v. Bancroft v. Byne v. Clark v. Cordis v. Dutcher v. Grant v. Henty v. Milton v. Johnston v. Ormond 1396 958, 959 a 793 n 1227, 1233 iioo, yoi 1400 229 928 499 e, 502 a 762, 765 633 811 927 6, 929 c 1065 6 111 161, 770 883, 904 1200, 1208 543 a 549, 550, 890 v. Parker 257, 279, 284, 286, 287, 290, 291 v. Richards 1207 a v. Tipping 462, 465, 523, 1270 Clarke's Executors v. Van Reims- dyk 1528 Clarkson v. Earl of Scarboro' 482 v. Hanway 235, 236 v. Morris 255 Classon v. Bailey 736 a ». Morris 88, 499, 638 Clavering v , Clavering 433 v. Westley 684 Clavering's Case 1476, 1477 Clay, Ex parte 675 v. Brittingham 1357 v. Pennington 1354, 1355 v. Sharp 1027 v. Willis 552 Clayton v. Bussey 138 I v. Frazier 735 v. Freet 112, 113 Cleeve v. Mahoney 925 c Clegg v. Edmonson 323 Cleghorn v. Insurance Bank 675 Cleland, Ex parte 1233 6 v. Hedley 1452 a Clemens v. Clemens 61, 371 Clement v. Maddick 951 d v. Wheeler 915 Clements v. Hall 323, 1535 v. Moore 369 v. Welles 927 Clemmons v. Drew 164 a Clemow v. Geach 1543 Clemson v. Davidson 1047 Clere's Case 1062 a Clergy Society, In re 180 a Clerk v. Clerk 225, 229 a v. Miller 1401 Cleveland v. Citizens' Gas Light Co. 927 e Cleveland Ins. Co. v. Reed 315 Cleverden v. Webb 184 Cleverley v. Cleverley 890 Click v. Click 1201 Clifford o. Brooke 33, 794 v. Francis 1770 v. Lewis 1246 Clifton v. Burt 561, 562, 565, 566, 569, 633 v. Levor 1523 a, 1573 Climer v. Hovey 158, 161, 769 Climie v. Wood 710 b Clinan v. Cooke 153, 161, 759 to 761, 764, 765, 767, 770, 797 Clinch ». Financial Corporation 440 a, 1493 e, 1560 Clinton v. Hooper 1373 v. Myers 4 Clippinger v. Hepbaugh 293 b Clive v. Carew 1080 b v. Clive 480 Clopton v. Butman 1065 b Closs v. Bopp 1201 b Cloud v. Clinkenbeard 1122 Clough v. Bond 1269 v. Clough 607 a v. Ratcliffe 62 Clouston v. Sherer 33, 700 Clowes v. Dickenson 1233 a v. Ganaway 793 i v. Higginson 134, 153, 156, 158, 161, 742 v. Staffordshire, P. W. Co. 927 Cloyne v. Young 1208 dun's Case 475 Coale if. Merryman 157 Coats v. Clarence Railway Co. 926 v. Holbrook 951, 951 a Cobbett v. Woodward 942 Cobethorn v. Williams 44 Cochran v. McCleary 959 m v. Wimberly 1228 Cochrane v. Chambers 367 Cock v. Donovan 1514 v. Ravie 1474 v. Richards 274, 275 Cockburn v. Thompson 671 v. Peel 1269 a Cockcroft v. Sutcliffa 255 Cocke v. Bailey 1228 Cockerill v. Cholmeley 137 Cocks v. Chandler 951 v. Foley 87, 284 v. Izard 293 a v. Manners 1193 INDEX TO CASES CITED. XXXI Cocks v. Purday 935 Cocksedge v. Cocksedge 1420 Cockshott v. Bennett 379 Codd v. Codd 1476 Codrington v. Lindsay 1080 a, 1088, 1093 v. Parker 837 Coe v. Lake Co. 925 a Coe's Trust, In re 1365 a Coffee v. Neely 252 Coffeen v. Branton 951 a Coffin v. Elliott 1074 b v. Loper 655 Cogan v. Duffield 985 Coham v. Coham 1338 a Cohen v. Meyers 829 v. N. Y. M. L. Ins. Co. 1314 v. Sharp 700 v. Whaley 1269 a v. Wilkinson 1559 Coil v. Pittsburg Fern. Col. 191 Coker v. Birge 926 a Colbert v. Daniel 543 a Colburn v. Simms 623, 933 Colchester, Mayor of, v. Lowton 700 v. Stamford 559 Colclough v. Sterum 1132 Cole v. Cole 759 v. Gibbons 306,331,335,339, 345 v. Gibson 263, 266, 306, 345 v. Pilkinton 761 v. Bobbins 230, 231 v. Scott 1226 Silver Mining Co. v. Vir- ginia, &c. Water Co. 861 v. Wade 1061 v. Warden 553 v. White 763 Coleman v. Britain 1502 v. Eastern Counties Rail- way Co. 1559 v. Frazer 229 b v. Wathen 941 a v. Winch 418 v. Wooley 1400 Coles v. Jones 1047 v. Sims 400 a, 956, 1318, 1533 v. Trecothick 760 Colesworth v. Brangwin 1208 Colgate's Ex'r v. Colgate 1088 Collet v. Jaques 87, 284 Collier v. Jenkins 778 v. Mason 769 a v. McBean 771, 777 a v. Plumb 736 «. Slaughter 291 b Collier's Will 1062 a Collins v. Archer 64 c, 630, 631 Collins v. Blantern 298 v. Cave 190 J v. Hare 331 v. Lewis 565, 571 v. Wood 1088 a v. Vanderbelt 1452 a Collins Company v. Brown 951c v. Cowen 951 c Collinson v. Lister 400 b v. Pattrick 793 a, 973, 1040 e Collinson's Case 1146, 1152, 1171, 1172 Collyer v. Fallon 1040 d, 1044, 1057, 1231 Colman v. Crocker 375 v. Duke of St. Albans 1017 b. Sarrel 433, 633, 698, 706 a, 793 a, 973, 987 Colmer v. Colmer 1424, 1425 Colson v. Thompson 764, 767, 771 Colsten's Heirs v. Chandet 1062 Colt v. jSTetterville 33, 711, 724 a v. Wollaston 33, 184 Colton v. Thomas 951 Columbia County v. Bryson 893 v. Chichester 724 Columbine v. Penhall 372 a Columbus, &c. R.R. v. Watson 729 Colville v. Middleton 1247 a Colwell v. Lawrence 1318 v. May's Landing, &c. Co. 928 v. Warner 166 Colyer v. Clay 142 v. Langford 1574 Colyear v. Mulgrave, Countess of, 793 d, 973, 1040 c, 1223 Combe v. Jordan 1132 Coming, Ex parte 1020 Comm'l Bank v. Cunningham 408 a v. Reserve Bank 499, 1233 a v. Wilkins 675 Commercial Mut. Ins. Co. v. Mc- Loon 700 a Commonwealth v. Briggs 1341 v. Eagle Fire Ins. Co. 1268 a, 1275, • 1277, 1280 v. Stauffer 285, 288, 291 b v. Smith 33 v. Wright 921 Company v. Perley 164 ft Compton, Lord, v. Oxenden 790, 1035 6 Comstock v. Clemens 896 v. Comstock 309 a v. Henneberry 33 11 INDEX TO CASES CITED. Comstock v. Johnson 64 e Conant v. Frary 675 Condict v. King 822 Condit v. Blaokwell 315, 316 Condley v. Parsons 293 Conduit v. Soane 1365 b Congress, &c. Spring Co. o. High Rock, &o. Co. Conington's Will, In re Conklin v. Conklin Connecticut v. Jackson Connelly v. Connelly Conner v. Drake Connery v. Swift Conover v. Hill v. Van Mater v. Wardell Conrad v. Atlantic Ins. Co v. Harrison Consequa v. Fanning v. Willings Consolidated Inv. & Ins. Riley Constantine v. Blache Converse v. Ferre Conway v. Kinsworthy Conyers v. Abergavenny Conyngham's Appeal Cood v. Cood Cook v. Addison v. Barr v. Bean v. Bell v. Clayworth b. Cook v. Coolingridge v. Craft v. Dawson v. Duckingfield v. Earl of Rosslyn Ex parte v. Finch v. Fountain v. Hutchinson Co. 951 1307 a 655 1277 1428 a 671 1572 497 410 769 1258 633 523 140 v. 1035 a 379 1235 771 855 464 1520 d 1277^ 972 777 1056 230 to 232 • 624 320 799 a, 1237 1064 c, 1247 1191 820 a 675 lbl8 1195 1196 a, 1202 to 1204 v. Johnson 361 v. Martin 862 v. Mayor, &c. of Bath 927 e v. Walker 1208 Cooke v. [ ] 498 v. Cholmondeley 1447 v. Clayworth ' 693, 1528 v. Cooke 670 v. Forbes 927 e v. Moore 654 v. Nathan 137 v. Turner 1447 Cookes v. Hellier 88, 1096 Cookney v. Anderson 683 a Cookson v. Ellison Cooley v. Rankin Coomb, Ex parte Coomes v. Elling Cooney v. Woodburn Coope v. Carter v. Twynham Cooper v. Bigley v. Cart wright v. Cooper v. Denne v. De Tastet v. Evans v. Gordon v. Hubbuch v. Kynock v. Martin v. Pena 1499 230 1020 1378 1383 1284 6 497 a, 498 404 1016 e 255, 1091 749 816 to 818 495, 502 c 929 929 6 983 174 6, 175 769 v. Phibbs 111, 116, 120, 124, 130, 138 g v. Reilly 1040/ v. Remsen 291 d v. Spottiswoode 1126 v. Tappan 301 v. Tyler 896 Cooth v. Jackson 294, 362, 757, 758, 765, 766, 1528 Cope v. Cope 571, 576 v. Doherty 491 a v. Wilmot 1064 a Copeman v. Gallant 1259 Copis v. Middleton 244, 246, 353 to 355, 360, 363, 493, 499, 499 6, 499 c, 499 d Copland v. Toulman 459 a Copley v. Copley 1111 Copp v. Sawyer 607 c Coppage v. Barnett 428 Coppin v. Coppin 111, 1226 Coppinger v. Fernyhough 90 Coppock v. Bower 293 b Coquillard v. Suydam 463, 464 Corbet v. Barker 1028 a, 1029 b v. Tottenham 1354 Corbett v. Poelnitz 1400 Corbett's Trusts 604 a Corbin v. Tracy 729 Corby v. Bean 64 e, 74 b Corbyn v French 1182 Cordel v. Noden 1208 Cordova v. Hood 1220 Corder v. Morgan 1027 Cord will v. Mackrill 400 a Corking v. Pratt 120, 124, 140, 309 Corley v. Lord Stafford 310, 312 a Corn Exchange Ins. Co. v. Bab- cock 1400 Corneforth v. Geer 125, 1453 Cornell v. Hall 1018 6 Cornfoot v. Fowke 193 a Corning, Ex parte 1020 v. Lowerre 924, 927 v. Troy J. &N. Factory 929 6 Cornish v. Clark 361 v. Lanner 806 Cornwall v. Cornwall 571, 674 Corporation of Burford v. Lenthall 1188, 1336 Carlisle v. Wilson 855 Hythe v. East 799 Ludlow v. Green- house 794 a, 1147, 1154 a, 1163 New York v. Mapes 925, 935 Corson v. Mulvany 736 a, 769, 793 s, 793 t Cortelyou v. Lansing 1008, 1019, 1030 to 1033 Corwine v. Corwine's Ex'rs 1246, 1247 Cory v. Cory 124, 132, 232, 239 Cosens v. Bognor R.R. Co. 927, 1231 6 Coslake v. Till 722, 776 Cothay v. Sydenham 393 Cottam v. Eastern Co. Railw. 1277 b Cotter v. Layer Cotterell v. Homer Cottin v. Blane Cottington v. Fletcher 1390 353, 452 755, 756, 758, 1101 1065 b, 1370 710 6 433 925 1447 1201c 910 771, 1520 925, 995 955 a 799 a Earl Cotton v. Cotton Ex parte v. King v. Mississippi, &c. v. Wilson v. Wood Coulson v. Harris v. Walton v. White Coulter v. Munn Coulter's Case Countess of Harrington v, of Harrington y»a Court v. Jeffrey 1398 Courtenay v. Goodshall 130, 396, 401, 402, 404, 457, 458 Courthope v. Maplesden 928, 929 Coutant v. Schuyler 607 c Coutts v. Acworth 706 6, 1091 v. Walker 1216 a Covell v. Cole 779 Covenhoven v. Shuler 604, 845, 845 a Coventry v. Burslen 519 v. Coventry 575, 1249 v. Hall 512 Coverdale v. Eastwood 987 a Cowdry v. Day 812 a Cowell v. Edwards 496 EQ. JUR. — VOL. I. ISES CITED. xxxm Cowell v. Gatcombe 1277 6 v. Simpson 1222, 1226 v. Sykes Cowen v. Milner 676 306 Cowes v. Higginson 134 Cowles v. Gale 776 v. Whitman 709, 724 Cowling v. Cowling 1074 d Cowper v. Baker 929 v. Clerk 856, 857 v. Cowper 13, 19 , 63, 64 a, 64 6, 254 Cowtan v. Williams 811 Coxu. Bishop 684 v. Boyd 769 v. Clift 700 a v. Corkendall 566 c v. Cox 482 v. Dolman 1521a v. Fenwick 1227 v. Higford 1326 a v. Land, &c. Co. 942 v. McBurney 674 v. Mobile, &c. R.R. 896 v. Parker 1296 6 v. Smith 650, 658 v. Toole 1027 a v. Tyson 327 Cox's Creditors' Case 547 Lady, Case 347 Coxe v. Bassett 1115 v. Bateman 1286 Coy v. Coy Crabb v. Crabb 400 1205 Crabtree v. Bramble 64 g v. Poole 788, 1050 Cradock v. Piper 633 Craft v. Jackson County 959 m v. Lathrop v. Rolland 900 1400 v. Thompson 1452 Cragg v. Franklin County 1164 v. Holme 232 v. Hulchizer 681 Craig v. Leslie 64 g, 790 792, 793, 1212, 1245 v. Parkis 1047 a v. People 923 Crakelt v. Bethune 1236 Crallan v. Oulton 1521 a, 1521 6 Cram v. Mitchell 316, 322 Crane t>. Burntrager 812 v. Conklin 231 v. Drake 1129 v. Hancks 89 v. McCoy 831, 959 m Cranmer, Ex parte 1365 Cranston v. Crane 1027 v. Plumb 847 XXXIV INDEX TO CASES CITED. Cranstown v. Johnston 743, 744, 899, 1293, 1294 Crassen v. Swoveland 1018 b Craven v. Brady 291 c v. Winter 973 Crawford v. Austin 370 v. Fisher 808, 817 a v. Russell 265 v. Summers 88 v. Wick 292, 763 Crawshay v. Collins 672, 676 6, 1457 v. Maule 653 a, 666, 672 v. Thornton 801, 802, 806, 812, 817, 817 a, 818, 820 Cray v. Mansfield 315 v. Willis 602 Craythorne v. Swinburn 493, 495, 496, 498, 499, 499 b, 499 c Creagh v. Blood 223 Creath v. Sims 529 Creed v. Scraggs 64 e Creely v. Bay State Brick Co. 929 b Cresswell v. Cresswell 1193 Creuse v. Orbey Hunter 1341 Crevier v. Mayor, &c. of N. T. . 700 Crews v. Burcham 901 a Cripps v. Jee 1199 Crisp, Ex patte 493,499 6 Crispell v. Dubois 309, 314 Crockett ». Crockett 1289 a Crockford v. Alexander 928, 929 Croft v. Day 951 a v. Goldsmid 1321 v. Graham 694 a v. Powell 1027 v. Wilbar 987 a Croft's Ex'r v. Lyndsey 90, 878 Crofts v. Middleton 138 g v. Moore 499 6, 499 d Cromie's Heirs v. Louisville, &c. Soc. 1168 Crompton v. Pratt 459 b, 1021 a Cromwell v. Brooklyn F. Ins. Co. 1250 Cronk v. Trumble 760 Cronkright v. Haulenbeck 624 Crook v. Brooking 972 v. Corporation of Seaford 736 c, 1537 v. Glenn 1520, 1520 a v. Turpin 1412 v. Whitley 1065 c Crooke v. Andrews 700 v. De Vandes 1067, 1067 a Crookes v. Petter 941 a Croome v. Lediard 1531 Crop Norton ' 1201, 1201 a Crosbie v. Free 1415 v. Guion 673 a Crosbie v. McDonal 787 Crosby v. Church 1400 v. Middleton 153, 164 v. Murray 1077 v. Taylor 1035 c Crosier v. Acer 125 Crosley v. Marriot 1470 Cross v. Addenbroke 790 v. Morristown 928 Crosse v. Smith 90, 868, 1281, 1283 Crosskill v. Bower 1277 e Crossley v. Clare 1065 6 v. Derby Gas-Light Com- pany 934 v. Elworthy 360, 362 a Crossling v. Crossling 170 Crossman v. Crossman 972 Croston v. Baynes 755 Croton Turnpike Co. v. Kyder 927 Crousilat v. McCall 242, 448 Crowder «. Tinkler 923, 925 Crowe v. Ballard 239, 306, 315, 344, 345 Crowfoot v. Gurney 1045, 1049 Croxton v. May 1417 Croyston v. Baynes 755 Crubb v. Bray 321 Cruger v. Cruger 1395 v. Douglas 1395, 1428 a v. McLaury 475 a Cruikshank v. Duffin 1027 v. Kobarts 841, 900 Crura v. Thornley 606 Crumb, Ex parte 1339 Crump v. Lambert 927 e Cruse v. Barley 793, 1200, 1212, 1214 v. Paine 724 b Crutcher v. Hord 1198 Crutterell v. Lye 292 Cruwys v. Colman 964, 1065 b, 1071 Cud v. Rutter 711, 717, 724, 724 a, 798, 799 Cuff v. Dorland 749 e, 793 n, 793 t Cull v. ShoweU 1093 Cullingsworth v. Loyd 379 Cullwick v. Swindell 710 b Culpepper v. Aston 505 Cumberland v. Codrington 576, 972, 1037, 1248 b Cumberland Coal and Iron Co. u. Sherman 322 a Cumberland Valley Railway v. McLanahan 1549 Cumberland Valley R.R. Co.'s Appeal 959 m, 1558 Cummings v. Cummings 1088 a v. Thompson 193 a Cunard u. Atlantic Ins. Co. 1210 INDEX TO CASES CITED. TXX V Cunningham v. Dwyer 372 6 v. Plunkett 706 a v. Taylor 896 Cuppy v. Hixon 760, 761 Curlin v. Hendricks 787 Curling v. May 790 Curnick v. Tucker 1068 b Curran v. Holyoke Water Co. 735 Curre v. Bowyer 1214 a Currie v. Goold 111 Currier v. Esty 1572 v. Howard 788 Curson v. African Co. 1252, 1436 Curtis v. Auber 1055 v. Buckingham, Marquis of 953 r>. Curtis 511, 512, 624, 626, 628, 684 c, 1347 a v. Hutton 1180, 1184 v. Perry 177, 297 v. Price 371 v. Rippon 1070, 1072, 1073, 1338 v. Smallridge 895 v. Smith 975 o Cushing v. Drew 1318 v. Townshend 342, 344 Cushman v. Wooster 1456 a Cutler o. Coxeter 1131 v. Powell 471 v. Tuttle 298, 1201, 1201 c Cutter v. Emery 498 Cutting v. Carter 1452 6, 1452 c, 1574 Cuyler v. Brandt 400 v. Ellsworth 499 b v. Ferrill 653 D. Dabbs v. Nugent 442 a Da Costa, or Villa Real «. Mellish 1338, 1340 v. De Pas 1164, 1168, 1190 v. Jones 294 Dailey v. Litchfield 715 v. Wynn 883 Dakins v. Berisford 1383 Dalbiac v. Dalbiac 220, 243, 252 Dalby v. Pullen 778 Dale v. Cooke 1434, 1437 v. Lincoln 1375 v. Sollett 1434 Dalglish v. Jarvie 874 Dally v. Wonham 329 a Dalton v. Coatsworth 84, 184, 252, ' 254 r. Currier 370 v. Lemburth 1572 v. Poole 64 Daly v. Kelly 908, 953 v. Palmer 939 v. Sheriff 900 Dalzell v. Welsh 1065 6 Dame Burg's Case 381 Dame v. Mallory 1030 Damschroeder v. Thias 187 Darner's Case 1171 Damonth v. Klock 700 Danbury & Nbrwalk Railway v. Wilson 1558 Danbury v. Robinson 1503 6 Dand v. Valentine 925 Danforth v. Streeter 1057 c Daniel v. Dudley 1065 6 v. Frazer 769 v. Green 74 b, 653 o. Kent 400 v. Newton 1353 ». Skipwith 1026 Daniell v. Mitchell 140 Daniels v. Davidson 400, 788, 1217 Dankel v. Hunter 1400 Danklessen v. Braynard 1040 g Danvers v. Manning 179, 180 Danzeisen's App. 1018 Darbey v. Whitaker 670 Darby v. Darby 653 a, 674 D'Arcey v. Blake 626, 629, 974 Darcey v. Chute 1371 Darden v. Cowper 466 Dare Valley Railway Company, In re 1456 a Darke v. Williamson 1020 a Darley v. Darley 1372, 1380 to 1382 v. Martin 1069 b Darling v. Gunn 959 o Darlington v. Pultney 95, 170, 171, 177 Darnell v. Rowland 238 Darnley v. L. & C. Railw. Co. 778 d Darrel v. Pritchard 749 c, 929 b Dart v. Hercules 1237 v. Orme 700 Darthez v. Clemens 458 a, 459 v. Winter 821 Dartmouth College v. Woodward 1569 Earl of, v. Howe 610 Darvill v. Terry ' 369 Dashwood v. Bithazey 1026 v. Peyton 1068 a, 1085, 1086 Daubeny v. Cockburn 381 Daubigny v. Davallan 1495 Daun v. City, &c. Co. 1023 c Davenport v. Davenport 1364 a v. Mason 765 v. Rylands 799 v. Stafford 252 Davers v. Dewes 1208 xxxn INDEX TO CASES CITED. Davey v. Durant David v. Park Davidson v. Barclay v. Carroll v. Greer v. Isham v. Little Davie v. Beardsham v. Verelst 1027 a 200 a 799 b, 1237 499 d 157 926 a 769 789 1514 Davies v. Austen 64 c, 422 c, 1035 a v. Bodd 85, 86 v. Davies 88, 329 a, 986, 1540 v. Humphreys 492 v. Otty 300 b v. Sear 400 b, 1537 v. Stainbank 498 a v. Thornyoroft 1384 Davies' Will, In re 604 a Davis v. Bagley 111 v. Bowsher 1253 a v. Davis 503 Doctor, Case of 1359 v. Dowding 1026 o. Duke of Marlborough 294, 331, 334, 335, 337, 340, 344, 700, 829, 830, 836, 837, 1039, 1040 d v. Earl of Strathmore 396, 407 v. Gardner 1247 v. Hendrie 1318 v. Henry 306 v. Herndon ' 1040 h v. Hone 741, 775 v. Jones 734, 735 v. Leo 913 v. Mason 292 v. May 1277 v. MoNally 239 a v. Meeker 109 v. Monkhouse 90 v. Parker 735, 744, 744 a, 793 t v. Pearson 1217 v. Perrine 499 b, 770 v. Shepherd 769 v. Staples 896 v. Stone 74l v. Symonds 152 to 154, 156, 158, 160 v. Thomas 165 v. Turnbull 1514 v. Turvey 654 v. West 1314, 1315 Davison v. Atkinson 1380 v. Davison 760 Davor v. Spurrier 388 Davoue v. Fanning 322, 1211 Davy v. Davy 684, 685, 741 v. Hooper 1061 v. Pollard 1406 Davys v. Boucher Dawes v. Head Dawkins v. Gill Daws v. Benn Dawson v. Chater v. Clarke 1115 589 294 519 1447 596, 1208 v. Dawson 523, 1115 a, 1425, 1470 to 1472 v. Lawes 325 a, 890 a v. Massey 317 v. Newsome 131 a v. Small 1156 Day v. Aldermen of Springfield 959 a v. Cummings 73, 74 b o. Day 604 a, 1092 v. Dunham 399 to 401 v. Luhke 776 v. Merry 915 v. Perkins 674 v. Wells 793 h v. Williams 1122 Deacon v. Smith 1231 Deaderick v. Watkins 246 Deal v. Bogue 677 Dean v. Bailey 1401 c v. Charlton 64 e v. Dalton 1208 v. Emerson 292 v. O'Meara 655 Deane v. Izard 717, 798, 799 Dearborn v. Taylor 1018 e Deare v. Soutten 1422 Dearie v. Hall 1035 a, 1057, 1196 v. Lovering 1196 Deas v. Harvie 74 a Deaver v. Eller 1050 De Barante v. Gott 1370 De Bemer v. Drew 74 b De Beranger v. Hammel 673 De Bernales v. Fuller 1042 Debeze v. Mann 1111, 1114, 1117 Debigge v. Lord Howe 1493 a Debonham v. Ox 239, 263, 265 De Camp v. Crane 771 De Carriere v. De Calonne 1468 De Caters v. Le Kay de Chaumont 1036 a Dech's Appeal 769 Decouche v. Savetier 1520 Deeks v. Strutt 539, 591, 592, 594 Deem v. Phillips 309 b Deerhurst v. St. Albans 984 Deering v. Earl of Winchelsea 469, 470, 475, 490, 493, 495 to 498 v. The York & Cum. Railway Co. 1559 Deeze, Ex parte 1216 Def ord v. Mercer 176 INDEX TO CASES CITED. vvv vn Deforest v. Bates 1314 Deg v. Deg 551, 552, 554, 557, 1201, 1210 De Garcia v. Lawson 1182, 1184 Degge, Ex parte 1357, 1362, 1364 Degraw v. Elmore 203 a De Hoghton v. Money 694 a, 706 a, 793 o, 1357 c Dehon r. Foster 900, 957 c Deidricks v. Northwestern R.R. Co. 955 a Deiz v. Lamb 951 De Klyn v. Walkins 744 De La Garde v. Lempriere 1417, 1418 Delapole v. Delapole 919 Delavan v. Duncan 771 Delaware Ins. Co. v. Hogan 158, 161 L. & W. R.R. Co. v. Erie R.R. Co. 959 m &c. R.R. v. Raritan, &c. R.R. 959 m De Latirenel v. De Boom 972 De Lisle v. De Lisle 1030 Del Mare v. Rebello 180 Delmonies v. GuiJlaume 674 Deloraine v. Browne 1521 Delver v. Barnes 1457 v. Hunter 628 Demandray v. Metcalf 1032, 1034 De Manneville v. De Manneville 1333, 1334, 1336, 1339, 1341, 1341 a De Manville v. Compton 193, 273 Demarest v. Wyncoop 410, 1016, 1396 De Montmorency v. Devereux 310 Demott v. McMullen 1400 Dempsey v. Bush 499 e Denham v. Williams 645 De Nicholls v. Saunders 1016 Denison v. Gibson 325 Deniston v. Little 770 a Dennison v. Goehring 95, 986 Denny v. Gilman 72 v. Hancock 749 b v. Steakly 1226 Densmore Oil Co. v. Densmore 221, 323 Dent v. Auction Mart Co. 927 b, 929 c v. Bennett 314 v. Dent 1493 c v. Mc Grath 372 b Denton ». Denton 1425, 1472 v. Donner 238 a v. MacNeil 196 v. Stewart 751, 763, 769, 795, 796, 798 Denyer w. Druce 1167 De Peystar v. Clendining 1061 De Pierres v. Thorn 730 De Pol v. Sohlke 958 a, 959 a Derby, Earl of, v. Duke of Athol 1293 De Riemer v. De Cantillon 1575 Dering u. Kynaston 983 De Rivafinoli v. Corsetti 1474 Dermott v. Wallach ., 1314 De Rochfort v. Dawes 482 Derry Bank v. Heath 893 a Desbody v. Boyville 284 Desborough o. Harris 814 De Themmines v. De Bonneval 1168, 1182, 1184, 1190 Devane v. Larkins 604 a Devaynes v. Noble 162, 459 a, 676 v. Robinson 1061 a De Veney v. Gallagher 615, 928 Deveney v. Mahoney 674 Devenish v. Baines 781 v. Barnes 256, 664 Devereaux v. Burgoyn 386 Deverell v. Lord Bolton 203 b Devese v. Pontet 1106, 1115, 1122 Devis o. Turnbull 1514 Devoll v. Scales 896 Devonsher v. Newenham 859, 1447 Devonshire's Case 445 Dew v. Clarke 1508, 1516 Dewar v. Maitland 1094, 1096, 1097, 1098 Dewdney, Ex parte 1520, 1521 a Dewey v. Allen 1268 v. Witte 821 De Witt v. Ackerman 653 Dewitt v. Schoonmaker 592, 604 De Witte v. Palin 1354 Dexheimer v. Gautier 607 a Dexter v. Arnold 1516, 1520 v. Gardner 1164 v. Shepard 1027 Dey v. Dey 566 b v. Dunham 1036 a D'Eyncourt v. Gregory 710 b Dhegetoft v. London Assur. Co. 1057 a, 1057 6 Dias v. Bouchand 499 d Dibble v. Scott 1050 Dick v. Milligan 1456 v. Swinton 1473 Dickey v. Beatty 138 k v. Thompson 1233 a Dickinson v. Burrell 1057 c v. Dickinson 1133 v. Dillwyn 983 v. Grand J. Canal Co. 927 a v. Lewis 527 v. Lockyer 422 Dickson, In re 287 v. Chorn 645 v. Montgomery 1154 c v. Robinson 1088 a v. Swansea, &c. R.R. Co. 1047 xxxyiii INDEX TO CASES CITED. Dickson's Trust 291 d Dietrich v. Koch 371 Dietrichster v. Colburn 958 Digby v. Cornwallis 542 Digby, Earl of v. Howard 1425 Ex parte 486 Diggs v. Wolcott 900 Digman v. McCollum 403 Dillaye v. Greenough 983 Dilley v. Doig 854 Dillon v. Coppin 793 a, 793 6, 793 c u. Graw 1401 a v. Parker 1075, 1079, 1080, 1085, 1090, 1092 to 1094, 1096, 1097 v. Robinson 203 a Dilworth v. Rice 1062 Diman v. Pr. W. &3r. R.R. Co. 147 Dimes v. Scott 1277 a Dimmoch v. Hallett 293, 293 a Dimock's Estate 244 Dinham v. Bradford 670, 767 Dinwiddie v. Bailey 455, 457, 458, 462 Disney v. Robertson 857 Dixon v. Dixon 239, 1227 v. Enoch 61 v. Ewart 177 v. Fraser 1493 e v. Hamond 817 v. Holden 925 a v. Muckleston 1020 v. Olmius 1382 v. Samson 1087 a v. Saville 1015 D'Meza v. Generes 1023 c Doan v. Mauzey 749 e, 793 s Doane v. Badger 1235 v. Russell 1030 Dobbs v. Norcross 749 Dobbyn's Case 1476 Dobson v. Litton 767 v. Racey 316, 321, 322 Docker v. Soames 465, 1262 Dodd v. Cook 440 b v. Hartford 959 a Doddington v. Hallett 466, 1242 Dodds v. Snyder 645 v. Wilson 236 Dodge v. Essex Ins. Co. 1520 v, Pond 1214 a v. Strong 895 DodHn v. Brunt 976, 1273 # Dodsley v. Kinnersley 738 v. Varley 1216, 1218, 1231 Dodson v. Swan 769 Doe v. Ball 371 v. Bancks 1323 v. Doe 770 b v. Gay 591 Doe v. Joinville 1072, 1074 v. Manning 352, 426 v. Polgrean 1402 v. Routledge 352, 353, 355, 356, 359, 362, 426 v. Rusham 352 v. Sandham 102 v. Smith 1074 v. Staples 1388, 1390 v. Woodhouse 1067 b Doe d. v. Grew 1067 b v. Hassell 320 v. Jessup 1074 e v. Jones 959 c v. McKeay 959 e Doebler's Appeal 777 a Doellner v. Tynan 927 e Doggett v. Emerson 193 Dolan v. Macdermot 1494/ Dole v. Lincoln 606 Dolman v. Nokes 212 a Doloret v. Rothschild 717, 717 a, 719, 724, 724 a, 776 Dolphin v. Aylward 426, 645 Dolton v. Hewen 1064 b, 1131 Donaldson v. Donaldson 480, 793 c v. Gillot 390 a v. Williams 84 Donallen v. Lenox 291 b Done's Case 519, 1475 Donegal's Case 238 Donne v. Hart 1402, 1410, 1413 v. Lewis 571, 577 Donoghue v. Chicago 626 Donohue v. Gamble 1033 Donovan v. Firemen's Ins. Co. 1537 Doolin v. Ward 293 Doolittle v. Hilton 1247, 1449 c v. Lewis 1027 Doolubdass v. Ramloll 294 Door v. Geary 180 Doran v. Simpson 423, 581 Dorchester, Lord, v. Earl of Effing- ham 1088 Dorison v. Westbrook 724 Dormer v. Fortescue 83, 84, 252, 511, 513, 625, 626, 628, 862 Dormer's Case 1364 Dornford v. Dornford 1277 Dorr v. Shaw 559, 560, 634, 642 Dorset v. Girdler 1507,1508 Doty v. Whittlesey 89 Doughty v. Bull 790 Douglas v. Clay 549 County v. Union Pac. R.R. 64 ^ v. Culverwell 337 b v. Fellows 1074 a v. Russell 1040 b, 1055 INDEX TO CASES CITED. XXXIX Douglas v. Satterlee 1280 a v. Wiggins 913 v. Willis 1109 Douglass v. Douglass 1098 Doungsworth v. Blair 168, 1040 c Dove v. Dove 959 Dover v. Buck 1277 e v. Gregory 1246, 1247, 1247 a Dow v. Jewell 982 a v. Kerr 114 v. Sayword 677 Dowbiggin v. Bourne 493, 499 to 499 c Dowdale's Case 583 Dowell v. Dew 1388 v. Jacks 1365 Dowling v. Betjemann 719 b v. Hudson 1132 Downam v. Matthews 1431, 1435 Downe v. Morris 1023 Downer v. Church 769 Downes v. Timperon 1392 Downey v. Tharp 1047 Downin v. Lessors 1337 v. Sprecher 1357 Downing v. Mann 896 Dows v, Chicago 959 a Dowson v. Hardcastle 814, 815 Doyle v. Blake 1281 Doyly v. Perfull 1440 Drake v. Green 1287 v. Hudson Kiver Railroad Co. 924 a, 927 v. Latham 191 Drakeford v. Walker 256 Draper v. Borlace 390 Drapers' Co. v. Davis 312 v. Yardly 400 Dresel v. Jordan 777, 1321 Drew v. Clarke' 138/ v. Lord Norbury 397, 406 v. Power 527 Drewe v. Hanson 777, 778, 780 Drewry v. Thacker 550 Drinkwater v. Drinkwater 376 Drohan v. Drohan 422 Droun v. Smith 518 b Druce v. Dennison 1412 Druiff v. Parker 164 A Drummond v. Attorney-General 1191 a v. Pigou 892 v. Tracy 212 a Drury v. Drury 466 v. Ewing 939, 942 v. Hook 261, 263 v. Smith 607 a, 607 d Drusadow v. Wilde 1062 a Dryden v. Hanway 1201 Drysdale v. Mace 769 v. Piggott 638 a Du Bois v. Baum 771 Dubois v. Hole 1368 Dubost, Ex parte 793 a, 1111, 1113, 1117, 1118 Duchess of Newcastle *. Pelham 703 Duddell v. Simpson 736 c Dudley v. Batchelder 1201 c v. Dickson 1210 v. Dudley 629, 998 t>. Mallery 709 & Ward v. Dudley 629 v. Witter 406 Duff v. Dalzel 174 v. Fisher 717 Duffield v. Elwes 606, 607 a, 607 c, 705 a to 706 a, 793 a Duffy v. Calvert 1127 Du Flon v. Powers 193 Dufour v. Ferrara 785 Dugdale v. Dugdale 565, 571, 645 b Duggan v. Kelly 291 d Duhume v. Young 432 & Duignan v. Walker 951 d Duke v. Bahne 1226 of Beaufort v. Neeld 737 a v. Patrick 1536 Bedford v. British Museum 737, 750, 926 a Bolton v. WiUiams 808, 811 Chandos v. Talbot 783 Norfolk v. Myers 855 Dula v. Young 1372 Dumain v. Gwynne 1341 a Dumas, Ex parte 1258 Dummer v. Corporation of Chip- penham 1500, 1501 Dunbar v. Tredennick 315, 345 Duncan v. Duncan 1423, 1424, 1426, 1476 v. Fish's Adm'rs 564 b v. Jaudon 1258 v. Lyon 442, 449, 451, 504, 895, 1434, 1437, 1440, 1451 v. McCullough 203 a v. Warrell 700 Duncn v. Kent 1038 Duncomb v. Duncomb 993 Duncombe v. Greenacre 1408 a v. Mayer 703 Duncuft v. Albrecht 724, 724 a Duncumban v. Stein 603 v. Stint 541 Dundas v. Dutens 367, 374, 768, 987 a Dungey v. Angove 809, 811, 812 Dunham v. Boston 736 c v. Downer 1573 v. Gillis 504 Dunk v. Fenner 1067 b INDEX TO CASES CITED. Dunklee v. Adams 1324, 1326 a Dunklin v. Wilkins 1040 g Dunn v. Amos 231 v. Chambers 238 v. Coates 1495 v. Dunn 1273 e, 1382 a v. Railey 1018 v. Sargent 1403 Dunnage v. White 121, 129 to 133, 232 Dunne v. Dunne 1196 b Dunning v. Aurora 923 Dunphy v. Kleinsmith 829 Dunscomb v. Dunscomb 1277, 1278 Dupre v. Thompson 137, 138/ Dupuy v. Gibson 1033 Durando v. Durando 1214 a Durant v. Bacot 164 g v. Durant 152, 160 v. Einstein 464 v. Titley 1428 Durell v. Pritchard 927 b Durette v. Briggs 1226 Durfee v. Old Colony, &c. R.R. 959 m, 1556, 1561 Durham v. Rhodes 1088 Durham & Sunderland Railway- Co. v. Warn 959 6 Dursley v. Fitzhardinge 1490, 1503, 1510, 1511 Dutton v. Furness 820 6 v. Morrison 675, 677 v. Pool 780 Duvall v. Craig 975 a v. Terre 975 a, 1316 a Duvalle v. Ross 74 Dwinel v. Brown 1318 D' Wolff v. Pratt 298 Dycman v. Valiente 466 Dyer v. Dyer 1198, 1201 to 1203 v. Hargrave 777, 778, 796 v. Kearaley 550 r. Keefer 1372 Dyers' Company v. King 927 b, 951 A E. Eade v. Eade 1070, 1073 Eaden v. Firth 925 a Eades v. Harris 908 Eager r. Barnes 1273 d Earl v. Dresser 1361a v. Halsey 736 c v. Stocker 1451 Earl Spencer v. Peek 1508 Earl St. Germans v. Crystal Pal- ace R. Co. 1231 6 Earl of Arglasse v. Muschamp 744, 899, 1294 Earl of Aylesford's Case 763 Bath v. Sherwin 859 Darlington v. Bowes 859 v. Pulteney 1092 Dundonald v. Masterman 193 a Glengall v. Barnard 1105, 1110 Jersey v. Briton F. F. D. Co. 1226 Kildare v. Eustace 744, 899, 1292, 1293 Milltown v. Stewart 695, 695 a Oxford v. Tyrrell 44 Pembroke v. Beighden 790 Powlett r. Herbert 1263 Shrewsbury v. North Staf- fordshire R. Co. 293 a, 293 b East v. Cook 1090, 1091 v. Thornbury 111 Eastabrook v. Scott 271, 379 East Anglian v. Eastern Counties Railway 959/ East India Co. v. Boddam 64 i, 79 to 82, 86, 88 v. Campion 824, 1316 a, 1521 v. Donald 147, 167, 1528 r. Henchman 462 v. Neave 167, 295, 298 v. Tritton 111 v. Vincent 388 Easterbrooks v. Tillinghast 1200 Easterly v. Keney 974 a Eastern Counties Railway r. Hawkes 959 6 Eastland v. Reynolds 257, 287 Eastman v. Company 925/ v. Plumer 769, 793 u Eastwood v. Vincke 1100 Easum v. Cato 1435 Eaton College v. Beauchamp 87, 684 Eaton v. Barton 1122 v. Eaton 138 k, 972 *. Lyon 1323, 1326 a v. Watts 1068 b v. Whittaker 761 Eaves v. Hickson 1277 e Ebbett's Case 674, 1538 Ebrand v. Dancer 1201, 1201 a, 1204 Echelkamp v. Schrader 928 Echliff r. Baldwin 908, 953 Ecker v. Lafferty 191 Eckman v. Eckman 700 Eddie v. Davidson 677 Eddy v. Traver 499 d Ede v. Knowles 361 Edelen v. Dent 1122 Eden v. Smyth 705 a Edensor v. Roberta 814 DfDKX TO CASES CUED. xli Edes ». Breretort 1353 ». Edes 1404, 1411 Edinburgh, &c- Railway Co- v. Philip 293c Edged? ». Whalan 1374 EdgeweJl t. Haywood 363 Edleston r. Tick 951 a Edmonds r. Flews 392 Appeal 133 i, 157 Edmons r. Crenshaw 1530 a, 1283 Edmonds r. Fessey 1065 e «. Waugh 433 a Edsell r. Brisgs 496 «-. Buchanan 64 a Edson r. Munsell 223 Edwards *■- Abrey 1424 r. Banksmith 406 a. Browne 336 r. Burt 337 a *. Child 158 r. Countess of Warwick 84, 479.793 «. Edwards 604 a r. Freeman 90, 92, 503, 575, 1003 c. Grand Junction R. Co. i 3 6 e. GraTes o40 *. Janes 1521 b r. Jones 433. 606, 706 a, 733 a, 793 b w. Mitchell 370 *. Moore 1201 *. Morgan 1097 ». Myricfc 310, 313, 314. 321 v. Parkhurst 1057 e Edward's Appeal 1214 a Edwin «■- East India Co. 153. 1307 Effingerc. Balston 1226 Egberts c. Wood 1036 a Eland r. Eland 1127 a, 1130. 1131, 1131 a, 1132 EDboraugh p. Avres 33, 61, 959 a, 1049 Elder tr. Allison 193 ». Elder 161 Eldret r. Hazlett 1540 Eklridge r. Eldridge 632 a w. HU1 853, 354. S59, 860.901 r. Smith 711 a EEbank *- Montelieu 1414 Elijah c. Taylor 1401 e EUard r. Llandaff 206, 769, 773 EDk* r. Brown 674 v. Collier _ 532 r. Davenport . 05 . Bakofan 1575 *. Cordell 1408, 1411 to 1413. 1424 v. Edwards 1226 s. McClelland 1049 i . Merriman 1064 6, 1127, 1129, 1131 r. Royal Exch. Ass. Co. 670 v. Turner 1314 v. Wood 1027 KlHa r. Atkinson 1394 *. Barker 317 r. Commander 710 v. Earl Grey 1040/ r. Ellis 1403,1414 v. Lewis 10S8 a r. Nimmo 170, 176. 372, 433, 793 6, 973, 987, 933. 1040 c v. Secor 606 r. Selby 1157. 1164 v. Temple 1223 ». Woods 407. 1330 EDison v. Chapman 665 r. Cookson 1111, 1114 r. TflKsnn 133. 529, 706 a, 7S7, 793 a, 937. 1237 r. Elwyn 1412 Ehnendorf *. Taylor 975,1520 EInisley r. Maeauley 323 r. Young 1065 ft, 1065 e Ellsworth v. Lockwood Eke r. Else 779 Etter, Ex parte 675 Ebons-. Elton 290, 10-37 b «. Shepard 1394 Etwin r. Elwin 790 r. Williams 1412 Elworthy e. Bird 1423 Err v. Ely 1074 c v. McKay 729. 793 t r. Wilcox 404, 410, 700 Emanuel r. Bird 67(5 Eroerick w. Coakley 1400 Emerson ». Dayies 940,942 *. Gilman 1013 e r. Statoa 74 e r. UdaU 8S7, 1452 e Emery r. Hill 1186, 1300 w. Lawrence 1040-1056 t . Wase 734, 1451, 1454, 1459 Emmet v. Dewhnrst 116 FmwMwia r. Bradley 645 v. Cairns 345 Emperor of Austria r. Kossuth 951 « Empringhara v. Start S33 a Empsan's Case 1543 Enders v. Brune 499 p v. Williams 432 b xlii INDEX TO CASES CITED. Engel v. Scheuerman 900 Enfland v. Curling 666, 669, 722 v. Downs 273 In re 1355 v. Lavers 1112, 1123 a English v. Miller 900 ». Smock 893 a Eno v. Calder 546 Ensign v. Kellogg 715, 751 Entwistle v. Davis 1193 Eppes v. Randolph 499 d Eppinger v. McGreal 771 Equitable Ins. Co. v. Fuller 1269 a Era Insurance Co. In re 1559 i Erie R. Co. v. Delaware, &c. R.R. Co. 1558 Ernest v. Croysdill 1261 a v. Vivian 1520 d Errickson v. Nesmith 499 e, 1252 b Errington v. Attorney-General 809 v. Aynesley 716, 726, 799, 1314 Erving's Case 583 Erwin v. Hanmer 180 a v. Parham 246 Esdale v. Stevenson 777 Espey v. Lake 203 c, 319 Espin v. Pemberton 408, 1020 a Essell v. Hayward 673 Essex v. Atkins 1390, 1395 v. Berry 1574 Estate of Woodward 571 Estcourt v. Estcourt Haf . Co. 951 h Estes v. Mansfield 1456 a Estwick v. Caillard 1036 Esty v. Clark 1065 6 Etches v. Lance 1468, 1474 Etting v. Bank of United States 214, 215 324 Etty v. Bridges 421 6, 1035 a, 1057 European and Am. Sub. Tel. Co. v. Elliott 793 I Evans v. Bacon 1521 a v. Bagshaw 656 ». Bicknell 181, 184, 191, 192, 197, 204, 387, 390 to 399, 1020 v. Bremridge 164 a, 498 b v. Charles 1065 b v. Cheshire 344 v. Ellis 311 v. Evans 1427, 1530 v. Harris 756 v. Llewellyn 120, 130, 134, 239, 251 v. Kneeland 215 v. Rosser 291 c v. Smallcombe 1539 a v. Strode 138/ v. Wood 724 b Evansville ». Pfisterer 1537 Evelyn v. Evelyn 571, 574 to 576, 1064, 1065, 1228 v. Lewis 833 a Everard v. Warren 1528 Everest v. Ritchie 1452 d Everitt v. Everitt 317, 706 b Evertson v. Booth 499 v. Tappan 322, 1211, 1277 Evitt v. Price 952 Evroy v. Nichols 385 Ewell v. Greenwood 924 Ewelme Hospital v. Andover 854, 855 Ewen v. Bannerman 1164 Ewer v. Corbett 422, 1128, 1129 v. Moyle 475 a Ewing v. Ewing 1287 Ewins o. Gordon 769, 788 Exchange Bank v. Russell 164/ Exchange Bank of St. Louis v. Rice 1041, 1253 a Ex parte Agra Bank 498 b, 1023 e Alston 633 Asiatic Banking Co. 1047 Astbury 710 b Briggs 203 a Caldwell 421 6, 1038 Came 499 d City Bank 1047 Craven 370 Daintree 216 Harker 1469 Hartridge and Allen- der 959 m Holland 1366 Kendall 643 Kingston 1270, 1277 Knight and Raymond 1434 Lindley 1169, 1183 London Bank of Scot- land 725 McBee 1214 a National Bank 1020 New Zealand Banking Co. 1047 Sheriff of Middlesex 820 b Stephenson 633 Stray 1543 Tait • 900 Tempest 370 Valpy and Chaplin 1020 Western Life Ass. Soc. 1222, 1226 Williams 218 Eyre v. Bartop 883 v. Countess of Shaftesbury 1143, 1147, 1190, 1328, 1333, 1339, 1340, 1352, 1358, 1359, 1361, 1362 INDEX TO CASES CITED. xliii Eyre v. Dolphin v. Eyre v. Good v. Ivison v. Popham v. Potter Eyres v. Brodrick Eyuter's Appeal- Eyton v. Denbigh v. Eyton 397, 400, 400 a Farmer v. Farmer 239 872 6, 764, 771 v. Grose 1018 1459 v. Kimball 1065 d 757 v. Russell 1041 755 Farmers' &c. Bank v. Bronson 1020 203 c v. Detroit 144 1449 Farmers' & Meoh. Bank v. Rath- 896 bone 498 a 829 Farmers' L. & T. Co. v. Walworth 252 Co. Bank 146 F. Faber v. Faber 951 Fabre v. Colden 14»8 Failey v. Shippan 744 Fairbank v. Cudworth 928 Fairbanks v. Lampson 1194/ v. Mothersell 1400 Fairbrother v. Nerot 807, 808, 814 v. Prattent 807, 808, 814 Fairchild v. Adams 1454 v. Hunt 1537 a Fairfax v. Fairfax 1280 a Fairfield v. Fairfield 546 Fairhurst v. Lewis 1198 Fairthorne v. Weston 671 Falcke v. Gray 719 a Falis v. Conway 1018 b Falk v. Turner 987 a Falkland v. Bertie 61 Falkner v. Colshear 1400 v. O'Brien 239 Fall v. Elkins 656 v. Hazebrigg 759 River Iron Works v. Croade, &c. 1036 a Fallon v. Railroad Co. 729 Falls v. Robinson 895 Falls Village W. P. Co. v. Tibbetts 925/ Falmouth, Lord, v. Innys 860, 929 Fanar v. Earle 1214 a Fane v. Fane 142 Fanning v. Dunham 801, 695 In re 1273 b Farebrother v. Gibson 203 b, 1551 Farewell v. Coker 120, 130, 134, 145 Fargo v. Arthur 824 Farhall v. Farhall 581 Farina v. Silverloek 951 c Farley v. Farley 710 v. Palmer 785 v. Woodburn 241 Farmer v. Arundell 1256 v. Calvert 190 v. Calvert, &o. Co. 940 v. Dean 1277 e Farmers' Loan and Trust Co. v. Maltby 404 Farnham v. Brooks 316 a, 321 to 323 v. Campbell 700 v. Clements 768 v. Phillips 1115 Farnum v. Burnett 1023 c Farnsworth v. Childs 397 Farquhar v. Hadden 566 a Farquharson v. Cave 606 v. Pitcher 894 Farr v. Middleton 1231 v. Newman 551 v. Newnham 579 v. Sheriffe 64 e Farrand v. Marshall 929 Farrant v. Lovel 913, 914 Farrell v. Lloyd 1202 Farrington v. Knightly 493, 532, 540, 595, 596, 1208 Farris v. Bennett 771 Farrish v. Wilson 591 Farrors v. Rees 399, 1020 Farwell v. Jacobs 592 v. Meyas 793 r Faubault v. Taylor 604 a Faulder v. Silk 227 Faulds v. Yates 674 Faulkner v. Daniel 486, 487 v. Davis 959 m, 1061, 1357 v. Hebard 1558 Faversham v. Ryder 1068 b Fawcett v. Gee 379 v. Lowther 1196 b v. Whitehouse 1207, 1260 Fawell v. Healis . 1226, 1228 Fazakerly v. Gillibrand 1109 Fearon, Ex parte 440 Featherstonehaugh v. Fenwick 672 Featherstonhaugn v. Turner 669 Feit's Ex'rs v. Vanatta 1065 6. Feller v. Alden 1401 c Fellows v. Fellows 1262 v. Greenleaf 677 v. Hermans 114 v. Lord Gwydyr 203 v. Mitchell 1280 to 1282 Fells v. Reed 709, 906 Fenhoulet v. Passavant 565 xliv INDEX TO CASES CITED. Fenn v. Edmonds 814 Fenner v. Taylor 1417, 1418 Fenton v. Browne 199 v. Hughes 1499, 1501 Fenwick v. Bulman 788, 1050 Fereyes «. Robinson 1248 c Fergus v. Gore 1521 o Ferguson v. Davol Mills 951 v. Gibson 579 a v. Paschal 724 v. Waters 71,74 v. Wilson 749 c, 778 g Fermor, Ex parte 1268 a Ferrand v. Prentice 603 Ferrars v. Cherry 400, 410 Ferrer v. Barrett 639 Ferrers v. Sherley 549 v. Tanner 684 Ferres v. Ferres 229 u. Newly 684 Ferris v. Adams 294 v. Crawford 196 v. Irving 767 Ferson v. Monroe 677 v. Sanger 197, 796 Fetrow v. Merriwether 1057 c Fettiplace v. Gorges 784, 1390, 1392 Feversham v. Watson 773 Field v. Beaumont 895, 928, 929 v. Craig 466 v. Evans 309 a v. Gooding 1027 v. Hamilton 499 e v. MagKee 1040 c ti. Megan 1047 v. Moore 1080 a v. Schieflelin 1128 v. Sowle 1394, 1396, 1399, 1401 Fielden v. Fielden 550 v. Slater 400 6, 927 Fielding v. Bound 1179 Fiero v. Fiero 607 a Fiestel v. King's College 1040 c Fifty Associates v. Tudor 827 a Fillev v. Fassett 951 Filmer v. Gott 154, 236 Finch v. Brown 1016 a v. Earl of Winchelsea 553, 1217, 1228, 1249 v. Finch 1201, 1203, 1483, 1490, 1494, 1497 ». Hattersly 1247 a v. Newnham 254 v. Tucker 989 Finden v. Stephens 1068 Findon v. Parker 1048 a Finger v. Finger 534 Finley v. Lynn 158 Firemen's Ins. Co. v. Bay 1380 Firmin v. Pulham 337 6 First Bank v. Meredith 959 a National Bank v. Balcom 606 Firth v. Denny 1083 v. Ridley 793 I Fish v. French 1018 d v. Howland 1226 v. Lightner 742 Fisher v. Apollinaris 959 m v. Boody 193 a, 203 c v. Budlong 221 v. Chapin 1277 v. Dixon 710 a v. Fields 968, 974, 980 v. Fisher 482 v. Johnson 1228 v. Mellen 196 v. Shaw 715 v. Skillman's Ex'rs 1065 d Fishmongers' Co. v. East India Co. 925, 927 Fiskw. Attorney-General 1156, 1070 a, 1200 v. Chicago, &c. R.R. 959 m v. Cleland 203/, 203 g, 229 6, 440 c v. Norton 548 v. Wilber 925, 927 Fiske v. Mcintosh 1400 v. Wilbraham, &c. Co. 1452 d Fitch v. Fitch 344 v. Peckham 1222 Fitter v. Lord Macclesfield 1520 Fitz v. Davis 700 Fitzer v. Fitzer 359, 363 FitzGerald v. Forristall 61 Fitzgerald v. Falconberg 408 In re 1336, 1364, 1365 v. Peck 125, 138/ v. Rainsford 23*9 v. Reed 228 v. Stewart 1041, 1045 Fitzhugh v. Lee 1514 Fitzsimmons v. Guester 64 c, 64 d v. Joslin 193, 212 d, 243 a v. Ogden 410, 1502 Flack v. Holm 1467, 1470, 1473 to 1475 Flagg v. Mann 400, 400 a, 755, 1502, 1528 Flanagan v. Great Western R. Co. 323, 769 Flanders v. Chamberlain 1031 Flarty v. Odium 1040 d, 1040/ Flavell v. Harrison 951 a Fleet v. Perrins 1403 Fleming v. Beaser 499 6 v. Buchanan 176 INDEX TO CASES CITED. xlv Fleming v. Chunn 684 v. McKesson 543 a Flemingsburg v. Wilson 959 m Fletcher v. Ashbumer 64 g, 790, 1212 ». Fletcher 735 o, 1425, 1428 v. Green 1273 d v. Hooper 33 v. Jackson 138/ v. Peck 381, 424 v. Warren 887 Flight v. Bolland 723, 751, 787 v. Cook 603, 730, 847, 955 v. Leman 1048 a Flint v. Brandon 716, 726, 727 Ex parte 1435 v. Rawlings 1221 Flockton v. Peake 442 a Flood v. Finley 161 Flower v. Martin 433, 705 to 706 a Floyd v. Jane 888 v. Priester 525 Floyer v. Bankes 974, 1237 v. Sydenham 1493 Fluharty v. Beatty 768 Foden v. Finney 1421 a, 1422 Fogerty v. Jordan 1057 c Fogg v. Griffin 193 a Foler v. Russell 82 Foley v. Bumell 604, 844 v. Crow 749 c v. Foley 1408 a v. Hill 74 c, 458, 459, 1520 Folger v. Columbian Ins. Co. 1252 Follett v. Follett 173 v. Reese 1226 Folliet v. Ogden 640 Folsom v. Marsh 939, 943, 947 Foly's Case 553, 554 Fonda v. Jones 1226 v. Sage 700 Fontain v. Ravenel 1154 c Foot v. Farrington 1521 a v. Webb 767 Foote v. Foote 972 v. Perry 1572 Footner v. Sturgis 1027 a Forbes v. Ball 1068, 1071 v. Dennister 397 v. Moffatt 1035 b v. Peacock 1060 v. Ross 322, 1211 Ford v. Foster 951 v. Fowler 1068, 1068 o, 1069 v. Olden 323 v. Peering 703, 704, 707, 1504 Fordy v. Williams 786 Fordyce v. Willis 972 Forman v. Humphrey 671 Formbey v. Prio" 293 b Forrest v. Elwes 717 a, 723, 724, 796, 798, 1263 v. Forrest 1469 v. Prescott 572, 1065, 1248 d Forrester v. Cotton 1086, 1093 v. Leigh 565 Forshaw v. Welsby 706 b Forster v. Forster 989, 1249 v. Hale 764, 765 Forsyth v. Rathbone 1214 a Fortescue v. Burnett 176, 872, 433, 706 o, 793 a, 793 6 v. Hennah 273 Forth v. Chapman 1067 a, 1067 b Fosdick v. Fosdick 974 Foss v. Haynes 746 Foster v. Ames 645 v. Athneim 499 d v. Blackstone 421 a, 1035 a, 1047, 1057, 1227, 1233 v. Blagnen 1180 v. Charles 193 v. Cockerill 1035 a v. Cook 565, 1088, 1088 o v. Davis 1269 v. Deacon 1039 v. Denny 1339 v. Donald • 672 v. Foster 1249, 1277 v. Fox 1047 v. Grigsby 370 v. HiUiard 487, 488 a v. Hodgson 529, 1520 v. Munt 1208 v. Reynolds 1023 c v. Roberts 337 6 v. Spencer 458 v. State Bank 894 v. Swasey 57, 71 v. Vassall 744, 899, 1295 v. Wood 895 Fothergill v. Fothergill 166, 169, 793 6 Fountaine v. Urquhart 677 Fowkes v. Chadd 1447 v. Pascoe 1202, 1206 Fowle v. Lawrason 456 Fowler v. Adams 164/ v. Bott 102 v. Fowler 1120, 1396 v. Garlike 979 a, 1164, 1183, 1196 a In re 1365 a v. Redican 767 ti. Williams 824 a Fox v. Hanbury 677 v. Mackreth 148, 205, 207, 236, 308, 315, 321 v. Scard 1318 xlvi INDEX TO CASES CITED. Fox v. Wright 342, 347 Foxcraft v. Lister 761 v. Parris 519 Foxworth v. Bullock 195, 1222 v. Magee 1400 Frail v. Ellis 1226 Frakes v. Brown 700 Frame v. Dawson 760, 762, 763, 765 Frampton v. Frampton 1427 France v. France 654, 658 a Francis v. Felmot 240 v. Francis 1233 a v. Wigsell 1397 Franco v. Alvares 593, 602 v. Bolton 296, 697, 699, 1494 v. Franco 1410 Frank v. Frank 111, 113, 132, 1097 v. Lady Standish 1077 v. Mainwaring 229 a v. Williams 1218 Franklin Bank v. Cooper 216 i>. Hosier 1216 Mill Co. v. Schmidt 896 v. Osgood v. Ridenhour v. Thomas Franklyn v. Tuton Franks ». Bollans v. Weaver Fraser v. Kershaw v. McClenacher Frazeru. Thompson Frazer's Ex'rs v. Lee Frazier v. Gelston Freake v. Cranefeldt Frederick v. Aynscomb v. Coxwell v. Groshon 1061, 1062 1521a 678 729 321 951 676 a 710 372 a 322 1553 a 1521a 1449 733, 734 33, 928, 959 m Fredickar v. Guardian Insurance Co. 1457 b Freeland v. Dazey 589 c v. Freeland 371 v. Hastings 959 a v. Heron 526 Freelove w. Cole 440 e, 769 Freeman v. Bishop 331, 348 v. Boynton 111 v. Cooke 1539 v. Curtis 120, 138 I v. Fairlee 703, 704, 841, 842, 1270, 1275 763, 1031, 1033 1437 555 a 44 360 534 675, 676 1115 v. Freeman v. Lomas v. Okey v. Pontrell v. Pope v. Reagan ». St. Steward Freemantle v. Bankes Freemault v. Dedire 553, 1249 Freetley «. Barnhart 777 a, 798 w Freke v. Lord Barrington 1085 Freman v. Whitbread 482 Fremont v. Stone 793 r French v. Burns 1018 ». Chichester 1131 v. Davies 1088 v. French 372 a v. Gifford 1252 v. Macale 1314 v. Mehan 371 v. Shotwell 1575 Frenzel v. Miller 192, 193 Frere v. Moore 419 Frewin v. Lewis 955 a Frier v. Peacock 1169 Frietas v. Don Santos 70, 458, 461 Frink v. Buss 1035 g v. Lawrence 927 Frisby v. Parkhurst 786 Frith v. Cameron 1341 v. Cartland 1261 d v. Sprague 140 Frogley v. Phillips 1065 c Frost v. Beekman 403, 404, 420 v. Belmont 293 6, 1252 a Frowd v. Lawrence 891 Fry v. Porter 18, 288 Fryer v. Bernard 899 i>. Butler 604 Fuentes v. Gaines 900 Fulham v. Jones ■ 790 Fullager v. Clark 190 Fuller v. Gibson 814 v. Hovey 771 v. Redman 1521 6 v. Wilson 193 v. Yates 1088 Fulton Bank v. N. T. & Sharon Canal Co. 74 3 Fulton v. Sellers 951 Furlong v. Fottrell 379 Furman v. Clark 718, 720 Furnival v. Carew 722, 729 Furnold v. Bank of Mo. 499 Fursor v. Penton 1370, 1371 Fuss v. Fuss 987 a Fussell v. Dowding 997 a Futrill v. Futrill 440 c Fyfe v. Swaby 724 Fyler v. Fyler 1268, 1273 Fytche v. Fytche 1098 G. Gage v. v. Acton Billings 1370 700 INDEX TO CASES CITED. xlvii Gage v. Chapman 700 v. Graham 959 a v. Newmarket Railway 959/ v. Rohrbach 700 Gaines v. Chew 184, 440 v. Gaines 1423 a v. Meauseaux 256 o. Thompson 893, 955 a Gairity v. Russell 1571 Gainesborough v. Gifford 879, 894, 1574 Galbraith v. Galbraith 763 Gale v. Archer 776 v. Gale 1098 v. Kalamazoo 292 v. Leckie 665 v. Lindo 266, 270 v. Luttrell 1436 v. Williamson 365 Gallagher's Appeal 566 c Galland v. Galland 1422 Gallatiani v. Cunningham 307 Gallejo v. Attorney-General 1154, 1156 Galloway v. Holmes 203 a v. Jenkins 893 a., 955 a Gait v. Jackson 289 Galton v. Hancock 562, 570, 571 Galway v. Fullerton 1047 Gamage v. Moore ■ 115 Gambart v. Ball 939 Gammon v. Stone 493, 499 b, 638 Gann v. Gregory 1449 a Gannett v. Albree 64 e, 1315 Ganse, In re ' 1365 a Garbut v. Hilton 290 Gardenor v. Ennor 310 Gardiner v. Astor 1035 b Gardner v. 1470 v. Adams 1040 g v. Barnes 1027 v. Cole 428 v. Diedricks 505 Ex parte 1418 v. Gardner 1130, 1245, 1372 a, 1397, 1400 v. Hershey 886 v. Marshall 1421 a v. Morse 292 v. Parker 607 a v. Pullen 724 v. Shore 372 b v. Townsend 1231 v. Village of Newburgh 927 v. Walker 1403, 1414 Garey v. Hignutt 498 a Garforth v. Fearoh 295 Gariss v. Gariss 771 Garland v. Salem Bank 140 Garlick v. James 1033 Garnar v. Bird 111 Garnsey v. Rogers 1016 d Garrard v. Frankel 164 c v. Grining 161 v. Lord Lauderdale 793 b, 972, 1036 a, 1036 b, 1045, 1058, 1196 Garretson v. Weaver 672 a Garrett v. Lynch 79 v. Pretty 289 v. White 650 Garrow v. Brown 440 c Garson v. Green 1217, 1224, 1226 Garth v. Cotton 184, 511, 517, 518, 913, 914, 991 to 994 v. Townsend 171 v. Ward 405 Garthshore v. Chalie 1106, 1107, 1115, 1210 Gartside v. Gartside 1451 v. Isherwood 218, 220, 235 to 238, 246, 308 Garvin v. Garvin 654 v. Paul 677 Garvin's Adm'r v. Williams , 320 Gascoigne v. Douglass 1293 Gascoyne v. Thuring 1201 Gasgal v. Smith 769 Gaskeld v. Durdin 908 v. Durdine 405, 406 Gaskell v. Chambers 1564 . Crehore 487, 632 Ex pavte 1476 v. Finley 1044 v. Foote 1201 v. Gibson 1088 a v. Goldthwaite 817 a v. Head 203/ ». Ingo 399, 703 v. Jeyes 310 to 313, 321, 324, 1365 v. Ohio, &c. Co. 680 v. Patterson 776 ». Rees 1520 a Gibson v. Russell v. Scudamore v. Seagrim v. Soper v. Wells v. Winter Giddings v. Eastman 314 1357 633 228 917 1056 1261, 1262 v. Palmer 676 a, 1243 Giffard v. Williams 653 Gifford, Ex parte 112, 326, 498 a, 499 v. Hart 838 v. New Jersey Rail. Co. 1560 Gilbee v. Gilbee 1364 Gilbert v. Arnold 928 v. Bennett 1073 v. Colt 1469 v. East Newark Co. 761 v. Gilbert 125, 138/ 1202 v. Lewis 1397 a v. Mickle 926 v. Showerman 927 e v. Sykes 294 Gilbert's Case 323 Gilchrist v. Cator 1414, 1424 Giles v. Giles 180, 182 a Gilham v. Locke 274 Gill v. Attorney-General 1284 v. Clark 1218 v. Lyon 1233 a v. Shelley 1065 b Gillam v. Taylor 1156 Gillespie v. Moon 152, 153, 156, 157, 161 Gillett v. Peppercorne 316 Gilliam v. Brown 298, 1122 v. Chancellor 539, 1102 v. Esselman 327 Gillis v. Hall 292, 715, 958 a Gillot v. Esterbrooke 951 v. Kettle 951 a Gilman v. Browne 506, 1226 v. Daunt 604 a v. Dwight 292 Gilmore v. N. Am. Land Co. 362 Gilpin v. Lady Southampton 547, 549 Gilroy v. Alis 769 Girard L. Ins. Co. v. Farmers', &c. Bank 654 Girling v. Lee 552, 553 Gittings v. McDermot 1065 b Givens v. Calder 765 v. Campbell 896 Givin v. Giyin 831 Gladstone v. Birley 1216 a, 1271, 1237 v. Hadwen 1038 v. Mussurus Bey 959/ w. Ottoman Bank 959/ Glasgow College v. The Attorney- General 1191 a INDEX TO CASES CITED. xlix Glass v. Dunn 566 a, 571 v. Hulbert 154, 158, 161, 759, 761, 768, 769 v. Pullen 633 Glasscock v. Nelson 771 Glasscott v. Copper Miners' Co. 1501 Glastenbury v. McDonald 695 o Glazier v. Bailey 700 Gleason v. Lillie 1284 6 Gleason's Adm'r v. Burke 1018 Glegg v. Legh 1490 v. Rees 972, 1045 Glenorchy v. Bosville 983 Gleriwaters v. Miller 316 Glidewell v. Spaugh 1201 Glissen v. Ogden 309 Gloninger v. Hazard 458 Glyn v. Duesbury 806 Glynn v. Bank of England 85, 1527 v. Baster 1390 v. Houston 1494 Goate v. Fryer 550, 561 Gobble v. Linder 1318 Godard v. Gray 1578 Goddard v. Carlisle 307, 310 v. Hodges 459 c v. Ingepenne 44 v. Keate 687 v. Sawyer 1023 c, 1035 g v. Snow 273 Godfray v. Godfray 337 c Godfrey v. Saunders 422 Godsal v. Webb 793 c Goilmere v. Battison 785 Going v. Emery 1154 d Goldney v. Crabb 1067 6 Goldsmid v. Goldsmid 257, 1106 v. Tunbridge Wells Co. 927 929 d Goldsmith v. Bruning 263, 288 v. Guild 776 Goltra v. Sanasack « 111 Goninan v. Stephenson 208 Gooch v. Gooch 576 v. Assn. for Relief, &c. 1164 Gooch's Case 352, 1501 Goodall a. Harris 1340, 1352, 1353 Goodburn v. Stevens 674 Goode v. Goode 180 a v. McPherson 1177 Goodfellow v. Burchett 1122 Goodier v. Ashton 1026 Goodin v. Cinn. &c. Canal Co. 1252 Goodlad v. Burnett 1074 o Goodman v. Grierson 1019 „. Sayers 111, 181, 1456 v. Whitcomb 669, 673 Goodrich v. Proctor 1130 v. Shotbolt 824 EQ. JUE. — VOL. I. Goodright v. Parker 990 Goodtitle v. Bailey 1080 v. Otway 52 Goodwin v. Cinn. &c. R.R. Co. 1558 v. Finlayson 1074 6 v. Goodwin 176, 321, 433 Goodyear v. Day 934 Gordon v. Close 1510 v. Dix 1400 v. Gordon 113, 124, 131, 132, 147, 148, 150, 217, 326 v. Graham 1023 a v. Lewis 1434, 1436 v. Manning 86 1217, 1226 v. Potter 1347 6 v. Simkinson 520 v. Uxbridge 161 Gore v. Brazier 434 v. Gibson 230 v. Knight 1387 v. Stackpole 1026 Goree v. Watshall 1375 Goring v. Bickerstafl 1040 . v. Nash 693 986 to 988 Goslington v. Warburton 1080 Goss v. Stinson 459 6 v. Tracey 256 Gossmour v. Pigge 131 Gott v. Atkinson 551, 554 Gotwalt v. Neal 695 a Gough v. Manning 1088 Gould v. Gould 184, 238, 4 1-0, 1520 v. Luckett 1088 v. Mather 1062 v. Okeden 239 Gounaud v. Trust 949 Gourlay v. Somerset 1457 Gourley v. Linsinbigler 607 a v. Woodbury 653 Gout v. Aleploglu 951 Gouverneur v. Lynch 634, 1233 a Gower v. Mainwaring 1169 Gower's Case 323 Gowland v. DeFaria 337, 345 Grace v. Webb 921c Graff ety v. Humpage 1065 6 Grafton Bank v. Foster 1018 c Graham, Ex parte 498 a v. Graham 626, 654, 987, 1202 v. Hockwith 88 r). Horton 955 a v. Johnson 694 a, 1047 v. Little 239 a v. Londonderry 1375 to 1377 v. Long 972 v. Newman 1016 v. Oliver 779 v. Roseburgh 1122 1 INDEX TO CASES CITED. Graham v. Sam 729 v. The Birkenhead, Lan- cashire, &c. Railway Company 959 Grand Chnte v. Winegar 33 Grand Junction Canal Co. v. Shu- gar 928 Granger v. Bassett 480 Grannard v. Dunkin 949 Grant v. Austen 1041, 1042 v. Bisset 420 (Lessee of) v. Caines 1206 v. Duane 1023 v. Grant 1316 a, 1474, 1475 v. Hook 1132 In re 1377 v. Jackson 74 a v. Lathrop 886 v. Lyman 1065 b v. Mills 1226, 1228 v. Munt 778, 796 v. Quick 900 Granville, Lady, v. Duchess of Beaufort 1208 Granville Railway v. Coleman 1558 Grapengether v. Fejervary 164/ Gratton v. Appleton 606 Grave v. Salsbury 1113, 1114, 1117 Graves v. Boston Mar. Ins. Co. 152 v. Dolphin 974 a v. Graves 1246, 1247 v. Griffith 1474 v. Lebanon Bank 193 v. Mattison 1003 v. White 193 Gray v. Chiswell 675, 676 v. Chiswick 162 v. Cockerill 703 v. Mannock 989 v. Mathias 296, 697 to 700 a v. Minnethorp 572 v. Russell 940 v. Seckham 499 d v. St John 370 v. The Liverpool and Bury Railway Co. 959 v. Tubbs 770 a Gray, Lord, v. Lady Gray 1203 Graydon v. Hicks 288, 291, 1208, 1307 Great Eastern R. Co. v. Turner 298 Great Falls Co. v. Worster 900 Great Northern Railway Co. v. Eastern Counties Railway Co. 959, 1559 Great Northern Railway v. Man- chester, Sh. & L. Railway 1566 Great Western Railroad Co. v. Cripps 138 Great Western Railroad Co. v. Rushout 959 d, 1559 Great Western R. Co. v. Sutton 959 m Greated v. Greated 1227 Greatly v. Noble 1398, 1399, 1400 Greatorex v. Cary 1088 Greatrex v. Greatrex 667 Greaves, Ex parte 1277 e v. Powell 556 v. Wilson 769 a Greedy v. Lavender 1419 Green v. Bailey 88 v. Barrett 33 v. Baverstock 293 v. Ball 768 v. Belcher 1064 v. Biddle 799 a, 799 b, 1237 v. Bridges 1321 v. Butler 1018 a v. Darling 1432, 1434 to 1436 v. Demoss 1227 v. Drummond 749 c, 1201 Ex parte 1354, 1355 v. Farmer 506, 1433 v. Finin 771 o. Folghamb 952 ... Green 1080, 1083, 1085 v. Ingham 1047 v. Johnson 1214 a v. Low 1315 v. Lowes 907, 954 v. Morris and Essex R.R. 120, 138 e v. Pigot 603 v. Price 292 v. Pulsford 1449 a v. Putnam 655, 656 6 v. Ramage 1233 a v. Rutherford 1161 v. Sargent 322 v. Slayter 400, 421 v. Smith 789 v. Spicer 974 a v. Spring 74 b v. Stephens 983 v. Sutton 1382 a v. Tweed 1318 v. Weaver 1494 v. Winter 315, 322, 1211, 1238 o. Wynn 498 c Greenaway v. Adams 714, 732, 751, 769, 795, 796, 799 Greene v. Bishop 940, 942 v. Mumford 959 o v. West Cheshire R.R. Co. 721 a Greenhill v. Church 1454 v. Greenhill 790 Greenleaf v. Pigot 730 INDEX TO CASES CITED. Greenleaf v. Queen 1494 Greenside v. Benson 537 Greenway, Ex parte 64 i, 80 to 82, 105 Greenwood v. Eldredge 1 14 v. Firth 547, 1026 v. Greenwood 337 c v. Taylor 559, 564 b, 663 Greetham v. Colton 1064 c Gregg v. Hamilton 759 Gregor v. Kemp 278 Gregory v. Haworth 428 v. Howard 1496 v. Lockyer 1398 v. Marks 74 d v. Mighell 763 ». Wilson 1313, 1315, 1321 Grell v. Levy 1057 c Grenfell v. Dean of Windsor 1040 d, 1040/ Grenfill v. Gridlestone 1520, 1521 a Grenville Murray v. Clarendon 955 a, 982 a Gresley v. Adderly 838 v. Mousley 312 a Gretton v. Haward 1080, 1080 a, 1083, 1085 Greville v. Browne 566 a Grey v. Pearson 1074 c v. Northumberland, Duke of, 929 Grider v. Payne 499 d Gridley v. Watson 360, 700 Grier v. Grier 983 Grierson v. Eyre 517, 619 Grimes v. Grimes 654 Griffin v. Cunningham 769 v. De Veulle 235 v. Griffin 1020, 1211 v. Marine Co. 323, 1027 v. Orman 850 Griffith v. Bird 1354 a v. Flood's Case 1172 v. Griffith 399, 406, 408 v. Harrison 1062 a v. Hood 1368 v. Robins 236, 323 v. Rogers 1208 v. Spratly 239, 244, 245, 332 Griffiths v. Evan 1061 a v. Porter 322 Grigby v. Cox 1390, 1399 Grigg v. Cocks 1258 v. Landis 737, 776, 1315, 1324 v. Staples 273 Griggs v. Gibson 1080 a, 1085 Grigsby v. Breckenridge 943 Grimes' Ex'rs v. Harmon 1146, 1154, 1154 c, 1156, 1183 Grimes v. Blofield 1080 v. French 862 Grimestone t>. Bruce 1315, 1324 Ex parte 1336, 1357, 1362, 1364 Grindley v. Davis 229 a Grisley v. Lother 260 Grissell ». Swinhoe 1089, 1091 Grocer's Nat. Bank ». Clark 1040 h Grochenback v. Ross 374 Grofi v. Rohrer 1201 c Grogan v. Cooke 267, 368 Groom v. Booth 1233 a Groot v. Story 1040 Gross v. Leber 138 k Grosvenor v. Allen 64 c v. Austin 675 v. Dunston 1087 b Ex parte 1477 v. Sherratt 337 6 Grove v. Bastard 1449 a v. Hodges 440 c v. Young 1447 Grover v. Grover 607 a, 607 b, 607 c Groves v. Clarke 1417 v. Perkins 132, 1417 Grumley v. Webb 1261 Grynne v. Hone 607 a Guardhouse v. Blackburn 180 Gudon v. Gudon 121 Guelich v. Clark 1246 Guerand v. Dandelet 292 Guerrant v. Fowler 744 Guest v. Homfray 777 Guidott v. Guidott 790 Guion v. Knapp 1233 a Gullan v. Grove 174 a Gully v. Cregoe 1068 6 v. Holloway 577 Gumbleton, Ex parte 1476 Gump's Appeal 155, 166 Gunter v. Halsey 755, 762, 764, 765 Gupton v. Gupton 749 c, 786 Guy v. Pearkes 367, 1422 v. Sharp 1114 Gwillim v. Stone 796, 797, 799 Gwinnett ». Bannister 1450 Gwynne v. Edwards 499, 559, 633 v. Heaton 246, 331, 336, 337, 344 to 346, 348 H. Habergham v. Vincent 983 Habershon v. Blurton 677 v. Troby 1496 v. Vardon 1164 Hablitzel v. Lathan 1572 lii INDEX TO CASES CITED. Hack v. Leonard 1320 to 1322, 1326 a Hackett v. Baiss 926 v. Webb 810 Hadow v. Hadow 1289 a Hafiey v. Haffey 1470, 1472 Hagar v. Buck 1315 Hager v. Thomas 164/ v. Thomson 527 Haggarty v. Palmer 1222 Hagger v. Payne 1074 b Hahn v. Thornberry 924 o Haigh, Ex parte 1020 v. Jaggar 918 a v. Kaye 298, 972, 982 a, 1197, 1199, 1201 b Haight v, Moore 310 Haines v. Thompson 1018 v. Carpenter 828 Hal v. Dyson 293 b Hale v. Cushman 33 v. Coe 1372 v. Darter 614 t>. Harrison 496 ». Saloon Omnibus Co. 369 v. Thomas 916, 1316 a v. Webb 93, 422, 474 v. Wilkinson 742 v. Wilson 678 Hales v. Cox 633, 1372 v. Darrell 1122 v. Margerum 1394 v. Van Berchem 760 Halford v. Hatch 686 Halkett, Ex parte 1241 Hall v. Bliss 1027 Ex parte 228 v. Center 736 a v. Clagett 157 v. Clark 709 v. Cushman 499 e v. Hall 164/, 426, 499 e, 669, 671, 672 a, 706 6, 1340 v. Hardy 731, 1458 v. Hill 1088 a, 1102, 1122 v. Hoddesdon 1512 ti. Huntoon 296 v. Hutchens 498 d v. Joiner 33, 718, 720 v. Light 987 a v. Luckey 1065 a v. Luckup 1065 b & Kean u. Porter 260 v. Piddock 655 v. Reed 125 v. Sampson 1035 b v. Smith 400, 776 v. Warren 229 a, 751, 1077 v. Whittier 759 v. Wood 459 a, 459 d Hallet w. Bousfleld 492 v. Oakes 228 v. Thompson 974 a v. Wylie 102 Hallock v. Smith 1226 Halloway v. Headington 767, 793 b Hally v. Adams 607 c Halsey v. Grant 716, 717 a, 747, 777, 778, 780, 796 v. Reid 1248 e v. Whitney 1036, 1036 a Halstead Company, In re 1269 a Haly v. Goodson 957 Ham Greve 502 c Hambleton v. Durrington 1068 b Hambley v. Trott 467 Hamblin v. Dinneford 723 v. Lister 1114 Hambrook v. Smith 74 c Hambrooke v. Simmons 607 d Hames v. Hames 1065 6 Hamet v. Dundas 246 Hamett v. Baker 749 o Hamill v. Gillespie 1035 6 Hamilton v. Buckmaster 777 o, 793 o v. Cummings 690, 700 v. Denny 1236 v. Dobbs 1023 e v. Fond du Lac 700 v. Gilbert 1227 17. Hamilton 292 v. Hector 735 a v. Houghton 1037 v. Marks 806 v. Royal 400 v. Russell 352 v. Schwehr 633 v. The New York and Hudson River Railroad Co. 924 a, 927 v. Watson 215 v. Whitridge 925 a Woolen Co. v. Good- rich 527 v. Wright 321, 322 Hamlin v. Hamlin 74 d, 88 Hammath v. Emerson 193 Hammer v. McEldowney 767 Hammersley v. Baron De Biel 268, 987 a v. Lambert 676 Hammond v. Corbett 1400 v. Fuller 927 v. Messenger 33, 1057 a v. Neame 1289 a Hampden v. Hampden 184, 254 Hampshire v. Pierce 179, 180 Hanbury v. Hussey 646 v. Kirkland 1269 INDEX TO CASES CITED. liii Hanbury v. Litchfield v. Walker Hance v. Truwhitt Hancom v. Allen Hanford v. Bockee 400, 777 1339 1094, 1096, 1269, 1273 1373 Harrington v. Du Chattel 695, 698 v. Long 1039, 1048, 1050, 1054 Hankey v. Smith 1435 v. Vernon 894, 895, 897 Hankin ». Middlediteh 1514 Hanlon v. Supervisors 959 a Hannah v. Hodson 337 6 Hannam v. Sims 1074 a Hannan v. Oxley 1375 Hanney v. Eve 61 Hanning v. Ferrers 385, 389 Hansard v. Robinson 82, 85, 86 Hansee v. De Witt 1400 Hanson v. Edgerly 212 a Ex parte 1437 v. Gardner 854, 855, 928 ». Hancock 298 v. Keating 64 e, 1408, 1409 a, 1410, 1414 v. Meyer 1216 Harbert's Case 476, 477, 484 Harbin v. Darby 1268 a v. Masterman 1170 a Harbridge v. Wogan 160 Harcourt v. White 518 a Hard v. Hard 1269 a Hardcastle v. Smithson 519 Harden v. Parsons 1274 Harding v. Glynn 98, 105 a, 1061, 1068 v. Handy 694, 696 v. Harding 543, 564 a v. Larned 1274 v. Metropolitan R. Co. 778/ v. Parshall 779 Hardwick, Earl of, v. Vernon 462, 467 v. Forbes's Adm'r 184 v. Mynd 95, 503 Hardy v. Donellan 678 v. Martin 1314 t>. Mills 653 Hare v. Beecher 1367 a v. Burges 1315 v. London, &c. R.R. 927 v. Shearwood 759 Harford v. Lloyd 1261 a Hargis v. Campbell 451 Hargrave v. Conroy 462 a Hargreaves v. Mitchell 1521 a v. Rothwell 408 Harland v. Trigg 1068 a, 1070, 1072 Harkness v. Public Works 826 v. Remington 769 Harmaker v. Schroens 1318 Harman v. Brewster 1048 v. Cannon 112 v. Clark 675 v. Harman 371 Harmer v. Plane 931, 934 Harms v. Parsons 292 Harner v. Fisher 203/ Harnett v. Yielding 714, 716, 717, 719 a, 750 a, 764, 766, 767, 769 Harney v. Charles 120, 126 v. Indianapolis, &c. R.R. 959 m Harpee v. Ely 323 v. Harper 972, 1198 v. Munday 1247 a v. Ravenhill 1417 Harper v. Mansfield 321 Harper's Appeal 1016 b, 1018 b Harrell v. De Normandie 120 v. Ellsworth 927 Harriman v Egbert 326 Harrington v. Bigelow 298 v. Churchward 451 v. Duchastel 295 v. Harte 176 v. Long 1039, 1048, 1049, 1050, 1054 Harris v. Clark 606 a, 607 c v. CottereU 1447, 1508, 1516 v. Douglass 497 v. Ferguson 495 v. Galbraith 896 v. Harris 1269 a v. Ingledew 484 v. Mitchell 1452 v. Morris 1422 v. Mott 1319 a v. Murray 677 v. Pepperell 769, 793 p v. Slaght 1214 o v. Tremenheere 310 to 313 v. Watkins 1087 6 Harrison v. Armitage 671 v. Austin 168 v. Buckle 1403, 1414 v. Coppard 203 6 County v. McCarty 959 a v. Deramus 796 Ex parte 1214, 1242 v. Field 164 v. Forth 410 ». Gardner 292 v. Good 925, 927 e, 956 v. Guest 245 a v. Gurney 899 liv INDEX TO CASES CITED. Harrison v. Hallum 535 v. Harrison 587, 1088, 1263 v. Hart 1031 r. Jaquess 369 v. Lord North 101 v. McCarty 959 m v. Mirge 164 v. Mork 322 v. Nettleship 894 v. Phillips 499, 499 e v. Pngh 1216 v. Seymour 498 b v. Southcote 703, 1481, 1493 v. Tenant 673 b v. Troup 1223 v. Trustees of Phillips Academy 369 Harrow School v. Alderton 917 Harshaw v. Dobson 239 v. McCombs 694 a Hart, Leslie, & Warren v. F. & M. Bank 408, 1503 b Hart v. Goldsmith 301 v. Mayor of Albany 924 a, 927 v. Ten Eyck 623, 1031, 1272, 1282, 1529 Hartford & New Haven Railroad Co. v. Croswell 959, 1557 Hartford Ins. Co. v. Matthews 196 Hartford Ore Co. v. Miller 164/ Hartley v. Cummings 292 v. Hurle 1383 v. O 'Flaherty 1233 a v. Rice 274, 294 v. Russell 1049, 1050, 1552 v. Tapley 1040, 1056 v. Tatham 1018 d Hartly v. Estis 694 a u. Hitchcock 1216 Hartman v. Woehr 673 Hartnett v. Baker 767 Hartop v. Whitmore 1113 Hartopp v. Hartopp 193 a, 309 a, 1111 Hartshorn v. South Reading 924 Hartwell v. Chitters 551 v. Hartwell 295 v. Smith 449 e Harvard College v. Society for Promoting Education 1174, 1176, 1178 a Harvey v. Aston 280, 285, 287, 288, 290 v. Blakeman 1283 v . Cook 130 to 132 v. Cricket 664 Ex parte 371 v. Harvey 1355, 1372, 1380 v. Ledbetter 1201 Harvey v. Montague 407 v. Morris 1497 v. Mount 236, 239, 244 v. Peck 231 v. Richards 589 v. Seashol 146, 896 v. Tebbutt 74 a v. Varney 61, 298, 372 b, 683 a v. Wood 1437 Harville v. Law 1226 Harwood v. Fisher 1412 v. Oglander 69, 571, 577 v. Tooke 265, 343, 1040 6 v. West 1073 Hasbrouck v. Vandervoort 1032 Haselinton v. Gill 1385 Haseltine v. Brickey 824 a Hasheagan v. Specker 1400 Haskell v. Allen 614 v. Haskell 1490 Haskins v. Burr 462 a v. Kelly 1030 Haslett v. Pattle 93 Haslewood v. Pope 64/, 557, 565, 571 Hassall v. Smithers 1046, 1258 Hassam v. Barrett 1018 v. Day 653 Hassell v. Hassell 1247 Hassie v. G. I. W. U. Congrega- tion 1040 Hastings v. O'Donnell 208 v. Whitley 292 Hatch v. Atkinson 607 a v. Cobb 798 v. Hatch 298, 310, 312, 313, 319 321 v. Vt. Cent. R.R. Co. 929 a Hatfield v. McWhorter 817 a Hathaway v. Seaman 1381 Hatton v. Hatton 596 Hatzfele v. Gulden 293 6 Haughton v. Haughton 291 d Haughwout v. Murphy 771 Hauser v. Shore 1132 a Haven v. Adams 405, 406, 799 a v. Foster 111 v. Wakefield 680 Havens v. Patterson 1520 Haverstick v. Sipe 927 a Hawes v. Wyatt 239, 309 Hawk v. Thorn 1040 h Hawkes v. Hubback 1384 v. Saunders 591 Hawkins v. Allen 1193 v. Day ■ 90, 539, 597 v. Everett 604 a v. Freeman 1435 v. Holmes 759, 762 INDEX TO CASES CITED. lv Hawkins v. Kelley v. Maltby v. Skeggs Hawkins' Appeal Hawkshaw v. Parkins 482 724 6 2915 317 678, 699, 954 Hawksworth v. Hawksworth 1347 e Hawley v. Clowes 515, 916 v. Cramer 321, 457 v. Mancius . 322 v. Sackett 361 Haworden v. Dunlop 683 a Hawralty v. Warren 735, 736 a, 769 Hay v. Estell 653 v. Palmer 479, 480 v. Quay 1201 Hayard v. Angell 1315 Hayden v. Hayden 677 Hayes v. Bement 680 v. Harmony Grove Ceme- tery 749, 777 a v. Hayes 833 a, 848 v. Little 326 v. Morse 1521 6 v. Ward 324, 327, 493, 494, 499, 501, 502, 633, 636, 638, 639, 640, 641, 730, 849 v. Willio 958 a, 959 a Haygarth v. Wearing 198 Haynes v. Littlefear 596 v. Mico 1106 v. Nice 459 6 Hayter v. Trigo 1182 Hayton v. Rod 998 Hayward v. Angello 1315, 1320 v. Dimsdale 700 v. Judson 656 6, 656 c Haywood v. Cope 212 a v. Hudson 658 v. Hutching 458 Hazel v. Hagan 1062 Hazelrig v. Hutson 793 t Hazzard v. Irwin 193 Heaeock v. Fly 115, 118 Head v. Boston Mar. Ins. Co. 158 v. Egerton 707 v. Godlee 309 a v. Head 1422, 1424, 1425 v. Randall 1065 6 Headen v. Rosher 336, 1396 Healy v. McMurray 1016 a v. Rowan 137 Heams v. Bance 418 Heap v. Tonge 132 Heaphy v. Hill 767 Heard v. Pilley 768 v. Stanford 616 Hearle v. Greenbank 109 Hearn v. Baker 604 a Hearne v. Benbow 917 Hearst v. Pugol Heartley v. Nichols 113 973 Heasman v. Pearse 480 Heath v. Bucknall 927 6 v. Fisher 665 a v. Hall 1047 v. Hay 326 v. Lewis 291c v. Perry 603 Heatley v. Thomas 1394, 1400, 1401 Heaton v. Dearden 656 v. Fryberger 114, 164/ Heavenridge v. Mondy 111, 153 Hebb v. Hebb 606 Heburn v. Warner 1399 a Hecht v. Spears 1226 Heckard v. Say re 776 Hedges v. Everard 796, 799 v. Harper 1067 6 v. Hedges 606 Heiss v. Murphy 1169 Heister's Lessee v. Fortner 404 Heli, In re 1336 Hellman v. Reis 667 Help Creek Co. v. Shultz 1318 Hemans v. Lucy 1201 5 Hemings «. Pugh 462 a Hemmer v. Cooper 203/ Hemming v. Clutterbuck 1123 a v. Maddick 850 Hemmings v. Munckley 290 Henderson v. Dukey ' 138 h v. Huey 498 5 v. Lacon 196 v. McDuffee 496 a v. Royal British Bank 440 6 v. Vaulx 604 Hendrick v. Hopkins 230 v. Whittemore 498 v. Wood 683 a Hendricks v. Snedicker 788 v. Toole 33, 61 Hendrickson v. Hinckley 894, 1436, 1582 Heneage v. Hunloke 160 Henkle Royal Assurance Co. 152, 153, 157 to 159, 770 a Henley v. Cooke 131 Henn v. Walsh 672 a Hennell v. Kelland 894 v. Whitaker 1247, 1247 a Hennessey v. Brag 1261 c v. Western Bank 1036 Henry v. Tupper 1326 a Henry County v. Winnebago, &c. Co. 1520, 1521 a Hensman v. Fryer 565 Hentz v. Long Island Railroad 927 Hepburn v. Auld 777, 778, 796 lvi INDEX TO CASES CITED. Hepburn v. Dundas 71, 776 v. Dunlop 116, 161, 197, 770, 777 Hepburn's Appeal 987 a Hepwill v. Knight 776 Herbert v. Cook 1576 v. Herbert 1382, 1387 In re 1065 a v. Mechanics', &c. Assn. 645 v. Salisbury, &c. R.R. Co. 1314 v. Wren 626, 632 Herbert's Case 1358 Hercy v. Birch 666 Hereford v. Griffin 939 Heriot's Hospital, Feoffees of, v. Gibson . 927 Herman v. Rogers 736 Hermann v. Hodges 730 Heme u. Meyrick 565 Heron v. Heron 309, 1201 v. Newton 1208 Herrick v. Ames 667 v. Belknapp 1457 a, 1457 b v. Blair 1454 Herriman t>. Skillman 645 Herring v. Clark 1365 c Herrington v. Williams 700 Hertford «. Boore 776 Hervey v. Smith 929 b v. Young . 199 Hess v. Voss 310, 658 Hess's Estate 499 e Hessing v. McCloskey 370 Hetherington v. Hixon 1400 Hettrick's Appeal 229 Z>, 694 a Heuser v. Harris 1164, 1167, 1169, 1190 Heward v. Slagle 543 a Hewes v. Dehon 1248 a Hewitt v. Crane 309 v. Kaye 607 a v. Loosemore 391, 393, 399, 400 a, 1020, 1226 v. Wright 790, 793 Heydock v. Stanhope 1036 Heyland v. Badger 1030 Heyman v. Dubois 499, 502 a, 1035 d Heyn's Case 1476 Heysham v. Heysham 1355 Heywood, Ex parte 506, 1045, 1216 v. Waring 1216 Hibbard v. Eastman 882 ». Lambe 1287 Hibbert v. Cooke 1237 v. Hibbert 666 i). Rolleston 177 Hibernia, &c. Society v. Ordway 64 e Hickenbotham v. Blackledge 654 Hickerson v. Raiguel 146 Hickok v. McKay 1041 Hicks v. Campbell 372 b, 694 a v. Chapman 1353 Hickson v. Witham 353, 362 Hidden v. Jordan 1016 b Hide v. Pettit 744, 959 Higbee v. Camden, &c. R.R. 924 Higgin v. Lyddal 416 Higginbotham v. Hawkins 518 Higgins v. Frankis 634 a v. Higgins 1375 v. Jenks 955 v. Mills 1527 v. Somels 749 a Higgins's Case 164 Higgs v. Dorkis 654 v. Northern A. Tea Co. 1047 High v.- Worley 1214 a Highberger v. Stiffler 229 b, 694 a Hile v. Davison 906 Hileman v. Wright 157 Hill v. Barclay 725, 727, 1313, 1315, 1316, 1321 to 1323, 1326, 1326o v. Beach 677 v. Beebe 1035 c a. Bishop of London 1196 a, 1200, 1245 v. Boyle 975 a, 1040 h v. Buckley 779 v. Burns 1164 v. Curtis 533 v. Epley 1541 v. Fulbrook 655 v. Gray 198, 212 a v. Hill 607 d v. Kelly 499 b v. Lane 33, 184 v. Paul 1040 d, 1040/ v. Pine River Bank 1201 c v. Robbins 459 b v. Rockingham Bank 709 v. Simpson 422, 424, 579, 580, 1128, 1257 v. South Staffordshire Railway Co. 1537 v. Spencer 298 v. Thompson 934 v. Turner 598 v. Walker 579 a Hillersden v. Grove 1074 b Hilles v. Parrish , 1562 Hills v. Croll 958, 958 a v. Loomis 1018 v. Miller 927 v. Rowland 1321 Hillyard v. Mut. Ben. L. Ins. Co. 1314 Hilton v. Barrow 698 INDEX TO CASES CITED. lvii Hilton v. Biron 1476 o. Duncan 749 c v. Eckerstey 292 v. Lord Scarborough 858 t). Woods 799, 1057 c Himes v. Keller 493, 499, 499 a Hinchliffe v. Hinchliffe 1109, 1111 Hincksman v. Smith 336, 338 Hind's Lessee v. Longworth 359, 362 Hindley i>. Emery 799 v. Westmeath 1422, 1428 Hindson v. Weatherell 313 Hine v. Dood 400 o, 402, 403 v. Handy 95 Hines v. Perkins 1226 v. Rawson 900 Hinton v. Hinton 239 v. Parker 537 v. Sparkes 1318 Hipwell v. Knight 776 Hirst v. Denham 951 v. Tolson 472, 474 Hiscock v. Phelps 674 Hise v. Foster 1318 Hitch v. Davis 607 a v. Wells 1447 Hitchcock v. Giddings 140, 142, 143 Hitchen v. Birks 836 Hitchins v. Hitchins 629, 1088 Hixam v. Witham 554 to 556 Hixon v. Cuppy 1372 Hoagland v. Delaware 759 a Hoare v. Brembridge 33, 184, 700 a v. Contencin 162 v. Osborne 482, 1164, 1170 a Hobart v. Countess of Suffolk 1200 Hobbs v. Davis 370 v. Norton 64, 387 Hobday v. Peters 243 a, 312 a, 1277 d Hobson v. Bass 499 d v. Blackburn 1180 v. Hobson 1400 v. Sherwood 654 v. Trevor 1040 6 Hooker v. Gentry 1214 a Hockley v. Mawby 1067 b Hoddy V Hoard 81 a Hodgens v. Hodgens 1417, 1418, 1419 a Hodges v. Griggs 711 a v. Hodges 1422 o. Pingree 508 v. Smith 811 v. Tennessee 1018 v. Waddington 92 Hodgkinson v. Wyatt 159 Hodgman v. Birbby 1520 d v. Chicago, &c. R.R. • Co. 959 a Hodgson v. Anderson 1039 v. Butts 354, 1241 v. Murray 906 v. Shaw 494, 499 to 499 d Hodkinson v. Quinn 1064 c Hoff's Appeal 1248 e Hoffman v. Beard 653 Hogan v. Delaware Insurance Co. 158, 161 i>. Jacques 1199 Hogg v. Kirby 931 to 933, 951 Hoggart v. Cutts 814 v. Scott 777 Hogsett v. Ellis 1016 Holbird v. Anderson 370, 1036 Holbridge v. GiUespie 1016, 1019, 1211 Holbrook v. Connor 198 v. Harrington 1060 v. Sharpey 302, 694, 696 Holcomb v. Stimpson 118 Holden ». Pike 1233 a Holder v. Chambury 87, 684, 684 6, 684 c Holdich v. Holdich 1088 Holditch v. Mist 640 Holdredge v. Webb 193, 221 Holdsworth v. McCrea 939 Holland v. Holland 654, 1286 v. Hughes 1273 v. Prior 423, 581 Holley v. Adams 432 b Holliday v. Atkinson 607 c Hollier v. Eyre 883 a Hollinrake v. Edwards 717, 759 v. Lister 1315, 1320 v. Whiting 768 Hollis v. Claridge 1216 v. Edwards 717, 759 Holloway v. Clarkson 1065 b v. Headington 372, 433, 706 a, 767, 793 6, 973, 987, 988, 1040 c v. Holloway 951 a v. Millard 176, 352, 353, 355, 356, 359, 361, 362, 363, 372 Holman v. Johnson 61 Holmes v. Clark 361 v. Coghill 169, 170 v. Custance 180, 181 v. Day 499 b, 499 c v. Dring 1274 v. Field 291 b v. Higgins 664 v. Holmes 71, 763, 1105, 1426 v. McGinty 1016 v. Mead " 1169 v. Penney 369 lviii INDEX TO CASES CITED. Holmes v. Shepard 684 v. Taber 481 Booth & Hayden v. Holmes B. & A. M. Co. 951 Holroyd v. Marshall 1021 a, 1040 a Holsman v. Boiling Spring Co. 929 d, 929 e, 951 h Holt v. Corporation of Rochdale 927 v. Holt 90, 725 v. Rogers 771 Holton v. Meighen 1018 6 Holtscomb v. Rivers 529, 1528 Holtzapfiell v. Baker 102 Holworthy v. Mortlock 897 Home v. Pillans 604 a v. Pringle 1268, 1283 a Homer v. Homer 972 Homfray v. Fothergill 729 Hone ». Brether 142 Honeyman v. Marryatt 736 6 Honner v. Morton 1410 to 1413 Honore v. Hutohings 1206 Hood v. Aston 906, 955, 995 v. Fahnestock 400 v. North Eastern R. Co. 721 a Hook v. Payne 1277 Hooker v. Pynchon 715, 1318 Hookham «. Pottage 667 Hooley v. Hatton 1123 a Hooper v. Brodick 959 a v. Dundas 285, 289, 291 b v. Eyles 1201 Ex parte 760, 762, 1020 v. Logan 1227 Hoover v. Calhoun 735 Hope v. Carnegie 589 b, 890 v. Hayley 1040 a v. Hope 959 g, 1409 a v. Liddell 1261 b Hopgood v. Parkin 1268 Hopkins v. Adams 86 a Ex parte 1340 v. Fetcher 33, 882 v. Gilman 722, 767 v. Hopkins 969, 983, 1049 v. Mazyck 138/ Hopkinson v. Rolt 1023 c Hopkisk v. Randolph 425 Hopper v. Congers 533 v. Hopper 723 Hopson v. Commonwealth 111, 1065 6 Hopwood v. Hopwood 1109 Hord v. Miller 729 Horde v. The Earl of Suffolk 1164 Horn v. Gilpin 466 v. Horn 367, 368, 604, 1132 v . Keteltas 1018 v. Ludington 760 Horn v. Thompson 1323 Hornblower v. Shirley 777 Hornby v. Gordon 824 a Horncastle v. Charlesworth 646 Hornesby v. Finch 1208 v. Lee 1413 Horrell v. Waldron 529, 597, 600 Horridge v. Ferguson 1065 6 Horsburg v. Baker 1319, 1494 Horsford v. Marvin 653 Horton v. Baptist Church 822 v. McCoy 1357 v. Sayre 670 Horwood v. West 1068 Hosack v. Rogers 112 Hosea v. Jacobs 1170 Hosford v. Merwin 658 Hoskins v. Hoskins 1208 Hosmer v. True 1328 Hotchkin v. Dickson 129 Hotchkiss v. Fortson 231 Hotham v. Stone 499 6, 499 d Hotz's Estate 291 c Hough v. Barton 86 v. Beard 1452 v. Richardson 191, 193, 1521a Houghton, Ex parte 1206 v. Hapgood 488 a v. Houghton 309 a, 674 v. Kendall 822 Houghwont v. Boisaubin 793 u House v. Grant 607 a v. Thompson 642 Houser v. Lamont 755 Houston v. Clark 1375 Hout v. Hout 139, 176 Hovenden v. Lord Annesley 529, 975, 1520, 1521 Hovey v. Blakeman 1281 v. Hill 1018 d How v. Tenants of Broomsgrove 855 v. Vigures ' 1026, 1029 v. Weldon 246, 251, 332 Howard v. American Society 1154 d, 1494/ v. Brown 591 v. Castle 293 v. Digby, Earl of 1375 a, 1396, 142o u. Edgell 246, 769 v. Henriquez 951 v. Howard 542 v. Lee 926 v. Menifee 1376 v. Moffat 1408 v. Puffer 138/ v. Shrewsbury, Earl of 257 c v. Snelling * . 428 INDEX TO CASES CITED. lis Howarth v. Deem 400 v. DeweU 1068 b Howden v. Rogers 1473, 1475 Lord, v. Simpson 293 a Howe v. Conley 769 v. Earl of Dartmouth 604, 1269 v. Harrington 372 b v. Hunt 749 c v. Mckerson 729 v. Russell 1018 v. Sheppard 1434, 1436 Howell v. Baker 313 v. Buffalo 700 v. George 733 to 735, 742 v. Price ' 571, 1016, 1065 v. Ransom 311 Howe's Heirs v. Rogers 763, 1520 a Howkins v. Jackson 160 Howland v. Norris 796 Howse v. Chapman 1164 Hoxie v. CaiT 675, 1207, 1243 v. Price 1373 Hoy v. Bramhall 1025 v. Smythies 769 a Hoysradt v. Holland 502 Hoyt v. Thompson 1049 Hubbard v. Curtis 678 v. Eastman 1575 v. Hubbard 654 v. Jarrell 1027 v. Miller 292 v. Shaw 1016 Hubbell v. Currier 33, 381, 434 v. Meigs 198 v. Van Schoening 771, 776 v. Warren 956 Huddleston v. Williams 891 Huddlestone v. Huddlestone 624 Hudnor v. Wilder 425 Hudson v. Bennett 951 / v. Cook 564 a v. Hudson 1209 v. King 769 v. Kline 897 Hudson River Railroad Co. v. Loeb 924 Hudspetch v. Thomason 81 a Huff v. Shepard 767 v. Wight 1400 Huffman v. Humer 770, 776, 790, 793 u Huger v. Huger 322 a Huggins v. Alexander 1091 Hughes v. Davis 519 v. Edwards 1520 v. Gamer 508 v. Kearney 1217, 1220, 1224 to 1266 Hughes v. Science 1332, 1333, 1352, 1353, 1358 v. Stubbes 793 a v. Trustees of Mordon College 870 v. Wynne 1521 a Hughs v. Boyd 291 b Huguenin v. Baseley 236, 239, 246, 256, 308, 315, 331, 834, 861, 959 Hugunin v. Cochrane 1228 Hulett ». Whipple 1228 Hull v. Sherwood 499 6, 499 c v. Sturdivant 715 Hulme v. Chitty 64/ v. Coles 883 a v. Hulme 1280 v. Tenant 1390, 1392, 1397, 1399 to 1401 Humbard's Heirs v. Humbard's Heirs 742 Humble v. Bill 422, 1128 v. Humble 1521 6 Hume v. Pocock 777 a, 793 r v. Richardson 1270 a Humphrey v. Browning 1233 c v. Clement 769, 793 t v. Humphreys 604 Humphreys v. Harrison 914 Humphries v. Brogden 927 a v. Leggett 1582 Hunnewell v. Charlestown 700, 959 a Hunsden v. Cheyney 271, 387 Hunt v. Coachman 897 v. Elmes 408 v. Frazier 138 k v. Hunt 238 v. Johnson 1375 v. Matthews 254 v. Moore 238 v. Peake 927 o v. Rousmaniere's Adm'rs 111, 113 to 116, 121, 122, 125, 137, 153, 154, 161 to 163 v. Rowland 64 e v. Scott 604 Hunter v. Atkins 310, 311 v. Bales 747, 784 v. Belcher 462 a v. Boyen 138 k v. Bullock 1156 v. Christoph 157 v. Daniel 1048, 1048 a, 1049, 1050 v. Hunter 1280 v. Naif 295 v. Walters * 411, 1020 Huntington v. Allen 700 lx INDEX TO CASES CITED. Huntington v. Gilmore 607 a Hurd v. Eaton 633 v. Hall 111 Hurlbert v. Pacific Insurance Company 1434 Hurlburt v. Phelps 131 Hurlbut v. Mayo 1575 a Hurley v. Brown 767 v. Hollyday 1226 Hurlock v. Smith 1227 Hurry «. Hurry 654 Hurst v. Beach 507 a, 593, 596, 602, 1123 a v. Sheldon 824 a Hurt v. Wilson 1047 a Huss v. Morris 164/, 17 a Hussey v. Christie 1246 v. Coffin 1281 Hustin's Adm'rs v. Cantril 367 Hutchins v. Heywood 974 a, 1201, 1204 Hutchinson v. Massareene 831 v. Tindel 231 Hutson v. Furnas 141 Hutter v. Ellwanger 1044 Hutton v. Dewey 1427 v. Moore 1227 v. Simpson 511, 627 Hyde v. Cooper 768 v. Hyde 567 v. Parret 604, 844 v. Tanner 161, 162 v. Tracey 498 v. White 343 v. Whitfield 1470, 1475 Hylton v. Biron 1476 v. Hylton 263, 313, 318, 320 ». Morgan 1493 Hyman v. Devereux 1016 Hyslop v. Clarke 1036, 1036 a I. Ibbotson v. Elam ». Rhodes Iglehart v. Crane v. Gibson v. Lee 482 393 1025 771 894 Hchester, Lord, v. Carnarvon 574 Imperial Gas-light Co. v. Lon- don, &c. Co. 1521 a Merc. Credit Assn. v. Coleman 323, 1261 Inchbald v. Barrington 925 a, 927 e Inches v. Hill 979 Inchiquin v. French 572, 972 Incledon v. Northcote 568, 1376 Indianapolis, &c. Co. v. Indian- apolis 928 v. The Grand Mas- ter, &c. 1494/ Ingalls v. Morgan 633 Ingersoll v. Roe 307 Ingham v. Bickerdike 1339 Ingle v. Hartman 315 u. McCurry 896 v. Partridge 1273/ v. Richards 1277 c Inglis v. Trustees of Sailors' Snug Harbor 1169, 1170 Ingraham v. Meade 1065 b v. Wheeler 1036, 1036 a Ingram, In re 1273 6 v. Morecraft 925 e v. Pelham 410 Inhab. of Princeton v. Adams 1191 a Inman v. Inman 1020 In matter of New South Meet- ing House 1191 a Innes v. Jackson 734, 1373 v. Mitchell 1065 a In re Baber's Trusts 1045 Baker's Trusts 1364 a Barned's Banking Co. 406 Beak's Estate 607 a Bellasis' Trust 983 Brookman's Trust 983 Brown's Trusts 400 6 Brown's Will 983 Carr's Trust 1410, 1412 Catlin Assignee v. Foster 370 Chapman 900 Chawnor's Will 1027, 1064 c Church Estate Charity 1170 Clinton's Trust 983 Cochran's Estate 499 b, 499 d Coleman 369 Cork, &c. R. Co. 298 Cunningham's Settlement 974 Curteis' Trusts 973, 1204 Dagenham Dock Co. 1314 David Cornwall Davies' Trusts De La Touche's ment Duggan's Trusts Dyke's Estate Edwards European Bank Faithful Ferrior Fiddey Fox Frost Gamier Gibson 1520 1061, 1062 a Settle- 164 d, 485 1040 170, 171 983 408, 408 a 1233 J 836 1233 c, 1545 633 1565 6 1364 a 1364 a INDEX TO CASES CITED. bd In re Grabowski's Settlement 482 Graham 1351 Holmes' Estate 310 Howarth 1346, 1354 Huish's Charity 777 a Ibbitson's Estate .1214 a Insole 1420 Jefferys' Trusts 1061 Johnson 836 Kerr's Policy 1020 Kilvert's Trusts 1170 Lander's Estate 633 Lawton Estates 480 Lush's Trusts 1419 Lynch's Estate 633 Magdalena Steam Navi- gation Co. 298 Maguire 1170 Mainwaring's Settlement 983 Mower's Trusts 645 Natal Investment Co. 1047 Newberry 959 m Newman 312 Oriental Coml. Bank 645 Palmer & L. & S. C. R. Co. 959 m Parkinson & G. W. R. Co. 959 m Paschal 1233 c Peacock's Estate 1111 Pedder's Settlement 983 Phillips' Trusts 482 Pierce & Holbrook 370 Pollard's Trusts 1200 Potter 1361 Professional L. Ins. Co. 643 Richardson 1027 Rorke's Estate 633 Russell Policy Trusts 421 6 Russell Road Purchase- Moneys 1000 Sanderson's Trust 1200 Sankey B. C. Co. 1021 a, 1040 Sarah Collins 1364 a Skinner 1347 e Spicer & Peckham v. Ward & Trow 370 State F. Ins. Co. 643 Strickland 1365 5 Suggitt's Trusts 1417 Tarsey's Trusts 1383 Tayleure 1511 Teague's Settlement 974 Tichener 400 b Viant's Settlement 985 Watmough's Trusts 1193 Wilkinson 1062 a Wood's Estate 482 Wyndham's Trust 1065 b In re Wynne 1364 a Insurance Co. o. Bailey 33, 700 a Inwood v. Twyne 1357 Irby, In re 1365 5 Iresen v. Denn 1023 Irick v. Black 639 v. Fulton 143 Irion v. Mills 361 Irish v. Huested 1214 a v. Nutting 607 a Irnham v. Child 113, 120, 153, 154, 156, 251, 768 L-oin v. Dixion 926 Irons v. Smallpiece 606 Irvin v. Creditors of Bond 544 Irvine Adm'rs v. Armistead 626 v. Kirpatrick 194, 197, 204, 207 Irving v. Sullivan 1068 b v. Young 528 Irwin v. Dixion 926 Irwing v. Farrer 1394 Isaacson v. Harwood 1286 Isham v. Gilbert 71, 74 e Isler v. Baker 673 Israel v. Douglass 1039, 1041 Ithell v. Beane 422, 987 Ive v. Ash 295 Ives v. Ashley 322 v. Metcalfe 1451, 1454, 1498 Ivie v. Ivie 704 Ivory v. Burns 972 v. Murphy 769 Ivy v. Gilbert 1064 v. Kekewick 1490 Jack v. Naber Jackman v. Mitchell Jackson's Assignees v. Jackson v. Burgott v. Burke v. Burtis v. Butler v. Caldwell v. Cator v. Cleaveland v. Cocke v. Dewitt v. Duchaise v. Ferris v. Given v. Hammond v. Hankey v. Henry v. Hill v. Hobhouse ' 138 ifc 379, 695, 700 Outright 760 184 459 6 1062 703, 709 375 388 1197 724 1035 6 338 1060, 1062 410 1194 1354 6 410 1403, 1414 1080 a, 1080 b Ixii INDEX TO CASES CITED. Jackson r. Jackson 670, 1206, 1207, 1249, 1273 v. Leap 544, 549 v. Lever 104 v. Lorn as 379 v. McChesney 1503 a v. Moore * 1201 v. Nealy 400 v. Ogg 1521 b v. Petrie 744, 1294, 1470 v. Phillips 1169, 1170, 1194 g v. Robinson 1437 & Sadler, Ex parte 379 v. Sharp 397 v. Snell 64 g v. Summerville 203 a v. Thorpe v 162, 163 v. Town 359, 364, 427 v. West 397 Jacobs v. Allard 927 v. Amyatt 1384 v. Morange 111, 120, 126 v. Peterborough and Shir- ley Railroad Co. 759, 763 v. Richards 229 a Jacobsen v. Williams 1411 Jalabert v. Chandos 161 James v. Allen 1164 v. Bydder 793 c v. Dean 1211 v. Downes 892 Ex parte 322 v. Hawkins 704 v. Hubbard 1233 a v. James 951, 1020, 1026 v. Kynnier 1435, 1436 v. Lichfield 400, 779 v. Marcy 1035 a, 1035 b v. Morgan 188, 331, 1303 v. Scott 845 v. Stratton 677 Jamison v. Barelli 1228 v. May 897 v. Petit 615 Janon v. Rany 1528 v. Solarte 1494 January v. Rutherford 1287 Jaques v. Methodist Epis. Ch. 1390 Jarman v. Woolcotton 1385 Jarratt v. Aldam 706 b Jarret v. Andrews 1355 Jarrold ». Heywood 941 a v. Houlston 941 a Jarvis v. Brooks 675 v. Chandler 887, 894 v. Duke 191, 196, 204 v. Palmer 161 v. Rogers" 1034 Jasan v. Toulmin 529 Jaudon v. National City Bank 977 a Jaycox v. Caldwell 1372 Jee v. Thuriow 1428 Jefferson v. Bishop of Durham 864, 909 Jeffersonville v. Patterson 959 a Jefiery ». Stevens 770 b Jefferys v. Jefierys 372, 433, 706 a, 793 a, 793 b, 987, 1040 c Jeffrey v. Bowles 941 Jeffries v. Jeffries 749 v. Wister 315 Jeffs v. Day 1045 v. Wood 1119, 1431, 1435, 1436 Jegon v. Vivian 799 Jenkins v. Hill 1127 v. Houghes 1074 "b v. Kemis 107 v. Lord Clinton 1065 c «. Parkinson 1470 v. Pye 309 v. Stetson 339, 1040 c Jenkyn v. Vaughan 360 Jenks v. Cook 1198 Jenner v. Harper 1171 v. Jenner 309 a, 337 b v. Morris 704 v. Morgan 481 Jenness v. Howard 231 Jennings v. Broughton 263 6, 1537 v. Moore 408 v. Whitemore 1572 Jerome v. Scudder 769, 779 Jerrard v. Saunders 410, 631, 1508 Jersey City, &c. R.R. v. Jersey City, &p. R.R. 252 Jervis v. Smith 645 v. White 698, 700, 702 Jervois v. Northumberland, Duke of 979, 983, 984 Jesse v. Roy 471 Jeston v. Key 986 Jesus College v. Bloom 64 h, 67, 69, 467, 513, 516, 518 Jeter v. Barnard 544 Jew v. Thirkenell 479 v. Wood 811 Jewell v. Lee 737 Jewson v. Grant 503 v. Moulton 372, 598, 103S, 1229, 1403, 1407, 1408, 1410, 1411 Joanna Gordon, In the Matter of 1365 Jodrell o. Jodrell 132, 480, 1375 a, 1427 Joest v. Williams 221 Johne's Case 459 e Johnes v. Lockhart 1382, 1383 Johns v. Norris 771 v. Sewell 1227 INDEX TO CASES CITED. lxiii Johnson v. Aston 841 v. Atkinson 812 v. Bennett 1214 a v. Bowden 759 v. Brown 421 v. Clendenin 1473 v. Coleman 252 v. Cornett 1018 c v. Cummins 1401 h v. Curtis 523, 526, 527 v. De la Creuze 603 v. Dougherty 1201 v. Fesemeyer 310 v. Gallagher 1397, 1401 v. Hathorn 187 v. Hopkins 771 v. HubbeU 180 a v. Huston 1018 v. Johnson 90, 493, 1201 c, 1412, 1415, 1417 v. Kennett 1132 v. Lander 1421 a v. Lewis 1018 c v. Lugg 1226 v. Medlicot 230, 231 v. Mills 603, 846 v. Ogilby 294 v. Ossenton 370 v. Powell 695 a v. Spies 607 a v. Stagg 403 v. Sugg 1226 v. Thorndike 959 m v. Twist 1208 v. Vail 1401 c v. Vaughn 496 a v. West 360 v. Wyatt 1520 d Johnston v. Haynes 1355 v. Johnston 763 Johnstone v. Beattie 1351, 1352 a, 1353 In re 1338 a v. Swann 1164 Jolland v. Stainbridge 400 a, 402 Jolley v. Jacques 939 Jones v. Alephsin 1473 v. Badley 1068 b, 1193 v. Bailey 1027 a v. Baird 183 v. Barkley 379 v. Bennet 1459 v. Blanton 496 a v. Bolles 184, 695 a v. Boston Mill Corp. 1456 a, 1458 a v. Boulter 359, 364, 365 v. Bowles 1502 v. Bradford 449 e v. Brewington 1018 Jones v. Caswell 293 v. Chappell 927 v. Croucher 352, 425 v. Davids 409, 499 6, 499 d v. Deyer 607 a v. Earl of Suffolk 1307 v. Edwards 1214 a v. Geddes 900 v. Gowan 298 o. Goss 1226 v. Hall 425 v. Harris 1397, 1398, 1401 v. Higgins 1382 a, 1545 In re 1338 v. Jones 72, 184, 440, 633, 1445, 1447 v. Kearney 243 a v. Lewis 1269 v. Little Rock 893 a, 959 m v. Lock 973 v. Marsh 372, 375 v. Martin 252, 273, 382 v. Morgan 486, 1100, 1109, 1111 v. Munroe 120, 126 v. Newhall 33 v. Noble 769, 776 v. North 958 v. Noy 673 a v. Ogle 480 v. Peppercorne 1253 a v. Quinnipiack Bank 499 v. Randall 1065 a v. Eicketts 337 b v. Robbins 776 v. Roberts 312 v. Roe 1040, 1040 b, 1040 c v. Sampson 1173 v. Selby 606, 607 v. Sheriff 161 v. Smith 345 a, 399, 400 a, 418, 419, 1020, 1023, 1030, 1032, 1034 v. St. John's CoUege 1314 v. Thomas 311, 813 b v. Thompson 677 v. Tripp 310 v. Waite 1428 v. Westcombe 1208 v. Whitaker 435 v. Williams 400 a, 1164 v. Yates 681 Jones' Appeal 987 a Jope v. Morshead, 646, 653 Jopp v. Williams 614 Jordan v. Corley 895 v. Lowe 1067 6 v. Money 987 a v. Stevens 120, 138 I v. Woodward 928 lxiv INDEX TO CASES CITED. Jordell v. Jordell 1289 a Jortin, Ex parte 1178 Joslin v. Brewitt 1208 v. Wyman 1035 c Joslyn v. Pacific Mail St. Co. 959 m v. Smith 326 Joy v. Campbell 1281, 1283, 1284 v. Gilbert 1064 v. Joy 704 Joynes v. Stratham 155, 156, 161, 742, 768, 770, 770 a Judd v. Mosely 1198 Judge v. Reese 1018 Julian v. Reynolds 321 Juliana, The 332 Juzan v. Toulmin 199, 204 K. Eain v. Old 160 Kampshire v. Young 1450 Kane v. Bloodgood 975, 1520 v. Roberts 355 Kami's Estate 1357 Kantrowitz v. Prather 1400 Kanzas Valley Bank v. Milo 1023 b Katz v. Moore 876 a Kauffman's Appeal 723 Kaye, In re 1347 d Keane v. Roberts 580, 581, 1129 Kearney v. Jeffries 1481 v. Macomb 1096 v. Sacer 146, 166 v. Vaughan 97, 1357 Kearsley v. Cole 326 Keate v. Allen 266, 267 Keates v. Cadogan 198, 212 a Keaton v. Miller 633 Keble v. Thompson 1284 Keech v. Hall 1017 Keegan v. Williams 784 Keeler v. Taylor 292, 769 Keeling v. Brown 1247 Keen v. Jordan 79 Keene v. Clark 950 a. Kimball 950 v. Munn 571 v. Wheatley 950 Keighler v. Savage Manuf. Co. 876 a Keily v. Monck 280, 290, 608 Keir v. Leeman_ 294 Keisselbrach v. Livingston 161 Keith v. Globe Ins. Co. 158, 164/ v. Goodwin 164 a Keiting v. Sparrow 1322, 1326 Kelk v. Pearson 927 b Kekewick v. Manning 717, 793 c, 1035 a Kekewick v. Marker Keller v. Williams Kelley v. Davis v. Jenness v. Power Kellock's Case Kellogg v. Ames Kelly v.- Hutton v. Morris 915 495 1347 b 1201c 1001 645 1035 c 951 939 v. Solari 138, 138 c, 140 Kelso v. Tabor 1401 i Kemble v. Kean 722 o, 758, 758 a, 958, 959 a Kemp v. Pinden 492, 495 v. Mackrell 897 v. Pryor 691, 700 v. Westbrook 1031 to 1033 Kempe v. Antill 559 v. Pryer 11, 64, 64 6, 64 i, 80, 81 Kemper v. Kemper's Adm'r 606 Kempshall v. Stone 797, 798 Kempson v. Ashbee 309 a Kendall v. Almy 767, 769, 771 v. Davis 951 a v. Dow 886 v. Granger 1156 a, 1164 Ex parte 162, 163, 327 a, 559, 560, 562, 633, 638, 643, 644, 676, 1253 v. Mann 1201 v. May 1365 6 i;. United States 1044 . v. Winsor 900 Kenestons v. Sceva 607 a Kenge v. Delavall 1400 Kennard v. George 113, 138 k Kennedy v. Brown 527 a v. Carpenter 164 v. Daly 410 v. Earl of Cassillis 899 v. Green 399, 400 b v. May 1347 c v. Panama, &c. Co. 196, 694 a v . Parke 1047 v. Sedgwick 1074 e v. Stainsby 1208 Kennell v. Abbott 182, 183 Kenney v. Clarkson 140 Kenny v. Udall 1361, 1403, 1407, 1412 Kensington v. Dolland 1383, 1384 Ex parte 1020 Lord v. Mansell 1493 a Kenson's Case 1171 Kent v. Elstob 1450, 1455 Ex parte 1354 v. Freehold, &c. Co. 1539 a INDEX TO CASES CITED. lxv Kent v. Kent v. Pickering v. Richards v. Riley Kenyon v. Clark v. Welty v. Worthington Keppel v. Bailey Ker v. Ker v. Wauchope Kernaghan v. Williams Kerr v. Purdy v. Union Bank 522 550, 890 885 360, 361 886 120 548, 549 737 633 1085 959 m 793 u 824 a Kerrich v. Braraby 184, 440, 1449 a Kershaw v. Thompson 959 Ketchum v. Stout 141, 779 Kettleby v. Atwood 790, 987 Key v. Bradshaw 274, 275 City, &c. Co. v. Munsell 896 v. Flint 1435 v. Simpson 138/ Keys v. Williams 1020 Keyser's Estate 1248 e Kidder v. Page 645 Kidney v. Coussmaker 356, 360 to 362, 556, 1092, 1098, 1247 Kilborn v. Bobbins 1018 e, 1035 c Kildare, Earl of, v. Eustace 744 Kilgour v. Crawford 654 KiU v. Hollister 1457 Killian ». Bartlett 221 Kilmorey v. Thackeray 722 Kimball v. Gray 695 a Kimber v. Barber 315, 316 a Kimberley v. Dick 1457 b v. Jennings 758 a, 769, 798 Kimm v. Weippert 1400 Kimpland v. Courtney 1040 Kinaston v. Clarke 1216 c Kinder v. Jones 929 Kindefley v. Jervis 987 a Kine v. Balfe 763 King v. Baldwin 33, 71, 80, 324, 326, 327, 456, 457, 493, 499, 639, 641, 849, 883 v. Bardeau 777 v. Burr 1404 v. Clark 74 a v. Cotton 273 v. Doolittle 120, 130 v. Dupine 368 v. Dennison 1196 a, 1244 to 1246 Ex parte 1023 v. Greenhill 1341 a v. Hamilton 751, 769 to 771, 776 v. Hamlet 339, 340, 346, 906 v. King 907, 1476 EQ. JUK. — VOL. I. c King v. McVicker v. Rossett v. Ruckman v. Smith v. Talbot v. Whiting v. Wilson 634, 642 458 767, 776 915, 1016, 1026 1269 a, 1277 986 776, 779 King's Heirs v. Thompson 793 b King, The, v. Bennet 502 v. Lords' Commiss. of the Treasury 1040/ v. The Free Fishers of Whitstable 508 v. Watson 1036 King of the Two Sicilies v. Will- cox 1494 Kingham v. Lee 515 Kingsley v. Gilman 1400 Kingsman v. Kingsman 758 Kinnoul v. Mooney 1023 Kintner v. Blair 1018 Kirby v. Bruns 1401 c, 1401 i v. Carr 673 a Kirk v. Clark 13,68 v. Eddowes 1102, 1105, 1111, 1112, 1113 v. Queen 955 a v. Webb 1201 Kirkbank v. Hudson 1164 Kirkby v. Duke of Marlborough 459 d, 459 g Kirkby Ravensworth Hospital, Ex parte . 1161 Kirkman v. Bank of America 499 e v. Kirkman 1106 v. Miles 790, 793 v. Smith 486 Kirksey v. Kirksey 755 Kirkwood v. Thompson 323 Kistler's App. 1198 Kitchin v. Kitchin 925 i Kitson v. Kitson 1088 Kittredge v. McLaughlin 1016 a Klapwbrth v. Dressier 1016 d Kleine v. Catara 1455, 1456 Kleiser v. Scott 499 d Kline v. Kline 987 a Kloepping u. Stellmacher 246 Klopp v. Lebanon Bank 499 e Knapp v. Marshall 1277 Knellcamp v. Hidding 228 Knickerbocker L. Ins. Co. v. Weitz 1400 Knifong v. Hendricks 895 Knight v. Boughton 1068 a, 1070 v. Bowyer 1520 v. Cameron 290 v. Davis 566 a v. Ellis 1067 b lxvi INDEX TO CASES CITED. Knight v. Gardner 925 a v. Knight 1068 to 1070, 1074, 1384 v. Lord Plymouth 1269, 1271, 1273 Knightley v. Knightley 1246, 1247 Kniskern v. Lutheran Church 1191 a Knoll v. Harvey 762 Knott v. Cottee 1068 a, 1338 a Ex parte 416, 417, 419, 436, 1034, 1215 v. Morgan 951 Knowles v. Carpenter 1035 c v. Haughton 298, 671 v. Inches 859 Knox v. New York 924 v. Symmonds 1451, 1454 to 1456 Knye v. Moore 703, 709 Korns v. Shaffer 1027 Kraker v. Shields 522 Kramer's Appeal 633 Kreiser's Appeal 1098 Kruger v. Wilcox 506 Kruse v. Steffens 322 Krutz v. Fisher 316 Kuhn v. Mack 33 v. Stansfield 372 b Kuhner v. Butler 301 Kulm v. McNeil 700 Kurtz v. Hibner 655, 763 v. Sponable 1016 Kuypers v. Reformed Dutch Church * 74 d Kyger v. Hull Skirt Co. 1372 Kyles v. Tait 1226 Labaree ». Colby 1400 Lacam v. Mertins 559, 560, 562, 576 Lacey, Ex parte 322 v. Ingle 416, 417, 421 Lachlan v. Reynolds 203 b Lackersteen v. Lackersteen 164 b Lacon v. Mertins 755, 756, 758, 760, 762, 763, 765 Lacy v. Anderson 1080 Ladd v. Pleasants 144 a Lady Thynne v. Earl of Glengall 1097, 1101, 1105, 1109, 1115 Laidu. Scott 364 Laidlow v. Organ 148, 149, 192, 197, 207,211,212 a Laight v. Morgan 74 c, 74 e Laing v. McKee 203 g, 768 Laird v. Birkenhead Railway Co. 1538 Lake Bigler Road Co. v. Bedford 700 View v . Letz 924 a v. Craddock 674, 1206, 1207, 1236 v. DeLambert 1287 u. Gibson 1206, 1243 v. Meacham 164/ Lakin, Ex parte 1354 Lambe v. Eames 1068 b, 1071, 1073 Lambert v. Lambert 1423, 1424 v. Thwaites 1061 Lamborn v. Covington Co. 924 a Lamlee v. Hanman 348 Lammot v. Bowley 138/ Lampert v. Lampert 1368, 1371 Lampet's Case 990, 1036, 1039 Lamphir v. Creed 1387 Lamplugh v. Lamplugh 1198 v. Smith 111 Lampson v. Arnold 370 Lamson v. Drake 1023 e Lanahan v. Gahan 863 Lancashire v. Lancashire 1464 Lancaster & Carlisle Railway Co. v. N. W. Railway Co. 1561 Lance v. Norman 195 Lane v. Dighton 1201, 1202, 1210, 1260 v. Husband 972, 1036 a v. Leadbetter 941 v. Marshall 33, 64 i v. Morrill 955 a v. Newdigate 927 v. Schomp 893 o, 959 m v. Stacy 499 e v. Williams 676 Lanesborough v. Jones 1435, 1436 Laney v. Jasper 928 Lanfair v. Lanfair 1326 a Lang v. Bank of U. States 130 v. Brevard 326 v. Whidden 225 Lange v. Work 292 Langford v. Gascoyne 1269, 1280, 1281 In re 1269 a Langham v. Nenny 1062 a, 1394, 1405 u. Sanford 596 Langley v. Brown 153 v. Earl of Oxford 1057, 1129 v. Fisher 252 v. Thomas 1065 a Langmead's Trusts, In re 676 a Langstaffe v. Fenwick 135 Langston v. Boylston 807 to 809, 814 Ex parte 1020 v. Langston 1065 6 «. Ollivant 1284 v. Tompkins 1326 a INDEX TO CASES CITED. lxvii Langthorne v. Swinbourne 327 Langton v. Horton 1035 a, 1040, 1040 b, 1055, 1502 v. Waite 724 b, 1031 Lanning». Carpenter 114 Lanoy v. Duchess of Athol 1233 a, 1255, 1355 v. Duke of Athol 558, 559, 563, 633 Lansden v. McCarthy 1040 Lansdowne v. Lansdowne 116, 122, 125, 137, 513, 514, 517, 518 a Lansing, v. Eddy 895, 897, 1573 Lantry v. Lantry 972, 1198 Lapham v. Clapp 1246 Large v. Van Doren 1018 e Large's Appeal 1214 a Larkin v. Mann 566 c, 654 Larkins v. Biddle 138/ Larmon v. Jordan 700 Lashbrooke v. Tyler 1425 Lasher, In re 1365 a Lassels v. Cornwallis 170, 176 Lassence v. Tierney 987 d, 1080 a Latham v. Morrow 201, 293 v. Staples 1227 Lathrop v. Dales 499 6 v. Gilbert 1372 b v. Smalley's Ex'rs 1287 Latimer v. Eddy 959 m La Touche v. Dunsany 401, 402,- 404, 420 Latourette v. Williams 1403 La Trobe v. Hayward 523, 1228 Laughter'-s Case 1307 Laurens v. Read 566 b Lavender v. Blackstone 374, 987 a v. Stanton , 1133 Laver v. Fielder 1520 d Laverty v. Hall's Adm'x 771 u. Moore 747 Lavette v. Sage 234 a Law v. East India Co. 326 v. Law 263, 295 Lawes v. Gibson 482 Lawless v. Shaw 1069 Lawley v. Hooper 186 Lawrence v. Beverly 790 v. Cornell 499 i). Kidder 292 v. Lawrence 81 a, 77, 1081, 1088 v. Smith 931, 932, 936 to 938 Lawson v. Hudson 576 v. Laud 767 v. Lawson 1208 Lawton v. Campion 138/ Layard v. Maud 1020 Layer v. Nelson 492 Lazell v. Lazell 85 Lea v. Hinton 638 a Leach v. Beattie 466 v. Fobes 724 a 729, 793 r v. Leach 1276 v. Taft 724 6 v. Trollop 1504 Leader v. Purday 939 Leaf v. Coles 673 a Leaird v. Smith 776 Leake v. Leake 1109, 1474 v. Morrice 760 v. Robinson 604 a Learning v. Sherratt 604 a Leardett v. Johnson 935 Learned v. Holmes 185 Leary v. Cheshire 499 Leather C. Co. v. Am. Leather CI. Cot 951 c Leather Cloth Co. v. Lorsont 292 a Leavitt v. Palmer 114 Lechmere v. Charlton 574, 575, 1003, 1248 v. Earl of Carlisle 790, 973, 987, 1104, 1106 v. Fletcher 164 v. Lavie 1069 Lechullier v. Castleman 69 Leddel's Ex'r v. Starr 309 a, 706 Ledyard v. Butler 433 Hartford v. F. Ins. Co. 164 & Lee v. Alston 455, 517, 518 v. Boak 607 a v. Brook 327 v. Cox 1105 v. Green 370 v. Haley 951 h v. Howell 320 v. Howlett 1035 a v. Kirby 769 ' v. Kirkpatrick 1551 v. Muggeridge 1390, 1394 v. Overstreet 1318 v. Page 670 u. Peirce 217,218,308 v. Prieaux 1380, 1382 v. Rook 730, 850 ». Ruggles 700 v. Sankey 1280 a Leeds v. Marine Insur. Co. 1216 a, 1217, 1437, 1437 a Banking Co. In re 1401 e Duke of, o. Ld. Amherst 518 a v. New Radnor 69, 87, 457, 622, 684, 684 b, 684 c lxviii INDEX TO CASES CITED. Leeds, Duke of, v. Powell 87, 99 a, 622, 684 v. Strafford 619 Leeds v. Wakefield 1061 Leeke v. Bennett 604 Lees v. Massey 604 a v. Mosley 1065 b v. Nuttall 315, 316, 1211 a Lefaver v. Bellinger 451 Lefevre's Appeal 674 e Lefferts v. Calumet County 959 a Lefle v. Bailee 140 Legal v. Miller 161 Legard v. Hodges 1231 v. Johnson 1422, 1424, 1425, 1428 Leger v. Bonaire ■ 140 Legg v. Goldwire 160 Legge v. Asgil 1182 Leggett v. Dubois 1201 b v. Mutual L. Ins. Crf. 1318 v. Postley 74 a Le Guen v. Gouverneur 895 Lehman v. Logan 1469 Leicester v. Rose 324 Leigh v. Barry 1280 v. Macauley 840, 1257, 1259 v. Munroe 390 v. Norbury 1065 a, 1065 b v. Park ' 59 v. Rook 639 v. Savidge 566 c Leighton v. Leighton 859, 1111, 1446, 1447 Leiper's Appeal 1214 a Leitch v. Wells 406 Leith Banking Co. v. Bell 215 Leman v. Newman 576 v. Whitley 758, 1196, 1199 Le Marchant v. Le Marchant 1068 b Lemon v. Phenix M. L. Ins. Co. 167 Lempster v. Pomfret 74 a, 704 Lench v. Lench 1201, 1210, 1232, 1260 Le Neve v. Le Neve 186, 397, 410 Lenon ». Sapper 89, 741, 748, 775, 1014 Lentillon v. Moffat 1036 Lenty v. Hillas 157 Leonard v. Earl of Sussex 983 v. Jackson 355, 359, 427 v. Leonard 121, 122, 124, 130 to 132, 140, 147, 148, 217 v. Simpson 550 Lepper v. Nuttman 193 a Lepypre v. Farr 74 d Lerch v. Oberly 1214 a Leroy v. Veeder 71, 82 Lesley v. Shock 886 Leslie v. Guthrie 1038, 1055 Lester v. Howard Bank 61 v. Kinne 762, 764 L'Estrange v. L'Estrange 1040 d Le Texier v. Anspach 1496 Lett v. Morris 1041, 1044 Letton v. Goodden 858 Leverton v. Waters 653 Levy v. Barker 227 v. Brush 768 v. Levy 1447 v. Rutley 939 Lewellyn v. Cobbold 273 Lewers v. Earl of Shaftesbury 749 c Lewin v. Okeley 64/, 552 Lewis v. Allenby 1193 v. Baird 404, 529 v. Carpenter 1226 v. Chapman 959 a v. Christian 913 v. Denkgrave 886 Ex parte 1476 v. Fullerton 939, 941 v. Hillman 311, 315 • v. Langdon 667 v. Lechmere 723 v. Levy 896 v. Lewis 566 o, 571, 1248 c v. Llewellyn 162 a v. Maddocks 1210, 1231, 1260 v. Matthews 977, 1397 a o. Mew 405 and Nelson's Appeal 64 e v. Pead 236 v. Stein 927 Lexington, &c. Co. a. Apple- gate 927 Ley v. Ley , 482 Lick v. Ray 700 Liddard v. Liddard 1068 6 Liddell v. Norton 1061, 1261 a Liddel's Ex'r v. Starr 824 a Lidderdale v. Montrose 1040 d Liebman v. Harcourt 1210, 1260 Light v. Light 1365 b Lightner v. Menzel 1318 Ligon v. Rogers 108 Like v. Berresford 1412, 1418 Lilia v. Aiery 1368, 1400, 1401 Lillie v. Legh 737 a Lilly v. Hayes 1041 v. Palmer 1035 c Lime Rock Bank v. Phetteplace 674, 1027 Lincoln v. Rutland and Burling- ton R.R. 807 Lincoln, Countess of, v. Newcastle 974, 983 to 985 INDEX TO CASES CITED. Ixix Lincoln, Lady, v. Pelham 1065 6 v. Wright 1522 a v. Wright 298 Lindenau v. Desborough 216 Lindley v. Cross 1400 Lindsay v. Lynch 763, 764, 766, 767 v. Pleasants 790 o. Price 1046 Lindsey v. Bates 1047 a, 1227 Lingan v. Simpson 667, 709, 710 v. Sowray 790 Lingard v. Bromley 505 Lingood v. Croucher 1500 v. Eade 1452 Lingwood v. Stowmarket Co. 927 Lining v. Peyton 1134 Linkous v. Cooper 777 a Linn v. Barkey 157 Linton v. Hurley 1040 h v. Hyde 1196 Linzee v. Mixer 737, 929 6 Lipincott v. Lipincott 1060 Lippencott v. Barker 1036 Lipscomb v. Lipscomb 482, 571 Lisle v. Liddle 700, 700 a Lister v. Hodgson 706 b, 979 b v. Pickford 1273 e v. Tidd 1023 e v. Turner 375 Litterdale v. Robinson 499 d Little v. Birdwell 291 c v. Cooper 74 c Littlefield v. Tinsley 777 a Livermore v. Peru 111 Liverpool, &c. Co. u. .Hunter 900 v. Wilson 1023 e Livingston v. Clarkson 656 6 v. Livingston 684, 684 6, 918, 927 to 929, 1368, 1372 v. Lynch 959 v. Newkirk 64/, 571, 572, 577 v. Ogden 927 v. Balli 670 v. Tompkins 1319, 1322 Llewellyn v. Kous 480 Lloyd v. Atwood 322 v. Banks 400 b, 1023 e v. Branton 284, 287 v. Brooks 973, 983 v. Collett 776 v. Galbraith 564 c v. Gurden 906 v. Higbee 164/ v. Johnes 487 ». Loaring 709, 710 v. Lloyd 285, 291 c, 604 a, 1164 Lloyd v. London, Ch. & D. Railw. Co. 778 e v. Mason 1417 v. Pughe 1375 v. Read 1201, 1201 a, 1202, 1204 v. Spillet 969, 1199, 1201, - 1202 v. Williams 1417, 1418 Loaring, Ex parte 1226 Lobdell v. LobdeU 763 Lock v. Bagley 983 v. Fulford 1025 v. Lynam 667 Lockard v. Lockard 894 Locke v. Lomas 1134 Lockerson v. Stillwell 1231 c Lockett v. Hill 1027 Lockey v. Lockey 763 Locking r. Parker 975, 1015 Lockley v. Eldridge 473 Lockton v. Lockton 1060 Lockwood v. Ewer 1031, 1033 v. Thome 527 Lodge v. Lisely 1503 b v. Turman 1018 b Loffus v. Maw 1549 d Loftin v. Espy 709 Logan v. Fairlie 1354 b v. Gigley 298 v. Simmons 273 v. Thrift 1381 v. Wienholt 715, 751, 786 Lohman ». Crouch 64 e Loker v. Rolle 619 Lomas v. Wright 565 Lombard v. Boyden 1065 6 London and Birmingham Railway v. Winter 755, 770, 770 a &c. R. Co. v. Lanca- shire, &c. R. Co. 928 C. Bank of Australia v. Lampriere 1401 a City of, v. Mitford 1324 Londonderry v. Baker 793 i Long v. Bowring 793 I v. Dennis 286, 287 v. Heinreich 1056 v. Rickets 288 v. Smith 895, 896 v. Stewart 1263 v. Towl 292, 1318 v. Walkinson 1065 b Longbottom v. Berry 710 b Longford v. Eyre 174 Longhurst v. Star Ins. Co. 138 I Longley v. Hudson 700 v. Longley 1200 Longman v. Winchester 900, 940 lxx INDEX TO CASES CITED. Longmate v. Ledger 238 a Lowther v. Carlton 408, 410 Longmore v. Eleum 1289 a v. Lowther 315, 709 Longuet v. Scawen 1019 Lowthian v. Hasel 413, 417, 1034 Lonsdale v. Littledale 1450, 1500 Loxley v. Heath 987 a Loomis v. Hudson 138 I Loyd v. Loyd 654 v. Loomis 1047 Lubbock v Potts 298 v. Tift 350 Lucas v. Calcraft 628 Lopdell v. Creagh 529 v. Commerford 716. 726 Lord v. Jeffkins 336, 345, v. Jones 1193 347 v. King 653 Durham v. Wharton 1111 v. Lucas 1375, 1380 Lilford v. Powys Keck 1220 v. Warswick 146 Petre v. Eastern Counties R. 293 a, Luce v. Hartshorn 677 293 6 Luck's Appeal 1018 6 v. Sargeant 499 Luckett v. Williamson 777, 793 r v. Whightwick 1248 d Lucketts v. Townsend 1033 v. Wormleighton 550 Ludlow v. Grayall 1217 Lorimer v. Iiorimer 509, 655 v. Simons 57, 71, 80, 326, Loring v. Bacon 1235 449 451, 456, 457, v. Eliot 983 458, 464, 522 Ex parte 1226 v. Van Ness 440 6 v. Marsh 1062 Luff v. Lord 1277 c v. Thorndike 1065 6 Lumb v. Milnes 1381 to 1383 Lorkey v. Lorkey 511 Lumley v. Wagner 722 a, 958, 958 a, Loscombe v. Russell 260 959 a v. Wintringham 1181 Lumsden v. Buchanan 1273 c Losee v. Morey 769 Lund v. Seamen's Bank 824 a Loss v. Obry 166, 1572 Lunn v. Thornton 1040 Lothrop v. Amherst Bank 1049 Lunt v. Bank of North America 1047 v. Wightman 677 Lupton v. Lupton 92, 572, 1246 Loud v. Charlestown 700, 959 a v. White 468, 623 Lovat v. Lord Ranelagh 1324 Lush v. Wilkinson 356, 360, 362, Love v. Baker 890, 900 363 v. Carpenter 667 Lutes v. Briggs 955 a v. Cobb ' 769 Lutheran Church,«. Maschop 241 Loveridge v. Cooper 1035 a, 1057, Lutkins v. Leigh 564, 565 1196 Luttrell v. Lord Waltham 252, 256 Lovering v. Worthington 974 Lycett v. Stafford, &c. R.R. Co. Low v. Barchard 244 12316 v. Burron 989 Lyddon v. Moss 312 a v. Staples 700 Lyde v. Munn 722, 729 „. Ward 942 v. Mynn 123.1 Lowe v. Bryant 762 Lyford v. Thurston 982 a v. Joliffe 1447 Lyman v. Bonney 252, 1252 v. Peers 274, 275, 1318 v. Briggs 564 c, 1233 a v. Richardson 815 v. Calrfer 164/ v. Thomas 1074 d v. Cessford 361 Lowell v. Daniels 245 a, 1553 a v. Estes 1436 Lowndes v. Chisolm 138/ v. Lyman 1233 d v. Cornford 808 v. Robinson 736 c v. Lane 195, 778 v. United Ins. Co. 152, 153, Lowry v. Bourdieu 298 157, 158 v. Bumngton 742, 759 Lyme v. -Allen 1572 v. Howard 369 Lyne v. Sumrall 1382 v. McGee 973 Lynn v. Gephart 1214 a v. Muldrow 724 a Lynch v. Provisional Govt, of v. Read 959 m Paraguay 587 v. Spear 337, 729 v. Rotan 1337 Lowson v. Copeland 1274 1 v. Sumrall 72 INDEX TO CASES CITED. Ixxi Lyon v. Acker 1065 d v. Lyon 131, 1201 v. Mcllvaine 1035 c t>. Mitchell 1067 ft v. Richmond 111, 113, 116, 126, 131, 137, 138 * v. Saunders 116 Lyons v. Blenkin 1339, 1341 v . Miller 74 c Lysaght v. Royse 1336, 1362, 1364, 1365 v. Walker 459 a, 459 g Lytle v. Beveredge 321 Lytton, Sir Ed. Bulwer, v. Great N. Railway Co. 1567 M. Maber v. Hobbs 972, 1045, 1384 Macartney v. Graham 86 a Macaulay v. Phillips 1410, 1412, 1413, 1415, 1417, 1418, 1426 v. Shackell 1493 a, 1514, 1515 Macbryde v. Weekes 776 MacCabe v. Hussey 695 Macclesfield v. Davis 709 Macdonald v. Bell 501 i'. Macdonald 569, 587 Macedon Plank Road Co. v. Lapham 1558 Machem v. Machem 180 a Machette v. Hodges 958 a, 959 a Machir v. Morse 303 Mack v. Petter 939 Mackay v. Brackett 891 v. Douglas 360, 361 Mackenzie v. Coulson 158 v. Johnston 457 to 459, 464 v. Mackenzie 1065 b v. Robinson 1026 Mackett v. Mackett 1068 b Mackie v. Darling 1361 a Mackintosh v. Townsend 1184, 1185 Mackreth v. Symmons 64 d, 396, 416, 789, 1201, 1217 to 1219, 1220 to 1222, 1224, 1226 to 1228 Maclaren v. Stainton 482 Maclin v. Richardson 943 Maddeford v. Anstwick 199, 220, 323 Maddison v. Chapman 604 a, 1074 e Maddox v. Maddox 291 b v. Simmons 229 b Madeiros v. Hill 1307 Madgwick v. Wimble 672 a Madison v. Andrew 1061, 1202 , Maffit v. Rynd 972 Magdalena Steam Nav. Co. 1537 Magee v. Leggett 499 e v . Magee 1227 Magie v. The Dutch Church 1194 d Magill ii. Brown 1142 Magoffin „. Holt 776, 777 a Magrafi v. Muir 749 b Magrath v. Morehead 983 Magruder v. Campbell 1047 a v. Peters 499 d Maguire v. Maguire 1328 v. Smock 292 Mahana v. Blunt 763 Maher v. Hobbs 273 Mahon v. Savage 1065 6 Mahone v. Williams 1016 a, 1027 Mahony v. Hunter 190 Maier v. Homan 292 Main v. Melbourne 760 Mainwaring v. Newman 679 Mair v. Himalaya Tea Co. 959 m Maitland v. Backhouse 309 v. Irvine 309 Major v. Lansley 1380, 1391, 1393, 1412, 1413 Makeham v. Hooper , 1180 Makepiece v. Rogers 462 a Malady v. McEnary * 1372 Malcolm v. Andrews 1469 v. Charlesworth 1055 v. O'Callagan 287, 290 Maiden v. Merrill 108, 139, 165 Male v. Smith 395, 629 Malet, In re 164 d Malim v. Keighley 1068, 1068 a Malin v. Garnsey 371 v. Malin 236 Malins v. Brown 761 v. Freeman 770 Maloney v. Horace 1553 ft Mallory v. Horan 1545, 1553 6 v. Mallory 1201 Mallory's Adm'r v. Craige 534 Maloy v. Sloans ' 1206 Maltby's Case 215 Man v. Macpherson 440 v. Ward 184 Manahan v. Gibbons 1281 Manaton v. Moles worth • 862 Manby v. Brunke 1521 v. Robinson 809 Manchester, S., &c. Railway Co. v. The Workshop Board of Health 925 a Manchester School Case 1170 a, 1494/ Mandeville v. Mandeville 828, 836, 839 v. Welsh 1020, 1040, 1043, 1044, 1056 lxxii INDEX TO CASES CITED. Manes v. Durant 273 Manhattan, &o. Co. v. Barker 924 Manlove v. Bale 1227 Manly v. Slason 1226 Mann v. Ballett 1175 v. Betterly 238 i>. Thompson 604 a v. Utice 700 Mann's Extrx. v. Falcon 1016 Manners v. Manners 650 Manning v. Albee 203/ v. Gill 228 v. Lechmere 1527 v. Manning 1268, 1277 v. Purcell 1449 a v. Spooner 571 v. Wadsworth 666 Manning's Case 990 Mannox v. Greener 566 c Mansel v. Mansel 994 Mansell v. Payne 526 Manser v. Black 161 Mansfield's Case 229 Many v. Beekman Iron Co. 1483 Mapps v. Sharpe 1018 e Marak v. Abel 298 Maraton v. Squire 651 Marble Co. v. Ripley 669, 695 a, 718, 729, 769 v. Whitney 138 k Marbury v. Brooks 1036, 1037 March v. Davison 74 a, 74 b, 1483, 1495 Marchington v. Vernon 1041 Marcy v. Dunlap 64 e Mardree v. Mardree 1403 Mare v. Sandford 379 Margaret v. Regius Professors in Cambridge 1175 Margetts v. Barringer 1382 Margrave v. Le Hooke 1023 Marine Ins. Co. v. Hodgson 105, 887, 894 to 897 Markham v. Howell 911 v. Mayor, &c. 929 a Marks v. Pell 1018, 1019 Marksbury v. Taylor 190 Marlatt v. Warwick 298 Marlborough v. Godolphin 105 a, 1388 Marler v. Tommas 787 Marlin v. Jewell 886 Marlow v. Adams 799 a Marples v. Bainbridge 285, 289 Marquand v. N. Y. Manuf . Co. 677 Marquis of Bute v. The Glamor- ganshire Co. 610, 621 Downshire v. Lady Sandys 912, 915 Ormand v. Kinnenly 515 Marquis of Townshend v. Stan- groom 737 a Marr v. Bennett 400 Marriott v. Marriott 536, 590 Marryatts v. White 459 b, 459 d Marsh v. Billings 951 a v. Brooklyn 700 v. Conquest 942 v. Falker 196 v. Lee 412, 414 v. Marsh 1372 v. Pike 499 Marshall v. Baltimore and Ohio Railroad 293 b v. Caldwell 749 c v. Collett 137 v. Colman • 667, 673 v. Crutwell 1202, 1206 v. Gray 196 v. Halloway 1268 a v. Johnson 667 j;. Moore 633 v. Moseley 481 v. Ross 951 g v. Rutton 1397, 1400, 1428 v. Stevens 321 v. Watson 667, 673 a Marshfield v. Weston 443, 1528 Marston v. Dewberry 677 v. Rowe 700 Marten v. Margham 1176 Martico v. Righter 1540 Martin v. Clarke 1057 c v. Graves 695 a v. Hamlin 13 v. Headon 799, 927 b, 929 c v. Heathcote 1520 v. Jones 959 m v. Jordan 198 v. Martin 64/, 546, 547, 549, 890, 1374, 1416, 1419 v. Mitchell 734, 735 v. Morgan 213, 214 o. Nicolls 903, 1576 v. Nutkin 958 v. Perryman 652, 656 a v. Rebow 1208 o. Stiles 927 v. Veeder 936, 1057 c t). Wade 295 v Westbrook 694 a v. Wright 934 v. Zellerbach 306 Martindale v. Martin 1143 v. Piguot 1233 a Martinetti v. Maguire 936 Martinius v. Helmuth 808, 814 Martyn v. Hind 1041 Marvin v. Elwood 807, 816 INDEX TO CASES CITED. Ixxiii Marvine v. Drexel 829 Marwood v. Turner 996 Mason v. Armitage 161, 724, 742 v. Bogg b. Crosby 564 6, 675 193 v. Day 1357 v. Gardiner 64 e, 301 v. Goodburne 1505, 1511 v. Hamilton 820 v. Mason 1520 a v. Masters 1403 v. Owen 771 v. Payne 777 a v. Pearson 141 v. King . 310 v. Rollins 955 a Massenburgh v. Ash 974 Massey v. Banner 458, 459, 1269, 1270 v. Davies 315, 462 v. Parker 1381, 1383 v. Sherman 1068 i). Watts 743, 744, 899, 1297 Massy v. Rowen 983, 1383 Master v. Fuller 1400, 1401 v. Kirton 673 Masters v. Masters 566, 1103 Masterton v. Beers 749 6 Mastin v. Barnard 1062 v. Mario w 729 Mather v. Frazer 700 a Mathew Manning's Case 844 Mathews <>. Bliss 207 v. Jones 954 v. Terwilliger 138/ Mathewson v. Stockdale 940 Matter of Roman Catholic Society 975 of Vanderveer 190 Matteson v. Scofield 736 c, 744 Matthewman's Case 1401 a Matthews ». Aikin 499 6 v. Cartwright 412, 417, 1034 v. Feaver 367 v. Heyward 1260, 1357 v. Keble 1316 a v. Newby 542 v. Switrees 459 h v. The Trustees 959 m v. Walwyn 523 v. Warner 1464 Mattingly v. Nye 361 Mattison v. Tunfield 1065 c Mattocks v. Tremain 1474 Maturin v. Tredinnick 203 e Mauck v. Mauck 675 Maude v. Maude 1074 6 Maughlin v. Perry 736 a Maul v. Rider 404 Maunder v. Lloyd 683 a Maundrell v. Maundrell 395, 410, 412, 1392, Ki02 Mawhorton v. Armstrong 698 Mawman v. Tegg 935, 942 Mawson v. Fletcher 736 c v. Stork 330, 374 Maxon v. Ayers 700 Maxwell v. Hyslop 1096 v. Montacute 768, 1018 May v. Bennett 93 v. Coffin 111 v. Hook 891 v. Le Claire 799, 1259 v. May 706 6 v. Rice 475 a, 482 Mayfield v. Kilgour 370 Mayhew v. Crickett 324, 326, 498, 499 v. Phoenix Ins. Co. 239 Mayne v. Bredwin 1341 v. Griswold 80, 81, 1521 Mayn v. Mayn 983 Mayo v. Carrington 246, 336 Mayor of Brecon v. Seymour 416 of Colchester v. Lowton 700 of Coventry v. Attorney- General 1289 of Gloucester v. Wood 1065 d, 1069 of Hamilton v. Hodson 1065 b, 1071 of York v. Pilkington 855, 856, 893 v. Society, &c. 1191 a &c. of New York v. Baum- berger 924 Mayott v. Mayott 1065 6 McAleer v. Horsey 195 McAlister v. Butterfield 180 a McAllister's Ex'r v. McAlister 626 McAninch v. Laughlin 116, 151 McAulay v. Western Vt. R.R. Co. 1231 b McBee v. Myers 339 McBride v. Little 886, 895 McCaa v. Woolf 64 g, 1403 McCabe v. Swap 632, 1035 e McCall's Appeal 654 McCall v. Harrison 1250 v.. Parker 240 McCandless's Estate 1520 a McCann v. White 1228 McCarogher v. Whieldon 1107 McCarroll v. Alexander 1201 McCartee v. Orphan Asylum So- ciety 976, 1154 d McCarthy v. Decaix 120, 137 lxxiv INDEX TO CASES CITED. McCarthy v. Goold 294, 367, 1039, 1040 d McCartney v. Bostwick 982 a v. Calhoun 321 v. Garnhart 951 McCarty v. Deming 790 v. Kyle 769 McCatter v. Laurence 760 McClane v. Shepherd 1520 a McCleary v. Besine 499 b McClellan v. Darrah 769 v. Kinnaird 904 v. Osborne 466 v. Sanford 157 McClintic v. Ocheltree 1382 a McClintock v. Laing 730, 767, 771 McChmg's Appeal 292, 958 a, 959 I McClure ». Harris 1226 McClurg v. Phillips 1020 v. Terry 222, 251 McClusky v. Prov. Instn. for Sav. 1374 McCoUum v Peewitt 1493 '6 McComas v. Easley 729, 742, 770 a McCord v. O'Chiltree 1146, 1154, 1154 c, 1156 a, 1166, 1328 McCormick's Appeal 633, 645, 675 McCormick v. Garnett 140 v. Grogan 1068 b v. Malin 239 o. Penn. C. R.R. 1376 v. Wheeler 408 McCrae v. Hollis 146 McCrea v. Holdsworth 939 v. Purmost 736 a McCreight v. Foster 788 McCrillis v. Bartlett 228 McCulloch v. Dawes 579 a v. Gregory 203 b, 449 b In re 1339 McCullough's Appeal 291 b McCullum v. Gourley 298 v. Turpie 1025 McCune v. Belt 499 McDaniels v. Bank of Rutland 138/ v. Colvin 1023 d McDole v. Purdy 1226 McDonald v. Davis 518, 518 b u. Murphree 959 a v. Neilson 64 e, 244 v. Richardson 1277 a McDonough v. Shewbridge 1025 McDougal v. Armstrong 704, 846 McDougald v. Capron 1023 McDowall v. The Blackstone Ca- nal Co. 459 a McDurmut v. Strong 368 McElfresh v. Sohley 1080, 1086 McElheny's Appeal 221 McElwee v. Sutton McFadden v. Jenkins McFerrin v. White McGarvey v. Hall McGee v. McGee McGillicuddy ». Cook McGinnis v. Edgell McGoon v. Shirk McGowan v. McGowan McGowin v. Remington McGrath v. Reynolds 74 a 793 a, 973 1400 717 1469 606 203 64 e 667, 1201 e 74 b, 724 a 607 a McGregor v. Chase 1035 g, 1037 b v. Deal and Dover Railway 959/ # v. Topham 1447 McGuire v. Peay 1018 v. Stephens 759, 767 McHenry v. Davies 243 a, 1401 a v. Hazard 813 b, 824 a Mcllvaine v. Gethen 291 b v. Smith 974 a Mclndoe v. Morman 769 b Mclntier v. Shaw 1018 b Mclntire v. Bowden 736 a Mcintosh v. Saunders 152 Mclntyre v. Hernandez 896 v. Skinner 768 McKay v. Green 546, 549 McKecknie v. Sterling 102 McKee v. Campbell 498 v. Judd 1040 g McKelway v. Armour 143 McKenzie v. Johnson 691 v. Powis 1521 McKeogh v. McKeogh 382 McKibbin v. Brown 722, 736 c McKim v. Voorhees 900 McKinley v. Irvine 321 McKinnel v. Robinson 308 McKinney v. Pope 304 McKnight v. Robbins 720 v. Taylor 1520 McKnight's Ex'rs v. Walsh 1268 a, 1277, 1354 a, 1355 McLachlan v. Tait 604 a McLain v. School Directors 1171 a McLane o. Johnson 361 McLaran v. Mead 1372 McLaughlin v. Bank of Potomac 362 v. Barnum 1237 v. McLaughlin 64 e v. Piatti 717 McLaurie v. Partlon 1372 v. Thomas 1226 McLean v. Long-lands 1375 v. Towle 499 v. Walker 1030 McLearn v. McLellan 1217, 1218, 1248 McLemore v. Powell 326 INDEX TO CASES CITED. lxxv McLenahan v. McLenahan 576, 1248 a McLeod v. Board 987 a v. Drummond 422, 424, 579, 580, 693, 1129 McLin v. Marshall 239 McMahon v. Fawcett 499 d v. McGraw 315 v. Smith 310 McMartin v. Bingham 458 McMullen v. Harbert 1017 McMurray v. Spicer 767 v. St. Louis, &c. Co. 120 McNaughten v. Partridge 112, 138/ McNeal v. Glen 369 McNeil v. Magee 771, 1502 McNeill v. Bradley 829 v. Cahill 268, 380, 382 v. Jones 764 McPike v. Pen 700 McQueen v. Farquhar 255, 410, 1449 a McRarey v. Huff 1198 McRoberts v. Washburne 858 . McSorley v. Larissa 799 a, 1016 b Mc Vicar v. Wolcott 895 McWilliams v. Webb 1047 Meach v. Meach 606 v. Perry 761 Meacham v. Sterne 1268 Meacher v. Young 1354 a Mead v. Combs 372 b v. Heirs of Longdon 99 v. Merritt 744, 899, 900, 1291 v. Lord Orrery 400, 405, 406, 422, 424, 580, 1017 Meader v. Norton 252, 1198, 1521 a Meador v. Meador 1020 Meals v. Meals 598 Meason v. Kaine 666, 769 Mechanics' Bank of Alexandria v. Lynn 769, 775, 776 Bank of Alexandria v. Seton 724, 1257 Building & Loan Ass. v. Conover 1035 b &c. Ass'n v. Conover 645 Medlicott v. Bowes 1437 v . O'Donnel 410, 420, 436, 631 Medsker v. Swaney 1027 Me*dworth v. Pope • 1065 c Meehan v. Forrester 1018 Meek v. Carter 1321 v. Kettlewell 433, 729, 793 a Meeley v. Webber 481 Meeting St. Baptist Soc. v. Hail 1169 Mehl v. Von Der Wulbeke 767 Meily v. Wood 674 Meliorucchi v. Royal Ex. Ins. Company 1435 Mellen v. Whipple 1016 d, 1041 Meller v. Woods 1026 Mellish v. Mellish 180 v. Robertson 138/ Mellon's Appeal 566 e Meloy o. Dougherty 700 Melpott v. St. George's Hospital 604a Menagh v. Whitwell 677 Mendenhall v. Treadway 193 a Mendes v. Barnard 1483 Mendizabel v. Machado 1414 Meneely v. Meneely 949 Menifee v. Myers 896 Menom. L. M. Co. v. Langworthy 164/ Merchant Tailors' Co. u. Attorney- General 1178 c Merchants' Bank v. Davis 74 c v. Packard 824 v. Stevenson 1252 b Trading Co. v. Banner 727 Meredith v. Heneage 1068 a, 1069, 1070 v. Watson 607 b v. Wynn 774 Merewether v. Herran 336 v. Shaw 272, 391 Merithew v. Sampson 491 Merkle v. Wehrheim 770 Merriam v. Harsen 1395 v. Hassam 975, 1520 a Merrick's Trusts, Re 1123 b Merrill v. Bartlett 1242 v. Bullock 1381 v. Chase , 1018 e v. Englesby 1046 a v. Humphrey 64 e, 959 a Merrill's Administrator v. Mer- rill's Heirs 987 a Merrimack Manuf . Co. v. Garner 951 c Merriman v. Cannavan 896 Merrit v. Lambert 1049 Merritt v. Bartholick 1018 c v. Brown 771, 776, 793 u Ex parte 891 v. Shrewsbury & Chester Railw. Co. 1561 Merry v. Ryves 257 Mertins v. Joliffe 400, 410 Mesgrett v. Mesgrett 257 Messer v. Boyle 1027 a Messiter v. Wright 632 Mestayer v. Gillespie 176, 256, 779, 781 Metcalf v. Cady 33 v. Hervey 74 d, 806, 809, 811, 812, 821, 1490 v. Pulvertoft 406, 908 v. Putnam 138/ Metcalfe v. Archbishop of York 1231 v. Beckwith 613, 617 In re 1181 lxxvi INDEX TO CASES CITED. Methald v. "Walbank 294 Methodist Episcopal Church v. Jaques 1394 to 1396 Metier v. Metler's Estate 959 I Metropolitan Bank v. Durant 252 Board of Works v. Metropolitan R.R. Co. 927 a Cos. Society v. Brown 147, 710 a Metteer v. Wiley 1088 Meux v. Bell 399, 824, 1035 a, 1047 v. Howell 1036 v. Maltby 400 Meyer v. Sesser 64 e Meyn v. Belcher 255 .Michael v. Morey 987 Michaud v. Girod 322, 1520 a Michigan, &c. Bank v. Gardner 1253 a Micklethwait v. Micklethwait 518 a Middlecome v. Marlow 372 Middleditch v. Sharland 462 Middleton v. Jackson 856 v. Middleton 187 v. Pollock 1444 v. Spicer 1180, 1196 ft, 1208 v. Windross 1093 Middleton's Case 1152 Middletown Bank v. Russ 64 k, 71, 72, 74 e, 456 Milbourn v. Ewart 1371 Mildmay v. Hungerford 113, 124 v. Mildmay 919, 1425 Mildred v. Austin 1023 Miles v. Caldwell 1573 v. Miles 1528 v. Stephens 140 v. Williams 1039 Milhau v. Sharp 929 a Milkman v. Ordway 33, 749 c, 796 Millard v. Eyre 1287 v. Harvey 1522 6 Millegan v. Cooke 779 Miller v. Antle 1198 v. Atkinson 1169 v. Brown 1400 v. Chetwood 161 v. Chittendon 1154 c v. Colter 707 v. Conklin 1036 v. Cook 342 d. Davis 81 v. Edwards 1372 v. Ewer 1562 v. Harris 1338 a v. Henlan 771 v. JefEress 606 a v. Marriott 658 a v. Mclntire 529, 1520 MiUer v. Miller 239, 606, 607 a, 607 c, 776, 1520, 1521 a v. Morse 146 v. Ord 499, 502 v. Proctor 674, 1253 a v. Rowan 1164 v. Sable 1182, 1191 a v. Sawyer 499 v. Scammon 185 v. Tabie 799 6 v. Warmingtc n 615, 619, 620, 646, 647, 653, 658 v. Wells 88 Milles v. Wikes 1382 Millingar v. Sorg 1537 Millington v. Fox 951, 951 a Mill River L. F. Ass'n v Claflin 33 Mills v. Banks 1022, 1064, 1064 6 v. Dennis 1025, 1026 v. Eden 499, 558 v. Farmer 1141 , 1153, 1164, 1165 to 1168, 1170, 1170 a, 1171 , 1181, 1182, 1190 v. Hyde 496 a v. Mills 97 293 ft, 004, Im-' < v. 1450 v. Murry 1056 v. Northern R. of E . A. Co. 959 m v. Townsend 811 v. Trumper 481 Millsaps v. Pfeiffer 64 a Milmine v. Burnham 144 Milne v. Walton 1035 c Milner v. Mills 790 v. Milner 179, 180 v. Slater 571, 572, 577 Milnes v. Busk 1371 , 1395, 1396, 1397 v. Genry 1458 a Miltown,. Earl of, v. Stewart 695, 695 a Mil ward v. Hallet 1241 v. Thanet, Earl of 771, 776 Milwaukee, &c. R.R . Co. v. Mil- waukee, &c. R.R. Co. 1040* Mims v. Lockett 761 Miner v. Beekman 1237 v. Hess 157 v. Pierce «78 Minet v. Hyde 1418 v. Vulliamy 1186, 1300 Minnesota Oil Co. &c. v. Palmer 826 Minnier v. Minnier 1370 Minot v. Boston Asylum 1170 v. Mitchell 972, 1198 Minshaw t>. Jordan 700 Minter v. Wraith 1065 6 INDEX TO CASES CITED. lxxvii Minton v. Kirwood 771, 793 o Minturn v. Baylis 767 v. Seymour 433, 706 a, 793 b, 987 Mirehouse v. Scaife 1520 Mississippi v. Johnson 893, 955 a Miss. & Mo. Railw. v. Ward 925 h Misssouriu. Fank 164 Mitchell v. Bunch 899, 900, 1291, 1473, 1475 v. Butt 1226 v. Denson 170, 171 v. De Witt 499 e v. Dorrs 928, 929 v. Greene 70 v. Harris 1457 v. Hayne 807, 821 v. Jones 246 v. Kingman 225 v. Koecker 1494 v. Mitchell 577, 1248 e v. Moore 987 a v. Reynolds 292 v. Smith 1400, 1495 v. Steward 927, 1535 v. Winslow 1040, 1055 Mitchell's Case 1538 Mitchener v. Atkinson 1088 Mitford v. Mitford 1038, 1228, 1229, 1408, 1411 to 1413 v. Raynolds 1164, 1184 Mittnight v. Smith 675 Mix v. Beach 771 Mobley v. Cureton 1520 Mocatta v. Murgatroyd 390 Modlen v., Snowball 793 i Mogg v. Hodges 565, 569, 570, 1180 v. Mogg 1069 b Moggridge v. Thackwell 1070, 1141, 1153, 1155, 1164, 1165 to 1168, 1174, 1181, 1182, 1189, 1190, 1192 Mohawk and Hudson Railroad Co. v. Archer 925 to 927 Mohawk and Hudson Railroad Co. v. Chute 806, 813 a, 824 Mohawk Bridge Co. ;;. Utica and Schenectady Railroad Co. 921, 923, 924 a Mold v. Wheatcroft 1549 Mole v. Mansfield 653 Molesworth, Ex parte 1354 Molony v. Rourke 113 Molton v. Camroux 228, 229 a Monaghan, In re 1365 Monck v. Lord Monck 1117 Mondey v. Mondey 1026 Monell v. Monell 1281, 1283, 1284 Money v. Jorden 876 Moneypenny v. Bristow 1437 a Monis v. Nixon 1018 Monk v. Cooper 101, 102 Monmouth Co. Fire Ins. Co. v. Hutchinson 221 Monroe v. Graves 972 v. Skelton 146 Montacute v. Maxwell 330, 374, 768 Montague v. Dawes 1027 v. Dudman 893, 1483, 1494, 1497 v. Flockton 958 a v. Lord Sandwich 361 Montefiore v. Browne 400 d, 1023 d v. Guedalla 1115 a Montefiori v. Montefiori 271 Montesquieu u. Sandys 311, 313 Montgomery v. Shochey 114 Monumental Building Ass'n v. Herman 240 Moodaly v. Morton 74 a, 1483, 1495, 1514 Moodie v. Bannister 1521 6 Moody v. Holcomb ' 700 v. Payne 677, 678 v. Reid 170, 176 v. Walters 979, 995, 996 v. Wright 1040 Mooers v. White 529 Mooney v. Miller 191 Moor v. Black 626, 628 v. Rainsback 1214 a v. Rycault 372 Moore v. Blake 742, 771, 776 v. Bowman 1553 b v. Cable 1238 v. Crofton 372, 433,793 a, 973, 987, 988 v. Darton 606 v. Edwards 756, 757, 765 v. Ellis 1370 v. Greg 716, 726 v. Hilton 1111 v. Le Suer 589 c v. Lowry 1047 v. Marrable 722 v. McMellen 1456 a v. McNamara 405, 908 v. Moore 90, 92, 973, 1378 v. Petchell 1521/ v. Pickett 972 v. Usher 806, 807, 1049 Moorehead v. Moorehead 652 Mooreman v. Collier 114 Moorhouse v. Colvin 767, 787 Moravian Society, In re 1287 Mordaunt v. Thowld 625, 628 Mordue v. Palmer 166 More v. Bonnet 292 Ixxvih INDEX TO CASES CITED. More v. Freeman v. More Morecock v. Dickens Morehead v. Eades Moreland v. Richardson Morely v. Bonge Morenhout v. Higuera Mores v. Huish Morey v. Bigwood Morgan v. Annis v. Berger v. Dillon 1372 1357 402 203/ 959 c 1528 653 1390 749 6 184 759 1332 to 1334, 1339 Ex parte 1232 v. G-ronow 974 v. Hannas 1268 a v. Harris 74 d v. Higgins 312 a v. Malleson 706 a, 973 v. Marsack 808 v. Mather 1452, 1454, 1456 v. Morgan 604, 776, 778 v. Palmer 916 v. Seymour 493 v. Sherrard 553 v. Skidmore 675 Morgan's Heirs v. Morgan 778 Morganthau v. White 769 Morice v. The Bishop of Durham 1164 Morison v. Moat 667, 952 Morley v. Morley 1023 a, 1269 v. Rennaldson 280, 289 u. Thompson 815 v. Wright 1413 Mornsbly v. Blamire 1065 a, 1065 b Morphett v. Jones 759, 762', 763 Morrall v. Marlow 1038 Morret v. Paske 315, 412, 416 to 418, 1211 Morrice v. Bank of England 544, 546, 547, 549, 553, 554, 557, 890 v. Bishop of Durham 1070, 1155, 1156, 1182 Morrill v. Noyes 1021 a Morrington v. Keane 1231 a Morris v. Ashbee 939 v. Berkley's Lessees 927 v. Burroughs 309 v. Clarkson 255 v. Colman 292, 958, 959 a v. Hoyt 771 v. Kearsley 674 v. Kelly 950 v. McCoy 1318 v. MacCullock 295, 300 v. McNeill 1494 v. Morris 306, 518 a, 675 v. Munroe 131 Morris v. Remington 744 a v. Stephens 959 m v. Stephenson 731, 734, 735 v. Wright 939, 941 a Canal Co. v. Emmatt 144 a, 195 &c. R.R. v. Prudden 925, 927 River Coal Co. v. Barclay Coal Co. 292 Morrison v. Arbuthnot 266, 269 v. Arnold 1445, 1447, 1516 ' v. Beckwith 1233 a v. Case 951 v. Hershire 64 e v. Lads 749 b v. Latimer 927 a v. Marvin 499 b v. Peay 763 v. Turnour 756 V. Martin 176 V. Mason 1400 V. Rathbun 1318 V. Roach 1449 V. Royal 312, 313, 322, 345 V. Stacker 959 a, 959 m T. D. & M. Co. v. Morse 292 a Mortimer v. Bell 293, 769 v. Capper 104, 131, 147, 150 v. Orchard 765, 1528 v. Wright 1347 b Mortimore v. Mortimore 1270 Mortlock v. Buller 186, 693, 734, 758, 796 Morton v. Naylor 1044, 1047 Moseley v. Virgin 71C , 725 to 727 Moses v. Levi L280 a, 1281 v. Lewis 458, 462 v. Macfarlane 1256 v. Moses 321 v. Murgatroyd 64 /, 551, 792, 1037 Mosher v. Read 889 Moss v. Adams 459 g v. Bainbridge 310 o. Barton 722 v. Gallimore 1017 Mossop v. Eadon 85, 86 Mostyn v. Brooke 1341 Mote v. Schoolbred 927 e Motion v. Moojen 3/1 Motley v. Downman 951 Mott v. Buxton 9S3 Motteux v. London Assur Co. 153, 158, 160, 770 o Moulson v. Moulson 1115 Mount v. Potts 1233 d Mountfort, Ex parte 1020, 1033, 1338, 1341, 1354 Moxon v. Bright 462 a v. Paine 257 b INDEX TO CASES CITED. lxxix Moyse v. Gayles 1206 Mt. Holly, &c. T. Co. v. Ferree 809, 821 Mucklestone v. Browne 1208 v. Bruen 297 Muir v. Leach 677 v. Schenck 64 . Beeby 1493 c Piggott v. Baygey 1098 v. Green 1065 b v. Stratton 956 v. Thompson 1041 v. Williams 1436 Pike v. Fay 191 v. Hoare 623, 744 ». Miles 361 v. Nicholas 939, 941 a Pilcher v. Flinn 1521 a Pilcher v. Rawlins 400, 1020 Pilgrim v. Auction Mart Co. 929 c Pilling v. Armitage 208, 388, 1528 Pinch v. Anthony 1231, 1231 a Pincke v. Curteis 776, 1521 v. Thornycroft 1520 Finder « Pinder 604 a Pingree v. Coffin 744, 749 c, 769, 793 r Pingry v. Washburn 293 b Pinkston v. Brown 300 Pinney v. Fellows 1201 Piscataqua F. & M. Ins. Co. v. Hill 33, 1252 Pitcairne v. Ogbourne 153, 154, 158, 161, 267, 272 Pitcher u. Hennessey 114 v. Rigby 312 Pitney v. Brown 1065 d Pitt v. Cholmondeley 523, 525, 527 v. Hunt 1410 Pitt's Will, In re 183 Pittman's Appeal 645 Pittman v. Robicheau 677 Pitts v. Cable 1018 b v. Parker 1227 Place v. Sweetzer 677 Piatt v. Piatt 1111 Platto a. Deuster 876 a Pleasanton's Appeal 326 Pledge v. Buss 325 a, 498 a, 499 Plimpton v. Fuller 571 Plowman v. Riddle 1226 Plum v. Fluitt 390, 391, 393, 395, 399, 400 a, 1020 v. Ives 1375 Plunkett v. Brereton 684 v. Penson 553, 557 v. The Meth. Epis. Soc. in North Adams 750 Plymouth, Countess of, u. Throg- morton 471 Plympton v. Plympton 1083, 1088 Poekman v. Meatt 654 Pocock v. Reddington 1263 Podham v. Bampfield 61, 288, 1315, 1319, 1320 v. Lancaster 856 Podmore v. Gunning 768, 1068 a, 1069, 1073 Poentner v. Russell 928 Poillon v. Martin 321 Pole v. Pole 1203 Polk v. Pendleton 700 v. Reynolds 700 Pollard t>. Cleaveland 1400 Pollen v. James 1400 Pollenfex v. Moore 563, 564 a, 565, 789, 1220, 1227, 1248 Pollitt v. Long 927 INDEX TO CASES CITED. lxxxvii Poison v. Young 310 Pomeroy v. Bailey 360 v. Partington 1062 a Pomfret v. Pening 174 a v. Windsor 419 436, 529 Ponder v. Scott 421 b Poo v. Gott 1341 Poole v. Bott 287 v. Lloyd 33 v. Poole 1520 6 Pooley v. Budd 718, 724 v. Quilter 322 v. Ray 91, 140 Poor of St. Dunstan v. Beauchamp 718, Poore v. Clark 855 Pope v. Crashaw 1412 v. Curl 943, 944 v. Garland 770 v. Gwinn 553 v. Onslow 1023 v. Pope 1065 b, 1070 v. Whitcomb 1065 b, 1065/ Popplewell v. Hodkinson 927 a Portarlington v. Soulby 303, 743, 899, 900 Port Clinton, &c. R.R. v. Cleve- land, &c. R.R. 729 Porter v. Bank of Rutland 408 a,-1380 v. Barclay 406 v. Bradley 1067 a v. Jones 695 a v. Parmly 1035 b v. Read 1023 v. Spencer 457, 464, 1470, 1473, 1474 v. Turner 95 Porter's Trust, In re 604 a Portland, &c. R.R. Co. o. Grand Trunk, R.R. Co. 770 a Portlock v. Gardner 1520 Portman v. Mill 778 v. Morris 113, 154 Portmore, Earl of, v. Taylor 340 Portsmouth v. Effingham 1504 v. Fellows 1289 Post v. Kimberley 80 , 451, 457, 458, 464 652 Postley v. Cain Postmaster-General v. Furber 459 a, 459 b, 459 g Pothonier v. Dawson 1033 Potter v. Chapin 1154 d v. Chapman 996 v. Jacobs 759 v. Richards 291c v. Sanders 784 v. Stevens 1016 t>. Thornton 1494/ Potter v. Tuttle 776 Potteries, &c. R. Co. v. Minor 885 Potts v. Smith 927 b v. Surr 337 a* v. Whitehead 767, 777 a Powell a. Cleaver 1117 v. Evans 1269, 1271, 1274 v. Hankey 1396 v. Hollicar 607 a In re 1074 d v. Knowler 1049 v. Monson 626, 632 v. Monson and Brim field Man. Co. 1201, 1257 v. Mouchet 181 v. Powell 107 v. Powis 856 v. Price 165 v. Redfield 1326 v. Riley 573, 1065 v. Robins 1247 v . .Smith 113 v. Stewart 895 v. White 499 6 Powell's Executors v. White 493, 499 d Power's Appeal 729, 1040 c Power v. Bailey 784, 1231, 1401 v. Knowler 294 Powers v. Hale 769 v. Mayo 769, 793 t v. Powers 1250 Powerscourt v. Powerscourt 1164 Powis v. Corbet 418 Powys v. Blagrave 913 v. Mansfield 1101, 1111, 1116, 1118 Prand v. Sympson 521 6 Pratt v. Brent 913 v. Bryant 623 v. Carrol 771 v. Clemens 64 c v. James 1289 c v. Law 776, 794 a, 795, 796, 798 v. Pond 33, 700 v. Sladden 1208 v. Taliaferro 790 v. Thornton 321 v. Tyler 280 v. Wells 1470 Preachers' Aid Society v. Rich 1162, 1169 Prebble v. Boghurst 1371 Prees v. Coke 323, 337 Prendergast v. Prendergast 1061 a v. Turton 1325, 1535 Prescott, Ex parte 1434, 1436 o. Hawkins 138 k v. More 595 Ixxxviii INDEX TO CASES CITED. Preston v. Corporation of Great Yarmouth 829 v. Croput 434 v. Jones 1080 v. Strutton 1436 Prevost v. Clarke 1068 v. Gratz 321, 975, 1520 Price v. Berrington 203 c, 228, 229 a v. Bridgman 1516 o. Dewhurst 184 v. Dyer 161,770 v. Edmunds 883 a v. Evans 550, 890 v. Fastnedge 418, 419 v. James 1018 v. Levy 164 e v. Lovett 294, 1040 d ' v. Minot 1266 v. North 1247, 1249 v. Price 239, 793 b v. Peeves 1198 v. Salusbury 1522 b v. Strange 1065 b v. White 405 v. Williams 1456 Prichard v. Ames 1382 v. Gee 1514 v. Ovey 722 Prickett v. Prickett 606 Priddey v. Rose 1040 d, 1041, 1044, 1047, 1196 Pride v. Boyce 499 d v. Bubb 1391 Prideaux v. Lonsdale 1520 d Pridgeon v. Ex'rs of Pridgeon 1371 Prido v. Fooks 1065 c Priest v. Parrot 374 Primm v. Raboteau 829 Primmer v. Patten 1493 b Primrose v. Bromley 497 Prince v. Prince 736 c Prince Albert v. Strange 943 Pring v. Pring 1208 Pringle v. Dunkley 291 b Printup v. Fort 191, 680 Prior v. Williams 164, 164/ Prison Charities, In re 1177 Pritchard v. Todd 771. 776 Probart v. Clifford 1376 Probasco v. Johnson 1020 Proctor v. Thorll 111 Progers v. Langham 381 Prole v. Soady 987 a, 1412 Proof v. Hines 239, 312, 331 Prosser v. Edmonds 1039, 1040, 1040 g, 1041, 1048, 1050 Prothero v. Forman 874, 895 Proudfoot v. Montefiore 216 Proudley v. Fielder 1394 Providence Bank v. Billings 1569 Provost, &c. of Edinburgh v. Aubery 1184, 1186, 1300 Prowitt v. Rodman 1065 5 Prowse v. Spurgin 589 e Prudential Ass. Co. v. Knott 959 m v. Thomas 808 Pryor ». Adams 74 t. Hill 141, 142 Pryse v. Cambrian Railw. 778 g Pudsey Coal Gas Co. v. Corpora- tion of Bradford 1558 Pugh v. Arton 710 a Pulbrook, In re 1341 Pullen v. Ready 113, 124, 150, 287 Pullerton v. Agnew 1303 Pulliam v. Newberry 369 o. Pensoneau 1456 a Pullman v. New York 959 m Pulsford v. Richards 1538 Pultenev v. Darlington 1083, 1085, 1212 v. Shelton 911 c. Warren 406, 456, 509, 511 to 517, 627, 1316 a, 1521 Pulvertoft v. Pulvertoft 426, 433, 706 a, 793 a, 987 Purcell v. Macnamara 315 a v. Miner 763 v. Purcell 1423 Purdew v. Jackson 1040 c, 1410, 1411, 1412 Purefoy v. Purefoy 1023 Purinton v. Northern LI. R.R. 767 Purse v. Snaplin 180 Pursey v. Desbouvrie 117, 196 Purviance v. Holt 88 Pusey!>. Pusey 709 Pushman v. Filliter 1070, 1073 Putnam v. Ritchie 799, 799 a, 799 6, 1237, 1238 v. Russell 564 b Pybus v. Mitford 1199 v. Smith 1388, 1394, 1395 Pye, Ex parte 433, 787, 793 a, 1111, 1113 v. George 979, 993 Pyke v. Williams 763 Pym v. Blackburn 102, 765, 768 v. Lockyer 1100, 1105, 1111, 1112, 1113, 1116, 1117, 1118 Pyncent v. Pyncent 704 Q. Quanier v. Colston Quarrel v. Beckford 695 a 837 INDEX TO CASES CITED. hnra-g Quay v. Danley 1201 Queen v. Millis 44 Queensbury, Duke of, v. Sheb- beare 943 Quertier v. Succession of Hille 1027 Quesnel v. Woodlief 141 Quinn v. Roath 742, 770, 776 Quivey v. Baker 164/, 166 R. Raby v. Ridehalgh 1275 a Racouillat u. Rene 404 v. Sansevain 404, 1020 Rachfield v. Careless 532, 1208 Rackster v. Barnes 633 Radde v. Norman 951 Radford i>. Willis 777 a Radner v. Vanderberdy 395, 410, 629 Rafferty v. King 1028 a, 1028 b Ragnet v. Cowles 303 Ragsdale v. Holmes 534 Raikes v. Ward 1289 a Railroad Co. v. Neal 897 Railton v. Matthews 215, 327 a Raines ». Dunning 695 a Rainey v. Nance 675 Rakestraw v. Brewer 1016 Ram v. Hughes 770 Ramboll v. Soojumnull 294 Ramsay v. Warner 459 b Ramsbotham o. Senior 1353 Ramsbottom v. Golden 155, 156, 161 v. Gosden 770 a v. Parker 239, 331 Ramsden v. Hylton 120, 122, 124, 130, 134, 145, 372, 374 v. O'Keefe 1575 a Ramsey v. Bell 650 v. Joyce 273 v. Trent 1048 a Ramshire v. Bolton 33, 184 Ramsour v. Ramsour 1088 Ranclifie v. Parkyns 1080, 1085, 1089 Rand v. Redington 1452 Randall v. Bookey 1208 v. Latham 736 ». Morgan 374, 987 a v. Phillips 371, 1206 v. Randall 160, 674 v. Russell 602, 1394 v. Willis 160, 384 Randel v. Ely 523, 529 Randfleld v. Randfield 604 a Ranelagh v. Hays 639, 730, 794, 849, 850 Ranelagh, Lord, v. Melton 777 a Ranger v. Great Western R. Co. 1318 Ranken v. Harwood Rankin v. Huskisson v. Lay v. Leg v. Rankin v. Wagnelin Ransom v. Keyes Ransome v. Burgess Rapalee v. Stewart Raphael v. Boehm 550 927 1315 793 i 1060 607 a 498 997 a, 1354 a 371 465, 1277 v. Thames Valley Railw Co. 721, 736 c, 778 g Raritan W. P. Co. v. Veghte 1537 Rashleigh v. Master 480, 790 Rastel v. Hutchinson 1201 a Ratclifi v. Davies 1030 Ratcliffe v. Barnard 1020 v. Graves 1278 Rathbone v. Warren 33, 71, 426, 451, 457 Rathbun v. Colton 1237 v. Rathbun 759 Ravald v. Russell 1028 b Raw v. Potts 64, 387 Rawbone's Bequest 400 a Rawdon v. Shadwell 298, 302, 303, 1494 Rawlings v. Landes 1214 a Rawlins v. Powell 1119, 1122 Rawoth v. Marriott 1449 a Rawson v. Samuel 1434, 1436 Rawstone v. Parr 164 Ray v. Bogart 529 Ex parte 1381, 1383 v. Ray 579 Raymond v. Pritchard 735 v. Selliek 606 a, 607 c Rayne v. Baker 1020 a Rayner v. Koehler 533 v. Pearsall 422, 529 v. Stone 725, 727 Raynham v. Canton 140 Re Bloomar 652 Cornwall 362 Rea v. Copelin 1261 Reach v. Kennigate 256 Read v. Brokman 81 v. Burns 695 a v. Read 1425, 1471, 1472 v. Stedman 1196 b, 1208 Reade v. Bentley 941 b v. Conquest 941 a v. Livingston 355, 356, 359 to 361, 363, 374 v. Lowndes 502 b Redding v. Wilkes 374, 762, 768 Rede v. Farr 1323 Redfearn v. Perrier 421, 422 c Redfern v. Smith 917 xc INDEX TO CASES CITED. Redfield v. Buck 361 Redheimer v. Pyson 1134 Redington v. Redington 486, 488 Redman v. Redman 266, 269, 387 Redmayne v. Forster 1020 Redmond v. Packersham 700 Reeoh v. Kennigate 781 Reed v. Bank of Newburgh 694, 700 v. Breeden 776 v. Carusi 939 v. Don Pedro, &o. Co. 793 k v. Gannon 1375 v. Norris 316, 493, 499, 499 ft, 1211a v. Noxon 190 v. Reed 1425, 1471, 1472 v. Sidener 191 v. Tyler 64 e, 700 Rees v. Berrington 326, 849, 883 Reese River Silver M. Co. v. At- well 432 ft Reeve v. Attorney-General 1190 v. Hicks 1028 b v. Parkins 907 Reeves v. Denicke 951 v. Reeves 703, 704 Refeld v. Woodfolk 850 a Reffell v. Reffell 180 Reformed M. Society v. Draper 893 a, 928 Regent's Canal Co. v. Ware 769 a Regina v. Lord 240 v. Smith 1341 Rehden v. Wesley 1270 a Reichart v. Castelor 371 Reid v. Gifford 927 v. Shergold 172, 1393 v. Steam 820 a Reiley v. Mayer 564 c Reilly v. Mayer 645 4 U.Whipple -973 Reimers v. Druce 1520 a Reinheimer v. Hemingway 677 Reinskofi v. Rogge 221 Remington v. Campbell 1201 a, 1201 c Remnant v. Hood 604 a Remsen v. Remsen 1528 Rendell v. Carpenter 1531 a Rennet v. Young 1535 Rennie v. Irvine 292 Respass v. Zorn 252 Revell v. Hussey 693 Revett v. Harvey 319 Rex v. Arundel 81, 84, 254 v. Bennett 502 v. Boston 1201 a v. Hare 43 o. Hare & Mann 59 v. Hopkins 1341 a Rex v. Morely v. Standish v. Watson Reynard v. Spence Reynell v. Sprye 1341a 44 1036 1097 298 Reynish v. Martin 279, 287, 288, 290, 602 Reynolds v. Nelson 776, 904 a. Pitts 1313, 1316, 1321, 1322, 1324 ■v. Smith 1321 v. Teynham . 1340 v. Vilas 428 v. Waller 231 Rhame v. Lewis 499 e Rhett v. Mason's Ex'r 1068 6 Rhode Island Bank v. Hawkins 925 e Rhodes i>. Bate 229 b, 312 b, 337 d v. Childs 607 a, 1543 v. Dunbar 924 a, 959 h v. Outcalt 165, 166 Rieardi v. Garcias 1578 Ricards, Ex parte 1338 v. Salter 806, 808 v. Symmes 705 a, 706, 793 a, 895 Rice v, Barnard 674 v. Dewey 1553 b v. Hale 1469, 1473 v. Tonneli 1354 a Rich v. Aldred 803 v. Austin 462 v. Cockell 1085, 1372, 1380,1381, 1392 v. Doane 700 v. Jackson 153, 160, 161, 767, 770 v. Jones 1018 ft v. Sydenham 231 v. Whitfield 1214 a Richard v. Holmes 1027 Richard's Appeal 924 o Richards v. Baker 285 v. Baurman 672, 673 v. Chambers 1394, 1396, 1413 v. Davies 671 Ex parte 1338 v. French 310 v. Humphreys 1116 v. Lewis 433 v. Salter 806, 808 v. Symes 507 a, 706, 793 a, 895 v. White 371 Richardson v. Baltimore 875 v. Bank of England 667 v. Bligh 144 v. Boynton 1274 INDEX TO CASES CITED. XC1 rdson v. Campbell 1241 v. Chapman 1061 v. Elphinstone 1106 v. Godwin 770 6 v. Greese 1122 v. Horton 162, 163, 164 v. Linney 317 v. Morton 556 a v. Nourse 1455 v. Richardson 973 v. Scott 959 a v. Smallwood 356, 359 to 361 v. Smith 729, 767 v. Wallis 1016 v. Younge 1028 a, 1521 c Riches v. Owen 829 Richets, Ex parte 1040/ Richie v. Cowper 323 Richmond v. Aiken 1028 v. City of London 684 v. Dubuque R.R. Co. 457, 722, 722 a, 778 c v. Foote 776 v. Gray 777, 777 a v. Robinson 735, 771, 776 Ricker v. Ham « 428 v. Pratt 895 Rickets v. McCully 362 Ricketts v. Hitchins 896 v. Turquand 1447 Rickman ». Morgan 1105, 1106 Rico v. Gaultier 1474 Riddick v. Moore 33 Riddle v. Mandeville 1057 a, 1250, 1251 Rider v. Kidder 298, 299, 367, 1201, 1204 t>. Powell 153, 138 k v. Wager 1114, 1414 Ridgely v. Clodfelter 749 c Ridges v. Morrison 1180 Ridgway v. Darwin 1365 v. Roberts 72, 184 v. Sneyd 957 a v. Underwood 433 Ridler v. Ridler 225, 226, 229 a Ridout v. Earl of Plymouth 1376, 1377 v. Payne 312, 1453, 1455 Rielly v. Smith 735 Riesz's Appeal 735 Rife" v. Geyer 974 a, 977 Rigden v. Vallier 1206 Riggs v. Shurley 1049 Riker v. Darke 653 Riley v. "Western Union Tel. Co. 959 a Rindge v. Coleraine 1040 h Ring v. Bemis 316 Ringhouse v. Keever 625 Riopelle v. Doellner 64 g, 1481 Ripley v. Waterworth 674, 1065 b, 1200, 1207 Ripon, Earl of, v. Hobart 921, 923, 924 a, 925, 959 b Rippon v. Dawding 784, 1370, 1371, 1390 Rippy v. Grant 238 Rishton v. Cobb 280 Risk's Appeal 1065 d Ritchie v. Smith 294 Ritson v. Brumlow 483 Rivers v. Durr 654, 1352, 1357 Riverview Cemetery Co. v. Turner 653 Rives v. Dudley 1542 v. Lawrence 1198 v. Rives 487 Rivett's Case 1152, 1170, 1171 Roach v. Garvan 1339, 1341, 1355, 1360 v. Haynes 1392 v. Hudson 1198 Robbins v. Fitz 1037 6 Robenson v. Ross 829 Roberdeau v. Rous 744, 959, 1299 Roberts v. Bell 817 v. Bury Supt. Com'rs 1314 v. Croft 1020 a v. Dixwell 974 v. Eberhardt 672 a v. Flemming 323, 1016 6 v. Kumn 524 v. Roberts 263, 266, 298, 306, 955, 1414 v. Smith 1088 d v. Spicer 1383 v. Standish 236, 323 v. Ware 1201 v. Weatherford 1111 Robertson v. Armstrong 1277 / v. Norris 514 a Robeson v. Harwell 161 v. Pittenger 926 Robins v. Swain , 144 Robinson v. Alexander 1520 v. Bland 303 v. Briggs 310 v. Byron 27 v. Campbell 57 v. Cathcart 352, 362 v. Comyns 996 v. Cullom 1027 v. Cumming 1528 v. Davidson 412 v. Fife 1028 v. Gee 296 v. Gilbraith 74 v. Harbour 1227 XC11 INDEX TO CASKS CITED. Robinson v. Holt 369 v. Hook 303, 529 v. Kalbfleisch 293 b v. Kettletas 722 v. Litton 913, 914, 1017 v. Lowater 1064 c, 1130 y. M'Donnel 1055 v. O. & P. R.R. Co. 833 a v. Preston 1206 v. Ridley 1237 v. Robinson 1201, 1269, 1372, 1494 v. Taylor 1200 v. Tonge 1216 a, 1216 c v. Wall 293 v. Wheelwright 1084 b v. Willoughby 1018 b v. Wilson 499, 499 b, 499 d, 502, 638 Robison v. Robison 1372 Robson v. Collins 770 v. Whittingham 927 b Roby v. Rideholgh 1269 Roche v. Farnsworth 1027 v. O'Brien 345 Rochester v. Alfred Bank 111 Rochfort v. Earl of Ely 1335 Rockafellow v Baker 191 Rockwell v. Hobby 1020 v. Servant 1521 a Rodby v. Williams 217 Rodgers v. Nowell 951 a Rodney v. Chambers 1428 Roe v. Mitton 987 v. Roe 1083 Roebuck v. Chadebet 654 Rogers v. Atkinson 160 v. Dallimore 1456 v. Jones 199 v. Leele 410 v. Mackenzie 493, 496, 505 v. McClnre 499 b v. Rathburn 301 v. Rogers 907, 955 v. Searle 631 v. Simmons 1198 v. Skillicome 1132 v. Taintor 667 v. Traders' Ins. Co. 1040 e v. Tudor 1315 i>. Vosburgh 889 v. Walker 1365 v. Ward 1401 d &c. Works 959 m, 1558 Rohan v. Hanson 459 a Rohrer v. Turrill 824 a Rolfe v. Gregory 438, 1261 c v. Rolfe 758 a, 958 Rolland v. Hart 397, 398, 408, 1U20 Rollfe v. Budder 1380 o. Harris 1323, 1324, 1326 a Rollins v. Hinks 925 a Rolt v. Hopkinson 1023 a, 1023 d Roman Catholic, &c. Church v. Wachter 566 c Rondeau v. Wyatt 753, 755, 757 Rook v. Worth 725, 1357 Roome v. Roome 1111, 1117 Roosevelt v. Fulton 244 v. Thurman 1455 Root v. Bancroft 193 a Roper v. Day 1220 v. Radclifie 793 v. Williams 927 Roscarrick v. Barton 1014 Rose v. Clarke 1057 a v. Cunninghams 790 w. Hart 1435 v. Rose 1170 a, 1315 v. Swann 771 Roseberry v. Hufi 959 a Rosenthal v. Freeburger 763 Rosewell v. Bennett 1117 Roshi's Appeal 1191 a Ross v. Armstrong 1400 u.*Cobb 653 v. Drake 1214 a v. Heintzen 1227 v. Union Pacific R.R. 724 6, 729 Rossiter v. Hall 939 Rosteller v. Grant 735 Rotch v. Emerson 1164 Rotheram v. Fanshaw 898 Rothwell v. Dewees 1201 c v. Rothwell 841 Roundell v. Breary 1231, 1231 a Rourke v. McLaughlin 744 Rous v. Noble 603 Rouse i'. Barker 619 t>. Lee 1214 a Routh v. Webster 950 Rove v. Jackson I.417 Row v. Dawson 1041, 1044, 1047 Rowbotham v. Wilson 927 a, 956 Rowe v. Beckett 1057 c v. Jackson 1417 v. Teed 757 v. Wood 837 v 15!4 Rowland v. Gorsuch 1065 b Rowley v. Houghton 951 v. Rowley 131 a Rowstone v. Bentley 1326 a Rowth v. Howell ' 1269 Roy v. Duke of Beaufort 239 Royal v. Garter 44 Royle v. Wynne 889 Rubber Tip Pencil Co. v. Hovey 958 a INDEX TO CASES CITED. XC111 Rucker v. Moore 896 Ruckman v. Bergholz 315 v. Ransom 1455 Ruddell v. Ambler 301 Rudge v. Hopkins 855 Ruffln, Ex parte 675, 676, 1253 Ruffles v. Alston 1415 Ruffner v. McConnel 157 Ruggles v. Barton 1018 c Ruhling v. Hackett 138 b Rumbold v. Rumbold 499, 559 Rumboll v. Parr 362 Rumph v. Abercrombie 694 Runyan v. Carter 1562 Rusden v. Pope 824 a, 1023 e Rush v. Higgs 544, 545, 546, 547 Rushbrook v. Lawrence 323 Rushworth, Ex parte 234, 499 b, 499 d, 502, 638 Russell v. Ashby 1470, 1473 v. BodvU 1424 v. Clarke's Executors 71, 74, 74 c, 184, 455, 1250, 1257 v. Darwin 722 v. Dudley 371 v. Hammond 355, 356, 363, 372 v. Jackson 1496 v. Pelligrini 670 v. Russell 1020, 1026, 1064 c v. Smythies 790 v. Southard 1018 v. Woodword 1036 a Ruth's Appeal 1228 Rutherford v. Ruff 231 Rutherford's Heirs v. Clark's Heirs 1064 c Rutland, Duke of, v. Duchess of Rutland 532 Ryall v. Rolle 1005, 1006, 1030, 1047, 1056, 1259 v. Rowles 1047, 1056, 1436 v. Ryall 1201, 1202, 1210 Ryan v. Brown 928 v. Dox 1198 v. Doyle 977 v. Mackmath 684 c, 698, 700, 700 a v. Martin 1318 Ryder v. Bentham 927 v. Bickerton 1274 v. The Alton and San- gammon R.R. Co. 959 Ryland v. Smith 987 a Ryle v. Haggie 67, 69, 70, 455, 691 v. Rown 336 Ryno v. Darby 770, 770 a Ryves v. Duke of Wellington 184 S. Saberton v. Skeels 1065 b Sabliech v. Russell 824 a Sackvffie v. Ayleworth 1490, 1511 Sadler v. Hobbs 1281, 1284 v. Lee 673 a & Jackson, Ex parte 379 Sagitary v.. Hyde 353, 362, 499, 562 Sainsbury v. Jones 796 Sainter v. Ferguson 292 Sale o. Crutchfield 799 a, 1237 v. Dishman 112 v. Moor 1072, 1073 Salmon v. Bennet 363 v. Cutts 310 Salomans v. Laing 959 Saloway v. Strawbridge 1027 Salter v. Bradshaw 337 a Ex parte 1338, 1354 Saltmarsh v. Barrett 1208 Saltonstall v. Sanders 1194/ Salturn v. Melhuish 254 Sample v. Barnes 894, 1582 Salvin v. Brancepeth Coal Com- pany 927 e Sampson v. Shaw 292 b. Smith 924, 924 a Samuda v. Lawford 749 c Samuel v. Howarth 883 Sanborn v. Kittridge 71 Sandby, Ex parte 472 Sanders v. Frank 1394 v. McAffee 1226 v. Pope 1314, 1315, 1320, 1326 o v. Rogers 1276 Sanderson v. Bayley 1065 c v. C. & W. Railway Co. 959/ Sanderson's Trust, In re 1064 a Sandford v. Flint 1321 v. Remington 1496 Sandfoss v. Jones 768, 769 Sandiland, Ex parte 1428 a Sandon v. Hooper 1016 b Sands v. Hildreth 345 Sanquirico v. Benedetti 958 Sarchett v. The Sloop Davis 1241 Sargent v. Parsons 445 Sarten v. Golden 709 Satterlee v. Frazier 1049 Sauerhering v. Iron Ridge, &c. R.R. 695 a Saull v. Browne, &c. 893 Saunders v. Cornford 808 v. Dehaw 395, 977 v. Leslie 1225 v. Lord Annesley 138 c XC1V INDEX TO CASES CITED. Saunders v. Metcalf 955 a v. Smith 940, 959 a Savage v. Allen 900 v. Brocksopp 693, 776, 1528 v. Carroll 763, 764, 1210 v. Foster 385, 387, 761, 1080 a v. Murphy 361 v. O'Neil 1372 Savannah, &c. R.R. v. Shiels 924 N. Bank v. Haskins 85 Savery v. King 310 v. Spence 710 Saville v. Saville 486, 488 v. Tankred 709 Savin v. Bowdin 473 Savings Bank v. Austin 959 a Savory v. Dyer 862, 1065 a Sawyer v. Fernald 1400 v. Hovey 138 / v. Shute 1409 Saxton v. Haines 1233 a Say v . Barwick 231, 345 Sayer v. Bennett 673 v. Pierce 69, 512, 516 Sayre v. Fredericks 372 b u. Sayre 974 a Scales v. Maude 973 Scarborough v. Arrant 776, 784 v. Borman 1384 v. Lord Hilton 858 Scarf v. Soulby 356, 359, 361 Scawin v. Scawin 1202, 1204 Schaferman v. O'Brien 272 6, 1057 c Schafroth v. Ambs 1400 Schalk v. Schmidt 891 b Schenk v. Ellingwood 95 Schibsby «. Westenholz 1578 Schlecht's Appeal 836 Schmitheimer v. Eiseman 243 a Schnetgel's Appeal 499 e Schnorr's Appeal 1191 a Scholefield v. Lockwood 1233 6 v. Templer 167, 193 a, 326 Scholey v. Worcester 371 Scholle i7. Sail 889 Schollenberger's Appeal 74 b School Dist. in Greenfield ». First Nat. Bank 1270 School Dist. &c. v. Weston 821 Schotsman v. Lancashire, &c. R.R. Co. 709, 799 Schroefpell v. Shaw 326 Schroepel v. Hopper 723, 747 Schroeppel v. Shaw 146, 501 Schryner v. Teller 634 Schultz v. Carter 499 d Schumpert v. Rich 1341 a Schutt v. Large 403 Schuylkill Co. o. Copley 239 Schwear v. Haupt 695 a Schwickerath v. Cooksey 134 a Schwoerer v. Boylston . Market Association 929 J Scofield v. Lansing 700 v. Van Bokkelm 929 Scott v. Avery 670 v. Beecher 1248 a v. Beeker 574 v. Billgerry 717 v. Colburn 1565 v. Corporation of ' Liverpool 459 a, 670 1457 a, 1548 v. Curie 1182 v. Davis 321 v. Fenhoullett 1001, 1201 v. Guernsey 655 v. Hanson 199 v. Jones 1521a v. Lord Hastings 1035 a v. Nesbit 301, 422, 1236 v. Porcher 1041, 1045, 1046 *. Rayment 666 v. Scott 269 to 272, 387, 565 w. Spashett 1410, 1421 a v. Stanford 939 v. Surman 463, 1038, 1229, 1258 v. Tyler 278 to 280, 283 to 285, 289, 290, 422, 580 Scottish IT. E. Railw. Co. v. i Stewart 793 / Scribner p. Allen 959 a v. Hickok 483 Scriven v. Tapley 1417 Scruggs v. Blair 674 v. Luster 457 Scudder v. Delashmut 677 v. Vanarsdale 1214 a Sculthorpe v. Tipper 1269, 1273 / Scurfleld v. Howes 604 a, 1281, 1283 Seabury v. Brewer 1065 d Seackel v. Litchfield 322 Seager v. Burns 735 Seagood v. Meale 760, 765 Seagram v. Knight 518 b Sea Ins. Co. v. Stebbins 833 Seaman v. Van Rensselaer 742 Sear t>. Ashwell 433 Searing v. Searing 1403 Sears v. Laforce 499 e v. Russell 974 ». Shafer 309 17. Smith 1226 v. Vincent 1458 a Seaver v. Phelps 228 Seaving v. Brinckerhoff 1036, 1036 a Seccombe v. Edwards 1074 c Second Nat. Bank, &c. v. Wil- liams 607 a INDEX TO CASES CITED. xcv Secor v. Woodward 898 Secret v. McKenna 64 e Sedgwick v. Place 360 Seeley v. Price 694 a Segar v. Parrish 33 Segee v. Thomas 138 k Seighortner v. Weissenborn 673 Seixo v. Provegende 951 c Selby v. Jackson 228 v. Selby 499, 558, 564, 564 a, 565, 633, 1220, 1227 Seley v. Rhodes 315 Selkrig v. Davies 674, 1207 Sellack v. Harris 768 Sells v. Hubbell's Adin'rs 504 Selwood v. Mildmay 180 Semmes v. Boykin 633 v. Worthington 759, 786 Senhouse v. Earl 1503, 1504 Senior v. Pawson 799, 929 b Sergeson v. Sealey 228, 229 a, 448, 1357 Sessions v. Moseley 606 v. Sessions 1214 a Seton v. Slado 89, 776, 790, 793, 1013, 1014, 1019, 1301 Sevier v. Greenaway 1277 Sevin v. Deslaudes 959 e Seward v. Cease 146 v. Jackson 1377 a Sewell v. Freeston 894, 897 v. Sparrow 1436 Sexton v. Wheaton 362 Seybourne v. Clifton 1503 Seymour v. Danow 1023 b v. Davis 477 v. De Lancy 695, 742, 769 v. Freer 1520 a v. Hazard 1470 v. Long Dock Co. 457 v. Miller 896 v. Seymour 74, 74 a, 74 c. 543 a v. Tresilian 1376 v. Van Slyck 459 b Shackell v. Macauley 1494 Shackle v. Baker 292 Shadforth v. Temple 793 Shafer v. Davis 116 Shaffer v. McDuffie 987 a v. Sleade 198 Shafto v. Adams 337 c Shaftoe v. Shaftoe 1425, 1471, 1472 Shaftsbury v. Arrowsmith 1483, 1491, 1492 Shakel v. Duke of Marlborough 730 Shallcross v. Findon 1246 Shand ». Aberdeen Canal Co. 870 Shank, Ex parte 1216 Shankland's Appeal 793 r Shanley v. Baker 1190 Shannon v. Bradstreet 174, 388 v. Howard, &c. Ass'n 1314 Sharman v. Bell 1455 Sharp v. Carter 833 v. Leach 694 a v. Mayor 196 v. St. Sauveur 1196 I, 1214 a v. Taylor 298 v. Trimmer 776 Sharpe v. Earl of Scarborough 553 v. Foy 243 a, 1401 g v. Foye 1020, 1419 v. San Paulo R. Co. 975 a Sharp's Rifle, &c. Co. v. Rowan 737 Shattock v. Shattoek 1397, 1401 / Shattuck v. Gay 157 Shaver v. Radley 975 *>. White 677 Shaw v. Borrer 1064 6, 1127, 1129 to 1131 v. Bunny 323 v. Coster 809, 819, 821 v. Dixon 234 v. Dwight 876 v. Fisher 724 a w.Foster 4216,1020,1050 v. Jeffrey 257 a v. Mitchell 1408, 1411 v. Neale 312, 1023 a v. Picton 459 d v. Spencer 400, 400 b, 422, 977 a, 1258 Shawmut M. F. Ins. Co. v. Ste- vens 193 a Shays v. Norton 700 Shearer v. Shearer 674 Shearman v. British, &c. Co. 1031 v. Shearman 1474 Sheboygan v. Sheboygan, &c. R.R. Co. 924, 924 a Shed v. Hawthorne 924 a Shedd v. Bank of Brattleboro' 633, 634 Sheddon v. Goodrich 1096 Sheehy v. Mandeville 164 Sheets v. Selden 876 a Sheffield v. Duchess of Bucking- hamshire 1445 Sheffield Waterworks v. Yeo- mans 854, 860 Shelburne v. Inchiquin 152, 153, 157, 161 Sheldon v. Cox 397, 408 v. Dodge 1036 v. Fortesque Aland 1329, 1335, 1364 v. Rice 321 Shelley's Case 1493 Shelley v. Nash 338, 347 XCV1 INDEX TO CASES CITED. Shelley v. Shelley 988 Shober v. Dutton 777 a v. Westbrooke 1341 Shoemate v. Lockridge 700 Shelton v. Alcox 1458 a Shonk v. Brown 1382 v. Farmer 498, 498 6 Shorer v. Shorer 790 v. Lewis 1260 Short v. Lee 1464 Shepard v. Brown 442 a v. Stevenson 221, 323 v. Merrill 1454 Shortall v. Mitchell 771 v. Sandford 74, 794 Shorter v. Nelson 1400 Shepherd v. Briggs 1452 Shortridge v. Lampugh 1119 v. Churchill 652 Shotwell's Adm'x v. Smith 33 v. Gillespie 724 6 Shotwell v. Mott 1142 v. McEvers 971, 1037 v. Murray 111, 113, 116, v. Shepherd 763 131, 137 v. Titley 417, 1034 v. Shotwell 829 v. Towgood 465 Shreve v. Brereton 1318 v. Wright 491 Shrewsbury, Countess of, v. Shepherd's Case 724 6 Earl of Shrewsbury 1064 Shepley v. Rangely 702 Shrewsbury v. Hornby 1182 Sheppard v. Iveson 694 v. Shrewsbury 486, 488, v. Kent 546, 548, 557 v. Oxenford 672 a v. Thomas 1227 v. Wilson 480 Sheriff v. Butler 533 v. Coates 930, 933 Sherman v. Bassett 296 v. Carr 893 a v. Clark 959 m v. Sherman 526, 529, 602 v. Wilson 749 c v. Wright 742 Sherrard v. Sherrard 480 Sherwood v. Andrews 973 v. Salmon 199 v. Sanderson 1329, 1335, 1364, 1365 v. Sutton 529, 1520 Shettiger v. Hopple 138 k Shewell v. Dwarris 293 c Shewon v. Vanderhorst 1521 a Shieffelin v. Stewart 322, 1277, 1279 Shiel v. McNett 1318 Shields v. Smith 1062 Shindel's Appeal 499 c Shine v. Gough 1237 Shinn v. Budd 638 a v. Fredericks 1226 Ship v. Crosskill 196 Shipbrook, Lord, v. Lord Hinch- inbrook 1269, 1281, 1284, 1341, 1360 Shiphard v. Lutwidge 552 Shipley v. Bitter 929 Shirk's Appeal 523 Shirley v. Ferrers 1514 v. Martin 261, 345 v. Shankey 294 v. Shirley 1380 v. Stratton 778 Shitz «. DiefEenbach 1020 954 Shubrick v. Salmond 1307 Shudal v. Jekyll 1111, 1114, 1117 Shute v. Hamilton 1318 Shuttleworth v. Bruce 1047 v. Laywick 418, 1023 Sibbering v. Earl of Balcarras 345 Sibley v. Baker 633, 645 v. Perry 1065 6 Sichel v. Mosenthal 666 Sidmouth v. Sidmouth 1202 Sidney v. Shelley 983, 1001 v. Sidney 1419, 1420 Siegel v. Supervisors, &c. 700 Sieman v. Schurck 977 Siemon v. Schurck 982 a Sieveking v. Behrens 806, 813 b v. Litzler 195 Silcox v. Bell 1065 b Silk v. Prime 64/, 552 Sillers v. Lester 1021 a Silver v. Bishop of Norwich 833 v. Udall 654 Silvey v. Dowell 502 6 Simeon v. Schenck 982 a Simmonds v. Great Eastern Railw. 1233 6 v. Lord Kinnaird 74 a v. Palles 972, 1036 a Simmons v. Cornelius 765 v. Thomas 1373 Simms v. Marryat 935 v. Walker 606 a Simond v. Hilbert 1229 Simons v. Horwood 1382 v. State 1540 Simonton v. Bacon 221 Simpson v. Brown 1273 e v. Chopman 1277 a v. Fogg 1535, 1579 INDEX TO CASES CITED. XCY11 Simpson v. Hart 895, 897, 1436, 1573 v. Lord Howden 293 a. 293 c, 698, 700, 700 a, 894 v. Montgomery 164/, 165 v. Spenoe 604 a v. Vaughan 153, 158, 162 Sims v. Aughtery 74 c v. Rickets 1375 v. Shelton 710 v. Sims 555 a, 1115 a v. Urrey 161 Simson v. Cooke 459 a u. Ingham 459 a, 459 b Sinclear v. Fraser 1576 Singer Manf. Co. v. Domestic, &c. Co. 925 Singleton u. Bolton 951 a v. Love 1214 a Sinnett v. Herbert 1193 Sipthorp v. Moxon 705, 706 Sismey o. Eli 700 Sitwell v. Bernard 790 Six v. Shant 1201 Sjoerds v. Luscombe 1307 Skapholme v. Hart 1049 Skeel v. Spraker 506, 634, 1233 a Skeeles v. Shearley 398, 1502 Skelton v. Cole 374 Skett v. Whitmore 760, 768 Skidmore v. Bradford 221 Skillern's Ex'rs v. May's Ex'rs 694 Skinner v. Dayton 1314, 1316, 1318, 1322 v. Judson 74 e v. Maxwell 829 v. Tinker 667 v. Warner 1339 v. White 1318 Skip v. Huey 326 Skipp v. Harwood 677, 678, 831 Skipper v. Stokes 1040 Skotlowe v. Williams 1543 Sky v. Bennett 547 Slack v. Black 1490 v. Buchanan 1496 Slade v. Barlow 653 v. Van Vechten 322 Slanning v. Style 597, 603, 604, 845, 1375, 1380, 1387 Slater v. Lawson 1521 b Slaughter v. Genson 195, 198, 199 Slee v. Manhattan Co. 1522 a Sleech's Case 162, 459/, 676 Sleech v. Thorington 1408, 1415, 1424 Sleeman v. Wilson 975 a, 1520 a Sleight v. Lawson 1284 b, 1535 Slemmer's Appeal 673 b Slim v. Goucher 212 a eq. juk. — vol. i. g Slingsby v. Boulton 807, 821 v. Grainger 1074 d Slipper v. Tottenham, &c. R.R. Co. 482 Sloan v. Moore 672 a Sloane v. Cadogan 706 a, 793 a, 793 6 v. Heatfield 69 Slocum v. Marshall 309 Sloman v. Walter 1314 Small v. Currie 327 a v. Marwood 1036 to 1037 v. Steward 191 Smallcombe's Case 1539 a Smart v. Prujeen 1164, 1184 i'. Spurrier 1164 Smedburg v. Mark 1174, 1470 Smedes v. Marshall 1020 Smiley v. Smiley 1370 Smith v. Acton 1521 a v. Allen 1572 v. Alsop 111 v. Applegate 293 6 v. Appleton 893 a v. Armstrong 735 v. Ashton ' 93, 173 v. Attersol 972 v. Auditor-General 64 e v. Aykerill 263 v. Babcock 193 v. Bangs 959/ v. Bank of Scotland 148, 192:, 197, 214, 215, 324, 383 v. Bate 1339 v. Beaufort, Duke of 1493 a v. Bell 1073, 1394 v. Bicknell .88 v. Bromley 61, 298, 300, 302, 390 v. Brush 1528 v. Burnham 767 v. Byers 1273 v. Camelford 1396 v. Campbell 1065 J, 1065 c v. Carlisle 982 a v. Carll 702 v. Chicago, &c. R.R. Co. 1056 v. Clarke 201, 293 v. Clay 64 a, 529, 974, 1520 v. Coe 1318 v. Collyer 918, 929 v. Colman 601 a „. Cook 69, 518, 704 v. Crandall 747 v. Darby 1198 v. Day 421 a v. Drake 1237 v. Emerson 677 v. Estate of Steele 502 b v. Eustis 632 XCV111 INDEX TO CASES CITED. Smith v. Evans 141 Smith p. Target 812 v. Everett 1044, 1047 p. The General 1211 Ex parte 475, 481, 482 p. Turentino 176 v. Felton 33 p. Turner 763 v. Fremont 738 p. Walker 895 p. Geortner 1354 a p. Walser 977 v. Gibson 4216 p. Washington Gas Light Co. 33 v. Greeley 153 p. Wheeler 1036 a, 1037 p. Guyon 1130 p. White 298 r. Hammond 808, 817 a v. Wigley 459 e v. Harrison 252 v. Winter ISii c v. Hayes 883 r. Wood 769 v. Haytwell 906 v. Woodruff 951 p. Hibbard 788 Smith's Case 203 a p. Hickman 700 Will, In re 844 p. Hollenback 972 Smither v. Calvert 195 v. Hubbard 1218 p. Smither 1088 a In re 677 Smithers v. Hooper 1214 a In re Hay 220 Smithurst v. Edmunds 1021 v. Mffe 985 Smoot p. Eea 747, 784 v. Jewett 1320 Smyth, Ex parte 470, 471 a, 475 p. Johnson 769, 793 r p. Griffin 700 a v. Jordan 165 Sneed v. Lord Culpepper 560 v. Kane 459 b, 1408, 1411 Snell p. El am 1201 v. Kay 329 a Snellgrove v. Bailey 607 a p. Kelley 769 Snelling v. Flatman 1476 v. King 1088 a p. Thomas 770 a v. Kinney 1061 SneLson v. Corbet 1376 p. Kittridge 607. Fidelity Ins. Co. 777 a Swain v. Great Northern Railw. 1520 d v. Perrine 632 v. Wall 496, 498, 499 Swaisland v. Dearsley 793 e Swan v. Frick 973 v. Swan 655, 658, 1237 Swannock v. Lifford 395, 410, 629, 1022 Swansea Vale Railway Co. v. Budd 1493 c Swap v. McCabe 1018 e Swasey v. American Bible Soc. 1170 Sweatt v. Faville 959 m Swedesborough Church u. Shivers 684 Sweeney v. Damron 1372 Sweet v. Cater 935 v. Shaw 940 v. Southcote 410 v. Tinslar 298 Sweetapple v. Bindon 790 Sweetzer v. Jones 1018 b Swift, Ex parte 1355 v. Beneficial Soc, &c. > 1164 Swinburne v. Swinburne 982 a Swinfen v. Swinfen 737 a Sydney v. Shelley 983 Sykes v. Sykes 974 Symes v. Hughes 298, 982 a Symonds, Ex parte 162 Symondson v. Tweed 755, 764 Symons v. James 1247 v. Rutte 790 Sympson v. Turner 970 Synge o.. Hales 983,984 v. Synge 1080, 1086 T. Taggart v. Taggart 160, 983 Tainter v. Clark 1164 v. Morristown 989 I Tait v. Lord Nortbwick 1248 d Talbott v. Duke of Shrewsbury 1119 v. Earl of Radnor 1091 v. Earl of Shrewsbury 1339 (Earl) v. Scott 918 a v. Stainforth 337 b Taliaferro v. Branch Bank 894 Tallis v. TaUis 292' Talmadge v. East River Bank 926 a, 956 Tamworth, Lord, v. Lord Ferrers 915 Taner v. European Bank 824 a Tanfield v. Davenport 1414 Tanguery v. Bowles 361 Tanner v. Wise 703, 742 INDEX TO CASES CITED. cm Tantum v. Miller Taplin v. Jones Tappan v. Deblois Tarbell v. Tarbell Tarleton v. Liddell v. Tarleton Tarr v. Scott Tarsey's Estate Tasker v. Phipps Tate v. Austin v. Clark 695 a 927 b, 951 h 1169 987 a 426 1576 723 1397 a 440 1373 1067 b v. Hilbert 606, 607, 607 c, 793 a v. Leithead 607 a Tatham v. Williams 1520 t'. Wright 1447 Tay v. Slaughter 1171 Tayler v. Great Indian, &c. Railw. Co. 390 a v. Palmer 1040 Tayloe v. Johnson 1214 a v. Merchants' Fire Ins. Co. 722 Taylor v. Allen 828 *. Ashton 192, 193 v. Baker 399 ». Beech 759, 768 v. Benham 790 v. Bemis 667 v. Blanchard 292, 292 a v. Carpenter 951, 951 a v. Cartwright 975 a v. Cornelius 1023 c v. Davis 667 v. Dean 371 v. Earl of Abingdon 510 v. Fields 677, 678, 1253 ». Fleet 194 v. Ferguson 74 d, 74 e v. Fore 895 v. Foster's Adm'r 1237 v. Gilman 885 v. Hawkins 422 v. Haylin 522, 527 v. Jones 354, 355, 359, 361, 363, 378 v. Knight 1323 v. Kymer 459 a, 459 b v. Longworth 750, 771, 775, 776 v. Neville 718 v. Okey 1436 u. Page 1018 c v. Patrick ' 231 v. Pillow 941 b v. Plumer 819, 1210, 1258, 1259 «7. Popham 1315, 1320 v. Porter 484 v. Portington 958 a v. Pugh 273 v. Keese 1057 a Taylor v. Roberts 1280 v. Rochfort 332, 345 v. Rountree 700 v. Salmon 315, 371 v. Scoville 190 6 b. Shepherd 894, 985 v. Short 1025 v. Stibbert 396 400, 788 v. Stone 1381 v. Taylor 307, 308, 309, 1444 v. Williams 742 Taymon v. Mitchell 193 Teal ». Wordworth 655 Teale v. Teale 1516 Teall v. Watts 654 Teasdale v. Sanderson 655 v. Teasdale 385 Tebb v. Hodge 1020 Tebbs v. Carpenter 1269, 1274 Telegraph, &c. Co. v. McLean 958 a Telford v. Metropolitan Board of Works 959 m Tempest, In re 1289 6 Tendrillu. Smith 309 Tenham v. Herbert 854 to 856, 859 Tennant v. Braie 291 a v. Trenchard 1027 Tennant's Heirs v. Patton 1216 a Tenney v. State Bank 796 Tennison v. Tennison 1372 Ter Hoven v. Kerns 1023 d Terhune v. Cotton 555 a Terrett v Sharon 893 a, 959 m Terrill v. Richards 665 Terry v. Harrison 955 v. Hopkins 273 v. Tuttle 252 Tersey v. Gorey 83, 85 Tew v. Earl of Winterton 1249 Texas v. Hardenberg 64 g Thacher v. Churchill 1399 a v. Phinney 360 Thackwell v. Gardiner 175 Thalhimer v. Brinkerhoff 1039, 1048 to 1050 Thalman v. Canon 1201 a Thayer v. King 85 The Attorney-General v. Nor- wich 959 The Chataque County Bank v. White 700 The Commonwealth v. Rush 926 a The Contract Corporation 1501 The Distilled Spirits 200 a The Feoffees of Heriot's Hospi- tal v. Gibson 736 a The Great Western Railroad Co. v. The Birmingham, &c. Railroad Co. 954 CIV INDEX TO CASES CITED. The Incorporated Society v. Richards 1154 J The King v. De Manneville 1341 a The People v. Mercein 1341, 1341 a The State v. Hollo-way 192 Thelluson v. Woodford 1075, 1077, 1085, 1093, 1094, 1096 Therasson v. Hickok 371, 1037 b Therman v. Abell 473 Thetford School 1143 Thigpen v. Pitt 698 Thomas v. Archbishop of Can- terbury 537 v. Bennet 1396 v. Britnell 1246, 1247 v. Caldwell 84 v. Chicago 1201 c v. Cronise 303 v. Davies 671 v. Dering 779 v. Ellmaker 1164 Ex parte 1354 v. Farmers' Bank 654 v. Frazer 158, 162, 164 v. Freeman 1040 v. Gyle 652 v. James 929 v. Jenks 1036 v. Jones 927 v. McCormack 101 v. Oakley 928, 929 v. Porter 1326, 1326 a v. Roberts 1341 v. Sayles 615 v. Thomas 571 v. Tyler 1493 a v. Wyse 44 Thompson v. Attfield 168 v. Barclay 33 v. Brown 495 o, 546 to 548, 890, 1271, 1272 v. Bruen 771 v. Charnock 670 v. Ebbets 813 a, 824 v. Finch 1280 v. Fisher 983, 1066 v. Frist 678 v. Gossit 694 a v. Graham 694, 695 v. Harcourt 710 v. Harrison 271 v. Hill Griffin 1354 a v. Hodgson 605 v. Hudson 459 h, 1016 a, 1314, 1035 g v. Leach 225, 229 a v. Leake 177 v. Lee 196 v. Lewis 677 Thompson v. Lumbert v. Lynch v. Mills 203/ 700 1375 v. Noel 1458 v. Perkins 1258 v. Pittston 769 v. Pyland v. Robinson 1227 1065 c v. Smith 955 v. Spittle v. Stanhope 1027 944, 949 v. Thompson 112, 296, 298, 1248 e v. Tinnin 677 v. Todd 757 v. Warren 1049 v. Winchester 951 o Thompsonville Scale M. Co. v. Osgood 145 Thorns v. Thorns 1373 Thomson v. Shakspeare 1164 a v. Smith 177 Thorn v. Helmer 195 v. Ingram 1228 Thornber v. Sheard 309 a Thornborough v. Baker 1016 Thornborow v. Whiteacre 1303, 1307 Thorndike v. Collington 684, 685 v. Hunt 533 v. Loring 974 Thorne v. Thorne 166, 168, 763 Thorneycroft v. Crockett 416, 1401 Thornhill v. Evans 331 Thornton v. Dixon 674 v. Knight 701 v. Ramsden 1537 v. Tandy 370 Thorp v. Gartside 1026 v. Macauley 1494, 1514 v. Pettit 769 Thorpe v. Dunlap 1226 v. Holdsworth 1020 v. Jackson 162, 163, 676 v. McCullum 164 Threlf all v. Lunt 700 a Thrupp v. Collett 1182 Thruston v. Minke 926 Thurber v. Jewett 1035 c Thurlow v. Mackeson 1027 Thurman v. Barf 239 Thurmond v. Clark 117, 1452 Thynn v. Duvall 488 a v. Thynn 64, 256 Tibbetts v. George 1047 v. Tibbets 1068, 1068 a, 1070, 1085, 1097 Tibbs v. Morris 771, 793 s Tichborne v. Tichborne 543 a INDEX TO CASES CITED. CT Tickle v. Short 526 Tidd v. Lister 633 Tiernan v. Gibney 767 v. Jackson 1039, 1041 to 1045, 1056 v. Holland 776, 1080, 1097 Tiffany v. Crawford 645 a Tiffin v. Tiffin 998 Tilley v. Bridges 511, 512, 628 i). Thomas 776 Tillinghasfc v. Wheaton 607 a Tillman v. Cowand 404 Tillmes o. Marsh 615 Tilton v. Tilton 161, 761 Timson v. Ramsbottom 395, 398, 421 a, 1035 a, 1047 Tinney v. Tinney 767 Tinsley v. Anderson 499 b Tipping v. Enkersley 951 a v. St. Helen's Smelt- ing Co. 927 e v. Tipping 565, 1376 Tipton v. Tipton 1065 b Tirrell v. Merrill 33 Tissen v. Tissen 844 Titcomb v. Morrill 972, 1197 Tittenson v. Peat 1454, 1498 Tobey v. The County of Bristol 959 a, 1457 Todd v. Ames 1400 v. Barlow 1454 v. Buckman 1036 a v. Gee 779, 795 to 799 v. Grove 309 b v. Pittsburg, Ft. W. & C. R.R. 1391, 1400 v. Taft 724 b, 771 v. Wilson 523 Toker v. Toker 706 b Toller v. Carteret 743, 899, 1293 Tollett v. Tollett 105 a, 169, 170, 1061 Tolson v. Collins 1111, 1122 Tombs v. Elers 1339 v. Roch 565, 571 Tomereau v. Poyntz 181 Tomkins ». Tomkins 896, 1347 / v. Wilshear 442 Tomlinson v. Harrison 1468 v. Savage 201, 293 Tommey ». Ellis 33, 882 Tompkins v. Burnett 298 Tomson v. Judge 310 Tongue v. Nutwell 64 e Tonnins v. Prout 907 Tonson v. Walker 935 Tooke v. Hartley 1025 t>. Hastings 1231 Tool Co. v. Norris 293 6 Toole v. Medlicott Topham v. Duke of Portland 764 203/, 255 Toplis v. Baker 705 a, 1028 b Torr v. Torr 767 Torrance v. Bolton 694 a Torrent v. Booming Co. 700 Torrey v. Bank of New Orleans 316 v. Camden, &c. R.R. 928 Tothill v. Pitt 1067 6 Tottenham v. Emmet 337 b, 344 v. Green 694 a Tottenham's Estate 164 h Totty v. Nesbitt 81 Toulman v. Price 81 Toulmin v. Steere 397, 421 Toulumne v. Chapman 929 Tourle v. Rand 381, 393, 1020 Tourson's Case 229 Tourville v. Naish 1057 Tovey v. Young 895 Towers v. Davys 707 Towle v. Swasey 571 Town v. Needham 655 v. Wood 527 Townend d. Toker 706 c Townley v. Sherborne 1280 Townsend v. Ash 509, 511, 514 v. Carpenter 1057 a v. Devaynes 674, 1207 v. Ives 1447 v. Lowfleld 190 v. Maynard 361 v. Radcliffe 615 v. Townsend 589 c, 1449 c v. Wentworth 362 a v. Windham 176, 352, 355, 356, 359, 363, 568 Townshend v. Martyn 1227 v. Stangroom 767, 770, 770 a v. Windham 1047, 1372 1376, 1396 Towsley v. Denison 526 Tracy v. Sackett 238 Traders' Bank v. Ocean Ins. Co. 81 Trafford v. Ashton 1064 v. Boehm 1273 Traip v. Gould 74 b Trammel v. Marks 695 a Transatlantic Co. v. Pietroni 589 Traphalgen v. Traphalgen 793 r Trash v. White 1028 b Travers v. Travers 1208 Traverse v. Bulkeley 1368 Tray v. Clarke 776 Treacle v. Coke 684 Treadwell v. Brown 677, 1493 6 v. Treadwell 1248 b CV1 INDEX TO CASES CITED. Treasurer v. Commercial, &c. Co. 724 6 Tregonwell v. Sydenham 1200 Trelawney v. Booth 790 Tremblestown v. Lloyd 184 Trench v. Fenn 1435 Trenchard v. Wanley 184, 190 Trent v. Hanning 1067 6 v. Kyle 1228 Trenton Bridge v. City Bridge 925 6 Trevelyan v. Charter 310 Trevillian v. Mayor of Exeter 1227 Trevor v. McKay 895 v. Perkins 1248 a v. Trevor 985, 986 Trexler v. Miller 184 Treyes v. Robinson 1248 d Tricker v. Kingsbury 2916 Trierson v. Gen. Ass. Pres. Church, &c. 1191 Trimmer v. Bayne 494, 559, 563, 564 a, 633, 789, 1111, 1114, 1220 Tritton v. Foote 722 Troost v. Davis 58, 799 a, 1016 b Trott v. Vernon 1247 Troughton v. Binks 423, 581, 1023 v. Troughton 176, 418 Troutbeck v. Broughey 1397 a Troutman v. Cowing 793 t Trowbridge v. Holden 1375, 1528 Trower v. Newcome 191, 199 Trull v. Bigelow 434 v. Eastman 344, 729 1040,10406 Trulock v. Roby 488 a, 1581 Truly v. Wanzer 887, 1582 Truman v. Reagan 203 a Truseott v. King 459 a Trustees v. Wright 1226 Trustees of Baptist Association 1141 of First, &c. Church v. Stewart 929 of Huntington v Mcoll 854, 859,901 of Watertown v. Cowen 921, 927 Tuck v. Calvert 499 d Tucker v. Condy 585 v. Con well 700 v. Fenno 1372 v. Laing 326 v. Madden 157 v. Oxley 675, 1437 v. Phipps 184, 254 v. Seamen's Aid Soc. 1169, 1170 v. Wilson 1031 Tuckfield v. Buller 652 Tuckley v. Thompson 645 Tudor v. Samyhe 1410 Tufnell v. Constable 433, 706, 793 a v. Page 1171 Tufton v. Harding 891 Tufts v. Larned 157 Tulk v. Moxhay 737 Tullett i'. Armstrong 1384, 1400 Tullit o. Tullit 1357 Tulloch v. Hartley 623 Tully v. Harloe 1023 c Tunniclifi's Case 1476 Tunstall v. Boothby 1040 d to 1040/ v. Trappes 1216 6 Turley v. Nowell 769 Turnbull v. Gadsden 203 Turner v. Adams 201 v. Burkinshaw 462 6 v. Collins 309 a v. Davis 498 v. Harvey 191, 201, 205, 207, 693 v. Kerr 1018 6 v. Marriott 1232 v. McCarter 252 v. McCarty 1041 v. Morgan 656 u. Nye 972, 987 a, 1375 v. Ogden 1164 v. Turner 137, 309 6, 554, 891 v. Wise 74 d, 703 v. Wright 518 a Turner's Case 1410 Turton v. Benson 269 Tuttle v. Howe 1056 v. Moore 729 v. Standish 82 Tweddell v. Tweddell 576 Tweedale v. Coventry 571 v. Tweedale 1065 a Twining v. Morrice 120, 201, 293 Twisden v. Twisden 1106, 1109, 1110 Twiss v. Massey 675 Twist v. Child 293 a, 293 6 Twistleton v. Griffith 331, 335, 339 Twitchell v. Bridge 196 Twogood, Ex parte _1437 v. Swanston 523 Twort v. Twort 916 Twynam v. Porter 1233 6 Twyne's Case 352, 354, 355, 365, 368, 369, 373 Twypont v. Warcup 195 Tyfion v. Tyffon 998 Tyler v. Barrows 1040 v. Lake 1382, 1383 v. Yates 342 Tyndale v. Warre 1216 a, 1216 c Tynes v. Grimstead 315 Tyngeldew v. Warham 44 Tynt v. Tynt 1376 INDEX TO CASES CITED. cvu Tyrrell v. Hope 1381, 1382 v. The Bank of London 329 6, ■ 1277 c Tyson v. Cox 883 v. Fairclough 835 v. Passmore 161 v. Tyson 120, 134 v. Watts 769 Tysor v. Lutterloh 87 Tyus v. Rust 817 a, 821 u. Udell v. Atberton Uhler v. Semple Uhlrich o. Muhlke Ulrich v. Littlefield Underhill v. Harwood 193 a, 243 a 323, 674 315 179 158, 162, 163, 239, 246, 694 v. Van Cortlandt 1452, 1454, 1455, 1463 Underwood v. Hatton 90, 549 v. Hitchcock 742 v. Lord Courtown 130, 396, 401, 402, 404 v. Stevens 1269, 1281, 1284 Ungless v. Tuff 1269 a Union Bank v. Bell 301 v. Kerr 806 Union Bank of Georgetown v. Geary 118 United States Co. v. Wiley 824 a United States Ins. Co. v. Shriver 633 United States v. Bank of Virginia 1494 v. Cushman 164 v. Durean 633 v. Eckford's Exr's 459 ft, 459 g v. Green v. Howland 1341a 57, 1037, 1038 499 d, 1037 459 6, 459 g 900 v. Hunter v. January v. Keokuk v. Kirkpatrick 326, 459 a, 459 ft, 459 g v. McLeniore 893 v. McRae 1320 v. Morrison 1216 v. New Orleans R.R. 1021 a v. Price 164 v. Prioleau 959 ft v. Ruggles 924 v. Wardell 459 a, 459 g v. Williams 677 Universities of Oxford and Cam- bridge v. Richardson 927, 933, 934, 935 Upham v. Lafavour 459 6 Upmann i>. Elkan 951 Upperton v. Nickolson 776 Upton u. Englehardt 195 v. Moore 1047 Upwell o. Halsey 844 Urann v. Coates 972 Urquhart v. King 1208 Usborne v. Usborne 1017 Usticke v. Peters 1075 Utterson v. Mair 828 Uvedale v. Ettrick 1288 V. Vachel v. Jeffries 1208 v. Vachel 844 Vail v. Foster 1226 v. Knapp 900 Valle v. North Mo. Railw. 1456 a Valliant v. Dodemede 684 Van Alstyne v. Cook 677 Van Bergen v. Van Bergen 927 Van Buren v. Digges 1318 Van Campen v. Knight 776 Vance v. Andrews 74 a v. Blair 665 v. Campbell's Heirs 2916 v. Nagle 1372 v. Smith 361 v. Wood 831 Vandergucht v. La Blaquiere 1400, 1425, 1472 Vanderheyden v. Mallory 1398 Vanderplank v. King 1074 a Vandervoort v. Smith 16 Vanderwerker v. Vt. Central Railw. 1456 a Vanderzee v. Willis 1032, 1034 Vandoren v. Mayor of New York 700, 700 a Van Doren v. Robinson 400, 767, 771 Van Douge v. Van Douge 164/ Van Duyne v. Vreeland 786, 788, 845 Van Duzer v. Van Duzer 1361, 1414 Vandyck «. Herritt 298 Van Dyke's Appeal 677, 1096 Vane v. Cobbold 204 v. Vane 1521 a Van Epps v. Van Deusen 1361, 1403, 1411 v. Van Epps 316, 321 Van Horn v. Fonda 1211 Van Liew v. Johnson 203 a Van Mater v. Ely 564 a Van Meter v. M'Fadden 64 d, 1020 CYLU INDEX TO CASES CITED. Van Meter v. Siekler 543 a Van Rensselaer v. Chad-wick 475 a Van Riper v. Van Riper 1122 Van Valkenburg v. Watson 1347 b Van Vronker v. Eastman 1016 a Van Zandt v. New York 771 Varick v. Briggs 1503 a v. Corporation of N. York 870 Varney v. Pope 924 a Varnum v. Meserve 1027, 1214 a Vattier v. Hinde 1502 Vaughan v. Bibb 1277 ». Buck 1403, 1421 a ' v. Burslem 985 Ex parte 1322 v. Fitzgerald 1512 v. Vanderstegen 243 a, 1401 a v. Welsh 889 Vauxhall Bridge Co. v. Spencer 260, 271, 293 a Vavasour v. Chadwick 44 Veal v. Veal 607 d Veazie v. Williams 201, 293 Veghte v. Hoagland 1455 Venning v. Leckie 665 Vent v. Osgood 240 Verdier v. Verdier 577 Verney v. Verney 487 Vernon v. Bethel 1018,1019 v. Keyes 199, 203 v. Vawdry 523, 527, 1286 v. Vernon 482, 987 Vernon's Case 1080 Verplank v. Sterry 359, 362 Verselius v. Verselius 377 Vesey v. Jameson 1157, 1164 Vickers v. Vickers 729, 767, 1457 a Vickery v. Welsh 292 Vidal v. Girard's Executors 44, 1154 6, 1154 c Viele o. Troy & B. Railw. 769 Viers v. Montgomery 433 Vigers v. Pike 202, 203 a, 769, 771, 1520 Villa v. Rodriguez 1018 Villard v. Roberts 404 Villa Real or De Costa v. Lord Gal- way 1088 v. Mellish 1338, 1340 Villers v. Beaumont 433 v. Villers 998 Vincent v. Bowesley 684 a Viney v. Chaplin 769 a Vineyard v. Smith 736 a, 769 Vitt v. Owens 959 m Vivan v. Mortlock 892 Vivers v. Tuck 778 b ! Voegtly v. Pittsburg, &c. R.R. 475 a ' Voll v. Smith 765 Voorhees v. De Meyer 141 v. Dow ' 1057 c v. Presbyterian Church 316 Vose v. Grant 1252 v. Reed 839 Vreeland v. Blauvelt 749 Vulliamy v. Noble 676, 1437 Vyse v. Poster 676 6 Vyvyan v. Vyvyan 1520 c w. W v. B 300 a Wade v. Colvar 231 v. Coope v. Howard 499 1035 6 v. Paget v. Pope Waddingham v. Loker Wadeer v. East India Co. 174 1400 190 1496 Wadham v. Calcraft 1315, 1321, 1322 Wadsworth v. Davis 546, 549 v. Williams 369 Wafer v. Mocato 1320, 1324, 1326 a Wagstaff v. Smith 1382, 1390, 1392, 1401 v. Wagstaff 174 Wainwright v. Bendlowes 572 Wait, In re 677 Waite v. Horwood 1210 Wake v. Conyers 610, 613, 615, 619, 621 v. Wake 1098 Wakeman v. Dalley 198 v. Grover 1036, 1036 a Walbum v. Ingilby 671 Walcot v. Walker 937 Walcott v. Hall 92, 503 v. Keith 1030 Walden v. Murdock 370 Waldo v, Caley 1164, 1190 v. Martin 295 Waldron, Ex parte 1341 a Walford v. Harrington 1198 Wales v. Coffin 64 e v. Mellen 1016 Walker, Ann, In re 1406, 1417, 1418, 1420, 1421, 1423 v. Armstrong 164 d v. Barker 564 b v. Bradley 92 v. Brewster 927 e v. Burroughs 352, 353, 356, 360, 361, 363 v. Childs 1180 v. Covar 645 INDEX TO CASES CITED. C1X Walker v. Denne 790, 1196 b o. Hill 64 e, 92 v. House 672 a v. Jackson 572, 573, 1077 v. Johnson 972 v. Jones 882, 1023 « v. King v. Kretsinger v. McCoy v. Meagher v. Miller 1017 146 694 a 555, 556 410 v. Perkins 296 v. Preswick 789 v. Robbins 898, 1582 v. Smallwood 400 a, 1127 v. Smith 310, 314 v. Symonds 190, 216, 1274, 1275 v. Taylor 422 v. Walker 161, 759, 768, 1018, 1268 a, 1277 v. Ware, &c. R.R. Co. 1231 b v. W. H. & B. Railw. 1231 b v. Wetherell 1355 v. Witter 1576 Wall v. Arrington. 165 v. Cockrell 468 a v. Gordon 939 v. Stubbs 197 v. Wall 1097 Wallace v. Holmes 1353 v. Pomfret 1111 v. Wallace 309 a Wallenstein «. Selizman 33 Waller v. Childs 1190 v. Duke of Portland 297 Wallis v. Carpenter 1318 v. Crimes 1315 v. Duke of Portland 1049, 1493 a, 1494 v. Hirsch 670 v. Pipon 537 Wallop v. Portsmouth 1062 a WaUwyn v. Coutts 793 a, 972, 987, 1036 b, 1045, 1057, 1196 v. Lee 410, 709 Walmesley v. Booth 310, 312, 313, 335, 336 v. Child 80 to 85, 88 v. Studdart 607 a Walmisley v. Milne 710 Walsh v. Boyle 1227 v. Gladstone 1176 v. Wason 1417 Walsham v. Stainton 203 d Walter v. Hodge 1375 v. Klock 1198 v. Saunders 1410 v. Selfe 926 Walter v. Walter 1370 de Chirton's Case 1201 Walters v. Morgan 757 v. The North Coal Min- ing Co. 684 Waltham's Case 187 Walton v. Hargroves 1228 v. Hobbs 1528 Walworth v. Holt 671 Wambaugh v. Bimer 203 g Wanless v. United States 1040 g Warbass v. Armstrong 1268 a Ward v. Arredondo 744 v. Audland 706 a, 793 a v. Buckingham 710, 720 v. Coffield 1119 v. Dudley & Ward 575 v. Morrison 1047 v. Shallett 372 v. Smith 322 v. The Society of Attorneys 959, 1556 v. Trathen 203 6 v. Turner 606, 607 a, 607 c v. Webber 164 Warde v. Warde 1341 Warden, &c. of St. Paul's v. Morris 519 Warden u. Jones 374, 987 a v. Richards 1062 Warder v. Stillwell 667 v. Tucker 111 Wardlaw v. Wardlaw 166 Wardour v. Binsford 254 Wardwell v. Wardwell 1338 a Ware v. Gardner 361, 432 6 w. Horwood 694, 854, 897, 901 v. Lord Egmont 400 a v. Owens 674 v. Polhill 1357 v. Thompson 301 v. Watson 1196 b Warfield v. Booth 292 v. Crane - 656 b Waring v. Ayres 767 v. Hotham 617, 621 v. Ward 1248 v. Waring 223, 238 Warman v. Seaman 1067 b Warmstrey v. Tanfield 1040 Warner v. Bates 1068 6 v. Baynes 654, 656 v. Bennett 1319 v. Conant 1574 v. Daniells746, 190, 197,204, 222, 237, 245 v. Leisen 673 Warnton v. May 899 Warre, The Ship 1040 b, 1055 ex INDEX TO CASES CITED. Warren v. Rudall 604 a, 1077 v. Warren 564 c, 1111 Warriner v. Rogers 973 Warrington v. Wheatstone 800 Wartz v. Hart 645 Warwick v. Warwick 165, 408 Washburn v. Bank of Bellows Falls 645 a, 674 Washington v. Barnes 896 Washington University v. Green 861 Wason v. Wareing 146 Wasson v. Davis 1226 Wastneys v. Chappel 989 Waterer v. Waterer 674 Waterhouse v. Stansfield 744 Waterman v. Seeley 1201 Waterlow v. Bacon 882 Waters v. Howard 718, 764 v. Mattingley 184 v. Mynn 203 c, 1018 v. Riley 164 v. Shaftsbury, Earl of 312 d v. Taylor 670, 671, 673, 901 v. Tazewell 291 b v. Travis 778, 779 v. Waters 1447 Watford, &c. R. Co. v. London, &c R. Co. 457 Wathen v. Smith 1106 Watkins v. Cheek 581, 1131 a, 1132 v. Flannagan ' 499 d v. Maule 729 v. Specht 975 v- Watkins 1371, 1415, 1424 to 1426 v. Williams 656 Watkinson v. Bernardiston 1241 Watney v. Wells 665 a Watson v. Alcock 327 a v. Binkwood 1248 d v. Cox 737 a v. Duke of Northumber- land 649, 651 v. Hunter 518, 919 v. Lincoln, Earl of, 1115 v. Maham 763 v. Mid- Wales R. Co. 1047 v. Planter's Bank 251 v. Reid 771 v. Saal 1520 c v. Sutherland 896 i'. Watson 1111 v. Wellington, Duke of 1044, 1045, 1055 Watt v. G-rove 315 v. White 1227, 1228 Wattervery v. Netherland 1088 a Watts v. Boddington 1061 v. Brooks 298 Watts v. Cummins 134 a v. Girdlestone 1262, 1273 a v. Grove 795 v. Kinney 499 d v. Shrimpton 1409 a v. Shuttleworth 498 6 u. Waddle 771, 778 Way v. Patty 1226 Weakly v. Watkins 299 Weale v. Lower 107 v. West Middlesex Water- Works Co. 741 Weall v. Rice 1100, 1102, 1105, 1109 to 1111, 1113 Weate v. Lower 1040 Weaver, In re 891 a v. Shryork 162, 164 v. Weaver 680 Webb v. Alton Mar. and Fire Ins. Co. 769 v. Cleverden 184 v. England 473 a v. Harp 928 v. Hewitt 326 v. Hughes 776 v. Hunt 926 In the Matter of 1364, 1365 v. Lymington 704 v. Manchester and Leeds Railway Co. 1554 v. Parker 146 v. Rice 125 v. Ridgely 33 v. Sadler 1065 b, 1214 a, 1394 e. Shaftesbury 480 v. Shaftesbury, Earl of 1096, 1357 v. Webb 684 Webber v. Hunt 1277 v. Smith 1321, 1322, 1326 a v. Webber 603 Webster v. Cecil 749 b v. Cook 337 b v. Harrington 893 a v. Parr ' 604 a v. Pawson 1516 v. Van Steenberg 410 v. Webster ' 667 v. Woodford 225 Wedderburn v. Wedderburn 317, 465, 676 ft, 1520 Wedgewood v. Adams 742 Weed v. Case 196 v. Grant 883 «. Terry 732 Weeds v. Bristow 1065 c Weeks v. Staker 855 Weigel v. Walsh 928 Weir v. Mundell 722 INDEX TO CASES CITED. CXI Weise's Appeal 749 b WeismanV Smith 769 Wekett v. Raby 706 Welby v. Duke of Rutland 857 v. Welby 229, 1084, 1085, 1093, 1094 Welch v. Burris 1354 a v. Mandeville 1056 v. Parran 499 d v. Priest 410 Weld v. Lancaster 293 v. Rees 246 Wellbeloved «. Jones 1147 Wellborn v. Williams 1227 Weller v. Smeaton 855, 857 v. Weyand 735 Welles v. Middleton 310, 312, 313 Wellesley v. Duke of Beaufort 1334, 1337 to 1339, 1341 v. Wellesley 518 a, 729, 915, 1231, 1328, 1334, 1339, 1342, 1343, 1349, 1351, 1352, 1354 Wellington v. Mackintosh 670 Wellman v. Bowring 1065 b Wells v. Bannister 388 v. Bridgport Hy. Co. 257 b v. Carpenter 678 v. Chapman 927 v. Cooper 458, 464 v. Doane 1164 v. Foster 1040 b, 1040 d to 1040/ v. McCall 1384 v. Millett 749 b v. Morrow 400 b v. Newton 1065 d v. Smith 298, 1324 v. Thorman 1400 a. Tucker 606, 607 o, 607 c v. Yates 147 Welsh v. Bayard 767 v. Freeman 654 v. Usher 1020 v. Welsh 377 Wench v. Winchester 195 Wendell v. Van Rensellaer 313, 385, 389 Wentworth v. Lloyd 329 c Wertz's Appeal ' 1247 Wesco's Appeal 1109 Wessenger v. Hunt 604 a West v. Belcher 499 d v. Errissey 160, 165, 987 v. Forsythe 1339 v. Holmesdale 984, 988 v. Howard 1370 v. Kerr 291 c v. Knight 1147, 1164, 1170, 1139 West v. Randall 1526 v. Raymond v. Reid 1057 c 339, 1020 v. Schnebly v. Schryer v. Shuttleworth 700 1027 1164 v. Skipp 677, 1243, 1253 v. Sloan 322 a Westbrooke v. Harbesson 161 Westerlo v. DeWitt 607 a Westerman v. Means 1318 Western v. McDermott 927, 1535 v. Medamot 957 a v. Russell 244 Western Bank of Scotland v. Addie 193 a Western R.R. Co. v. Nolan 959 a Western R.R. Corp. v. Babcock 769 Westervelt v. Huff 400 Westfaling v. Westfaling 563, 1216 c Westley v. Clarke 1281, 1283 Westmeath v. Salisbury 1427, 1428 v. Westmeath 735 a, 1247, 1428 Weston v. Barker 972, 1037 v. Collins 777 a v. Hight 607 v. Ketcham 674 Wetherbee v. Dunn 615 Wetherby v. Dixon 1117 Wethered«. Wethered 265, 343, 1040 b Wetherell v. Wilson 1289 a Wetmore v. Parker 1170 a, 1191 v. White 761 Weymouth v. Boyer 74 a Whale v. Booth 551, 579, 580 Whaley v. Bagenal 758, 765 v. Dawson 520, 621, 652 v. Norton 296 Whalley v. Whalley 331, 1521 a Wharton v. Baskee 604 a v. Earl of Durham 1109, 1111, 1113 v. May 342, 344, 523, 899 Wheatley v. Calhoun 499, 499 d v. Parr 793 c Wheatly v. Westminster, &c. Coal Co. 729 Wheaton v. Peters 940 Wheddon v. Spode 1248 d Wheeler v. Bingham 287, 289 v. Ex parte 1338 v. Home 446, 447 v. Kirtland 166, 1201 6 v. Randall 196 v. Sheers 1208 v. Smith 125, 979 a, 979 b, 1154 c, 1156 v. Sumner 1036 CX11 INDEX TO CASES CITED. Wheeler v. Tootel 480 v. Wheeler 1016 Whelan v. Sullivan 767 v. Whelan 309 Wheldale v. Partridge 790 Whetham v. Clyde 972 Whiehoote v. Lawrence 321 Whieherly v. Whicherly 443, 1528 Whicker v. Hume 1164 Whistler v. Newman 1401 v. Webster 1093, 1094, 1098 Whitaker v. Bond 769 v. Garnett 229 b v. Newman 1447 v. Rush 1434, 1435, 1437, 1440, 1444 v. Whitaker 987 a v. Wright 549 Whitbread u. Brockhurst 757, 759, 762, 765 Ex parte 1020 Whitchurch v. Bevis 755, 757, 762, 764, 768 v. Golding 82, 83 Whitcomb v. Minchin 322 White v. Arlett 1318 v. Baker 604 a v. Baring 1241 n. Bishop of Peterborough 829, 836, 837 v. Burke 498 v. Bush 303 v. Butcher 738 v. Butt 1021 a v. Cordwell 1444 «. Cox 321 v. Cudden 751 a v. Damon 742 v. Dobson 779 v. Evans 1208 v. Hall 744, 899, 1294 v. Hampton , 457 v. Hermann 767 v. Herrick 1361 v. Hillaire 418, 547 v. Howard 790, 1168, 1170 v. Hussey 377 v. Jones 677 v. Lady Lincoln 468 v. Langdon 1540, 1541' v. Nett 1401 / v. Nutt 104 v. Parnther 423, 581, 1023, 1028 a, 1028 b, 1035, 1520 v. Polleys 640 v. Port Huron, &c. R.R. Co. 1319 v. Sheldon 1201 v. Small 236 White v. Thornborough 985 v. Tudors 205 v. Ward 316 v. Warner 1322 to 1324 v. White 487, 624, 1141, 1166, 1167, 1170, 1190, 1456 a v. Williams 134 a, 164 b, 451, 596, 769 v. Wilson 165, 1147 Whiteburn v. Hines 238 v. Whitchurch 988, 1001 Whitefleld v. Bewitt 513, 517 Ex parte 1329, 1354 v. Paussat 64 c, 79, 81, 84, 1040 c v. Hales 1341 Whitehead v. Bennet 1321 v. Lassiter 604 a v. Peck 301 v. Wooten 829, 1016 Whitehorn v. Hines 239 Whitehouse v. Partridge 1468, 1470, 1474 Whitehurst v. Green 886 Whitewater Valley Canal Co. v. Comegys 812 Whiting y. Hill 306 Whitlock v. Duffield 722 Whitman v. Weston 165 Whitmel v. Parrel 740 Whitmore, Ex parte 1425, 1472 v. Makeson 33 v. Oxbourne 547 v. Thornton 895 Whitney v. Smith 1261, 1273, 1277 g v. Stone 751, 793 r v. Union R. Co. 737 v. Wheeler 607 a Whitridge v. Parkhurst '762, 793 r Whittacre v. Fuller 633 Whittemore v. Cowen 440 b v. Gibbs 1016 v. Whittemore 769 a, 779 Whitten v. Russell 61, 105 a, 256 v. Whitten 1204 Whittey v. Lowe 1521 b Whittingham v. Burgoyne 907 Whittle v. Henning 1097 v. Skinner 1030 Whitwell v. Warner 1261 b Whitworth v. Guagain 1503 b v. Harris 666, 722 Whorwood v. Whorwood 1424, 1425 Whyte v. Collins 604 o v, O'Brien 1436 Wickenden v. Rayson 645 Wicker v. Hoppock 293 Wickes v. Clarke 355, 427, 1377 a, 1379, 1415 INDEX TO CASES CITED. CX111 Wickham v. Wickham 919 Wickliffe's Ex'r v. Breckenridge's Heirs 406 Wicks v. Hunt 1520 a Widby v. Cooper Co. Ill Widmore v. Woodroffe 1146 Wier v. Tucker 527 Wigg v. Nicholl 569, 1180 a Wiggin v. Bush 379 v. Dorr 499, 633 Wiggins v. Burkam 526 Wiggle v. Owen 1355 Wigglesworth v. Steers 231 Wight v. Graham 1400 Wigley v. Beauchamp 1088 a Wigsell v. Wigsell 486 Wikoff v. Davis 1233 Wilbur v. Howe 293 Wilcox v. Drake 1338 v. Faii-haven Bank 499 v. Iowa, &c. University 193, 196 v. Wheeler 925 /, 928 v. Wilcox 566 c, 674, 1106, 1107 Wilcoxon v. Galloway 779 Wild v. Banning 1200 v. Hobson 440 Wild's Case 604 a Wildbridge v. Patterson 376 Wilde v. Gibson 193, 399 v. Milne 653 a Wilder v. Lee 146 Wildgrove v. Wayland 400 a Wildman v. Wildman 987 a Wildman's Trust, In re 604 a Wiles v. Gresham 131 a Wilhelm v. Caylor 1520 Wilkes v. Collin 1035 c v. Ferris 1036 v. Holmes 174 v. Smith 1226 v. Steward 1274 v. Wilkes 699, 735 a, 1427 Wilkin v. Wilkin 442, 650, 654 Wilkins v. Atken 932, 934, 935, 939, 940 v. Finch 546 v. Hogg 1270 a v. Stearns 1258 Wilkinson v. Barber 1193 v. Brayfield 229 v. Cheatham 1400 v. Clements 470, 727, 779 v. Dent . 1089, 1090 v. Fawkes 239 v. Gibson 1420 v. Henderson 162, 676 v. Jonghin 182 bo. juk. — vol. i. / Wilkinson v. L'Etugier 303 v. Lindgren 1164 v. Nelson 164 b v. Simson 1016 a, 1035 6 v. Stafford 46 Willan v. Lancaster 1247 v. Willan 120, 123, 134, 236, 694 Willard v. Eastham 1401 u, 1401 d v. Reas 1226 v. Tayloe 64 e v. Taylor 769 v. Wave 174 a, 1062 a Willesford v. Watson 670 Williams v. Ayrault 900 v. Bailey 885 v. Callow 1424 v. Carle 273 v. Champion 138 / o. Chitty 1246 v. Cooke 522 v. Craddock 1503 6 v. Davies 1436, 1436 a v. Earl of Jersey 926, 959 a v. Evans 710 a, 761 v. Everett 1039, 1041 to 1043, 1045 Ex parte 1253 o. Fitzhugh 301 v. Flight 700 v. Glenton 777 a v. Green 1318 v. Griffith 459 a v. Halbert 809 v. Harden 74 v. Hart 771 v. Howard 709 In re 1307 a v. Jones 1208 v. Kershaw 1157, 1174, 1180 v. Lamb 410, 630, 631 v. Lee 894, 895 v. Lord Lonsdale 1195 b v. Lucas 1249 v. Nixon 1280 a, 1283 v. N. Y. Central Bail- road 927 v. Owen 502 a v. Owens 421 a, 499 v. Peinny 959 a v. Prince of Wales Life Ins. &c. Co. 940 v. Protheroe 1048, 1050, 1053 v. Rawlinson 459 g v. Smith 926 a v. Steward 741, 783 v. Thorp 1057 v. Walker 809 CX1V INDEX TO CASES CITED. Williams v. Wiggand 653 v. William 952, 1068 b, 1154 c v. Williams 337 c v. Wright 89 Williamson v. Berry 1328 v. Codrington 987 v. Curtis 1130 v. Gihon 263, 264, 267 i). Moriarty 310 v. Naylor 1521 a Willie v. Lugg 1023 Willing v. Peters 790 Willis v. Astor 722 v. Brown 1164 v. Freeman 677 v. Jamegan 236, 331, 382, 526 v. Parkinson 649 v. Slade 652, 656 Willison v. Watkins 529, 1520 Williston v. Williston 763, 771 Willoughby v. Brideoke 337 b v. Middleton 1080 a v. Willoughby 998, 1000 to 1002, 1502 Wills v. Maccarmick 1452 v. Sayers 1381 to 1383 v. Stradling 759, 763, 765 Willson v. Pack 1375 Wilmot v. Maecabe , 1494 Wilson v. Bell 1068 b v. Castro 1198 v. Clear 1016, 1016 a v. Darlinton 575 v. Davis 1318 v. Davisson 1132 v. Duncan 654 Ex parte 326, 1017 v. Ferrand 900 v. Fielding 551 to 553, 564 v. Foreman 1210 v. Furness R. Co. 721 a v. Getty 695 a v. Greenwood 672 v. Harman 480 v. Hart 927, 956 v. Hunter 400 b v. Ivat 596 v. Jones 1314 v. Lord Townshend 1077, 1096 v. Lyon 1226 v. Mason 1257 v. Mayor of New York 959 a v. Miller 322 v. O'Leary 1123 a v. Paul 454 v. Pigott 1106 v. Riddle 457 v. Strayhom 164 6 Wilson v. Stewart 499 e v. Townsend 927 a, 929 6 v. Thombury 1097 v. Troup 1022, 1211 v. Waterman 451 v. West Hartlepool, &c. Co. 778 b, 1537 ». Wills Valley R.R. Co. 1556 v. Wilson 735 a, 1023 e, 1406, 1425, 1427 & Worrall's Case 435 Wilson's Case 1020 Wilt v. Franklin 1036 a Wilthey v. Mangles 1065 c Wiltshire v. Rabbitts 1035 a Winch v. Brutton 1070 v. James 1361 v. Page 1403 v. The Birkenhead, Lan- cashire, &c. R. Co. 959, 1559 v. Winchester 161, 770 Winchelsea v. Duke of Norfolk 542 Earl of, v. Norcliffe 1357 Winchester v. Ball 1030 v. Charter 360 v. Fournier 700 v. Grosvenor 146 v. Guddy 367 Winchester, Bishop of, v. Knight 69, 467, 513, 515 v. Merchant's R. Co. 793^ v. Paine 405, 406 Wind v. Jekyll 532, 540, 593, 1040 Windrim v. Philadelphia 959 a Winfield v. Henning 956 Wing v. Harvey 1321, 1325 a v. Lefebury 788 v. Merchant 607 " v. Tottenham, &c. R. Co. 1231ft Wingate v. Haywood 896, 1572 Winn v. Williams 395 Winne v. Reynolds 775, 778 Winpenny v. French 293 b Winship v. Pitts 919 v. Winship 1076 Winslow v. Cummings 1166, 1169, 1170 Winstanlay v. Lee 925, 927 Winter v. D'Evreux 732 v. Lord Anson 1225, 1226 Winterfield «. Strauss 896 Winthvop v. Farrar 924 a Winton v. Fort 799 b Wintour v. Clifton 1075, 1097 INDEX TO CASES CITED. cxv Wisden v. Wisden 1247 Wood v. Scarth 737 a Wise v. Shepherd 633 w. Scoles 683 a Wisely v. Findlay 653 v. Sullens 1226 Wiseman v. Beake 337 v. Sutcliffe 927 v. Roper 740 v. White 1060, 1127 Wiser v. Blachley 153, 164 v. Wood lWOo b, 1388, 1395 Wiswall v. McGown 794, 798 Woodbury v. Luddy 735, 779 Wiswell o. Teft 767 Woodbury Savings Bank v Char- Witby v. Mangles 1065 6 ter Oak Ins. Co. 120, 138 I Wjtcher v. Hall 883 a Woodcock v. Bennett 787, 795 to 797 Withers v. Pinchard 731, 734 Woodcock's Case 381 v. Sparrow 1400 Wooden v. Haviland 153 v. Teadon 98 Woodford v. Stephens 1201, 1372 Withington v. Tate 1035 d Woodgate v. Field 548 a Withy v. Cottle 722, 723, 796 Woodhouse v. Hoskins 996 Witley v. Price 348 v. Meredith 300, 315 Witter v. Witter 1357 v. Shipley 274, 275 Witts v. Boddington 1061 v. Woodhouse 1520 a v. Dawkins 1394 Woodman v. Blake 1315 Woffington v. Sparks 493, 499 b v. Kilbourn Manuf . Co. 924 Wofford v. Board of Police 70U v. Freeman 33 Wolcott v. Jones 897, 1437 a v. Saltonstall 33 v. Bobbins 619 Woodmeston v. Walker 1380, 1384 Wolf v. Schleifier 896 Woodreff v. Barton 254 v. Smith 645 v. Farnham 303 Wolfe v. Frost 926 a Woods v. Monroe 700 v. Luyster 201 v. Woods 1289 a Wollaston v. King 1091 Woodward v. Aspinwall 722, 736 a v. Tribe 706 b, 987 Ex parte 1341 a Wollstonecraft, Ex parte 1341 a v. Phillips 1016 6 Wolverhampton Bank v. Marston 370 v. Schatzell 1475 Womack v. Austin 1276 Woolam v. Hern 152 to 154, 158, 161, Wood v. Abrey 239, 337, 338 767, 770, 770 a v. Beath 673 a Woolaston v. Wright 812 v. Birch 1236 Wooldridge v. Norris 499 v. Boosey 939 Woollands v. Crowcher 1413 v. Burnam 974 Woollston v. Tribe 164 A v. Chart 939 Woolscombe, Ex parte 1338 v. Cochrane 404 Woolstonecroft v. Long 554 v. Cone 790 v. Woolstonecroft v. Cox 979 a , 1068 a to 1070, 1248 d 1073, 1196 a Woolworth t>. Brinker 883 v. Cruisman 710 v. Campbell 656, 658 v. Dixie 369 v. Van Buskerk 888 v. Downes 310, 312, 313, 318, Worcester, Inhabitants oj , v. 345, 1040 g, 1048, 1049 Eaton 298 v. Dummer 1252, 1253 Wormack v. Rogers 246 v. Fen-wick 240 Wormald v. Maitland 400 b, 412 v. Grimth 778, 779, 1049, 1050, Wormley v. Rowcliife 718, 719 1051, 1454, 1455, 1459, 1485 v. Wormley 1130 1134, 1262 In re 1364 a Worms v. Smith 958 6 v. Keyes 790 Worrall v. Jacob 112, 433, 1427, 1428 v. Mann 64 c, 1502, 1503 v. Molar 1229 v. McCann 293 6 v. Munn 790 v. Myrick 1270 a Worsley v. De Mattos 369, 371, 422 v. Norman 1236 v. Earl of Scarbor o' 405, 408 v. Reeves 1214 a v. Johnson 1065 5 v. Robson 670 Worthington v. Evans 291 ». Rowcliffe 709 v. Morgan < 100 a, 1020 CXV1 INDEX TO CASES CITED. Worthy v. Tate 33, 84 Wortley v. Birkhead 414, 415, 419, 1503 Worwald v. Maitland 400 6, 412 Wotherspoon v. Currie 951 Wotten ». Copeland 656 Wragge's Case 1038 Wray v. Steele 1201, 1206 v. Williams 629 v. Wray 238 Wren v. Bradley 291 a Wrexham v. Huddleston 673 Wride e. Clarke 553, 554, 557 Wright v. Atkins 1065 6, 1069 to 1072 v. Bates 1522 a v. Bell 717, 719, 722 v. Booth 229 v. Cadogan 1371, 1390, 1391 v. Cart-wright 844, 990 v. Eaves 1521 * v. Englefield 1388, 1391 v. Flinn 193 a v. Goff 147 v. Hunter 496, 504 v. Laing 459 ft o. Leonard 243 a v. Moore 928 v. Moreley 327, 493, 499, 499 a, 499 6. 499 d, 502, 638, 1408, 1424 v. Naylor 1340, 1352 v. Pilling 310, 313, 317, 318, 416 v. Pitt 684 v. Proud 310, 313, 317, 318 v. Band 164 d. Eider 292 v. Ross 1030 v. Simpson 499 d, 559, 638 to 640, 849 v. Snowe 193 v. Shumway 1018 v. St. George 736 ft v. Tinsley 786 v. Vanderplank 309 a v. Ward 808, 817 a v. Wilson 246 v. Wright 400 a, 402, 607 c, 1040, 1040 b, 1040 c Wrightson v. Hudson 398, 402, 406 Wrigley v. Swainson 273 Wuesthoff v. Seymour 749 6 Wurts' Ex'rs v. Page 1214 a Wyatt v. Barwell 239, 309 Wych v. Meal 1501 Wyche v. Green 116, 162, 165 Wycherley v. Wycherley 787, 987 Wycombe Railw. Co. v. Donning- ton Hospital 749 6 Wykham v. Wykham 481 Wylie v. Wylie Wyllie v. Wilkes Wynian v. Babcock v. Brown Wynch, Ex parte Wynn v. Williams 1074 d 1315 1018 428 1067 ft 410 Wynne v. Callender 303, 695, 695 a, 700 v. Hank 1368 a v. Hawkins 1070, 1073 v. Morgan 776, 777 v. Newborough, Lord 833 Wynstanley v. Lee 925, 927 Wynter v. Bold 1003 Wythe v. Henneker 565 Wythes v. Labouchere 408, 498 a X. Ximenes v. Franco 907 Yale v. Dederer 1401 d Yallop, Ex parte 1206 Yarborough v. Thompson 806 Yard v. Ford 924 a Yare v. Harrison 603, 839 Yates v. Bell 1041 to 1043, 1045 v. Boen 225, 227, 229 a v. Cole 180 v. Compton 790 v. Hambley 510, 518 v. Jack 927 6, 929 c v. Madden 1040 6, 1065 a Yaugher v. Skinner 700, 736 c Yeates v. Groves 1047 Yeomans v. Chatterton 379 v. Williams 706 York v. Landis 499, 499 6 York and Jersey Steam Co. v. Jersey Co. 633 York Co. Bank v. Carter 370 York, Mayor of, v. Pilkington 520, 617, 621, 856, 893 Yost v. Devault 735 Youell v. Allen 769 Young v. Atkins 1226 v. Cason 165, 395 v. Dumas 370 i;. Furze 284 v. Rathbone 769, 777 a v. Smith 983 v. Young 1034, 1382 a Young's Estate 1403 Younge v. Burton 710 Ex parte 466, 1242 INDEX TO CASES CITED. CXV11 Younge o. Frier v. Hassard v. Holmes v. Keighley v. Peachey 1253 565 591 1253 239, 309, 768, 1201 1455 1226 v. Walter v. Wood Toungman v. Elmira, &c. R,R. 1027 Yovatt v. Winyard 952 Yulee v. Canova 717 Z. v. X. 667 Zainboco v. Cassavetti 1062 Zane's Case 1143 Zebach v. Smith 1062 Zeigler v. Beasley 906 v. Hughes 310 Zeiss weiss v. James 1164, 1170 Zettelle v. Meyers 462 6 Zollman v. Moore 141 Zouch v. Parsons 240, 211 C0MMENTAE1ES ON EQUITY JURISPRUDENCE. COMMENTARIES EQUITY JURISPRUDENCE. CHAPTER I. THE TRUE NATURE AND CHARACTER OE EQUITY JURISPRUDENCE. [* § 1-24. Equity, as applied to jurisprudence, does not comprehend the broader principles of universal law, which are properly embraced in the more extended im- port of the term Natural Equity, or what is sometimes called Moral Equity. § 25-34. Equity jurisprudence, as a, distinct branch of the law, is the comple- ment of legal administration, whereby through defect of evidence, or from imperfect procedure, it is unable to afford that ample and specific redress for all injuries, which courts of equity may do, by requiring the defendant to answer, upon his conscience ; by reforming mistakes in written contracts, and by injunctions, both restrictive and mandatory, and in many other ways. It is that portion of remedial justice which is administered exclusively by courts of equity. Equity will not relieve against any defect, imperfection, or abuse of the law itself, but only against the unconscionable claims and abuses of the parties. Courts of equity can give no different construc- tion to the law, whether written or customary, from that which must govern courts of law. They are equally bound by precedents with courts of law. Courts of equity afford relief in regard to those rights, recognized by the jurisprudence of the State, where the remedy of law is doubtful, inadequate, or incomplete. § 35-37. The administration of equity jurisprudence is more perfect in those States, other things being equal, where it is intrusted to courts exclusively devoted to that department of municipal law]. § 1. In treating of the subject of equity, it is material to dis- tinguish the various senses in which that word is used. For it cannot be disguised, that an imperfect notion of what, in Eng- land, constitutes equity jurisprudence, is not only common among those who are not bred to the profession, but that it has often led to mistakes and confusion in professional treatises on the subject. In the most general sense, we are accustomed to call that equity, EQ. JUK. — VOL. I. 1 2 EQUITY JURISPRUDENCE. [CH. I. which, in human transactions, is founded in natural justice, in honesty and right, and which properly arises ex aequo et bono. In this sense it answers precisely to the definition of justice, or nat- ural law, as given by Justinian in the Pandects. " Justitia est constans et perpetua voluntas jus suum cuique tribuendi. Jus pluribus modis dicitur. Uno modo, cum id quod semper sequum et bonum, jus dicitur ; ut est jus naturale. Juris prsecepta sunt hsec ; honeste vivere, alteram non kedere, suum cuique tribuere." : And the word^ws is used in the same sense in the Roman law, when it is declared, that jus est ars boni et cequi, 2 where it means, what we are accustomed to call, jurisprudence. 3 § 2. Now, it would be a great mistake to suppose that equity, as administered in England op America, embraced a jurisdiction so wide and extensive, as that which arises from the principles of natural justice above stated. Probably the jurisprudence of no civilized nation ever attempted so wide a range of duties for any of its judicial tribunals. Even the Roman law, which has been justly thought to deal to a vast extent in matters ex aequo et bono, never affected so bold a design. 4 On the contrary, it left many matters of natural justice wholly unprovided for, from the difficulty of framing any general rules to meet them, and from the doubtful nature of the policy of attempting to give a legal sanction to duties of imperfect obligation, such as charity, gratitude, and kindness, or even to positive engagements of parties, where they are not founded in what constitutes a meritorious consideration. 5 Thus, it is well known, that in the Roman law, as well as in the common law, there are many pacts, or promises of parties (nude pacts'), which produce no legal obligation, capable of enforcement in for o 1 Dig. Lib. 1, tit. 1, 1. 10, 11. semper bonum et sequum est ; quandoque 9 Dig. Lib. 1, tit. 1, 1. 1. pro jure civilitantum; quandoque pro jure 8 Grotius, aftei referring to the Greek prsetorio tantun ; quandoque pro eo tan- word, used to signify equity, says, Latmis turn, quod competit ex sententia. Brac- autem sequi prudentia Tertitur, quse se ita ton, Lib. 1, ch. 4, p. 3. See Dr. Taylor's ad asquitatem habet, ut jurisprudentia ad definition of lex and jus. Elem. Civ. justitiam. Grotius de iEquitate, ch. 1, Law, p. 147, 148 ; id. 178 ; id. 40 to 43 ; id. §4. This distinction is more refined than 55, 56; id. 91. solid, as the citation in the text shows. l See Heinecc. Hist. Edit. L. 1, ch. 6 ; See also Taylor's Elements of the Civil De Edictis Prsetoruni, § 7, 8, 9, 10, 11, 12; Law, p. 90 to 98. Cicero, Topic. § 2; II. id. § 18, 21 to 30; De Lolme on Eng. ad Heren. 13 ; LTL ad Heren. 2. Bracton Const. B. 1, ch. 11. has referred to the various senses in which 5 Ayliff e, Pand. B. 4, tit. 1, p. 420, &c. ; jus is used. Item (says he), jus quan- 1 Kames, Equity, Introd. p. 3; Erancis, doque ponitur pro jure naturali, quod Maxims, Introd. p. 6, 6, 7. § 1-3.] NATURE OF EQUITY. 3 externo ; but which are left to be disposed of in foro consoientice only. 1 " Cum nulla subest causa propter conventionem, hie constat non posse constitui obligation em. Igitur nuda pactio obligationem non parit." 2 And again : " Qui autem promisit sine causa, condicere quantitatem non potest, quam non debet, sed ipsam obligationem." 3 And hence the settled distinction, in that law, between natural obligations, upon which no action lay, but which were merely binding in conscience, and civil obligations, which gave origin to actions. 4 The latter were sometimes called just, because of their perfect obligation in a civil sense ; the former merely equitable, because of their imperfect obligation. "Et justum appellator " (says Wolfius) " quicquid fit secundum jus perfectum alterius ; sequum vero quod secundum imperfectum." 6 Cicero has alluded to the double sense of the word equity, in this very connection. " JEquitatis " (says he) " autem vis est duplex ; cujus altera directi, et veri, et justi, utdicitur, sequi et boniratione defenditur ; altera ad vicissitudinem referenda gratise pertinet ; quod in beneficio gratia, in injuria ultio nominatur." 6 It is scarcely necessary to add, that it is not in this latter sense, any more than in the broad and general sense above stated, which Ayliffe has, with great propriety, denominated Natural Equity, because it depends on and is supported by natural reason, that equity is spoken of, as a branch of English jurisprudence. The latter falls appropriately under the head of Civil Equity, as denned by the same author, being deduced from and governed by such civil maxims, as are adopted by any" particular state or com- munity. 7 § 3. But there is a more limited sense in which the term is often used, and which has the sanction of jurists in ancient, as well as in modern times, and belongs to the language of common life, as well as to that of juridical discussions. The sense, here alluded to, is that in which it is used in contradistinction to' strict law, or strictum et summum jus. Thus, Aristotle has denned the very nature of equity to be the correction of the law, wherein it is defective by reason of its universality. 8 The same sense is i Ayliffe, Pand. B. 4, tit. 2, p. 424, 425 ; « Wolff. Instit. Jur. Nat. et Gent. P. 1, 1 Domat, Civ. Law, B. 1, tit. 1, § 5, art. 1, ch. 3, § 83. 6, 9, 13. 6 Cic. Orat. Part. § 37. 2 Dig. Lib. 2, tit. 14, 1. 7, § 4. " Ayliffe, Pand. B. 1, tit. 7, p. 37. 3 Dig. Lib. 12, tit. 7, 1. 1. 8 Arist. Ethic. Nicom. L. 6, ch. 14, * Ayliffe, Pand. B. 4, tit. 1, p. 420, 421. cited 1 Wooddes. (Lect. vii.) p. 193; EQUITY JURISPRUDENCE. [CH. I. repeatedly recognized in the Pandects. " In omnibus quidem, maxime tamen in jure, aequitas spectanda sit. Quotiens aequitas, desiderii naturalis ratio, aut dubitatio juris moratur, justis decretis res temperanda. Placuit in omnibus rebus prsecipuam esse justitiae aequitatisque, quam stricti juris rationem." x Grotius and Puffen- dorf have both adopted the definition of Aristotle ; and it has found its way, with approbation, into the treatises of most of the modern authors, who have discussed the subject. 2 § 4. In the Roman jurisprudence we may see many traces of this doctrine, applied to the purpose of supplying the defects of the customary law, as well as to correct and measure the interpre- tation of the written and positive code. Domat accordingly lays it down, as a general principle of the civil law, that if any case should happen, which is not regulated by some express or written law, it should have for a law the natural principles of equity, which is the universal law, extending to every thing. 3 And for this he founds himself upon certain texts in the Pandects, which present the formulary in a very imposing generality. " Haec sequi- tas suggerit, etsi jure deficiarnur," is the reason given for allowing Taylor, Elem. of Civ. Law, p. 91, 92, 93; Francis, Maxims, 3; 1 Eonbl. Eq. B. 1, § 2, p. 5, note (e). Cicero, speaking of Galba, says, that he was accustomed, Multa pro sequitate contra jus dicere. Cic. de Oratore, Lib. 1. § 57. See also other passages cited in Taylor's Elem. of the Civ. Law, 90, 91. Bracton defines equity, as contradistinguished from law (jus), thus : JEquitas autem est rerum convenientia, quae in paribus causis paria desiderat jura, et omnia bene cosequi- parat ; et dicitur aequitas, quasi sequa- litas. Bracton, Lib. 1, ch. 4, § 5, p. 3. i Dig. Lib. 50, tit. 17, 1. 85, 90 ; Cod. Lib. 3, tit. 1, 1. 8. 2 Grotius de JEquitate, ch. 1, § 3; Puffend. Law of Nature and Nat. B. 5, ch. 12, § 21, and Barbeyrac's note (1); 1 Black. Comm. 61 ; 1 Wooddes. Lect. vii. p. 193 ; Bac. de Aug. Scient. Lib. 8, ch. 3, Aphor. 32, 35, 45. Grotius says : Proprie vero et singulariter aaquitas est virtus voluntatis, correctrix ejus, quo lex propter universalitatem deficit. Grotius de iEquitate, ch. 1, § 2. JEquum est id ipsum, quo lexcorrigitur. Id. Dr. Tay- lor has with great force paraphrased the language of Aristotle. That part of unwritten law, says he, which is called Equity, or to Ententes, is a species of jus- tice distinct from what is written. It must happen either against the design and inclination of the law-giver, or with his consent. In the former ease, for in- stance, when several particular facts must escape his knowledge ; in the other, when he may be apprised of them, indeed, but by reason of their variety is not willing to recite them. For, if a case admits of an infinite variety of circumstances, and a law must be made, that law must be conceived in general terms. Taylor, Elem. Civ. Law, 92. And of this infirm- ity in all laws, the Pandects give open testimony. Non possunt omnes articuli singillatim aut legibus, aut senatus con- sults comprehendi ; sed cum in aliqua causa sententia eorum manifesta est, is qui jurisdictioni prasest, ad similia proce- dere, atque ita jus dicere debet. Dig. L. 1, tit. 3, 1. 12 ; id. 1. 10. 8 Domat, Prel. Book, tit. 1, § 1, art. 23. See also Ayliffe, Pand. B. 1, tit. 7, p. 38. S 3-5.] NATURE OF EQUITY. one person to restore a bank or dam in the lands of another, which may be useful to him, and not injurious to the other. l § 5. The jurisdiction of the Praetor doubtless had its origin in this application of equity, as contradistinguished from mere law. " Jus autem civile " (say the Pandects) " est, quod ex legibus, plebiscitis, senatus consultis, decretis principum, auctoritate pru- dentium venit. Jus prsetorium est, quod Prsetores introduxerunt, adjuvandi, vel supplendi, vel corrigendi juris civilis gratia, propter utilitatem publicam ; quod et honorarium dicitur, ad honorem praetorum sic nominatum." 2 But, broad arid general as this language is, we should be greatly deceived, if it were to be sup- posed, that even the Praetor's power extended to the direct over- throw or disregard of the positive law. He was bound to stand by that law in all cases, to which it was justly applicable, accord- ing to the maxim of the Pandects, " Quod quidem perquam durum est ; sed ita lex scripta est." s 8 Dig. Lib. 40, tit. 9, 1. 12, § 1. See also 3 Black. Comm. 430, 431 ; 1 Wood- des. Lect. vii. p. 192 to 200. Dr. Taylor (Elem. Civ. Law, p. 214) has therefore observed, that, for this reason, this branch of the Roman law was not reckoned as part of the jus civile scriptum by Papin- ian, but stands in opposition to it. And thus, as we distinguish between common law and equity, there were with that people actiones civiles et praetoriae, et obligationes civiles, et praetoriaj. The Praetor was therefore called Custos, non conditor juris; judicia exercere potuit; jus facere non potuit; dicendi, non condendi juris potestatem habuit; ju- vare, supplere, interpretari, mitigare jus civile potuit ; mutare vel tollere non potest. The praetorian edicts are not properly law, though they may operate like law. And Cicero, speaking of con- tracts bona? fidei, says, in allusion to the same jurisdiction : In his magni esse judicis statuere (praesertim cum in pie- risque essent judicia contraria), quid quemque cuique praestare oporteret ; that is, he should decide according to equity and conscience. Cic. de Officiis, Lib. 3, cap. 17. Dr. Taylor has, in another part of his work, gone at large into equity and its various meanings in the civil law. Taylor, Elem. of Civil Law, 90 to 98. ' Dig. Lib. 39, tit. 3, 1. 2, § 5. Domat cites other texts not perhaps quite so stringent ; such as Dig. Lib. 27, tit. 1, 1. 13, § 7 ; id. Lib. 47, tit. 20, 1. 7. Dr. Tay- lor has given many texts to the same purpose. Elem. Civ. Law, p. 90, 91. [At the present day, however, equity will not enjoin a legal owner from the exercise of his legal rights, though of no value to him, and though such exercise is very injurious to others ; but equity will not aid in enforcing legal rights under such circumstances. Clinton v. Myers, 46 N. Y. 511.] There was a known distinc- tion in the Roman law on this subject. Where a right was founded in the express words of the law, the actions grounded on it were denominated Actiones Direc- toe ; where they arose upon a benignant extension of the words of the law to other cases, not within the terms, but within what we should call the equity of the law, they were denominated Actiones Utiles. Taylor, Elem. Civ. Law, 93. 2 Dig. Lib. 1, tit. 1, 1. 7 ; id. tit. 3, 1. 10. Sed et eas actiones, quae legibus proditas sunt (say the Pandects) si lex justa ac necessaria sit, snpplet Praetor in eo, quod Iegi.deest. Dig. Lib. 19, tit. 5, 1. 11. Heineccius, speaking of the Praetor's au- thority, says : His Edictis multa innovata, adjuvandi, supplendi, corrigendi juris civ- ilis gratia, obtentuque utilitatis publicas. 1 Heinecc. Elem. Pand. P. 1, Lib.l, § 42. 6 EQUITY JURISPRUDENCE. [CH. I. § 6. But a more general way in which this sense of equity, as contradistinguished from mere law, or strictum jus, is applied, is, to the interpretation and limitation of the words of positive or written laws : by construing them, not according to the letter, but according to the reason and spirit of them. 1 Mr. Justice Black- stone has alluded to this sense in his Commentaries, where he says : " From this method of interpreting laws by the reason of them arises what we call equity ; " 2 and more fully in another place, where he says : " Equity, in its true and genuine meaning, is the soul and spirit of all law ; positive law is construed, and rational law is made by it. In this, equity is synonymous with justice ; in that, to the true and sound interpretation of the rule." 3 § 7. In this sense equity must have a place in every rational system of jurisprudence, if not in name, at least in substance. 4 It is impossible that any code, however minute and particular, should embrace or provide for'the infinite variety of human affairs, or should furnish rules applicable to all of them. " Neque leges neque senatus consulta ita scribi possunt " (says the Digest) " ut omnes casus, qui quandoque inciderint, comprehendantur ; sed sufficit ea, quee plerumque accidunt, contineri." 5 Every system of laws must necessarily be defective ; and cases must occur, to which the antecedent rules cannot be applied without injustice, or to which they cannot be applied at all. It is the office, therefore, of a judge to consider whether the antecedent rule does apply, or ought, according to the intention of the law-giver, to apply to a given case ; and if there are two rules, nearly approaching to it, but of opposite tendency, which of them ought to govern it ; and 1 Plowden, Comm. p. 465, 466. Lord Bacon said in his Argument on the 2 1 Black. Coram, p. 61, 62. jurisdiction of the Marches, there is no 3 3 Black. Comm. p. 429. See also law under heaven which is not supplied Taylor, Elem. Civ. Law, p. 96, 97 ; Plowd. with equity ; for summu'm jus summa Comm. p. 465, Reporter's note. Dr. Tay- injuria ; or as some have it, summa lex lor has observed, that the great difficulty summa crux. And, therefore, all nations is, to distinguish between that equity, have equity. 4 Bac. Works, p. 274. which is required in all law whatsoever, Plowden, in. his note to his Eeports, and which makes a very important and a dwells much (p. 465, 466) on the nature very necessary branch of the jus scrip- of equity in the interpretation of statutes, turn ; and that equity, which is opposed saying, Ratio legis est anima legis. And to written and positive law, and stands in it is a common maxim in the law of Eng- contradistinctio'n to it. Taylor, Elem. land, that Apices juris non sunt jura Civ. Law, p. 90. Branch's Maxims, p. 12 ; Co. Litt. 304 (6). * See 1 Eonbl. Equity, B. 1, § 3, p. 24, 5 Dig. Lib. 1, tit. 3, 1. 10. note (A); Plowden, Comm. p. 465, 466. § 6, 7.] NATURE OF EQUITY. 7 if there exists no rule applicable to all the circumstances, whether the party should be remediless, or whether the rule furnishing the closest analogy ought to be followed. The general words of a law may embrace all cases ; and yet it may be clear, that all could ■ not have been intentionally embraced ; for if they were, the obvious objects of the legislation might or would be defeated. So, words of a doubtful import may be used in a law, or words susceptible of a more enlarged, or of a more restricted meaning, or of two meanings equally appropriate. 1 The question, in all such cases, must be, in what sense the words are designed to be used ; and it is the part of a judge to look to the objects of the legisla- ture, and to give such a construction to the words, as will best further those objects. This is an exercise of the power of equi- table interpretation. It is the administration of equity, as con- tradistinguished from a strict adherence to the mere letter of the law. Hence arises a variety of rules of interpretation of laws, according to their nature and operation, whether they are reme- dial, or are penal laws ; whether they are restrictive of general right, or in advancement of public justice or policy; whether they are of universal application, or of a private and circum- scribed intent. But this is not the place to consider the nature or application of those rules. 2 1 It is very easy to see from what 2 See Grotius de Jure Belli ac Pacis, sources Mr. Charles Butler drew his own Lib. 3, ch. 20, § 47, p. 1, 2 ; Grotius de statement (manifestly, as a description of JEquitate, ch. 1. This paragraph is English equity jurisprudence, incorrect, copied very closely from the article as Professor Park has shown), " that Equity, in Dr. Lieber's Encyclopaedia Am- equity, as distinguished from law, arises ericana, a license which has not appro- from the inability of human foresight to priated another person's labors. There establish any rule, which, however salu- will be found many excellent rules of in- tary in general, is not, in some particular terpretation of Laws in Eutherforth's cases, evidently unjust and oppressive, Institutes of Natural Law, B. 2, ch. 7 ; in and operates beyond, or in opposition to Bacon's Abridgment, title Statute ; in its intent, &c. The grand reason for the Domat on the Civil Law (Prelim. Book, interference of a court of equity is, that tit. 1, § 2) ; and in 1 Black. Comm. In- the imperfection of the legal remedy, in traduction, p. 58 to 62. consequence of the universality of legis- There are yet other senses, in which lative provisions, may be redressed." equity is used, which might be brought 1 Butler's Keminisc. 37, 38, 39; Park's before the reader. The various senses Introd. Lect. 5, 6. Now, Aristotle, or are elaborately collected by Oldendorpius, Cicero, or a Eoman Praetor, or a Conti- in his work De Jure et iEquitate Disputa- nental Jurist, or a Publicist of modern tio ; and he finally offers, what he deems Europe might have used these expres- a very exact definition of equity, in its sions, as a description of general equity ; general sense. JEquitas est judicium but it would have given no just idea of animi, ex vera ratione petitum, de cir- equity, as administered under the muni- cumstantiis rerum, ad honestatem vitas cipal jurisprudence of England. pertinentium, cum incidunt, recte discer- 8 EQUITY JURISPRUDENCE. [CH. I. § 8. It is of this equity, as correcting, mitigating, or interpret- ing the law, that, not only civilians, but common-law writers, are most accustomed to speak ; * and thus many persons are misled into the false notion, that this is the real and peculiar duty of courts of equity, in England and America. St. Germain, after alluding to the general subject of equity, says : " In some cases it is necessary to leave the words of the law, and to follow that reason and justice requireth, and to that intent equity is ordained, that is to say, to temper and mitigate the rigor of the law, &c. And so it appeareth, that equity taketh not away the very right, but only that that seemeth not to be right, by the general words of the law." 2 And then he goes on to suggest the other kind of equity, as admin- istered in chancery, to ascertain " whether the plaintiff hath title in conscience to recover or not." 3 And, in another place, he states : " Equity is a rightwiseness, that considereth all the par- ticular circumstances of the deed, which is also tempered with the sweetness of mercy." 4 Another learned author lays down doc- trines equally broad. "As summum jus (says he) summa est injuria, as it cannot consider circumstances ; and as this (equity) takes in all the circumstances of the case, and judges of the whole matter according to good conscience, this shows both the use and excellence of equity above any prescribed law." Again : " Equity is that which is commonly called equal, just, and good ; and is a mitigation or moderation of the common law, in some circum- stances, either of the matter, person, or time; and often it dis- penseth with the law itself." 5 " The matters, of which equity holdeth cognizance in its absolute power, are such as are not nens, quid fieri aut non fieri oporteat. This videtur, ut jus Praetorium et quaedam seems but another name for a system of jurisprudential interpretationes. Pro- ethics. Grotius has, in one short para- prie vero et singulariter sequitas est virtus graph (De iEquitate, eh. 1, § 2), brought voluntatis, correctrix ejus, in quo lex together the different senses in a clear propter universalitatem deficit, and exact manner. Et ut de a?quitate 1 Merlin, Ee'pertoire, Equite. Grounds primum loquamur, scire oportet, sequita- and Rudim. of the Law (attributed some- tem aut asquum de omni interdum jure times to Francis), p. 3, 5, edit. 1751 ; 1 dici, ut cum jurisprudentia ars boni et Fonbl. Equity, B. 1, ch. 1, § 2, note (e) ; sequi dicitur ; interdum de jure naturali 1 Wooddes. Lect. vii. p. 192 to 200 ; Po- absolute, ut cum Cicero ait, jus legibus, thier, Pand. Lib. 1, tit. 3, art. 4, § 11 to moribus, et sequitate constare ; alias vero 27. de hisce rebus, quas lex non exacte de- 2 Dialogue 1, ch. 16. finit, sed arbitrio viri boni permittit. * Id. 1, ch. 17. 4 Id. ch. 16. Saepe etiam de jure aliquo civili proprius 5 Grounds and Rudim. p. 5, 6, edit, ad jus naturale accedente, idque respectu 1751. alterius juris, quod paulo longius recedere § 8-10.] NATURE OP EQUITY. 9 remediable at law ; and of them the sorts may be said to be as infinite, almost, as the different affairs conversant in human life." 1 And, he adds, that " equity is so extensive and various, that every particular case in equity may be truly said to stand upon its own particular circumstances ; and, therefore, under favor, I apprehend precedents not of that great use in equity, as some would contend ; but that equity thereby may possibly be made too much a science for good conscience." 2 § 9. This description of equity differs in nothing essential from that given by Grotius and Puffendorf, 3 as a definition of general equity, as contradistinguished from the equity which is recognized by the mere municipal code of a particular nation. And, indeed, it goes the full extent of embracing all things, which the law has not exactly defined, but leaves to the arbitrary description of a judge ; or, in the language of Grotius, " de hisce rebus, quas lex non exacte definit, sed arbitrio viri boni permittit." 4 So that, in this view of the matter, an English court of equity would seem to be possessed of exactly the same prerogatives and powers as be- longed to the Praetor's forum in the Roman law. 6 § 10. Nor is this description of the equity jurisprudence of Eng- land confined to a few text-writers. It pervades a large class, and possesses the sanction of many high authorities. Lord Bacon more than once hints at it. In his Aphorisms he lays it down, " Habeant similiter Curiae Prsetoriae potestatem tam subveniendi contra rigorem legis, quam supplendi defectum legis." 6 And on the solemn occasion of accepting the office of chancellor, he said : Chancery is ordained to supply the law, and not to subvert the law. 7 Finch, in his Treatise on the Law, says, that the nature of 1 Grounds and Rudim. p. 6, edit. i Grotius de iEquitate, ch. 1, § 2; 1751. lFonbl. Equity, B. 1, ch. 1, § 2, note (e). 2 Grounds and Rudim. p. 5, 6, edit. S x)ig. Lib. 1, tit. 1, 1. 7. See' also Hei- 1751. Yet Francis (or whoever else was necc. De Edict. Praetorum, Lib. 1, ch. 6, the author) is compelled to admit, that § 8 to 13 ; id. § 18 to 30 ; Dr. Taylor's there are many cases in which there is no Elem. Civ. Law, 213 to 216 ; id. 92, 93 ; relief to be had, either at law or in equity De Lolme on Eng. Const. B. 1, ch. 11. itself; but the same is left to the con- Lord Karnes does not hesitate to say, that science of the party, as a, greater incon- the powers assumed by our courts of venience would thence follow to the equity are in effect the same that were people in general. Francis, Max. p. 5, assumed by the Roman Praetor from ne- 8 Grotius de JEquitate, ch. 1 , § 3, 12 ; cessity, without any express authority. Puffend. Elem. Juris. Univ. L. 1, § 22, 23, 1 Karnes Eq. Introd. 19. cited 1 Fonbl. Eq. B. 1, ch. 1, § 2, note B Bac. De. Aug. Seient. Lib. 8, ch. 3, (e), p. 6. ' Aphor. 35, 45. 7 Bac. Speech. 4 ; Bac. Works, 488. 10 EQUITY JURISPRUDENCE. [CH. I. equity is to amplify, enlarge, and add to the letter of the law. 1 In the Treatise of Equity, attributed to Mr. Ballow, and deserv- edly held in high estimation, language exceedingly broad is held on this subject. After remarking, that there will be a necessity of having recourse to the natural principles, that what is wanting to the finite may be supplied out of that which is infinite ; and that this is properly what is called equity, in opposition to strict law, he proceeds to state : " And thus in chancery, every particular case stands upon its own circumstances ; and although the common law will not decree against the general rule of law, yet chancery doth, so as the example introduce not a general mischief. Every matter, therefore, that happens inconsistent with the design of the legis- lator, or is contrary to natural justice, may find relief here. For no man can be obliged to any thing contrary to the law of nature ; and indeed no man in his senses can be presumed willing to oblige another to it." 2 § 11. The author has, indeed, qualified these propositions with the suggestion : " But if the law has determined a matter with all its circumstances, equity cannot intermeddle." But, even with this qualification, the propositions are not maintainable, in the equity jurisprudence of England, in the general sense in which they are stated. For example, the first proposition, that, equity will relieve against a general rule of law, is (as has been justly ob- served) neither sanctioned by principle nor by authority. 3 For, though it may be true that equity has, in many cases, decided dif- ferently from courts of law, yet it will be found that these cases involved circumstances to which a court of law would not advert ; but which, in point of substantial justice, were deserving of par- ticular consideration ; and which a court of equity, proceeding on principles of substantial justice, felt itself bound to respect. 4 § 12. Mr. Justice Blackstone has taken considerable pains to refute this doctrine. " It is said " (he remarks) " that it is the business of a court of equity, in England, to abate the rigor of the common law. 5 But no such power is contended for. Hard was i Finch's Law, p. 20. » Com. Dig. Chancery, 3, F. 8. « 1 Fonbl. Eq. B. 1, ch. 1, § 3. The 4 1 Fonbl. Eq. B. 1, ch. 1, § 3, note (3) ; author of Eunomus describes the original 1 Dane's Abridg. ch. 9, art. 1, § 2, 3 ; jurisdiction of the court of chancery, as Kemp v. Pryor, 7 Ves. 249, 250. a court of equity, to be "the power of 6 Grounds and Budim.. p. 74 (Max. moderating the summum jus." Eunomus, 105), edit. 1751. Dial. 3, § 60. § 10-13.] NATURE OF EQUITY. 11 the case of bond creditors, whose debtor devised away his real estate ; rigoro.us and unjust the rule which put the devisee in a better condition than the heir ; yet a court of equity had no power to interfere. Hard is the common law still subsisting, that land devised, or descending to the heir, should not be liable to simple contract debts of the ancestor or devisor, although the money was laid out in purchasing the very land; and that the father shall never immediately succeed as heir to the real estate of the son. But a court of equity can give no relief ; though, in both these instances, the artificial reason of the law, arising from feudal prin- ciples, has long since ceased." l ■ And illustrations of the same character may be found in every State of the Union. In some States, bond debts have a privilege of priority of payment over simple contract debts, in cases of insolvent intestate estates. In others, judgments are a privileged lien on lands. In many, if not in all, a debtor may prefer one creditor to another, in discharging his debts, when his assets are wholly insufficient to pay all the debts. And (not to multiply instances) what can be more harsh, or indefensible, than the rule of the common law, by which a hus- band may receive an ample fortune in personal estate, through his wife, and by his own act, or will, strip her of every farthing, and leave her a beggar ? § 13. A very learned judge in equity, in one of his ablest judg- ments, has put this matter in a very strong light. 2 " The law is clear " (said he), " and courts of equity ought to follow it in their judgments concerning titles to equitable estates ; otherwise great uncertainty and confusion would ensue. And, though proceedings in equity are said to be secundum discretionem boni viri ; yet when it is asked, " Vir bonus est quis ? " the answer is, " Qui consulta patrum, qui leges juraque servat." And, as it is said in Rook's case (5 Rep. 99 b), that discretion is a science, not to act arbi- trarily, according to men's wills, and private affections ; so, that discretion, which is executed here, is to be governed by the rules of law and equity, which are not to oppose, but each in its turn to be subservient to the other. This discretion, in some cases, fol- lows the law implicitly ; in others, assists it, and advances the remedy, in others, again, it relieves against the abuse, or allays the rigor of it. But in no case does it contradict or overturn the 1 8 Black. Comm. 430. See Com. Dig. 2 Sir Joseph Jekyll, in Cowper v. Cow- Chancery, 3, F. 8. per, 2 P. Will. 753. 12 EQUITY JURISPRUDENCE. [CH. I. grounds or principles thereof, as has been sometimes ignorantly imputed to the court. That is a discretionary power which neither this nor any other court, not even the highest, acting in a judicial capacity, is by the constitution intrusted with." 1 § 14. The next proposition, that every matter that happens in- consistent with the design of the legislator, or is contrary to nat- ural justice, may find relief in equity, is equally untenable. There are many cases against natural justice, which are left wholly to the conscience of the party, and are without any redress, equitable or legal. And so far from a court of equity supplying universally the defects of positive legislation, or peculiarly carrying into effect the intent, as contradistinguished from the text of the legislature, it is governed by the same rules of interpretation as a court of law ; and is often compelled ,to stop where the letter of the law stops. It is the duty of every, court of justice, whether of law or of equity, to consult the intention of the legislature. And, in the discharge of this duty, a court of equity is not invested with a larger or a more liberal discretion than a court of law. 2 § 15. Mr. Justice Blackstone has here again met the objection in a forcible manner. " It is said " (says he) " that a court of equity determines according to the spirit of the rule, and not ac- cording to the strictness of the letter. But so also does a court of law. Both, for instance, are equally bound, and equally profess to interpret statutes according to the true intent of the legisla- ture. In general, all cases cannot be foreseen ; or, if foreseen, cannot be expressed. Some will arise which will fall within the meaning, though not within the words of the legislator; and others, which may fall within the letter, may be contrary to his meaning, though not expressly excepted. These cases, thus out ' of the letter, are often said to be within the equity of an act of parliament ; and so, cases within the letter, are frequently out of the equity. Here, by equity, we mean nothing but the sound interpretation of the law, &c, &c. But there is not a single rule of interpreting laws, whether equitably or strictly, that is not equally used by the judges in the courts both of law and equity. The construction must in both be the same ; or, if they differ, it 1 Sir Thomas Clarke, in pronouncing eh. 1, § 3, note (g). See also Try v. Por- his judgment in the case of Burgess v. ter, 1 Mod. 300 ; Grounds and Rudim. Wheate (I W. Black. 123), has adopted p. 65 (Max. 92), edit. 1751. this very language, and given it his full 2 1 Fonbl. Eq. B. 1, § 3, note (A), approbation. See also 1 Fonbl. Eq. B. 1, § 13-17.] NATURE OP EQUITY. 13 is only as one court of law may happen to differ from another. Each endeavors to fix and adopt the true sense of the law in ques- tion. Neither can enlarge, diminish, or alter that sense in a single tittle." 1 § 16. Yet it is by no means uncommon to represent, that the peculiar duty of p, court of equity is to supply the defects of the common law, and next, to correct its rigor or injustice. 2 Lord Karnes avows this doctrine in various places, and in language sin- gularly bold. " It appears now clearly " (says he) " that a court of equity commences at the limits of the common law, and enforces benevolence, where the law of nature makes it our duty. And thus a court of equity, accompanying the law of nature in its general refinements, enforces every natural duty that is not provided for at common law." 3 Arid in another place he adds, a court of equity boldly undertakes " to correct or mitigate the rigor, and what, in a proper sense, may be termed the injustice of the com- mon law." 4 And Mr. Wooddeson, without attempting to dis- tinguish accurately between general or natural, and municipal or civil equity, asserts, that " equity is a judicial interpretation of laws, which, presupposing the legislator to have intended what is just and right, pursues and effectuates that intention." 5 § 17. The language of judges has often been relied on for the same purpose ; and, from the unqualified manner in which it is laid down, too often justifies the conclusion. Thus, Sir John Trevor (the Master of the Rolls), in his able judgment in Dudley v. Dudley, 6 says : " Now, equity is no part of the law, but a moral virtue, which qualifies, moderates, and reforms the rigor, hard- ness, and edge of the law, and is a universal truth. It does also assist the law, where it is defective and weak in the constitution (which is the life of the law), and defends the law from crafty evasions, delusions, and mere subtleties, invented and contrived to evade and elude the common law, whereby such as have un- doubted right are made remediless. And thus is the office of 1 3 Black. Comm. 431 ; 1 Dane, Abr. (Parke's Hist, of Chan. Appx. 501, 602 ; ch. 9, art. 3, § 3. id. 333, 334) ; and also from Mr. Justice 2 1 Kames on Equity, B. 1, p. 40. Blackstone haying thought them worthy s 1 Kames on Equity, Introd. p. 12. of a formal refutation in his Commen- * Kames on Equity, Introd. p. 15. taries. 3 Black. Comm. 436. Lord Karnes's remarks are entitled to the 6 1 Wooddes. Lect. vii. p. 192. more consideration because they seem to 6 Preced. in Ch. 241, 244 ; 1 Wooddes. have received, in some measure at least, Lect. vii. p. 192. the approbation of Lord Hardwicke 14 EQUITY JURISPRUDENCE. [CH. I. equity to protect and support the common law from shifts and contrivances against the justice of the law. Equity, therefore, does not destroy the law, nor create ' it, but assists it." Now, however true this doctrine may be sub modo, to suppose it true in its full extent would be a grievous error. § 18. There is another suggestion, which h^s been often re- peated ; and that is, that courts of equity are not, and ought not, to be bound by precedents ; and that precedents therefore are of little or no use there ; but that every case is to be decided upon circumstances, according to the arbitration or discretion of the judge, acting according to his own notions, ex aequo et bono. 1 Mr. Justice Blackstone, addressing himself to this erroneous statement, has truly said : " The system of our courts of equity is a labored connected system, governed by established rules, and bound down by precedents, from which they do not depart, although the rea- son of some of them may perhaps be liable to objection, &c, &c. Nay, sometimes a precedent is so strictly followed, that a particu- lar judgment, founded upon special circumstances, gives rise to a general rule." 2 And he afterwards adds : " The system of juris- prudence in our courts of law and equity are now equally artificial systems, founded on the same principles of justice and positive law, but varied by different usages in the forms and mode of their proceedings." 3 The value of precedents, and the importance of 1 See Francis, Max. p. 5, 6 ; Selden, judiciously state, that he must sometimes cited in 3 Black. Comm. 432, 433, 435 ; pronounce decrees which would be ma- 1 Kames, Eq. p. 19, 20. terially unjust ; since no rule can • be 2 3 Black. Comm. 432, 433. equally just in the application to a whole 3 3 Black. 434 ; id. 440, 441 ; 1 Kent, class of cases, that are far from being the Comm. Lect. 21, p. 489, 490 (2d edition). 6ame in every circumstance." (Parke's The value and importance of precedents Hist, of Chancery, p. 501, 506.) This is in chancery were much insisted upon by very loosely said ; and the reason given Lord Keeper Bridgman, in Fry v. Porter equally applies to every general rule ; for (1 Mod. 300, 307). See also 1 Wooddes. there can be none, which will be found Lect. vii. p. 200, 201, 202. Lord Hard- equally just in its application to all cases, wicke, in his letter to Lord Kames, on If every change of circumstances is to the subject of equity, in answer to the change the rule in 'equity, there can be question whether a court of equity ought no general rule. Every case must stand to be governed by any general rules, said, upon its own ground. Yet courts of " Some general rules there ought to be ; equity now adhere as closely to general for otherwise the great inconvenience of rules as courts of law. Each expounds jus vagum et incertum will follow. And its rules to meet new cases ; but each is yet the Praetor must not be so absolutely equally reluctant to depart from them and invariably ' bound by them, as the upon slight inconveniences and mischiefs, judges are by the rules of the common See Mitford, Plead, in Eq. p. 4, note (b) ; law. For if they were so bound, the eon- 1 Fonbl. Eq. B. 1, ch. 1, § 3, note (£). The sequence would follow, which you very late Professor Park, of King's College § 17-19.] NATURE OP EQUITY. 15 adhering to them, were deeply felt in ancient times, and nowhere more than in the Prsetor's forum. " Consuetudinis autem jus esse putatur id " (says Cicero) " quod, voluntate omnium, sine lege, vetustas comproMrit. In ea autem jura sunt, qusedam ipsa jam certa propter vetustatem ; quo in genere et alia sunt multa, et eorum multo maxima pars, quae Prsetores edicere consuerunt." 1 And the Pandects directly recognize the same doctrine. " Est enim juris civilis species consuetudo ; enimvero, diuturna consue- tudo pro jure et lege, in his, quse non ex scripto descendunt ob- serrari, solet, &c. Maxime autem probatur consuetudo ex rebus judicatis." 2 v § 19. If, indeed, a court of equity in England did possess the unbounded jurisdiction, which has been thus generally ascribed to it, of correcting, controlling, moderating, and even superseding the law, and of enforcing all the rights, as well as the charities, arising from natural law and justice, and of freeing itself from all regard to former rules and precedents, it would be the most gigantic in its sway, and the most formidable instrument of arbi- trary power, that could well be devised. It would literally place the whole rights and property of the community under the arbi- trary will of the judge, acting, if you please, arbitrio boni judicis, and, it may be, ex cequo et bono, according to his own notions and conscience ; but still acting with a despotic and sovereign au- thority. A court of chancery might then well deserve the spirited rebuke of Selden : " For law we have a measure, and know what to. trust to. Equity is according to the conscience of him that is chancellor ; and as that is larger, or narrower, so is equity. "lis all one as if they should make the standard for the measure the chancellor's foot. What an uncertain measure woiild this be ? One chancellor has a long foot ; another a short foot ; a third an indifferent foot. It is the same thing with the chancellor's con- science." 3 And notions of this sort were, in former ages, when the chancery jurisdiction was opposed with vehement disapproba- tion by common lawyers, very industriously propagated by the (London), has made some very acute re- Heineccius, De Edictis Prastorum, Lib. 1, marks on this whole subject, in his Intro- cap. 6, § 13, 30. ductory Lecture on Equity (1832). 2 Pothier, Pand. Lib. 1, tit. 3, art. 6, i Cicero de Invent. Lib. 2, cap. 22. My n. 28, 29 ; Dig. Lib. 1, tit. 3, 1. 33, 1. 34. attention was first called to these pas- 3 Selden's Table Talk, title Equity; sages by a note of Lord Redesdale. Mit- 3 Black. Comm. 432, note (y). ford, Plead, in Eq. p. 4, note (6). See 16 EQUITY JURISPRUDENCE. [CH. I. most learned of English antiquarians, such as Spelman, Coke, Lambard, and Selden. 1 We might, indeed, under such circum- stances, adopt the language of Mr. Justice Blackstone, and say: " In short, if a court of equity in England did really act, as many ingenious writers have supposed it (from theory) 1 to do, it would rise above all law, either common or statute, and be a most arbi- trary legislator in every particular case." 2 So far, however, is this from being true, that one of the most common maxims upon which a court of equity daily acts, is, that equity follows the law, and seeks out and guides itself by the analogies of the law. 3 § 20. What has been already said upon this subject cannot be more fitly concluded, than in the words of one of the ablest judges that ever sat in, equity. " There are " (said Lord Redesdale) " certain principles, on which courts of equity act, which are very well settled. The cases which occur are various ; but they are decided on fixed principles. Courts of equity have, in this respect, no more discretionary power than courts of law. They decide new cases, as they arise, by the principles, on which former cases have been decided ; and may thus illustrate, or enlarge, the opera- tion of those principles. But the principles are as fixed and certain, as the principles on which the courts of common law pro- ceed." i In confirmation of these remarks, it may be added, that the courts of common law are, in like manner, perpetually adding to the doctrines of the old jurisprudence; and enlarging, illus- trating, and applying the maxims, which were at first derived from very narrow and often obscure sources. For instance, the whole law of Insurance is scarcely a century old; and more than half of its most important principles and distinctions have been created within the last fifty years. § 21. In the early history of English equity jurisprudence, there might have been, and probably was, much to justify the sugges- tion, that courts of equity were bounded by no certain limits or rules ; but they acted upon principles of conscience and natural justice, without much restraint of any sort. 5 And, as the chan- 1 See citations, 3 Black. Comm. 433; ject. The whole chapter (B. 1, ch. 11) is id. 54, 55 ; id. 440, 441. well worthy of perusal. 2 3 Black. Comm. 433 ; id. 440, 441, 442. » Cowper v. Cowper, 2 P. "Will. 753. De Lolme, in his work on the Constitu- * Bond v. Hopkins, 1 Sch. & Lefr. 428, tion of England, has presented a view of 429. See also Mitford on Head. Eq. p. 4, English equity jurisprudence, far more note (J). exact and comprehensive than many of 5 1 Kent, Comm. Lect. 21, p. 490, 491, the English text-writers^on the same sub- 492 (2d edit.). § 19-23.] NATURE OP EQUITY. 17 cellors were, for many ages, almost universally either ecclesiastics or statesmen, neither of whom are supposed to be very scrupulous in the exercise of power ; and as they exercised a delegated au- thority from the crown, as the fountain of administrative justice, whose rights, prerogatives, and duties on this subject were not well defined, and whose decrees were not capable of being resisted, it would not be unnatural, that they should arrogate to themselves the general attributes of royalty, and interpose in many cases, which seemed to them to require a remedy, more wide or more summary than was adopted by the common courts of law. § 22. This is the view which Mr. Justice Blackstone seems to have taken of the matter ; who has observed, that, in the infancy of our courts of equity, before their jurisdiction was settled, the chancellors themselves, " partly from their ignorance of the law (being frequently bishops or statesmen), partly from ambition and lust of power (encouraged by the arbitrary principles of the age they lived in), but principally from the narrow and unjust deci- sions of the courts of law, had arrogated to themselves such unlim- ited authority, as hath totally been disclaimed by their successors, for now (1765) above a century past. The decrees of the court of equity were then rather in the nature of awards, formed on the sudden, pro re natd, with more probity of intention than knowledge of the subject, founded on no settled principles, as being never designed, and therefore never used, as precedents." 1 § 23. It was fortunate, indeed, that, even in those early times, the knowledge which the ecclesiastical chancellors had acquired of general equity and justice from the civil law, enabled them to administer them with a more sound discretion than could other- wise have been done. And from the moment, when principles of decision came to be acted upon and established in chancery, the Roman law furnished abundant principles to erect a superstruc- ture, at once solid, convenient, and lofty, adapted to human wants, and enriched by all the aids of human wisdom, experience, and learning. To say that later chancellors have borrowed much from these materials, is to bestow the highest praise upon their j udg- ment, their industry, and their reverential regard to their duty. It would have been little to the commendation of such learned minds, that they had studiously disregarded the maxims of ancient i 3 Black. Comm. 433; id. 440, 441. EQ. JUE. — VOL. I. 2 18 EQUITY JURISPRUDENCE. [CH. I. wisdom, or had neglected to use them, from ignorance, from pride, or from indifference. 1 § 24. Having dwelt thus far upon the inaccurate, or inadequate notions, which are frequently circulated, as to equity jurispru- dence, in England and America, it may be thought proper to give some more exact and clear statement of it. This may be better done by explanatory observations, than by direct definitions, which are often said in the law to be perilous and unsatisfactory. § 25. In England and in the American States, which have derived their jurisprudence from that parental source, equity has a restrained and qualified meaning. The remedies for the redress of wrongs, and for the enforcement of rights, are distinguished into two classes : first, those which are administered in courts of common law; and secondly, those which are administered in courts of equity. Rights, which are recognized and protected, and wrongs, which are redressed, by the former courts, are called legal rights and legal injuries. Rights, which are recognized and protected, and wrongs, which are redressed by the latter courts only, are called equitable rights and equitable injuries. The former are said to be rights and wrongs at common law, and the remedies, therefore, are remedies at common law ; the latter are said to be rights and wrongs in equity, and the remedies, therefore, are remedies in equity. Equity jurisprudence may, therefore, properly be said to be that portion of remedial jus- tice, which is exclusively administered by a court of equity, as contradistinguished from that portion of remedial justice, which is exclusively administered by a court of common law. § 26. The distinction between the former and the latter courts may be further illustrated by considering the different natures of the rights they are designed to recognize and protect, the differ- ent natures of the remedies which they apply, and the different 1 The whole of the late Professor same subject in the American Jurist, one Park's Lecture upon Equity Jurispru- of which, published in 1829, contains a dence, delivered in King's College in Nov. most elaborate review and vindication of 1831, on this subject, is well deserving of a the jurisdiction of courts of equity; and perusal by every student. There is much the other in 1833, a forcible exposition freedom and force in his observations, of the prevalent errors on the subject and, if his life had been longer spared, (2 Amer. Jurist, 314 ; 10 Amer. Jurist, he would probably have been a leader in 227). I know not where to refer the a more masculine and extensive course of reader to pages more full of useful com- law studies by the English Bar. There ment and research, are also two excellent articles on the § 23-28.] NATURE OF EQUITY. 19 natures of the forms and modes of proceeding which they adopt, to accomplish their respective ends. In the courts of common law, both of England and America, there are certain prescribed forms of action, to which the party must resort to furnish him a remedy ; and, if there be no prescribed form to reach such a case, he is remediless ; for they entertain jurisdiction only of certain actions, and give relief according to the particular exigency of such actions, and not otherwise. In those actions, a general and unqualified judgment only can be given, for the plaintiff, or for the defendant, without any adaptation of it to particular circum- stances. § 27. But there are many cases, in which a simple judgment for either party, without qualifications, or conditions, or peculiar arrangements, will not do entire justice ex cequo et bono to either party. Some modifications of the rights of both parties may be required ; some restraints on one side, or on the other, or perhaps on both sides ; some adjustments involving reciprocal obligations, or duties ; some compensatory, or preliminary, or concurrent pro- ceedings to fix, control, or equalize rights ; some qualifications or conditions, present or future, temporary or permanent, to be an- nexed to the exercise of rights, or the redress of injuries. In all these cases courts of common law cannot give the desired relief. They have no forms of remedy adapted to the objects. They can entertain suits only in a prescribed form, and they can give a gen- eral judgment only in the prescribed form. 1 From their very character and organization they are incapable of the remedy, which the mutual rights and relative situations of the parties, under the circumstances, positively require. § 28. But courts of equity are not so restrained. Although they have prescribed forms of proceeding, the latter are flexible, and may be suited to the different postures of cases. They may adjust their decrees, so as to meet most, if not all, of these exigen- cies ; and they may vary, qualify, restrain, and model the remedy, so as to suit it to mutual and adverse claims, controlling equities, and the real and substantial rights of all the parties. Nay, more : they can. bring before them all parties interested in the subject- matter, and adjust the rights of all, however numerous ; whereas, courts of common law are compelled to limit their inquiry to the very parties in the litigation before them, although other persons l Mitf ord on Plead, p. 3, 4 ; 1 Wooddes. Lect. vii. p. 203 to 206. 20 EQUITY JURISPRUDENCE. [CH. I. may have the deepest interest in the event of the suit. So that one of the most striking and distinctive features of courts of equity is, that they can adapt their decrees to all the varieties of circumstances, which may arise, and adjust them to all the pecu- liar rights of all the parties in interest ; whereas courts of. com- mon law (as we have already seen) are bound down to a fixed and invariable form of judgment in general terms, altogether absolute, for the plaintiff, or for the defendant. 1 § 29. Another peculiarity of courts of equity is, that they can administer remedies for rights, which rights, courts of common law do not recognize at all ; or, if they do recognize them, they leave them wholly to the conscience and good-will of the parties. Thus, what are technically called Trusts, that is, estates vested in persons upon particular trusts and confidences, are wholly with- out any cognizance at the common law ; and the abuses of such trusts and confidences are beyond the reach of any legal process. But they are cognizable in courts of equity ; and hence they are called equitable estates ; and an ample remedy is there given in favor of the cestuis que trust (the parties beneficially interested) for all wrongs and injuries, whether arising from negligence, or positive misconduct. 2 There are also many cases (as we shall presently see) of losses and injuries by mistake, accident, and fraud ; many cases of penalties and forfeitures ; many cases of impending irreparable injuries, or meditated mischiefs ; and many cases of oppressive proceedings, undue advantages and impositions, betrayals of confidence, and unconscionable bargains; in all of which courts of equity will interfere and grant redress ; but which the common law takes no notice of, or silently disregards. 3 § 30. Again : the remedies in courts of equity are often very different, in their nature, mode, and degree, from those of courts of common law, even when each has a jurisdiction over the same 1 1 Wooddes. Lect. vii. p. 203 to 206 ; can find it stated in any English Law 3 Black. Comm. 438. Much of this para- Books ; " and he thus admits the pro- graph has heen abstracted from Dr. Lie- priety of the exposition contained in the her's Encyclopedia Americana, article text. Equity. The late Professor ■ Park, of a 3 Black. Comm. 439 ; 1 Wooddes. "King's College, London, in his Introduc- Lect. rii. p. 209 to 213 ; 2 Fonbl. Equity, tory Lecture on Equity (1831, p. 15), has B. 2, ch. 1, § 1 ; id. ch. 7 ; id. ch. 8. said, "The editors of the Encyclopaedia 8 1 Wooddes. Lect. vii. p. 203, 204; Americana hare stated the real case, 3 Black. Comm. 434, 435, 438, 439; 1 with regard to what we call courts of Eonbl. Eq. B. 1, ch. 1, § 3, note (/). equity, much more accurately than I § 28-32.] NATURE OP EQUITY. 21 subject-matter. Thus, a court of equity, if a contract is broken, will often compel the party specifically to perform the contract ; whereas courts of law can only give damages for the breach of it. So, courts of equity will interfere by way of injunction to prevent wrongs ; whereas, courts of common law can grant redress only, when the wrong is done. 1 § 31. The modes of seeking and granting relief in equity are also different from those of courts of common law. The latter proceed to the trial of contested facts by means of a jury ; and the evidence is generally to be drawn, not from the parties, but from third persons, who are disinterested witnesses. But courts of equity try causes without a jury ; and they address themselves to the conscience of the defendant, and require him to answer upon his oath the matters of fact stated in the bill, if they are within his knowledge ; and he is compellable to give a full account of all such facts, with all their circumstances, without evasion, or equivocation ; and the testimony of other witnesses also may be taken to confirm, or to refute, the facts so alleged. 2 Indeed, every bill in equity may be said to be, in some sense, a bill of discovery, since it asks for the personal oath of the defendant, to purge him- self in regard to the transactions stated in the bill. It may read- ily be perceived, how very important this process of discovery may be, when we consider how great the mass of human transactions is, in which there are no other witnesses, or persons, having knowl- edge thereof, except the parties themselves. § 32. Mr. Justice Blackstone has, in a few words, given an out- line of some of the more important powers and peculiar duties of courts of equity. He says, that they are established " to detect latent frauds, and concealments, which the process of courts of law is not adapted to reach ; to enforce the execution of such matters of trust and confidence, as are binding in conscience, though not cognizable in a court of law; to deliver from such dangers as are owing to misfortune or oversight ; and to give a more specific relief, and more adapted to the circumstances of the case, than can always be obtained by the generality of the rules 1 1 Wooddes. Lect. vii. p. 206, 207. force specific relief. Common Law Pro- [* By a late English statute, the superior cedure Act, 1845 and 1852. Redfield on courts of common law in Westminster Railways, § 222, p. 512.] Hall are authorized to issue writs of in- 2 3 Black. Comm. 437, 438 ; 1 Wooddes. junction, both interlocutory and final, as Lect. vii. p. 207. well as most other writs calculated to en- 22 EQUITY JURISPRUDENCE. [CH. I. of the positive or common law." 1 But the general account of Lord Redesdale (which he admits, however, to be imperfect, and in some respects inaccurate), is far more satisfactory, as a definite enumeration. " The jurisdiction of a court of equity " ( says he), 2 " when it assumes a power of decision, is to be exercised, (1.) where the principles of law, by which the ordinary courts are guided, give a right, but the powers of those courts are not suffi- cient to afford a complete remedy, or their modes of proceeding are inadequate to the purpose ; (2.) where the courts of ordinary jurisdiction are made instruments of injustice ; (3.) where the principles of law, by which the ordinary courts are guided, give no right, but upon the principles of universal justice, the interference of the judicial power is necessary to prevent a wrong, and the positive law is silent. And it may also be collected, that courts of equity, without deciding upon the rights of the parties, administer to the ends of justice by assuming a jurisdiction ; (4.) to remove impediments to the fair decision of a question in other courts; (5.) to provide for the safety of property in dispute, pending a litigation, and to preserve property in danger of being dissipated or destroyed by those to whose care it is by law intrusted, or by persons having immediate but partial interest ; (6.) to restrain the assertion of doubtful rights in a manner productive of irreparable damage ; (7.) to prevent injury to a third person by the doubtful title of others ; and (8.) to put a bound to vexatious and oppres- sive litigation, and to prevent multiplicity of suits. And further, that courts of equity, without pronouncing any judgment, which may affect the rights of parties, extend their jurisdiction ; (9.) to compel a discovery, or obtain evidence, which may assist the de- cision of other courts; and (10.) to preserve testimony, when in danger of being lost, before the matter, to which it relates, can be made the subject of judicial investigation." 3 § 33. Perhaps the most general, if not the most precise, descrip- tion of a court of equity, in the English and American sense, is, that it has jurisdiction in cases of rights, recognized and pro- tected by the municipal jurisprudence, where a plain, adequate, 1 1 Black. Comm. 92. Abrid. 101 to 197), has given a summary 2 Mitford, PI. Eq. by Jeremy, p. Ill, of the differences between equity juris- 112. diction and legal jurisdiction in regard to 8 Dr. Dana,' in his Abridgment and contracts, which may be read with utility. Digest, ch. 1, art. 7, § 33 to 51 (1 Dana, See also Mitford, Eq. PI. by Jeremy, 4, 5. § 32, 33.] NATURE OP EQUITY. 23 and complete remedy cannot be had in the courts of common law. 1 The remedy must be plain ; for, if it be doubtful and obscure at law, equity will assert a jurisdiction. 2 It must be adequate ; for, if at law it falls short of what the party is entitled to, that founds a jurisdiction in equity. 3 And it must be complete ; that is, it 1 Cooper, Eq. PI. 128, 129; Mitford, PI. Eq. by Jeremy, 112, 123; 1 Wooddes. Lect. vii. p. 214, 215. 2 Bathbone v. Warren, 10 Johns. 587 ; King v. Baldwin, 17 Johns. 384; South- ampton Dock Co. v. Southampton H. & P. Board, L. E. 11 Eq. 254. 3 [In the early days of English juris- prudence, subjects could sue each other in the county and hundred courts only. The king's bench, common pleas, and exchequer courts were exclusively em- ployed in the king's business with his subjects. The king also administered many matters of justice between his subjects in his council. His chancellor was the secretary of the council, and to him the petitions of the subject for re- dress came in the first instance. The chancellor examined the petitions, and referred the matter of the petitions to the king's bench, common pleas, or ex- chequer, according to the nature of the business. In cases where no proper re- dress could be had in either of those courts, the chancellor retained the pe- tition in his own hands, and the king, or the chancellor, gave such relief as was judged proper. Hence arose the custom of inserting, in petitions to the king or his chancellor, the allegation that the pe- titioner had no complete and adequate remedy in the ordinary courts of law. See Bispham, Prin. of Eq. p. 6-9. Thus the inadequacy and incompleteness of all legal remedy underlie the whole system of equity jurisprudence. But gradually the jurisdiction of the chancellor in giv- ing relief where there was no adequate remedy at law became settled ; and there grew up certain great heads of equity jurisdiction, and courts of equity took jurisdiction rather because they had ju- risdiction in certain matters, than because there was no adequate and complete rem- edy at law in the particular case. Thus the jurisdiction of a court of equity at the present day in England is determined not by the question whether there is an adequate remedy at law, but whether it has been the practice of the chancellor to take jurisdiction in similar matters. In America, courts, as a general rule, have that jurisdiction which is conferred upon them by statute, and the statutes which derogate from or add to the com- mon-law powers of courts are generally strictly construed. Thus the statute in Massachusetts which confers equity ju- risdiction upon the supreme judicial court, names all the principal heads of equity jurisdiction, and concludes as follows : " 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." Gen. Stat. ch. 113, § 2. In the construction of this statute, the courts disregard the usage and practice of courts of equity, and make this proviso a test in each particular case, whether jurisdiction in equity shall be entertained. Jones v. Newhall, 115 Mass. 247. Thus fraud in procuring a deed is a distinct head of equity jurisdiction. And courts of equity may set aside the deed or decree a reconveyance ; but, if the aggrieved party may maintain a writ of entry for the land, on the ground that a. deed procured by fraud is void and no deed, he cannot have relief in equity. Bassett v. Brown, 100 Mass. 355; Suter v. Matthews, 115 Mass. 253 ; Hubbell v. Courrin, 10 Allen, 333. So also courts of equity have jurisdiction to enforce the specific performance of contracts. But if a person has made a contract to sell his property for a certain sum of money, he cannot maintain a bill in equity to compel the purchaser to take the property and pay the purchase-money, if he might also have an action at law for the purchase- money. Jones v. Newhall, 115 Mass. 249. In this case, the court, by Mr. Justice Wells, gave a learned exposition of the Massachusetts statute and of the general 24 EQUITY JURISPRUDENCE. [CH. must attain the full end and justice of the case. 1 It must reach the whole mischief, and secure the whole right of the party in a rules of jurisdiction in the United States, from which the following extract is made : " In Massachusetts, instead of a distinct and independent court of chan- cery, with a jurisdiction derived from and denned and fixed by long usage, we have certain chancery powers conferred upon a court of common law, whose jurisdic- tion and modes of remedy, as a court of law, had already become extended much beyond those of English courts of com- mon law, partly by statutes and partly by its own adaptation of its remedies to the necessities which arose from the absence of a court of chancery. This difference in the relations of the two jurisdictions would alone give occasion to different rules governing their exercise. Black v. Black, 4 Pick. 234, 238 ; Tirrell v. Merrill, 17 Mass. 117, 121; Baker v. Biddle, Baldw. 394. " 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 ' par- ties should not have a plain, adequate, and complete remedy at common law.' This has been construed as referring ' to reme- dies 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, 4 Pick. 234; Charles River Bridge v. Warren Bridge, 6 Pick. 376 ; Lane .v. Marshall, 1 Heisk. 30; State v. Alden, ib. 543. No reason or 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 purport and intent of our statutes upon the subject. Milkman u. Ordway, 106 Mass. 232 ; Angel v. Stone, 110 Mass. 54. A similar restriction upon the equity ju- risdiction of the federal courts is con- strued with great strictness. Oelrichs v. Spain, 15 Wall. 211, 228; Grand Chute v. Winegar, 15 Wall. 373; Insurance Co. u. Bailey, 13 Wall. 616 ; Parker v. Winni- piseogee Lake Cotton and Woollen Co., 2 Black, 545 ; Baker v. Biddle, Baldw. 394 ; Woodman u. Freeman, 25 Me. 531 ; Pis- cataqua Ins. Co. v. Hill Co., 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 jurisdiction is maintained, yet the usual course of prac- tice is to remit parties to their remedy at law, provided it be plain and adequate, unless for some reason of peculiar advan- tage which equity is supposed to possess, or some other cause influencing the dis- cretion of the court. Kerr on Fraud and Mistake, 45; Bispham. Eq. § 37, 200; Snell, Eq. 334; Clifford v. Brooke, 13 Ves. 131 ; Whitmore v. Mackeson, 16 Beav. 126 ; Hammond ». Messenger, 9 Sim. 327 ; Hoare v. Bremridge, L. R. 14 Eq. 522, L. R. 8 Ch. 22. " The doctrine of Colt v. Woollaston, 2 P.Wms. 154, and Green v. Barrett, 1 Sim. 45, though not expressly overruled, has been questioned (Thompson v. Barclay, 9 Law Jour. Ch. 215, 219), and does not seem to govern the usual practice of the courts. See cases above cited, and New- ham v. May, 13 Price, 769. "But independently of statute re- strictions, the objection that the plaintiff may have a sufficient remedy or defence at law in the particular case is a matter of equitable discretion rather than ju- risdictional right, and is therefore not always available on demurrer. Colt v. Netterville, 2 P. Wms. 304; Ramshire o. Botton, L. R. 8 Eq. 294 ; Hill v. Lane, L. R. 11 Eq.215; Barry v. Croskey, 2 Johns. & Hem. 1 . "According to the practice in this Commonwealth, on the other hand, under the statutes relating to jurisdiction in 1 [Where the remedy at law is ade- quate, but is involved in delay and is in several respects inconvenient and circui- tous, the cause will entertain jurisdiction in equity. Clouston v. Sherer, 99 Mass. 209; Webb v. Ridgely, 3 Md.364.] §33.] NATURE OP EQUITY. 25 perfect manner, at the present time, and in future; otherwise, equity will interfere and give such relief and aid as the exigency of the particular case may require. 1 The jurisdiction of a court 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 Met. 525, 529 ; Woodman v. Saltonstall, 7 Cush. 281 ; Pratt v. Pond, 5 Allen, 59 ; Clark v. Jones, 5 Allen, 379 ; Metcalf i\ Cady, 8 Allen, 587 ; Mill River Loan Fund Association v. Claflin, 9 Allen, 101 ; Commonwealth v. Smith, 10 Allen, 448 ; Bassett v. Brown, 100 Mass. 355, 105 Mass. 551." So in case of accident, which is one of the heads of equity jurisdiction, if the party may maintain an action of law, the court has no jurisdiction in equity. Comstock v. Henneberry, 66 111. 212 ; Burton v. Glea- son, 56 111. 25. Eights in relation to the trust property between a trustee and cestui que trust are cognizable in equity, but the right of the trustee over property in his possession as against strangers must be determined at law. Kuhn v. Mack, 4 W. Va. 186. So a court of equity has no jurisdiction to enforce rights not recog- nized and protected by municipal juris- prudence. Elborough v. Ayres, L. R. 10 Eq. 367 ; Carlton r. Salem, 103 Mass. 141 ; Hale v. Cushman, 6 Met. 425 ; Hendricks v. Toole, 29 Mich. 340. But where a party has a well-defined right by the law, but no adequate remedy is given, a court of equity will take jurisdiction. Bosen v. Smith, 47 111. 482 ; People v. Wiant, 48 111. 263 ; Smith v. Magourick, 44 Ga. 163. If jurisdiction in equity is once ac- quired, it remains, although statutes may make the remedy at law complete and adequate. Shotwell v. Smith, 5 C. E. Green, 79 ; Segar v. Pratt, 20 Gratt. 672 ; Pratt v. Pond, 5 Allen, 59; See post, § 64 (»'), but see Ainsley v. Mead, 3 Lans. 116; Hall v. Joiner, 1 Rich. n. s. 186. In this view, the inadequacy of the rem- edy at law is not an unfailing test of the jurisdiction in equity. Sometimes courts of equity assume jurisdiction for the sake of an harmonious system of relief, al- though the law would give a remedy in the particular case. See post, § 723. And courts will assume jurisdiction over its own officers, although the common law would give redress against them. Chapman v. Chapman, L. R. 9 Eq. 276. And the sovereign power sometimes claims relief against its subjects in any of its courts. Att'y-Gen. v. Tudor Ice Co., 104 Mass. 239. So insolvency or bankruptcy has been held to give juris- diction to allow off-sets in equity to pre- vent a failure of right. Smith v. Felton, 43 N. Y. 419 ; Camp v. Pace, 42 Ga. 161. So where a party has procured all his property to be placed beyond the reach of processes of law. Tommey v. Ellis, 41 Ga. 260. But see Hopkins v. Fechter, 47 Miss. 331 ; Riddick v. Moore, 65 N. C. 382 ; and post, § 1434, 1437 u,. On the same principles, non-residence of a party has been used to give a court juris- diction in equity to allow an off-set to prevent legal remedies from becoming in- effectual. Wallenstein v. Selizman, 7 Bush, 175. But see Smith v. Washington Gaslight Co, 31 Md. 12; Fletcher v. Hooper, 32 Md. 210. Formerly the great and preponderating power and influence of one party against the weakness and poverty of the other party was invoked to give jurisdiction in equity. See post, § 44 and notes, and some reliance has been placed upon that principle in modern cases. Frederick r. Groshon, 30 Md. 436. But the poverty of one of the parties, or their disparity in wealth and influence, could not be used to give a distinct head of equity jurisdiction Worthy v. Tate, 44 Ga. 152. Even the legislature cannot give a court, acting without a jury, the power to determine a legal right, unless there is some equitable ground of relief. Haine's App., 73 Pa. St. 169.] * See Dr. Lieber's Ency. Americana, art. Equity ; Mitford, Eq. Plead, by Jere- my, 111, 112, 117, 12.3 ; 1 Wooddes. Lect. vii. p. 214, 215; Hinde's Pract. 153; Cooper, Eq. PI. Sir James Mackintosh, in his Life of Sir Thomas More, says : "Equity, in the acceptation in which the word is used in English Jurisprudence, is no longer to be confounded with that moral equity, which generally corrects 26 EQUITY JURISPRUDENCE. [CH. I. of equity is, therefore, sometimes concurrent with the jurisdiction of a court of law ; it is sometimes exclusive of it ; and it is some- times auxiliary to it. 1 § 34. Many persons, and especially foreigners, have often ex- pressed surprise, that distinct courts should, in England and America, be established for the administration of equity, instead of the whole administration of municipal justice being confided to one and the same class of courts, without any discrimination be- tween law and equity. 2 But this surprise is founded almost wholly upon an erroneous view of the nature of equity jurisprudence. It arises from confounding the general sense of equity, which is equivalent to universal or natural justice, ex aequo et bono, with its technical sense, which is descriptive of the exercise of jurisdiction over peculiar rights and remedies. Such persons seem to labor under the false notion, that courts of law can never administer justice with reference to principles of universal or natural justice, but are confined to rigid, severe, and uncompromising rules, which admit of no equitable considerations. Now, such a notion is founded in the grossest mistake of our systems of jurisprudence. Courts of common law, in a great variety of cases, adopt the most enlarged and liberal principles of decision ; and, indeed, often pro- ceed, as far as the nature of the rights and remedies, which they are called to administer, will permit, upon the same doctrines as courts of equity. This is especially true, in regard to cases in- the unjust operation of law, and with its rules and governing principles. But which it seems to have been synonymous it is quite as regular, and exact in its in the days of Selden and Bacon. It is a principles and rules, as the common law ; part of laws formed from usages and and, probably, as any other system of determinations, which sometimes differ jurisprudence, established, generally, by from what is called common law in its positive enactments, or usages, or practi- subjects ; but chiefly varies from it in its cal expositions, in any country, ancient or modes of proof, of trial, and of relief, modern. There must be many principles It is a jurisdiction so irregularly formed, and exceptions in every system, in a and often so little dependent upon gen- theoretical sense, arbitrary, if not ir- eral principles, that it can hardly be de- rational ; but which are yet sustained by fined or made intelligible, otherwise than the accidental institutions, or modifica- by a minute enumeration of the matters tions of society, in the particular country cognizable by it." There is much of gen- where they exist. There are wide dif- eral truth in this statement ; but it is, ferences between the philosophy of law, perhaps, a little too broad and undistin- as actually administered in any country, guishing for an accurate equity lawyer, and that abstract doctrine, which may, in Equity, as a science, and part of juris- matters of government, constitute in many prudence, built upon precedents, as well minds the law of philosophy, as upon principles, must occasionally 1 Eonbl. Eq. B. 1, ch. 1, § 8, note (/). fail in the mere theoretical and philoso- 3 3 Black. Comm. 441, 442. phical accuracy and completeness of all § 83-36.] NATURE OF EQUITY. 27 volving the application of the law of nations, and of commercial and maritime law and usages, and even of foreign municipal law. And Mr. Justice Blackstone has correctly said, that "where the subject-matter is such, as requires to be determined secundum cequum et bonum, as generally upon actions on the case, the judg- ments of the courts of law are guided by the most liberal equity." x § 35. Whether it would, or would not, be best to administer the whole of remedial justice in one court, or in one class of courts, without any separation or distinction of suits, or of the form or modes of proceeding and granting relief, is a matter upon which different minds in the same country, and certainly in dif- ferent countries, would probably arrive at opposite conclusions. And, whether, if distinctions in rights and remedies and forms of proceeding are admitted in the municipal jurisprudence, it would be best to confide the whole jurisdiction to the same court or courts, is also a matter upon which an equal diversity of judgment might be found to exist. Lord Bacon, upon more than one occa- sion, expressed his decided opinion, that a separation of the ad- ministration of equity from that of the common law was wise and convenient. " All nations " (says he) " have equity. But some have law and equity mixed in the same court, which is worse ; and some have it distinguished in several courts, which is better." 2 And again, among his aphorisms, he says : " Apud nonnullos receptum est, ut jurisdictio, quse decernit secundum sequum et bonum, atque ilia altera, quse procedit secundum jus strictum, iisdem curiis deputentur ; apud alios autem et diversis. Omnino placet curiarum separatio. Neque enim servabitur dis- tinctio casuum, si fiat commixtio jurisdictionum ; sed arbitrium legem tandem trahet." 3 Lord Hardwicke held the same opinion ; 4 and it is certainly a common opinion in countries governed by the common law. In civil-law countries, the general, if not the univer- sal, practice is the other way ; 5 whether more for the advancement of public justice is a matter of doubt with many learned minds. § 36. But, whether the one opinion, or the other, be most correct in theory, it is most probable, that the practical system, adopted by every nation, has been mainly influenced by the pecu- liarities of its own institutions, habits, and circumstances ; and 1 3 Black. Comm. 430. See Eunomus, 8 Bac. de Aug. Seient. Lib. 8, cap. 3, Dial. 3, § 60. Aph. 45 ; 7 Bac. Works, 448. 2 Bac. Jurisd. of the Marches ; 4 Bac. 4 Parkes, Hist. Chan. App. p. 504, 505. Works, 274. 6 1 Karnes on Eq. Introd. p. 27 to 30. 28 EQUITY JURISPRUDENCE. [CH. I. especially by the nature of its own jurisprudence, and the forms of its own remedial justice. The union of equity and law in the same court, which might be well adapted to one country, or even to one age, might be wholly unfit for another country, or for another age. The question, in all such cases, must be a mixed question of public policy and private convenience ; and never can be susceptible of any universal solution, applicable to all times, and all nations, and all changes in jurisprudence. § 37. Accordingly we find, that in the nations of antiquity dif- ferent systems existed. And in Rome, with whose juridical institutions we are best acquainted, not only were different juris- dictions intrusted to different magistrates, but the very distinction between law and equity was clearly recognized. 1 Thus civil juris- diction and criminal jurisdiction were confided to different magis- trates. 2 The Roman Praetors generally exercised the former only. In the exercise of this authority, a broad distinction was taken between actions at law and actions in equity, the former having the name of Actiones Oiviles and the latter of Actiones Prcetorice. And, in the same way, a like distinction was taken between Obligationes Civiles and Obligations Prcetorice, between Actiones Directce and Actiones Utiles? And, in modern nations, it is not uncommon for different portions of judicial jurisdiction to be vested in different magistrates or tribunals. Thus, questions of state or public law, such as prize causes, and causes touching sovereignty, are generally confided to special tribunals ; and mari- time and commercial questions often belong to courts of admiralty, or other courts constituted for commercial purposes. There is, then, nothing incongruous, much less absurd, in separating differ- ent portions of municipal jurisprudence from each other, in the administration of justice ; or in denying to one court the power to dispose of all the merits of a cause, when its forms of proceed- ing are ill adapted to afford complete relief, and giving juris- diction of the same cause to another court, better adapted to do entire justice by its larger and more expansive authority. 1 3 Black. Comm. 50; Parkes, Hist. 3 Taylor's Elem. Cir. Law, 213, 214 ; Chan. 28 ; Butler's Horse Subsecivse [43], id. 93, 94, 95; Pothier, Pand. Lib. 50, tit. p. 66 ; 1 Collect. Jurid. 25 ; Pothier, Pand. 16 ; De Verb. Signif . Actio ; Inst. Lib. 4, Lib. 1, tit. 2, § 2 to 24 ; id. tit. 10, § 1, 2, 3; tit. 6, § 3, 8 ; Inst. Lib. 3, tit. 14, § 1 ; id. tit. 11, § 1 to 9; id. tit. 14, § 1, 2 ; id. Heinecc. de Edict. Praetor. Lib. 1, cap. tit. 20. 6 ; 3 Black. Comm. 50 ; Parkes, Hist. Ch. 2 Taylor's Elem. Civ. Law, 211,213, 28. See 1 Collect. Jurid. 33 ; De Lolme 215, 216 ; Pothier, Pand. Lib. 2, tit. 1, art. on Eng. Const. B. 1, ch. 11. 2, §5 to 8; id. § 10. § 36-38.] OEIGIN AND HISTORY. 29 CHAPTER II. THE OEIGIN AND HISTORY OF EQUITY JURISPRUDENCE. • [* § 38-40. The origin of the court of chancery, so far as its equitable jurisdic- tion is concerned, is involved in great uncertainty. The Aula Regis originally com- bined both law and equity. In the partition of this entire jurisdiction, the court of chancery retained, as its portion, the present prerogative offices of the English chan- cellors, such as the care of infants, idiots, lunatics, &c. § 41-50. The present equitable jurisdiction of the courts of chancery seems to have grown up, like most of the other institutions of the English common law, from the exigencies of the times and of judicial administration. 1. The petitions to the king in council. 2. The cases where the Register Brevium afforded no precedent of a remedy. 3. Relief from fraud, accident, mistake, and forfeitures. 4. Uses and trusts. Its date may reach back, dimly, into the earliest times, immediately suc- ceeding the Norman conquest ; but the well-defined development of the distinct ex- ercise of equitable jurisdiction, for the most part, dates from the time of Edward I. ; and its character is but crude and imperfect, until the time of Sir Thomas More, and Cardinal Wolsey, under Henry VIII. § 51-53. Lord Nottingham laid the foundation of modern equity jurisprudence, and Lord Hardwicke measurably matured its several departments. It must be re- garded as originally the residuum of the jurisdiction of the Aula Regis, when it was subdivided into distinct tribunals ; and it still maintains the character, which it origi- nally claimed, of being the complement of legal jurisdiction, in that it afforded relief in all cases, where justice required some remedy, which, without the intervention of the court of chancery, must fail, either wholly, or in part. § 54-58. In America, equity jurisprudence has grown up chiefly since the forma- tion of our National Government. Both in the National and State courts, it follows the model of the English court of chancery, except that in some of the States, and in the national tribunals, it is administered by the common-law courts. In some of the States, the equity jurisdiction is very imperfect, and in some is scarcely known.] § 38. Having thus ascertained what is the true nature and character of Equity Jurisprudence, as it is administered in coun- tries, governed by the common law, it seemed proper, before pro- ceeding to the consideration of the particulars of that jurisdiction, to take a brief review of its origin and progress in England, from which country America has derived its own principles and prac- tice on the same subject. It is not intended here to speak of the common-law jurisdiction of the court of chancery, or of any of its specially delegated jurisdiction in exercising the preroga- tives of the crown, as in cases of infancy and lunacy ; or of its 30 EQUITY JUEISPBUDENCE. [CH. II. statutable jurisdiction in cases of bankruptcy. 1 The inquiry will mainly relate to its equitable, or, as it is sometimes called, its extraordinary, jurisdiction. 2 § 39. The origin of the court of chancery is involved in the same obscurity, which attends the investigation of many other questions, of high antiquity, relative to the common law. 3 The administration of justice in England was originally confided to the Aula Regis, or great Court or Council of the King, as the Supreme Court of Judicature, which, in those early times, un- doubtedly administered equal justice, according to the rules of both law and equity, or of either, as the case might chance to re- quire. 4 When that court was broken into pieces, and its principal jurisdiction distributed among various courts, the Common Pleas, the King's Bench, and the Exchequer, each received a certain portion, and the Court of Chancery also obtained a portion. 5 But, at that period, the idea of a court of equity, as contradistinguished from a court of law, does not seem to have subsisted in the origi- nal plan of partition, or to have been in the contemplation of the sages of the day. 6 Certain it is, that among the earliest writers of the common law, such as Bracton, Glanville, Britton, and Fleta, there is not a syllable to be found relating to the equitable jurisdiction of the court of chancery. 7 Fleta, indeed, mentions the existence of a certain office, called the chancery, and that to the office " it belongs, to hear and examine the petitions and com- plaints of plaintiffs, and to give them according to the nature of the injuries shown by them, due remedy by the writs of the King."* § 40. That the court of chancery, in the exercise of its ordi- nary jurisdiction, is a court of very high antiquity, cannot be doubted. It was said by Lord Hobart, that it is an original and > See Com. Dig. Chancery, C. 1 ; 1 Mad. Parkes, Hist. Chan. 16, 17, 28, 56 ; 1 Eq.. Ch. Pr. 262 ; 2 Mad. Ch. Pr. 447 ; id. 565 ; Abridg. 129 ; Courts, B. note (a) ; 1 Wood- 3 Black. Coram. 426, 427, 428. des. Lect. vi. p. 174, 175; Gilb. For. Ro- 2 3 Black. Comm. 50 ; Com. Dig. Chan- man, 14 ; 1 Reeves, Hist. 59, 60, 63 ; Bac. eery, C. 2 ; 4 Inst. 79 ; 2 Inst. 552. Abridg. Court of Chancery, C. » 3 Mitford, PI. Equity, 1 ; Com. Dig. 6 3 Black. Comm. 50 ; The Legal Judic. Chancery, A. 1; 4 Inst. 79; 1 Wooddes.. in Chanc. stated (1727), ch. 2, p. 24. Lect. vi. ' Id. 50 ; Parkes, Hist. Chan. 25 ; 4 Inst. * 3 Black. Comm. 50; 1 Peeves, Hist. 82; 1 Reeves, Hist. 61; 2 Reeves, Hist. 62, 63. 250, 251. 6 3 Black. Comm. 50 ; Com. Dig. Chan- 8 Parkes, Hist. Chan. 25 ; Fleta, Lip. 2, eery, A. 1, 2, 3 ; 1 Collect. Jurid. 27 to 30 ; cap. 13 ; 4 Inst. 78. § 38-41 .J OKIGIN AND HISTORY. , 31 fundamental court, as ancient as the kingdom itself. 1 The name of the court, Chancery (Cancellaria), is derived from that of the presiding officer, Chancellor (Cancellarius), an officer of great distinction, whose office may be clearly traced back, before the Conquest, to the times of the Saxon kings, many of whom had their chancellors. 2 Lord Coke supposes that the title Cancellarius arose from his cancelling (a cancettandd) the king's letters-patent, when granted contrary to law, which is the highest point of jurisdiction. 3 But the office and name of chancellor (Mr. Justice Blackstone has observed) was certainly known to the courts of the Roman emperors ; where it originally seems to have signified a chief scribe, or secretary, who was afterwards invested with sev- eral judicial powers, and a general superintendency over the rest of the officers of the prince. 4 From the Roman emperors it passed to the Roman Church, ever emulous of imperial state ; and hence every bishop has to this day his chancellor, the principal judge of his consistory. And when the modern kingdoms of Europe were established upon the ruins of the empire, almost every state pre- served its chancellor, with different jurisdictions and dignities, according to their different constitutions. But in all of them, he seems to have had the supervision of all charters, letters, and such other public instruments of the crown, as were authenticated in the most solemn manner ; and, therefore, when seals came in use, he always had the custody of the king's great seal. 5 § 41. It is not so easy to ascertain the origin of the equitable or extraordinary jurisdiction of the court of chancery. By some 1 Hobart, 63; Com. Dig. Chancery, A. learn out of Vopiscus. But nowadays a 1, 2 ; 2 Inst. 551, 552 ; 4 Inst. 78, 79. name it is of the highest honor, and chan- 2 Com. Dig. Chancery, A. 1 ; 4 Inst, cellors are advanced to the highest pitch 78; 1 Wooddes. Lect. vi. p. 161 to 165; of civil dignity ; whose name Cassiodorus Prynne's Animadv. 48 ; 1 Coll. Jurid. 26 ; fetcheth from cross grates, or lattices, 1 Rep. in Chan. App. 5, 7. because they examined matters within 8 4 Inst. 88 ; Eunomus, Dial. 3, § 60. places (secretum) severed apart, enclosed * See Parkes, Hist. Chan. 14 ; 1 Wood- with partitions of such cross-bars, which des. Lect. vi. p. 160 ; History of Chancery the Latins called Cancelli. Regard (saith (1726), 3, 4. he to a chancellor) what name you bear. 5 3 Black. Comm. 46, 47 ; 1 Wooddes. It cannot be hidden, which you do within Lect. vi. p. 159, 160; 1 Coll. Jurid. 25; lattices. For you keep your gates light- Parkes, Hist. Chan. 14; 1 Reeves, Hist, some, your bars open, and your doors 61 ; 2 Reeves, Hist. 250, 251. Camden, transparent as windows. Whereby it is in his Britannia, p. 180, states the matter very evident that he sat within grates, in this manner : " The chancery drew that where he was to be seen on every side ; name from a chancellor, which name, and thereof it may be thought he took under the ancient Roman emperors, was his name. But minding it was his part, not of so great esteem and dignity, as we being, as it were, the Prince's mouth, 32 EQUITY JURISPRUDENCE. [CH. II. persons it has been held to be as ancient as the kingdom itself. 1 Others are of a different opinion. Lambard, who (according to Lord Coke) was a keeper of the records of the Tower, and a mas- ter in chancery, says, that he could not find that the chancellor held any court of equity, nor that any causes were drawn before the chancellor for help in equity, before the time of Henry IV. ; in whose days, by reason of intestine troubles, feoffments to uses did first begin, as some think. 2 Lord Coke says, it has been thought that this court of equity began in the reign of Henry V., and increased in the reign of Henry VI. ; but that its principal growth was during the chancellorship of Cardinal Wolsey, in the reign of Henry VIII. 3 And he adds, in another place, that we find no cases in our books, reported before the reign of Henry VI.* Lord Coke's known hostility to the jurisdiction of the court of chancery would very much abate our confidence in his researches, if they were not opposed by other pressing authorities. 5 eye, and ear to strike and slash out with cross lines, lattice-like, those letters, com- missions, warrants, and decrees, passed against law and right, or prejudicial to the Commonwealth, which, not improp- erly, they called to cancel, some think the name pf chancellor came from this cancelling. And in a glossary of a later time this we read. A chancellor is he, whose office it is to look into and peruse the writings of the emperor; to cancel what is written amiss, and to sign that which is well." However, antiquaries differ much upon the origin of the word chancellor. Some derive it a cancellis, or latticed doors, and hold, that it was a denomination of those ushers, who had the care of the cancelli, or latticed doors, leading to the presence chamber of the emperors and other great men. See 1 Wooddes. Lect. vi. p. 159, 160 ; Bythe- wood's Eunomus, Dial. 3, § 60, note (a) p. 564; Brissonius, Voce, Cancellarius ; Vicat, Vocab. Voce, Cancellarius ; 1 Sa- vigny's Hist, of Roman Law, translated by Cathcart, p. 51 to 83. 1 Com. Dig. Chancery, A. 2; Jurisd. of Chancery Vind. 1 Rep. in Chan. App. 9, 10 ; 1 Collect. Jurid. 28, 29, 30, 62 ; Dis- courses on Judicial Authority of the Master of Rolls, 2; id. edit, of 1728, Preface, cxi. to cxix. (ascribed to Lord Hardwicke) ; Barton, Eq. Introd. 2 to 13. This was Lord Hobart's opinion (as we have seen), who added : " That part of equity being opposite to regular law, and, in a manner, an arbitrary discretion, is still administered by the king himself, and his chancellor, in his name, ab initio, as a special trust, committed to the king, and not by him to be committed to an- other." Hob. Rep. 63. Camden (Brit- annia, p. 181) says: "It is plain and manifest that chancellors were in Eng- land before the Norman Conquest." In the Vindication of the Judgment, given by King James, in the case of the court of chancery ( 1 Collectanea Juridica, p. 23, 61, 62), it is said : " It cannot be denied, but that the chancery, as it judgeth in equity, is a part of the law of the land, and of the ancient common law " ; " for equity is, and always hath been, a part of the law of the land." 2 2 Inst. 552. But see 1 Wooddes. Lect. vi. p. 176, note (b) ; Parkes, Hist. Chan. 27 ; id. 34 ; Jurisdiction of Chan. Vind. 1 Rep. in Chan. App. 7, 8 ; 1 Coll. Jurid. 27 ; Legal Judic. in Chan, stated (1727), p. 28, 29. 3 2 Inst. 553. * 4 Inst. 82. 5 3 Black. Comm. 54 ; 1 Collect. Jurid. 23, &c; Corn. Dig. Chancery, A. 2; 1 Wooddes. Lect. vi. p. 176, 177. Camden (Britannia, p. 181) says : " To this chan- § 41, 42.] ORIGIN AND HISTORY. 33 § 42. Lord Hale's account of the matter is as follows : " There were many petitions referred to the Council (meaning either the Privatum Concilium or Legale Concilium Regis), from the parlia- ment, sometimes the answers to particular petitions, and some- times whole bundles of petitions in parliament, which by reason of a dissolution, could not be there determined, were referred, in the close of the parliament, sometimes to the council in general, and sometimes to the chancellor. And this I take to be the true origi- nal of the chancery jurisdiction in matters of equity, and gave rise to the multitude of equitable causes, to be there arbitrarily determined." And he afterwards adds : " Touching the equitable jurisdiction (in chancery), though in ancient time no such thing was known; yet it hath now so long obtained, and is so fitted to the disposal of lands and goods, that it must not be shaken, though, in many things, fit to be bounded- or reformed. Two things might possibly give original [jurisdiction,] or at least much contribute to its enlargement. (1.) The usual committing of particular petitions in parliament, not there determined, unto the determination of the chancellor, which was as frequent as to the council ; and such a foundation being laid for a jurisdiction, it was not difficult for it to acquire more. (2.) By the invention of uses (that is, trusts'), which were frequent and necessary, especially in the times of dissension touching the crown. In these proceedings the chancellor took himself to be the only dispenser of the king's conscience ; and possibly the council was not called, either as assistants or co-judges." 1 We shall presently see how far these suggestions have been established. cellor's office, in process of time, much law, has always been a part of the law of authority and dignity hath been adjoined England. And he cites, in proof of it, by authority of parliament; especially, the remark stated in Burnet's Life of ever since that lawyers stood so precisely Lord Hale, p. 106, that he (Lord Hale) upon the\Strict points of law, and caught did look upon equity as a part of the men with the traps and snares of their common law, and one of the grounds of law terms ; that of necessity there was a it. There is no doubt that this remark court of equity to be erected, and the is well founded; but it may well be same committed to the chancellor, who doubted whether Lord Hale meant any might give judgment according to equity thing more than a general assertion, that and reason, and moderate the extremity in the administration of the common law of law, which was wont to be thought there often mingled equitable considera- extreme wrong." tions and constructions, and not merely a Mr. Cooper, in his Lettres de la Cour de strict and rigid summum jus. la Chancellerie (Lettr. 25, p. 182), says, 1 Parkes, Hist. Chan. App. p. 502, 503. that there is not a doubt that the juris- See also Hist. Chan. (1726) 11, 12, 13, 14; diction now exercised by the chancellor, Parkes, Hist. Chan. 56. to mitigate the severity of the common EQ. JUR. — VOL. I. 3 34 EQUITY JURISPRUDENCE. [CH. II. § 43. Lord Hardwicke seems to have accounted for the juris- diction in another manner. The chancery is the grand officina justitice, out of which all original writs issue under the great seal, returnable into the courts of common law, to found proceedings in actions, competent to the common-law jurisdiction. The chan- cellor, therefore (according to Lord Hardwicke), was the most proper judge, whether, upon any petition so referred, such a writ could not be framed and issued by him as might furnish an ade- quate relief to the party ; and if he found the common-law reme- dies deficient, he might proceed according to the extraordinary power committed to him by the reference ; ne curia regis deficeret in justitid exercendd. 1 Thus the exercise of the equitable juris- diction took its rise from his being the proper officer to whom all applications were made for writs, to ground actions at the common law ; and from many cases being brought before him, in which that law would not afford a remedy, and thereby being induced, through necessity or compassion, to extend a discretionary rem- edy. 2 If (Lord Hardwicke added) this account of the original of the jurisdiction in equity in England be historically true, it will at least hint one answer to the question how the forum of common law and the forum of equity came to be separated with us. It was stopped at its source, and in the first instance ; for if the case appeared to the chancellor to be merely of equity, he issued no original writ, without which the court of common law could not proceed in the cause, but he retained the cognizance to himself. 3 The jurisdiction, then, may be deemed in some sort a resulting jurisdiction in cases not submitted to the decision of other courts by the crown or parliament, as the great fountain of justice. 4 § 44. Lord King (or whoever else was the author of the treat- ise entitled The Legal Judicature in Chancery stated) 5 deduced 1 An account, nearly similar, of the discoveries of the commissioners of the court of chancery, is given in Bacon's public records, as stated in their printed Abridg. Court of Chancery, A. C. reports. I would gladly transcribe the 2 Parkes, Hist. Chan. App. p. 503, 504. whole passage, if it might not be thought 8 Id. Rex v. Hare, 1 Str. Rep. 151, to occupy too large a space for a work 160. Per Yorke, arguendo. like the present. * Id. 502; Hist, of Chan. (1726) p. 9, 5 Mr. Cooper, in his Lettres sur la Cour 10, 12, 13; Parkes, Hist, of Chan. 56. de la Chancellerie, 85, note (1), expresses Sir James Mackintosh, in his elegant Life a doubt, whether Lord King was the of Sir Thomas More, has sketched out a author of this pamphlet, stating, that it history of chancery jurisdiction, not ma- was written by the same person who terially different from that given by Lord wrote the History of the Chancery, relat- Hardwicke, aided as he was by the later ing to the judicial power of that court, § 43-44.] ORIGIN AND HISTORY. 35 the jurisdiction of the court of chancery from the prerogative of the king to administer justice in his realm, being sworn by his coronation oath to deliver his subjects, cequam et rectam justitiam. This it was impossible for him to do in person ; and, therefore, of necessity, he delegated it, by several portions, to ministers and officers deputed under him. But inasmuch as positive laws must, in their nature, consist of general institutions, there were, of necessity, a variety of particular cases still happening, where no proper or adequate remedy could be given by the ordinary courts of justice. Therefore, to supply this want, and correct the rigor of the positive law, recourse was had to the king, as the fountain of justice, to obtain relief in such cases. The method of application was by bills or petitions to the king, sometimes in parliament, and sometimes out of parliament, commonly directed to him and his council ; and the granting of them was esteemed, not a matter of right, but of grace and favor. When parliament met, there were usually petitions of all sorts, preferred to the king ; and the dis- tinguishing of these petitions, and giving proper answers to them, occasioned a weight and load of business, especially when parlia- ment sat but a few days. 1 Accordingly, in the eighth of the reign of Edward I. an ordinance passed, by which petitions of this sort were to be referred, according to their nature, to the chancellor, and the justices ; and, in matters of grace, to the chancellor. And if the chancellor and others could not do without the king, then they were to bring the matter, with their own hands, before the king, to know his pleasure. So that no petitions should come before the king and his council, but by the hands of the chancellor and other chief ministers. 2 And hence the writer deduces the and the rights of the Masters (1726). liament were often "delayed and dis- Bishop Hurd, in his Life of Warburton, turbed, to the great grievance of them, says, that they were both written by Mr. and of the court, by the multitude of Burrough, with the aid of Bishop "War- petitions laid before the king, the greats burton. The discourse of the Judicial est part whereof might be despatched by Authority of the Master of the Bolls is the chancellor, and by the justices ; there- said to have been written by Lord Hard- fore, it is provided, that all the petitions, wicke alone, or in conjunction with Sir which concern the seal, shall come first Joseph Jekyll. Cooper, Lettres, &c, p. to the chancellor ; and those which touch 334, App. C. ; id. p. 85, note. the exchequer, to the exchequer ; and 1 Parkes, Hist. Chan. 56. those which concern the justices, and the 2 Legal Judic. in Chan. (1727) p. 27, law of the land to the justices ; and those 28,29. The ordinance (8 Edw. I.) is cited which concern the Jews, to the justices at large in the work, The Legal Judica- of the Jews ; and if the affairs are so ture, &c, p. 27, and is as follows : It re- great, or if they are of grace, that the cites that the people who came to par- chancellor and others cannot do it with- 36 EQUITY JURISPRUDENCE. [CH. II. conclusion, that, at this time, all matters of grace were determin- able only by the king. And he added that he did not find any traces of a court of equity and chancery, in the time of Edward II. ; and that it seemed to him that the equity side of the court began in the reign of Edward III. ; 1 when by proclamation, he referred matters of grace to the cognizance of the chancellor. 2 And the jurisdiction was clearly established and acted on in the reign of Richard II. 3 out the king, then they shall bring them with their own hands before the king, to know his pleasure ; so that no petitions shall come before the king and his coun- cil, but by the hands of his said chancel- lor, and other chief ministers; so that the king and his council may, without the load of other business, attend to the great business of his realm, and of other foreign countries." The same ordinance will be found in Ryley, Placit. Parliam. p. 442, and Parkes, Hist. Chan. 29, 30. 1 Legal Judic. in Chan. (1727) p. 28. 2 Id. 30, 31 (22 Edw. III.). See Parkes, Hist. Chan. 35; 1 Equity Abr. Courts, B. note (a). The proclamation is given in the Legal Judicature, &c, p. 30, 31, and in Parkes, History of Chancery, p. 35. It is as follows : " The king to the sheriffs of London greeting — For- asmuch as we are greatly and daily busied in various affairs, concerning us and the state of our realm of England : We will, that whatsoever business, relat- ing as well to the common law of our kingdom, as our special grace, cognizable before us, from henceforth to be prose- cuted as followeth, viz. : The common- law business, before the Archbishop of Canterbury elect, our chancellor, by him to be despatched ; and the other matters, grantable by our special grace, be prose- cuted before our said chancellor, or our well-beloved clerk, the keeper of the privy seal, so that they, or one of them, trans- mit to us such petitions of business, which, without consulting us, they cannot deter- mine, together with their advice there- upon, without any further prosecution to be had before us for the same ; that upon inspection thereof, we may further signify to the aforesaid chancellor or keeper, our will and pleasure therein ; and that none other do for the future pursue such kind of business before us, we command you immediately, upon sight hereof, to make proclamation of the premises," &c. Mr. Lambard, in his work on the jurisdiction of courts, says of the court of chancery, that " the king did at first determine causes in equity in person, and about the 20th of Edward III., the king going be- yond sea, delegated this power to the chancellor ; " and then, he says, " several statutes were made to enlarge the juris- diction of this court ; 17 Eich. II. ch. 6," &c. Bigland, arguendo, in Rex v. Stand- ish (1 Mod. 59). And Bigland then adds, " But the chancellor took not upon him, ex officio, to determine matters in equity, till Edward the Fourth's time; for, till then, it was done by the king in person, who delegated to whom he pleased." This last remark seems, from the recent publication of the Record Commissioners, to be founded in error. 1 Cooper, Public Kec. p. 354, ch. 18. 8 Id. 29, 32, 33; Parkes, Hist. Chan. 39 to 44, 54; Bex v. Standish, 1 Mod. 69; Bigland's Argument. [* The develop- ments made by the Record Commission- ers, in the publication of the index to the records of the English chancery, in 1827, 1830, and 1832, beginning as early as the reign of Richard II. and ending with that of Elizabeth, show that, for a long period, after the jurisdiction of the court of chancery was fully established, it was chiefly occupied in affording relief against the tyranny and injustice of particular officers of position and power, or else against private persons of wealth or in- fluence, sufficient to defy the ordinary courts of justice, and their ministers. This state of affairs seems to have been the origin of the offence of maintenance (which has now become practically obso- lete), when an influential party, by es- § 44, 45.] ORIGIN AND HISTORY. 37 § 45. Mr. Justice Blackstone seems to rely on the same general origin of the jurisdiction of chancery, as arising from the refer- ence of petitions from the privy council to the chancellor ; and also from the introduction of uses of land, about the end of the reign of Edward III. 1 Mr. Wooddesson deduces the jurisdiction from the same source, and lays great stress on the proclamation of 22 Edw. III. ; and also on the statute of 36 Edw. III. (stat. 1, ch. 9), which pousing one side of a cause, rendered it impossible for the other side to obtain justice except by appeal to the king, who referred the cause to his chancellor, where such relief was afforded as the exigencies of the case required. This it was, no doubt, which gave rise to the opinion long entertained, and not yet fully abandoned, in the unprofessional mind, that the rem- edy, afforded in courts of equity, is meas- ured more by the individual conscience of the chancellor, than by settled and well recognized principles of law. These chancery calendars, published by the Record Commissioners, now suc- ceeded by a distinct government depart- ment, under the title of The Public Record Office, have afforded great aid in illus- trating the origin of English equity juris- prudence. They show that it was at first chiefly confined to particular cases of defect of legal administration, embracing : 1. The want of an appropriate writ. 2. Praying for a writ of habeas corpus to have the complainant released from an illegal imprisonment. 3. Some special ground of equitable interference, depending not upon any pe- culiarity of the case, in principle, but upon some obstruction to the ordinary judicial administration, which required the interference of the chancellor, as rep 1 resentative of the sovereign. Por in- stance, the difficulty of obtaining justice, " by reason of the wealth or power of the wrong-doer." It is alleged in one case that the defendant is "surrounded by many men of his maintenance ; " in an- other, " that the defendant is strong and abounding in riches and a great main- tainer of quarrels, and the complainant is poor and hath not the means to sue for remedy at common law." In still another, remedy is sought on the ground that the party is " so poor, and so ill, that he can- not pursue the common law." And in one case the defendant, who was enjoined from proceeding at law, petitioned to be relieved from the injunction, " because he is a poor man, and unable to sue in the King's Court of Chancery." Goddard v. Ingepenne, 1 Ch. Cal. viii. ; Thomas v. Wyse, id. xiv. ; Bell v. Savage, id. xiv. ; Royal v. Garter, id. cxxx. In some of the cases found in the three volumes of Chancery Calendars, published by the commissioners, we find the germ of the present equity jurisdic- tion ; such as bills to set aside a convey- ance obtained by intoxicating the plaintiff. Stonehouse v. Stanshaw, 1 Ch. Cal. xxix. ; a bill by a tithe-owner, to obtain pay- ment of his tithes, Arkenden v. Starkey, id. xxxv. ; a bill to be quiet from the vexatious intermeddling of defendant, in regard to the possession of land already recovered at law, Preeman v. Pontrell, id. xlii. ; a bill by an executor, to restrain the debtor of the estate from setting up a general release against such debt, which it was not intended to discharge, Cobe- thorn v. Williams, id. li. ; a bill against an executor for the payment of the testator's debt, Vavasour v. Chadwick, id. xciii. ; a bill to perpetuate testimony, Earl of Ox- ford o. Tyrrell, id. cxx. ; a bill for dis- covery of title-deeds, Baker v. Parson, 2 Ch. Cal. I. ; a bill for specific perform- ance of a contract, Tyngelden v. Warham, id. liv. Por the character of these vol- umes, and their importance in disclosing the foundations of equity jurisdiction at a date far prior to that ordinarily ascribed to it, see Wallace's Reporters, 280-285; Queen v. Millis, 10 Clark & Pinnelly, 659; Vidal v. The City of Philadelphia, 2 How. U. S. 127, 196 ; Adams's Equity, 51-56.] 1 3 Black. Comm. 50 to 52; Parkes, Hist. Chan. 56. 38 EQUITY JURISPRUDENCE. [CH. II. he, as well as Spelman, considers as referring many things to the sole and exclusive cognizance of the chancellor. 1 And he adds, that it seems incontrovertible,, that the chancery exercised an equi- table jurisdiction, though its practice, perhaps, was not very flour- ishing or frequent through the reign of Edward III. 2 § 46. But all our juridical antiquaries admit that the jurisdiction of chancery was established, and in full operation during the reign of Richard II. ; and their opinions are supported by the incontro- vertible facts, contained in the remonstrances, and other acts of parliament. At this period the extensive use or abuse of the powers of chancery had become an object of jealousy with parlia- ment ; and various efforts were made to restrain and limit its au- thority. But the crown steadily supported it. 3 And the invention of the writ of subpoena by John Waltham, bishop of Salisbury, who was Keeper of the Rolls, about the 5th of Richard II., gave great efficiency, if not expansion, to the jurisdiction. 4 In the 13th of Richard II., the Commons prayed, that no party might be required to answer before the chancellor, or the council of the king, for any matter where a remedy is given by the common law, unless it be by writ of scire facias in the county where it is found, by the common law. To which the king answered, that he would preserve his royalty, as his progenitors had done before him. 5 And the only redress granted was by stat. 17 Rich. II. ch. 6, by which it was enacted, that the chancellor should have power to award damages 1 1 Wooddes. Lect. vi. p. 176, and But it does not seem to contain any re- note (/); 2 Inst. 553; Parkes, Hist, marks, important to be taken notice of, Chan. 35 ; 1 Eq. Abr. Courts, B. note (a), beyond what are furnished by the other 2 1 Wooddes. Lect. vi. p. 178, 179 to authors already cited. See also Barton 183 ; see also 7 Dane's Abridg. ch. 225, on Eq. Pract., Introd. p. 2 to 13. art. 4, § 1. Mr. Beeves, in his History of s Parkes, Hist. Chan. 39 to 44. the English Law, traces the origin of the , 4 3 Beeves, Hist. 192 to 194; id. 274, court of chancery to the reign of Bich- 379, 380, 381 ; 3 Black. Comm. 52 ; Bac. ard II. ; and refers the probable origin of Abr. Court of Chancery, C. In the third its jurisdiction to the reference of peti- year of the reign of Henry V., the com- tions to the chancellor by parliament, or mons, in a petition to the king, declared by the king's council; and conjectures, themselves aggrieved by writs of sub- that he soon afterwards, as the king's poena, sued out of chancery for matters adviser, began to grant redress, without determinable at the common law, " which any such reference, by the mere author- were never granted, or used, before the ity of the king. 3 Beeves, Hist, of Eng- time of the late King Bichard, when John lish Law, p. 188 to 191. Mr. Jeremy, in Waltham, heretofore bishop of Salisbury, the Introduction to his Treatise on Equity of his craft, made, formed, and corn- Jurisdiction (p. i. to xxi.), has given a menced such innovations." Parkes, Hist, sketch of the origin and progress of that Chan. 47, 48 ; 1 Wooddes. Lect. vi. p. 183, jurisdiction in England. It is certainly 184. See also Gilb. Forum Eoman. 17. a valuable, though concise, review of it. 6 Parkes, Hist. Chan. 41 ; 4 Inst. 82. § 45-47.] ORIGIN AND HISTORY. 39 to the defendant, in case the suggestions of the bill were untrue, according to his discretion. 1 The struggles upon this subject were maintained in the subsequent reigns of Henry IV. and V. But the crown resolutely resisted all appeals against the jurisdiction ; and finally, in the time of Edward IV., the process by bill and subpoena was become the daily practice of the court. 2 § 47. Considerable new light has been thrown upon the subject of the origin and antiquity of the equitable jurisdiction of the court of chancery, by the recent publication of the labors of the Commis- sioners on the Public Records. Until that periody the notion was very common (which was promulgated by Lord Ellesmere) that there were no petitions of the chancery remaining in the office of record, before the 15th year of the reign of Henry VI. But it now appears, that many hundreds have been lately found among the records of the Tower for nearly fifty years antecedent to the period mentioned by Lord Ellesmere, and commencing about the time of the passage of the statute of 17 Rich. II. ch. 6. 3 But there is much reason to believe, that, upon suitable researches, many petitions or bills, addressed to the chancellor, will be found of a similar char- acter during the reigns of Edward I., Edward II., and Edward III. 4 1 Parkes, Hist. Chan. 41, 42 ; 3 Black. Calendars, a very succinct, but interest- Comm. 52 ; 4 Inst. 82, 83 ; 1 Wooddes. ing account of the contents of the early Lect. vi. p. 183 ; 2 Reeves, Hist. 194. Chancery Cases, printed by the Eecord 2 3 Black. Comm. 53; Parkes, Hist. Commissioners. Chan. 45 to 57 ; 1 Wooddes. Lect. vi. p. 4 Mr. Cooper says, that he " has made 183 to 186; 3 Reeves, Hist. 193, 194, 274, some inquiries, which induce hiin to 379, 380. think that there still exist among the 8 1 Cooper, Pub. Rec. 355. I extract records at the Tower many petitions, or this statement from the Preface to the bills, addressed to the chancellor, during Calendars of the Proceedings in Chan- the reigns of Edw. I., Edw. II., and Edw. eery, &c, published by the Record Com- III., similar to those addressed to that missioners in 1827, and now before me. judge during the reign of Richard II., That preface is signed by John Bayley, selections from which have been printed, sub-commissioner. But it would seem, Upon a very slight research, several doc- that it was in fact drawn up by Mr. Ly- uments of this description are stated to sons, more than ten years before. Mr. have been discovered; but only one of Cooper, in his very valuable account of them has been seen by the compiler. It the Public Records, has published this is dated the 38th year of Edward III." preface verbatim ; and has also extracted 1 Cooper, Pub. Rec. Addenda, p. 454, a letter of Mr. Lysons, written on the 455. Mr. Barton says, that, so early as same subject in 1816. The. preface and the reign of Edward I., the chancellor letter seem almost identical in language, began to exercise an original and inde- 1 Cooper, Pub. Rec. ch. 18, p. 354 ; id. 384, pendent jurisdiction, as a court of equity, note (6) ; id. 455 to 458. In the Eng- . in contradistinction to a court of law. lish Quarterly Jurist, for January, 1828, Barton on Eq. Pr. Introd. p. 7. there will be found, in a review of these 40 EQUITY JURISPRUDENCE. [CH. II. § 48. From the proceedings, which have been published by the Record Commissioners, it appears that the chief business of the court of chancery in those early times did not arise from the in- troduction of uses of land, according to the opinion of most writers on the subject. Very few instances of applications to the chan- cellor on such grounds occur among the proceedings of the chan- cery during the first four or five reigns after the equitable jurisdiction of the court seems to have been fully established. Most of these ancient petitions appear to have been presented in conse- quence of assaults, and trespasses, and a variety of outrages, which were cognizable at common law ; but for which the party com- plaining was unable to obtain redress, in consequence of the maintenance and protection afforded to his adversary by some powerful baron, or by the sheriff, or by some officer of the county in which they occurred. 1 § 49. If this be a true account of the earliest known exercises of equitable jurisdiction, it establishes the point that it was princi- pally applied to remedy defects in the common-law proceedings ; and, therefore, that equity jurisdiction was entertained upon the same ground which now constitutes the principal reason of its in- terference ; namely, that a wrong is done, for which there is no plain, adequate, and complete remedy in the courts of common law. 2 And in this way great strength is added to the opinions of Lord Hale and Lord Hardwicke, that its jurisdiction is in reality the residuum of that of the Commune Concilium or Aula Regis, not conferred on other courts, and necessarily exercisible by the crown, as a part of its duty and prerogative to administer justice and equity. 3 The introduction of Uses or Trusts at a later period may have given new activity and extended operation to the juris- diction of the court ; but it did not found it. The redress given by the chancellor in such cases was merely a new application of l This passage is a literal transcript recede from the reign of Richard II. and from the Preface to the Calendars in advance to modern times, the cases be- Chancery ; and it is fully borne out by come of a more mixed character, and the examples of those bills and petitions, approach to those now entertained in giren at large in the same work. Mr. chancery. Cooper, in his own work on the Public a See Treatise on Subpoena, ch. 2 ; Records, has given an abstract, or mar- Harg. Law. Tracts, p. 333, 334. ginal note, of all the examples thus given, 8 See Eunomus, Dial. 3, § 60 ; 1 Eq. from the reign of Richard II., to the reign Abrid. Courts, B. (o); ante, § 42. See of Richard III., amounting in number to the British and Foreign Quarterly Re- more than one hundred. 1 Cooper, Pub. view, No. 27, Dec. 1842, p. 167, 168, 172, Rec, 359, 373; id. 377 to 385. As we 173. § 48-50.] ORIGIN AND HISTORY. 41 the old principles of the court ; since there was no remedy at law to enforce the observance of such uses or trusts. 1 § 50. From this slight review of the origin and progress of equitable jurisdiction in England, it cannot escape observation how naturally it grew up, in the same manner, and under the same circumstances, as the equitable jurisdiction of the Prator at Rome. Each of them arose from the necessity of the thing in the actual administration of justice, and from the deficiencies of the positive law (the lex scripta), or from the inadequacy of the remedies in the prescribed forms to meet the full exigency of the particular case. It was not an usurpation for the purpose of acquiring and exercising power ; but a beneficial interposition, to correct gross injustice, and to redress aggravated and intolerable grievances. 2 1 See 3 Black. Coram. 52 ; 3 Reeves, Hist. 379, 381; 1 "Wooddes. Lect. vi. p. 174, 176, 178, 182 ; Eunomus, Dial. 3, § 60 ; Parkes, Hist. Chan. 28 to 81. The view which is here taken of the subject is confirmed by the remarks of the com- missioners, under the Chancery Commis- sion, in the 50th George III., whose report was afterwards published by parliament in 1826. The passage to which allusion is made is as follows : " The proceedings in the courts of common law are simple, and generally founded on certain writs of great antiquity, conceived in prescribed forms. This adherence to prescribed forms has been considered as important to the due administration of justice in common cases. But, in progress of time, cases arose in which full justice could not be done in the courts of common law, according to the practice then prevail- ing. And, for the purpose of obtaining an adequate remedy, in such cases, resort was had to the extraordinary jurisdiction of the courts of equity, which alone had the power of examining the party on oath, and thereby acting through the medium of his conscience, and of procur- ing the evidence of persons not amenable to the jurisdiction of the courts of com- mon law, and whose evidence therefore it was, in many cases, impossible to obtain without the assistance of a court of equity. The application to this extra- ordinary jurisdiction, instead of being in the form of a writ, prescribed by settled law, seems always to have been in the form of a petition of the party or parties aggrieved, stating the grievance, the de- fect of remedy by proceedings in the courts of common law, and the remedy, which, it was conceived, ought to be administered. This mode of proceeding unavoidably left every complaining party to state his case, according to the par- ticular circumstances, always asserting that the party was without adequate remedy at the common law." The re- viewer of the early proceedings in chan- cery, in the English Jurist, for January, 1828, concludes his observations in the following manner : " It is, we think, established to demonstration, that the general jurisdiction of the court was de- rived from that extensive judicial power, which, in early times, the king's ordinary council had exercised ; but that it arose gradually and insensibly, as circum- stances occurred, and occasions seemed to demand it ; and that, having so arisen, it afterwards settled down by equally slow degrees, and in consequence of occa- sional resistance, excited to its encroach- ing and despotic spirit, appears to us to be equally as demonstrable." 1 English Quarterly Jurist, p. 350. 2 1 Karnes on Equity, Introd. p. 19; Butler's Horae Jurid. § v. 3, p. 43 to 46 ; id. App. note 3, p. 130. Those who have a curiosity to trace the origin and history 42 EQUITY JUEISPEUDENCB. [CH. U. § 51. But, be the origin of the equity jurisdiction of the court of chancery what it may, from the time of the reign of Henry VI., it constantly grew in importance ; 1 and, in the reign of Henry VIII., it expanded into a broad and almost boundless jurisdiction under the fostering care and ambitious wisdom and love of power of Cardinal Wolsey. 2 Yet (Mr. Reeves observes), after all, not- withstanding the complaints of the cardinal's administration of justice, he has the reputation of having acted with great ability in the office of chancellor, which lay heavier upon him than it had upon any of his predecessors, owing to the too great care with which he entertained suits, and the extraordinary influx of busi- ness, which might be attributed to other causes. 3 Sir Thomas More, the successor to the cardinal, took a more sober and limited view of equity jurisprudence, and gave public favor as well as dignity to the decrees of the court. But still there were clamors from those who were hostile to equity during his time ; and espe- cially to the power of issuing injunctions to judgments and other proceedings in order to prevent irreparable injustice. 4 This con- troversy was renewed with much greater heat and violence in the reign of James I. upon the point, whether a court of equity could give relief for or against a judgment at common law ; and it was mainly conducted by Lord Coke against, and by Lord Ellesmere in favor of the chancery jurisdiction. At last, the matter came directly before the king, and, upon the advice and opinion of very learned lawyers, to whom he referred it, his majesty gave of the Praetor's authority in Rome, and sioners was in the time of Cardinal Wol- the gradual development, or assumption sey. It will be found in Rymer's Foe- of jurisdiction by him, will find ample dera, torn. 14, p. 299; Parkes, Hist, of means for this purpose in Taylor's Ele- Chan. 60, 61. It was in the same reign ments of the Civil Law, p. 210 to 216, that the master of the rolls (it is said), and in Heineccius De Edictis Prsetorum, under a like appointment, first set apart Lib. 1, cap. 6, per tot. The same com- and used to hear causes at the Kolls in plaints were made at Rome as in Eng- the afternoon. The master, who thus land, of the excess and abuse of author- first heard causes, was Cuthbert Tun- ity by the Praetors ; and the complaints stall. 4 Reeves, Hist, of the Law, 368, commonly ended in the same way. The 369 ; 5 Reeves, Hist. 160. But see Dis- jurisdiction was occasionally restricted ; course on the Judicial Authority of the but it was generally confirmed. See Master of the Rolls (1728), § 3, p. 83, &c. ; Butler's Horse Jurid. § v. 3, p. 43 to 46. id. § 4, p. 110, &c, ascribed to Sir Joseph i Parkes, Hist. Chan. 55, 56 ; 3 Jekyll. Reeves, Hist. 379 to 382. 8 4 Reeves, Hist. 370. 2 4 Reeves, Hist. 368, 369; Parkes, * Sir James Mackintosh's Life of Sir Hist. Chan. 61, 62; 4 Inst. 91, 92. It Thomas More; 4 Reeves, Hist. 370 to seems that the first delegation of the 376 ; Parkes, Hist. Chan. 63 to 65. powers of the lord chancellor to commis- § 51, 52.] ORIGIN AND HISTORY. 43 judgment in favor of the equitable jurisdiction in such cases. 1 Lord Bacon succeeded Lord Ellesmere ; but few of bis decrees, which have reached us, are of any importance to posterity. 2 But his celebrated ordinances for the regulation of chancery gave a systematical character to the business of the court ; and some of the most important of them (especially as to bills of review) still constitute the fundamental principles of its present practice. 3 § 52. From this period, down to the time when Sir Heneage Finch (afterwards Earl of Nottingham) was elevated to the Bench (in 1673), little improvement was made, either in the principles or in the practice of chancery ; * and none of the persons who held the seals were distinguished for uncommon attainments or learning in their profession. 3 With Lord Nottingham a new era commenced. He was a person of eminent abilities, and' the most incorruptible integrity. He possessed a fine genius, great liber- ality of views, and a thorough comprehension of the true princi- ples of equity ; so that he was enabled to disentangle the doctrines from any narrow and technical notions, and to expand the reme- dial justice of the court far beyond the aims of his predecessors. In the course of nine years, during which he presided in the court, he built up a system of jurisprudence and jurisdiction upon wide and rational foundations which served as a model for suc- ceeding judges, and gave a new character to the court; 6 and 1 1 Collect. Jurid. 23, &c. ; 1 Wooddes. 377; 2 Swanst. 24, note. There is a Lect. vi. p. 186 ; 3 Black. Comm. 54 ; curious anecdote related of Sir Thomas Parkes, Hist. Chan. 80. The controversy More, who invited the judges to dine gave rise to many pamphlets, not only with him, and, after dinner, showed them at the time, but in later periods. The the number and nature of the causes in learned reader, who is inclined to enter which he had granted injunctions to upon the discussion of these points, now judgments of the court of common law ; of no importance, except as a part of the and the judges, upon full debate of the juridical history of England, may consult matters, confessed that they could have advantageously the . following works : done no otherwise themselves. The Observations concerning the office of anecdote is given at large in Mr. Cooper's Lord Chancellor, published in 1651, and Lettres sur la Com de la ChanceUerie, Lett, ascribed (though it is said incorrectly) to 25, p. 185, note 1, from Roper's Life of Lord Ellesmere. (Discourse concerning Sir Thomas More, the Judicial Authority of the Master of 2 3 Black. Comm. 55. Rolls, 1728, p. 51.) A Vindication of the 8 See Bacon's Ord. in Chancery, by Judgment of King James, &c, printed in Beams, an Appendix to the first volume of Re- 4 3 Black. Comm. 55. ports in Chancery, and in 1 Collect. 5 See Parkes, Hist. Chan. 92 to 210. Jurid. 23, &c. ; the several Treatises on 6 Mr. Justice Blackstone has pro- the Writ of Subpoena in Chancery, and nounced a beautiful eulogy on him, in the Abuses and Remedies in Chancery, 3 Black. Comm. 56, from which the text in Hargrave's Law Tracts, p. 321, 425 ; is, with slight alterations, borrowed. See and 4 Reeves, Hist, of the Law, p. 370 to also 4 Black. Comm. 442. 44 EQUITY JURISPRUDENCE. [CH. II. hence lie has been emphatically called " the father of equity." J His immediate successors availed themselves very greatly of his profound learning and judgment. But a successor was still wanted, who with equal genius, abilities, and liberality, should hold the seals for a period long enough to enable him to widen the foundation and complete the structure, begun and planned by that illustrious man. Such a successor at length appeared in the person of Lord Hardwicke. This great judge presided in the court of chancery during the period of twenty years ; and his numerous decisions evince the most thorough learning, the most exquisite skill, and the most elegant juridical analysis. There reigns, throughout all of them, a spirit of conscientious and dis- criminating equity, a sound and enlightened judgment, as rare as it is persuasive, and a power of illustration from analogous topics of the law, as copious as it is exact and edifying. Few judges have left behind them a reputation more bright and enduring ; few have had so favorable an opportunity of conferring lasting bene- fits upon the jurisprudence of their country; and still fewer have improved it by so large, so various, and so important contribu- tions. Lord Hardwicke, like Lord Mansfield, combined with his judicial character the still more embarrassing character of a statesman, and, in some sort, of a minister of state. Both of them, of course, encountered great political opposition (whether rightly or wrongfully, it is beside the purpose of this work to in- quire) ; and it is fortunate for them, that their judicial labors are embodied in solid volumes, so that, when the prejudices and the passions of the times are passed away, they may remain open to the severest scrutiny, and claim from posterity a just and unim- peachable award. 2 § 53. This short and imperfect sketch of the origin and history 1 1 Mad. Ch. Pr. Preface, 13. See in Ex parte Greenway, 6 Ves. 812, said : Parkes, Hist. Chan. 211, 212, 213, 214 ; 1 "He (Lord Hardwicke) was one of the Kent, Comm. Lect. 21, p. 492 (2d edit.). greatest judges that ever sat in Westmin- 2 See 1 Kent, Comm. Lect. 21, p. 494 ster Hall." Those who wish to form just (2d edit.), and Lord Kenyon's opinion in notions of the great chancellors of suc- Goodtitle o. Otway, 7 T. R. 411. Mr. ceeding times, down to our own, may well Charles Butler, in his Reminiscences, has consult the same interesting pages, in given a sketch of Lord Hardwicke and which Lord Camden, Lord Thurlow, Lord Lord Mansfield, which no lawyer can Roslyn, Sir William Grant, and, though read without high gratification. Few last not least, the venerable Lord Eldon, men were better qualified to judge of are spoken of in terms of high, but dis- their attainments. 1 Butler's Reminis. criminating, praise. See 4 Kent's Comm. § 11, n. 1, 2, p. 104 to 116. Lord Eldon, Lect. 21, p. 494, 495 (2d edit.). § 52-54.] ORIGIN AND HISTORY. 45 of equity jurisdiction in England will be here concluded. It has not been inserted in this place from the mere desire to gratify those whose curiosity may lead them to indulge in antiquarian inquiries, laudable and interesting as it may be. But it seemed, if not indispensable, at least important, as an introduction to a more minute and exact survey of that jurisdiction, as adminis- tered in the present times. In the first place, without some knowledge of the origin and history of Equity Jurisdiction, it will be difficult to ascertain the exact nature and limits of that jurisdiction ; and how it can, or ought to, be applied to new cases, as they arise. If it be a mere arbitrary, or usurped jurisdiction, standing upon authority and practice, it should be confined within the very limits of its present range ; and the terra incognita, and the terra prohibita, ought to be the same, as to its boundaries. If, on the other hand, its jurisdiction be legitimate, and founded in the very nature of remedial justice, and in the delegation of authority in all cases, where a plain, adequate, and complete remedy does not exist in any other court, to protect acknowledged rights, and to prevent acknowledged wrongs (that is, acknowl- edged in the municipal jurisprudence), then it is obvious, that it has an expansive power, to meet new exigencies ; and the sole question, applicable to the point of jurisdiction, must from time to time be, whether such rights and wrongs do exist, and whether the remedies therefor in other courts, and especially in the courts of common law, are full, and adequate to redress. If the present examination (however imperfect) has tended to any result, it is to establish, that the latter is the true and constitutional predicament and character of the court of chancery. § 54. In the next place, a knowledge of the origin and history of equity jurisdiction will help us to understand, and in some measure to explain, as well as to limit, the anomalies, which do confessedly exist in the system. We may trace them back to their sources, and ascertain how far they were the result of acci- dental, or political, or other circumstances ; of ignorance, or per- versity, or mistake in the judges ; of imperfect development of principles; of narrow views of public policy; of the seductive influence of prerogative ; or, finally, of a spirit of accommodation to the institutions, habits, laws, or tenures of the age, which have long since been abolished, but have left the scattered frag- ments of their former existence behind them. We shall thus be 46 EQUITY JURISPRUDENCE. [CH. II. enabled to see more clearly, how far the operation of these anoma- lies should be strengthened or widened ; when they may be safely disregarded, in their application, to new cases and new circum- stances ; and when, though a deformity in the general system, they cannot be removed, without endangering the existence of other portions of the fabric, or interfering with the proportions of other principles, which have been moulded and adjusted with reference to them. § 55. In the next place, such a knowledge will enable us to pre- pare the way for the gradual improvement, as well of the science itself, as of the system of its operations. Changes in law, to be safe, must be slowly and cautiously introduced and thoroughly examined. He who is ill-read in the history of any law, must be ill-prepared to know its reasons as well as its effects. The causes or occasions of laws are sometimes as important to be traced out as their consequences. The new remedy to be applied may, other- wise, be as mischievous as the wrong to be redressed. History has been said to be philosophy teaching by examples ; and to no subject is this remark more applicable than to law, which is em- phatically the science of human experience. A sketch, however general, of the origin and sources of any portion of jurisprudence, may at least serve the purpose of pointing out the paths to be explored ; and, by guiding the inquirer to the very places he seeks, may save him from the labor of wandering in the devious tractsj and of bewildering himself in mazes of errors as fruitless as they may be intricate. . § 56. In America, equity jurisprudence had its origin at a far later period than the jurisdiction properly appertaining to the courts of common law. In many of the colonies, during their con- nection with Great Britain, it had either no existence at all, or a very imperfect and irregular administration. 1 Even since the 1 Equity jurisprudence scarcely had few years, given to their highest courts an existence, in any large and appropriate of law. In Vermont and Connecticut, it sense of the term, in any part of New Eng- had an earlier establishment ; in the for- land, during its colonial state. [1 Dane, mer State, since the Revolution ; and in Abridg. ch. 1, art. 7, § 51 ; 7 Dane, Abridg. the latter, a short time before the Revo- ch. 225, art. 1, 2.] In Massachusetts and lution. 2 Swift, Dig. p. 15, edit. 1823. Rhode Island, it still has but a very lim- In Virginia, there does not seem to have ited extent. [Full equity powers have been any court, having chancery powers, been recently given in Massachusetts.] earlier than the act of 1700, ch. 4 (3 Tuck- in Maine and New Hampshire, more gen- er's Black. App. 7). In New York, the eral equity powers have been, within a first court of chancery was established in § 54-56.] ORIGIN AND HISTORY. 47 Revolution, which severed the ties which bound us to the parent country, it has been of slow growth and cultivation; and there are still some States in whose municipal jurisprudence it has no place at all, or no place as a separate and distinct science. Even in those States in which it has been cultivated with the most success, and for the greatest length of time, it can scarcely be said to have been generally studied or administered, as a system of enlightened and exact principles, until about the close of the eighteenth century. 1 Indeed, until a much later period, when reports were regularly published, it scarcely obtained the general regard of the profession beyond the purlieus of its immediate offi- cers and ministers. Even in the State of New York, whose rank in jurisprudence has never been second to that of any State in the Union (if it has not been the first, among its peers), equity was scarcely felt in the general administration of justice, until about the period of the Reports of Caines and of Johnson. And, perhaps, it is not too much to say, that it did not attain its full maturity and masculine vigor, until Mr. Chancellor Kent brought to it the fulness of his own extraordinary learning, unconquerable dili- gence, and brilliant talents. If this tardy progress has somewhat checked the study of the beautiful and varied principles of equity in America, it has on the other hand enabled us to escape from the embarrassing effect of decisions which might have been made at an earlier period, when the studies of the profession were far more limited, and the Benches of America were occasionally, like that of the English Chancery in former ages, occupied by men who, whatever might have been their general judgment or integrity, were inadequate to the duties of their stations, from their want of 1701 ; but it was so unpopular, from its during the whole of its colonial existence ; powers being vested in the governor and and that the year 1790 is the true point council, that it had very little business at which we must fix the establishment until it was reorganized in 1778. [1 John, of equity in the jurisprudence of Penn- Ch. Rep. Preface ; Campb. and Camb. sylvania. It has since been greatly ex- American Chancery Digest, Preface, 6; panded by some legislative enactments. Blake's Chan. Introduct. viii.] In New See also 7 Dane, Abridg. ch. 225, art. 1, Jersey, it was established in 1705 (1 Fonbl. . 2. [A court of chancery existed in Penn- Eq. by Laussat, edit. 1831, p. 14, note), sylvania between the year 1720 and 1739, Mr. Laussat in his Essay on Equity, in with all the offices and machinery of a Pennsylvania (126), has given an account chancery court. See William H. Rawle's of its origin and progress and present Essay on Equity in Pennsylvania, 1 Perry state in that commonwealth (p. 16 to 31). on Trusts, § 10.] From this account we learn that the per- * 1 Dane, Abridg. ch. 1, art. 7, § 51 ; manent establishment of a court of equity 7 Dane, Abridg. ch. 225, art. 1, 2. was successfully resisted by the people 48 EQUITY JURISPRUDENCE. [CH. II. learning, or from their general pursuits. Indeed, there were often other circumstances which greatly restricted or impeded a proper choice ; such as the want of the due enjoyment of executive or popular favor by men of the highest talents, or the discourage- ment of a narrow and incompetent salary. § 57. The equity jurisprudence, at present exercised in America, is founded upon, coextensive with, and in most respects, conform- able to, that of England. It approaches even nearer to the latter than the jurisdiction exercised by the courts of common law in America approaches to the common law as administered in Eng- land. The common law was not in many particulars applicable to the situation of our country when it was first introduced. Whereas, equity jurisprudence, in its main streams, flows from the same sources here that it does in England, and admits of an almost universal application in its principles. The Constitution of the United States has, in one clause, conferred on the national judiciary cognizance of cases in equity as well as in law ; and the uniform interpretation of that clause has been, that, by cases in equity are meant cases, which, in the jurisprudence of England (the parent country), are so called, as contradistinguished from cases of the common law. 1 So that, in the courts of the United States, equity jurisprudence generally embraces the same matters of jurisdiction and modes of remedy as exist in England. 2 1 Robinson v. Campbell, 3 Wheaton, gan, Iowa, Arkansas, and Oregon com- 212, 221, 223; Parsons o. Bedford, 3 Pe- pose the second class. These States ters, Sup. Ct. 433, 447; 3 Story, Comm. hare no separate courts of chancery; on Const. 506, 507 ; id. 644, 645 ; V. S. but the common-law judges are author- v. Howland, 4 Wheaton, 115; 7 Dane, ized to administer the rules of equity in Abridg. ch. 225, art. 1. cases properly brought before them ac- 2 See Foster v. Swasey, 2 Wood. & cording to the statutes in that respect in Min. 219. [The United States may be the several States. (3) The 'third class divided into three classes: (1) The States embraces all, or nearly all, the other of Vermont, New Jersey, Maryland, Ken- States. In these States, the forms of tucky, Delaware, Tennessee, Mississippi, actions, writs, and bills in equity, have and Alabama. In these eight States dis- been abolished, and codes of practice tinct and separate courts of chancery are have been established, which obliterate established, presided over by a chancel' all- the distinctions between actions at lor. The English courts of chancery are law of the various kinds as known to the models of these courts, and equity is the common law and bills in equity. In administered in them in nearly the same these States, the proceedings before the manner in which it is administered in courts are commenced by a petition England. (2) The States of Maine, which contains a statement of the case New Hampshire, Massachusetts, Ehode as made by the plaintiff; the defendant Island, Connecticut, Pennsylvania, Vir- files an answer containing his view of ginia, West Virginia, North Carolina, the case. The court then hears the Georgia, Illinois, Texas, Florida, Michi- case, with or without a jury, and ap- § 56-58.] ORIGIN AND HISTORY. 49 § 58. In nearly all the States in which equity jurisprudence is recognized, it is now administered in the modes, and according to the forms which appertain to it in England ; that is, as a branch of jurisprudence, separate and distinct from the remedial justice of courts of common law. 1 In Pennsylvania, it was formerly admin- istered through the forms, remedies, and proceedings of the com- mon law ; and was thus mixed up with legal rights and titles in a manner not easily comprehensible elsewhere. 2 This anomaly has been in a considerable degree removed by some recent legislative enactments. In some of the States in the Union, distinct courts of equity are established ; in others, the powers are exercised con- currently with the common -law jurisdiction by the same tribunal, being at once a court of law and a court of equity, somewhat analogous to the case of the Court of Exchequer in England. In others, again, no general equity powers exist ; but a few specified heads of equity jurisprudence are confided to the ordinary courts of law, and constitute a limited statutable jurisdiction. 3 plies the rules of the common law or of equity, as the justice of the case seems to require. Thus, whatever may be the form of proceedings in the several States, the great principles and rules of equity jurisprudence are administered in them all. The so-called code in New York seems to be the model after which several States have framed codes of practice. See Willard's Eq. Jur. Introd. Troost v. Davis, 31 Md. 34. The practice estab- lished by these codes is now substan- tially adopted in England. By the act of Aug. 5, 1873, Stat. 36 & 37 Vict. ch. 66, (see L. R. 8, Stats. 306, 307, 319), the courts of chancery, Queen's Bench, Common Pleas, Exchequer, Admiralty, Probate, Divorce and Matrimonial Causes, and the London Court of Bankruptcy, are consolidated into one court of two divi- sions, called Her Majesty's High Court of Justice and Her Majesty's High Court of Appeal. The High Court of Justice is to have not exceeding twenty-one justices, and the High Court of Appeals is to consist of not exceeding five ex officio judges, and so many ordinary judges as may be appointed, not exceeding nine. The act provides that if a plaintiff or defendant claims any equitable estate or relief or defence, in any case before any eq. jur. — vol. i. 4 judge, he shall have the same relief as ought to have been given in the court of chancery before the act.] 1 Fonbl. on Eq. by Laussat (edit. 1831), p. 13 to 20; 7 Dane's Abridg. ch. 225, art. 1,2. 2 Id. 18 to 20. 8 Mr. Chancellor Kent, in a note to his Commentaries, has given a brief state- ment of the actual organization of equity jurisdiction in all the States ; to which I gladly refer the learned reader. 4 Kent, Comm. Lect. 58, p. 163, note (d). A fuller account may be found in the preface to Campbell and Cambreleng's American Chancery Digest (edit. 1828), in Mr. Laus- sat's edition of Eonblanque on Equity, vol. 1, p. 11 to 20 (edit. 1831) ; and in Mr. Laussat's Essay on Equity in Pennsyl- vania, App. (1826). [A very succinct statement of the legislation in the several States may also be found in Mr. Bis- pham's Treatise on Equity, p. 16-23.] As the systems of the different States are, in many cases, subject to legislative author- ity, which is frequently engaged in intro- ducing modifications, a more minute detail would scarcely be of any perma- nent importance to the profession. The article on Chancery Jurisdiction, in the second volume of the American Jurist, 50 EQUITY JURISPRUDENCE. [CH. III. CHAPTER III. GENERAL VIEW OP EQUITY JURISDICTION. [* § 59. Old definitions of equity jurisdiction, fraud, accident, and trust. § 60, 61. Defects of the definition, that the law extends to some such cases, and others not reached by equity. § 62. The true definition found only in a specific enumeration of the subjects. § 63-64 g. Maxims, in equity. Equity follows the law. Where there is equal equity the law prevails. The first in- time, all other things being equal, is first in right. Who seeks equity must do equity. Equality is equity. Equity regards that as done, often, which ought to be done. § 64 A-64 k. General rules affecting the jurisdiction of courts of equity. 1. If courts of equity once assume jurisdiction of a subject, they will not relinquish it, because courts of law subsequently entertain the same jurisdiction. 2. When courts of equity once acquire jurisdiction of a cause for any purpose, they will ordinarily proceed to a final determination of it. § 65. The cases not uniform as to this rule, so far as bills of discovery. § 66. Difficulty in fixing the exact rule as to discovery. § 67. If discovery sought in matters of account, equity will finish the case. § 68. So also in matters of fraud, accident, and mistake. § 69. Exceptions stated. § 70. Beyond these limits, it is difficult to fix any boundaries to equity jurisdic- tion, consequent upon discovery. § 71. Some American cases claim general equity jurisdiction upon the fact of discovery being obtained. § 72. Exceptions stated. § 73, 74. The rule does not extend beyond cases appropriate to equitable control, and then under restrictions. § 74 a-74 e. The English rule, upon this subject, explained and vindicated, and its just limits more specifically defined.] § 59. Having traced out the nature and history of Equity Juris- prudence, we are naturally led to the consideration of the various subjects, which it embraces, and the measure and extent of its jurisdiction. Courts of equity, in the exercise of their jurisdiction, may, in a general sense, be said to differ from common law, in the modes of trial, in the modes of proof, and in the modes of relief. One or more of these elements will be found essentially to enter, as an ingredient, into every subject over which they exert their authority. Lord Coke has, in his summary manner, stated, that p. 314, contains many very valuable sug- jurisprudence. See also 7 Dane's Abridg. gestions on this subject, and exhibits in a ch. 225, art. 1, 2. striking manner the importance of equity § 59-61.] GENERAL VIEW. 51 three things, are to be judged of in the court of conscience or equity : covin, accident, and breach of confidence ; 1 or, as we should now say, matters of fraud, accident, and trust. Mr. Justice Blackstone has also said, that courts of equity are established " to detect latent frauds and concealments which the process of the courts of law is not adapted to reach ; to enforce the execution of such matters of trust and confidence as are binding in con- science, though not cognizable in a court of law ; to deliver from such dangers as are owing to misfortune, or oversight ; and to give a more specific relief, and more adapted to the circumstances of the case, than can always be obtained by the generality of the rules of the positive or common law." 2 § 60. These, as general descriptions, are well enough ; but they are far too loose and inexact to subserve the purposes of those who seek an accurate knowledge of the actual, or supposed, boundaries of equity jurisdiction. Thus for example although fraud, accident, and trust are proper objects of courts of equity, it is by no means true, that they are exclusively cognizable therein. On the contrary, fraud is, in many cases, cognizable in a court of law. Thus for example reading a deed falsely to an illiterate person, whether it be so read by the grantee, or by a stranger, avoids it as to the other party, at law. 8 And, sometimes, fraud, such as fraud in obtaining a will, or devise of lands, is exclusively cognizable there. 4 Many cases of accidents are remediable at law, such as losses of deeds, mistakes in accounts and receipts, impossibilities in the strict per- formance of conditions, and other like cases. And even trusts, though in general of a peculiar and exclusive jurisdiction in equity, are sometimes cognizable at law ; as, for instance, cases of bail- ments, and that larger class of cases, where the action for money had and received for another's use is maintained ex aequo et bono. & § 61. On the other hand, there are cases of fraud, of accident, 1 4 Inst. 84 ; Com. Dig. Chancery, Z. ; 8 Thoroughgood's case, 2 Co. 9 a ; Ho- 3 Black. Comm. 431 ; 1 Bq. Abr. Courts, bart, 296 ; id. 126, 330, 426 ; Shutter's case, B. § 4, p. 130 ; 1 Dane's Abridg. ch. 6, art. 12 Co. 90 ; Jenkin's Cent. 166. 1, § 3 ; Earl of Bath v. Sherwin, Prec. Ch. * 1 Hovenden on Frauds, Introd. p. 261; S. c. 1 Bro. Pari. Cas. 266; Rex v. 16; id. ch. 10, p. 252; 1 Dane, Abridg. Hare & Mann, 1 Str. 149, 150, Yorke, ch. 9, art. 1, § 3; 3 Wooddes. Lect. lvi. arguendo; 1 Wooddes. Lect. vii. p. 208, p. 477. 209; Bac. Abridg. Court of Chancery, 6 3 Black. Comm. 431, 432; 1 Wood- C. des. Lect. vii. p. 208, 209. 2 1 Black. Comm. 92. And Bee 3 Black. Comm. 429 to 432. 52 EQUITY JURISPRUDENCE. [CH. IH. and of trust, which neither courts, of law, nor of equity, presume to relieve, or mitigate. 1 Thus, a man may most unconscientiously wage his law in an action of deht ; and yet, the aggrieved party will not be relieved in any court of law or equity. 2 And, where the law has determined a matter, with all its circumstances, equity cannot (as we have seen) intermeddle against the positive rules of law. 3 And, therefore, equity will not interfere in such cases, not- withstanding accident, or unavoidable necessity.* This was long ago remarked by Lord Talbot, who, after saying, " There are instances, indeed, in which a court of equity gives remedy, where the law gives none," added : " But where a particular remedy is given by law, and that remedy is 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." 5 And upon this ground, relief was refused to a creditor of the wife against her husband, after her death, though he had received a large fortune with her on his marriage. 6 So, a man may by accident omit to make a will, appointment, or gift, in favor of some friend or relative; or he may leave his will unfinished; and yet there can be no relief. 7 And many cases of the non-per- formance of conditions precedent are equally without redress. 8 So, cases of trust may exist, in which the parties must abide by their own false confidence in others, without any aid from courts of justice. Thus, in cases of illegal contracts, or those in which one party has placed property in the hands of another for illegal pur- poses, as for smuggling, if the latter refuses to account for the proceeds, and fraudulently or unjustly withholds them, the former must abide by his loss ; for, In pari delicto melior est conditio possi- dentis, et defendentis, is a maxim of public policy equally respected in courts of law and courts of equity. 9 And, on the other hand, 1 1 Fonbl. Eq. B. 1, ch. 1, § 3, p. 16 . § 7, and note (x) ; Francis, Max. M. 9, 2 Francis, Max. Introd. 6, 7. § 4. 3 Fonbl. Eq. B. 1, ch. 1, § 3 ; 1 Hovend. » i Madd. Ch. Pr. 35 ; Popham v. Bam- on Frauds, Introd. p. 12, 13. field, 1 Vern. 83 ; Lord Falkland v. Bertie, 4 Ibid.; 1 Dane's Abridg. ch. 9, art. 1, 2 Vern. 333; 7 Dane's Abridg. ch. 225, § 2. art. 4, § 6. 6 Heard v. Stanford, Cas. Temp. Talb. 9 Holman v. Johnson, Cowper, 341 ; 174. Armstrong v. Toler, 11 Wheaton, 258; 6 BMd. Hannay v. Eve, 3 Cranch, 242 ; Grounds i See Whitton v. Russell, 1 Atk. 448, and Rudim. of the Law, M. 347, p. 260, 449; 1 Madd. Ch. Pr. 39; id. 45, 46; edit. 1751 ; 7 Dane's Abridg. ch. 226, art. 1 Wooddes. Lect. vii. p. 214 ; Com. Dig. 18 ; Smith v. Bromley, Doug. 696, note. Chancery, 3 F. 8 ; 1 Fonbl. B. 1, ch. 3, The civil law has a like maxim, — Faria § 61-64.] GENERAL MAXIMS. 53 "where the fraud is perpetrated by one party only, still, if it involves a public crime, and redress cannot be obtained, except by a dis- covery of the facts from him personally, the law will not compel him to accuse himself of a crime ; and therefore the case is one of irremediable injury. 1 [As a general principle, a court of equity cannot enforce rights which are not recognized and protected by municipal jurisprudence.] 2 § 62. These are but a few among many instances, which might be selected, to establish the justice of the remark, that even in cases professedly within the scope of equity jurisdiction, such as fraud, accident, and trust, there are many exceptions ; and that all that can be ascribed to such general allegations is general truth. 3 The true nature and extent of equity jurisdiction, as at present administered, must be ascertained by a specific enumeration of its actual limits in each particular class of cases, falling within its remedial justice. 4 This will, accordingly, be done in the subse- quent pages. [* § 63. We may here notice some of those maxims and general axioms, which are of frequent recurrence in the discussion of equity jurisprudence.] § 64. In the first place it is a common maxim, that equity fol- lows the law, JEquitas sequitur legem. 6 This maxim is susceptible delicta mutua compensatione tolluntur. Atwood v. Fisk, 101 Mass. 363. See post, Breviar. Advocat. title Delictum. Paria § 257 a, § 298. sunt non esse aliquid, vel non esse legi- l Grounds and Rudim. of the Law, time. Id. Paria ; Batty v. Chester, 5 Bea- Introd. 6, 7 ; id. M. 306, p. 225, edit. 1751 ; yan, 103. 2 Fonbl. Eq. B. 6, ch. 3, § 5. See Dixon Conveyances in fraud of creditors v. Enoch, L. R. 13 Eq. 394, for a statutory seem by the recent cases to be enforce- " exception to the rule in England, able between the parties in equity and at 2 [Elborough v. Ayres, L. R. 10 Eq. 367 ; law. Harvey v. Varney, 98 Mass. 118; Carlton v. Salem, 103 Mass. 141; Hend- Brooks b. Martin, 2 Wal. (U. S.) 70; ricks v. Toole, 29 Mich. 340.] Springer v. Drosch, 32 Ind 486 ; Clemens ' 8 See Com. Dig. Chancery, 3 F, 1 to 9 ; v. Clemens, 28 Wis. 637. See FitzGerald 7 Dane's Abridg. ch. 225, § 6 ; 1 Wooddes. v. Forristall, 48 111. 228. And it seems in Lect. vii. p. 200 to 215. See Clough v. all cases of statutory illegality the intent Ratcliffe, 1 De Gex & Smale, 164. and policy of the statute must be looked 4 Dr. Dane, in his Abridgment and at in deciding whether the contract can Digest, has devoted two large chapters be enforced or not. Thus payment was to the consideration of the System and enforced of a loan to one of its directors Practice of Equity, especially in the by a bank, made contrary to statute, it Courts of the United States. The dili- being the policy of the statute to protect gent student will not fail to avail himself the bank. Lester v. Howard Bank, 33 of this ample source of information. 7 Md. 558. Nor does the maxim imply any Dane's Abridg. ch. 225, 226, from p. 516 special favor to the debtor in the illegal to 639. contract ; he cannot come to equity to 6 1 Dane's Abridg. ch. 9, art. 1, § 2 ; have security for the debt delivered up. Grounds and Rudim. of the Law, M. 9 54 EQUITY JURISPRUDENCE. [CH. in. of various interpretations. It may mean, that equity adopts and follows the rules of law in all eases, to which those rules may, in terms, be applicable ; or it may mean, that equity, in dealing with cases of an equitable nature, adopts and follows the analogies fur- nished by the rules of law. 1 Now, the maxim is true in both of these senses, as applied to different cases and different circum- stances. It is universally true in neither sense ; or rather, it is not of universal application. 2 Where a rule, either of the common or the statute law, is direct, and governs the case with all its cir- cumstances, or the particular point, a court of equity is as much bound by it, as a court of law, and can as little justify a departure from it. 3 If the law commands, or prohibits a thing to be done, equity cannot enjoin the contrary, or dispense with the obligation. Thus, since the law has declared, in England, that the eldest son shall take by descent the whole undevised estate of his parent, a court of equity cannot disregard the canon of descent ; but must give full effect and vigor to it in all controversies, in which the title is asserted. 4 And yet, there are cases in which equity will control the legal title of an heir, general or special, when it would be deemed absolute at law ; and in which, therefore, so far from following the law, it openly abandons it. Thus, if a tenant in tail, not knowing the fact, should, upon his marriage, make a settle- ment on his wife, and the heir in tail should engross the settlement, and conceal the fact, although at law his title would be absolute, a court of equity would award a perpetual injunction against assert- ing it to the prejudice of the settlement. 5 So, if an heir-at-law should, by parol, promise his father to pay his sisters' portions, if he would not direct timber to be felled to raise them ; although dis- charged at law, he would in equity be deemed liable to pay them, in the same way, as if they had been charged on the land. 6 And many cases of a like nature may be put. 7 (edit. 1751). See Earl of Bath v. Sherwin, 3 Kemp v. Pryor, 7 Ves. 249 to 251; 10 Mod. 1, 3 ; Cowper v. Cowper, 2 P. 2 Bac. Abridg. Court of Chancery, C. Will. 753. 4 Grounds and Rudim. of the Law, M. i 3 Wooddes. Leet. lvi. p. 479 to 482. 9, p. 16 (edit. 1751) ; Doct. and Stud. Dial. 2 Sir Thomas Clarke (Master of the 1, ch. 20. Eolls), in one of his elaborate opinions, 6 Raw v. Potts, Prec. Ch. 35 ; s. c. 2 has remarked in regard to uses and trusts, Vern. 239. that, at law, the legal operation controls 6 Dalton v. Poole, 1 Vent. 318. the intent ; but, in equity, the intent con- 7 1 Ponbl. Eq. B. 1, ch. 3, § 4 ; Hobbs trols the legal operation of the deed. v. Norton, 1 Vern. 136 ; Neville v. Wilkin- Burgess v. Wheate, 1 "W. Black. 137. son, 1 Bro. Ch. C. 643; Devenish v. § 64, 64 a.] GENERAL MAXIMS. 55 § 64 a. So, in many cases, equity acts by analogy to the rules of law in relation to equitable titles and estates. Thus, although the statutes of limitations are in their terms applicable to courts of law only ; yet equity, by analogy, acts upon them, and refuses relief under like circumstances. Equity always discountenances laches ; and holds, that laches is presumable in cases where it is positively declared at law. Thus, in cases of equitable titles in land, equity requires relief to be sought within the same period in which an ejectment would lie at law ; and, in cases of personal claims, it also requires relief to be sought within the period prescribed for per- sonal suits of a like nature. 1 And yet there are cases, in which the statutes would be a bar at law, but in which equity would, notwith- standing, grant relief; and on the other hand, there are cases, where the statutes would not be a bar at law, but where equity, not- withstanding, would refuse relief. 2 But all these cases stand on special circumstances, which courts of equity can take notice of when courts of law may be bound by the positive bar of the stat- utes. And there are many other cases, where the rules of law and equity, on similar subjects, are not exactly coextensive, as to the recognition of rights, or the maintenance of remedy. 3 Thus, a person may be tenant by the courtesy of ffls wife's trust estate ; but she is not entitled to dower in his trust estate. 4 So where a power is defectively executed, equity will often aid it ; whereas, at law, the act is wholly nugatory. 3 Baines, Prec. Ch. 3 ; Oldham v. Litchfield, 2 See Pickering v. Lord Stamford, 2 2 Freem. 285 ; Thynn v. Thynn, 1 Vern. Ves. Jr. 279; id. 582; 2 Madd. Ch. Pr! 296 ; 11 Ves. 638, 639 ; Gilb. Lex Praetor. 244 to 247 ; Mitford Eq. PI. 269 to 274 > 336; Sugden, Vendors (7th edit.), p. 717, Blanshard on Limit, ch. 4, p. 61, 81, 82, 718; 3 Wooddes. Lect. lix. p. 479 to 482; 83; 1 Fonbl. Eq. B. 1, ch. 4, § 27, note id. 486, 490, 491. These cases proceed (q) ; Stackhouse v. Barnston, 10 Ves. 466 ; upon the ground of suppressing fraud, by Bond v. Hopkins, 1 Sch. & Lef . 413 ; 1 not allowing a party to use a mere tech- Eonbl. Eq. B. 1, ch. 1, § 3, note (g) ; Cow- nical advantage for the accomplishment per v. Cowper, 2 P. Will. 753. of positive injustice ; and in a manner 8 See Earl of Bath v. Sherwin, 10 Mod. ■which the law never contemplated. So 1, 3; s. c. 1 Bro. Pari. C. 270; Doc. and that equity here does not dispense with Stud. Dial. 1, ch. 20. the law, but merely supplies its defects. i Cruise, Dig. tit. 12, ch. 2, § 15 ; 1 [1 Perry on Trusts, § 181, 182.] Fonbl. Eq. B. 1, ch. 6, § 9, note (*). [See 1 Blanshard on Limit, eh. 4, p. 61 ; Ed- the legislation upon this subject in the sell v. Buchanan, 2 Ves. Jr. 83 ; Com. Dig. several States ; also, 4 Kent, Comm. p. 43- Chanc. 1; Mitford Eq. PI. 269 to 274; 1 47.] Madd. Ch. Pr. 79, 80 ; 2 Madd. Ch. Pr, 5 i r nbl. Eq. B. 1, ch. 1, § 7, and note . 244 ; Smith v. Clay, 3 Bro. Ch. 640, note ; ibid. ; id. B. ch. 4, § 25, note {h). Chalmondeley v. Clinton, 2 Jac. & Walk. 156 ; post, § 529. 56 EQUITY JURISPRUDENCE. [CH. III. § 64 b. Other illustrations of the same maxim may be drawn from the known analogies of legal and trust estates. In general, in courts of equity, the same construction and effect are given to perfect or executed trust estates, as are given by courts of law to legal estates. The incidents, properties, and consequences of the estates are the same. The same restrictions are applied, as to creating estates, and bounding perpetuities, and giving absolute dominion over property. The same modes of construing the lan- guage and limitations of the trusts are adopted. 1 But there are exceptions, as well known as the rule itself. Thus, executory trusts are treated as susceptible of various modifications and con- structions, not applicable to executed trusts. 2 And even at law, the words in a will are or may be differently construed, when ap- plied to personal estate, from what they are when applied to real estate. 3 In short, it may be correctly said, that the maxim, that equity follows the law, is a maxim liable to many exceptions ; and that it cannot be generally affirmed, that, where there is no remedy at law in the given case, there is none in equity ; or, on the other hand, that equity, in the administration of its own prin- ciples, is utterly regardless of the rules of law. 4 § 64 c. Another maxim is, that where there is equal equity, the law must prevail. 5 And this is generally true ; for, in such a case, the defendant has an equal claim to the protection of a court of equity for his title, as the plaintiff has to the assistance of the court to assert his title ; and then, the court will not interpose on either side ; for the rule there is, " In sequali jure melior est conditio possidentis." 6 And the equity is equal between persons, who have been equally innocent and equally diligent. It is upon this ac- count, that a court of equity constantly refuses to interfere, either for relief or discovery, against a bond fide purchaser of the legal estate for a valuable consideration, without notice of the adverse 1 3 Wooddes. Lect. lix. p. 479 to 482 1 Fonbl. Eq. B. 1, ch. 3, § 1, p. 147, note ford, Eq. PI. 274 ; Jeremy, Eq. Jurisd. 285 ; (b) ; Cowper v. Cowper, 2 P. Will. 753 [1 Perry on Trusts, § 357-376]. 2 3 Wooddes. Lect. lix. p. 480 to 482 § 3, and note (c) ; id. B. 3, ch. 3, § 1 ; Mit- Fitzsimmons v. Ogden, 7 Cranch, 2, 18 ; Caldwell r. Ball, 1 T. R. 214. [See New- ton v. McLean, 41 Barb. 285.] 1 Fonbl. Eq. B. 1, ch. 3, § 1, p. 147, note « Mitf. Eq. PI. [215] 274; 1 Fonbl. Eq. (I) ; [1 Perry on Trusts, § 359]. B. 1, ch. 4, § 25; id. ch. 5, § 3; 1 Mad. » [1 Perry on Trusts, § 363, 364.] Ch. Pr. 170, 171 ; Jeremy on Equity Ju- * Kemp v. Pryor, 7 Ves. 249, 250. risd. 283 ; Jerrard v. Saunders, 2 Ves. Jr. s 1 Fonbl. Eq. B. 1, ch. 4, § 25, and 454; 2 Fonbl. Eq. B. 3, ch. 3, § 1; [Pratt v. note ; id. ch. 5, § 3 ; 2 Fonbl. Eq. B. 6, ch. 3, Clemens, 4 W. Va. 443]. § 64 5-64 d.] GENERAL MAXIMS. 57 title, if he chooses to avail himself of the defence at the proper time and in the proper mode. 1 And it extends its protection equally, if the purchase is originally of an equitable title without notice, and afterwards, with notice, the party obtains or buys in a prior legal title, in order to support his equitable title. 2 This doctrine applies strictly in all cases, where the title of the plaintiff, seeking relief, is equitable. But it yet remains a matter of some doubt, whether it is applicable to the case of a plaintiff, seeking relief upon a legal title. 3 The purchaser, however, in all cases, must hold a legal title, or be entitled to call for it in order to give him a full pro- tection of his defence ; for, if his title be merely equitable, then he must yield to a legal and equitable title in the adverse party. 4 So, the purchaser must have paid his purchase-money before notice, for otherwise he will not be protected ; and if he have paid a part only, he will be protected pro tanto only. 5 § 64 d. But, even when the title of each party is purely equi- table, it does not always follow that the maxim admits of no preference of the one over the other. For, where the equities are 1 See Sugden on Vendors (7th edit.), ch. 16, p. 713, &c. § 10 ; id. ch. 18, p. 757, 762, 763; Grounds and Rudim. of the Law.M. 236 (edit. 1751) ; Story on Eq. PI- § 603, 604, 805, 806. 2 See Sugden on Vendors (7th edit.), ch. 16, p. 713, 728 ; 1 Fonbl. Eq. B. 1, ch. 4, § 25, note (e) ; post, § 108, 139, 154, 265, 381, 409, 434, 436; Grosvenor v. Allen, 9 Paige, 74, 76, 77 ; [Bassett v. Mosworthy, 2 Lead. Cas. in Eq. and notes]. 3 Sugden on Vendors, ch. 18 (7th edit.), p. 762, 763; id. ch. 18, 2 vol. 309, 310 (9th edit.) ; Jeremy, Eq. Juried. 285. It is an apparent anomaly in the general doctrine, that it should be inapplicable to a bill for relief founded on a legal title. Against such a bill, Lord Thurlow de- cided that a plea of a bond fide purchase, without notice, was no protection. Wil- liams v. Lambe, 3 Bro. Ch. C. 264. Lord Loughborough seems to have entertained a different opinion; and the point has been contested by some elementary writ- ers and supported by others. Mr. Belt, in his note to the case, 3 Bro. Ch. C. 264, insists on Lord Thurlow's doctrine being right ; so do Mr. Roper, and Mr. Beams. But Mr. Sugden treats it as incorrect. See Jerrard v. Saunders, 2 Ves. Jr. 454, 458; Sugden on Vendors (7th edit.), 762, 763; id. ch. 18 (9th edit.), 2 vol. 309, 310; Roper, Husband and Wife, 446, 447 ; post, § 410, note (1); id. § 436, 630, 631. In Collins v. Archer, 1 Russ. & Mylne, 284, 292, Sir John Leach followed the case of Williams v. Lambe; and held, that the fact that the party was a bona fide pur- chaser for a valuable consideration with- out notice, was not available as a defence against a plaintiff, who relies upon a legal title. On the other hand, Lord Abinger, in Payne v. Compton (2 Y. & Coll. 457, 461), held, that such a pur- chase was a good defence against any claim in equity by the owner of the legal estate. See also Wood v. Mann, 1 Sum- ner, 504. 4 Sugden on Vendors (7th edit.), and id. ch. 18 (9th edit.), 2 vol. p. 309, 310; id. ch. 18, p. 757 to 763; Grounds and Rudim. of the Law, M. 236 (edit. 1751) ; Com. Dig. Chancery, 4 W. 12 ; Davies v. Austen, 1 Ves. Jr. 247 ; Shirras v. Caig, 7 Cranch, 34 ; Whitfield v. Fausset, 1 Ves. 387 ; Jeremy on Equity Jurisd. 285. « Wood v. Mann, 1 Sumner, 506, 578; Flagg v. . Mann, 2 Sumner, 487 ; post, § 1502 ; [2 Perry on Trusts, § 221]. 58 EQUITY JURISPRUDENCE. [OH, in. in other respects equal, still another maxim may prevail, which is " Qui prior est in tempore, potior est in jure ; " for precedency in time will, under many circumstances, give an advantage, or prior- ity in right. 1 Hence, when the legal estate is outstanding, equi- table encumbrances must be paid according to priority of time. 2 And whenever the equities are unequal, there the preference is constantly given to the superior equity. 8 § 64 e. Another maxim of no small extent is, that he who seeks equity, must do equity. 4 This maxim principally applies to the party, who is seeking relief, in the character of a plaintiff in the court. Thus, for instance, if a borrower of money upon usurious interest seeks to have the aid of a court of equity in cancelling, or procuring the instrument to be delivered up, the court will not in- terfere in his favor, unless upon the terms, that he will pay the lender what is really and bond fide due to him. 6 But if the lender comes into equity, to assert and enforce his own claim under the instrument ; there the borrower may show the invalidity of the instrument, and have a decree in his favor and a dismissal of the bill, without paying the lender any thing, for the court will never assist a wrong-doer in effectuating his wrongful and illegal purpose. 6 And the like principles will govern in other similar cases, where the transaction is not, as between the parties, grossly fraudulent, or otherwise liable to just exception. 7 Many other illustrations of the maxim of a different nature, may readily be put. As, where a second encumbrancer seeks relief against a prior encumbrancer, who has a claim to tack a subsequent security, he shall not have it before paying both securities. So, where a 1 1 Fonbl. Equity, B. 1, eh. 4, § 25 j Hanson v. Keating, 4 id. 4 ; Bowser v. Fitzsimmons v. Ogden, 7 Cranch, 2 ; Colby, 1 id. 143 ; Secrest v. McKenna, 1 Beckett v. Cordley, 1 Brown, Ch. 358; Strob. Eq. 356 ; 7 B. Monroe, 571. Maekreth v. Symmons, 15 Ves. 354 ; Berry 5 [Sporrer v. Eifler, 1 Heisk. (Tenn.) v. Mutual Ins. Co., 2 Johns. Ch. 608. 633. So on the other hand, if the gran- See post, § 421 a ; Muir v. Schenck, tee in a usurious deed comes to equity 3 Hill, N. Y. 228 ; Cherry v. Monro, 2 to reform it, he must abate the usury. Barb. Ch. 618 ; Van Meter v. McFaddin, Corby v. Bean, 44 Mo. 379. See post, 8 B. Monroe, 435. § 301.] 2 Ibid, note (e). See Blake v. Hunger- 6 Fonbl. Eq. B. 1, ch. 1, § 3, note (A) ; ford, Pree. Ch. 158. id. B. 1, ch. 2, § 13; Mason u. Gardiner, 8 Jeremy, Eq. Jurisd. 285, 286. 4 Bro. Ch. C. 437. But see Corby v. 4 Grounds and Rudim. of the Law, M. Bean, 44 Mo. 379. 175; id. 179 (edit. 1751); Com. Dig. 'Peacock v. Evans, 16 Ves. 512; Chan. 3 F. 3 ; McDonald v. Neilson, 2 Grounds and Rudim. of the Law, M. 175, Cowp. 139 ; Farr v. Sheriffe, 4 Hare, 521 ; 179 (edit. 1751). § 64 d, 64 «.] GENERAL MAXIMS. 59 husband seeks to recover his wife's property and he has made no settlement upon her, he shall not have it without making a suit- able settlement. 1 So, where an heir seeks possession of deeds in the possession of a jointress, he shall not have relief, unless upon the terms of confirming her jointure. So, where a party seeks the benefit of a purchase made for him in the name of a trustee, who has paid the purchase-money, but to whom he is indebted for other advances, he shall not be relieved but upon payment of all the money due to the trustee. 2 1 [2 Perry on Trusts, § 626 et seq.] 2 Com. Dig. Chancery, 3 F. 3; Stur- gis v. Champneys, 5 Mylne & Craig, 97, 101, 102. In this case Lord Cottenham said : " Undoubtedly, for many purposes, this court, acting upon the principle of fol- lowing the law, deals with property com- ing under its cognizance from the legal estate being outstanding, according to the rights which would exist at law ; but that, is far from being universally true. Chol- mondeley v. Clinton (2 Mer. 171 ; 2 J. & W. 1), and the authorities upon which that decision was founded, are instances to the contrary. There are many cases in which this court will not interfere with a right which the possession of a legal title gives, although the effect be directly opposed to its own principles as admin- istered between parties, having equitable interests only, such as in case of subse- quent encumbrancers, without notice, gaining a preference over a prior encum- brancer by procuring the legal estate. It may be to be regretted, that the rights of property should thus depend upon acci- dent, and be decided upon, not according to any merits, but upon grounds purely technical. This, however, has arisen from the jurisdiction of law and equity being separate, and from the rules of equity (better adapted than the simplicity of the common law to the complicated transactions of the present state of soci- ety), though applied to subjects without its own exclusive jurisdiction, not having, in many cases, been extended to control matters properly subject to the jurisdic- tion of the courts of common law. Hence arises the extensive and beneficial rule of this court, that he who asks for equity must do equity ; that is, this court refuses its aid to give to the plaintiff what the law would give him if the courts of com- mon law had jurisdiction to enforce it, without imposing upon him conditions which the court considers he ought to comply with, although the subject of the condition should be one which this court would not otherwise enforce. If, there- fore, this court refuses to assist a hus- band who has abandoned his wife, or the assignee of an insolvent husband who claims against both, in recovering prop- erty of the wife, without securing out of it for her a proper maintenance and sup- port, it not only does not violate any principle, but acts in strict conformity with a rule by which it regulates its pro- ceedings in other cases." [If a party seek relief against interference with his water privilege, he may be required to discontinue a wrongful use of defendant's land connected with it. Comstock u. Johnson, 46 N. Y. 615. So an heir asking to set aside his deed to a widow, and for an account, must allow one-third of the income, though her dower has not been set out. Ames v. Ames, 1 Cinn. Sup. Ct. 559. And a person asking for partition in equity must pay his proportion of a mort- gage paid by the other party. Campbell v. Campbell, 21 Mich. 438. So a widow asking for her dower must account for what she has occupied beyond her third. McLaughlin v. McLaughlin, 5 C. E. Green, 190. One asking for relief from an over- assessment must pay what is justly due. Morrison v. Hershire, 32 la. 271 ; Smith v. Auditor-General, 20 Mich. 398 ; Merrill v. Humphrey, 24 Mich. 170; Board, &c. Montgomery County v. Elston, 32 Ind. 27. But it must clearly appear how much is due. Dean v. Charlton, 23 Wis. 590. And a co-surety, seeking relief from a judgment against him from the whole 60 EQUITY JURISPRUDENCE. [CH. III. § 64/. Another maxim of general use is, that equality is equity; or, as it is sometimes expressed, equity delighteth in equality. 1 And this equality, according to Bractpn, constitutes equity itself ; "JEquitas est rerum convenientia, quse paribus in causis paria jura desiderat, et omnia vere co-Eequiparat, et dicitur sequitas, quasi sequalitas." 2 This maxim is variously applied ; as, for example, to cases of contribution between co-contractors, sureties, and others ; to cases of abatement of legacies, where there is a defi- ciency of assets; to cases of apportionment of moneys due on encumbrances among different purchasers and claimants of dif- ferent parcels of the land ; and especially to cases of the marshal- ling and distribution of equitable assets. 8 For, although out of legal assets payment must be made of debts, in the course of debt, must pay his just proportion of the contribution. Creed v. Scraggs, 1 Heisk. 590. So if a party seeks relief from a contract payable in gold, he may be or- dered to pay in gold. Willard v. Taylor, 8 Wall. 557 ; Wales v. Coffin, 105 Mass. 328. But see McGoon v. Shirk, 54 111. 408. But if the contract calls for payment in a depreciated currency, and a tender in such currency has been tendered when due, a. payment in the currency may be decreed. Lohman o. Cranch, 19 Gratt. 331. One asking to be relieved from an invalid tax-deed, as a cloud upon the title, was relieved upon his paying all the taxes paid by the holder of the deed. Eeed v. Tyler, 56 111. 288. And so one could not have relief in equity by reason of a lost instrument (a deed from a father to a son, in confidence that he would not defraud his brother and sister). Phillips v. Phillips, 50 Mis. 603. This rule applies with equal force to a defendant attempting to make a defence in equity as to a plaintiff seek- ing relief. Tongue v. Nutwell, 31 Md. 302. Another rule analogous to the last is that a suitor must come into equity with clean hands. Thus, a party who seeks to set aside a transaction on the ground of fraud, must himself be free from any participation in the fraud. This, of course, is confined to the transaction in dispute ; for the court cannot go outside of the cause to inquire into the character or conduct of the plaintiff in other mat- ters, and it is confined to wilful miscon- duct ; for, if a party has refused to carry out his contract under a mistaken view of his rights, he may still have relief and an account. Lewis's App. 67 Penn. St. 153. But if one has fraudulently in- duced a person to buy in lands, whereby others are deceived, he cannot compel his confederate to convey to him. John «. Norris, 7 C. E. Green, 102 ; Walker v. Hill, 7 C. E. Green, 513 ; and see Bleak- ley's App., 66 Penn. St. 187; Allen v. Berry, 50 Miss. 90; Musselman v. Kent, 33 Ind. 452; Hibernian, &c, Society v. Ordway, 38 Cal. 679 ; Hunt v. Kowland, 28 la. 349. One who has wrongfully al- tered a written instrument cannot come into equity to reform it. Marcy v. Dun- lap, 6 Lans. 365. Nor will equity give any aid to the directors of a railroad upon a collusive contract. Paine v. Lake Erie, &c, E. R., 31 Ind. 283. And so the renewal of a lease was refused where the property had been used contrary to the terms of the lease. Gannett v. Albree, 103 Mass. 372. But fraud not connected with the transaction, or not injurious to the defendant, will not defeat an action. Meyer v. Sesser, 32 Ind. 294.] 1 Grounds and Rudim. of the Law, M. 91 (edit. 1751) ; Petit v. Smith, 1 P. Will. 9 ; Hulme v. Chitty, 9 Beavan, 437. 2 Bracton, Lib. 1, cap. 3, § 20; Plow- den, Comm. 467 ; Co. Litt. 24. 8 Grounds and Rudim. of the Law, M. 91 (edit. 1751); 1 Wooddes. Lect. lvi. p. 486, 487, 488, 490; Shepherd v. Guern- sey, 9 Paige, 357. §64/, 64 g. J GENERAL MAXIMS. 61 administration, according to their dignity and priority of right ; yet, as to equitable assets, all debts are generally deemed by courts of equity to stand in pari jure, and are to be. paid proportionally, without reference to their dignity, or priority of right at law. 1 And here we have another illustration of the doctrine, that equity does not always follow the law. 2 § 64 g. Another, and the last, maxim which it seems necessary to notice, is, that equity looks upon that as done, which ought to have been done. The true meaning of this maxim is, that equity will treat the subject-matter, as to collateral consequences, and incidents, in the same manner as if the final acts contemplated by the parties had been executed exactly as they ought to have been ; not as the parties might have executed them. 3 But equity will not thus consider things in favor of all persons ; but only in favor of such as have a right to pray that the acts might be done. 4 And the rule itself is not, in other respects, of universal application ; although Lord Hardwicke said that it holds in every case except in dower. 5 The most common cases of the application of the rule are under agreements. All agreements are considered as per- formed, which are made for a valuable consideration, in favor of persons entitled to insist upon their performance. They are to be considered as done at the time when, according to the tenor thereof, they ought to have been performed. They are, also, deemed to have the same consequences attached to them ; so that one party, or his privies, shall not derive benefit by his laches or neglect ; and the other party, for whose profit the contract was designed, or his privies, shall not suffer thereby. 6 Thus, money covenanted, or devised, to be laid out in land, is treated as real estate in equity, and descends to the heir. And, 'on the other hand, where land is contracted, or devised, to be sold, the land is considered and treated as money. 7 There are exceptions to the 1 3 "Wooddes. Lect. lriii. p. 466 to 468 ; 3 1 Eonbl. Eq. B. 1, ch. 6, § 9 ; Fran- Shepherd v. Guernsey, 9 Paige, 357. cia, Maxims, M. 196 (edit. 1751) ; 1 W. 2 1 Eonbl. Eq. B. 4, Pt. 2, ch. 2, § 1, Black. 129. See Atwood v. Vincent, 17 and note; 1 Mad. Ch. Pr. 466; Martin v. Conn. 575. Martin, 1 Ves. 211 ; 2 Black. Comm. 511, * Burgess v. Wheate, 1 W. Black. 123, 512 ; Lewin «. Okeley, 2 Atk. 50 ; Newton 129 ; Crabtree v. Bramble, 3 Atk. 987 ; 1 v. Bennet, 1 Brown, Ch. Cas. 185; Silk v. Eonbl. Eq. B. 1, ch. 6, § 9, note (s). Prime, 1 Bro. Ch. Cas. 138, note ; Hazle- 6 Crabtree v. Bramble, 3 Atk. 687. wood v. Pope, 3 P. Will. 322 ; Moses v. 6 Grounds and Budim. of the Law, M. Murgatroyd, 1 Johns. Ch. 119; laying- 106 (edit. 1751). ston v. Newkirk, 3 Johns. Ch. 319. 1 1 Eonbl. Eq. B. 1, ch. 6, § 9, note (t) ; 62 EQUITY JURISPRUDENCE. [CH. III. doctrine, where other equitable considerations intervene, or where the intent of the parties leads the other way [as where the sale is conditional] ; J but these demonstrate rather than shake the po- tency of the general rule. 2 [Equity looks at the substance of things. 3 ] § 64 h. There are, also, one or two rules, as to the extent of maintaining jurisdiction, which deserve notice in this place, as they apply to various descriptions of cases, and pervade whole branches of Equity Jurisprudence, and cannot, therefore, with propriety, be exclusively arranged under any one head. § 6*4 i. One rule is, that, if, originally, the jurisdiction has prop- erty attached in equity in any case, on account of the supposed defect of remedy at law, that jurisdiction is not changed or oblit- erated by the courts of law now entertaining jurisdiction in such cases, when they formerly rejected it. This has been repeatedly asserted by courts of equity, and constitutes, in some sort, the pole-star of portions of its jurisdiction. The reason is, that it cannot be left to courts of law to enlarge or to restrain the powers of courts of equity at their pleasure. The jurisdiction of equity, like that of law, must be of a permanent and fixed character. There can be no ebb or flow of jurisdiction, dependent upon ex- ternal changes. Being once vested legitimately in the court, it must remain there, until the legislature shall abolish, or limit it ; for without some positive act, the just inference is, that the legis- lative pleasure is, that the jurisdiction shall remain upon its old foundations. This doctrine has been a good deal canvassed in modern times ; and it has been especially the subject of commen- tary by some of the greatest equity judges who have ever adorned the Bench. 4 Lord Eldon upon one occasion said, " Upon what principle can it be said [that] the ancient jurisdiction of this Court is destroyed, because courts of law now, very properly, perhaps, Gilbert, Lex Prartor. 243, 244 ; Fletcher lie, 3 Wheaton, 563, where a Tery elab- v. Ashburner, 1 Bro. Ch. C. 497 ; Craig v. orate opinion was delivered by Mr. Jus- Leslie, 3 Wheat. 563, 577 ; 3 Wooddes. tiee Washington. Lect. lviii. p. 466, 468 ; [Jackson v. Small, 3 [Texas v. Hardenberg, 10 Wall. 68.] 34 Ind. 241 ; Brewer u. Herbert, 30 Md. i See Atkinson v. Leonard, 3 Bro. Ch. 301; McCaa v. Woolf, 42 Ala. 389; 1 218; Ex parte Greenway, 6 Ves. 812; Perry on Trusts, § 122, 231.] East India Company v. Boddam, 9 Ves. 1 [Douglass County v. Union P. E. E., 468, 469; Bromeley v. Holland, 7 Ves. 19 5 Kan. 615.] to 21 ; Cooper, Eq. PI. ch. 3, p. 126, 129. 2 Ibid. The whole of this doctrine See also Biddle v. Moore, 3 Barr, 161. was very much considered by the Su- [See note, § 31.] preme Court, in the case of Craig v. Les- § 64 #-64 k.] GENERAL MAXIMS. 63 exercise that jurisdiction which they did not exercise forty years ago ? Demands have been frequently recovered in equity, which now could be without difficulty recovered at law, &c. I cannot hold, that the jurisdiction is gone, merely because the courts of law have exercised an equitable jurisdiction." 1 § 64 h. Another rule respects the exercise of jurisdiction, when the title is at law, and the party comes into equity for a discovery, and for a relief, as consequent on that discovery. In many cases it has been held, that, where a party has a just title to come into equity for a discovery, and obtains it, the court will go on, and give him the proper relief ; and not turn him round to the expenses and inconveniences of a double suit at law. The juris- diction having once rightfully attached, it shall be made effectual for the purposes of complete relief. And it has accordingly been laid down by elementary writers of high reputation, that " The court, having acquired cognizance of the suit for the purpose of discovery, will entertain it, for the purpose of relief, in most cases of fraud, account, accident, and mistake." 2 The ground is stated to be the propriety of preventing a multiplicity of suits ; 3 a ground, of itself quite reasonable, and sufficient to justify the relief, and one upon which courts of equity act, as a distinct ground of origi- nal jurisdiction. 4 1 Kemp v. Pryor, 7 Ves. 249, 250 ; as the mode of proceeding in courts of [ante, § 31, and note. Statutes conferring law requires the plaintiff to establish his upon law courts jurisdiction in equity case without enabling him to draw the over matters generally cognizable in necessary evidence from the examination equity, where there are distinct courts of of the defendant, justice could never he law and equity, are to be strictly con- attained at law in those cases where the strued. Lane v. Marshall, 1 Heisk. 30 ; principal facts to be proved by one party State v. Alder, 1 Heisk. 549. So, a are confined to the knowledge of the change of the law of evidence, giving the other party. In such cases, therefore, it right to the adverse party to call the becomes necessary for the party wanting other party as a witness, does not take such evidence to resort to the extraordi- away the jurisdiction of chancery over a nary powers of a court of equity, which bill for discovery. Cannon v. McNab, 48 will compel the necessary discovery ; and Ala. 99 ; Millsaps v. Pfeiffer, 44 Miss, the court, having acquired cognizance of 805 ; Eiopelle v. Doellner, 26 Mich. 102.] the suit for the purpose of discovery, 2 1 Ponbl. Eq. B. 1, ch. 1, § 3, note will entertain it for the purpose of relief, (f) ; Coop. Eq. PI. Introd. p. xxxi. ; in most cases of fraud, account, accident, Middletown Bank v. Euss, 3 Conn. 135. and mistake." 3 The passage from Fonblanque on * See Jesus College v. Bloom, 3 Atk. Equity deserves to be quoted at large. 262, 263. In Pearee v. Creswick, 2 Hare, "The concurrence of jurisdiction may, in 293, Mr. Vice-Chancellor Wigram said: the greater number of cases in which it " The first proposition relied upon by the is exercised, be justified by the propriety plaintiff in support of the equity of his of preventing a multiplicity of suits ; for, bill was this, that the case was one in 64 EQUITY JURISPRUDENCE. [CH. III. § 65. It is observable, that the guarded language used is, " in most cases," although it is certainly difficult to perceive any solid ground, why the jurisdiction should not extend to all cases, em- braced by the general principle. But the qualification is made with reference to the bearing of some of the authorities. The learned author of the Treatise on Equity 1 has laid down the prin- ciple in the broadest terms. " And when " (says he) " this court can determine the matter, it shall not be a handmaid to the other courts ; nor beget a suit to be ended elsewhere." 2 There are many authorities which go to support this proposition. But there are many, also, which are irreconcilable with it, or, at least which contain exceptions to it. . § 66. Mr. Fonblanque has remarked : " There are some cases, in which, though the plaintiff might be relieved at law, a court of equity, having obtained jurisdiction for the purpose of discovery, will entertain the suit for the purpose of relief. But there cer- tainly are other cases, where, though the plaintiff may be entitled which the right to discovery would carry with it the right to relief. And, un- doubtedly, dicta are to be met with tend- ing directly to the conclusion, that the right to discovery may entitle a plaintiff to relief also. In Adley v. The Whitstable Company (17 Ves. 329), Lord Eldon says : ' There is no mode of ascertaining what is due except an account in a, court of equity ; but, it is said, the party may have discovery and then go to law. The an- swer to that is, that the right to the dis- covery carries along with it the right to relief in equity.' In Ryle u. Haggie (1 Jac. & Walk. 236), Sir Thomas Plumer said : ' When it is admitted that a party comes here properly for the discovery, the court is never disposed to occasion a multiplicity of suits by making him go to a court of law for the relief.' And in McKenzie v. Johnston (4 Mad. 373), Sir J. Leach says : ' The plaintiff can only learn from this discovery of the defendants how they have acted in the execution of their agency, and .it would be most un- reasonable that he should pay them for that discovery if it turned out that they had abused his confidence ; yet such must be the case if a bill for relief will not he.' " Now, in a case in which I think that justice requires the court, if possible, to find an equity in this bill, to enable it, once for all, to decide the question between the parties, I should reluctantly deprive the plaintiff of any remedy to which the dicta I have referred to may entitle him. But I confess the arguments founded upon these dicta appear to me to be ex- posed to the objection of proving far too much. They can only be reconciled with the ordinary practice of the court, by un- derstanding them as having been uttered with reference in each case to the subject- matter to which they were applied, and not as laying down any abstract propo- sition so wide as the plaintiff's argument requires. I think this part of the plain- tiff's case cannot be stated more highly in his favor than this, that the necessity a, party may be under (from the very nature of a given transaction) to come into equity for discovery, is a circum- stance to be regarded in deciding upon the distinct and independent question of equitable jurisdiction; further than this I have not been able to follow this branch of the plaintiff's argument." 1 Mr. Ballow. 2 2 Fonbl. Eq. B. 6, ch. 3, § 6. This is the very language of the Lord Keeper (afterward Lord Chancellor Nottingham), in Parker v. Dee, 2 Ch. Cas. 200, 201. x § 65-68.] , GENERAL MAXIMS. 65 to discovery, lie is not entitled to relief. To strike out the dis- tinguishing principle, upon which courts of equity in such cases have proceeded, would be extremely useful. But, after having given considerable attention to the subject, I find myself incapable of reconciling the various decisions upon it." 1 What the learned author desired to ascertain, has been found equally embarrassing to subsequent inquirers ; and there is a distressing uncertainty in this branch of equity jurisdiction in England. 2 § 67. In cases of account, there seems a distinct ground upon which the jurisdiction for discovery should incidentally carry the jurisdiction for relief. In the first place, the remedy at law, in most cases of this sort, is imperfect or inadequate. In the next place, where this objection does not occur, the discovery sought must often be obtained through the instrumentality of a master, or of some interlocutory order of the court ; in which case it would seem strange, that the court should grant some, and not proceed to full, relief. 3 In the next place, in cases not falling under either of these predicaments, the compelling of the production of vouchers and documents would seem to belong peculiarly to a court of equity, and to be a species of relief. And, in the last place, where neither of the foregoing principles applies, there is great force in the ground of suppressing multiplicity of suits, con- stituting, as it does, a peculiar ground for the interference of equity. 4 § 68. Cases of accident and mistake furnish like reasons for extending the jurisdiction to relief where it attaches for discovery. The remedy at law is not in such cases (as we shall presently see) either complete or appropriate. And cases of fraud are least of all those in which the complete exercise of the jurisdiction of a court of equity in granting relief ought to be questioned or controlled ; since, in addition to all other reasons, fraud constitutes 1 2Fonbl. Eq. B. 6, ch. 3, §6, note (r). Carlisle v. Wilson (13 Ves. 278, 279). 2 Coop. Eq. PI. ch. 3, § 3, p. 188, 189. And it was positively asserted by the * 3 Black. Comm. 437 ; Mitf. Eq. PI. Court of Errors in New York, in Ludlow by Jeremy, p. 119, 120, 123 ; Corporation v. Simond (2 Caines, Cas. in Err. 38, 39, of Carlisle v. Wilson, 13 Ves. 278, 279. 53, 64). In Eyle v. Haggie (1 Jac. & 4 See Jesus College v. Bloom, 3 Atk. Walk. 234), the Master of the Rolls said : 262 ; s. c. Ambler, 54. The full concur- " When it is admitted that a party comes rency of jurisdiction of courts of equity here properly for a discovery, the court for relief in all matters of account, whe- is never disposed to occasion a multiplicity ther there be a remedy at law or not, of suits by making him go to a court of seems to have been largely insisted on by law for relief." Lord Erskine, in The Corporation of eq. juk. — vol. i. 5 66 EQUITY JURISPRUDENCE. [CH. III. the most ancient foundation of its power ; and equity sifts the con- science of the party, not only by requiring— his own answer under oath, but by subjecting it to the severe scrutiny of comparison with other competent testimony ; thus narrowing the chances of successful evasion, and compelling the party to do equity, as it shall appear upon a full survey of the whole transaction. Indeed, in many cases of fraud, what should be the nature and extent of the redress, whether it should be wholly legal or wholly equitable or a mixture of both, can scarcely be decided, but upon a full hearing upon all the proceedings in the cause. § 69. But there are cases, if not leading authorities, which it is not easy to reconcile with the principles already stated in matters of fraud, accident, mistake, and account. 1 Some of them may have been adjudged upon their own peculiar circumstances; or they may stand upon some ground which leaves these princi- ples untouched. Others are not susceptible of such a classifica- tion, and must either be rejected altogether, or be admitted to a considerable extent to overturn these principles. 2 i 2 Fonbl. Eq. B. 6, ch. 3, § 6, note (r). 2 In Parker v. Dee (2 Chan. Cas. 200), the bill was against an executor for a discovery of assets and payment; and relief was decreed by Lord Nottingham. In Bishop of Winchester v. Knight (1 P. Will. 406), the bill was for a discovery and an account of ore, dug by a tenant during his life, and by his heir, against the executor and heir; and the court maintained the suit, directing a trial at law, and after the trial granted relief. In Story v. Lord Windsor (2 Atk. 630), the bill was for an account of the profits of a colliery, upon a legal title asserted by the plaintiff. Lord Hardwicke sus- tained the bill for the account, because (he said) this is not a title of land, but of a colliery, which is a kind of trade; and therefore an account of the profits may be taken here. (See also Jesus Col- lege v. Bloom, 3 Atk. 262.) The same learned chancellor, in Sayer v. Pierce (1 Ves. 232), seems to have proceeded on the same ground, holding, that the party being out of possession of lands, generally, was not entitled to maintain a bill for an account of profits alone ; but he retained the bill in that case, directing a trial at law upon the ground that it asked to ascertain boundaries. In Lee v. Alston (1 Br. Ch. 194), a bill for an ac- count of timber, cut by a tenant for life, impeachable for waste, was entertained by Lord Thurlow, and relief granted. In Jesus College v. Bloom (3 Atk. 262 ; s. c. Ambler, 54), which was a bill for an account and satisfaction for waste, in cutting down timber before the assign- ment, against an assignee of the lessee of the plaintiffs, Lord Hardwicke said: " Upon the opening of the case, the bill seems improper, and an action of trover is the proper remedy. Where the bill is for an injunction, and waste has been already committed, the court, to prevent a double suit, will decree an account and satisfaction for what is past." And be- cause the bill sought an account only against the assignee for waste before the assignment, and without praying an in- junction, his lordship dismissed the bill. The same point was held in Smith v. Cooke (3 Atk. 378, 381). In Geast v. Barker (2 Bro. Ch. 61), the bill was for a discovery of a quantity of coal and coke sold from a mine let by plaintiff to defendant upon a reservation of one shil- ling for every stack of coal sold, &c, and prayed an issue to try what quantity a § 68-71.J GENERAL MAXIMS. 67 § 70. But when we depart from matters of fraud, accident, mis- take, and accounts, as-the foundation of a suit in equity, it is far more difficult to ascertain the boundary, where the right of a court of equity to entertain a bill for relief, as consequent upon the jurisdiction for discovery begins, and where it ends. 1 The difficulty is increased by the recent rule adopted in the courts of equity in England (of which we shall have occasion to speak more fully hereafter), that if the party seeks relief, as well as discovery, and he is entitled to discovery only, a general demurrer will lie to the whole bill. 2 The effect of this rule is, that a plaintiff may be compelled, in a doubtful case, to frame his bill for a discovery in the first instance, and having obtained it, he may be compelled to ask leave to amend (which will not ordinarily be granted, un- less it is clear, that the proper relief is in equity), and then he may try the question, whether he is entitled to relief or not. 3 § 71. In America, a strong disposition has been shown to follow stack should contain, and suggested a custom of the country. The Master of the Rolls (Lord Kenyon) said, if it were now necessary either to decree account, or dismiss the bill, he would do the latter, as he was clear the remedy was at law. (s. c. cited in Harwood v. Oglander, 6 Ves. 225.) Why the remedy and account should not be given in equity, is not stated ; and it is difficult to see ; since it is clear, that the bill was good for the dis- covery, and it was obtained. In Sloane ». Heatfield (Bunb. 18), the bill was for a discovery of treasure trove, and relief; and the court held it good for discovery ; but that the plaintiff could not have re- lief ; because he might bring trover at law. In Ryle v. Haggie (1 Jac. & Walk. 234), an opposite course was adopted upon the professed ground of avoiding a multiplicity of suits, the party having a good ground to seek a discovery, and there being a remedy at law. In the Duke of Leeds v. New Radnor (2 Bro. Ch. 338, 519), Lord Thurlow reversed the decree of the Master of the Rolls, deny- ing relief, because there was a remedy at law, upon the ground, that the bill being retained for a year, the right to grant relief in equity was thus far admitted, and it ought to give entire relief. See Mr. Fonblanque's comments on this case, in 1 Fonbl. Eq. B. 1, ch. 3, § 3, note (g), p. 156. See Mr. Blunt's note to the case of Jesus College v. Bloom, Ambler, 54 ; 1 Fonbl. Eq. B. 1, ch. 3, § 3, note [g) ; ante, § 64 1c, and note. 1 See Ryle v. Haggie, 1 Jac. & Walk. 234 ; Pearce v. Creswick, 2 Hare, 243 ; post, § 690. 2- Ante, § 64 h, § 71 to 74; Story, Eq. Plead. § 312, 545. And see Mitchell v. Greene, 10 Met. 101. [* This case adopts the English rule upon this subject, and the opinion of Hubbabd, J., seems to exhibit, in clear light, the true reason upon which it is founded, viz., that the plaintiff must, in order to entitle himself to a discovery, set forth in his bill that it is brought to obtain a discovery only, in aid of an existing, or comtemplated suit at law; and that without these allega- tions in the bill, the court will assume that the discovery is sought merely in aid of the relief prayed in the bill, and if that is denied, will hold that the prayer for discovery falls with it, as a mere inci- dent. Pease v. Pease, 8 Met. 395 ; post, § 74 a, et seq.] 3 Post, § 690, 691 ; Mitf ord, Eq. PI. by Jeremy, p. 183, note (n) • Cooper, Eq. PI. ch. 1, § 3, p. 58; id. ch. 3, § 3, p. 188; Story on Equity Pleadings, § 312, and note (1) ; Lousada v. Templer, 2 Russ. 564 ; Frietas v. Don Santos, 1 Y. & Jerv. 577 ; Severn v. Fletcher, 5 Sim. 457. 68 EQUITY JURISPRUDENCE. [CH. m. out a convenient and uniform principle of jurisdiction, and to adhere to that which seems formerly (as we have seen) to have received the approbation of Lord Nottingham. 1 The principle is, that where the jurisdiction once attaches for discovery, and the discovery is actually obtained, the court will farther entertain the bill for relief, if the plaintiff prays it. This has been broadly asserted in many cases, 2 and certainly possesses the recommenda- tion of simplicity and uniformity of application ; and escapes from what seems to be the capricious and unintelligible line of demar- cation, pointed out in the English authorities. Thus, it has been laid down in the courts of New York, upon more than one occasion, as a settled rule, that, when the court of chancery has gained jurisdiction of a cause for one purpose, it may retain it generally for relief. 3 A similar doctrine has been asserted in other States ; i and it has been affirmed in the Supreme Court of the United States. On one occasion it was laid down by the last-named court, " That, if certain facts, essential to the merits of a claim purely legal, be exclusively within the knowledge of the party, against whom that claim is asserted, he may be required in a court of chancery to disclose those facts ; and the court, being thus rightly in possession of the cause, will proceed to determine the whole matter in controversy." 5 § 72. This doctrine, however, though generally true, is not to be deemed of universal application. 6 To justify a court of equity in granting relief, as consequent upon discovery, in cases of this sort, it seems necessary, that the relief should be of such a nature as a court of equity may properly grant in the ordinary exercise of its authority. If, therefore, the proper relief be by an award of dam- ages, which can alone be ascertained by a jury, there may be a strong reason for declining the exercise of the jurisdiction, 7 since 1 Aide, § 65, note (3) ; post, § 691. * Chichester's Executor v. Vas's Ad- 2 See Sanborn v. Kittredge, 20 Verm, ministrator, 1 Munf . 98 ; Isham v. Gilbert, 632. [* This, howerer, was where the 3 Connect. 166; Ferguson v. Waters, 3 plaintiff claimed an account, as tenant in Bibb, 303 ; Middleton Bank v. Buss, 3 common of personal property.] Holmes Connect. 139. v. Holmes, 36 Vt. 625. 6 Russell v. Clarke's Executors, 7 8 Armstrong v. Gilchrist, 2 Johns. Cas. Cranch, 69. See Foster v. Swasey, 2 424; Bathbone v. "Warren, 10 Johns. 587, Wood. & Min. 217. 696 ; King v. Baldwin, 17 Johns. 384. See 6 Middletown Bank v. Buss, 3 Con- also Leroy v. Veeder, 1 Johns. Cas. 417 ; nect. 135, 140; id. 166. s. c. 2 Caines, Cas. in Err. 176 ; Hepburn 7 See Denny v. Oilman, 26 Maine, 149. v. Dundas, 1 Wheat. 197; Ludlow v. Simmond, 2 Cain, Err. 1, 38, 61, 52. § 71-73.] GENERAL MAXIMS. 69 it is the appropriate function of a court of law to superintend such /trials. And, in many other cases where a question arises, purely of matters of fact, fit to be tried by a jury, and the relief is dependent upon that question, there is equal reason that the jurisdiction for relief should be altogether declined; or at all events, that if the bill is retained, a trial at law should be directed by the court and relief granted, or withheld, according to the final issue of the trial. [* In the English chancery practice it is allow- able to try the facts in a case by a jury summoned into the chan- cery court, although it is said that this is not generally done, unless both parties desire it, or unless special reasons exist, such as saving expense, or delay ; still it would, with us, afford the pref- erable mode of coming at such trial, and save much of the embar- rassment of formally drawing up the issue. 1 ] But if a bill seeks the discovery of a contract for the sale of goods and chattels, or of a wrongful conversion of goods and chattels, and the breach of the contract, or the conversion of the goods and chattels, is prop- erly remediable in damages, to be ascertained by a jury, the relief seems properly to belong to a court of law. In like manner, ques- tions of fraud in obtaining and executing a will of real estate, and many cases of controverted titles to real estate, dependent partly on matters of fact, and partly on matters of law, are properly tri- able in an ejectment, and may well be left to the common tribu- nals. a And it has accordingly been laid down in some of the American courts, that under such circumstances, where the ver- dict of a jury is necessary to ascertain the extent of the relief, the plaintiff should be left to his action at law, after the discovery is obtained. 3 § 73. The distinction, here pointed out, furnishes a clear line for the exercise of equity jurisdiction in cases where relief is sought upon bills of discovery ; and if it should receive a general sanction in the American courts, it will greatly diminish the em- barrassments, which have hitherto attended many investigations of the subject. In the present state of the authorities, however, little more can be absolutely affirmed, than these propositions : first, that in bills of discovery, seeking relief, if any part of the relief 1 [* Peters v. Kule, 5 Jur. n. s. 61 ; s. c. 2 Jones v. Jones, 3 Meriv. 161 ; Bidg- 7 W. E. 171 ; s. o. 28 L. J. w. s. Ch. 246. way v. Koberts, 4 Hare, 116. See Black v. Lamb, 1 Beasley, Ch. 108.] 8 Lynch v. Sumral, 1 Marsh. (Ken- tucky) 469. 70 EQUITY JURISPRUDENCE. [CH. III. sought be of an equitable nature, the court will .retain the bill for complete relief ; x secondly, that in matters of account, fraud, mis- take, and accident, the jurisdiction for relief will, generally, but not universally, be retained and favored; and thirdly, that in cases, where the remedy at law is more appropriate than the rem- edy in equity, or the verdict of a jury is indispensable to the relief sought, the jurisdiction will either be declined, or, if retained, will be so, subject to a trial at law. § 74. From what has been already stated, it is manifest, that the jurisdiction, in cases of this sort, attaches in equity solely on the ground of discovery. 2 If, therefore, the discovery is not obtained, or it is used as a mere pretence to give jurisdiction, it would be a gross abuse to entertain the suit in equity, when the whole foundation, on which it rests, is either disproved, or it is shown to be a colorable disguise for the purpose of changing the forum of litigation. Hence, to maintain the jurisdiction for relief, as consequent on discovery, it is necessary, in the first place, to allege in the bill, that the facts are material to the plaintiff's case, and that the discovery of them by the defendant is indispensable, as proof ; for if the facts lie within the knowledge of witnesses, who may be called in a court of law, that furnishes a sufficient reason for a court of equity to refuse its aid. The bill must, therefore, allege (and if required, the fact must be estab- lished) that the plaintiff is unable to prove such facts by other testimony. 3 In the next place, if the answer wholly denies the matters of fact, of which discovery is sought by the bill, the latter must be dismissed ; for the jurisdiction substantially fails by such a denial.* [* § 74 a. Equity jurisdiction, as dependent upon discovery, was well said to be " in a distressing state of uncertainty." 5 It may justly be regarded as a desideratum, to relieve, to any extent, this uncertainty. And it seems to us to have arisen, chiefly, from not prbperly discriminating between that discovery which is sought in support of the bill, as evidence merely, or in aid of a suit at law ; 8 i [* Day v. Cummings, 19 Vt. 496.] Cranch, 69 ; Ferguson v. "Waters, 3 Bibb, 2 See Shepard v. Sanf ord, 3 Barb. Ch. 303; Nourse v. Gregory, 3 Litt. 378; 127. Eobinson v. Gilbreth, 4 Bibb, 184. » Gelston v. Hoyt, 1 Johns. Ch. 643 ; 5 [* ^„ tej § 66. Seymour v. Seymour, 4 Johns. Ch. 409 ; 6 Or in anticipation of such a suit. Pryor v. Adams, 1 Call, 382 ; Duralls v. Lord Hardwicke, in Lempster v. Pomf ret, Boss, 2 Muni 290, 296 ; Bass v. Bass, 4 Ambler, 154; Moodalay v. Morton, 1 Br. H. & Muni 478.. C. C. 469. * Bussell v. Clarke's Executors, 7 § 73-74 a.] GENEBAL MAXIMS. 71 and that appeal to. the conscience of the defendant, which is based upon some alleged misconduct, either in withholding documents, or suppressing facts, to which the plaintiff is entitled, and which, but for the defendant's misconduct, he would, have had, and which would have entitled him to redress, in a court of law. In the former case the plaintiff charges no wrong upon the defendant, so far as the discovery is concerned. He asks it as a favor, to enable him to obtain redress in equity, if the subject-matter of the suit is appropriate for such remedy ; and if not, then to enable him to demand such redress at law. And where the discovery is sought merely in aid of a suit at law, whether obtained or not, the plain- tiff, upon the coming in of the answer is bound to discontinue, and pay all the expense of defendant. 1 But in a bill for discovery merely in aid of redress, and where no wrong is charged upon the defendant in withholding documents, or facts, to which the plaintiff was entitled, it is not competent for the plaintiff to pray relief, unless his case is one, which, in itself, is a proper subject of equitable relief. If his case is not of this character, he must ask the discovery, in aid of a contemplated, or pending suit at law. And if he ask relief, where his case is not proper for the interference of a court of equity, the bill is, upon that ground, demurrable. He must not only show a case, where he is entitled to discovery, but he must state the true ground of such discovery, and if he state one which, on the face of the bill, appears not tenable, his suit is demurrable. 2 A bill, for instance, will be sustained, in equity, in aid of a defence, at law, to a bond or other instrument, upon the ground of illegality in the consid- • eration, when, if relief had been prayed, the bill must have been dismissed, upon the ground that the court could give no positive relief in such case. 8 All that is required to be alleged in a bill 1 Cartwright v. Hateley, 1 "Vesey, Jr. costs in bills of discovery, Burnett v. 292, 293. See also Simmons v. Kinnaird, Sanders, 4 Johns. Ch. 504 ; McElwee v. 4 Vesey, 746 ; 1 Mad. Ch. Pr. 217, and Sutton, 1 Hill's Ch. 32 ; King v. Clark, 3 cases cited. But if defendant, on reason- Paige, 76 ; Harvey v. Tebbutt, 1 Jac. & able request, refuse to make the admis- Walk. 197 ; Fulton Ba,nk v. N. Y. & Sh. sion, and thus drive the plaintiff into a Canal Co., 4 Paige, 127. court of equity, to obtain it, where he 4 Ante, § 70, notes. It will thus ap- succeeds, the defendant is not entitled to pear, we think, that the English rule is costs. Weymouth v. Boyer, 1 Vesey, Jr. not fairly open to the objections urged 416, 423 ; Deas v. Harvie, 2 Barb. Ch. against it. It seems to us, it is neither 448. But such costs are sometimes unreasonable, nor suicidal, taxed in the action at law. 1 Mad. Ch. 8 Benyon v. Nettleford, 3 Mac. & G. Pr. 217 ; Grant v. JacksOn, Peake's N. P. 94. Cas. 203. See also upon the subject of 72 EQUITY JURISPRUDENCE. [CH. HI. for discovery, in aid of a suit at law, is to show that the plaintiff has such a case, that the discovery sought will aid him. 1 And he has no right to come into a court of equity with a case of a purely legal character, unless for the mere purpose of discovery, in aid of an action at law ; and if he come seeking relief, in equity, his bill should be dismissed. And this is the extent of the English rule. 2 In such a case it is not requisite to allege that the plaintiff is unable to establish his case, or defence, by other witnesses, or to make any such affidavit, unless for the purpose of obtaining an injunction staying proceedings at law. 3 As the law formerly stood, when the parties were not witnesses, either party might claim a discovery of facts, in the knowledge of his adversary, to save expense, or delay, or uncertainty. But the necessity for such bills having ceased, for the most part, both in this country and in England, this kind of discovery has become practically obsolete. 4 And while it was in full force, it required no other check upon its abuse, than the necessity of paying all the expense of both par- ties, without regard to the result. 6 § 74 b. But if discovery, in this general sense, has already ac- quired the status of being a distinct ground of equity jurisdiction, in our American courts, it will not be relinquished because courts of law have subsequently advanced into the same sphere of trial, or relief. 6 But it is admitted to be purely an American rule of equity jurisdiction; and it is obvious that it springs, to some extent certainly, from confounding that discovery which is merely matter of general evidence, whether sought for purposes of relief in equity, or at law, with that which is sought on account of the fraudulent conduct of defendant, and where the breach of confi- dence is itself, when admitted, or established, a sufficient ground of equity jurisdiction ; 7 and also, probably, to some extent, from pushing another maxim of equity jurisprudence quite beyond its 1 Vance v. Andrews, 2 Barb. Ch. 370 ; Ch. 643 ; Seymour v. Seymour, 4 Johns. Deas v. Harvie, id. '448 ; Williams v. Har- Ch. 409 ; Leggett v. Postley, 2 Paige, 599 ; den, 1 Barb. Ch. 298 ; Welford, Eq. PI. and others following the lead of the emi- 99 ; Stainton v. Chadwick, 3 M. & G. 575. nent jurist who decided those cases, have 2 Ante, § 70 and notes. been denied and overruled by the cases 8 Vance v. Andrews, 2 Barb. Ch. 370 ; already cited in this note. Appleyard v. Seton, 16 Vesey, 223 ; 4 Gelston v. Hoyt, 1 Johns. Ch. 543. March v. Davison, 9 Paige, 680 ; post, 5 Ante, p. 70, note 1. § J48-150. Those cases in the American 6 Ante, § 64 « ; post, § 80. courts, where a different rule has been ' Post, § 74 d. laid down, as Gelston v. Hoyt, 1 Johns. § 74 a-74 c.J belief on discovert. 73 just purport ; that is, that where equity obtains jurisdiction of a cause, for any purpose, it will retain it, generally, until complete justice is effected. 1 But this last maxim has no proper applica- tion, unless where the court obtains legitimate jurisdiction of the cause, and for some reason, affecting the cause, or some portion of it. For instance, when a court of equity is properly applied to for an injunction, to restrain the infringement of a patent, it will retain the cause, and settle other matters between the parties, inseparably connected with the infringement, but which do not afford ground for original equitable jurisdiction. 2 § 74 c. But when a party comes into equity for general discovery merely, it gives the court no jurisdiction of the cause, or any part of it. Discovery is something which a party may claim in every cause, at law, whether he be plaintiff or defendant, and in every transaction which may fairly be expected to become the foundation of an action hereafter ; and may claim it, without regard to his being destitute of other proof. He may claim the discovery to save expense, or uncertainty, in the other proof. 3 So that, if such discovery were really a ground of equity jurisdiction, it would be sufficient to bring every case, properly cognizable in a court of law, for final trial, into a court of equity, since it would scarcely ever fail, if one had a good cause of action, or a good defence, that he would not be able to obtain some discovery, from his ad- versary, tending to support his case. It scarcely requires argu- ment to show that so broad a rule of equity jurisdiction must fall, in consequence of its inherent absurdity. 4 It is, we apprehend, 1 Day v. Cummings, 19 Vt. 496 ; Bank other questions which may be supposed, of TJ. S. v. Biddle, 2 Pars. Ch. 64 ; Mc- and which are illustrated by the cases Gowin v. Bemington, 12 Penn. St. 63 ; cited ante, § 74 b, note 2. Shollenberger's Appeal, 9 Harris, 340 ; 8 Story, Eq. PI. § 319 ; Stacy v. Pear- Brooks v. Stolley, 3 McLean, 523 ; Traip son, 3 Eich. Eq. 148, 152 ; Mitf ord, Eq. v. Gould, 15 Maine, 82. [See Boyd v. PI. by Jeremy, 307. See cases cited in Hunter, 44 Ala. 705 ; Peoria v. Johnson, note to Story, Eq. PI. § 319. 56 III. 45 ; Corby v. Bean, 44 Mis. 379 ; 4 The rule, as claimed in some of the De Bemer v. Drew, 39 How. Pr. (N. Y.) American cases, is very properly charac- 466.] terized by Lord Cottenham, chancellor, in 2 [Daniel v. Green, 42 111. 472 ; Green v. Eoley v. Hill, 2 CI. & Fin. Ho. Lds. Cas. Spring, 43 M. 280 ;] Brooks v. Stolley, 3 n. s. 28, 37. This was an action of ac- McLean, 523. There are many similar count. " It is not," says his lordship, " be- cases, as where one partner goes into cause you are entitled to discovery, that equity, to enjoin his copartners from vio- therefore you are entitled to an account, lating the articles, that court will dispose That is entirely a fallacy. That would, of other matters, not properly of equita- if carried to the extent . . . make it ap- ble cognizance. And so of numerous pear that every case is matter of equita- 74 EQUITY JURISPRUDENCE. [CH. III. from a sense of the innate absurdity of the rule, in this unlimited extension, that the American courts have, from time to time, sought to annex some salutary limitations upon its application. Hence we find it laid down in a large number of American cases, that it is necessary for the party, where he seeks to transfer a cause, ap- propriately of legal cognizance, into the forum of equity, for trial, upon the ground of seeking discovery, and that alone, to allege in his bill, and verify by affidavits, that he has no other means of proving his case. 1 But it is obvious that, to make any such fact, as the party being without other evidence, the basis of equity jurisdiction, in all cases, and that alone, it should, to be of any practical moment, be put in a traversable form, and the jurisdic- tion fail, upon the failure of that allegation, or upon its disproof. And this will raise another necessary qualification of the rule that the existing proof, to defeat the jurisdiction, must be in the knowledge, or at least in the power, of the plaintiff ; for unless it be, it is the same to him as if it did not exist. This inquiry, whether plaintiff was in fact destitute of other proof, would raise a very remarkable collateral issue, and one which is not suscep- tible of trial, and could not form an intelligible basis of equity jurisdiction. 2 This limitation, in regard to bills of discovery, which was in the first instance made to apply equally to all, 3 has been long since abandoned by the American courts, as to all such bills which do not seek to transfer a merely 'legal cause of action into the forum of equity, upon the ground of discovery. 4 It is obvious, in tracing the history of this American heresy, in equity law, that it owes its rise and subsequent growth, and pres- ent partial maturity, solely to what can be esteemed nothing less ble jurisdiction, and that where a plaintiff 2 Caines, Cas. in Error, 344 ; Lyons v. is entitled to a demand, he may come to Miller, 6 Grattan, 427, 438 ; Sims v. Augh- a court of equity for a discovery. But tery, 4 Strobh. Eq. 103, 121. the r,ule is that where a case is compli- 2 It seems to raise almost the same cated, or where from other circumstances question, which has sometimes been put, the remedy at law will not give adequate in mere badinage, by those reformers, relief, then the court of equity assumes who object so strenuously to the separa- jurisdiction." See also Hambrook v. tion of the tribunals administering law Smith, 9 Eng. L. & Eq. 226. and equity. What would be the effect of 1 Gelston v. Hoyt, 1 Johns. Ch. 543 Merchants' Bank v. Davis, 3 Kelly, 112 Bank U. S. v. Biddle, 2 Pars. Ch. 31 Emerson v. Staton, 3 Monr. 116, 118 Bullock v. Boyd, 2 A. K. Marsh. 322 Stacy v. Pearson, 3 Rich. Eq. 148, 152 falsifying the averment in the old English bills, " That for as much as the plaintiff's witnesses are all dead, or gone beyond seas, he is therefore compelled to sue in a court of equity ? " 8 Gelston v. Hoyt, 1 Johns. Ch. 543. Laight v. Morgan, 1 Johns. Cas. 429 ; s. c. * Ante, § 74 o, notes 3 and 5. § 74 C, 74 C?.] BELIEF ON DISCOVERT. 75 than a lapse, in that eminent jurist, who decided the case of Gel- ston v. Hoyt, and others in the same court, which followed in its wake. 1 It is perhaps not matter of surprise, that his mistakes should have been followed, when it is remembered that the dis- tinguished New York chancellor was truly the father and founder of American equity law, as he was also, to a considerable extent, . of American law, in general ; and of whom it is but simple jus- tice to say, that he laid down fewer legal propositions, which re- quired subsequent qualification, than any other American judge, or jurist, early or late. But we are not from this to infer that he possessed the impossible human attainment of infallibility. The opinion of Ch. J. Marshall 2 is sometimes cited in confirmation of this rule. But we think it scarcely goes beyond the English rule, and probably had reference to secret trusts and fraudulent con- cealments, 3 a discovery of which is still the legitimate basis of equity jurisdiction. § 74 c?. The only distinct ground of equity jurisdiction over cases of a purely legal character, based upon mere discovery, as we have already intimated, 4 is, where the defendant is charged with a wrong, and a virtual fraud, in withholding the appropriate legal evidences. 5 Sometimes such a case is founded upon the duty of defendant to disclose deeds, writings, and documents in his keeping ; 6 as where the heir claims under the deed, or is obstructed, by the attempt to set up an outstanding and false title. 7 So a bill of this class will lie against one who conceals a bank- rupt's estate ; 8 or where a confusion of boundaries has occurred through the fault of defendant ; 9 or where the defendant declines to give knowledge of the goods put on board a ship insured and lost. 10 In these cases of trust and confidence, and fraudulent 1 Seymour v. Seymour, 4 Johns. Ch. Thurlow said, " You cannot demur to the 409. discovery, unless you demur to the relief ; 2 Russell v. Clark's Ex'rs, 7 Cranch, for then you do not demur to the thing 69. required, but you demur to the means by 3 Post, § 74 d. which it is to be attained." i [•Ante, § 74 a.] 6 Mad. Eq. Pr. 199, et seq.; Metcalf v. 5 In ordinary cases, in courts of equity, Havey, 1 Vesey, Sen. 248. the plaintiff is entitled to the defendant's 7 Bond v. Hopkins, 1 Sch. & Lef. 428, testimony, as matter of course. If the 429 ; Tanner v. "Wise, 3 P. Wms. 295, 296. case made in the bill is defective, the de- 8 Boden a. Dillow, 1 Atk. 289. fendant may excuse himself from the 9 Aston v. Lord Exeter, 6 Vesey, 288, discovery. McCoun, V. C, in Kuypers 293 ; post, § 620. v. Dutch Church, 6 Paige, 570; Morgan v. 10 Le. Pypre v. Parr, 2 Vernon, 716. Harris, 2 Br. C. C. 121, 124, where Lord But in Taylor v. Ferguson, 4 Har. & J. 76 EQUITY JURISPRUDENCE. [CH. IH. breach of duty, equity will entertain a bill for discovery, to enable the plaintiff to learn what are his rights, and will then retain the case, and grant relief. So, also, equity will compel the produc- tion of a case, or other paper, submitted to counsel, the tendency of which might be to detect fraud and breach of confidence. 1 But these cases, and others of this class, make the equitable juris- diction rest upon breach of trust, or of confidence, or of duty, or fraudulent conspiracy, which could only be detected by an appeal to defendant's secret knowledge and purpose, and are broadly distinguished from mere general bills of discovery. Where this peculiar kind of discovery fails, the jurisdiction fails, of course ; and where the bill is founded upon discovery of deeds, or other writings, the plaintiff is required to annex an affidavit that they are not in his custody, or power, 2 as evidence of his good faith in seeking equitable relief. It was not unnatural to extend the same course of reasoning, by analogy, to the general subject of discov- ery, whether in aid of the bill, or of a suit at law. But we think we have sufficiently shown, that a broad distinction obtains between the two classes of cases, both in principle and in the English chancery. And some of the American courts have adhered to the English rule. 8 But where this species of equity jurisdiction once attaches, it will not be defeated by the produc- tion of the paper fraudulently withheld. 4 § 74 e. The question recurs then, whether the necessity of gen- eral discovery, or the obtaining such discovery, will have any appropriate influence upon a court of equity, in determining its jurisdiction. In cases where courts of law and equity exercise concurrent jurisdiction over certain subjects, as in matters of fraud, accident, mistake, and account, there will always be some- 46, the court of equity declined to give the discovery, and the ordinary case of relief, in a similar case, saying that was discovery. Gregory v. Marks, 1 Rand, the appropriate function of the courts of 355 ; Borroughs v. McNeill, 2 Dev. & law. Batt. Ch. 297. While others seem not to 1 Stanhope i>. Roberts, 2 Atk. 214. have regarded it. Emerson v. Staton, 3 2 Welford, Eq. PI. 99. But if the bill Monr. 116, 118. There are many other is for a general discovery of deeds, no American cases where this subject is dis- affidavit of loss is required. Anonymous, cussed, but all merely repeat the dictum Prec. Ch.536; Mad. Ch. Pr. 200, note (y). of Gelston v. Hoyt, 1 Johns. Ch. 643; 3 Post, § 74 e, p. 76, n. 6. Some of the Allen v. Hopson, 1 Freeman, Ch. (Miss.) American cases seem to have apprehend- 276. ed the distinction between that class of * Hamlin v. Hamlin, 3 Jones's Eq. 191. cases where the defendant is charged See also Snoddy v. Finch, 9 Rich. Eq. with a 'wrong and a fraud, in withholding 355. . § 74. d, 74 e.J belief on discovert. 77 thing of discretion to be exercised, as to the particular cases which it will retain. This will depend upon the complication of the facts, the breach of confidence, or trust, the number of interests involved, and many other things, which will be found fully discussed under the appropriate heads. The question of the necessity of discovery, and the fact of obtaining it, may also, with propriety, be taken into the account, in connection with other circumstances, in making this determination. The language of Mr. B allow, in his Treatise on Equity, 1 already cited, 2 is not, perhaps, objectionable. But there are many cases upon this subject, where no discovery will induce the court of equity to pass a final decree, as fraud in the sale of chattels, or a claim of damages for some specific fraud in a part of a transaction, not claiming to have it all set aside. 3 Vice-Chancellor Wigram expresses the rule clearly. 4 " I think this part of the plaintiff's case cannot be stated more highly in his favor than this, — that the necessity a party may be under (from the very nature of the transaction) to come into a court of equity, for discovery, is a circumstance to be regarded in deciding upon the distinct and independent question of equitable jurisdiction. Farther than this I have not been able to go." This will be found to mark the true limits of equity jurisdiction, as affected by the question of discovery, and is supported by well-considered cases in this country. 5 ] i Eonbl. Eq. B. 1, ch. 1, § 3, note (/). v. Holland, 2 Overton, 71 ; Laight v. Mor- 2 Ante, § 64 k. • gan, 1 John. Cas. 429 ; s. c. 2 Caines, Cas. 8 Bradley v. Bosley, 1 Barb. Ch. 125, in Error, 344. The New Jersey court of 152, and cases cited. chancery hare, not many years since, 4 Pearce v. Creswick, 2 Hare, 286. declared the English rule upon this sub- 6 Middletown Bank v. Buss, 3 Conn, ject to be the law of that State. Brown 135; Ishami;. Gilbert, id. 166; Nor. &Wor. v. Edsall, 1 Stock. Ch. 256; Little v. Railroad v. Storey, 17 Conn. 364 ; Taylor Cooper, 2 Stock. 273. We do not despair v. Ferguson, 4 Har. & Johns. 46. See also of finding a like determination in most of Skinner v. Judson, 8 Conn. 528 ; Avery the American States, ultimately.] 78 EQUITY JURISPRUDENCE. [CH. IT. CHAPTER IV. CONCURRENT JURISDICTION OE EQUITY. — ACCIDENT. [* § 75. Equity jurisdiction, as to law, is concurrent, exclusive, and supplemental. § 75-77. Subject explained as to fraud, accident, and confidence, both as to sub- ject-matter and mode of redress. § 78-80. Accident, any unexpected occurrence, without fault, producing serious injury, and no adequate remedy at law. § 81, 81 a. Relief granted in case of lost instruments. § 82. Grounds of equitable interference, to excuse profert of bonds, to give in- demnity. § 83. If relief prayed, must be affidavit of loss, and offer of indemnity. § 84. Illustration of the subject. § 85, 86. The remedy in equity, in the case of lost notes and bills. § 86 a. Limits of jurisdiction further defined. § 87. The loss of deeds will be supplied, in support of a long possession. § 88. Equitable jurisdiction, in such cases, rests upon the accidental loss, which must be proved, if denied. § 89. Equity will relieve against accidental forfeitures. § 90. Cases illustrating the rule. § 91, 92. Rule applies to executors and legatees, when accidental mistakes have occurred. § 93. So also, where a premium is paid for what fails to be performed, or stocks become valueless, by revolution. § 94. Equity relieves against a defective execution of a power, but not where there is no execution. § 95. Purchasers, creditors, a wife, a child, and a charity are so favored ; but not the donee of a power, a husband, grandchildren, remote relations, or strangers. § 96. Statutory requirements not dispensed with. § 97. Nor defects of the essence of the power. § 98. Equity will interfere in favor of those who would otherwise be unjustly de- prived of the intended benefit of the power. § 99. Relief in case of wills. § 99 a. Boundaries. § 99 6. Where bills or notes are negotiated, by mistake, without indorsement. § 100-104. Cases where equity will not relieve from accident ; as in cases of ex- press contract, and no exception named. § 105. Also where the accident is the result of the party's own negligence. § 105 a-108. So, too, where the party's claim is not founded upon valuable con- sideration ; or the relief will defeat a bona fide purchaser. § 109. Definition of accident] § 75. Having disposed of these matters, which may in some sort be deemed preliminary, the next inquiry which will occupy our attention is to ascertain the true boundaries of the jurisdic- tion at present exercised by courts of equity. The subject here § 75, 76.] ACCIDENT. 79 naturally divides itself into three great heads, — the concurrent, the exclusive, and the auxiliary or supplemental jurisdiction. 1 As the concurrent jurisdiction is that, which is of the greatest extent, and most familiar occurrence in practice, I propose to begin with it. § 76. The concurrent -jurisdiction of courts of equity may be truly said to embrace, if not all, at least a very large portion of the original jurisdiction, inherent in the court from its very nature, or first conferred upon it, at the dissolution or partition of the powers of the Great Council, or Aula Regis, of the King. We have already seen, that it did not take its rise from the introduc- tion of technical uses or trusts, as has sometimes been erroneously supposed. 2 Its original foundation, then, may be more fitly re- ferred to what Lord Coke deemed the true one, — fraud, accident, and confidence. 3 In many cases of this sort, courts of common law are, and for a long time have been, accustomed to exercise jurisdiction, and to afford an adequate remedy. And in many other cases, in which anciently no such remedy was allowed, their jurisdiction is now expanded," so as effectually to reach them.* Still, however, there are many cases of fraud, accident, and con- fidence, which either courts of law do not attempt to redress at all ; or, if they do, the redress which they afford is inadequate and defective. 5 The concurrent jurisdiction, then, of equity, has its true origin in one of two sources ; either the courts of law, although they have general jurisdiction in the matter, cannot give adequate, specific, and perfect relief ; or, under the actual circum- stances of the case, they cannot give any relief at all. The former occurs in all cases, when a simple judgment for the plaintiff, or for the defendant, does not meet the full merits and exigencies of the case ; but a variety of adjustments, limitations, and cross claims are to be introduced, and finally acted on ; and a decree, meeting all the circumstances of the particular case between the very 1 In this division I follow Mr. Fon- 2 Ante, § 42, 43; 1 Cooper's Public Manque and Mr. Jeremy ; and though a Records, 357. more philosophical division might be 8 4 Inst. 84 ; Earl of Bath v. Sherwin, made, I am by no means certain that it 10 Mod. 1 ; 3 Black. Comm. 431. would be more convenient. Mr. Mad- 4 3 Black. Comm. 431, 432. dock has made a different division ; but 6 See 7 Dane's Abridg. ch. 225, art. 5, upon reflection, I have not been inclined § 10 ; art. 6, § 1 ; Com. Dig. Chancery, to give it a preference. 1 Fonbl. Eq. B. 3, E. 8. 1, ch. 1, § 3, -note (/) ; Jeremy on Eq. Juried. Introd. p. xxvii. 80 EQUITY JURISPRUDENCE. [CH. IV. parties, is indispensable to complete distributive justice. The latter occurs, when the object sought is incapable of being accom- plished by the courts of law ; as, for instance, a perpetual injunc- tion, or a preventive process, to restrain trespasses, nuisances, or waste. 1 It may, therefore, be said, that the concurrent jurisdic- tion of equity extends to all cases of legal rights, where, under the circumstances, there is not a plain, adequate, and complete remedy at law. 2 § 77. The subject, for convenience, may be divided into two branches : (1.) that, in which the subject-matter constitutes the principal (for it rarely constitutes the sole) ground of the juris- diction ; and (2.) that, in which the peculiar remedies afforded by courts of equity constitute the principal (although not always the sole) ground of the jurisdiction. Of these we shall endeavor to treat successively in their order, 3 beginning with that of the subject-matter, where the relief is deemed more adequate, com- plete, and perfect in equity than at common law ; but where the remedy is not, or, at least, may not be, of a peculiar and exclusive character. It is proper, however, to add, that as the grounds of jurisdiction often run into each other, any attempt at a scientific method of distribution of the various heads would be impracti- cable and illusory. § 78. And, in the first place, let us consider the cases, where the jurisdiction arises from aecident. By the term accident is here intended, not merely inevitable casualty, or the act of Providence, or what is technically called vis major, or irresistible force ; but such unforeseen events, misfortunes, losses, acts, or omissions, as are not the result of any negligence or misconduct in the party. 4 Lord Cowper, speaking on the subject of accident, as cognizable in 1 See Jeremy on Eq. Jurisd. 292 ; id. the same was entered into, and which 307 ; 3 Wooddes. Lect. lvi. p. 397, &c. ; gives an undue advantage to one of them Beames, Eq. PI. ch. 3, p. 77, 78. over the other in a court of law." Jer- 2 Com. Dig. Chancery, 3 E. 9. emy on Eq. Jurisd. B. 3, Pt. 2, 358. Ac- 8 See Mitford, Eq. PI. by Jeremy, 111 ; cidents, in the sense of a court of equity, 1 Eonbl. Eq. B. 1, ch. 1, § 3, note (/), p. may arise in relation to other things 12. besides contracts, and therefore the con- 4 Grounds and Budim. of the Law, M. fining of the definition to contracts is not 120, p. 81 (edit. 1781). See Jeremy on entirely accurate. The definition is de- Equity Jurisd. B. 3, Pt. 2, Introd. p. 638. fective in another respect ; for it does Mr. Jeremy defines accident, in the sense not exclude cases of unanticipated occur- used in a court of equity, to be " an rences, resulting from the negligence or occurrence in relation to a contract which misconduct of the parties seeking relief, was not anticipated by the parties when § 76-80.] ACCIDENT. 81 equity, said : " By accident is meant "when a case is distinguished from others of the like nature by unusual circumstances ; " 1 a definition quite too loose and inaccurate, without some further qualifications ; for it is entirely consistent with the language, that the unusual circumstances may have resulted from the party's own gross negligence, folly, or rashness. § 79. The jurisdiction of the court, arising from accident, in the general sense, already suggested, is a very old head in equity, and probably coeval with its existence. 2 But it is not every case of accident which will justify the interposition of a court of equity. 3 The jurisdiction, being concurrent, will be maintained only, first, when a court of law cannot grant suitable relief; and, secondly, when the party has a conscientious title to relief. Both grounds must concur in the given case ; for otherwise a court of equity not only may, but is bound to withhold its aid. Mr. Justice Blackstone has very correctly observed, that, " many accidents are supplied in a court of law ; as loss of deeds, mistakes in receipts and accounts, wrong payments, deaths, 4 which made it impossible to perform a condition literally, and a multitude of other contingencies. 5 And many cannot be redressed, even in a court of equity ; as, if by accident a recovery is ill suffered, a devise ill executed, a contin- gent remainder destroyed, or a power of leasing omitted in a fam- ily settlement." 6 § 80. The first consideration then is, whether there is an ade- quate remedy at law, not merely, whether there is some remedy 1 Earl of Bath v. Sherwin, 10 Mod. 1, vest it by decree, on payment, &c. Gar- 3 ; Com. Dig. Chancery, 4 D. 10. rett v. Lynch, 45 Ala. 204.] 2 See East India Company v. Boddam, 6 3 Black. Comm. 431 ; Com. Dig. 9 Ves. 466 ; Armitage v. Wadsworth, Chancery, 3 F. 8. Even this language is 1 Madd. 189 to 193. true in a general sense only; for (as we 3 Whitfield v. Eaussat, 1 Ves. 392, 393. shall presently see) omissions in a family 4 [So upon death of sheriff before mak- settlement, and many other defects in ing conveyance, but after having duly private and legal proceedings, may be made sale and received purchase-money redressed, or rather supplied, in equity. arid made return, equity relieved by de- 1 Eonbl. Eq. B. 1, ch. 1, § 7 ; Mitford, creeing divestiture of the title of the Eq. PI. 127, 128 (4th edit.), by Jeremy, defendant in the process. Stewart v. In Whitfield v. Eaussat (1 Ves. 392), Stokes, 33 Ala. 494.] Lord Hardwicke is reported to have 6 [A court of equity has no power to said: "The loss of » deed is not always' restore lost records of another court, a ground to come into courts of equity Keen v. Jordan, 13 Fla. 327. But where for relief ; for, if there was no more in the records of the court which ordered a the case, although he (the plaintiff) is sale are destroyed, if they cannot be re- entitled to have a discovery of that, stored under statutory provisions, equity whether lost or not, courts of law [some- it seems may relieve, confirm title, and times] admit evidence of the loss of a eq. JUR. — VOL. 1. 6 82 EQUITY JURISPRUDENCE. [CH. IV. at law. 1 And here a most material distinction is to be attended to. In modern times, courts of law frequently interfere, and grant a remedy under circumstances in which it would certainly have been denied in earlier periods. And, sometimes, the legislature, by ex- press enactments, has conferred on courts of law the same remedial faculty which belongs to courts of equity. Now (as we have seen), in neither case, if the courts of equity originally obtained and exercised jurisdiction, is that jurisdiction overturned or impaired by this change of the authority at law in regard to legislative enact- ments ; for, unless there are prohibitory or restrictive words used, the uniform interpretation is, that they confer concurrent and not exclusive remedial authority. 2 And it would be still more diffi- cult to maintain, that a court of law, by its own act, could oust or repeal a jurisdiction already rightfully attached in equity. 3 § 81. One of the most common interpositions of equity under this head is, in the case of lost bonds, or other instruments under seal. 4 Until a very recent period, the doctrine prevailed that there could be no remedy on a lost bond, in a court of common law, because there could be no profert of the instrument, without which the declaration would be fatally defective. 5 At present, however, the courts of law do entertain the jurisdiction, and dispense with the profert, if an allegation of loss, by time and accident, is stated in the declaration. 6 But this circumstance is not permitted in the slightest degree to change the course in equity. 7 deed, proving the existence of it, and the Vol. 3, p. 189) has remarked, that by the contents, just as a court of equity does." old common law, " when a person was to The other parts of his lordship's opinion found a claim by virtue of a deed, which show, that the word " sometimes " should was detained in the hands of another, so be inserted, as a qualification of the Ian- that he was prevented from making a guage. profert of it, he was utterly deprived of 1 Cooper, Eq. PI. 129. the means of obtaining justice according 2 Case v. Fishback, 10 B. Monroe, 40 ; to the forms of law. If a deed of grant Hall v. Hall, 43 Ala. 488. of rent, common, or annuity were lost, as 3 Mitf . Eq. PI. 113, 114 ; 1 Fonbl. Eq. these claims could only be substantiated B. 1, ch. 1, § 3, note (/), p. 15, 16, 17 ; by the evidence of a deed, they vanished Atkinson v. Leonard, 3 Bro. Ch. 218 ; Ex together with it." parte Greenway, 6 Ves. 812 ; Bromley v. s Whitfield v. Eaussat, 1 Ves. 392, Holland, 7 Ves. 19, 20 ; East India Com- 393 ; Co. Lit. 35 (6) ; Kex v. Arundel, pany v. Boddam, 9 Ves. 466 ; Walmsley Hob. 109 ; Atkinson v. Leonard, 3 Bro. v. Child, 1 Ves. 341; Kemp v. Pryor, Ch. 218; Ex parte Greenway, 5 Ves. 7 Ves. 248 to 250; Cooper, Eq. PI. ch. 3, 812; Bromley v. Holland, 7 Ves. 19, 20; p. 129 ; Ludlow v. Simond, 2 Caines, Cas. East India Company v. Boddam, 9 Ves. in Err. 1 ; King v. Baldwin, 17 Johns. 384 ; 466 ; Toulman v. Price, 5 Ves. 238. Post v. Kimberly, 9 Johns. 470; Mayne • Read v. Brokman, 3 T. B. 151; 17. Griswold, 3 Sandf. S. C. 463. Totty v. Xesbitt, 3 T. K. 153, note. * Mr. Beeves (Hist, of English Law, 7 Ibid. ; Walmsley v. Child, 1 Ves. § 80-82.] ACCIDENT. 83 § 82. Independent of this general ground of the inability to make a proper profert of the deed at law, there is another satis- factory ground for the interference of a court of equity. It is, that no other court can furnish the same remedy with all the fit limita- tions which may be demanded for the purposes of justice, by grant- ing relief only upon the terms of the party's giving (when proper) a suitable bond of indemnity. Now, a court of law is incompetent to require such a bond of indemnity as a part of its judgments, although it has sometimes attempted an analogous relief (it is difficult to understand upon what ground), by requiring the pre- vious offer of such an indemnity. 1 But such an offer may, in many cases, fall far short of the just relief ; for, in the intermediate time, there may be a great change of the circumstances of the parties to the bond of indemnity. 2 In joint bonds, there are still stronger reasons ; for the equities may be different between the different defendants. 3 And, besides, a court of equity, before it will grant relief (it is otherwise where discovery only is sought), will insist that the defendant shall have the protection of the oath and affidavit of the plaintiff to the fact of the loss ; thus requiring, what is most essential to the interests of justice, that the party should pledge his conscience by his oath, that the instrument is lost. 4 341; Kemp ». Pryor, 7 Ves. 249, 250; Cooper, Eq. PI. 129, 130 ; Evans v. Bick- nell, 6 Ves. 182 ; Mayne v. Griswold, 3 Sandf. S. C. 478. [Where there was a mortgage upon land to secure personal support, and it had been accidentally lost or mislaid, equity decreed the execution of a new mortgage. Lawrence v. Law- rence, 42 N. H. 109. So, where a deed con- taining an error ref ormable in equity was lost, the execution of another and correct deed was ordered. Hudspeth v. Thomason, 46 Ala. 470. And the court ordered the correction and foreclosure of a mortgage in the same suit. Miller v. Davis, 10 Kan. 541. So, a policy of insurance which limits a vessel to one port, when her charter requires her to use two. Tra- der's Bank v. Ocean Ins. Co., 62 Me. 519. But see Hoddy v. Hoard, 2 Carter (Ind.), 474.] 1 Ex parte Greenway, 6 Ves. 812; Pierson v. Hutchinson, 2 Camp. 211 ; s. c. 6 Esp. 126; Fales v. Russell, 16 Pick. 315 ; Almy v. Reed, 10 Cush. 421 ; Smith v. Rockwell, 2 Hill (N. Y.), 482 ; Hansard v. Robinson, 7 B. & Cressw. 90. (See Tuttle v. Standish, 4 Allen, 481.) [*It is familiar practice, in the courts of law, after final judgment upon a lost note or bill, or any collateral remedy, where there is reason to apprehend the defend- ant is exposed to a double payment of the sum included in the judgment, or any portion of it, to order a stay of execution, until the collateral contract shall be de- posited with the clerk of the court, or a sufficient bond of indemnity given.] 2 East India Company v. Boddam, 9 Ves. 466; Ex parte Greenway, 6 Ves. 812. 8 R>id. 4 Bromley v. Holland, 7 Ves. 19, 20 ; Ex parte Greenway, 6 Ves. 812 ; 1 Fonbl. Eq. B. 1, ch. 1, § 3, note (/), p. 16, 17 ; Whitchurch v. Goldmg, 2 P. Will. 541 ; Anon. 3 Atk. 17 ; Mitf . Eq. PI. by Jeremy, 29, 54, 123, 124; Walmsley v. Child, 1 Ves. 344, 345 ; Cooper, Eq. PI. ch. 3, p. 126, 129, 130 ; id. Introd. p. xxviii. / 84 EQUITY JTJBISPRUnEXCE. [CH. IV. § 83. We hare seen, that, in cases of the loss of sealed instru- ments, equity will entertain a suit for relief, as well as for dis- covery, upon the party's making an affidavit of the loss of the instrument, and offering indemnity. The original ground of grant- ing the relief was the supposed inadequacy of a court of law to afford it in a suitable manner, from the impossibility of making a profert. 1 But, where discovery only, and not relief, is the object of the bill, there, equity will grant the discovery without any affi- davit of loss, or offer of indemnity, and, in a variety of cases, this is all that the plaintiff may desire. 2 The ground of this distinc- tion is, that, when relief is prayed, the proper forum of jurisdic- tion is sought to be changed from law to equity ; and in all such cases an affidavit ought to be required to prevent abuse of the process of the court. But when discovery only is sought, the original jurisdiction remains at law, and equity is merely auxil- iary. The jurisdiction for discovery alone would, therefore, seem upon principle to be universal. But the jurisdiction for relief is special, and limited to peculiar cases ; and in all these cases there must be an affidavit of the loss, and, when proper, an offer of indemnity also in the bill. 3 Leroy v. Yeeder, 1 Johns. Cas. 417. See Chewning v. Singleton, 2 Hill (S. C.) Eq. 371 ; Pennington v. The Governor, 1 Blackf. (Ind.) 78. 1 Ibid. ; Anon. 2 Atk. 61 ; Mitf. Eq. PL by Jeremy, 113, 114. 2 Dormer v. Fortescue, 3 Atk. 132 ; Whitchnrch v. Golding, 2 P. Will. 541 ; Walmsley v. Child, 1 Yes. 344, 345. » In Walmsley v. Child (1 Ves. 344), Lord Hardwicke is reported to hare said, that there are bnt three cases in which a bill for discoTery and relief on lost instru- ments can be maintained in equity. The passage, however, is singularly obscure, and of difficult interpretation ; and I have not been able entirely to satisfy my mind what Lord Hardwicke's real doctrine was, or what were the three cases to which he alluded. Two of them are easily made out ; but the perplexity is in ascertaining the third, as contradistinguished from the other two. The passage is as follows : "But there are cases, upon which you may come into equity on a loss, though remedy may be at law ; and one is clear upon a bill for discovery. But if you come into equity, not only for discovery, but to have relief, on the foundation of loss, that changes the jurisdiction. And there are but three cases in which you are entitled to that ; in every one of which you are obliged to annex an affi- davit to the bill, to prove the loss. If the deed or instrument, upon which the de- mand arises, is lost, and you only come for discovery, you are entitled thereto, without affidavit ; but if relief is prayed beyond that discovery, to have payment of the debt, affidavit of the loss must be annexed ; for that changes the jurisdic- tion. If the deed lost concerned the title of lands, and possession prayed to be es- tablished, such affidavit must be annexed. Another case is of a personal demand, where loss of a bond, a bill in equity on that loss, to be paid the demand ; there, a bill for discovery will not be sufficient, but it must be to be paid the money thereon ; but an affidavit must be an- nexed. The reason of the difference be- tween a bond and a note is, that in an action at law, a profert in Curiam of the bond must itself be made ; otherwise oyer § 83, 84.J ACCIDENT. 85 § 84. It has been remarked by Lord Hardwicke, that the loss of a deed is not always a ground to come into a court of equity for relief ; for, if there is no more in the case, although the party may be entitled to a discovery of the original existence and validity of the deed, courts of law may afford just relief, since they will admit evidence of the loss and contents of a deed, just as a court of equity will do. 1 To enable the party, therefore, in case of a lost deed, to come into equity for relief, he must establish, that there is no remedy at all at law, or no remedy which is adequate, and adapted to the circumstances of the case. In the first place, he may come into equity for payment of a lost bond ; for in such a case his bill need not be for a discovery only, but may also be for relief ; since the jurisdiction attached, when there was no remedy at law for want of a due profert. 2 In the next place, he may come into equity when a deed of land has been destroyed, or is concealed by the defendant ; for then, as the party cannot know which alterna- tive is correct, a court of equity will make a decree (which a court of law cannot), that the plaintiff should hold and enjoy the land, until the defendant shall produce the deed, or admit its destruction. 3 cannot be demanded by the defendant ; and if oyer is not given, the plaintiff can- not proceed. But that is not necessary in the case of notes ; no oyer is demanded upon them, and proving the contents being sufficient ; and nothing standing in the plaintiff's way. Another case, in which you may come into this court on a loss, is, to pray satisfaction and payment of it upon terms of given security. In an action at law, the plaintiff might offer, but the defendant could not be compelled to take ; but in equity, that would be consideration, whether they were reason- able. That was the case of Teresy v. Gorey, as Lord Nottingham has taken the name in an authentic record I have of it ; which was Easter, 28 C. 2, where a bill of exchange was drawn on the de- ' f endant, and indorsed, in the third place, to the plaintiff, by whom the bill was either lost or mislaid, as appeared by the affidavit annexed. And the bill prayed, that the defendant might be decreed to pay the plaintiff the money, as last in- dorsee, according to the acceptance, the plaintiff first giving security to save the defendant harmless against all former assignments ; which was so decreed, but without damages and costs. In a book called Finch's Reports, 301, the decree is somewhat larger, and the acceptance of the defendant was after the third in- dorsement, and it is in that book, though not so in the manuscript report. And, indeed, I do take it to be as in the book ; and then there is no doubt of the plain- tiff's right; but if that be material, it shall be inquired into. In that case, if the plaintiff could, at law, prove the con- tents of his bill, and the indorsement and the loss of it, he might have brought his action at law, upon that bill, without coming into this court. But he was ap- prehensive the course of trade might stand in his way at law, and therefore came into this court upon terms, sub- mitting it to the judgment of the court, whether they were not reasonable." i Whitfield v. Faussat, 1 Ves. 392, 393; ante, §79, note (1). (See Thomas v. Caldwell, 50 Ilk 138; Donaldson v. Williams, 50 Mis. 407.) 2 Ibid. ; Walmsley v. Child, 1 Ves. 344, 345 ; post, § 88. 8 Rex v. Arundel, Hob. 108 b ; 1 Ves. 392. ( See Worthy v. Tate, 44 Ga. 152.) 86 EQUITY JURISPRUDENCE. [CH. IV. So, if a deed concerning land is lost, and the party in possession prays discovery, and to be established in his possession under it, equity will relieve; for no remedy, in such a case, lies at law. 1 And, where the plaintiff is out of possession, there are cases in which equity will interfere upon lost or suppressed title-deeds, and decree possession to the plaintiff ; but in all such cases there must be other equities calling for the action of the court. 2 Indeed, the bill must always lay some ground besides the mere loss of a title- deed, or other sealed instrument, to justify a prayer for relief; as, that the loss obstructs the right of the plaintiff at law, or leaves him exposed to undue perils in the future assertion of such right. 3 § 85. Although, upon a lost bond, equity will decree payment for the reason already stated ; yet it has been said, that it will not entertain jurisdiction for relief upon a lost negotiable note, or other unsealed security, so as to decree payment upon the mere fact of loss ; for no such supposed inability to recover at law exists in the case of such a note or unsealed contract, which is lost, as exists for want of a profert of a bond at law. No profert is neces- sary, and no oyer allowed at law of such a note or security; 4 and a recovery can be had at law, upon mere proof of the loss. 5 But, then, a court of law cannot, as we have seen, insist upon an indemnity, or at least cannot insist upon it in such a form as may operate as a perfect indemnity. 6 In such a case, therefore, a court of equity will entertain a bill for relief and payment, upon an offer in the bill to give a proper indemnity under the direction of the court, and not without. And such an offer entitles the court to require an indemnity, not strictly attainable at law, and founds a just jurisdiction. 7 1 Walmsley v. Child, 1 Ves. 434, 435. due. The ground of the decision was, See also Dalton v. Coatsworth, 1 P. Will, that by the custom of merchants the ac- 731 ; Dormer v. Fortescue, 3 Atk. 132. ceptor was entitled to the possession of 2 Dormer v. Fortescue, 3 Atk. 132. the bill as his voucher for the payment ; 3 See 1 Fonbl. Eq. B. 1, ch. 1, § 3, and the extreme inconvenience of requir- note (/ ) ; id. ch. 3, § 3. See Mitf . Eq. ing the acceptor to prove the loss, if he PI. by Jeremy, 113, 114. should be required so to do, in a suit by 4 Walmsley v. Child, 1 Ves. 345 ; another person as holder. The court said Glynn v. Bank of England, 2 Ves. 38, 41. the proper remedy was in equity, where 6 Ibid. In Hansard v. Robinson (7 an offer of indemnity might be made and B. & Cressw. 90), it was expressly decided enforced. See Thayer v. King, 15 Ohio, that no action would lie by the indorsee 242 ; Lazell v. Lazell, 12 Verm. 443. of a bill of exchange against the accep- 6 Ante, § 82 ; 2 Camp. 211 ; 7 B & tor, where the bill was lost and not pro- Cressw. 90. duced at the trial, although the loss was 7 Walmsley v. Child, 1 Ves. 344, 345 ; established to have been after it became Teresey v. Gorey, Finch, 301 ; s. c. 1 § 84-86 a.] accident. 87 § 86. In the cases which we have been considering, the lost note, or other security, was negotiable. And, according to the authorities, this circumstance is most material ; for otherwise it would seem, that no indemnity would be necessary, 1 and conse- quently no relief could be had in equity. The propriety of this exception has been somewhat doubted ; for the party is entitled, upon payment of such a note or security, to have it delivered up to him, as voucher of the payment and extinguishment of it ; and it may have been assigned, in equity, to a third person. 2 And although, in such a case, the assignee would be affected by all the equities between the original parties, yet the promisor may not always, after a great length of time, be able to establish those equities by competent proof ; and, at all events, he may be put to serious expense and trouble, to establish his exoneration from the charge. The jurisdiction of courts of equity, under such circum- stances, seems perfectly within the principles on which such courts ordinarily proceed to grant relief, not only in cases of absolute loss, but of impending or probable mischief or inconvenience. And a bond of indemnity, under such circumstances, is but a just security to the promisor against the vexation and accumulated expenses of a suit. 3 [* § 86 a. A court of equity will grant relief in the case of a lost note, negotiable, but not negotiated, and lost when overdue. The propriety of a resort to a court of equity, in such cases, rests upon the right of the promisor, in all cases of written securities for money, to have the security surrendered, on payment, and that he is otherwise not expected to make payment ; and the necessity of discovery, in equity, by reason of the accident of the loss of the paper. In such cases it is proper to annex to the bill an affi- davit of the loss, and to submit to give such indemnity as the court shall deem meet. But these are not of the essence of the jurisdiction in equity, and may be supplied by amendment, or upon Ves. 345 ; Glynn v. Bank of England, 1 455. [* Macartney v. Graham, 2 Sim. Ves. 446; 2 Ves. 38; Mossop v. Eadon, 285.) 16 Ves. 430, 434; Chitty on Bills (8th 2 Hansard v. Eobinson, 7 Barn. & edit. 1833), p. 290; Bromley v. Holland, 7 Cressw. 90; Story on Promissory Notes, Ves. 19 to 21 ; Davies v. Dodd, 4 Price, § 106 to 116, § 243 to 245, § 445. 176; s. c. 1 Wils. Exeh. 110; (Savannah 3 See Hansard v. Robinson, 7 B. & N. Bank v. Haskins, 101 Mass. 370). Cressw. 90 ; East India Company v. Bod- 1 Mossop v. Eadon, 16 Ves. 430, 434. dam, 9 Ves. 468, 469 ; Davies v. Dodd, 4 See Chitty on Bills (8th edit. 1833), p. Price, 176; (Gordon v. Manning, 44 Miss. 291, note; Hough v. Barton, 20 Verm. 757). 88 EQUITY JURISPRUDENCE. [CH. IV. the motion of the defendant, and the plaintiff still have a decree. But where the claim, at the time of the final decree, is barred by the statute of limitations, there is no indemnity required, and relief will be granted, although none were offered in the bill be- fore the claim was barred. 1 There is no absolute necessity of resort to a court of equity, as the law now stands, except in the case of negotiable instruments, negotiated while current, courts of law now allowing a recovery at law, upon lost instruments in all other cases. And it is only in this class of cases that the offer of an indemnity seems, in practice, always to be made. 2 If the plain- tiff be the party solely in fault, in cases of this character, he will be compelled to pay defendant's costs of the suit., as between attorney and client. But the defendant should bring the money into court, at the earliest opportunity, and offer it for the accept- ance of the plaintiff, upon giving such indemnity as the court shall deem reasonable. And when that was not done, and the plaintiff's account of the manner of the loss of the instrument was sus- picious, relief was granted, without cost to either party. 3 ] § 87. It is upon grounds somewhat similar, that courts of equity often interfere, where the party, from the long possession or exer- cise of a right over property, may fairly be presumed to have had a legal title to it, and yet has lost the legal evidence of it, or is now unable to produce it. Under such circumstances, equity acts upon the presumption, arising from such possession, as equivalent to complete proof of the legal right. Thus, where a rent has been received and paid for a long time, equity will enforce the payment, although no deed can be produced to sustain the claim ; or the precise lands, out of which it is payable, cannot, from con- fusion of boundaries, or other accident, be now ascertained. 4 § 88. In the cases of supposed lost instruments, where relief is sought, it has been seen, that, as a guard upon the preliminary exercise of jurisdiction, an affidavit of the loss of the instrument, and that it is not in the possession or power of the plaintiff, is i [* Hopkins v. Adams, 20 Vt. 407, and v. Foley, 1 Vera. 359 ; Eton College v. cases cited. Beauchamp, 1 Ch. Cas. 121 ; Holder v. 3 Hopkins v. Adams, 20 Vt. 407, and Chambury, 3 P. Will. 256 ; Duke of Leeds cases cited. v. Powell, 1 Ves. 171 ; Duke of Bridge- s' Ibid.] water v. Edwards, 4 Bro. Pari. C. 139; 4 1 Fonbl. Eq. B. 1, ch. 3, § 3, and note Duke of Leeds v. New Radnor, 2 Bro. (g); Steward v. Bridger, 2 Vern. 516; Ch. C. 338, 518; Benson v. Baldwin, 1 Collett v. Jaques, 1 Ch. Cas. 120 ; Cox Atk. 598 ; Cooper, Eq. PI. 130. § 86 0-89.] ACCIDENT. 89 indispensable to sustain the bill. 1 And, in order to maintain the suit, it is further indispensable, that the loss, if not admitted by the answer of the defendant, should, at the hearing of the cause, be established by competent and satisfactory proofs. 2 For the very foundation of the suit in equity rests upon this most material fact. If, therefore, the plaintiff should fail, at the hearing, to es- tablish the loss of the instrument, 3 or the defendant should over- come the plaintiff's proofs by countervailing testimony of its existence, the suit will be dismissed, and the plaintiff remitted to the legal forum. 4 [As where the bond has been destroyed or sup- pressed by the obligee. 5 ] But if the loss is sufficiently established, when it is denied by the defendant's answer, the plaintiff will be entitled to relief, although he may have other evidence, compe- tent and sufficient to establish the existence and contents of the instrument, of which he might have availed himself in a court of law. 6 For if the jurisdiction once attaches by the loss of the in- strument, a court of equity will not drive the party to the hazard of a trial at law, when the case is fit for its own interposition, and final action upon a claim to sift the conscience of the party by a discovery. § 89. We have thus far been considering cases of accident, founded upon lost instruments. But there are many other cases of accident, where courts of equity will grant both discovery and relief. One of the earliest cases in which they were accustomed to interfere, was, where by accident a bond had not been paid at the appointed day, and it was subsequently sued ; or where a part only had been paid at the day. 7 This jurisdiction was afterwards 1 East India Co. v. Boddam, 9 Ves. * See Jeremy on Eq. Jurisd. 359, 360, 466 ; Cooper, Eq. PI. 125, 126. See ante, 361 ; Cooper, Eq. PI. 238, 239 ; Mitf . Eq. § 82. [But that the affidavit may be dis- PI. by Jeremy, 222 ; Armitage v. Wads- pensed with if the loss be clearly shown, worth, 1 Mad. 192 to 194; 1 Fonbl. Eq. see Graham v. Hockwith, 1A.K. Marsh. B. 1, eh. 3, § 3, note (h). (But that find- (Ky.) 424 ; that the rule only applies ing of the lost instrument after suit where the jurisdiction depends solely on brought will not defeat the jurisdiction, the loss, see Purviance v. Holt, 3 Gilm. See Crawford v. Summers, 3 J. J. Marsh. (HI.) 395.] (Ky.) 300; Miller v. Wells, 5 Mis. 6; 2 Stokoe v. Bobson, 3 Ves. & B. 50; Hamlin v. Hamlin, 3 Jones, Eq. (N. C.) Smith v. Bicknell, id. note; Cookes o. 191.) Hellier, 1 Ves. 234, 235; Walmsley v. 6 paries v. Davies, 6 Iredell, Eq. Child, 1 Ves. 344, 345; Cooper, Eq. PI. 418.] 239; Clavering v. Clavering, 2 Ves. 232; '1 Ponbl. Eq. B. 1, ch. 1, § 3, note (f), East India Company v, Boddam, 9 Ves. p. 17. But see ante, § 84, and note (3). 466. 1 Cary's Rep. 1, 2 ; 7 Ves. 273. See 8 As to proof of loss, see Green v. also Harg. Law Tracts, p. 431, 432 ; Nor- Bailey, 15 Sim. 542. burie on Chancery Abuses. 90 EQUITY JURISPRUDENCE. [CH. IV. greatly enlarged in its operation, and applied to all cases, where relief is sought against the penalty of a bond, upon the ground that it is unjust for the party to avail himself of the penalty, when an offer of full indemnity is tendered. The same principle gov- erns in the case of mortgages, where courts of equity constantly allow a redemption, although there is a forfeiture at law. 1 And it may now be stated generally, that, where an inequitable loss or injury will otherwise fall upon a party from circumstances beyond his own control, or from his own acts done in entire good faith, and in the performance of a supposed duty, without negligence, courts of equity will interfere to grant him relief. § 90. Cases, illustrative of this doctrine, may easily be put. In the course of the administration of estates, executors and admin- istrators often pay debts and legacies upon the entire confidence that the assets are sufficient for all purposes. It may turn out, from unexpected occurrences, or from debts and claims, made known at a subsequent time, that there is a deficiency of assets. Under such circumstances, they may be entitled to no relief at law. But in a court of equity, if they have acted with good faith, and with due caution, they will be clearly entitled to it, upon the ground, that, otherwise, they will be innocently subject to an un- just loss, from what the law itself deems an accident. 2 Indeed, i Seton v. Slade, 7 Ves. 273, 274 ; 2 Seton v. Slade, 7 Ves. 273, 274 ; Lennon White & Tudor's Eq. Lead. Cas. 377 ; v. Napper, 2 Sch. & Lefr. 684, 685 ; post, Lennon u. Napper, 2 Sch. & Lefr. 684, § 1313, 1314, 1316. [* And where, as in 685 ; Com. Dig. Chancery, 1 A. 5 ; Mitf . the American practice, decrees of f ore- Ch. PI. by Jeremy, 117, 130 ; Cooper, Eq. closure became absolute by mere lapse of PI. 130, 131 ; 2 Fonbl. Eq. B. 3, ch. 3, § 4, time, without the confirmatory order of and notes. Lord Redesdale puts the re- the court ; and the mortgagor, intending lief in cases of this sort upon the ground to pay the money, is prevented, by acci- of accident. His language is : "In many dent or mistake, or by sickness, the court cases of accidents, as lapse of time, the of chancery will relieve against the acci- courts of equity will also relieve against dent and extend the time of foreclosure, the consequences of the accident in a Doty v. Whittlesey, 1 Root, 310 ; Crane court of law. Upon this ground they v. Hancks, 1 Root, 468. So in the con- proceed in the common case of a mort- verse case where a vendor reserved a gage, where the title of the mortgagee lien " to be enforced within six years or has become absolute at law, upon default stand for nought thereafter," and was of payment of the mortgage money at prevented by civil war from enforcing it the time stipulated for payment." Mitf. within the time, equity gave relief. At- Eq. PI. by Jeremy, 130. I apprehend, kins v. Rison, 25 Ark. 138. For a case that this is not the true ground ; but that where foreclosure was opened on ground it turns upon the construction of the con- of accident, see Bostwick v. Stiles, 35 tract, being a mere security ; and time Conn. 195.] not being of the essence of the contract ; 2 Edwards v. Freeman, 2 P. Will. 447 ; and the unconscionableness of insisting Johnson v. Johnson, 3 Bos. & Pull. 162, upon taking the land for the money. 169; Hawkins v. Day, Ambler, 160; § 89-91.] ACCIDENT. 91 it has been said, that in England no case at law has yet decided that an executor or administrator, once become fully responsible, by an actual receipt of a part of his testator's property, for the administration thereof, can found his discharge in respect thereof, as against a creditor seeking satisfaction out of the testator's assets, either on the score of inevitable accident, or destruction by fire, or loss by robbery or the like, or of reasonable confidence disappointed, or of loss by any of the other various means, which afford an excuse to ordinary agents and bailees in cases of loss without any negligence on their part ; and that courts of law are disinclined to make such a precedent. 1 If this be a true descrip- tion of the actual state of the law on this subject, it would be- come an intolerable grievance, if courts of equity should not be able, under any circumstances, to interfere in favor of executors and administrators, in order to prevent such gross injustice. And, in cases of this sort, relief has accordingly been often granted by courts of equity, in mitigation and melioration of the hardship of the common law. 2 But, to found a good title to such relief, it seems indispensable, that there should have been no negligence or misconduct on the part of such executors or administrators in the payment of the assets ; for if there has been any negligence or misconduct, that, perhaps, may induce a court of equity to with- hold its assistance. 3 § 91. Other cases may be easily put, in which an executor or Chamberlain v. Chamberlain, 2 Freem. Chief Justice Mansfield, in the same case, 141. But see Coppin v. Coppin, 2 P. doubted it; and said if he could, it would Will. 296, 297 ; Orr v. Kaines, 2 Ves. 194; be only under the principle of cequum et TJnderwood v. Hatton, 5 Beavan, 36. bonum. i Crosse v. Smith, 7 East, 246 ; John- 2 Croft's Executors v. Lyndsey, 2 son v. Johnson, 3 Bos. & Pull. 162, 169. Freem. 1 ; s. u. 2 Eq. Abridg. 452 ; Holt But see Orr v. Kaines, 2 Ves. 194; Haw- v. Holt, 1 Ch. Cas. 190; 2 P. "Will. 447; kins v. Day, Ambler, 160. But, even at Orr v. Kaines, 2 Ves. 194 ; Moore v. law, the payment of a simple contract Moore, 2 Ves. 600 ; Nelthorp v. Hill, 1 Ch. debt, without notice of a specialty debt, Cas. 135 ; Noel v. Bobinson, 1 Vern. 90, wou d, in case of a deficiency of assets, 94 ; 2 Eq. Abridg. Ex'rs, K. p. 452. See protect the executor or administrator. Biddle v. Mandeville, 5 Cranch, 330. Davis v. Monkhouse, Eitzgib. 76 ; Brook- 3 See Hovenden's note to 2 Freem. 1 ing v. Jennings, 1 Mod. 174 ; Britton v. (n. 3) ; 1 Ch. Cas. 136; 1 Fonbl. Eq. B. 1, Bathurst, 3 Lev. 115 ; Hawkins v. Day, ch. 3, § 3. [* We apprehend there is no Ambler, 160, 162. In Brisbane v. Dacres ground whatever, at the present day, to (5 Taunt. 143, 159), Mr. Justice Chambre suppose that an executor or administra- seems to have thought, that an adminis- tor would be held to any different rule of trator, paying money per capita, in misap- responsibility in regard to assets, in a plication of the effects of the intestate, court of law, from that which prevails in might recover it back at law. But Lord courts of equity, as stated in this section.] 92 - EQUITY JURISPRUDENCE. [CH. IV. administrator would be entitled to relief in equity. Thus, if he should receive money, supposed to be due from a debtor to the estate ; and it should turn out that the debt had been previously paid ; and, before the discovery, he had paid away the money to creditors of the estate ; in such a case the supposed debtor may recover back the money in equity from the executor ; and the lat- ter may, in the same manner, recover it back from the creditors, to whom he paid it. 1 In like manner, if an executor should recover a judgment, and receive the amount, and apply it in discharge of debts, and then the judgment should be reversed, he is com- pellable to refund the money, and may recover it back from the creditors. 2 § 92. Upon analogous grounds a court of equity will interpose in favor of an unpaid legatee, to compel the other legatees, who have been paid their full legacies, to refund in proportion, if there was an original deficiency of assets to pay all the legacies, and the executor is insolvent ; but not, as it should seem, if there was no such original deficiency, and there has been a waste by the exec- utor. 3 The reason of the distinction seems to be, that the other legatees in the first case have received more than their just pro- portion of the assets ; but in the last case no more than their just proportion. And, therefore, there is nothing inequitable on their part in availing themselves of their superior diligence. 4 But leg- 1 Pooley v. Ray, 1 P. Will. 355 ; 2 Eq. if he knew of the debts at the time of the Abridg. Ex'rs, 452, pi. 5. payment, but only when the debts were 2 Ibid. then unknown to him. Nelthorp v. Hill, 8 Orr v. Kaines, 2 Ves. 194 ; Moore v. 1 Ch. Cas. 136 ; Jewon v. Grant, 3 Moore, 2 Ves. 600 ; Anon., 1 P. Will. Swanst. 659 ; Hodges v. Waddington, 2 495 ; Walcot v. Hall, id. Cox's note ; s. o. Vent. 360 ; 2 Fonbl. Eq. B. 4, Pt. 1, ch. 2, 1 Bro. Ch. 305, and Belt's notes ; Noel § 5, note (p). So that the rights of the v. Robinson, 1 Vern. 94, Raithby's note executor himself, and those of legatees (1) ; Edwards v. Freeman, 2 P. Will. 447. and creditors, are not precisely the 6ame * Id., 2 Fonbl. Eq. B. 4, Pt. 1, ch. 2, in all cases of a deficiency of assets. See § 5, note (p) ; Lupton v. Lupton, 2 Johns. 2 Eq. Abridg. Legacies, B. 13, p. 554 ; 17 Ch. 614, 626. But it seems, that the exe- Mass. 384, 385. In Massachusetts, an cutor himself cannot, in a case of defi- executor, who has voluntarily paid a lega- ciency of assets, compel the legatees to tee, can, on the subsequent discovery of refund in favor of another legatee, who a deficiency of assets, recover back the is unpaid, where the executor has made money at law. And so, if he has paid a voluntary payment ; but only where some creditors in full, and there is after- the payment has been compulsive. 2 wards a deficiency of assets, he may re- Fonbl. Eq. B. 4, Pt. 1, ch. 2, § 5, note (p) ; cover back from the creditors so paid, in Hodges v. Waddington, 2 Vent. 360 ; proportion to the deficiency. Walker v. Newman v. Barton, 2 Vern. 205 ; Orr v. Hill, 17 Mass. 380 ; Walker v. Bradlee, Kaines, 2 Ves. 194. And in eases of cred- 3 Pick. 261. See Riddle v. Mandeville, 5 itors he cannot compel legatees to refund, Cranch, 329, 330. § 91-94.J ACCIDENT. 93 atees are always compellable to refund in favor of creditors ; "be- cause the latter have a priority of right to satisfaction out of the assets. 1 § 93. Other illustrations of the doctrine of relief in equity, upon the ground of accident, may be stated. Suppose a minor is bound as apprentice to a person, subject to the bankrupt laws, and a large premium is given for the apprenticeship to the master, and he becomes bankrupt during the apprenticeship ; in such a case, equity will interfere, and apportion the premium, upon the ground of the failure of the contract from accident. 2 So, if stock of a government is held for the benefit of A. during life, and afterwards the growing payments, as well as the arrears, are to be for the benefit of B. ; and then a revolution should occur, by which the payments should be suspended for several years ; and A. should die, before the arrears are paid ; there, such revolution would be treated as an accident ; and the representatives of A. would be entitled to the arrears, and not B., notwithstanding the language of the contract. For the arrears, supposed in the contract, could mean only such as might ordinarily occur, and not such as should arise from extraordinary events. 3 So, if an annuity is directed by a will to be secured by public stock, and an investment is made accordingly, sufficient at the time for the purpose ; but afterwards the stock is reduced by an act of parliament, so that the stock be- comes insufficient ; equity will decree the deficiency to be made up against the residuary legatees, as an accident.* § 94. In the execution of mere powers, it has been said that a court of equity will interpose, and grant relief on account of accident, as well as of mistake. And this seems regularly true, where, by accident, there is a defective execution of the power. But where there is a non-execution of the power by accident, there seems more reason to question the doctrine. It is true, that it was said by two judges in a celebrated case, that, if the party appear to have intended to execute his power, and is prevented by death, equity will interpose to effectuate his intent ; for it is an i Noel v. Robinson, 1 Vera. 90, 94 ; id. 2 Hale v. Webb, 2 Bro. Ch. 78, and 460 ; Newman v. Barton, 2 Vera. 205 ; Belt's note. See 1 Fonbl. Eq. B. 1, ch. 5, Nelthorp v. Hill, 1 Ch. Caa. 136 ; 2 Fonbl. § 8, note (g) ; Ex parte Sandby, 1 Atk. Eq. B. 4, Pt. 1, ch. 2, § 5, note (p) ; Lup- 149 ; post, § 472. ton v. Lupton, 2 Johns. Ch. 614, 626; » Hatchett v. Pattle, 6 Madd. 4. Anon., 1 Vera. 162 ; Hardwick v. Mynd, * Daries v. "Wattier, 1 Sim. & Stu. 463 ; 1 Anst. 112. May v. Bennet, 1 Russell, 370. 94 EQUITY JURISPRUDENCE. [CH. IT. impediment by the act of God. 1 But it is doubtful whether this doctrine can be maintained, unless the party has taken some pre- paratory steps for the execution ; so that it may be deemed a case, not of non-execution, but of defective execution. 2 And it has been said, that equity will also relieve in cases of a defective exe- cution of a power, where it is rendered impossible, by circum- stances over which the party has no control, for him to execute it ; as if he is sent abroad by the government, and the prescribed wit- nesses cannot be obtained ; or if the remainder-man refuses to the party a sight of the deeds creating the power, so that the party cannot ascertain the proper form of executing it. 3 § 95. In regard to the defective execution of powers, resulting either from accident or mistake, or both, and also in regard to agreements to execute powers (which may generally be deemed a species of defective execution), 4 courts of equity do not in all cases interfere and grant relief ; but grant it only in favor of per- sons, in a moral sense entitled to the same, and viewed with pecu- liar favor, and where there are no opposing equities on the other side. 5 Without undertaking to enumerate all the qualifications of doctrine, belonging to this intricate subject, it may be stated, that courts of equity, in cases of defective execution of powers, will (unless there be some countervailing equity) interpose, and grant relief in favor of purchaser, 6 creditors, 7 a wife, a child, and a charity; but not in favor of the donee of the power, or a husband, or grandchildren, 8 or remote relations, or strangers generally. 9 § 96. But in cases of defective execution of powers, we are carefully to distinguish between powers which are created by private parties, and those which are specially created by statute ; as, for instance, powers of tenants in tail to make leases. The 1 Earl of Bath and Montague's case, 4 2 Chance on Powers, ch. 23, § 1, art. 3 Ch. Cas. 69, 93 ; 1 Eonbl. Eq. B. 1, ch. 2824, 2825, 2897 to 2916. 4, § 25, note (k) ; id. B. 1, ch. 1, § 7, note 6 2 Chance on Powers, ch. 23, § 2, art. (v) ; Sugden on Powers, ch. 6, § 2, p. 378 2817 to 2932. (3d edit.). 6 Schenck v. Ellingwood, 3 Edw. Ch. 2 See 1 Eonbl. Eq. B. 1, ch. 4, § 25, 175. note (h), note (k) ; Smith v. Ashton, 1 Ch. 7 Dennison v. Goehring, 7 Barr, 175. Cas. 264 ; 2 Chance on Powers, ch. 23, § 3, 8 Porter v. Turner, 3 S. & R. 108. art. 2999 to 3004 ; id. 1, § 1, art. 2817 » 2 Chance on Powers, ch. 23, § 1, art. to 2923 ; Sugden on Powers, ch. 6, § 2, 2830 to 2858 ; id. 2859 to 2863 ; id. 2864 p. 378 (3d edit.). to 2873 ; 1 Fonbl. Eq. B. 1, ch. 1, § 7, and s 1 Eonbl. Eq. B. 1, ch. 5, § 2, note (Ji) ; note (u) ; id. B. 1, ch. 4, § 25, notes {h, i) ; Earl of Bath and Montague's case, 3 Ch. id. B. 1, ch. 5, § 2, and note (6). Cas. 68 ; Gilb. Lex Pretoria, p. 305, 306. § 94-98.] ACCIDENT. 95 latter are construed with more strictness, and whatever formalities are required by the statute, must be punctually complied with, otherwise the defect cannot be helped, or, at least, may not, per- haps, be helped in equity ; for courts of equity cannot dispense with the regulations prescribed by a statute ; at least, where they constitute the apparent policy and object of the statute. 1 § 97. As to the defects which may be remedied, they may gen- erally be said to be any which are not of the very essence or sub- stance of the power. Thus, a defect by executing the power by will, when it is required to be by a deed, or other instrument, inter vivos, will be aided. 2 So, the want of a seal, or of witnesses, or of a signature, and defects in the limitations of the property, estate, or interest, will be aided. And, perhaps, the same rule will apply to defective executions of powers hj femes covert. But equity will not aid defects which are of the very essence or substance of the power ; as, for instance, if the power be executed without the consent of parties, who are required to consent to it. So, if it be required to be executed by will, and it is executed by an irrev- ocable and absolute deed ; for this is apparently contrary to the settler's intention, a will being always revocable during the life of the testator •, whereas, a deed would not be revocable unless expressly so stated in it. 3 § 98. But a class of cases more common in their occurrence, as well as more extensive in their operation, will be found, where trusts, or powers in the nature of trusts, are required to be exe- cuted by the trustee in favor of particular persons, and they fail of being so executed by casualty or accident. In all such cases equity will interpose, and grant suitable relief. Thus, for instance, if a testator should, by his will, devise certain estates to A., with i 1 Fonbl. Eq. B. 1, ch. 1, § 7, and note 2874 to 2896 ; id. art. 2930 ; id. 2980 to (t) ; id. B. 1, ch. 4, § 25, note (e) ; Earl of 2984. I have contented myself with these Darlington v. Pulteney, Cowp. 267. But general statements on this confessedly see 2 Chance on Powers, ch. 23, § 2, art. involved topic, as a full investigation of 2985 to 2997 ; post, § 169, 177, and note all the doctrines concerning it more prop- (3) ; Bright v. Boyd, 1 Story, 478. See erly belongs to a treatise on powers. The Gridley's Heirs v. Phillips, 5 Kans. 349. learned reader will find the whole subject [Non-execution of sheriff's deed by reason fully examined, and all the leading au- of death was relieved against in Stewart thorities brought together, in 2 Chance on v. Stokes, 33 Ala. 494. Equity will treat Powers, ch. 23, § 1, 2, 3, art. 2818 to 3024, as valid a deed executed in name of the and Sugden on Powers, ch. 6, p. 344 to agent instead of the principal. Kearney 393 (3d edit.), and Powell on Powers, p. v. Vaughan, 50 Mis. 284.] 54, 155, 243, 280. See post, § 173, 174. 2 See Mill v. Mills, 8 Irish Eq. 292. See also 1 White & Tudor, Eq. Lead. 8 2 Chance on Powers, ch. 23, § 1, art. Cases, 214. 96 EQUITY JURISPRUDENCE. [CH. IV. directions, that A. should, at his death, distribute the same among his children and relations as he should choose, and A. should die without making such distribution, a court of equity would inter- fere, and make a suitable distribution ; because it is not given to the devisee as a mere power, but as a trust and duty which he ought to fulfil ; and his omission so to do by accident, or design, ought not to disappoint the objects of the bounty. 1 It would be very different if the case were of a mere naked power, and not a power coupled with a trust. 2 § 99. Another class of cases is, where a testator cancels a former will upon the presumption that a later will made by him is duly executed when it is not. In such a case it has been decided that the former will shall be set up against the heir in a court of equity, and the devisee be relieved there, upon the ground of accident. 3 But this class seems more properly to belong to the head of mistake, or of a conditional presumptive revocation, where the condition has failed. 4 § 99 a. Courts of equity will also interfere and grant relief (as we shall presently more fully see) where there has been by accident a confusion of the boundaries between two estates. 5 So they will also grant relief, where, by reason of such confusion of boundaries by accident, the remedy by distress for a rent charged thereon is gone. 6 § 99 b. So, where by accident or mistake, upon a transfer of a bill of exchange, or a promissory note, there has been an omission by the party to indorse it according to the intention of the trans- fer, in such a case, the party, or, in case of his death, his executor 1 See Gibbs v. Marsh, 2 Mete. 243 ; wills during the life of the testator ; cer- Withers o. Yeadon, 1 Richardson's Eq. tainly not, unless to relieve against fraud. 325. Non-execution of deed by sheriff But where a will, after the death of the by reason of death was relieved against testator, was fraudulently suppressed by in Stewart v. Stokes, 33 Ala. 494. those interested in the estate, and by 2 Harding v. Glyn, 1 Atk. 469, and note reason thereof, administration was taken by Saunders ; 2 White & Tudor's Eq. without regard to the will, and the will Lead. Cas. 685, and notes ; Brown v. was never proved in the probate court, Higgs, 4 Ves. 709 ; 5 id. 495 ; 8 id. 561 ; equity will compel the payment of the 2 Chance on Powers, ch. 23, § 1. legacies given by the will. Mead v. The 8 Onions v. Tyrer, 1 P. Will. 343, 345 ; Heirs of Langdon, cited in 22 Verm. 50 ; s. c. 2 Vern. 741 ; Prec. Ch. 459. [* It is post, § 254.] questionable whether at the present day, * IP. Will. 345, Cox's note ; Burten- and especially in this country, where the shaw v. Gilbert, Cowp. 49. probate of wills, even as to real estate, is 6 Mitf. Eq. El. by Jeremy, 117 ; post, confined exclusively to the courts of pro- § 565, § 615 to 622. bate, the courts of chancery would inter- 6 i) u ke of Leeds v. Powell, 1 Ves. 171 ; fere with the execution or revocation of post, § 622. § 98-102.] ACCIDENT. 97 or administrator, may be compelled in equity to make tie indorse- ment, and if the party has since become bankrupt, or his estate is insolvent, his assignees will be compelled to make it ; for the trans- action amounts to an equitable assignment, and a court of equity will clothe it with a legal effect and title. 1 § 100. These may suffice, as illustrations of the general doc- trine of relief in equity in cases of accident. They all proceed upon the same common foundation, that there is no adequate or complete remedy at law under all the circumstances ; that the party has rights which ought to be protected and enforced ; or that he will sustain some injury, loss, or detriment, which it would be inequitable to throw upon him. § 101. And this leads us, naturally, to the consideration of those cases of accident, in which no relief will be granted by courts of equity. In the first place, in matters of positive con- tract and obligation, created by the party (for it is different in obligations or duties created by law), 2 it is no ground for the interference of equity, that the party has been prevented from fulfilling them by accident ; or, that he has been in no default ; or, that he has been prevented by accident from deriving the full benefit of the contract on his own side. 3 Thus, if a lessee on a demise covenants to keep the demised estate in repair, he will be bound in equity as well as in law to do so, notwithstanding any inevitable accident or necessity by which the premises are de- stroyed or injured ; as if they are burnt by lightning, or destroyed by public enemies, or by any other accident, or by overwhelming force. The reason is, that he might have provided for such con- tingencies by his contract, if he had so chosen ; and the law will presume an intentional general liability, where he has made no exception. 4 § 102. And the same rule applies in like cases, where there is an express covenant (without any proper exception) to pay rent during the term. It must be paid, notwithstanding the premises 1 "Watkins v. Maule, 2 Jac. & Walk. * Id., Dyer, 33 (a) ; Chesterfield v. Bol- 242 ; Chitty on Bills, ch. 6, p. 263 (8th ton, Com. 627 ; Bullock v. Doramitt, 6 T. edit.), 1833 ; Bayley on Bills, ch. 5, § 2, R. 650 ; Brecknock, &c. Canal Company p. 136, 137 (5th edit.), 1830; post, § 729. v. Pritchard, 6 T. R. 750; Paradine v. 2 Paradine v. Jane, Aleyn, 27. See Jane, Aleyn, 27 ; Monk v. Cooper, 2 Str. also Story on Bailments, § 25, 35, 36. 763 ; 1 Fonbl. Eq. B. 1, ch. 5, § 8, note 8 1 Fonbl. Eq. B. 1, ch. 5, § 8, note (#). (g), p. 374, &c. ; Harrison v. Lord North, See Com. Dig. Chan. 3 P. 5 ; Berrisford 1 Ch. Cas. 83. v. Done, 1 Vern. 98. EQ. JUR. — VOL. I. 7 98 EQUITY JURISPRUDENCE. [CH. IV. are accidentally burnt down during the term. And this is equally true as to the rent, although the tenant has covenanted to repair, except in cases of casualties by fire, and the premises are burnt down by such casualty ; for, Expressio uniux est exclusio alterius. 1 In all cases of this sort of accidental loss by fire, the rule prevails, Res perit domino; and, therefore, the tenant and landlord suffer according to their proportions of interest in the property burnt ; the tenant during the term, and the landlord for the residue. § 103. And the like doctrine, applies to other cases of contract, where the parties stand equally innocent. 2 Thus, for instance, if there is a contract for a sale at a price to be fixed by an award during the life of the parties, and one of them dies before the award is made, the contract fails, and equity will not enforce it upon the ground of accident ; for the time of making the award is expressly fixed in the contract according to the pleasure of the parties ; and there is no equity to substitute a different period. 3 § 104. So, if A. should covenant with B. to convey an estate for two lives in a church lease to B. by a certain day, and one of the lives should afterwards drop before the day appointed for the conveyance, B. would be compelled to stand by his contract, and to accept the conveyance ; for neither party is in any fault ; and B., by the contract, took upon himself the risk by not providing for the accident. 4 So, if an estate should be sold by A. to B., for a certain sum of money and an annuity, and the agreement should be fair, equity will not grant relief, although the party should die before the payment of any annuity. 5 § 105. Courts of equity will not grant relief to a party upon the ground of accident, where the accident has arisen from his own gross negligence or fault ; for in such a case the party has no claim to come into a court of justice to ask to be saved from his own culpable misconduct. And, on this account, in general, 1 Monk v. Cooper, 2 Str. 763 ; s. c. 2 sale waa enforced, though house had Lord Raymond, 1477 ; Balfour v. Wea- burned down.' s. p. McKecknie v. Sterling, ton, 1 T. R. 310 ; Fowler v. Bott, 6 Masa. 48 Barb. p. 330, 335. But see Smith v. 63 ; Doe v. Sandham, 1 T. R. 705, 710 ; McCluskey, 45 Barb. p. 610, 613. Hallett v. Wylie, 3 Johns. 44 ; Hare v. 2 Com. Dig. Chancery, 3 F. 5. Grovea, 3 Anat. 687 ; Holtzapffell u. Ba- » BlundeU v. Brettargh, 17 Ves. 232, ker, 18 Ves. 115 ; Pym ,: Blackburn, 3 240. Ves. 34, 38 ; 1 Fonbl. Equity, B. 1, ch. 5, * White v. Nutt, 1 P. Will. 61. § 8, note (g) ; Cooper, Eg. PI. 131. See " Mortimer v. Capper, 1 Bro. Ch. 156 ; Wood v. Hubbell, 5 Barb. 601 ; s. c. 10 Jackaon v. Lever, 3 Bro. Ch. 605. See N. Y. (6Seld.) 479. See also Brewer v. also 9 Vea. 246. Herbert, 30 Md. 301, where a contract of § 102-107.] ACCIDENT. ' 99 a party coming into a court of equity is bound to show that his title to relief is unmixed with any gross misconduct or negligence of himself or his agents. 1 § 105 a. Courts of equity will not interfere upon the ground of accident, where the party has not a clear vested right ; but his claim rests in mere expectancy, and is a matter, not of trust, but of volition. Thus, if a testator, intending to make a will in favor of particular persons, is prevented from doing so by accident, equity cannot grant relief ; for it is not in the power of the court to relieve against accidents which prevent voluntary dispositions of estates ; 2 and a legatee or devisee can take only by the bounty of the testator, and has no independent right, until there is a title consummated by law. The same principle applies to a mere naked power, such as a power of appointment, uncoupled with any trust ; if it is unexecuted by accident or otherwise, a court of equity will not interfere and execute it, as the party could or might have done. 3 But if there be a trust, it will, as we have seen, be otherwise. 4 § 106. In the next place, no relief will be granted on account of accident, where the other party stands upon an equal equity, and is entitled to equal protection. Upon this ground, also, equity will not interfere to give effect to an imperfect will against an innocent heir-at-law ; for, as heir, he is entitled to protection, whatever might have been the intent of the testator, unless his title is taken away according to the rules of law. 5 § 107. So, if a tenant for life, or in tail, have a power to raise money, and he raises money by mortgage, without any reference 1 Marine Insurance Company v. Hodg- 8 Brown v. Higgs, 8 Ves. 561 ; Pierson son, 7 Cranch, 336. See Penny v. Martin, v. Garnet, 2 Brown, Ch. 38, 226 ; Duke of 4 Johns. Ch. 569 ; 1 Fonbl. Eq. B. 1, ch. Marlborough v. Godolphin, 2 Ves. 61, and 3, § 3 ; Ex parte Greenway, 6 Ves. 812. Belt's Supplement, 277, 278 ; Harding v. See also 7 Ves. 19, 20 ; 9 Ves. 467, 468. Glyn, 1 Atk. 469, and Saunders's note ; [* But it has been held, that where an 2 White & Tudor's Eq. Lead. Cas. 685, agreement cannot be carried into effect and notes ; Toilet v. Toilet, 2 P. Will, according to the intention of the parties, 489 ; 1 Fonbl. Eq. B. 1, ch. 4, § 25, note in consequence of the act of God, or (h) ; id. note (k) ; 1 Mad. Ch. Pr. 46. something over which the parties had no 4 Ante, § 98. control, equity will adopt such an ar- 6 See Com. Dig. Chancery, 3 P. 6, 7, rangement as the parties would probably 8 ; 1 Fonbl. Eq. B. 1, ch. 4, § 25, notes hare inserted in the agreement, if the (h), (n) ; Grounds and Kudim. of the Law, contingency had been foreseen. Chase v. M. 167, p. 128 (edit. 1751). Barrett, 4 Paige, 148.] 2 Whitton v Russell, 1 Atk. 448; 1 Mad. Ch. Pr. 46. 100 • EQUITY JURISPRUDENCE. [CH. IV. to the power, and not in conformity to it, the mortgage will not bind the heir in tail. 1 So, if a tenant in tail conveys the estate by bargain and sale, or enters into a contract of sale, and covenants to suffer a fine and recovery, and he dies before the fine or recovery is consummated, the heir in tail, or remainder-man, is not bound ; for he is deemed a purchaser under the donor, and entitled to protection, as such ; and a court of equity will not, further than a court of law, carry into effect against him, any act of a former tenant in tail. 2 § 108. And, generally, against a bond fide purchaser, for a val- uable consideration, without notice, a court of equity will not interfere on the ground of accident; for, in the view of a court of equity, such a purchaser has as high a claim to assistance and protection as any other person can have. 3 Principles of an analo- gous nature seem to have governed in many of the cases in which the want of a surrender of copyhold has been supplied by courts of equity. 4 § 109. Perhaps, upon a general survey of the grounds of equi- table jurisdiction in cases of accident, it will be found that they resolve themselves into the following : that the party seeking relief has a clear right, which cannot otherwise be enforced in a suitable manner ; or, that he will be subjected to an unjustifiable loss, without any blame or misconduct on his own part ; or, that he has a superior equity to the party from whom he seeks the relief. 5 1 Jenkins v. Kemis, 1 Ch. Cas. 103; 342; ante, § 64 c; post, § 154, 165,381, s. c. cited 2 P. Will. 667 ; 1 Fonbl. Eq. B. 409 to 411, 416, 434, 436 ; Ligon v. Rogers, 1, ch. 4, § 25, notes (Z), (n). 12 Ga. 292. 2 1 Fonbl. Eq. B. 1, ch. 1, § 7, and * 1 Fonbl. Eq. B. 1, ch. 1, § 7, and note ; id. ch. 4, § 19, and notes ; Weal v. note (»). Lower, 1 Eq. Abridg. 266 ; Powell v. 6 Many of the cases on this subject Powell, Prec. Ch. 278. will be found collected in 1 Mad. Ch. Pr. 8 Mitford, Eq. PL by Jeremy, 274 X ; ch. 2, § 2, p. 41, &c. ; Jeremy on Equity Cooper, Eq. PI. 281 to 285 ; 2 Fonbl. Eq. Jurisd. ch. 1, p. 359, &c, and 2 Swift's B. 2, ch. 6, § 2, and notes ; Maiden v. Mer- Digest, ch. 6, p. 92, &c. See Baynafd v. rill, 2 Atk. 8 ; Newl. on Contr. ch. 19, p. Norris, 5 Gill, 477. MISTAKE. 101 CHAPTER V. MISTAKE. [* § 110. Jurisdiction of courts of equity, as founded on mistake of law, or fact. § 111. The general rule is, that ignorance of law will not avail; innocent mistake of fact will. § 112. If one, by mistake of law, release a co-obligor, or fail to insert a power of revocation, equity will not relieve. ' § 113. Cases of mistake of law. § 114, 115. The case of Hunt v. Rousmaniere discussed. § 116. Lord King's construction of the maxim, Ignorantia juris, Sao. § 117, 118. Ignorance of one's rights a ground of relief. § 119. Case of surprise. § 120. Mistakes of law as to one's title sometimes ground of relief. § 121. Mistake of clear law, as to title, relievable ; aliter, if doubtful. § 122-130. The distinction between mistakes of law and of fact further discussed, and the cases compared. § 131-133. The validity of compromises. How affected by the ignorance or sup- pression of material facts. Family settlements. § 134. Mistake of law, with surprise, ground of relief. § 135. So also where there exists special confidence. § 136. Relief from the defective nature of instruments. § 137, 138. The rule more specifically defined. § 138 a-138 Ic. The present state of the law considered. § 139. Mistake of title no ground of relief against a bond fide purchaser. § 139, 140. The distinction between mistakes of fact, and of law. § 141. The mistake must be material. § 142-144. Where the parties are under mutual misapprehension as to the exist- ence, or essential condition of the subject-matter of a contract, equity will relieve. § 144 a. But not against a mere mistaken estimate of quantity or quality. § 145. Equity will restrain the operation of general words. § 146. But will not relieve from one's own negligence. § 147, 148. Or where the mistake was made by one party, and there was no breach of confidence. § 149. Or where the mistake is not in regard to essential, inherent qualities. § 150, 151. Where there is material mistake, equity will not interfere, unless the error is fundamental. § 152-156. Equity will reform written contracts, upon oral proof, to defeat fraud and oppression. § 157. But the proof must be unquestionable. § 158, 159. The extent to, and the grounds upon, which equity interferes. § 160-162. Will interfere, when mistake is proved by other writings, or by parol, or is clearly implied. § 163-164 e. But not where the implication is rebutted, or against a surety. Other points and new cases. § 165. Will only interfere as to the original parties, and those standing in the same right. § 166. Will interfere to supply defects. 102 EQUITY JURISPRUDENCE. [CH. V. § 167. And when contract has been cancelled by mistake § 168. Will effectuate the true intention. § 163-172. Equity will aid the defective execution of a power, but not the non- execution. § 173. But a power of appointment by will cannot be executed by an absolute deed. § 174. Will aid defective execution by will, but not a defective power. § 175. Will not cure defects of substance. § 176. Will not aid volunteers unless misled without fault. § 1 77. Will not relieve against the express provisions of a statute. § 1 78. Will not aid a defective fine, or recovery. § 179, 180. Will correct mistakes apparent on the face of the will. § 180 a-183. This is done with caution, and not always wisely then.] § 110. We may next pass to the consideration of the jurisdic- tion of the courts of equity, founded upon the ground of mistake. This is sometimes the result of accident, in its large sense ; but, as contradistinguished from it, it is some unintentional act, or omission, or error, arising from ignorance, surprise, imposition, or misplaced confidence. 1 Mistakes are ordinarily divided into two sorts : mistakes in matter of law, and mistakes in matter of fact. § 111. And first, in regard to mistakes in matter of law. It is a well-known maxim, that ignorance of law will not furnish an excuse for any person, either for a breach, or for an omission of duty; Ignorantia legis neminem excusat ; and this maxim is equally as much respected in equity as in law. 2 It probably be- 1 Mr. Jeremy defines mistake, in the by civilians, and upon which they are di- sense of a court of equity, to be, " that vided in opinion. Pothier and Heinec- result of ignorance of law or of fact, cius maintain the negative ; Vinnius and which has misled a person to commit that, D'Aguesseau the affirmative, the latter which, if he had not been in error, he especially in a very masterly dissertation, would not have done." Jeremy, Eq. Sir W. D. Evans, in the Appendix to his Jurisd. B. 3, Pt. 2, p. 358. This defini- translation of Pothier on Obligations tion seems too narrow, and it does not (Vol. 2, p. 408 to 437), has given a trans- comprehend cases of omission or neglect, lation of D'Aguesseau and Vinnius ; and May there not be a mistake from sur- Sir W. D. Evans has prefixed to them a prise, or imposition, as well as from igno- view of his own reasoning in support of ranee of law or fact? the same doctrine (id. vol. 2, p. 369). 2 Bilbie v. Lumley, 2 East, 469 ; Doet. The text of the Roman law seems mani- & Stud. Dial. 1, ch. 26, p. 92 ; id. Dial. 2, festly on the other side, although the ch. 46, p. 303 ; Stevens v. Lynch, 12 East, force of the text has been attempted to 38 ; 1 Fonbl. Eq. B. 1, ch. 2, § 7, note (v) ; be explained away, or at least limited. Hunt v. RouBmaniere's Adm'rs, 8 Wheat. The Digest (Lib. 22, tit. 6, 1. 9, § 3, 5) says, 174 ; s. c. 1 Peters, Sup. C. 1 ; s. c. 2 " Ignorantia facti, non juris, prodesse ; Mason, 342 ; 3 Mason, 294 ; Stone v. Hale, nee stultis solere succurri, sed erranti- 17 Ala. 561 ; Prank v. Prank, 1 Ch. Cas. bus ; " and still more explicitly the Code 84. How far money, paid under a mis- says (Lib. 1, tit 18, 1. 10), " Cum quis jus take of law, is, as the civil law phrases it, ignorans indebitatam pecuniam solveret, liable to repetition, that is, to a recovery cessat repetitio ; per ignorantiam enim back, has been a matter much discussed facti tantum repetitionem indebiti soluti § no, 111.] MISTAKE. 103 longs to some of the earliest rudiments of English jurisprudence ; and is certainly so old, as to have been long laid up among its settled elements. We find it stated with great clearness and force in the Doctor and Student, where it is affirmed, that every man is bound at his peril to take knowledge what the law of the realm is ; as well the law made by statute, as the common law. 1 The probable ground for the maxim is that suggested by Lord Ellen- borough, that otherwise there is no saying to what extent the excuse of ignorance might not be carried. 2 Indeed, one of the remarkable tendencies of the English common law upon all sub- jects of a general nature is, to aim at practical good, rather than theoretical perfection ; and to seek less to administer justice in all possible cases than to furnish rules which shall secure it in the common course of human business. If, upon the mere ground of ignorance of the law, men were admitted to overhaul or extinguish their most solemn contracts, and especially those which have been executed by a complete performance, there would be much embar- rassing litigation in all judicial tribunals, and no small danger of injustice, from the nature and difficulty of the proper proofs. 3 competere tibi notum est." See also 1 Pothier, Oblig. Pt. 4, ch. 3, § 1, n. 834 ; 1 Evans's Pothier on Oblig. 523, 524 ; Po- thier, Pand. Lib. 22, tit. 6 ; Cujaecii Opera, Tom. 4, p. 502 ; Coram, ad Leg. vii. de Jur. et Fact. ; Ignor. Heinecc. ad Pand. Lib. 22, tit. 6, § 146 ; 1 Domat, Civil Law, B. 1, tit. 18, § 1, n. 13 to 17. But the question is a very different one, how far a promise to pay is a binding obligation ; for a party may not be bound by the latter to pay, although he may not, if he ■ has, paid the money, be entitled to recover it back. Heineccius (ubi supra) insists on this distinction, founding him- self on the Roman Law. Cujaccius also insists on the same distinction (Cujac. Opera, Tom. 4, 506, 507, edit. 1758). D'Aguesseau denies the distinction, as not founded in reason, and insists on the same right in both cases. Sir W. I). Evans holds to the same opinion ; but insists, at all events, that a mere promise to pay, under a mistake of law, is not binding. 2 Evans's Pothier on Oblig. 395, &c. There is certainly great force in his rea- soning. It has, however, been rejected by the English courts ; and a promise to pay, upon a supposed liability, and in ignorance of the law, has been held to bind the party j Stevens v. Lynch, 12 East, 38 ; Goodman v. Sayers, 2 Jac. & Walk. 263 ; Brisbane v. Dacres, 5 Taunt. 143 ; East India Company v. Tritton, 3 B. & Cressw. 280. Mr. Chancellor Kent held a doc- trine equally extensive in Shotwell v. Murray, 1 Johns. Ch. 512, 516. See also Storrs v. Barker, 6 Johns. Ch. 166; Clarke v. Butcher, 9 Cowen, 674. In Massachusetts it has been held, that money, paid under a mistake of law, may be recovered back ; and, at all events, that a promise to pay, under a mistake of law, cannot be enforced. May v. Coffin, 4 Mass. 342; "Warder v. Tucker, 7 Mass. 452; Freeman v. Boynton, 7 Mass. 488. See also Haven v. Foster, 9 Pick. 112, in which there is a very learned argument by counsel on each side, on the general doctrine, and the opinions of civilians, as well as the common-law decisions, are copiously cited. ( See Livermore v. Peru, 55 Me. 469.) 1 Doct. & Stud. Dial. 2, ch. 46. 2 Bilbie v. Lumley, 2 East, 469, 472. 8 Lyon v. Richmond, 2 Johns. Ch. 61, 104 EQUITY JURISPRUDENCE. [CH. The presumption is, that every person is acquainted with his own rights, provided he has had a reasonable opportunity to know them. And nothing can be more liable to abuse, than to permit a person to reclaim his property upon the mere pretence, that at the time of parting with it, he was ignorant of the law acting on his title. 1 Mr. Fonblanque has accordingly laid it down as a general proposition, that in courts of equity ignorance of the law shall not affect agreements, nor excuse from the legal consequences of particular acts. 2 And he is fully borne out by authorities. 3 § 112. One of the most common cases, put to illustrate the doctrine, is, where two are bound by a bond, and the obligee releases one, supposing, by a mistake of law, that the other will remain bound. In such a case the obligee will not be relieved in equity upon the mere ground of his mistake of the law ; 4 for 60; 512 170. l 169 Shotwell v. Murray, 1 Johns. Ch. Storrs v. Barker, 6 Johns. Ch. 169, See Storrs v. Barker, 6 Johns. Ch. Proctor v. Thrall, 22 Verm. 262. 2 1 Fonbl. Eq. B. 1, ch. 2, § 7, note (») ; 1 Mad. Ch. Pr. 60. But see Mose- ley's Rep. 364; 1 Ves. 127; Storrs v. Barker, 6 Johns. Ch. 169, 170 ; Hunt v. Eousmaniere, 1 Peters, 1, 15, 16. 8 The doctrine was pushed to a great extent (as Mr. Fonblanque has remarked) in Wildey v. Cooper Company, cited in a note to East a. Thornbury, 3 P. Will. 127, note B. and Atwood v. Lamprey (id.), in which a tenant, who had paid a rent or annuity charged on land, without deducting the land tax, was not allowed to recover back the amount by a bill in equity. 1 Eonbl. Eq. B. 1, ch. 2, § 7, note (v). There is an appearance of hardship in this doctrine ; but it has been fully recognized in a late case, where an executor paid interest on a legacy with- out deducting the property tax. Currie u. Goold, 2 Mad. 163 ; and Smith v. Jack- son, 1 Mad. 623. Lord Hardwicke also acted upon the same doctrine in Nichols v. Leeson, 3 Atk. 573. The cases resolve themselves into an over-payment by mis- take of law, or of fact ; and probably of the former. But it does not appear in any of these cases, that the mistake was not mutual. It is a little difficult to rec- oncile these cases with the doctrine in Bingham v. Bingham, 1 Ves. 126, and Belt's Supp. 79. [Bingham v. Bingham was mentioned with approval in Cooper i>. Phibbs, L. R. 2 H. L. 149 ; Gebb v. Rose, 40 Md. 387 ; Stoddard v. Hart, 23 N. Y. 556 ; Jacobs v. Morange, 47 N. Y. 57 ; Garnar v. Bird, 57 Barb. (N. Y.) 277 ; Goltra v. Sanasack, 53 111. 456 ; Peters v. Florence, 38 Penn. St. 194 ; Rochester ». Alfred Bank, 13 Wise. 432 ; Zollman v. Moore, 21 Gratt. 313 ; Heavenridge v. Mondy, 49 Ind. 434. Where an adminis- trator paid out to a mother and her chil- dren what belonged wholly to the mother, on mutual mistake as to law, it was held he must account to her, she not having misled him. Davis o. Bagley, 40 Geo. 181. But see Hopson's Ex'r v. Common- wealth, 7 Bush (Ky.), 644; Nelson v. Davis, 40 Ind. 366. Where a mistake is proved, and it is doubtful whether it is a mistake of law or of fact, it will be pre- sumed to be a mistake of fact until it is shown all the facts were known. Hurd v. Hall, 12 Wise. 112.] * Com. Dig. Chancery, 3 F. 8; Har- mon v. Cannon, 4 Vin. Abridg. 387, pi. 3; 1 Fonbl. Eq. B. 1, ch. 2, § 7, note (v). See also 1 Peters, Sup. C. 17 ; 1 P. Will. 723, 727 ; 2 Atk. 591 ; 2 Johns. Ch. 51 ; 4 Pick. 6, 17 ; Cann v. Cann, 1 P. Will. 723, 727. But see Ex parte Gifford, 6 Ves. 805, and the comments by Lord Den- § 111-113:] MISTAKE. 105 there is nothing inequitable in the co-obligor's availing himself of his legal rights, nor of the other obligor's insisting upon his release, if they have both acted bond fide, and there has been no fraud or imposition on their side to procure the release. 1 So, where a party had a power of appointment, and executed it abso- lutely, without introducing a power of revocation, upon a mistake of law, that being a voluntary deed, it was revocable, relief was in like manner denied. 2 If the power of revocation had been intended to be put into the appointment, and omitted by a mistake in the draft, it would have been a very different matter. § 113. The same principle applies to agreements entered into in good faith, but under a mistake of the law. They are generally held valid and obligatory upon the parties. 3 Thus, where a clause containing a power of redemption, in a deed granting an annuity, after it had been agreed to, was deliberately excluded by the parties upon a mistake of law, that it would render the contract man on that case in Nicholson v. Revell, 6 Nev. & Mann. 192, 200 ; s. c. 4 Adolph. & Ellis, 675. See also McNaughten v. Partridge, 11 Ohio, 223 ; Sale v. Dishman, 3 Leigh, 548. 1 In such a case, there is no doubt that the releasee is discharged at law. In Nicholson v. Kevell, 6 Nev. & Mann. 200, 292, s. c. 4 Adolph. & Ellis, 675, a dis- charge of one party on a joint and several note was held to be a discharge of both. s. p. Cheetham o. Ward, 1 Bos. & Pull. 630 ; Hoosack v. Rogers, 8 Paige, 229. 2 Worrall v. Jacob, 3 Meriv. 195. See also 1 Peters, Sup. C. 16. [So where, by reason of a mistake as to the law of de- scents, a deed was made differently from what it otherwise would have been. Thompson v. Thompson, 18 Ohio, n. s. 73. But compare Clayton v. Freet, 10 Ohio, n. s. 544.] 3 Pullen v. Heady, 2 Atk. 591 ; Stock- ley v. Stockley, 2 Ves. & B. 23, 30 ; Frank v. Frank, 7 Ch. Cas. 84 ; Mildmay o. Hungerford, 2 Vern. 243; Shotwell v. Murray, 1 Johns. Ch. 512 ; Lyon v. Rich- mond, 2 Johns. Ch. 51 ; Hunt v. Rous- maniere, 1 Peters, Sup. C. 1, 15 ; Storrs v. Barker, 6 Johns. Ch. 169, 170. Some of the cases commonly cited under this head are cases of family agreements, to preserve family honor, or family peace ; and some of them are compromises of right, thought at the time to be doubtful by all the parties. [Mistake as to the legal effect of an instrument is ordinarily no ground for relief. Martin v. Hamlin, 18 Mich. 354. But see Clayton v. Freet, 10 Ohio, n. s. 544 ; Kennard u. George, 44 N. H. 440. See also Norris v. Laberee, 58 Me. 260 ; Molony v. Rourke, 100 Mass. 190. See also Hearst u. Pugol, 44 Cal. 230. It seems that such mistake will not be a bar to specific performance ] Powell v. Smith, L. R. 14 Eq. 85. The cases of Stapilton v. Stapilton, 1 Atk. 10 ; Stock- ley v. Stockley, 1 Ves. & B. 23 ; Cory v. Cory, 1 Ves. 19; Gordon v. Gordon, 3 Swanst. 463, 467, 471, 474, 477, and per- haps Frank u. Frank, 1 Ch. Cas. 84, are of the former sort. And it has been said by Lord Eldon, that in family arrange- ments an equity is administered in equity, which is not applied to agreements gen- erally. 1 Ves. & B. 30 ; Neale v. Neale, 1 Keen, 672, 683. Compromises of doubt- ful right stand upon a distinct ground ; for in such cases the parties are equal, and it is for the public interest to sup- press litigation. Cann v. Cann, 1 P. Will. 723; 1 Ves. & B. 30; 1 Atk. 10; Nayler o. Winch, 1 Sim. & Stu. 564, 565. But of these doctrines a more full discus- sion belongs to the text. Post, § 120, 121, 122, 126, 128, 129, 130, 131, 132. 106 EQUITY JURISPRUDENCE. • [CH. V. usurious ; the court of chancery refused to restore the clause, or to grant relief. 1 Lord Eldon, in commenting on this case, said that it went upon an undisputable clear principle, tkat the parties did not mean to insert in the agreement a provision for redemption, because they were all of one mind that it would be ruinous. And they desired the court to do, not what they intended, for the inser- tion of that provision was directly contrary to their intention ; but they desired to be put in the same situation, as if they had been better informed, and consequently had a contrary intention. 2 So, where a devise was given upon condition that a woman should marry with the consent of her parents, and she married without such consent, whereby a forfeiture accrued to other parties, who afterwards executed an agreement respecting the estate, whereby the forfeiture was in effect waived, the court refused any relief, although it was contended, that it was upon a mistake of law. Lord Hardwicke, on that occasion, said: "It is said, they (the parties) might know the fact, and yet not know the consequence of law. But if parties are entering into an agreement, and the very will, out of which the forfeiture arose, is lying before them and their counsel, while the drafts are preparing, the parties shall be supposed to be acquainted with the consequence of law as to this point ; and shall not be relieved on a pretence of being sur- prised, with such strong circumstances attending it." 3 So, where the plaintiff was tenant for life with remainder to his first and other sons in tail, remainder to the defendant in fee ; and his wife being then privement enseint of a son, he was advised, that, if he bought the reversion of the defendant, and took a surrender, it would merge his estate for life, and destroy the contingent re- mainder in his sons, and give him a fee; and he accordingly bought the reversion, and gave security for the purchase-money ; and, upon a discovery of his mistake of the law, he brought a bill to be relieved against the security, it was denied, unless upon pay- ment of the full amount. 4 § 1 14. Another illustration may be derived from a case, most vigorously contested and critically discussed, where, upon the loan 1 Irnham v. Child, 1 Bro. Ch. 92. See more v. Morris, 2 Bro. Ch. 219 ; Hunt v. 6 Ves. 332, 333 ; 1 Peters, Sup. C. 16, 17 ; Rousmaniere's Administrators, 2 Mason, 2 White & Tudor's Eq. Lead. Cas. 530, 366, 367. and notes. 8 Pullen v. Ready, 2 Atk. 587, 591. 2 Marquis of Townshend ». Stran- * Mildmay t>. Hungerford, 2 Vern. 243. groom, 6 Ves. 332. See also Lord Port- § 113-115.] MISTAKE. 107 of money, for which security was to be given, the parties deliber- ately took, after consultation with counsel, a letter of attorney, with a power to sell the property (ships) in case of non-payment of the money, instead of a mortgage upon the property itself, upon the mistake of law, that the security by the former instrument would, in case of death or other accident, bind the property to the same extent as a mortgage. The debtor died, and his estate being insolvent, a bill in equity was brought by the creditor against the administrators to reform the instrument, or to give him a priority by way of lien on the property, in exclusion of the general creditors. The court, finally, after the most deliberate examination of the case at three successive stages of the cause, denied relief, upon the ground that the agreement was for a par- ticular security selected by the parties, and not for security gen- erally ; and that the court were asked to substitute another security for that selected by the parties, not upon any mistake of fact, but upon a mistake of law, when such security was not within the scope of their agreement. 1 § 115. It is manifest that the whole controversy in this case turned upon the point, whether a court of equity could grant relief, where a security becomes ineffectual, not by fraud or accident, or because it is not what the parties intended it to be ; but because, conforming to that intention, the parties in executing it innocently mistook the law. It was the very security the parties had deliber- ately selected ; but, by unforeseen events, it was not as good a security as they might have selected. It would have been most extraordinary and unprecedented for a court of equity, under such circumstances, to grant relief ; for it would be equivalent to de- creeing a new agreement, not contemplated by the parties, instead of executing that actually made by them. If the party, who was to execute the power of attorney, had refused that, and offered a mortgage, could he have insisted on such a substitute ? If a mort- gage had been agreed on, could he have compelled the other side to have accepted a letter of attorney ? Certainly not. Equity maj 1 Hunt v. Rousmaniere, 8 Wheat. 174 ; Pitcher v. Hennessey, 48 N. Y. 415 ; 1 Peters, Sup. C. 1, 13, 14 ; s. c. 2 Mason, O'Donnell v. Harman, 3 Daly, 424 ; Fel- 342 ; 3 Mason, 294. See similar instances lows v. Heermans, 4 Lans. 230 ; Moor- in Greenwood v. Eldridge, 1 Green's Ch. man v. Collier, 31 la. 138 ; Montgomery 145 ; Dow v. Kerr, 1 Speer's Eq. 113 to v. Shochey, 37 la. 107 ; Heaton v. Fry 421; Leayitt v. Palmer, 3 Corns. 19; berger, 28 la. 190, 201]. [Lanning v. Carpenter, 48 N. Y. 408; 108 EQUITY JURISPRUDENCE. [CH. V. compel parties to execute their agreements ; but it has no authority to make agreements for them, or to substitute one for another. If there had been any mistake in the instrument itself, so that it did not contain what the parties had agreed on, that would have formed a very different case ; for where an instrument is drawn and executed, which professes, or is intended to carry into execution an agreement previously entered into, but which, by mistake of the draftsman, either as to fact or to law, does not fulfil that intention, or violates it, equity will correct the mistake, so as to produce a conformity to the instrument. 1 § 116. In a preceding section 2 it has been stated, that agree- ments made and acts done under a mistake of law are (if not otherwise objectionable) generally held valid and obligatory. The doctrine is laid down in this guarded and qualified manner, because it is not to be disguised, that there are authorities, which are sup- posed to contradict it, or at least to form exceptions to it. Indeed in one case, Lord King is reported to have said, that the maxim of law, Ignorantia juris non excusat, was, in regard to the public, that ignorance cannot be pleaded in excuse of crimes ; but that it did not hold in civil cases. 3 This broad statement is utterly irreconcilable with the well-established doctrine both of courts of law and courts of equity. The general rule certainly is (as has been very clearly stated by the Supreme Court of the United States) that a mistake of the law is not a ground for reforming a deed* founded on such a mistake. And whatever exceptions there may be to this rule, they are not only few in number, but they will be found to have something peculiar in their character, and to involve other elements of decision. 4 1 See the able opinion of Mr. Justice plies to the general law, not to private Washington in Hunt v. Rousmaniere's right, e.g. title to property, see opinion Adm'rs, 1 Peters, Sup. C. 13 to 17. See of Lord Westbury, in Cooper v. Phibbs, Heacock e. Fly, 14 Penn. St. 541 ; Sto- L. R. 2 H. L. 149.] well v. Haslett, 5 Lans. (N. Y.) 380 ; [Stock- * Hunt v. Rousmaniere, 1 Peters, Sup. bridge Iron Co. v. Hudson Iron Co., 107 C. 15 ; s. u. 8 Wheaton, 211, 212. See Mass. 290; Gatnage ». Moore, 42 Tex. 170; also Hepburn v. Dunlap, 10 Wheaton, Broise v. Pacific Mut. Ins. Co., 4 Daly, 179, 195 ; Shotwell v. Murray, 1 Johns. 246]. Ch. 512, 515 ; Lyon «. Richmond, 2 Johns. 2 Ante, § 113. Ch. 51, 60 ; Storrs v. Barker, 6 Johns. Ch. 3 Lansdowne v. Lansdowne, Moseley, 169, 170. Mr. Chancellor Kent has laid 364 ; s. c. 2 Jac. & W. 205. [And this down the doctrine in equally strong doctrine was approved in Wyche o. terms. " It is rarely," says he, " that a Greene, 16 Georgia, 58, as " righteous and mistake in point of law, with a full legal." Contra, McAninch v. Laughlin, knowledge of all the facts, can afford 13 Penn. St. 371. That this maxim ap- ground for relief, or be considered as a § 115-118.] MISTAKE. 109 § 117. In illustration of this remark, we may refer to a case, commonly cited as an exception to the general rule. In that case, the daughter of a freeman of London had a legacy of £10,000, left by her father's will, upon condition that she should release her orphanage share ; and, after her father's death, she accepted the legacy, and executed the release. Upon a bill, afterwards filed by her against her brother, who was the executor, the release was set aside, and she was restored to her orphanage share, Which amounted to £40,000. Lord Chancellor Talbot, in making the decree, admitted that there was no fraud in her brother, who had told her that she was entitled to her election to take an account of her father's personal estate, and to claim her orphanage share ; but she chose to accept the legacy. His lordship said : " It is true, it appears, the son (the defendant) did inform the daughter, that she was bound either to waive the legacy given by the father, or release her right to the custom. And, so far, she might know that it was in her power to accept either the legacy or orphanage part. But I hardly think she knew she was entitled to have an account taken of the personal estate of her father ; and first to know, what her orphanage ^part did amount to ; and that when she should be fully apprised of this, then, and not till then, she was to make her election ; which very much alters the case'. For, probably, she would not have elected to accept her legacy, had she known, or been informed, what her orphanage part amounted unto, before she waived it and accepted the legacy." 1 § 118. It is apparent, from this language, that the decision of his lordship rested upon mixed considerations, and not exclusively upon mere mistake or ignorance of the law by the daughter. There was no fraud in her brother ; but it is clear, that she relied upon her brother for knowledge of her rights and duties in point of law ; and he, however innocently, omitted to state some most material legal considerations, affecting her rights and duty. She acted under this misplaced confidence, and was misled by' it ; which of itself constituted no inconsiderable ground for relief. sufficient indemnity against the injurious 169, 170 ; Lyon v. Saunders, 23 Miss. 124 ; consequences of deception practised upon Shafer v. Davis, 13 Illinois, 395. See mankind, &c. It would therefore seem to Emmet v. Dewhirst, 8 Eng. Law & Eq. be a wise principle of policy, that igno- 83; [Thurmond v. Clark, 47 Ga. 500]. ranee of the law with a knowledge of the 1 Pusey v. Desbouvrie, 3 P. Will. 315, facts, cannot generally be set up as a 321 ; 2 Ball & Beat. 182. See Pickering defence." Storrs v. Barker, 6 Johns. Ch. v. Pickering, 2 Beavan, 31, 56. 110 EQUITY JURISPRUDENCE. [CH. T. But a far more weighty reason is, that she acted under ignorance of facts ; for she neither knew nor had any means of knowing what her orphanage share was, when she made her election. It was, therefore, a clear case of surprise in matters of fact, as well as of law. [* But we should be careful not to understand the propo- sition here laid down, as having any just application to the subject of compromising doubtful and uncertain rights ; or to the disposi- tion of contingent or uncertain interests. In such cases, where the parties have equal means of knowledge, no relief in equity will be afforded, on the ground of results being different from what the parties anticipated. For this is one of the hazards of that class of contracts which each party incurs, by the very nature of the con- tract. 1 ] No ultimate decision was made in the case, it being com- promised by the parties. 2 § 119. The case of Evans v. Llewellyn 3 is exclusively put in the decree upon the ground of surprise, " the conveyance having been obtained and executed by the plaintiffs improvidently." It was admitted, that there was no sufficient proof of fraud or imposition practised upon the plaintiff (though the facts might well lead to some doubt on that point) ; and the plaintiff was certainly not ignorant' of any of the facts which respected his rights. The master of the rolls (Sir Lloyd Kenyon, afterwards Lord Kenyon) said : " The party was taken by surprise. He had not sufficient time to act with caution ; and therefore, though there was no act- ual fraud, it is something like fraud ; for an undue advantage was taken of his situation. I am of opinion, that the party was not competent to protect himself ; and therefore this court is bound to afford him such protection ; and therefore these deeds ought to be set aside, as improvidently obtained. If the plaintiff had, in fact, gone back, I should have rescinded the transaction." 4 § 120. The most general class of cases relied on as exceptions to the rule, is that class where the party has acted under a miscon- ception, or ignorance to his title to the property, respecting which some agreement has been made, or conveyance executed. So far 1 [*Holcomb v. Stimpson, 8 Vt. 141. eion. Union Bank of Georgetown v. And if it should subsequently appear that Geary, 5 Peters, 98.] the parties were mistaken in their appre- 2 See Heacoek v. Fly, 14 Penn. St. hension of their rights, that alone will not 541. affect the validity of any compromise, or 3 2 Bro. Ch. 150 ; 1 Cox, 333, more contract, based upon such misapprehen- full. * 1 Cox, 340, 341. § 118-120.] MISTAKE. Ill as ignorance in point of fact of any title in the party is an ingre- dient in any of these cases, they fall under a very different con- sideration. 1 But so far as the party, knowing all the facts, has acted upon a mistake of the law, applicable to his title, they are proper to be discussed in this place. Upon a close survey, many, although not all, of the cases, in the latter predicament, will be found to have turned, not upon the consideration of a mere mis- take of law, stripped of all other circumstances, but upon an admixture of other ingredients, going to establish misrepresenta- tion, imposition, undue confidence, undue influence, mental imbe- cility, or that sort of surprise, which equity uniformly regards as a just foundation for relief. 2 1 See Ramsden v. Hylton, 2 Ves. 304 ; Cann v. Cann, 1 P. Will. 727 ; Farewell v. Coker, cited 2 Meriv. 269 ; McCarthy v. Decaix, 2 Russ. & Mylne, 814. In this case, Lord Chancellor Brougham held, that where a husband renounced his title to his wife's property, from whom he had been divorced, under a mistake in point of law that the divorce was valid, and he had no longer any title to her prop- erty, and under a mistake of fact as to the amount of property renounced, the information respecting which the other party knew and withheld from him, he was entitled to relief. But the relief seems to have been granted upon mixed considerations. His lordship, in one part of his opinion, said : " What he (the hus- band) has done was in ignorance of law, possibly of fact; but in a case of this kind, that would be one and the same thing." See also Corking v. Pratt, 1 Ves. 400. [That equity will relieve against mistake of law brought about by undue influence or even by innocent misrepre- sentation, see Jordan v. Stevens, 51 Me. 78; Freeman v. Curtis, 51 Me. 140; Cooper v. Phibbs, L. R. 2 H. L. 149 ; or, in case of surprise, Carley v. Lewis, 24 Ind. 23; Tyson v. Tyson, 31 Md. 134. That a change in the decisions of the highest court as to the law makes a case of surprise, see Jones v. Munroe, 32 Geo. 181 ; and see Harney v. Charles, 45 Mis. 147 ; but see Jacobs v. Morange, 47 N. Y. 67 ; Kenyon v. Welty, 20 Cal. 637. So relief will be granted where the mistake is of mixed law and fact : thus in Harrell v. DeNormandie, 26 Tex. 120, relief was given where State securities were sold below value under mutual ignorance that the law allowed interest on them. So where parties bargained for that as a valid title which was not so under mu- tual mistake of well-settled principles of law as to heirship. King v. Doolittle, 1 Head (Tenn.), 77 ; but relief was re- fused where, through mistake as to va- lidity of a judgment, a purchaser at execution sale had to pay twice. Mc- Murray v. St. Louis, &c. Co., 33 Mis. 377. Where the mistake is attributable to the agent of the party seeking to take ad- vantage of it, equity will relieve. Green v. Morris, &c. R.R., 1 Beas. (N. J.) 165; Woodbury, &c. Bank v. Charter Oak Ins. Co., 31 Conn. 517. Whether a thing ex- ists or not, as a right of way, is a ques- tion of fact and a mistake . in the deed may be corrected. Blakeman v. Blake- man, 39 Conn. 320.] 2 See Willan v. Willan, 16 Ves. 82. Mr. Jeremy (Eq. Jurisd. Pt. 2, ch. 2, p. 366) seems to suppose that there is some- thing technical in the meaning of the word surprise as used in courts of equity ; for, speaking upon what, he says, is technically called a case of surprise, he adds, " which [surprise] it seems is a term for the immediate result of a cer- tain species of mistake, upon which this court will relieve," a definition or descrip- tion not very intelligible, and rather tend- ing to obscure than to clear up the subject. In another place (ch. 8, p. 383, note) he says, that surprise is often used as synonymous with fraud; but that " they may, perhaps, be distinguished by 112 EQUITY JURISPBUDENCE. [CH. V. § 121. lb has been laid down, as unquestionable doctrine, that if a party, acting in ignorance of a plain and settled principle of law, is induced to give up a portion of his indisputable property to another, under the name of a compromise, a court of equity will relieve him from the effect of his mistake. 1 But, where a doubtful question arises, such as a question respecting the true construction of a will, a different rule prevails ; and a compromise fairly entered into, with due deliberation, will be upheld in a court of equity, as reasonable in itself, to terminate the differences by dividing the stake, and as supported by principles of public policy. 2 § 122. In regard to the first proposition, the terms in which it is the circumstance, that in instances to which the term fraud is applied, an un- just design is presupposed ; but that in those to which surprise is assigned, no fraudulent intention is to be presumed. In the former case, one of the parties seeks to injure the other ; in the latter, both of them act under an actual miscon- ception of the law." Whether this ex- planation makes the matter much clearer may be doubted. The truth is, that there does not seem any thing technical or peculiar in the word surprise, as used in courts of equity. The common definition of Johnson sufficiently explains its sense. He defines it to be the act of taking un- awares ; the state of being taken un- awares ; sudden confusion or perplexity. When a court of equity relieves on the ground of surprise, it does so upon the ground that the party has been taken unawares, that he has acted without due deliberation, and under confused and sud- den impressions. The case of Evans v. Llewellyn, 2 Bro. Ch. 150, is a direct authority to this very view of the matter. There may be cases, where the word sur- prise is used in a more lax sense, and where it is deemed presumptive of, or approaching to, fraud (1 Fonbl. Eq. B. 1, ch. 2, § 8, p. 125 ; Earl of Bath and Mon- tague's case, 3 Ch. Cas. 56, 74, 103, 114). But it will always be found that the true use of it is, where something has been done which was unexpected and operated to mislead or confuse the parties on the sudden, and on that account has been deemed a fraud. See Earl of Bath and Montague's case, 3 Ch. Cas. 56, 74, 114 ; Irnham v. Child, 1 Bro. Ch. 92 ; Marquis of Townshend v. Stangroom, 6 Ves. 327, 338 ; Twining v. Morriee, 2 Bro. Ch. 326; Willan v. Willan, 16 Ves. 81, 86, 87. In Evans v. Llewellyn, 1 Cox, 340, the master of the rolls, adverting to the cases of sur- prise where an undue advantage is taken of the party's situation, said : " The cases of infants dealing with guardians, of sons with fathers, all proceed upon the same general principles, and establish this, that if the party is in a situation in which he is not a free agent, and is not equal to protecting himself, this court will protect him. See 1 Fonbl. Eq. B. 1, ch. 2, § 8. See post, § 234, 235, and note (1), § 236, 237, 238, 233, 240, 242. i [Whelens's App\, 70 Penn. St. 410] ; Naylor v. Winch, 1 Sim. & Stu. 555. See also 1 Ves. 126 ; Moseley, 364 ; 2 Jac. & Walk. 205 ; Leonard v. Leonard, 2 B. & Beatt. 180 ; Dunnage v. White, 1 Swanst. 137 ; Jones nell. 969 ; Pickering v. Pickering, 2 Bea- van, 31, 56. In this case Lord Langdale said : " When parties, whose rights are questionable, have equal knowledge of facts and equal means of ascertaining what their rights really are, and they fairly endeavor to settle their respective claims among themselves, every court must feel disposed to support the con- clusions or agreements to which they may fairly come at the time ; and that, notwithstanding the subsequent discovery of some common error ; and if in this case the parties had been on equal terms, the agreement might have been sup- ported. But the parties were not on equal terms; and, moreover, I am of opinion that, under the circumstances, it was the duty of the defendant to see that the nature of the transaction was fully explained to his mother, and to see that she was placed in a situation to have the ' question properly considered on her be- half ; and whatever may have been his intention in this respect (for I do not think it necessary to impute to him an intentional fraud throughout the transac- tion), I am of opinion that he did not per- form this duty ; and on the whole it ap- pears to me, that he is not entitled to the benefit of the settled account, and that the agreement must be set aside." 124 EQUITY JURISPRUDENCE. [CH. V. are not, in the eye of a court of equity, to be treated as binding even as family arrangements, where the doubts existing, as to the rights alleged to be compromised, are not presented to the mind of the party interested. 1 [* § 131 a. Courts of equity are disposed to favor the compromise of contested claims. In a late case before the master of the rolls, the learned judge said : " I beg to express my conviction that the attorney-general has full and ample powers, whenever he thinks that a proposal of the defendant to arrange the matters in dispute, though it does not concede the utmost the charity is entitled to, will on the whole be more beneficial to the charity than a long and contested litigation, to accept it, and carry that proposal into effect ; and if the matter were brought before the court, it would pay that respect to his opinion, which it has always been its cus- tom to pay, and sanction the arrangement. 2 This salutary rule would undoubtedly be applied to all compromises, effected in suits respecting charities, through the agency of its properly constituted trustees. But trustees are not justified in making doubtful com- promises of the interests of their cestuis que trust, as by consenting to a fiat in bankruptcy being annulled. 3 But courts of equity will often grant specific performance of an agreement to compromise a suit upon certain terms, the balance being ascertained, but 'it is not the general practice. 4 And where a compromise was made under a misapprehension of facts, and was of recent date, it was set aside, the matter being regarded as still sub judiceF\ § 132. There are cases of family compromises, where, upon principles of policy, for the honor or peace of families, the doctrine sustaining compromises has been carried further. ' And it has been truly remarked, that in such family arrangements the court of chancery has administered an equity, which is not applied to agreements generally. 6 [But to render even such compromises binding, it was said in a late case, that there must be an honest disclosure, by each party to the other, of all such material facts 1 Henley v. Cooke, 4 Russell, 34. 6 Jur. n. s. 360 ; s. o. affirmed in House [* See also Hurlburt ». Phelps, 30 Conn, of Lords, 10 Jur. n. s. 783. A compro- 42.] mise of a suit in derogation of the marriage 2 [* Attorney-General v. Boucherett, contract is favored. Rowley v. Rowley, 25 Beavan, 116, 121. L. R. 1 H. L. (Sc.) 63.] 8 Wiles v. Gresham, 6 De G., M. & G. 6 Stockley v. Stockley, 1 V. & Beames, 770. 29 ; Bellamy v. Sabine, 2 Phillips's Ch. 4 Dawson v. Newsome, 6 Jur. n. b. 625. 425 ; [Williams ». Sneed,' 3 Coldw. 6 Stainton u. The Carron Company, (Tenn.) 533.] § 131-132 a.] mistake. 125 known to him, relative to the rights and title of either, as are calculated to influence the judgment in the adoption of the com- promise ; and any advantage taken by either party of the other's known ignorance of such facts will render the same void in equity and liable to be set aside. 1 ] Such compromises, fairly and rea- sonably made, to save the honor of a family, as in case of suspected illegitimacy, to prevent family disputes and family forfeitures, are upheld with a strong hand ; and are binding, when in cases be- tween mere strangers the like agreements would not be enforced. 2 Thus, it has been said, that if, on the death of a person, seized in fee, a dispute arises, who is heir ; and there is room for a rational doubt, as to that fact, and the parties deal with each other openly and fairly, investigating the subject for themselves, and each com- municating to the other all that he knows, and is informed of, and at length they agree to distribute the property, under the notion that the elder claimant is illegitimate, although it turns out after- wards that he is legitimate ; there, the court will not disturb such an arrangement, merely because the fact of legitimacy is subse- quently established. 3 Yet, in such a case, the party acts under a mistake of fact. In cases of ignorance of title, upon a plain mistake of the law, there seems little room to distinguish between family compromises and others. 132 a. Thus, where a father being heir presumptive to A. B., who was then supposed to be a lunatic, and being under an ap- prehension that unfair means might be resorted to, in the then state of mind of A. B., to deprive the family of the succession to the estate, agreed with his eldest son that the son should sue out a commission of lunacy against A. B., and carry on such other suits and law proceedings as should be necessary, in the name of the father, at the expense of the son ; in consideration of which 1 [Smith v. Pincombe, 10 Eng. Law & Swanst. 137, 151 ; Harvey v. Cooke, 4 Eq. 50. And see Groves v. Perkins, 6 Russell, 34. Jodvell v. Jodvell, 9 Beavan, Sim. 576.] 45; Prank v. Frank (1 Ch. Cas. 84) is 2 Stapilton v. Stapilton, 1 Atk. 10 ; generally supposed to have been decided Cann a. Cann, 1 P. Will. 727 ; Stockley upon this head. But it was apparently v. Stockley, 1 V. & Beames, 30, 31 ; a case of misrepresentation ; and Lord Persse v. Persse, 1 West, in House of Manners has doubted its authority. Leon- Lords, 110 ; Cory v. Cory, 1 Ves. 19 ; ard ». Leonard, 2 B. & Beatt. 182, 183. Heap o. Tonge, 7 Eng. Law & Eq. 189 ; Cory v. Ctycy, 1 Ves. 19, is very difficult Leonard v. Leonard, 2 B. & Beatt. 171, to maintain ; for the party was drunk at 180 ; 1 Fonbl. Eq. B. 1, ch. 2, § 7, note the time of the agreement. (») ; Gordon v. Gordon, 3 Swanst. 463, 8 Gordon v. Gordon, 3 Swanst. 476 ; id. 470, 473, 476; Dunnage v. White, 1 463. 126 EQUITY JURISPRUDENCE. [CH. V. agreement, and natural love and affection, the father covenanted that after the death of A. B., the estates, which should thereupon descend to him, should be conveyed to himself for life, remainder to his son for life, with remainder to his first and other sons in tail male. The son, at his own expense, and in the name of his father, sued out the commission, under which A. B. was found a lunatic, who soon afterwards died ; whereupon the father succeeded as heir to the lunatic's estate. Upon a bill filed by the son to carry into effect bhis agreement, a specific performance was decreed ; and it was held, that the agreement was not voluntary, void for cham- perty or maintenance, or illegal, either for want of mutuality, or as being a fraud upon the great seal in lunacy ; and considering the ages and situations of the parties, the father being sixty-two and the lunatic forty, and the objects to be gained by the prosecu- tion of the commission of lunacy, that the consideration for the deed was not inadequate ; but that deeds for carrying into effect family arrangements are exempt from the rules which affect other deeds, the consideration being composed partly of value and partly of love and affection. 1 § 133. And where there is a mixture of mistake of title, gross personal ignorance, liability to imposition, habitual intoxication, and want of professional advice, there has been manifested a strong disinclination of courts of equity to sustain even family settlements. It was upon this sort of mixed ground that it was held, in a recent case, that a deed executed by the members of a family to determine their interest under the will and partial intestacy of an ancestor, ought not to be enforced. It appeared on the face of the deed, that the parties did not understand their rights, or the nature of the transaction ; and that the heir sur- rendered an unimpeachable title without consideration. Evidence was also given of his gross ignorance, habitual intoxication, and want of professional advice. But there was no sufficient proof of fraud or undue influence ; and there had been an acquiescence of five years. 2 § 134. Cases of surprise, mixed up with a mistake of law, stand upon a ground peculiar to themselves, and independent of the general doctrine. In such cases the agreements or acts are unad- 1 Persse v. Persse, 1 West, Eep. in 2 Dunnage v. White, 1 Swanst. 137. House of Lords, p. 110 ; s. c. 7 Clark & Finnell. 279. § 132 a-134 a.] mistake. 127 vised, and improvident, and without due deliberation ; and, there- fore, they are held invalid, upon the common principle adopted by courts of equity, to protect those who are unable to protect themselves, and of whom an undue advantage is taken. 1 Where the surprise is mutual, there is of course a still stronger ground to interfere ; for neither party has intended what has been done. They have misunderstood the effect of their own agreements or acts ; or have presupposed some facts or rights existing, as the basis of their proceedings, which in truth did not exist. Con- tracts made in mutual error, under circumstances material to their character and consequences, seem, upon general principles, invalid. 2 Non videntur, qui errant, consentire, is a rule of the civil law ; 3 and it is founded in common sense and common justice. But in its application it is material to distinguish between error in cir- cumstances which do not influence the contract, and error in circumstances which induce the contract. 4 [* § 134 a. There is one case 5 coming under the head of mutual mistake, where the vendor of land, in pointing out to the pur- chaser the boundaries of the land which he proposed to sell, inno- cently represented it as being in a different place from that in which it in fact was; and as being of a different quality and value from the truth, and the court set aside the purchase, made upon the faith of such misrepresentations, although not fraudu- lently made. And it seems to us a case resting upon most 1 See Evans v. Llewellyn, 1 Cox, 333 ; Law, B. 1, tit. 1, § 5, n. 10 ; id. tit. 18, § 2 ; 8. c. 2 Bro. Ch. 150 ; Marquis of Towns- and ante, § 111, note 2. hend v. Strangroom, 6 Ves. 333, 338 ; s [* Spurr v. Benedict, 99 Mass. 463 ; Chesterfield v. Janssen, 2 Ves. 155, 156 ; s. p. Watts v. Cummins, 59 Penn. St. 84. Ormond v. Hutchinson, 13 Ves. 51. [So a But the case of White v. Williams, 47 deed resettling trusts in such a manner Barbour, 222, one judge dissenting, seems as to deprive the settlor of all power of to favor the opposite view. But the sale contrary to his intent was corrected, party to a written contract, where one the settlor having executed the deed with- condition is purposely omitted, trusting out reading it. Tyson v. Tyson, 31 Md. to the oral assurance of the other party 134. See ante, § 120, note (a).] to perform it, cannot ask to have the con- 2 Willan v. Willan, 16 Ves. 72, 81 ; tract reformed by inserting that condi- Cowes v. Higginson, 1 Ves. & Beames, tion, there being neither fraud, accident, 524, 527 ; Ramsden v. Hylton, 2 Ves. 304 ; or mistake. Andrew v. Spurr, 8 Allen, Farewell v. Coker, 2 Meriv. 269. 412. But the silence of the execution 8 Dig. Lib. 50, tit. 17, 1. 116, § 2. debtor, at a sheriff's sale, he knowing 4 1 Fonbl. Eq. B. 1, ch. 2, § 7, note {t) ; that the purchaser is acting under a mis- id. note (x). Mr. Eonblanque has re- apprehension, will not afford any ground marked, that the effect of error in con- of relief in equity. Butcher v. Buchana, tracts is very well treated by Pothier, in 17 Iowa, 81. See also Oder v. Gard, 23 his Treatise on Obligations, Pt. 1, ch. 1, Ind. 212, and Schwickerath v. Cooksey, art. 3, § 1, 16. See also 1 Domat, Civil 53 Mo. 75.] 128 EQUITY JURISPRUDENCE. [CH. V. unquestionable principles of equity law. It was considered that the purchaser was guilty of no culpable neglect in trusting to the representations of the vendor, as to the identity of the land forming the subject-matter of the contract, and that the vendor was in fault in assuming to point out the land without assuring himself of the certainty of his information upon the subject in a particular so fundamental to the sale or purchase. And the vendee having offered to surrender his deed immediately upon discovering the mistake was justly entitled to be relieved from the performance of the contract.] § 135. There are also cases of peculiar trust, and confidence, and relation between the parties, which give rise to a qualification of the general doctrine. Thus, where a mortgagor had mortgaged an estate to a mortgagee, who was his attorney, and in settling an account with the latter, he had allowed him a poundage for hav- ing received the rents of the estate, in ignorance of the law, that a mortgagee was not entitled to such an allowance, which was pro- fessionally known to the attorney ; it was held that the allowance should be set aside. But the master of the rolls, upon that occa- sion, put the case upon the peculiar relation between the parties ; and the duty of the attorney to have made known the law to his client, the mortgagor. He said that he did not enter into the dis- tinction between allowances in accounts from ignorance of law, and allowances from ignorance of fact ; that he .did not mean to say that ignorance of law will generally open an account. But that, the parties standing in this relation to each other, he would not hold the mortgagor, acting in ignorance of his rights, to have given a binding assent. 1 § 136. There are, also, some other cases in which relief has been granted in equity, apparently upon the ground of mistake of law. But they will be found, upon examination, rather to be cases of defective execution of the intent of the parties from ignorance of law, as to the proper mode of framing the instrument. Thus, where a husband, upon his marriage, entered into a bond to his wife, without the intervention of trustees, to leave her a sum of money if she should survive him ; the bond, although released at law by the marriage, was held good as an agreement in equity, entitling the wife to satisfaction out of the husband's assets. 2 And 1 Langstaffe v. Fenwick, 10 Ves. 405, 2 Acton v. Pearce, 2 Vera. 480 ; 8. o. 406. Prec. Ch. 237. § 134 a-137.] MISTAKE. 129 so, e contrd, where a wife before marriage executed a bond to her husband, to convey all her lands to him in fee ; it was upheld in favor of the husband, after the marriage, as an agreement defec- tively executed, to secure to "the husband the land as her portion. 1 § 137. We have thus gone over the principal cases, which are supposed to contain contradictions of, or exceptions to, the general rule, that ignorance of the law, with a full knowledge of the facts, furnishes no ground to rescind agreements or to set aside solemn acts of the parties. Without undertaking to assert that there are none of these cases which are inconsistent with the rule, it may be affirmed that the real exceptions to it are very few, and generally stand upon some very urgent pressure of circumstances. 2 The rule prevails in England in all cases of compromises of doubtful, and perhaps in all cases of doubted rights ; and especially in all cases of family arrangements. 3 It is relaxed in cases where there is a total ignorance of title,'founded in the mistake of a plain and settled principle of law, and in cases of imposition, misrepresen- tation, undue influence, misplaced confidence, and surprise. 4 In 1 Cannel v. Buckle, 2 P. Will. 243; Newl. on Contr. ch. 19, p. 345, 346 ; 1 Fonbl. Eq. B. 1, ch. 1, § 7. 2 See Eden on Injunct. ch. 2, p. 8, 9, 1.0, and note (6). The State v. Paup, 13 Ark. 135. 3 Stewart v. Stewart, 6 Clark & Fih- nell. 911, 966 to 971. Pickering v. Picker- ing, 2 Beavan, 31, 56. * Stewart v. Stewart, 6 Clark & Fin- nell. 911, 966 to 971. The English ele- mentary writers on this subject treat it in a very loose and unsatisfactory man- ner, laying down no distinct rules when mistakes of the law are, or are not, reliev- able in equity ; but contenting themselves, for the most part, with mere statements of the case. Thus, Mr. Maddock, after saying that a mistake of parties as to the law is not a ground for reforming a deed, founded on such mistake, and that it has been doubted whether ignorance of law will entitle a party to open an account, proceeds to add, that there are several cases in which a party has been relieved from the consequences of acts, founded on ignorance of the law. He afterwards states that, in general, agreements relat- ing to real or personal estate, if founded on mistake (not saying whether of law or eq. jue. — vol. I. 9 fact), will, for that reason, be set aside. 1 Mad. Ch. Pr. 60, 61, 62. Mr. Jeremy says, " That ignorantia juris non excusat, ignorance of the law will not excuse, is a maxim respected in equity as well as at law." " A knowledge of the law is con- sequently presumed, and therefore no mutual explanation of it is prima facie required between the parties to a com- pact. If one of them should in truth be ignorant of a matter of law, involved in the transaction, and the other should know him to be so and should take ad- vantage of the circumstance, he would, it is conceived, be guilty of a fraud [see Cooke v. Nathan, 16 Barbour, 344] ; and although, if both should be ignorant thereof, it would be what is technically called a case of surprise, it does not appear that this court will, in any other case, interfere upon a mistake of law." Jeremy o i Eq. Jurisd. 366. Mr. Ponblanque h?.s col- lected many of the cases in his valuable notes ; but he has not attempted to ex- pound the true principles on which they turn, or the reason of the differences. 1 Fonbl. Eq. B. 1, ch. 2, § 7, note (v). Mr. Cooper (Eq. Plead, p. 140) disposes of the whole subject with the single re- mark: "On the ground of mistake or 130 EQUITY JURISPRUDENCE. [CH. V. America, the general rule has been recognized, as founded in sound wisdom and policy, and fit to be upheld with a steady confidence. And, hitherto, the exceptions to it (if any) will be found not to rest upon the mere foundation of a naked mistake of law, however plain and settled the principle may be, nor upon mere ignorance of title founded upon such mistake. 1 misconception of parties, courts of equity have also frequently interfered in a va- riety of cases." Lord Bedesdale leaves it in the same unsatisfactory manner. Mitford, Eq. PI. by Jeremy, p. 129 (edit. 1827). Mr. Newland (on Contracts in Equity, ch. 28, p. 432) says: "Cases of plain mistake or misapprehension, though not the effect of fraud or contrivance, are entitled to the interference of the court " (without making any distinction as to law or fact), and he cites Turner v. Tur- ner, 2 Ch. 81 ; Bingham v. Bingham, 1 Ves. 126 ; and Lansdowne v. Lans- downe, Moseley, 364. He then adds, that it is different in compromises of doubtful rights. Lord Hardwicke is re- ported to have said, in Langley v. Brown, 2 Atk. 202, " That [if] a person puts a groundless and unguarded confidence in another, [it] is not a foundation in a court of equity to set aside a deed." This is true in the abstract. But ground- less and unguarded confidence often con- stitutes, with other circumstances, a most material ingredient for relief. 1 The general rule is affirmed in Shot- well v. Murray, 1 Johns. Ch. 512, 515, and Lyon v. Richmond, 2 Johns. Ch. 51, 60, and Storrs v. Barker, 6 Johns. Ch. 169, 170, and Dupse r. Thompson, 4 Bar- bour, S. C. 283. In Hunt v. Rousmaniere, 8 Wheaton, 211, 214, 215, the court said : "Although we do not find the naked principle, that relief may be granted on account of ignorance of the law, asserted in the books, we find no case in which it has been decided, that a plain and ac- knowledged mistake in law is beyond the reach of equity." But, when the case came again before the court, upon appeal, in 1 Peters, Sup. Ct. 1, 15, the court (as has been already stated in the text) said : " We hold the general rule to be, that a mistake of this character (that is, a mis- take arising from ignorance of the law) is not a ground for reforming a deed, founded on such mistake. And what- ever exceptions there may be to this rule, they are not only few in number, but they will be found to have something peculiar in their characters." (Ante, § 116.) But the court added, that it was not their intention to lay it down, that there may not be cases in which a court of equity will relieve against a plain mis- take, arising from ignorance of law. Id. p. 17. In the case of Marshall v. Collett, 1 Younge & Coll. 238, Lord Ch. Baron Abinger said, that for mistake of law equity would not set aside a contract. See also Cockerill v. Cholmeley, 1 Buss. & Mylne, 418 ; and McCarthy v. Decaix, 2 Buss. & Mylne, 614. The question again came under the review of the Supreme Court of the United States in the case of the Bank of the United States v. Daniel, 12 Peters, 32, 55, 56, where the main question was, whether a mistake of law was relievable in equity, it being stripped of all other circumstances ; and the court held that it was not. On that occasion the court said : " The main ques- tion, on which relief was sought by the bill, that on which the decree below pro- ceeded, and on which the appellees relied in this court for its affirmance, is, can a court of chancery relieve against a mis- take of law ? In its examination, we will take it for granted, that the parties, who took up the bill for ten thousand dollars, included the damages of a thousand dol- lars in the eight thousand dollar note; and did so, believing the statute of Ken- tucky secured the penalty to the bank ; and that, in the construction of the stat- ute, the appellees were mistaken. Vexed as the question formerly was, and deli- cate as it now is, from the confusion in which numerous and conflicting decisions have involved it, no discussion of cases can be gone into without hazarding the introduction of exceptions, that will be likely to sap the direct principle we in- § 137, 138.] MISTAKE. 131 § 138. It is matter of regret, that, in the present state of the law, it is not practicable to present, in any more definite form, the doctrine respecting the effect of mistakes of law, or to clear the sub- ject from some obscurities and uncertainties which still surround it. But it may be safely affirmed, upon the highest authority, as a well-established doctrine, that a mere naked mistake of law, unat- tended with any such special circumstances as have been above suggested, will furnish no ground for the interposition of a court of equity ; and the present disposition of courts of equity is to nar- row, rather than to enlarge, the operation of exceptions. 1 It may, however, be added, that, where a judgment is fairly obtained at law upon a contract, and afterwards, upon more solemn consider- tend to apply. Indeed, the remedial power claimed by courts of chancery to relieve against mistakes of law, is a doc- trine rather grounded upon exceptions, than upon established rules. To this course of adjudication we are unwilling to yield. That mere mistakes of law are not remediable, is well established, as was declared by this court in Hunt v. Rous- maniere, 1 Peters, 15 ; and we can only repeat what was there said, ' that what- ever exceptions there may be to the rule, they will be found few in number, and to have something peculiar in their char- acter,' and to involve other elements of decision (1 Story's Eq. Jurisp. § 116). What is this case ; and does it turn upon any peculiarity? Griffin sold a bill to the United States Bank, at Lexington, for ten thousand dollars, indorsed by three of the complainants, and accepted by the other, payable at New Orleans ; the ac- ceptor, J. D., was present in Kentucky, when the bill was made, and there ac- cepted it ; at maturity it was protested for non-payment, aitd returned. The debtors applied to take it up, when the creditors claimed ten per cent damages, by force of the statute of Kentucky. All the parties bound to pay the bill were perfectly aware of the facts ; at least the principals, who transacted the business, had the statute before them, or were familiar with it, as we must presume ; they and the bank earnestly believing (as in all probability most others believed at the time) that the ten per cent damages were due by force of the statute, and, influenced by this opinion of the law, the eight thousand dollar note was executed, including the one thousand dollars claimed for damages. Such is the case stated and supposed to exist by the complainants, stripped of all other considerations stand- ing in the way of relief. Testing the case by the principle, ' that a mistake or ignorance of the law forms no ground of relief from contracts fairly entered into, with a full knowledge of the facts ; ' and under circumstances repelling all pre- sumptions of fraud, imposition, or undue advantage having been taken of the party, none of which are chargeable upon the appellants in this case, the question then is, Were the complainants entitled to relief ' To which we respond decidedly in the negative." So far then, as the courts of the United States are con- cerned, the question may be deemed finally at rest. [* But see ante, § 125, and note.] 1 Lord Cottenham, in his elaborate judgment in Stewart v. Stewart, 6 Clark & Einnell. 694 to 971, critically examined all the leading authorities upon this sub- ject, and arrived at the same conclusion ; and his opinion was confirmed by the House of Lords. Mr. Burge shows, in his learned Commentaries on Colonial and Foreign Law (Vol. 3, p. 742. &c), that the like rule prevails in the civil law, . and in foreign countries on the continent of Europe, where the civil law prevails-. Kelly v. Solari, 9 Mees. & Wels. 54, 57, 58, contains a like recognition of the dot- trine, by Lord Abinger. See also Great Western Railway Co. v. Cripps, 5 Hare, 91; [ante, §114]. 132 EQUITY JURISPRUDENCE. [CH. V. ation of the subject, the point of law, upon which the cause was adjudged, is otherwise decided, no relief will be granted in equity against the judgment upon the ground of mistake of the law ; for that would be to open perpetual sources for renewed litiga- tion. 1 [* § 138 a. The present state of the law, upon this vexed ques- tion, will allow no more definite rules upon the subject to be laid down than those already stated. But, as has been already inti- mated, 2 the distinction between mistakes of law and of fact is one of expediency and policy rather than of principle. For as one is bound to know the law, and consequently presumed to know it, there seems to be an inconsistency in granting relief in courts of equity, based solely upon an alleged mistake of law. So, too, such mistakes are not commonly easy of clear proof, and courts of equity, in assuming to correct alleged mistakes, must of necessity require the very clearest proof, lest they create errors, in attempt- ing to correct them. There is, too, great opportunity for the practice of fraud through alleged mistakes of law, when courts listen readily to such grounds, for setting aside, the clearly expressed contracts of the parties. § 138 b. From these considerations, and some others stated else- where, in the course of this chapter, it will be obvious that the general rule, governing courts of equity upon this subject, should be, to deny relief, sought upon the mere ground of ignorance, or mistake of law; and that the exceptions allowed must be of marked character, both in regard to proof, and the degree of injustice consequent upon a denial of relief. § 138 o. But when the courts established the rule that the for- getfulness of facts, once well known to the party, was a just ground of relief against a contract, 3 they were, in our apprehension, going a long way towards recognizing the principle, that the mistake or misapprehension of a clearly established rule of law, whereby the party submits to the relinquishment of rights, or assumes duties, upon grounds which he could not have entertained but for such misapprehension, is ground of equitable relief. And where the result of denying relief will be to give the other party an uncon- scionable advantage, and the fact of such misapprehension is 1 Mitf. Eq. PI. by Jeremy, 131, 132; * Kelly «. Solan, 9 M. & W. 54; Bell Lyon v. Richmond, 2 Johns. Ch. 51. ». Gardiner, 4 Man. & Granger, 11. 2 [* Ante, § 125, and note. § 138-138/.] MISTAKE. 133 admitted, or proved to the entire satisfaction of the court, it would be strange if it were not a sufficient ground for equitable inter- ference. The denial of relief in such cases would seem to be at variance with the long-established doctrines of courts of equity, and a reproach to the law itself. 1 § 138 d. But it must also be borne in mind, that such relief will not be granted, where from change of circumstances, or the vest- ing of other rights, or interests, it is no longer practicable to place the parties in the same position they would have been in, had the mistake never occurred, or been corrected at the time of its occur- rence. 2 § 138 e. With these important qualifications, which will exclude all cases, where the law is doubtful, at the time, or where there is no marked injustice done, by allowing the contract to stand, or no undue advantage gained, or where other rights have intervened, or the parties cannot be placed in statu quo, the rule that an admitted, or clearly established misapprehension of the law does create a basis for the interference of courts of equity, resting in discretion, and to be exercised only in the most unquestionable and flagrant cases, is certainly more in consonance with the exact moral sense, and will be found, we believe, not at variance with the best con sidered and best reasoned cases upon the point, both English and American. § 138 /. No jurist of eminence, or judge of enlarged knowledge and experience, has yet been able to lay down any more restricted rule upon the subject ; and it is creditable to the courts, and to the profession, that, with all the zeal which has been sometimes manifested, to make the rule excluding relief, in courts of equity, in every case of pure mistake of law, absolute and inflexible, the sense of justice has steadily withstood the refinements of logic on 1 Ante, § 121, and notes. Saunders v. slight evidence, that the party acted, Lord Annesley, 2 Sch. & Lefr. 73, 101, either upon want of consideration, which where Lord Redesdale says, that if one is amounts to legal surprise, or upon the induced to part with a fee-simple for a enticement or suggestion of some one, in mere leasehold interest, " if it were clear the interest of the other party, and this beyond all possibility of doubt, in a case will constitute fraud. And the courts of of fraud," the court might certainly in- equity are always vigilant, as they should terf ere : " in a case of mere ignorance, be, to seize hold of all such extraneous though I incline to think it might," yet circumstances, to enable them to relieve upon examination he finds it more ques- the one party from unjust loss, and to tionable. The truth is, in almost all deprive the other of taking an uncon- cases of this character, there will be scionable advantage, found sufficient, although it may be but 2 Ante, § 125, and note. 134 EQUITY JURISPRUDENCE. [CH. V. the one hand, and the blind love of formal symmetry upon the other. "We trust the principle, that cases may and do occur, where courts of equity feel compelled. to grant relief, upon the mere ground of the misapprehension of a clear rule of law, which has so long maintained its standing among the fundamental rules of equity jurisprudence, is yet destined to afford the basis of many wise and just decrees, without infringing the general rule that mistake of law is presumptively no sufficient ground of equitable interference. 1 1 The following cases (Ad. Eq. 168, Am. note) not before referred to will be found to illustrate the propositions main- tained in § 138 a-138/ Lowndes v. Chisolm, 2 McCord's Ch. 455 ; Hopkins's Ex'r v. Mazyck, 1 Hill, Ch. 251 ; Drew v. Clarke, Cooke, 374; Lammot v. Bowly, 6 Har. & Johns. 500; Gilbert v. Gilbert, 9 Barb. S. C. 534; Arthur ». Arthur, 10 id. 9 ; Mathews v. Terwilliger, 3 id. 50 ; Dupre v. Thompson, 4 id. 279. See also ante, § 125, and note ; Stone v. Godfrey, 18 Jurist, 162 ; affirmed id. 524 ; s. c. 23 L. J. h. s. Ch. 769, 5 De G., M. & G. 76; Lawton v. Campion, 18 Jurist, 818 ; 23 L. J. K. s. Ch. 505 ; Ashurst v. Mill, el vice oersa, 7 Hare, 502 ; Mellish o. Robertson, 25 Vt. 603 ; Howard v. Puffer, 23 Vt. 365 ; Fletcher v. Jackson, 23 Vt. 581, 597, 598; McDaniels v. Bank of Rutland, 29 Vt. 230. [Where through ignorance or mis- take of law the agreement as executed does not carry into effect according to intent an existing binding agreement, equity will relieve. Oliver v. Mut. Com. M. Ins. Co., 2 Curtis, C. C. 277 ; Stock- bridge Iron Co. v. Hudson Iron Co., 107 Mass. 290.] In Key v. Simpson, 6 Iredell, Eq. 462, cited 2 Lead. Cas. in Eq. 682, it is said that equity may always intervene when there is any thing to amend by, and hence when a deed drawn in pursuance of a prior written contract was through inad- vertence not so expressed as to give effect to the contract, it was reformed. And probably courts of equity would always be prepared to go to that extent, where the departure from the contract was im- portant. This, then, reduces the question to one of difficulty and uncertainty of proof, which is perhaps all the real dis- tinction, in principle, between relief in equity, for mistakes of law and of fact. The American courts have frequently granted relief for mistakes of law, or avowed a willingness to do so. Larkins v. Biddle, 21 Ala. 252 ; State v. Paup, 8 Eng. (Ark.) 129. Williams v. Champion, 6 Ham. 169 ; Evants v. Strode, 11 Ohio, 480 ; Beardsley u. Knight, 10 Vt. 185; Mc- Naughten v. Partridge, 11 Ohio, 223 ; Bank of Rochester v. Emerson, 10 Paige, 359 ; Champlin v. Laytin, 1 Edw. Ch. 467; Green v. Morris & Essex R.R., Beasley, Ch. 165; Newell v. Stiles, 21 Ga. 118. In the case of Canedy v. Marcy, 13 Gray, 373, a deed was reformed upon sat- isfactory oral proof, that the words used by the scrivener did not express the in- tent of the parties, although supposed by him to do so at the time he drew the in- strument. And in Sawyer ». Hovey, 3 Allen, 331, it is said that in order to sustain a bill in equity to reform a, deed, on the ground of mistake, there must be full and satisfactory proof that it does not conform to the oral contract, as un- derstood by either party. And in another case before the same court, Andrew v. Spurr, 8 Allen, 412, it was held, as before stated, that where the party trusted to an oral agreement and did not intend to have it inserted in the deed, the court could not reform the deed so as to embrace it, even when the party fraudulently refused to perform it. But where the grantor orally agreed upon the sale of land at a specific price by the acre, to warrant the quantity at the estimation, and, if it fell short, to refund the price in proportion to the de- ficiency ; and the deed being drawn with such a covenant, the grantor fraudulently erases the whole covenant and delivers the deed to the grantee without informing him of the erasure, and thus deceives him into the belief that the deed at the time of delivery contains that covenant, the § 138/-138 i.] MISTAKE. 135 § 138 g. The English courts evidently regard with favor this branch of equity jurisprudence. There is certainly not the same enthusiasm manifested, by the courts in Westminster Hall, to stigr matize the idea of asking relief, in a, court of equity, from the consequences of a mistake of law, as a gross and puerile absurdity, which we sometimes meet upon this side of the Atlantic. 1 The very latest decisions of the English courts treat it as a recognized and highly beneficial branch of remedial justice. 2 § 138 h. It may be said here, what will probably occur to the careful student, that this entire subject of equitable relief, upon the ground of mistake, either of law or of fact, is altogether excepr tional, and quite one side of any thing contemplated, in the law of contracts. In the inception of contracts it must always be assumed, in regard to both these classes of mistakes, that the pari- ties impliedly stipulate that they will, each for himself, run hih own risk. That is confessedly the implied condition of all con r tracts. And the parties cannot properly ask to be relieved from any merely incidental hardship resulting from being under mistake, either as to the true state of the facts or of the law. § 138 i. But where the mistake is of so fundamental a character, that the minds of the parties have never, in fact, met ; or where an unconscionable advantage has been gained, by mere mistake or misapprehension ; and there was no gross negligence on the part of the plaintiff, either in falling into the error, or in not sooner claim- ing redress; and no intervening rights have accrued; and the parties may still be placed in statu quo ; equity will interfere, in its discretion, in order to prevent intolerable injustice. This is the clearly defined and well established rule upon the subject, in courts of equity, both in England and America. 3 court will direct the deed to be reformed Campbell v. Ingilby, 1 De Gex & Jones, according to the contract. Metcatf v. 393. See also Broughton v. Hutt, 3 De Putnam, 9 Allen, 97. See ante, § 113, Gex & J. 501 ; Crofts v. Middleton, 2 Kay note (6) ; § 120, note (a). & Johnson, 194. (Cooper v. Phibbs, L. E. i Champlin v. Laytin, 18 Wendell, 407. 2 H. L. 149.) 2 Stone •». Godfrey, 5 De G., M. & G. » Ante, § 138 f, and note ; post, § 141, 76. The rule is here laid down, " That 142. [Thus, though the mistake is not the court has power to relieve against mutual, if it is such that the minds of the mistakes of law, as well as against mis- parties have not met upon a material takes of fact." But it is added, " the point, and if the parties can be placed in court must be satisfied that the plaintiff's statu quo, equity will rescind the agree- conduct has been determined by these ment Smith v. Mackin, 4 Lans. (N. Y.) mistakes." And the party seeking relief 41. And in a proper case the defendant must not have been guilty of laches, will be put to his election either to have 136 EQUITY JURISPRUDENCE. [CH. V. § 138 k. The question of reforming deeds and other instruments, on the ground of mistake or fraud, is carefully examined and judi- ciously presented by Mr. Justice Kellogg, of the Vermont Su- preme Court, in a recent case. 1 Here the plaintiff conveyed to the defendant a piece of land, on which was a spring from which the plaintiff's aqueduct supplied his own and other premises with water-. The aqueduct was of greater value to the plaintiff than the price received for the land, and he did not intend to part with the right to use the water in the spring ; but by mistake no reser- the contract reformed or rescinded, or complainant may, if he prefer, dismiss his bill. Bloomer v. Spittle, L. R. 13 Eq. 427. 1 Brown v. Lamphear, 35 Vt. 252. See Segee v. Thomas, 3 Blatchf. C. C. 11, where the court enjoined a minor who had received the purchase-money for land, Bold by order of the probate court, from disturbing the purchaser, and compelled him to give an effective release of the title, the purchaser having made valuable improvements. But see contra Dickey v. Beatty, 14 Ohio, v. s. 389. The rule of reforming deeds in equity is defined in Adams v. Stevens, 49 Me. 362, as a de- cree, that the instrument shall be read and construed, as it was originally in- tended by the parties. But this can only be done while the interest remains be- tween the original parties, or those buy- ing with notice. Id. See also Prescott v, Hawkins, 16 N. H. 122. It was here held that where one is notified before he takes his deed, it is the same as if he had notice before he made the contract. And a mortgagor, having sold the securities and repurchased them, is thereby remitted to his original status. Kennard v. George, 44 N. H. 440. Here the court decreed the confirmation of a void mortgage deed. But where one had, under a mistake of the law, given consent for a highway to be laid out across his lands, equity will afford him no relief. Marble v. Whitney, 28 N. Y. 297. See also Rider v. Powell, id. 310. It must appear that the contract is different from the understanding of both parties to justify the court in reform- ing it. Schettiger v. Hopple, 3 Grant's Cas. 54; s. p. Nevius v. Dunlap, 33 N. Y. 676. See also Bartle v. Vosbury, 3 Grant's Cas. 277 ; Hunter v. Bilyea, 30 111. 228. Equity will interfere to annex a condition to a railway subscription, that the road shall be constructed on a particular route or the subscriber shall not be holden, and which was omitted by mistake. Gelpcke v. Blake, 15 Iowa, 387 ; Jack v. Naber, id. 450. But the court declined to affix a seal to a voluntary instrument which was invalid for want of it, and which was agreed to be affixed. Eaton v. Eaton, id. 259. But this is upon the ground that equity will not reform any mere volun- tary deed or contract which is defectively executed, but will leave the party to his remedy at law. Hunt v. Erazier, 6 Jones, Eq. 290. Henderson v. Dickey, 35 Mo. 120. But the cases all agree that the proof to justify reforming a deed must be such as to strike all minds alike, as free from all reasonable doubt. Edmunds's Appeal, 59 Perm. St. 220. Mistake, of law and fact combined, may afford ground for equitable relief, but not of law only. Gross v. Leber, 47 Perm. St. 520. But see Clayton v. Bussey, 30 Ga. 946 ; Burt v. Wilson, 28 Cal. 672. The discharge of » mortgage entered by mistake on the margin of the record, may be set aside in equity. Bruce v. Bon- ney, 12 Gray, 107. Where the mortgagee of land had cancelled the mortgage on the ground of misdescription and taken another on the fraudulent representation that the land was still free from encum- brance, equity will revive and reform the former mortgage. Loomis v. Hudson, 18 Iowa, 416. So also equity will reform a mortgage against the purchaser of the land with notice that it was intended to have been embraced in the mortgage and was by mistake omitted. Ruhling v. Hackett, 1 Nev. 360. § 138 £-139.] mistake. 137 vation was made in the deed. The defendant, at the time of the purchase, had no knowledge of the existence of the spring. It was held that the plaintiff was entitled either to such a convey- ance from the defendant as would entitle him Jo the use of the water from the spring, or else to a reconveyance of the land, upon the repayment of the price, and the defendant might elect which form of remedy he preferred the plaintiff should have. § 138 I. There is a somewhat recent case in Connecticut, 1 where the mortgagee of land applied to the agent of the defendants to have his interest as mortgagee insured, and the agent, supposing that was the legal mode of effecting it, drew the application as for an insurance upon the property in the name of the mortgagor and payable to the mortgagee in case of loss, and had the policy made in conformity with it. It was held that a court of equity will correct the mistake, although one of law and not of fact.] § 139. Where a bond fide purchaser, for a valuable considera- tion, without notice, is concerned, equity will not interfere to grant relief in favor of a party, although he has acted in igno- rance of his title upon a mistake of law ; a for in such a case the purchaser has, at least, an equal right to protection with the party laboring under the mistake. 3 And where the equities are equal, the court withholds itself from any interference between the parties. 4 1 Woodbury Savings Bank v. Charter in many cases, error of law will preju- Oak Ins. Co., 31 Conn. 517 ; s. p. Longhurst dice a party in regard to his rights ; but v. Star Ins. Co., 19 Iowa, 364. See also not error of fact, unless in cases of gross Jordan v. Stevens, 51 Me. 78 ; Freeman negligence. Dig. Lib. 22, tit. 6, 1. 7. The o. Curtis, id. 140.] general rule of the civil law seems to be, 2 See Ligon v. Eogers, 12 Geo. 292. that error of law shall not profit those 3 Ante, § 64 e, § 108 ; post, § 154, 165, who are desirous of acquiring an advan- 381, 409, 434, 436. tage or right ; nor shall it prejudice those 4 See Maiden v. Menill, 2 Atk. 8 ; who are seeking their own right. Juris Storrs v. Barker, 6 Johns. Ch. 166, 169, ignorantia non prodest adquirere volenti- 170. In the civil law, there is much dis- bus ; suum vero petentibus non nocet. cussion as to the effect of error of law ; Dig. Lib. 22, tit. 6, 1. 7 ; Pothier, Pand. and no inconsiderable embarrassment ex- Lib. 22, tit. 6, § 2, n. 2, 3. But then this ists in stating, in what cases of error in text is differently interpreted by different law the party is relievable, and in what civilians. See 2 Evans's Pothier on Oblig. not. It is certain that a wide distinction Appendix, No. xviii. p. 408 to 447 ; was made between the operation of errors Ayliffe, Pand. B. 2, tit. 15, p. 116 ; 1 of law, and errors of fact. In omni parte Domat, B. 1, tit. 8, § 1, art. 13 to 16. error in jure non eodem loco, quo facti Domat, after saying that error of law is ignorantia, haberi debebit ; cum jus fini- not sufficient, as an error in fact is, to turn et possit esse, et debeat ; facti inter- annul contracts, says, that error or igno- pretatio plerumque etiam prudentissimos ranee of law hath different effects in con- f allat. Dig. Lib. 22, tit. 6, 1. 2. Hence, tracts ; and then he lays down the f ol- 138 EQUITY JTJRISPBUDENCE. [CH. V. § 140. In regard to the other class of mistakes, that is, mistakes of fact, there is not so much difficulty. The general rule is, that an act done, or contract made, under a mistake or ignorance of a material fact, is .voidable and relievable in equity. The ground of this distinction between ignorance of law and ignorance of fact seems to be, that, as every man of reasonable understanding is presumed to know the law, and to act upon the rights which it confers or supports, when he knows all the facts, it is culpable negligence in him to do an act, or to make a contract, and then to set up his ignorance of law as a defence. The general maxim here is, as in other cases, that the law aids those who are vigilant, and not those ,who slumber over their rights. And this reason is recognized as the foundation of the distinction, as well in the civil law as in the common law. 1 But no person can be presumed to be acquainted with all matters of fact ; neither is it possible, by any degree of diligence, in all cases to acquire that knowledge, and, therefore, an ignorance of facts does not import culpable neg- ligence. The rule applies not only to cases where there has been a studied suppression or concealment of the facts by the other side, which would amount to fraud; but also to many cases of innocent ignorance and mistake on both sides. 2 So, if a party has lowing rules. (1.) If error or ignorance tot; ante, § 111, and note, f So equity will of law be such, that it is the only cause not reform or carry into execution an im- of a contract, in which one obliges him- perfect instrument at suit of one whose self to a thing, to which he is otherwise claim rests only on the consideration of not bound, and there be no other cause lore and affection, as against one whose for the contract, the cause proving false, claim is equally meritorious. Hout v. the contract is null. (2.) This rule ap- Hout, 20 Ohio, n. s. 119. Nor a fraudu- plies, not only in preserving the person lent contract. Gebhard v. Sattler, 40 la. from suffering loss, but also in hindering 152.] him from being deprived of a right, which 1 See Pothier, Pand. Lib. 22, tit. 6, § 3, he did not know belonged to him. n. 4, 5, 6, 7 ; § 4, n. 10, 11 ; Ayliffe's Pand. (3.) But, if by an error or ignorance of A. 2, tit. 15, p. 116 ; 1 Domat, B. 1, tit. the law, one has done himself a preju- 18, § 1 ; Doct. & Stud. Dial. 2, ch. 47; dice, which cannot be repaired without 1 Ponbl. Eq. B. 1, ch. 2, § 7, note (») ; breaking in upon the right of another, Pooley v. Ray, 1 P. Will. 355; Cocking the error shall not be corrected to the v. Pratt, 1 Ves. 400; Hitchcock v. Gid- prejudice of the latter. (4.) If the error dings, 4 Price, 135; Leonard v. Leonard, or ignorance of the law has not been the 2 Ball & Beatt. 171, 180 to 184; Pearson only cause of the contract, but another v. Lord, 6 Mass. 81 ; Garland v. Salem motive has intervened, the error will not Bank, 9 Mass. 408 ; 1 Madd. Ch. Pr. 60 annul the contract. And he .proceeds to to 64 ; Daniell v. Mitchell, 1 Story, 172. illustrate these rules. 1 Domat, B. 1, tit. 2 See Miles v, Stevens, 3 Burr. 21 ; 18, § 1, art. 13 to 17. See also Ayliffe, Leger v. Bonnaffe, 2 Barb. 475. Igno- Pand. B. 2, tit. 15 ; id. tit. 17 ; 2 Evans's ranee of facts and mistake of facts are Pothier on Oblig. Appendix, xviii. p. 418 ; not precisely equivalent expressions, id. 437 ; Pothier, Pand. Lib. 22, tit. 6, per Mistake of facts always supposes some §140,141.] MISTAKE. 189 bond fide entirely forgotten the facts, he will be entitled to relief, because, under such circumstances, he acts under the like mistake of the facts, as if he had never known them. 1 Ignorance of for- eign law is deemed to be ignorance of fact, because no person is presumed to know the foreign law; and it must be proved as a fact. 2 § 141. The rule, as to ignorance or mistake of facts, entitling the party to relief, has this important qualification, that the fact must be material to the act or contract, that is, that it must be essential to its character, and an efficient cause of its concoction. For though there may be an accidental ignorance or mistake of a fact ; yet, if the act or contract is not materially affected by it, the party claiming relief will be denied it. This distinction may be easily illustrated by a familiar case. A. buys an estate of B., to which the latter is supposed to have an unquestionable title. It turns out, upon due investigation of the facts, unknown at the time to both parties, that B. has no title (as if there be a nearer heir than B., who was supposed to be dead, but is, in fact, living) : in such a case equity would relieve the purchaser, and rescind the contract. 3 But, suppose A. were to sell an estate to B., whose location was well known to each, and they mutually believed it to contain twenty acres, and in point of fact it only contained nine- teen acres and three-fourths of an acre, and the difference would not have varied the purchase in the view of either party ; in such a case, the mistake would not be a ground to rescind the contract. 4 error of opinion as to the real facts ; but should be less culpable than the igno- ignorance of facts may be without any ranee of the law, which nothing short of error, and consist in mere want of knowl- the spirit of inspiration or prophecy can edge or opinion. Thus, a man knowing always remove.] that he has some interest in a parcel of 2 Leslie v. Bailie, 2 Younge & Coll. land, may suppose it to be » life estate, N. E. 91, 96 ; Haven v. Foster, 9 Pick, when it is a. fee. That is an error or mis- 113, 130; Raynham v. Canton, 3 Pick, take. But if he is ignorant that there 293 ; Kenny v. Clarkson, 1 Johns. 385 ; exists any such land, and that he had Prith o. Sprague, 14 Mass. 455; Conse- any title to it, that very ignorance may. qua v. Willings, 1 Peters, Cir. Ct. 229 ; lead hjm to form no opinion whatever on [* M'Cormick v. Garnett, 5 De G., M. & the subject. It may be a case of sheer G. 278.] negation of thought. The phrases are, s See 1 Evans's Pothier on Oblig. Pt. however, commonly used as equivalent 1, ch. 1, art. 9, n. 17, 18; Bingham v. in legal discussions. Canal Bank v. Bank Bingham, 1 Ves. 126; 1 Ponbl. Eq. B. 1, of Albany, 1 Hill, N. Y. 287. ch. 2, § 7. See also Bailey v. James, 11 i Kelly v. Solari, 9 Mees. & Wels. 54, Gratt. 468 ; Calverly v. Williams, 1 Ves. 58. [ * If it were pertinent, one might Jr. 210, 211 ; [Chapman o. Coats, 26 la. ask how the mere forgetfulness of facts, 288]. which is either voluntary or negligent, i See Smith u. Evans, 6 Binn. 102 ; 140 EQUITY JURISPRUDENCE. [CH. V. [On the other hand, if the vendor represented the land as situated in one county when it was in fact in another, this is a sufficient mistake to justify a court in refusing specific performance, although the vendor was innocent of any fraud. 1 So if the mistake be in the quantity of the land sold, as four acres instead of eight, this is sufficient to justify a court of equity in rescinding the contract ; it being proved that the deficiency was material in the object of the purchase. And this would be so although the land was described as being eight acres, "more or less," — those words being confined to a reasonable allowance for small errors in sur- veys, and for variations in instruments. 2 ] § 142. In cases of mutual mistake going to the essence of the contract, it is not necessary that there should be any presump- tion of fraud. On the contrary, equity will often relieve, however innocent the parties may be. Thus, if one person should sell a messuage to another, which was, at the time, swept away by a flood, or destroyed by an earthquake, without any knowledge of the fact by either party, a court of equity would relieve the purchaser, upon the ground that both parties intended the purchase and sale of a subsisting thing, and implied its existence as the basis of their contract. It constituted, therefore, the very essence and condition of the obligation of their contract. 3 So, if a person should execute a release to another party upon the supposition founded in a mis- take, that a certain debt or annuity had been discharged, although both parties were innocent, the release would be set aside upon the ground of a mistake. 4 The civil law holds the same principle. " Domum emi, cum earn, et ego, et venditor combustam ignorare- mus. Nerva, Sabinus, Cassius, nihil venisse, quamvis area maneat, pecuniamque solutam condici possi, aiunt." 5 Voorhees v. DeMeyer, 2 Barb. 37 ; Mann 99 Mass. 231. So generally the mistake v. Pearson, 2 Johns. 37 ; O'Kill v. Whit- to be relieved against must be mutual, taker, 1 De Gex & Smale, 83. Briose v. Pacific Mut. Ins. Co., 4 Daly, 1 Best v. Stow, 2 Sandf . Ch. 298. 246 ; Nelson v. Davis, 40 Ind. 366 ; Boyce 2 IBelknap v. Sealey, 2 Duer, 579 ; and v. Lorillard Fire Ins. Co., 55 N. Y. 240.] see Quesnel v. Woodlief, 2 Hen. & Munf. 3 Hitchcock v. Giddings, 4 Price, 135, 173, note ; Day v. Fynn, Owen, 133. But 141 ; s. c. Daniell, 1 ; 2 Kent, Comm. see Ketchum v. Stout, 20 Ohio, 455 ; Stall Lect. 39, p. 469 (2d edit.). But see Sug- v. Hart, 9 Gill, 446. Where the sale is den on Vendors, p. 237, and note 1 (7th for a gross sum, and the deed contains a edit.) ; Stent v. Bailis, 2 P. Will. 220; description by boundaries, or the words [*Colyer v. Clay, 7 Beavan, 188]. " more or less," the deficiency must be so * Hore v. Becher, 12 Simons, 465 ; great as to imply fraud or gross mistake [Fane v. Fane, L. K. 20 Eq. 698]. in the essence of the contract in order to 6 Dig. Lib. 18, tit. 1, 1. 27 ; 2 Kent, give claim to relief. Noble v. Googins, Comm. Lect. 39, p. 468, 469 (2d edit.); § 141-143 6.] MISTAKE. 141 § 143. The same principle will apply to all other cases, where the parties mutually bargain for and upon the supposition of an existing right. Thus, if a purchaser should buy the interest of the vendor in a remainder in fee, expectant upon an estate tail, and the tenant in tail had at the time, unknown to both parties, actually suffered a recovery, and thus barred the estate in remain- der, a court of equity would relieve the purchaser, in regard to the contract, purely upon the ground of mistake. 1 [So a mutual mistake of parties as to the vendor's interest in the land sold is good cause for setting aside the sale. 2 ] § 143 a. It will make no difference, in the application of the principle, that the subject-matter of the contract be known to both parties to be liable to a contingency, which may destroy it immediately ; for if the contingency has, unknown to the parties, already happened, the contract will be void, as founded upon a mutual mistake of a matter, constituting the basis of the contract. Thus, if a life-estate should be sold, and at the time of the sale the estate is terminated by the death of the party in whom the estate is vested, and that fact is unknown to both parties, a court of equity would rescind the contract, upon the ground of a mutual mistake of the fact, which constituted the basis of the contract. 3 So, if a horse should be purchased, which is by both parties be- lieved to be alive, but is at the time of the purchase in fact dead, the purchaser would, upon the same ground, be relieved by rescinding the contract, if the money was not paid ; and if paid, by decreeing the money to be paid back.* § 143 I. The same principle has been applied to the case of a contract between two persons, whereby one contracted for a large sum, as a contingent compensation for his services in prosecuting a claim of the other against a foreign government for an illegal Grotius de Jure Belli, B. 2, ch. 11, § 7. If 1 Hitchcock v. Giddings, 4 Price, 135 ; the house were partially burnt, the civi- s. c. Daniell, 1. lians seemed to have entertained different 2 [Irick v. Fulton, 3 Gratt. 193.] [* And opinions, whether the vendor was bound where the plaintiff built a valuable dwell- by the contract, having an abatement of ing-house, upon the defendant's land, the price or allowance for the injury, or both supposing the land to belong to the had an election to proceed or not with plaintiff, the court relieved him, in a the contract, with such an abatement or manner to be of the least inconvenience allowance. See 2 Kent, Lect. 39, p. 469 to defendant, giving him the election to (4th edit.) ; Pothier de Vente, n. 4. Gro- sell his land or buy the plaintiff's house, this has made some sensible remarks McKelway v. Armour, 2 Stock. Ch. 116-] upon the subject of error in contracts. 8 Allen v. Hammond, 11 Peters, 71. Grotius de Jure Belli, B. -2, ch. 11, § 6. * Id. 142 EQUITY JURISPRUDENCE. [CH. V. capture, if it should be successful ; and at the time of the contract, the claim had, unknown to both parties, been allowed by the foreign government, with a stipulation for a due payment thereof ; for the very basis of the contract was future services to be rendered in prosecuting the claim; and unless such services were rendered, there was no consideration to support it. 1 § 144. The same principle will apply to cases of purchases, where the parties have been innocently misled under a mutual mistake as to the extent of the thing sold. Thus, if one party thought that he had bond fide purchased a piece of- land, as parcel of an estate, and the other thought he had not sold it, under a mutual mistake of the bargain ; that would furnish a ground to set aside the contract ; because (as has been said) it is impossible to say, that one shall be forced to give that price for part only, which he intended to give for the whole ; or, that the other shall be obliged to sell the whole for what he intended to be the price of part only. 2 [But where by the mutual mistake of vendor and pur- chaser, as to the duration of a leasehold interest, it was sold for much less than its real value, and the conveyance had been exe- cuted, and the purchaser had been in possession some years, the vendor was held entitled to no relief against the representatives of the vendee. 3 ] § 144 a. But here the nature of the purchase often constitutes a material ingredient. Thus, if a purchase is made of a thing in gross, as, for example, of a farm, as containing in gross by estima- tion a certain number of acres (such a sale is called in the Roman law a sale per aversionem) by certain boundaries. Then, if the transaction be bond fide, and both parties be equally under a mis- take as to the quantity, but not as to the boundaries, the sale will be binding on both parties, whether the farm contain more or fewer acres. 4 1 Allen v. Hammond, 11 Peters, 63, 71 ' 445 ; Milmine v. Burnham, 76 111. 362 ; to 73. Eobins v. Swain, 68 111. 177.] 2 Calverly v. Williams, 1 Ves. Jr. 210, 4 Morris Canal Co. v. Emmett, 9 Paige, 211. But see Okill v. Whittaker, 1 De 168; Stebbins v. Eddy, 4 Mason, 414; Gex & Smale, 83. See also Richardson post, § 195. But see Belknap «. Sealey, v. Bleight, 8 B. Monroe, 580. 2 Duer, 579 ; ante, § 141. See Dig. Lib. 18, » [Okill v. Whittaker, 1 De Gex & tit. 6, 1. 35, § 5. [Noble v. Googins, 99 Mass. Small!, 83. And see Churchill v. Rogers, 231. Equity will not relieve a slight 3 Monroe, 81 ; Best v. Stow, 2 Sandf . mistake as to the quantity, yet the deed Ch. 298. But lapse of time will not bar conveyed three times as much, as the relief, if the grantor has remained in parties supposed the error was corrected, possession. Hutson ». Furnas, 31 la. 154 ; Ladd v. Pleasants, 39 Tex. 415.] Farmers', &c. Bank v. Detroit, 12 Mich. § 143 &-146.] MISTAKE. 143 § 145. It is upon the same ground that a court of equity pro- ceeds, where an instrument is so general in its terms, as to re- lease the rights of the party to property, to which he was wholly ignorant that he had any title, and which was not within the contemplation of the bargain at the time when it was made. In such cases the court restrains the instrument to the purposes of the bargain, and confines the release to the right intended to be released or extinguished. 1 § 146. It is not, however, sufficient in all cases, to give the party A relief, that the fact is material ; but it must be such as he could J not by reasonable diligence get knowledge of, when he was puty' upon inquiry. For if by such reasonable diligence he could have obtained knowledge of the fact, equity will not relieve him ; since that would be to encourage culpable negligence. Thus, if a party has lost his cause at law from the want of proof of a fact, which by ordinary diligence he could have obtained, he is not relievable in equity; for the general rule is, that if the party becomes \ remediless at law by his own negligence, equity will not relieve j him. 2 [* There are many cases, where equity will not interpose, / where the party was under mistake, and without fault.] 1 Farewell v. Coker, cited 2 Meriv. 352 ; held, that, at law, a promise to pay a note Kamsden v. Hylton, 2 Ves. 304. [* But under ignorance of facts, but where the a court of equity cannot annex a clause to party had the means of knowledge, and a contract, however just and necessary it might have made inquiry, did not bind may be, provided the parties did not agree him. The same point was decided in to it. Thompsonville Scale M. Co. v. Kelly v. Solari, 9 Mees. & Welsb. 54, and Osgood, 26 Conn. 16. Nor where the Lucas v. Worswick, 1 Mood. & Bob. 293. clause was designedly omitted from the All these cases at law proceed upon the contract, to depend on defendant's honor, ground, that a mistake of material facts Betts v. Gunn, 31 Alabama, 219.] will avoid a promise made on the found- 2 Eonbl. Eq. B. 1, ch. 3, § 3 ; f* Wason ation of that mistake, even when he had v. Wareing, 15 Beavan, 151] ; Penny v. the means of knowledge within his reach. Martin, 4 Johns. Ch. 566 ; Butman v. But courts of equity proceed upon a Hussey, 30 Maine, 266; Schroeppell r. somewhat differently modified doctrine. Shaw, 3 Corns. 451. The rule of the If relief can be given at law, then there civil law is the same. Sed f acti ignoran- is no ground for any application to a tia ita demum cuique non nocet, si non ei court of equity for relief. But if a court summa negligentia objiciatur. Quod of equity is asked to give relief in a case enim si omnes in civitate sciant, quod ille not fully remediable at law, or not re- solus ignorat ? Et recte Labeo definit, mediable at all at law, then it grants it scientiam neqne curiosissimi neque negli- upon its own terms, and according to its gentissimi hominis accipiendam; vcrum own doctrines. It gives relief only to ejus, qui earn rem diligenter inquirendo the vigilant and not to the negligent ; to notam habere possit. Dig. Lib. 22, tit. 6, those who have not been put upon their 1. 9, § 2 ; Pothier, Pand. Lib. 22, tit. 6, diligence to make inquiry, and not to § 4, n. 11. In the late case of Bell o. Gard- those who, being put upon inquiry, have ner, 4 Mann. & Granger, 11, 24, it was chosen to omit all inquiry, wliich woultf 144 EQUITY JURISPRUDENCE. [CH. T. § 147. Nor is it in every case, where even a material fact is mistaken or unknown without any default of the parties, that a court of equity will interpose. The fact may be unknown to both parties, or it may be known to one party and unknown to the other. If it is known to one party, and unknown to the other, that will in some cases afford a solid ground for relief ; as, for instance, where it operates as a surprise, or a fraud, upon the ignorant party. 1 But in all such cases, the ground of relief is, not the mistake or ignorance of material facts alone ; but the unconscientious advantage taken of the party by the concealment of them. 2 For if the parties act fairly, and it is not a case where one is bound to communicate the facts to the other, upon the ground of confidence, or otherwise, there the court will not inter- fere. Thus, if A., knowing that there is a mine in the land of hare enabled them at once to correct the mistake, or to obviate all ill effects there- from. In short, it refuses all its aid to those who, by their own negligence, and by that alone, have incurred the loss, or may suffer the inconvenience. It is one thing to act under a mistake of fact, hav- ing the means of inquiry, but without being aware of the necessity of ascer- taining the facts, and quite a different thing to omit all inquiry in due season, when the party is aware of the necessity and the mode of the inquiry is pointed out to him, or is within his reach. [* Equity sets aside settlements made by the parties under misapprehension. M'- Crae v. Hollis, 4 Desaus. 122 ; Barnett v. Barnett, 6 J. J. Marshall, 499 ; Ad. Eq. 418. See post, § 400, 400 a. So if one party knows the other is acting under a mistaken idea that the contract he is exe- cuting contains a reservation which had been agreed upon. Wells v. Yates, 44 N. Y. 525. See also Botsford v. McLean, 45 Barb. 478 (compare s. c. 42 Barb. 445) ; Monroe v. Skellton, 36 Ind. 302 ; Kear- ney o. Sacer, 37 Md. 264. See as to laches George v. Alexander, 6 Cold. (Tenn.) 641; Walker v. Kretsinger, 48 111. 502 ; Wilder v. Lee, 64 N. C. 50; Mil- ler v. Morse, 23 Mich. 365. And it must appear that if there had been a fair trial the complainant would have prevailed. Ames v. Snider, 55 111. 498. Nor will equity relieve to let in testimony made competent by statute since the trial. Brown o. Hurd, 56 HI. 317. But some- times newly discovered evidence has been made a ground of relief. Harvey ». Seashol, 4 W. "Va. 115. So perjury of sole witness. Seward v. Cease, 50 HI. 228. But see Miller v. Morse ; Ames v. Snider, ubi sup. So discovery of facts constituting defence. Hickerson v. Bai- guel, 2 Heisk. -(Tenn.) 329. But see George v. Alexander, ubi sup. Equity will not relieve for mistake or mis judg- ment of counsel, or misunderstanding be- tween counsel and client. Farmers' L. & , T. Co. v. Walworth Co. Bank, 23 Wise. 249 ; Winchester v. Grosvenor, 48 HI. 517 ; Smith v. Powell, 50 111. 21. But where the magistrate made a. mistake in omit- ting to note appearance of counsel, relief was given. Brewer v. Jones, 44 Geo. 71. So where plaintiff's counsel put in evi- dence an erroneous plan handed him by defendant's counsel as a correct plan. Webb v. Parker, 41 Geo. 478. Eor a case where lack of actual notice of suit was made ground for relief, see Southern Ex- press Co. v. Craft, 43 Miss. 508. J 1 Jeremy on Eq. Jurisd. B. 3, ch. 2, p. 366, 367; id. ch. 3, p. 387; Leonard v. Leonard, 2 Ball & Beatt. 179, 180, and the case cited in Mortimer v. Capper, by the lord chancellor, 1 Brown, Ch. 158 ; 6 Ves. 24 ; Gordon v. Gordon, 3 Swanst. 462, 467, 471, 473, 476, 477. 2 See East India Company v. Donald, 9 Ves. 275 ; Earl of Bath and Montague's case, 3 Ch. Cas. 56, 74, 103, 114. § 147-149.] MISTAKE. 145 B., of which he knows that B. is ignorant, should buy the land without disclosing the fact to B., for a price in which the mine is not taken into consideration, B. would not be entitled to relief from the contract ; because A., as the buyer, is not obliged, from the nature of the contract, to make the discovery. 1 [* There must always be shown, either the mistake of both parties, or the mistake of one, witlrthe fraudulent concealment of the other, to justify a court of equity in reforming a contract. 2 ] § 148. And it is essential, in order to set aside such a transac- tion, not only that an advantage should be taken; but it must arise from some obligation in the party to make the discovery ; not from an obligation in point of morals only, but of legal duty. In such a case the court will not correct the contract, merely because a man of nice morals and honor would not have entered into it. It must fall within some definition of fraud or surprise. 3 For, the rules of law must be so drawn, as not to affect the general transactions of mankind, or to require that all persons should, in all respects, be upon the same level as to information, diligence, and means of judgment. Equity as a practical system, although it will not aid immorality, does not affect to enforce mere moral duties. But its policy is to administer relief to the vigilant, and to put all parties upon the exercise of a searching diligence. 4 Where confidence is reposed, or the party is intentionally misled, relief may be granted ; but in such a case there is the ingredient of what the law deems a fraud. Cases falling under this predica- ment will more properly come in review in a subsequent part of this work. 5 § 149. A like principle applies to cases where the means of in- formation are open to both parties ; and where each is presumed to exercise his own skill, diligence, and judgment in regard to all 1 Post, § 207, note. 6 See Leonard ». Leonard, 2 Ball & 2 [* Wright v. Goff, 22 Beavan, 207 ; Beatt. 179, 180 ; Gordon v. Gordon, 3 The Metropolitan Counties Society v. Swanst. 463, 467, 470, 473, 476, 477. See Brown, 26 Beavan, 454 ; Diman v. Pr. W. on this subject, 1 Fonbl. Eq. B. 1, ch. 3, & B. Bail. Co., 5 R. I. 130. See ante, § 4, note (n) ; Jeremy on Eq. Jurisd. 383, § 167, note.] &e. ; 1 Mad. Eq. Pr. 204, &c. ; Laidlaw v. 8 Fox o. Mackreth, 2 Bro. Ch. 420 ; 1 Organ, 2 Wheat. 178 ; Pothier de Vente, White & Tudor's Eq. Lead. Cas. 72 ; n. 233 to 241 ; 2 Wheat. 185, note ; Smith 1 Mad. Eq. PI. 63, 64; 1 Fonbl. Eq. B. v. Bank of Scotland, 1 Dow Pari. 294; 1, ch. 3, § 4, note (n) ; Earl of Bath and Pidcock v. Bishop, 3 B. & Cressw. 605 ; Montague's case, 3 Ch. Cas. 56, 74, 103, Etting v. Bank of V. S. 11 Wheat. 59, 114. and cases there cited ; post, § 260 to 273, 4 1 Fonbl. Eq. B. 1, ch. 6, § 8, note (h). 308 to 328. EQ. JUR. — VOL. I. 10 146 EQUITY JURISPRUDENCE. [CH. V. extrinsic circumstances. In such cases equity will not relieve. Thus, if the vendee is in possession of facts, which will materially enhance the price of the commodity, and of which he knows the vendor to be ignorant, he is not bound to communicate those facts to the vendor, and the contract will be held valid. 1 It has been justly observed, that it would be difficult to circumscribe the con- trary doctrine within proper limits, where the intelligence is equally accessible to both parties. 2 And, where it is not, the same remark applies with the same force, if it is not a case of mutual confidence, or of a designed misleading of the vendor. 3 Thus, if a vendee has private knowledge of a declaration of war, or of a treaty of peace, or of other political arrangements (in respect to which men speculate for themselves), which materially affect the price of commodities, he is not bound to disclose the fact to the vendor at the time of his purchase ; but, at least in a legal and equitable sense, he may innocently be silent. For there is no pretence to say, that upon such matters men repose confi- dence in each other, any more than they do in regard to other matters affecting the rise and fall of markets. 4 The like principle applies to all other cases, where the parties act upon their own judgment in matters mutually open to them. Thus, if an agree- ment for the composition of a cause is fairly made between parties 1 Laidlaw v. Organ, 2 Wheat. 178, 195. 2 Ibid. [* This case has been severely criticised 8 Pothier, in his treatise on the subject in the able commentary of Mr. Verplank. of Sales, has treated this subject with It is questionable, perhaps, how far the great ability ; and has cited the doctrines case is defensible, upon the ground here of the civil law, and the discussions of stated. But if it can be justified at all, civilians and writers upon natural law on it must be because the facts withheld did this subject. While he contends stren- not concern the essential and inherent uously for the doctrine of good faith and qualities of the articles sold, but only full discovery in all cases ; he is corn- such accidental relations, as were within pelled to admit, that the doctrines in foro the contemplation of both parties, and conscientice have had little support in judi- where no confidence, either in fact or cial tribunals, and, indeed, are not easily in contemplation of law, existed. We applicable to the common business of life. always regret the necessity of vindicating Indeed he admits, that, though conceal- the legality of such a transaction, since it ment of material facts by the vendee, has the appearance of justifying fraud which may enhance the price, is wrong and circumvention, which must ever bear, in foro conscientim ; yet, that it would too to the healthy moral sense, very much much restrict the freedom of commerce the appearance of becoming partaker in to apply such a rule in civil transactions, the iniquity. Such an attempt is never See Pothier, Traite de Vente, Pt. 2, ch. 2, more questionable, than while discussing n. 233 to 242 ; id. Pt. 3, § 2, n. 294 to 298 ; those comprehensive principles of truth 2 Wheat. 185, note (c). and justice, which lie at the foundation i Ibid. [See Abbott v. Dermott, 34 of equity jurisprudence.] Geo. 227.] § 149-152.] MISTAKE. 147 with their eyes open, and rightly informed, a court of equity will not overhaul it, although there has been a great mistake in the exercise of their judgment. 1 § 150. In like manner, where the fact is equally unknown to both parties ; or where each has equal and adequate means of in- formation ; or where the fact is doubtful from its own nature ; in every such case, if the parties have acted with entire good faith, a court of equity will not interpose. 2 For in such cases the equity is deemed equal between the parties ; and, when it is so, a court of equity is generally passive, and rarely exerts an active jurisdiction. Thus, where there was a contract by A. to sell to B., for £20, such an allotment, as the commissioners under an enclosure act should make for him ; and neither party at the time knew what the allotment would be, and were equally in the dark as to the value; the contract was held obligatory, although it turned out upon the allotment to be worth £200. 3 The like rule will apply to all cases of sale of real estate or personal estate, made in good faith, where material circumstances, affecting the value, are equally unknown to both parties. § 151. The general ground upon which all these distinctions pro- ceed, is, that mistake or ignorance of facts in parties, is a proper subject of relief only when it constitutes a material ingredient in the contract of the parties, and disappoints their intention by a mutual error; or where it is inconsistent with good faith, and proceeds from a violation of the obligations which are imposed by law upon the conscience of either party. But where each party is equally innocent, and there is no concealment of facts which the other party has a right to know, and no surprise or imposition exists, the mistake or ignorance, whether mutual or unilateral, is treated as laying no foundation for equitable interference. It is strictly damnum absque injuria. 4 ' § 152. One of the most common classes of cases, in which relief is sought in equity, on account of a mistake of facts, is that of written agreements, either executory or executed. Sometimes by i Brown v. Pring, 1 Ves. 408. Lucy's See also Pullen v. Keady, 2 Atk. 592 ; case, 4 De G., M. & G. 356. Gordon v. Gordon, 3 Swanst. 463, 467, 2 1 Ponbl. Eq. B. 1, ch. 2, § 7, note (v) ; 470, 471, 473, 476, 477 ; Ainslie v. Medly- 1 Powell on Contr. 200 ; 1 Mad. Ch. Pr. cott, 9 Ves. 13. 62 to 64. * See Jeremy on Eq. Jurisd. B. 3, Pt. 2, 8 Cited in Mortimer v. Capper, 1 Bro. p. 358 ; OM11 o. Whittaker, 1 De Gex & Ch. 158 ; 6 Ves. 24 ; 1 Mad. Eq. Pr. 63 ; Smale, 83 ; s. c. 2 Phil. Ch. 388 ; McAn- 1 Fonbl. Eq. B. 1, ch. 2, § 7, note {v). inch v. Laughlin, 13 Penn. St. Kep. 371. 148 EQUITY JURISPRUDENCE. [CH. T. mistake, the written agreement contains less than the parties in- tended ; sometimes it contains more ; and sometimes it simply varies from their intent by expressing something different in sub- stance from the truth of that intent. In all such cases, if the mistake is clearly made out by proofs entirely satisfactory, equity will reform the contract, so as to make it conformable to the pre- cise intent of the parties. 1 But if the proofs are doubtful and unsatisfactory, and the mistake is not made entirely plain, equity will withhold relief; upon the ground, that the written paper ought to be treated as a full and correct expression of the intent, until the contrary is established beyond reasonable controversy. 2 § 153. It has, indeed, been said, that where there is a written agreement, the whole sense of the parties is presumed to be com- prised therein ; that it would be dangerous to make any addition to it in cases where there does not appear to be any fraud in leav- ing out any thing ; and that it is against the policy of the common law to allow parol evidence to add to, or vary the terms of, such an agreement. 3 As a general rule, there is certainly much to recommend this doctrine. But however correct it may be, as a general rule, it is very certain, that courts of equity will grant re- lief upon clear proof of a mistake, notwithstanding that mistake is to be made out by parol evidence. 4 Lord Hardwicke, upon an occasion of this sort, said : " No doubt but this court has jurisdic- tion to relieve in respect of a plain mistake in contracts in writing as well as against frauds in contracts : so that, if reduced into writing contrary to the intent of the parties, on proper proof that would be rectified." 5 And this doctrine has been recognized upon many other occasions. 6 1 See O'Neil v. League, 8 Ala. 345; Pt. 2, ch. 4, § 1, p. 432; Davis v. Sy- Bradford v. The Union Bank, 13 Howard, monds, 1 Cox, 402, 404. 66 ; [Mcintosh v. Saunders, 68 111. 128.] 4 Marquis of Townshend ». Stan- 2 Shelburne v. Inchiquin, 1 Bro. Ch. groom, 6 Ves. 332, 333 ; 1 Eonbl. Eq. B. 1, 338, 341 ; Henkle v. Royal Assurance ch. 3, § 11 ; Shelburne v. Inchiquin, 1 Company, 1 Ves. 317 ; Davis v. Symonds, Bro. Ch. 338, 350 ; Simpson v. Vaughan, 1 Cox, 404 ; Townshend v. Stangroom, 6 2 Atk. 31 ; Wooden v. Haviland, 18 Conn. Ves. 332 to 338 ; Woollam v. Hearn, 7 101 ; Langley v. Brown, 2 Atk. 203. Ves. 217, 218 ; Gillespie v. Moon, 2 Johns. 8 Henkle v. Royal Assur. Co., 1 Ves. Ch. 585 ; Lyman v. United Ins. Co., 2 314. See Townshend v. Stangroom, 6 Johns. Ch. 630 ; Graves v. Boston Marine Ves. 332 to 339 ; Shelburne v. Inchiquin, Ins. Co., 2 Cranch, 442, 444; Clapton v. 1 Bro. Ch. 338,350; Sugden on Vendors, Martin, 11 Ala. 187. p. 146 to 159 (7th edit.) ; Hunt v. Rous- » 1 Fonbl. Eq. B. 1, ch. 3, § 11, and maniere, 8 Wheat. 211 ; s. o. 1 Peters, note (o) ; Irnham v. Child, 1 Bro. Ch. 92, Sup. Ct. 13 [Chapman v. Hurd, 67 111. 93; Woollam v. Hearn, 7 Ves. 211 ; Rich 234]. v. Jackson, 4 Bro. Pari. 514 ; s. c. 6 Ves. 6 Ibid. ; Motteux v. London Assur. 334, note ; Jeremy on Eq. Juried. B. 3, Co., 1 Atk. 545 ; Gillespie o. Moon, 2 § 152-155.] MISTAKE. 149 § 154. It is difficult to reconcile this doctrine with that rule of evidence at the common law, which studiously excludes the admission of parol evidence to vary or control written contracts. The same principle lies at the foundation of each class of deci- sions, that is to say, the desire to suppress frauds, and to promote general good faith and confidence in the formation of contracts. The danger of setting aside the solemn engagements of parties, when reduced to writing, by the introduction of parol evidence, substituting other material terms and stipulations, is sufficiently obvious. 1 But what shall be said, where those terms and stipula- tions are suppressed, or omitted, by fraud or imposition. Shall the guilty party be allowed to avail himself of such a triumph over innocence and credulity, to accomplish his own base designs? That would be to allow a rule, introduced to suppress fraud, to be the most effectual promotion and encouragement of it. And hence, courts of equity have not hesitated to entertain jurisdiction to reform all contracts, where a fraudulent suppression, omission, or insertion of a material stipulation exists, notwithstanding to some extent it breaks in upon the uniformity of the rule, as to the exclusion of parol evidence . to vary or control contracts ; wisely deeming such cases to be a proper exception to the rule, and prov- ing its general soundness. 2 § 155. It is upon the same ground that equity interferes in cases of written agreements, where there has been an innocent omission or insertion of a material stipulation, contrary to the Johns. Ch. 585 ; Lyman v. United Insur. mons, 518 ; [Murray v. Dake, 46 Cal. 644 ; Co., 2 Johns. Ch. 630; Smith v. Greeley, Eider o. Powell, 4 Abb. N. Y. Dec. 63; 14 N. H. 378 ; Simpson v. Vaughan, 2 New v. Wamback, 42 Ind. 456 ; Heaven- Atk. 33 ; Langley v. Brown, 2 Atk. 203 ; ridge v. Mondy, 49 Ind. 434.] Burt v. Barlow, 3 Bro. Ch. 454 ; 5 Ves. 1 See Woollam v. Hearn, 7 Ves. 219. 595; Irnham o. Child, 1 Bro. Ch. 94; « Newl. Eq. Contr. ch. 19; 1 Eq. Baker v. Paine, 1 Ves. 457 ; Crosby v. Abridg. 20, pi. 5 ; Filmer v. Gott, 4 Bro. Middleton, Pr. Ch. 309 ; Wiser v. Bhich- p ar l. Cas. 230 ; 1 Ponbl. Eq B. 1, ch. 2, ley, 1 Johns. Ch. 607 ; South Sea Co. v. § 8 ; id. ch. 3, § 4, and note (n) ; Irnham D'Oliffe, cited 1 Ves. 317; 2 Ves. 377 ; v. Child, 1 Bro. Ch. 92 ; Portmore v. Mor- 5 Ves. 601 ; Pitcairne v. Ogbourne, 2 Ves. ris, 2 Bro. Ch. 219 ; 1 Eq. Abridg. 19 ; id. 375 ; 1 Ponbl. Eq. B. 1, ch. 3, § 11, and 20, Agreements, B. ; Hunt o. Rousman- note (o) ; Mitf . PI. 127, 128 ; Clowes v. iere, 8 Wheat. 211 ; s. c. 1 Peters, Sup. Higginson, 1 Ves. & Beames, 524 ; Ball v. Ct. 13. In cases of this sort it is often Storie, 1 Sim. & Stu. 210 ; Marshall on said, that the admission of the parol evi- Insurance, B. 1, ch. 8, § 4 ; Clinan v. dence to establish fraud, or circumven- Cooke, 1 Sch. & Lefr. 32, &c. See Sug- tion, is not so much to vary the contract den on Vendors, p. 146 to 159 (7th edit.) ; as to establish something collateral to it, Andrews v. Essex P. & M. Insur. Co., 3 which shows that it ought not to be en- Mason, 10 ; Parsons v. Bignold, 13 Si- forced. Davis u. Symonds, 1 Cox, 402, 150 EQUITY JURISPRUDENCE. [CH. T. intention of both parties, and under a mutual mistake. 1 To allow it to prevail in such, a case, would be to work a surprise or fraud upon both parties ; and certainly upon the one who is the sufferer. 2 As much injustice would surely be done under such circumstances, as by a positive fraud, or an inevitable accident. 3 A court of equity would be of little value, if it could suppress only positive frauds, and leave mutual mistakes, innocently made, to work intolerable mischiefs, contrary to the intention of parties. It would be to allow an act, originating in innocence, to operate ulti- mately as a fraud, by enabling the party, who receives the bene- fit of |fche mistake, to resist the claims of justice, under the shelter of a rule framed to promote it. 4 In a practical view, there would be as much mischief done by refusing relief in such cases, as there would be introduced by allowing parol evidence in all cases to vary written contracts. § 156. We must, therefore, treat the cases, in which equity affords relief, and allows parol evidence, to vary and reform writ- ten contracts and instruments, upon the ground of accident and mistake, as properly forming, like cases of fraud, exceptions to the general rule which excludes parol evidence, and as standing upon the same policy as the rule itself. 5 If the mistake should be admitted by the other side, the court would certainly not overturn any rule of equity by varying the deed ; but it would be an equity dehors the instrument. 6 And if it should be proved by other evi- 404, 405. But in cases of mistake, the 476. As to reforming judgments, see party often seeks to enforce the contract § 166, note (b).] after insisting upon its being reformed. 2 Stone v. Hale, 17 Ala. 562. See 3 Starkie on Evid. Pt. 4, p. 1015, 8 Joynes u. Statham, 3 Atk. 389; 1016, 1018; Pitcairne v. Ogbourne, 2 Ves. Eamsbottom v. Golden, 1 Ves. & Beames, 375, 376 ; Baker v. Paine, 1 Ves. 456. 168 ; 1 Fonbl. Eq. B. 1, ch. 2, § 8, note See also Atty.-Genl. v. Sitwell, 1 Younge & (z) ; id. § 7, note (u). Coll. 559, 582, and the remarks of Mr. Bar- 4 Townshend v. Stangroom, 6 Ves. on Alderson against the admission of parol 336, 337 ; Gillespie v. Moon, 2 Johns. Ch. evidence in such cases. [See Glass v. 596; Joynes i-, Statham, 3 Atk. 388; 3 Hulbert, 102 Mass. 24.] Post, § 161 Starkie, Evid. Pt. 4, p. 1018, 1019 ; Pit- (note). cairne v. Ogbourne, 2 Ves. 377; and 1 [Where a judgment note was given, South Sea Company v. D'Oliffe, there and by mistake the agreement to pay in- cited. terest was omitted, and the judgment fol- 6 Joynes v. Statham, 3 Atk. 388 ; lowed the note in giving no interest, and Eamsbottom o. Golden, 1 Ves. & Beam, a bill was brought to compel payment 168 ; 1 Fonbl. Eq. B. 1, ch. 2, § 11, note of interest, equity decreed its payment, (o); Mitf. Eq. PI. by Jeremy, 129; there being no adequate remedy at law, Clowes v. Higginson, 1 Ves. & Beam, and equity not being able to reform the 526, 527 ; Ball v. Storie, 1 Sim. & Stu. judgment. Gump's Appeal, 65 Penn. St. 210. 6 Davis v. Symonds, 1 Cox, 404, 405. § 155-157.] MISTAKE. 151 dence entirely satisfactory, and equivalent to an admission, the reasons for relief would seem to be equally cogent and conclusive. 1 It would be a great defect in the moral jurisdiction of the court, if, under such circumstances, it were incapable of administering relief. 2 § 157. And this remark naturally conducts us back again to the qualification of the doctrine (already stated), which is insisted upon by courts of equity. Relief will be granted in cases of written instruments, only where there is a plain mistake, clearly made out by satisfactory proofs. 8 It is true, that this, in one sense, leaves the rule somewhat loose, as every court is still left free to say, what is a plain mistake, and what are proper and satis- factory proofs. But this is an infirmity incident to the very admin- istration of justice, for, in many cases, judges will differ as to the result and weight of evidence ; and, consequently, they may make different decisions upon the same evidence. 4 But the qualifica- tion is most material, since it cannot fail to operate as a weighty caution upon the minds of all judges, 5 and it forbids relief, whenever the evidence is loose, equivocal, or contradictory, or it is in its texture open to doubt or to opposing presumptions. 6 1 Irnham v. Child, 1 Bro. Ch. 92, 93. the language is too general. See At- 2 See Townshend v. Stangroom, 6 Ves. torney-General v. Sitwell, 1 Younge & 336, 337 ; Gillespie v. Moon, 2 Johns. Ch. Coll. 583. [Evidence of party interested 696. alone is not, it seems, sufficient. See Mc- 8 Gillespie v. Moon, 2 Johns. Ch. 595 Clellan v. Sanford, 26 Wise. 595. Where to 597 ; Lyman o. United Insurance mistake is admitted whether preponder- Company, 2 Johns. Ch. 630 ; Henkle ance of proof will he sufficient to show v. Koyal Assurance Company, 1 Ves. what it was, quaere, see Bunse y. Agee, 317 ; Jeremy on Eq. Jurisd. Ft. 2, ch. 2, 47 Mis. 270. That the evidence must he p. 368 ; id. ch. 4, p. 490, 491 ; Townshend such as to satisfy the mind of the court, v. Stangroom, 6 Ves. 328, 339. see Coale v. Merryman, 35 Md. 382. 4 See Lord Eldon's remarks in Towns- Such as to leave " little if any doubt." hend v. Stangroom, 6 Ves. 333, 334. Miner v. Hess, 47 111. 170. Such as to 5 See Hall v. Clagett, 2 Md. Ch. Dec. establish the fact " beyond fair and rea- 153 ; [* Leuty v. Hillas, 2 De G. & J. sonable controversy." Tufts u. Lamed, 110.] 27 la. 330. Such "as will strike all 6 Lord Thurlow, in one case, said, minds alike as being unquestionable, and that the final evidence must be strong, free from reasonable doubt." Edmond's irrefragable evidence. Shelburne v. In- Appeal, 59 Penn. St. 220. Such as to chiquin, 1 Bro. Ch. 347. If, by this Ian- prove the mistake "beyond a reasonable guage, his lordship only meant, that the doubt." Hudson Iron Co. v. Stockbridge mistake should be made out by evidence Iron Co., 107 Mass. 290 ; Shattuck v. Gay, clear of all reasonable doubt, its accuracy 45 Vt. 87. Mere inattention is not enough, need not be questioned. But if he meant, Exp. North, 49 Ala, 385. Nor a mere that it should be in its nature or degree clerical mistake. Hunter v. Christoph, incapable of refutation, so as to be be- 32 Wis. 248.] yond any doubt and beyond controversy, 152 EQUITY JURISPRUDENCE. [CH. V. [* The proof must be such as will strike all minds alike as being unquestionable, and free from reasonable doubt. The distinction, here attempted to be defined, in regard to the measure of proof, is much the same which exists between civil and criminal cases ; or that distinction which is expressed by a fair preponderance of evidence, and full proof. 1 ] § 158. Many of the cases, included under this head, come within the Statute of Frauds, as it is commonly called, which requires certain contracts to be in writing. But the rule, as to rejecting parol evidence to contradict written agreements, is by no means confined to such cases. It stands as a general rule of law, inde- pendent of that statute. 2 It is founded upon the ground that the written instrument furnishes better evidence of the deliberate intention of the parties, than any parol proof can supply. 3 And the exceptions to the rule, originating in accident and mistake, have been equally applied to written instruments within and with- out the Statute of Frauds. Thus, for instance, relief has been granted or refused, according to circumstances, in cases of asserted, mistakes in policies of insurance, even after a loss has taken place. 4 And, in the same manner, equity has interfered in other cases of contract, not only of a commercial nature, but of any other nature. 5 1 [* Tucker v. Madden, 44 Maine, 206 ; Ins. Co., 2 Curtis C. C. 277. See Mae- Hileman v. Wright, 9 Ind. 126 ; Linn o. kenzie v. Coulson, L. E. 8 Eq. 368. See Barkey, 7 Ind. 69 ; Davidson v. Greer, Parker a. Benjamin, 53 111. 255. But in 3 Sneed, 384; Euffner v. McConnell, the recent case of Glass v. Hulbert, 102 17 111. 212.] • Mass. 24, the authorities were extensively 2 Woollam v. Hearn, 7 Ves. 218 ; 1 considered, and it was held that equity Fonbl. Eq. B. 1, ch. 2, § 11, note (v) ; would not reform a deed of land on oral Clowes !/. Higginson, 1 Ves. & Beames, evidence so as to make it embrace other 526 ; Pitcairne v. Ogbourne, 2 Ves. 375 ; land alleged to have been omitted by Sugden on Vendors, ch. 3, § 3 ; Parter- mistake, unless by part performance or iche v. Powlet, 2 Atk. 383, 384 ; 3 Starkie otherwise the defendant were estopped on Evid. Pt. 4, tit. Parol Evid. p. 995 to to set up the statute. See also Climer 1020 ; Davis v. Symonds, 1 Cox, 402, 404, v. Hovey, 15 Mich. 18.] 405. 5 Baker i>. Paine, 1 Ves. 456; Get- 8 Ibid. man's Executors v. Beardsley, 2 Johns. 4 Motteux v. London Assur. Co., 1 Ch. 274 ; Simpson v. Vaughan, 2 Atk. Atk. 545 ; Henkle v. Royal Ex. Assur. Co., 30 ; Bishop v. Church, 2 Ves. 100, 371 ; 1 Ves. 317 ; Lyman v. United Insur. Co., Thomas o. Erazer, 3 Ves. 399 ; Finley v. 2 Johns. Ch. 630 ; Head v. Boston Mar. Lynn, 6 Cranch, 238 ; Mitf . Eq. PI. by Ins. Co., 2 Cranch, 419, 444 ; Marsh. Jeremy, 129, 130 ; Pitcairne v. Ogbourne, Insur. B. 1, ch. 8, § 4 ; id. Andrews v. 2 Ves. 375, and South Sea Company v. Essex Eire and Mar. Ins. Co., 3 Mason, D'Oliffe, there cited, p. 377 ; 3 Starkie, 10 ; Delaware Ins. Co. v. Hogan, 2 Wash. Evid. Pt. 4, p. 1019 ; Underhill v. Hor- Cir. 5; [National, &c, Ins. Co. v. Crane, wood, 10 Ves. 225, 226; Edwin v. East 16 Md. 260; Keith u. Globe Ins. Co., India Company, 2 Vern. 210; Edwards v. 52 111. 518 ; Oliver v. Mutual Com. Mar. Child, 2 Vern. 727. § 157-160.] MISTAKE. 153 § 159. The relief granted by courts of equity, in cases of this character, is not confined to mere executory contracts, by altering and conforming them to the real intent of the parties ; but it is extended to solemn instruments, which are made by the parties, in pursuance of such executory or preliminary contracts. And, indeed, if the court acted otherwise, there would be a great defect of justice, and the main evils of the mistake would remain irreme- diable. Hence, in preliminary contracts for conveyances, settle- ments, and other solemn instruments, the court acts efficiently by reforming the preliminary contract itself, and decreeing a due execution of it, as reformed, if no conveyance or other solemn instrument in pursuance of it has been executed. And if such conveyance or instrument has been executed, it reforms the latter also, by making it such as the parties originally intended. 1 § 160. There is less difficulty in reforming written instruments, where the mistake is mainly or wholly made out by other prelim- inary written instruments or memorandums of the agreement. The danger of public mischief, or private inconvenience, is far less in such cases than it is in cases where parol evidence is admitted. And, accordingly, courts of equity interfere with far less scruple to correct mistakes, in the former, than in the latter. 2 " Thus, marriage settlements are often reformed, and varied, so as to conform to the previous articles ; and conveyances of real estate are in like manner controllable by the terms of the prior written contract. 3 Memorandums of a less formal character are 1 See Newland on Contr. ch. 19, p. note (p) ; id. ch. 6, § 7, and notes ; 2 Bridg. 388 to 347 ; Mitford, Eq. PI. by Jeremy, Dig. Marriage, ii. p. 300 ; 1 Ponbl. Eq. 128,129,130; Sugden on Vendors, p. 146 B. 1, ch. 2, § 7, note (v) ; Chitty, Eq. to 159 (7th edit.); South Sea Company Dig. Settlement on Marriage, ix. ; Ran- v. D'Oliffe, cited 2 Ves. 377 ; 2 Atk. 525 ; dall v. Randall, 2 P. "Will. 464 ; Randall Henkle v. Royal Ex. Assur. Co., 1 Ves. v. Willis, 5 Ves. 275 ; West v. Erissey, 318, 417 ; Baker v. Paine, 1 Ves. 456. 2 P. Will. 349, and Mr. Cox's note (1), But see Atty.-Genl. v. Sitwell, 1 Younge p. 355 ; Jeremy on Eq. Jurisd. Pt. 2, ch. & Coll. 559, 582 ; post, § 161, note ; Hodg- 2, p. 378 to 382 ; 3 Starkie, Evid. tit. kinson v. Wyatt, 9 Beavan, 566. Parol Evid. 10, 19 ; Barstow v. Kilving- 2 Jeremy on Eq. Jurisd. Pt. 2, ch. 2, ton, 5 Ves. 592 ; Rogers v. Atkinson, 1 p. 368, 369 ; ch. 4, § 5, p. 490, 491 ; Du- Kelley, 12, 238. In cases of marriage rant v. Durant, 1 Cox, 58 ; Grounds and articles, the court will frequently give a Rudim. of the Law, M. 113, p. 81 (edit, construction to the words more favorable 1751) ; Toth. 229 [131]. to the presumed intent of the parties, 8 The cases on this head are exceed- than it does in some other cases. Thus, ingly numerous. Many of them will be in marriage articles, if there be a limita- f ound collected in Newland on Contr. tion to the parents for life, with remainder ch. 19, p. 337 ; Com Dig. Chancery, 3 to the heirs of their bodies, the latter Z. 11, 12 ; 1 Ponbl. Eq. B. 1, ch. 3, § 11, words are, in equity, generally construed 154 EQUITY JURISPRUDENCE. [CH. V. also admissible for the same purpose. 1 But in all such cases it must be plainly made out, that the parties meant, in their final instruments, merely to carry into effect the arrangements desig- nated in the prior contract 'or articles. For, as the parties are at liberty to vary the original agreement, if the circumstances of the case lead to the supposition that a new intent has supervened, there can be no just claim for relief upon the ground of mistake. 2 The very circumstance, that the final instrument of conveyance or settlement differs from the preliminary contract, affords of itself some presumption of an intentional change of purpose or agree- ment, unless there is some recital in it, or some other attendant circumstance, which demonstrates that it was merely in pursuance of the original contract. 3 It is upon a similar ground that courts of equity, as well as courts of law, act, in holding, that where there is a written contract, all antecedent propositions, negotia- tions, and parol interlocutions on the same subject are to be deemed merged in. such contract. 4 § 161. In cases of asserted mistake in written contracts, where the mistake is to be established by parol evidence, the question has often been mooted, how far a court of equity ought to be active in granting relief, by a specific performance in favor of the party, seeking to reform the contract upon such parol evidence, and to obtain performance of it, when it shall stand reformed. It is admitted that a defendant, against whom a specific performance of a written agreement is sought, may insist, by way of answer, to be words of purchase ; and, accord- 2 1 Eonbl. Eq. B. 1, ch. 3, § 11, note ingljv the court will carry such articles (p) ; id. ch. 6, § 1, 13 ; Legg v. Goldwire, into effect by way of a strict settlement. Cas. Temp. Talb. 20 ; West v. Erissey, Newland on Contr. ch. 19, p. 337 ; Eearne 2 P. Will. 349, .and Mr. Cox's note (1), on Conting. Rem. p. 90 to 113 (7th edit. 355; Beaumont v. Bramley, 1 Turn. & by Butler) ; 1 Eonbl. Eq. B 1, ch. 3, § 11, Russ. 41 ; Hawkins v. Jackson, 2 Mac. & note (p) ; id. ch. 6, § 7, and notes, § 16, Gord. 372 ; Jeremy on Eq. Jurisd. Pt. 2, note (e) ; Randall v. Willis, 5 Ves. 275 ; ch. 2, p. 379, 380 ; id. 50, 51, 52, 53 ; ch. 4, West v. Erissey, 2 P. Will. 349 ; and Mr. § 5, p. 490, 491 ; id. 1 Madd. Eq. Pr. Cox's note, id. (1) ; Heneage v. Hunloke, 8 Ibid. 2 Atk. 455, and Sanders's note, id. 457 4 Rich v. Jackson, 4 Bro. Ch. 513; (1) ; Jeremy on Eq. Jurisd. Pt. 2, ch. 2, s. c. 6 Ves. 334, note; Pickering v. Daw- p. 378 to 382 ; Taggart v. Taggart, 1 Sch. son, 4 Taunt. 786 ; Kain v. Old, 2 B. & & Lef r. 84 ; Blackburn v. Staples, 2 V. Cressw. 634 ; Parkhurst v. Van Cort- & Beam. 368, 369 ; Jeremy on Eq. Jurisd. landt, 1 Johns. Ch. 273 ; s. u. 14 Johns. B. 3, Pt. 2, ch. 2, p. 377, 378, 379; Har- 15; 1 Eonbl. Eq. B. 1, ch. 3, § 8, 11; bridge v. Wogan, 5 Hare, 259. Davis v. Symonds, 1 Cox, 402, 404 ; Van- 1 Motteux v. London Assurance Com- dervoort v. Smith, 2 Cain. 155. pany, 1 Atk. 545 ; Baker v. Paine, 1 Ves. § 160, 161.] MISTAKE. 155 upon the mistake, as a bar to such a bill ; because he may insist upon any matter which shows it to be inequitable to grant such relief. A court of equity is not, like a court of law, bound to enforce a written contract ; but it may exercise its discretion when a specific performance is sought, and may leave the party to his remedy at law. 1 It will not, therefore, interfere to sustain a bill for a specific performance, when it would be against conscience and justice so to do. On the other hand, it seems equally clear, that a party may, as plaintiff, have relief against a written eontract, by having the' same set aside and cancelled, or modified, whenever it is founded in a mistake of material facts, and it would be uncon- scientious and unjust for the other party to enforce it at law or in equity. 2 But the case, intended to be put, differs from each of these. It is, where the party plaintiff seeks, not to set aside the agreement, but to enforce it, when it is reformed and varied by the parol evidence. A very strong inclination of opinion has been repeatedly expressed by the English courts, not to decree a specific performance in this latter class of cases ; that is to say, not to admit parol evidence to establish a mistake in a written agreement, and then to enforce it, as varied and established by that evidence. On various occasions such relief has, under such circumstances, been denied. 3 But it is extremely difficult .to per- ceive the principle upon which such decisions can be supported, consistently with the acknowledged exercise of jurisdiction in the court to reform written contracts, and to decree relief thereon. 4 1 Com. Dig. Chancery, 2 C. 16 ; Joynes Winchester, 1 Ves. & B. 375 ; Osborn v. v. Statham, 3 Atk. 388 ; Garrard v. Grin- Phelps, 19 Conn. 63 ; Best v. Stow, 2 ling, 2 Swanst. 257; Pitcairne v. Og- Sandf. Ch. 298; Miller v. Chitwood, 1 bourne, 2 Ves. 375; Legal v. Miller, 2 Green, Ch. 199; Elder v. Elder, 10 Maine, Ves. 299; Mason v. Armitage, 13 Ves. 80; Westbrook v. Horbesson, 2 McCord, 25; Clark o. Grant, 14 Ves. 519; Hep- Ch. 112; Clark v. Grant, 14 Ves. 519; burn v. Dunlop, 1 Wheat. 197 ; Clowes v. Rich v. Jackson, 6 Ves. 335 ; 4 Bro. Ch. Higginson, 1 Ves. & B. 524; Winch v. 514; Ogilvie v. Foljambe, 3 Meriy. 53, Winchester, 1 Ves. & B. 375; Ramsbot- 63; Townshend v. Stangroom, 6 Ves. torn v. Golden, 1 Ves. & B. 165; Flood 328; Jeremy on Equity Jurisd. B. 3, Pt. v. Finley, 2 Ball & B. 53 ; Gillespie o. 2, ch. 4, § 1, p. 432 ; Clark v. Grant, 14 Moon, 2 Johns. Ch. 585, 598 ; Townshend Ves. 519 ; Baker a. Paine, 1 Ves. 457 ; v. Stangroom, 6 Ves. 328 ; Price v. Dyer, Gordon v. Hertford, 2 Madd. 106 ; Att.- 17 Ves. 357. Gen. v. Sitwell, 1 Younge & Coll. 559, 2 See Ball v. Storie, 1 Sim. & Stu. and 582 ; Manser v. Back, 6 Hare, 443. the eases there cited. * Mr. Baron Alderson in Atty.-Gen. v. 8 See Woollam v. Hearn, 7 Ves. 211; Sitwell (1 Younge & Coll. 659, 582, 583) Higginson v. Clowes, 15 Ves. 516 ; Clinan expressed a strong opinion against the v. Cooke, 1 Sch. & Lef. 38, 39 ; Clowes v. ■ reforming of a contract, and then decree- Higginson, 1 Ves. & B. 524 ; Winch v. ing the performance of it in equity. In 156 EQUITY JURISPRUDENCE. [CH. V. In America, Mr. Chancellor Kent, after a most elaborate consid- eration of the subject, has not hesitated to reject the distinction as unfounded in justice, and has decreed relief to a plaintiff, standing in the precise predicament. 1 that case the question was, whether by a memorandum of agreement to sell a cer- tain manor of the crown." with the ap- purtenances," an advowson appurtenant or appendant thereto passed ; the statute of 17 Edward II. ch. 13, having distinctly- provided, that the king shall not convey an advowson without express words to that effect. Mr. Baron Alderson, in de- livering his judgment, said: "The second objection is upon the terms of the con- tract. The plaintiffs professed to sell the manor of Eckington ' with the appur- tenances ; ' and as the appurtenances of a manor ordinarily include an advowson appendant or appurtenant, the defendant contends, that he is not bound to take the property, unless there be a convey- ance to him in the terms of the memo- randum, in which the plaintiffs executed the contract ; and that the crown must either give him the manor without ex- cluding the advowson, or otherwise that the contract ought not to be performed. If the question was one between subject and subject, there would, I think, be great difficulty in decreeing the execution of the contract upon any other terms than those for which the defendant contends. It appears to me quite clear, that the memorandum of agreement would carry this advowson under the general words ' with the appurtenances.' There are various authorities to that effect ; and I may more particularly refer to Viner's Abridgment, tit. Prerog. (C. c.) 9. This would have been clear, therefore, as be- tween subject and subject. And in that case, the next question, which would have arisen, would have been, — whether or not, on the ground of mistake, one party not intending to sell, and the other not intending to purchase the advowson, I could have reformed the agreement, and have directed the specific performance of it, when so reformed. I confess I should have had great difficulty in holding that this could be done ; because I can- not help feeling, that, in the case of an executory agreement, first to reform and then to decree an execution of it would be virtually to repeal the Statute of Frauds. The only ground on which I think the case could have been put would have been that the answer contained an ad- mission of the agreement as stated in the bill ; and the parties mutually agreeing that there was a mistake, the case might have fallen within the principle of those cases at law, where there is a declaration on an agreement not within the statute, and no issue taken upon the agreement by the plea ; because, in such case it would' seem as if, the agreement of the parties being admitted by the record, the case would no longer be within the stat- ute. I should then have taken time to consider, whetheB, according to the dicta of many venerable judges, I should not have been authorized to reform an exec- utory agreement for the conveyance of an estate, where it was admitted to have been the intention of both parties that a portion of the estate was not to pass. But in my present view of the question, it seems to me that the court ought not in any case, where the mistake is denied, or not admitted by the answer, to admit parol evidence, and upon that evidence to reform an executory agreement." 1 Gillespie o. Moon, 2 Johns. Ch. 585 ; Keisselbrack v. Livingston, 4 Johns. Ch. 144. [But this decision of Gillespie ». Moon has not always been followed in this country. See Osborne v. Phelps, 19 Conn. 62. See Elder v. Elder, 10 Maine, 80; Thomas v. McCorraick,9 Dana, 108. See Glass v. Hulbert, 102 Mass. 24 ; Cli- mer ». Hovey, 15 Mich. 18.] See also Baker v. Paine, 1 Ves. 456 ; Shelburne v. Inchiquin, 1 Bro. Ch. 339; Joynes v. Statham, 3 Atk. 388; 6 Ves. 337, 338; Ball v. Storie, 1 Sim. & Stu.210; Burn v. Burn, 3 Ves. 573, 583 ; 1 Eq. Abridg. 20, PI. 5 ; Sims v. Urrey, 2 Ch. Cas. 225 ; s. c. Freem. 16 ; Jalabert v. Chandos, 1 Eden. 372 ; Pember v. Mathers, 1 Bro. Ch. 52 ; Jones v. Sheriff, cited 9 Mod. 88; The • Hiram, 1 Wheaton, 444 ; Hunt v. Bous- maniere, 8 Wheaton, 211 ; 1 Peters, Sup. § 161, 162.] MISTAKE. 157 § 162. Courts of equity will grant relief in cases of mistake in written contracts, not only when the fact of the mistake is expressly established, but also when it is fairly implied from the nature of the transaction. 1 Thus, in cases where there has been a joint loan of money to two or more obligors, and they are by the instrument Ct. 13; Hogan v. Delaware Insur. Co., 1 Wash. C. C. 422 ; Shelburne v. Inchi- quin, 1 Bro. Ch. 338 ; Watkins v. Watkins, 2 Atk. 98 ; Tilton o. Tilton, 9 N. H. 385 ; Tyson v. Passmore, 2 Barr, 122 ; Bellows v. Stone, 14 N. H. 175 ; Hyde v. Tanner, 1 Barb. 75; Bailey v. Bailey, 8 Humph. 230. But see 1 Sch. & Lefr. 39 ; Keke- wich, Eq. Dig. Equity I. The distinction stated in the text Is certainly of a very artificial character, and difficult to be rec- onciled with the general principles of courts of equity. It is in effect a decla- ration, that parol evidence shall be admis- sible to correct a writing as against a plaintiff, but not in favor of a plaintiff, seeking a specific performance. There is, therefore, no mutuality or equality in the operation of the doctrine. The ground is very clear, that a court of equity ought not to enforce a contract, where there is a mistake against the defendant, insisting upon and establishing the mis- take ; for it would be inequitable and unconscientious. And if the, mistake is vital to the contract, there is a like clear ground why equity should interfere at the instance of the party, as plaintiff, and cancel it ; and if the mistake is partial only, why at his instance it should reform it. In these cases, the remedial justice is equal ; and the parol evidence to establish it is equally open to both parties to use as proof. Why should not the party, aggrieved by a mistake in an agreement, have relief in all cases, where he is plaintiff, as well as where he is de- fendant ? Why should not parol evi- dence be equally admissible to establish a mistake, as the foundation of relief in each case? The rules of evidence ought certainly to work equally for the benefit of each party. Mr. Chancellor Kent has forcibly observed, " That it cannot make any difference in the rea- sonableness and justice of the remedy, whether the mistake was to the prejudice of one party or the other. If the court - has a competent jurisdiction to correct such mistakes (and that is a point under- stood and settled), the agreement, when corrected, and made to speak the real sense of the parties, ought to be enforced, as well as any other agreement, perfect in the first instance. It ought to have the same efficacy, and be entitled to the same protection, when made accurate under the decree of the court, as when made accurate by the act of the parties. Bes accendent lumina rebus." Keissel- brack v. Livingston, 4 Johns. Ch. 148, 149. [Keisselbrack v. Livingston has been sometimes doubted, and in 2 Eq. Lead. Cases, 552, it is said that the only way of reconciling it with principle is to look at the case, as it would have been, had the question arisen on a bill filed by the ten- ant to restrain the landlord from enforcing the clause in dispute on the ground of fraud.] It may be added, that, if the doctrine be founded upon the impropriety of admitting parol evidence to contra diet a written agreement, that rule is not more broken in upon by the admission of it for the plaintiff, than it is by the admission of it for the defendant. If the doctrine had been confined to cases arising under the Statute of Frauds, it would, if not more intelligible, at least have been less inconvenient in practice. But it does not appear to have been thus restricted, al- though the cases in which it has been principally relied on have' been of that description. It will often be quite as un- conscientious for a defendant to shelter himself under a defence of this sort against a plaintiff seeking the specific performance of a contract, and the cor- rection of a mistake, as it will be to en- force a contract against a defendant, which embodies a mistake to his preju- dice. See Comyns, Dig. Chancery, 2 C. 4 ; 2 X. 3 ; .4 L. 2 ; Att.-Gen. v. Sitwell, 1 Younge & Coll. 583. See Chetwood v. Brittan, 1 Green, Ch. 438 ; Jarvis v. Pal- mer, 11 Paige, 650 ; Kobeson u. Harwell, 6 Georgia, 589. 1 Wyche v. Greene, 11 Geo. 172. 158 EQUITY JURISPRUDENCE. [CH. V. made jointly liable, but not jointly and severally, the court has reformed the bond, and made it joint and several, upon the reason- able presumption, from the nature of the transaction, 1 that it was so intended by the parties, and was omitted by want of skill or by mistake. 2 The debt being joint, the natural, if not the irresistible inference in such cases is, that it is intended by all the parties, that in every event the responsibility should attach to each obligor, and to all equally. This can be done only by making the bond several as well as joint ; for otherwise, in case of the death of one of the obligors, the survivor or survivors only would be liable at law for the debt. 3 Indeed, it seems now well established as a general prin- ciple, that every contract for a joint loan is in equity to be deemed, as to the parties borrowing, a joint and several contract, whether the transaction be of a mercantile nature or not ; for in every such case it may fairly be presumed to be the intention of the parties, that the creditor should have the several, as well as the joint, security of all the borrowers for the repayment of the debt. 4 Hence, if one of the borrowers should die, the creditor has a right to proceed for immediate relief out of the assets of the deceased party without claiming any relief against the surviving joint con- tractors, and without showing that the latter are unable to pay by reason of their insolvency. 6 § 163. But where the inference of a jo^nt original debt or lia- bility is repelled, a court of equity will not interfere ; for, in such a case, there is no ground to presume any mistake. 6 This doctrine has been very clearly expounded by Sir William Grant. " When " (says he) " the obligation exists only in virtue of the covenant, its extent can be measured only by the words in which it is con- ceived. A partnership debt has been treated in equity as the 1 See Hyde v. Tanner, 1 Barb. 84 ; 8 Wearer v. Shryork, 6 Serg. & R. Barnes v. Camart, id. 398. 262, 264; Gray v. Chiswell, 9 Ves. 118; 2 Simpson v. Vaughan, 2 Atk. 31, 33; Ex parte Kendall, 17 Ves. 525. Bishop v. Church, 2 Ves. 100, 371 ; i Thorpe v. Jackson, 2 Younge & Coll. Thomas v. Frazer, 3 Ves. 399 ; Devaynes 553; Wilkinson v. Henderson, 1 Mylne & v. Noble, Sleech's case, 1 Meriv. 538, 539 ; Keen, 582. But see Richardson v. Hor- Sumner o. Powell, 2 Meriv. 30, 35 ; ton, 6 Beavan, 185. Hoare v. Contencin, 1 Bro. Ch. 27, 29 ; 6 Id. But in all such cases the sur- Ex parte Kendall, 17 Ves. 519, 520 ; Under- viving partners are properly to be made hill v. Hoarwood, 10 Ves. 209, 227 ; Hunt parties, as they have a right to contest v. Rousmaniere, 8 Wheaton, 212, 213 ; s. c. the demand, and are interested in taking 1 Peters, Sup. Ct. 16 ;/ Weaver v. Shryork, the account. Id. 6 Serg. & R. 262, 264 ; Ex parte Symonds, . 6 g ee jj unt „. Rousmaniere, 8 Wheat. 1 Cox, 200 ; Burn v. Burn, 3 Ves. 573, 212, 213, 214 ; s. c. 1 Peters, Sup. Ct. 16. 583 ; Ex parte Bates & Henckill, 3 Ves. See Richardson v. Horton, 6 Beavan, 185. 400, note ; Gray v. Chiswell, 9 Ves. 118. § 162-164.] MISTAKE. 159 several debt of each partner, although, at law it is only the joint debt of all. 1 But, there, all the partners have had a benefit from the money advanced, or the credit given ; and the obligation of all to pay exists, independently of any instrument, by which the debt may have been secured. So, where a joint bond has in equity been considered as several, there has been a credit previously given to the different persons who have entered into the obliga- tion. It is not the bond that first created the liability." 2 § 164. It is upon the same ground, that a court of equity will not reform a joint bond against a mere surety, so as to make it several against him, upon the presumption of a mistake from the nature of the transaction ; but it will require positive proof of an express agreement by him, that it should be several as well as joint. 3 ' [So where an obligee of a joint and several bond elected to take a joint judgment against all the obligors, and thus at law lost his right of a several remedy, a court of equity refused him a remedy against the personal assets of a deceased obligor, who was only a surety. 4 ] And in other cases, where the obligation or covenant is purely matter of arbitrary convention, not growing out of any antecedent liability in all or any of the obligors or covenantors to do what they have undertaken (as, for example, a bond or covenant of indemnity for the acts or debts of third per- sons), a court of equity will not by implication extend the responsi- bility from that of a joint to a joint and several undertaking. 5 But if there be an express agreement to the effect that an obligation or other contract shall be joint and several, or to any other effect, and it is omitted by mistake in the instrument, a court of equity will, under such circumstances, grant relief as fully against a surety or guarantee, as against the principal party. 6 i Post, § 676. Field, 2 Washington, Va. 136; "Weaver 2 Sumner v. Powell, 2 Meriv. 35, 36. v. Shryork, 6 S. & E. 262 ; Kennedy v. See also Underhill c;. Horwood, 10 Ves. Carpenter, 2 Whar. 361 ; United States 227 ; Thorpe v. Jackson, 2 Younge & v. Cushman, 2 Sumner, 426 ; Higgens's Coll. 553 ; Ex parte Kendall, 17 Ves. 525 ; case, 6 Coke, 44 ; Lechmere v. Fletcher, Cowell v. Sykes, 2 Russ. 191. . 1 Cr. & Mees. 623 ; Sheehy v. Mandeville, 8 Id. ; Weaver v. Shryork, 6 Serg. & 6 Cranch, 253 ; Prior v. Williams, 3 Abb. R. 262, 264, 265; [Missouri u. Fank, 51 (N. Y.) Dee. 626.] Mo. 98]. 6 Sumner v. Powell, 2 Meriv. 30, 35, 4 [United States v. Price, 9 Howard, 36; Harrison u. Mirge, 2 Wash. 136; U. S. 83. Where the general subject Ward v. Webber, 1 Wash. 274; Thomas is extensively discussed and the cases v. Frazer, 3 Ves. 399, 402 ; Burn v. Burn, reviewed by Mr. Justice Grier, see 3 Ves. 573, 582; Richardson v. Horton, Wright v. Russell, 3 Wilson, 530 ; Waters 6 Beavan, 186. v. Riley, -2 Har. & G. 310; Harrison v. • Id. ; Wiser v. Blachley, 1 Johns. Ch. 160 EQUITY JURISPRUDENCE. [CH. V. [* § 164 a. So also will courts of equity decree the surrender of a bond to be cancelled, where it has not been executed by all who were expected to become jointly bound, as co-sureties. As where the creditor had prepared the deed, so as to show on the face of it, that it was intended to contain a joint and several covenant by two co-sureties, and had sent it in that form to be executed by one of such sureties, but had not procured the execution of it by the other, and had not informed the surety, who had executed it, of this fact ; but on the contrary had afterwards written to him as "one of the sureties," the principal debtor having become insolvent ; it was held, that the surety who had executed the instrument was, in equity, entitled to be relieved from all liability upon it. 1 The relief is granted, not upon the ground of controlling the written contract by parol proof, but there being a condition precedent to the contract taking effect, and that not being per- formed, the deed never took effect, there having been no complete delivery. 2 § 164 b. In applications to rectify a settlement, or to reform any contract, on the ground of mistake, the question to be considered is, not what the parties would have done, had they been able to anticipate subsequent developments ; but what was their intention at the time the contract was executed. 3 And in suits to reform written contracts, where no written instructions were given as to the preparation of the writings, parol evidence will be received as to the intention of the parties. 4 § 164 c. Courts of equity will sometimes annex conditions to decrees in regard to reforming contracts, not in the contemplation of the parties at the time of entering into the contract. As where, by mistake, in drawing up a lease of premises, the rent was stated at a lower rate than that stipulated by the parties ; and the lessee had entered into possession. Upon a bill to set the matter right, 607 ; Crosby v. IVEddleton, Prec. Ch. 309 ; s. c. 9 W. E. 393. Equity will reform a s. c. 2 Eq. Abridg. 188 F. ; Berg t. Ead- contract only when after reformation it cliffe, 6 Johns. Ch. 302, 307, &c. ; Eaw- will express the understanding of both stone r. Parr, 3 Eussell, 424 ; s. c. id. 539. parties at the time. Ledyard v. Hart- 1 [* Evans v. Bremridge, 2 Kay & J. ford F. Ins. Co., 24 Wise. 496 ; White v. 174; Keith v. Goodwin, 31 Verm. 268. Williams, 48 Barb. 222 ; Wilson v. Stray- 2 Black v. Lamb, 1 Beasley, Ch. 108. horn, 26 Ark. 28. So equity will correct the mistake of the * Lackersteen v. Lackersteen, 6 Jur. scrivener. Clemmons v. Drew, 2 Jones, k. s. 1111 ; 8. c. 30 L. J. n. s. Ch. 6. As Eq. 314. to admission of parol evidence, see Com- » Wilkinson v. Nelson, 7 Jur. w. 8. 480 ; pany v. Perley, 46 N. H. 83. § 164 a-164 e.J mistake. 161 the court gave the lessee an election to continue the tenancy, at the higher rate, or abandon and pay for use and occupation during her occupancy, at the higher rate, being compensated for all re- pairs of a permanent character, but not for the expense of taking possession of the house and establishing herself there in business. It was also held that the lessor was responsible to refund the money advanced to the lessee upon the security of the lease, with costs ; the lessee being liable over to the lessor for repayment of the same ; on the ground that if the lease was rejected, the premi- ses must stand as security for the money so advanced ; and if the- lease was accepted, it was primarily liable for the repayment of the same to the lessor. 1 § 164 d. The court will not reform a deed on petition or motion, but only upon regular bill for that purpose, wherein the proposed alteration is distinctly set forth ; and until the deed is reformed the court is bound to act upon it as it exists, although fully sat- isfied that it is at variance with the intention of the parties. 2 And it is also essential to a decree, reforming a deed or written contract, that the extent of the proposed alteration should be clearly defined, and ascertained by evidence contemporaneous with, or anterior to, the deed or writing. 3 But a deed may be reformed so as to be confined to the object intended, where its operation, as it stands, is doubtful.* § 164 e. The courts of equity will not rectify a voluntary deed, unless all the parties consent. If any object, the deed must take its chance as it stands. 5 Where a contract in writing is different from the understanding of either party, and the parties did not understand the case alike, so that their minds never in fact met, there was no valid agreement, and the courts of equity will set the written contract aside, as being wholly void. 6 1 Garrard v. Frankel, 8 Jur. n. o. 985; 4 Walker v. Armstrong, 8 De G., M. & s. c. 30 Bear. 445. G. 531. 2 Malet in re, 8 Jur. N. s. 226; s. c. 5 Broun v. Kenney, 9 Jur. N. s. 1163; 31 L. J. n. s. Ch. 455. But where a s. c. 33 Beav. 133. It was said in this fund was in Court under the Trustees case, that a deed by which a client, ini- Relief Act, under a settlement where mediately after recovering certain prop- there was a mistake (though not admit- erty, makes a gift of part of that prop- ted by all the parties), distribution was erty, by way of recompense, to a barrister ordered as though the deed had been re- who had acted in recovering it, cannot formed. In re De La Touche's Settle- be maintained. ment, L. K. 10 Eq. 599. « Price v. Ley, 9 Jur. n. s. 295; s. c. 4 3 Bradford v. Eomney, 6 Law T. n. s. Giff. 235. 208; s. c. 30 Beav. 431. EQ. JUB. — VOL.1. 11 162 EQUITY JURISPRUDENCE. [CH. V. § 164 /. "Where a deed of conveyance upon consideration is made, through want of skill in the scrivener, to convey a greater privilege in regard to sea-weed than the parties embraced in their contract, a court of equity will reform the instrument. But where the vendor had misrepresented the extent and value of the privi- lege proposed to be conveyed, and the mistake of the scrivener had only brought the deed up to the value of the privilege as represented by the grantor at the time of the conveyance, the court declined to interfere. 1 The recent cases, upon this general head of reforming contracts and instruments in writing, which fail to meet the justice of the relation intended to be established between the parties, are so numerous, that it could scarcely be expected to embrace any large proportion of them in a work of this kind. We have referred to those which appear to present the question in any new phase in the subjoined note. 2 § 164 deed was left blank, the cestui que trust being given parol authority by grantor to fill the blank. Burnside v. Wayman, 49 Mis. 356 ; Exchange Bank v. Russell, 50 Mo. 551. So in case of magistrate who took ac- knowledgment signing in wrong capacity. Simpson v. Montgomery, 25 Ark. 365. Where a mortgage did not cover the lot intended (which was a lot to which the mortgagor had really no title), and was a quitclaim when it should have been a warranty, and the mortgagor afterwards took title to the lot in the name of a third person so as to escape the mortgage, a purchaser at foreclosure sale was relieved by reforming the mortgage as to descrip- tion and warranty so that the title might enure to him. Quivey v. Baker, 37 Cal. 465. Where a grantor conveyed land by a deed on its face for a valuable consid- eration, but really without consideration, to A. by mistake, intending to convey it to the wife of A. as a provision for her, ,and the description was imperfect, and A. mortgaged the land to a bona fide incum- brancer without notice, and it was sold at foreclosure sale, it was held, that the pur- chaser could compel the grantor to' cor- rect the description. German, &c, Ins. Co. v. Grim, 32 Ind. 249. A policy of insurance was reformed so as to insure firm instead of partner. Keith v. Globe Ins. Co , 52 111. 518. A bill of sale of per- sonal property was reformed. Menom. L. M. Co. v. Langworthy, 18 Wise. 444. A mortgage misdescribing the note se- cured may be reformed even against a surety. Prior v. Williams, 2 Keyes (N. Y.), 530. A guardian's bond where given to a judge out of office may be reformed. Hall v. Hall, 43 Ala. 488. § 164/-165.J MISTAKE. 163 by reforming the conveyance to meet the purposes of the parties. But when a deed is drawn strictly in accordance with the inten- tion of the parties, although from want of knowledge or skill it will not effect the end proposed, there is no case presented for the interference of the court. 1 § 164 h. This subject is somewhat commented upon by the pres- ent Lord Chancellor, Hatherly, then Vice-Chancellor Wood, in the case of Druiff v. Parker, 2 where the plaintiff's agent had, by mis- take, inserted the plaintiff's name in a bill of exchange, intended to be drawn in her favor, just above that of the drawer, whereby the plaintiff met with embarrassment in proceeding in a suit at law, and appealed to the Court of Equity for relief. The learned judge fully recognized the doctrines laid down in this chapter upon the subject of the jurisdiction for reforming written instru- ments being exclusively confined to the courts of equity. But his lordship suggested that some anomalies naturally resulted from this attempt to separate the jurisdiction of the courts of law and. equity upon this subject.] § 165. In all cases of mistake in written instruments, courts of equity will interfere only as between the original parties, or those claiming under them in privity ; such as personal representatives, heirs, devisees, legatees, assignees, voluntary grantees, 8 or judg- ment creditors, 4 or purchasers from them, with notice of the facts. 5 As against bond fide purchasers for a valuable consideration with- out notice, courts of equity will grant no relief; because they have, at least, an equal equity to the protection of the court. 6 1 Durant v. Bacot, 2 Beasley, 201. Whitehead v. Brown, 18 Ala. 682 ; 2 Law Rep. 5 Eq. 131. As to the [Rhodes v. Outealt, 48 Mis. 367 ; Bas- right to contradict recitals in a deed of kins v. ' Calhoun, 45 Ala. 582 ; Simpson indemnity on the ground that they do v. Montgomery, 25 Ark. 365. See § not create any equitable estoppels, see 176.] Brooke v. Haymes, Law Rep. 6 Eq. 25. 6 1 Fonbl. Eq. B. 1, ch. 1, § 7, and See also In re Tottenham's Estate, Ir. notes ; id. ch. 3, § 11, note ; Newland on Law Rep. 2 Eq. 375 ; Beauchamp v. Contracts, 344, 345 ; Davis v. Thomas, Winn, 17 W. R. 866; L. R. 4 Ch. App. Sugden on Vend. ch. 3, p. 143, 159 (7th 567; Neil v. Midland Railw. Co., 17 W. edit.) ; Warrick v. Warrick, 3 Atk. 290, K. 871; Woollaston v. Tribe, 18 W. R. 293; Maiden v. Menill, 2 Atk. 13; West 83.] v. Erissey, 2 P. Will. 349; Powell v. » See Wyche v. Green, 11 Geo. 173. Price, 2 P. Will. 535; Whitman v. Wes- * Wall v. Arrington, 13 Geo. 93 ; White ton, 30 Maine, 285 ; ante, § 64 c, 108, 139 ; v. Wilson, 6 Blackf. 448; Stone v. Hale, post, § 381, 409, 434, 436; Ligon v. Rog- 17 Ala. 564 ; [Burke v. Anderson, 40 Geo. ers, 12 Geo. 292. [Equity will relieve 635]. against subsequent purchases with notice, 6 Warrick v. Warrick, 3 Atk. 293 ; also against judgment and exectitions. Cora. Dig. Chancery, 2 C. 2 ; 4 J. 4 ; Young v. Carson, 48 Miss. 259 ; Rhodes ». 164 EQUITY JURISPRUDENCE. [CH. V. § 166. In like manner as equity will grant relief in cases of mis- take in written instruments, to prevent manifest injustice and wrong, and to suppress fraud, it will also grant relief and supply- defects, where, by mistake, the parties have omitted any acts or circumstances necessary to give due validity and effect to written instruments. Thus, equity will supply any defect of circumstances in conveyances, occasioned by mistake ; as of livery of seisin in the passing of a freehold ; or of a surrender in case of a copyhold, or the like ; so also misprisions and omissions in deeds, awards, 1 and other solemn instruments, whereby they are defective at law. 2 It will also interfere in cases of mistake in judgments, and other matters of record, injurious to the rights of the party. 3 § 167. The same principle applies to cases where an instrument has been delivered up, or cancelled, under a mistake of the party, and in ignorance of the facts material to the rights derived under it. A court of equity will in such cases grant relief, upon the - ground, that the party is conscientiously entitled to enforce such rights ; and that he ought to have the same benefit as if the instrument were in his possession with its entire original validity. 4 [*This rule was very recently applied to the case of a surety, who had innocently obtained his release through the fraud of the prin- cipal. 5 ] § 168. And, for the same reason, equity will give effect to the real intentions of the parties, as gathered from the objects of the instrument, and the circumstances of the case, although the in- strument may be drawn up in a very inartificial and untechnical Outcalt, 48 Miss. 367 ; Adams v. Sterens, 3 W. ; [Quivey v. Baker, 37 Call, 465; 49 Me. 362.] Gump's Appeal, 65 Penn. St. 476; Col- 1 Mordue v. Palmer, L. R. 6 Ch. Ap. 22. well v. Warner, 36 Conn. 224; Loss 2 1 Fonbl. Eq. B. 1, ch. 1, § 7 ; id. v. Obry, 7 C. E. Green, N. J. 52 ; Byrne v. ch. 3, § 1, and the cases there cited ; id. Edmonds, 23 Gratt. 200 ; Bartlett u. ch. 2, § 7, and notes ; Grounds and Broderiek, 34 la. 517 ; Kearney v. Sacer, Budim. of the Law, M. 112, p. 81 (edit. 37 Md. 264; Wheeler v. Kirtland, 23 1751); Com. Dig. Chancery, Z; Keke- N. J. Eq. 15; Palmer v. Bethard, 66 HI. wick, Dig. Chan. Equity I. ; Newland on 529 ; Chapman v. Hurd, 67 111. 234. But Contracts, ch. 19, p. 342 to 350 ; Jeremy an attachment of real estate, and the on Eq. Jurisd. B. 3, Pt. 2, ch. 2, p. 367, levy of an execution by mistake, cannot 368, 369 ; id. ch. 4, § 5, p. 489, 490, 494, be corrected. Wardlaw ». Wardlaw, 50 495 j Thome v. Thome, 1 Vern. 141 ; Ga. 544.] Com. Dig. Chancery, 2 T. 1, to 2 T. 7 ; ♦ East India Co. o. Donald, 9 Ves. 275; 1 Mad. Ch. Pr. 42 ; id. 55, 65 ; Fothergill East India Co. !,. Neave, 5 Ves. 173. v. Fothergill, 2 Freeman, 256, 257. [See Lemon v. Phenix M. L. Ins. Co., 38 s Jeremy on Eq. Jurisd. B. 3, Pt. 2, Conn. 294.] ch. 4, § 5, p. 492 ; Barnesley v. Powell, 1 s [* Scholefleld v. Templer, Johnson Ves. 119, 284, 289; Com. Dig. Chancery, (Eng. Ch.), 155.] § 166-169.] MISTAKE. 165 manner. For, however just in general the rule may be, " Quoties in verbis nulla est ambiguitas, ibi nulla expositio contra verba expressa fienda est ; " 1 yet that rule shall not prevail to defeat the manifest intent and object of the parties, where it is clearly dis- cernible on the face of the instrument, and the ignorance or blunder or mistake of the parties has prevented them from expressing it in the appropriate language. 2 Thus, if one in consideration of nat- ural love should execute a feoffment, or a lease and release, or a bargain and sale, it would, notwithstanding the use of the techni- cal words, be held to operate as a covenant to stand seised. 3 And the same rule would- be applied, if, under the like circumstances, instead of the words " bargain and sell," the words " give and grant," or " enfeoff, alien, and confirm," should be used in a deed. 4 § 169. There is also another marked instance of the application of the remedial authority of courts of equity ; that is, to the execu- tion of powers. In no case will equity interfere where there has been a non-execution of a power, as contradistinguished from a trust ; 5 for if a trust be coupled with a power, there (as we shall presently see) 6 the trust will be enforced, notwithstanding the force of the power does not execute it. But, if there be a defective execution, or attempt at execution of a mere power, there equity will interpose, and supply the defect, not universally, indeed, but in favor of parties for whom the person intrusted with the execu- tion of the power is under a moral or legal obligation to provide by an execution of the power. Thus, such a defective execution 1 Co. Litt. 147 a. 795, 801, where the master of the rolls 2 Jeremy on Eq. Jurisd. B. 3, Pt. 2, said : " An indenture, which is intended ch. 2, p. 367, 368 ; Smith v. Packhurst, 3 to be an indenture of release, but cannot Atk. 136 ; Stapilton v. Stapilton, 1 Atk. operate as such, may, for the purpose of 8; 1 Fonbl. Eq. B. 1, ch. 6, § 11, 13, and carrying into effect the intention of the note (d) ; id. § 18, and note (e) ; id. § 18, parties, and if there be a proper consid- and note (a) ; Alexander v. Newton, 2 eration, be construed as a covenant to Gratt. 266. [So though the contract is in stand seised. the very language agreed upon, it seems 6 See Brown v. Higgs, 8 Ves. 570 ; it may be reformed to express the real Holmes v. Coghill, 7 Ves. 499 ; s. c. 12 meaning. See Smith v. Jordan, 13 Minn. Ves. 206; Tollett v. Tollett, 2 P.Will. 264.] 489; 1 White and Tudor's Eq. Lead. 8 Jeremy on Eq. Jurisd. B. 3, Pt. 2, Cases, 208 and notes ; 1 Fonbl. Eq. B. 1, ch. 3, p. 367, 368. Thompson v. Attfield, ch. 1, § 7, note («) ; id.' ch, 4, § 25, note 1 Vern. 40 ; Stapilton v. Stapilton, 1 Atk. (h) and (k) ; Jeremy on Eq. Jurisd. B. 3, 8; Thome «. Thorne, 1 Vern. 141; Pt. 2, ch. 2, p. 376, 377; Sugden on Powers, Brown ». Jones, 1 Atk. 190, 191. ch. 6, § 3; post, § 176, note. 4 Jeremy, ibid. ; Harrison v. Austin, * Post, § 176, and note ; Burrough i>. 3 Mod. 237. The same point was recog- Philcox, 5 Mylne & Craig, 73, 92. nized in Doungsworth v. Blair, 1 Keen, 166 EQUITY JURISPRUDENCE. [CH. V. •will be aided in favor of persons standing upon a valuable or a meritorious consideration; such as a bond fide purchaser for a val- uable consideration, a creditor, a wife, and a legitimate child ; 1 unless, indeed, such aid of the defective execution would, under all the circumstances, be inequitable to other persons; or it is repelled by some counter equity. 2 Indeed, if a general power to raise money for any purposes be given, so that the donee of the power may, if he choose, execute it in his own favor, and he should execute it in favor of mere volunteers, there a court of equity will, in favor of creditors, deem the money assets against the volunteers, upon the ground that the donee of the power has an absolute dominion over the power and the property. 3 § 170. The reason for this distinction, between the non-execu- tion of a power and the defective execution of it, has been stated with great clearness and precision by a learned judge. " The dif- ference " (he said) " is betwixt a non-execution and a defective execution of a power. The latter will always be aided in equity under the circumstances mentioned ; it being the duty of every man to pay his debts, and of a husband or father to provide for his wife or child. But this court will not help the non-execution of a power, which is left to the free will and election of the party, whether to execute or not ; for which reason equity will not say he shall execute it ; or do that for him which he does not think fit to do for himself." i Indeed, a court of equity, by acting 1 1 Fonbl. Eq. B. 1, eh. 1, § 7, note (v) ; id. eh. 4, § 25, and notes (A), (;'), (m) ; id. ch. 5, § 2, and notes ; Fotbergill v. Foth- ergill, 2 Freem. 256, 257 ; Com. Dig. Chan. 4 H. 1 to 4 H. 4; 4 H. 6; Gilbert, Lex Pretoria, p. 300 to 306 ; Jeremy on Eq. Juried. B. 3, Pt. 2, ch. 2, p. 372. 2 1 Fonbl. Eq. B. 1, ch. 1, § 7 and note 8 Post, § 176, and note. * The Master of the Rolls, in Tollett ... Tollett, 2 P. Will. 490. See also Las- sells k. Cornwallis, 2 Vem. 465; Cross- ling e. Crossling, 2 Cox, 396 ; 1 Fonbl. Eq. B. 1, ch. 4, § 25, and notes ; id. ch. 1, § 7, and notes ; Sugden on Powers, ch. 6, § 3, p. 315. Sir William Grant, in Holmes v. Coghill (7 Ves. 506), and Lord Erskine, in the same case on appeal (12 Ves. 212), have expressed dissatisfaction with this distinction, as not quite consistent with the principles of law or equity, though fully established by authority. The for- mer, in reasoning on the case of a power to charge an estate with £2,000 by deed, or will, which had not been executed, and of which creditors sought the benefit, as if executed, said : *' To say, that, without a deed or will, this sum shall be raised, is to subject the owner of the estate to a charge in a case in which he never con- sented to bear it. The chance that it may never be executed, or that it may not be executed in the manner prescribed, is an advantage he secures to himself by the agreement, and which no one has a right to take from him. In this respect, there is no difference between a non-exe- cution and a defective execution of a power. By the compact the estate ought not to be charged in either case. It is difficult, therefore, to discover a sound principle for the authority this court assumes, for aiding a defective § 169, 170.] MISTAKE. 167 otherwise in the case of a non-execution of a power, would, in effect, deprive the party of all discretion as to the exercise of it ; and would thus overthrow the very intention manifested by the parties in the creation of the power. On the contrary, when the party undertakes to execute a power, but, by mistake, does it imperfectly, equity will interpose to carry his very intention into effect, and that, too, in aid of those who are peculiarly within its protective favor; that is, creditors, purchasers, wives, and children. 1 execution, in certain cases. If the intention of the party possessing the power is to be regarded, and not the in- terest of the party to be affected by the execution, that intention ought to be executed, wherever it is manifested ; for the owner of the estate has nothing to do with the purpose. To him it is indif- ferent whether it is to be exercised for a creditor or a volunteer. But if the in- terest of the party to be affected by the execution is to be regarded, why in any case exercise the power, except in the form and manner prescribed t He is an absolute stranger to the equity between the possessor of the power and the party in whose favor it is intended to be ex- ecuted. As against the debtor, it is right that he should pay. But what equity is there for the creditor to have the money raised out of the estate of a third person, in a case in which it was never agreed that it should be raised 1 The owner is not heard to say, it will be a grievous burden, and of no merit or utility. He is told the case provided for exists; it is formally right ; he has nothing to do with the purpose. But upon a defect, which this court is called upon to supply, he is not per- mitted to retort this argument ; and to say it is not formally right ; the case provided for does not exist ; and he has nothing to do with the purpose. In the sort of equity upon this subject there is some want of equality. But the rule is perfectly set- tled ; and, though perhaps with some violation of principle, with no practical inconvenience." There is much strength in this reasoning ; but, after all, it is open to some question. The party possessing the power intends to execute it ; he pro- ceeds to do an act which he supposes to be a perfect act of execution. He pos- sesses the right to do it in a formal man- ner ; he has failed, by mistake, against his intention. But the objects, in whose favor it is to be executed, possess a high, moral, and equitable claim for its execu- tion. Under such circumstances, why should a mere mistake, contrary to the intention, defeat the bounty, or the jus- tice of the possessor of the power % If , the case were one of an absolute property in the party, a court of equity would not fail to correct the mistake in favor of persons having such merits. Why should it hesitate, when the possessor of the power has done an act, intended to reduce it to the case of absolute property 1 There is no countervailing equity in such a case in favor of the other side. The case stands dryly upon a mere point of strict law. The difficulty in the argument is, that it deals with the power as a mere naked authority to act, without consid- ering, that when the party elects to act, . an interest attaches to him in the execu- tion of the power ; and that the election thus made is defeated, and the interest thus created fails, by mere mistake, from the defective execution, against parties standing on a strong equity, and in favor of others having none. See 1 Ponbl. Eq. B. 1, ch. 4, § 25. 1 Moodie v. Reid, 1 Mad. 516 ; Jeremy on Eq. Jurisd. B. 3, Pt. 2, ch. 3, p. 369, 370, 371, 372, 375 ; Darlington v. Pulte- ney, Cow. 266, 267 ; Ellis v. Nimmo, Lloyd & Goold's Rep. 348. There seems a dis- tinction in this respect between cases of the defective execution of powers, and cases of voluntary contracts, covenants, and settlements, of which specific per- formance is sought. See Jefferys o. Jef- ferys, 1 Craig & Phillips, 138, 141 ; post, § 433, note ; 706, 706 a, 787, 793 b, 973, 168 EQUITY JURISPRUDENCE. [CH. V. [* § 170 a. The discussion which appears, by the last section and the notes, to have taken place, first and last, upon the reason of the interference of a court of equity, to cure the defective execution, but not the non-execution of a power, may justify the suggestion here, that it very obviously rests upon the fact, that all voluntary powers are dependent, for their execution, upon the will of the donee of the power. Until that occurs, no right is perfected in those to be benefited by its execution. And a court of equity will not attempt to exercise this discretion for the party. But when all has been done to perfect the right, except a mere formal omission in the instrument, courts of equity interfere to supply the defect, upon the principle of reforming instruments, and cor- recting mistakes, generally, for the purpose of preventing fraud and injustice, of which the party would be guilty, by claiming a benefit, under a mere mistake. And the reason why the courts of equity will not supply a defective execution of a power, except in favor of persons standing in a meritorious relation to the power, such as creditors, purchasers, wives and children, is referable to the general ground upon which courts of equity decline to inter- fere by way of decreeing specific performance in favor of a mere volunteer, choosing rather, where the equities between the parties are equal, to leave them to their legal remedies. 1 § 170 b. It was decided in a recent case, 2 that equity will interfere to reform the execution of a power of appointment, by the insertion of a hotchpot clause, the court being satisfied by the evidence, that it was the intention of the donee of the power to produce equality, and that the clause had been omitted by mistake.] § 171. What shall constitute an execution, or preparatory steps or attempts towards the execution of a power ; entitling the party to relief in equity on the ground of a defective execution, has been largely and liberally interpreted. It is clear that it is not sufficient that there should be a mere floating and indefinite inten- tion to execute the power, without some steps taken to give it a 987, 1040 b. [In re Dyke's Estate, L. E. of equity treating any expression, in 7 Eq. 337; Affliek v. Afflick, 3 Sm. & G. writing, by the donee of the power, of a 394. But a court of equity will not in- wish to hare the power executed as » terfere with the exercise of the discretion sufficient ground to justify the interfer- given to the donee of the power. Mit- ence of the court. Post, § 172, and notes. chell v. Denson, 29 Ala. 327.] 2 Wilkinson v. Nelson, 7 Jur. n. s. 480 ; 1 [» This is very obvious, from courts s. c. 9 W. R. 393.] § 170 05-173.] MISTAKE. 169 legal effect. 1 Some steps must be taken, or some acts done, with this sole and definite intention, and be such as are properly refer- able to the power. 2 Lord Mansfield, at one time, contended, that whatever is an equitable, ought to be deemed a legal, execution of a power, because there should be a uniform rule of property ; and that, if courts of equity would presume that a strict adherence to the precise form, pointed out in the creation of the power, was not intended, and therefore not necessary, the same rule should prevail at law. 3 But this doctrine has been overruled. And in- deed, courts of equity do not deem the power well executed unless the form is adhered to ; but in cases of a meritorious consideration they supply the defect. 4 § 172. And relief will be granted, not only when the defect arises from an informal instrument, not within the scope of the power, but also when the defect arises from the improper execu- tion of the appropriate instrument. All that is necessary is, that the intention to execute the power should clearly appear in writ- ing. Thus, if the donee of a power merely covenant to execute it ; or, by his will, desire the remainder-man to create the estate ; or enter into a contract, not under seal, to execute the power ; or by letters promise to grant an estate, which he can execute only by the instrumentality of the power ; in all these, and the like cases, equity will supply the defect. 6 And even an answer to a bill in equity, stating that the party does appoint, and intends by a writing in due form to appoint the fund, will be an execution of the power for this purpose. 6 § 173. The like rule prevails, where the instrument selected is not that prescribed by the power ; provided it is not in its own nature repugnant to the true object of the creation of the power. Thus, if the power ought to be executed by a deed, but it is executed by a will, the defective execution will be aided. 7 But, if 1 See 2 Chance on Powers, ch. 23, § 3, * Darlington v Pulteney, Cowper,267. art. 3005, 3011 ; Barr v. Hatch, 3 Ohio, * Sugden on Powers, ch. 6, § 1, p. 344 ; . 627. id. § 359 ; id. § 361 to 370. 2 See Sugden on Powers, ch. 6, § 2. 6 Id. [See Mitchell v. Denson, 29 Ala. 327. A 6 Carter v. Carter, Moseley, 365. contract to sell is sufficient to indicate "< Smith v. Ashton, 1 Freeman, 308; intent to execute power of sale. In re s. c. 1 Ch. Cas. 269 ; Sugden on Powers, Dyke's Estate, L. K. 7 Eq. 337. There ch. 6 (4th edit), 362 to 367; Tollett v. must be » distinct intention to execute Tollett, 2 P. "Will. 489; 2 Chance on the power. Garth v. Townsend, L. K. Powers , ch. 23, § 1, p. 507, 508 ; id. 513 7 Eq. 220.] to 516; Com. Dig. Chancery, 4 H. 6. 170 EQUITY JURISPRUDENCE. [CH. V the power ought to be executed by a will, and the donee of the power should execute a conveyance of the estate by an absolute deed, it will be invalid ; because such a conveyance, if it avail to any purpose, must avail to the immediate destruction of the power, since it would no longer be revocable, as a will would be. The intention of the power, in its creation, was to reserve an entire control over its execution, until the moment of the death of the donee ; and this intention would be defeated by any other instru- ment than a will. 1 An act done, not strictly according to the terms of the power, but consistent with its intent, may be upheld in equity. But an act, which violates the very purpose for which the power was created, and the very control over it, which it meant to vest in the donee, is repugnant to it, and cannot be deemed, in any just sense, to be an execution of it. 2 § 174. But in other respects there is no difference between a defective execution of a power by a will and by a deed ; for in each case the remedial interposition of equity will be applied. Thus, if a power is required to be executed in the presence of three witnesses, and it is executed in the presence of two only, equity will interfere in such a case. So, if the instrument, whether it be a deed or a will, is required to be signed and sealed, and it is without seal or signature, equity will relieve. 3 [But equity will not relieve in case of a deed given by an attorney, who, how- ever, had no power under seal ; for this is the case of a defective power, and not of a defective execution of power. 4 ] And where a power is required to be executed by a will by -way of appoint- ment, there the appointment will be aided, although the will is not duly executed according to the Statute of Frauds ; for it takes effect, not under the will, but under the instrument creating the power. 5 Equity will also, in many cases, grant relief, where, 1 Reid v. Shergold, 10 Ves. 378, 380. p. 362 to 367 ; 2 Chance on Powers, oh. 2 See Bainbridge v. Smith, 8 Sim. 86 ; 23, § 1, p. 507, 508. But see Gilb. Lex ante, § 97. Pretoria, p. 301 ; Duff v. Dalzell, 1 Bro. 3 Sugden on Powers, ch. 6 (4th edit.), Ch. 147 ; Wagstaff v. Wagstaff, 2 P. Will, p. 369, 370; 2 Chance on Powers, ch. 23, 259, 260; Longford v . Eyre, 1 P. Will. p. 607 to 510 ; Wade v. Paget, 1 Bro. Ch. 741 ; Com. Dig. Chancery, 4 H. 7. Where 363. an attempt is made to execute a power 4 [Piatt v. McCullough, 1 McLean, 69. by a will (the power authorizing an exe- See Thorp v. McCallum, 1 Gilm. 615.] cution by will) and the will is left imper- 6 Wilkie v. Holme, 1 Dick. 165 ; Cov- feet, the same reason does not seem to entry v. Coventry, 9 Mod. 13, 18 ; Shan- exist, as may in other cases, to carry it non v. Bradstreet, 1 Sch. & Lefr. 60; into effect; for it may have been thus Sugden on Powers, ch. 6 (4th edit.), left intentionally imperfect, from a change § 173-174 J.J MISTAKE. 171 by mistake, a different kind of estate or interest is given from that which is authorized by the power, or where there is an excess of the power. 1 [* § 174 a. But where one had a power to appoint " by his will, or any writing in the nature of or purporting to be his will, or any codicil thereto ; " and, on his death, the third and fourth sheets of a will were alone discovered, and which were in his handwriting and signed by him, and were attested by two witnesses, and one of them contained a perfect appointment, probate having been refused ; it was held, that equity could not regard this as a valid execution of the power. 2 But, in general, courts of equity feel it a duty to support a power, if possible, and to give effect to its execution, if there is no defect of substance ; and it is not exercised from im- proper motives or for improper objects. 3 And where the intention to pass the property comprised in the power is clearly established, the court will give effect to the intention, although there is no intention expressed to act in execution of the power. 4 § 174 b. Where the testator, by his will, gave his wife several powers of appointment, one by deed or will, and others by " deed or deeds, instrument or instruments, in writing, sealed and deliv- ered ; " and she executed a deed of appointment, reciting only the power by " deed or deeds," &c, which included only that particu- lar estate, it was held that this estate was well appointed, but that the appointment did not extend to any others. And the same per- of purpose. Lord Eldon, in remarking See Pomfret v. Perring, 5 De 6., M. & G. upon the difficulties of some of the cases, 775. has said: "If, in the instance of a want 3 Carver v. Richards, 6 Jur. N. s. 410; of a surrender of copyhold estate, the s. c. 8 W. E. 349. circumstance of the devise being to a 4 s. c. 5 Jur. n. s. 1412. Where the child is considered, the more natural appointment purports to be made in conclusion is, that the testator, whatever pursuance of " every power " thereto en- his purpose was, going only so far towards abling, but it is evident the only valid it, and not proceeding to make it effectual, power in existence was not the one under had dropped it. So the attempt to exe- which the testator supposed he was act- cute a power is no more than an intima- ing, and treating the appointment as an tion that the party means to execute it. execution of that power will only par- But if all the requisite ceremonies have tially effectuate the testator's intent, it not been complied with, it cannot be sup- seems equity will treat it as an execution posed that the intention continued until of that power or not, according as the his death." Finch v. Finch, 15 Ves. 51. intent may be best effectuated. Bruce 1 Sugden on Powers, ch. 6, § 1, art. 2 ; v. Bruce, L. R. 11 Eq. 371. As to when id. ch. 9, § 8, art. 2 ; 2 Chance on Powers, a general residuary devise will operate as ch. 23, § 7, p. 610, 613 ; Jeremy on Eq. execution of a power, see Amory v. Mere- Jurisd. B. 3, Pt. 2, ch. 2, p. 373, 374. dith, 7 Allen, 397 ; Willard a. Ware, 10 2 [*Gullan v. Grove, 26 Beavan, 64. Allen, 263. 172 EQUITY JURISPRUDENCE. [CH. V. son having afterwards, by will, appointed the same estate, it was held not to revoke the former appointment by deed, but to be wholly inoperative. 1 ] § 175. In all these cases it is to be understood that the intention and objects of the power are not defeated or put aside; but that they are only attempted by the party to be carried formally into effect. But where there is a defect of substance in the execution of the power, such as the want of co-operation of all the proper parties in the act, there equity will not aid the defect. 2 § 176. But in all these cases of relief by aiding and correcting defects or mistakes in the execution of instruments and powers, the party asking relief must stand upon some equity superior to that of the party against whom he asks it. If the equities are equal, a court of equity is silent and passive. 3 Thus, equity vsill not relieve one person, claiming under a voluntary defective con- veyance, against another, claiming also under a voluntary convey- ance: but will leave the parties to their rights at law. 4 For, 1 Cooper v. Martin, 12 Jur. n. s. 887 ; 15 W. R. 5.] 2 See 2 Chance on Powers, ch. 23, § 2, p. 540, to 543 ; Com. Dig. Chancery, 4 H. 7. [So where the power is improperly ex- ercised by selling land, reserving the min- erals or timber. Buckley v. Howell, 29 Beav. 546. So where the time within which the appointment was to he made was of the essence, and that time had elapsed. Cooper v, Martin, L. R. 3 Ch. App. 47. Any ceremonials intended for protection of a married woman as donee of a power are of the essence. Thack- weli v. Gardiner, 5 De G. & Sm. 58.] 8 See Sugden on Powers, ch. 6 (4th edit.), p. 353, 358; 2 Chance on Powers, ch. 23, § 1, p. 502, 504, 507. [* Anderson v. Tydings, 8 Md. 427 ; Smith ■/. Turren- tine, 2 Jones, Eq. 253.] < 1 Fonbl. Eq. B. 1, ch. 1, § 7, and notes ; id. ch. 4, § 25, and notes ; id. ch. 5, § 2, and notes ; Goodwin v. Goodwin, 1 Rep. Chan. 92 [173] ; Mitf. Eq. PI. by Jeremy, 274 ; Moodie ». Reid, 1 Mad. 516 ; 1 Mad. Eq. Pr. 45, 46, 47 ; Sugden on Powers, ch. 6 (4th edit), p. 353 to 358; 2 Chance on Powers, ch. 23, § 1, p. 502, 504, 507 ; Com. Dig. Chancery, 4 H. 9, 2 T. 9, 2 T. 10, 2 C. 8, 4 O. 7 ; post, § 433, 706 a, 787, 793 a, 793 b, 973, 987. There is one peculiarity as to the execution of powers, which may be here taken notice of, although, for ob- yious reasons, this is not the place to dis- cuss the nature and effects of powers generally. It is this : If a party pos- sesses a general power to raise money for any purposes, so that, if he pleases, he may execute it in his own favor, and he executes it in favor of mere volunteers ; in such a case, it will be deemed assets in favor of creditors, upon the ground of his absolute dominion over the power. But if he does not execute the power at all, there, equity will not deem it assets. 1 Fonbl. Eq. B. 1, ch. 4, § 12, note (c) ; id. § 25, note (n) ; Harrington v. Harte, 1 Cox, 131 ; Townsend i>. Windham, 2 Ves. 1; Troughton v. Troughton, 3Atk.656; Lassels v. Cornwallis, 2 Vera. 465; George «. Milbank, 9 Ves. 189; Hollo- way v. Millard, 1 Mad. 414, 419, 420; Jeremy on Equity Jurisd. B. 3, Pt. 2, ch. 2, p. 376, 377; [Fleming v. Buchanan, 3 De G., M. & G. 976]. The distinction is a nice one, and not very satisfactory. Why, when the party executes a power in favor of others, and not of himself, a court of equity should defeat his inten- tion, although within the scope of the power, and should execute something be- side that intention and contrary to it, is § 174 5-177.] mistake. 173 regularly, equity is remedial to those only who come in upon an actual consideration ; and, therefore, there should be some con- sideration, equitable or otherwise, express or implied. 1 But there are excepted cases, even from this rule ; for a defective execution •has been aided in favor of a volunteer, where a strict compliance with the power has been impossible from circumstances beyond the control of the party ; as where the prescribed witnesses could not be found ; or where an interested party, having possession of the deed, creating the power, has kept it from the sight of the party executing the power, so that he could not ascertain the formalities required. 2 § 177. For the same reason equity will not supply a surrender, or aid the defective execution of a power, to the disinheritance of the heir-at-law. Neither will it supply such a surrender in favor of creditors, where there are, otherwise, assets sufficient to pay their debts ; 3 nor against a purchaser for a valuable consideration without notice. 4 And there are other cases of the defective execu- tion of powers, where equity will not interfere ; as, for instance, in regard to powers which are in their own nature statutable, where equity must follow the law, be the consideration ever so merito- rious. Thus, the power of a tenant in tail to make leases under a statute, if not executed in the requisite form prescribed by the not very intelligible. If it be said that defective execution in favor of & sister he ought to be just before he is generous, was aided as against her brothers other- that addresses itself merely to his sense wise provided for. It is not enough to of morals. The power enabled him to prevent relief that the deed is a quit, give, either to himself, or to his creditors, claim without covenants, consideration or to mere voluntary donees. Why having been paid. Deford v. Mercer, 24 should a court of equity restrict this la. 118.] right of election, if bond fide exercised ? 1 1 Fonbl. Eq. B. 1, eh. 5, § 2, and the Is not this to create rights, not given by cases there cited, note (A) ; 1 Mad. Eq. law, rather than to enforce rights secured Pr. 44, 45 ; Sugden on Powers, ch. 6, § 1. by law ? If the power was bond fide ere- See Ellis i\ Nimmo, Lloyd & Goold's Rep. ated, why should a court of equity inter- 333 ; Portescue v. Barnett, 3 Mylne & pose to change its objects or its opera- Keen, 36, 42, 43; post, § 372. tions ? See Sugden on Powers, ch. 6, § 3. 2 1 Fonbl. Eq. B. 1, ch. 5, § 2, and [That equity will reform a contract in note (h) ; Gilbert, Lex Prsetoria, p. 305, favor of grandchildren as well as chil- 306. dren. See Huss v. Morris, 63 Penn. St. 367. 8 1 Fonbl. Eq. B. 1, ch. 1, § 7, note Equity will not reform or execute an (») ; id. ch. 4, § 25, note (c) ; Jeremy on imperfect instrument in favor of one Eq. Jurisd. B. 3, Pt. 2, ch. 2, p. 369, 370, whose claim rests only on the considera- 371. tion of love and affection, as against one 4 1 Ponbl. Eq. B. 1, ch. 1, § 7, note (v) ; whose claim is equally meritorious, id. ch. 4, § 25, and note (/) ; id. B. 6, Hout v. Hout, 20 Ohio (n. s.), 119- ch. 3, §3. But see id. B. l,ch.l, § 7, note But in Morse v. Martin, 34 Beav. 500, (t). 174 EQUITY JURISPRUDENCE. [CH. V. statute, will not be made available in equity, however meritorious the consideration may be. 1 And indeed it maybe stated as gener- ally, although not universally true, that the remedial power of courts of equity does not extend to the supplying of any circum- stance, for the want of which the legislature has declared the in* strum ent void ; for, otherwise, equity would, in effect, defeat the very policy of the legislative enactments. 2 § 1 78. Upon one or both of these grounds, to wit, that there is no superior equity, or that it is against the policy of the law, the remedial power of courts of equity does not extend to the case of a defective fine, as against the issue, or of a defective recovery, as against a remainder-man ; 3 unless, indeed, there is something in the .transaction to affect the conscience of the issue, or the re- mainder-man. 4 § 179. In regard to mistakes in wills, there is no doubt that courts of equity have jurisdiction to correct them, when they are apparent upon the face of the will, or may be made out by a due construction of its terms ; for in cases of wills the intention will prevail over the words. But, then, the mistake must be apparent on the face of the will, otherwise there can be no relief ; for, at least since the Statute of Frauds, which requires wills to be in writing (whatever may have been the case before the statute), 5 1 Darlington v. Pulteney, Cowp. 267 ; 1 Fonbl. Eq. B 1, ch. 4, § 25, and note (I). But see 2 Chance on Powers, ch. 23, § 2, p. 541 to 545. See Gilbert, Lex Pre- toria, p. 304, 305, as to the difference of a power created by the parties. See also 1 Fonbl. Eq. B. 1, ch. 4, § 25, and note 2 Ante, § 96 ; 1 Fonbl. Eq. B. 1, ch. 1, § 7, note (() ; Hibbert v. Rolleston, 3 Bro. Ch-. 571, and Mr. Belt's note, id. ; Ex parte Bulteel, 2 Cox, 243 ; Duke of Bolton ... Williams, 2 Ves. Jr. 138 ; Curtis v. Perry, 6 Ves. 739, 745, 746, 747 ; Mestaer v. Gil- lespie, 11 Ves. 621, 624, 625; Dixon „. Ewart, 3 Meriv. 321, 332; Thompson v. Leake, 1 Mad. 39; Thompson v. Smith, 1 Mad. 395; Bright o. Boyd, 1 Story, 478 ; McBryde v. Wilkinson, 29 Ala. 662. Qucere, how it would be where a due exe- cution was prevented by fraud, accident, or mistake. See 11 Ves. 625; 1 Mad. 39; id. 395. » 1 Fonbl. Eq. B. 1, ch. 1, § 7, note (k) ; id. ch. 5, § 2, and note (h). * 1 Fonbl. Eq. B. 1, ch. 4, § 25, note (fc) ; id. 15 ; Com. Dig. Chancery, 2 T. 4, and 2 T. 8, 2 T. 10, 3 N. 2. 6 Lord Hardwicke, in Milner o. Milner (1 Ves. 106), remarked, that in the early ecclesiastical law, in accordance with the civil law, it was held that errors in lega- cies might be corrected by the intention of the testator, contrary to his words; and he cited Swinburne on Wills, p. 7, ch. 5, § 13, and Godolphin, p. 3, 447, and the text of the civil law, and the Com- mentary of Cujaeius on the Digest, Lib. 30, tit. 1, 1. 15; Cujacii Opera (edit. 1758), torn. 7; Comment, ad id. Leg. p. 993, 994. He then added : " Indeed, at the time some of these books were written, the Statute of Frauds had not taken place ; and as the law [was] then held, parol evidence might be given in all courts to explain a will. And perhaps some contrariety of opinions may have been on this subject, where the intention appears on the face of the will, and where not ; almost all the authorities in § 177-180 a.-] MISTAKE. 175 parol evidence, or evidence dehors the will, is not admissible to vary or control the terms of the will, although it is admissible to remove a latent ambiguity. 1 § 180. But the mistake, in order to lead to relief, must be a clear mistake, or a clear omission, demonstrable from the structure and scope of the will. 2 Thus, if in a will there is a mistake in the computation of a legacy, it will be rectified in equity. 3 So, if there is a mistake in the name, or description, or number of the legatees, intended to take, 4 or in the property intended to be bequeathed, 5 equity will correct it. [* § 180 a. It will be found, upon examination, that the American courts of equity have not interfered to correct alleged mistakes in the execution of wills, either as to the statutory requisites, 6 or the manner of writing, as by inserting the name of another legatee in lieu of one which had been written by the mistake of the scrivener, 7 or applying a devise or bequest to a sub- ject-matter intended by the testator, but not fully expressed. 8 the civil law agreeing in the first case, that the intention shall prevail against the words. But some have thought otherwise in the latter case, where the , intention appeared, not on the face of the will, hut only by matter dehors ; although the better opinion even there is, that the intention shall prevail. However, that difficulty cannot be here, as the intention appears on the face of the will." 1 Milner v. Milner, 1 Ves. 106 ; Ulrich v. Litchfield, 2 Atk. 373 ; Hampshire v. Peirce, 2 Ves. 216 ; Bradwin v. Harper, Ambler, 374 ; Stebbing v. Walkey, 2 Bro. Ch. 85; s. c. 1 Cox, 250; Danvers v. Manning, 2 Bro. Ch. 18 ; s. c. 1 Cox, 203 ; Campbell v. French, 3 Ves. 321 ; 1 Fonbl. Eq. B. 1, ch. 11, § 7, note (») ; 1 Mad. Ch. Pr. 66, 67. 2 Mellish v. Mellish, 4 Ves. 49; Phil- ipps v. Chamberlaine, id. 51, 57 ; Del Mare v. Rebello, 3 Bro. Ch. 446 ; Purse v. Snaplin, 1 Atk. 415 ; Holmes v. Cus- tance, 12 Ves. 279. 8 Milner v. Milner, 1 Ves. 106 ; Dan- vers v. Manning, 2 Bro. Ch. 18 ; Door v. Geary, 1 Ves. 255, 256; Giles v. Giles, 1 Keen, 692. * Stebbing v. "Walkey, 2 Bro. Ch. 85 ; Eivers's case, 1 Atk. 410 ; Parsons v. Parsons, 1 Ves. Jr. 266; Beaumont v. Fell, 2 P. Will. 141 ; Hampshire v. Peirce, 2 Ves. 216 ; Bradwin u. Harper, Ambler, 374. 5 Selwood v. Mildmay, 3 Ves. 306; Door v. Geary, 1 Ves. 250. And see Newburgh v. Newburgh, 5 Mad. Ch. 364. [A mistake in the date of the will may be shown by parol proof. Reffell v. Reffell, L. R. 1 P. & M. 139. The court refused to omit from the probate words which solicitor swore he inserted by inadvert- ence, the testatrix having been a capable person and the will read over to her. Guardhouse v. Blackburn, L. R. 1 P. & M. 109.] o [* Nutt v. Nutt, 1 Freem. Ch. Miss. 128; Erwin v. Hanmer, 27 Ala. 296; Alter's Appeal, 67 Penn. St. 341. 7 Yates v. Cole, 1 Jones, Eq. (N. C.) 110. 8 It is held, in a recent English case, that extrinsic evidence is not admissible to show that a society named as being in London, there being none of that name in London, referred to a society of that name out of London. In re The Clergy Society, 2 Kay & J. 615. But if there had been two such societies, and the be- quest had been general, it might have been explained by extrinsic evidence as a latent ambiguity. See Bennett v. Mar- 176 EQUITY JURISPRUDENCE. [CH. V. The extent to which the English equity courts have sometimes carried this branch of their remedial -powers has more the appear- ance of making men's wills, as they probably would do if now alive, than carrying them into effect, as they were in fact made. But one may make a binding contract to dispose of his property by will in a particular mode, and a court of equity will decree specific per- formance of such a contract, where otherwise it would operate as a fraud upon others. 1 § 180 b. And in a recent English case, 2 where the testator evi- denced, in making his will, an intention to give his property equally among his four daughters, but recited that two of his daughters, A. and B., would become entitled to settled estates after his decease, and that he had taken that into account in making his will, and had not devised them so large a share as he otherwise should have done ; and devised much more to his other two daughters than to them, when, in fact, all his daughters were equally entitled to share in the settled estates, and in consequence of this mistake of the testator, the two latter would receive, in the whole, much more than the two former ; but as the will did not attempt to affect the settled estates, the court held that no question of election arose, and that no relief could be given. Lord Roniilly, M. R., said, in giving judgment : " Because the testator has made a mistake, you cannot afterwards remodel the will, and make it that which you supposed he intended, and as he would have drawn it, if he had known the incorrectness of his supposition."] \ § 181. But in each of these cases, the mistake must be clearly made out ; for if it is left doubtful, equity will not interfere. 3 And so, if the words of the bequest are plain, evidence of a different intention is inadmissible to establish a mistake. 4 Neither will equity rectify a mistake if it does not appear what the testator would have done in the case, if there had been no mistake. 5 § 182. The same principle applies, where a legacy is revoked, shall, 2 Kay & J. 740 ; Stringer v. Gar- 2 Box v. Barrett, Law Rep. 3 Eq. 244.] diner, 5 Jur. s. a. 260 ; Goode v. Goode, s Holmes v. Custanee, 12 Ves. 279. 22 Mo. 518. Equity denied relief when * Chambers <.. Minchin, 4 Ves. 676. there was alleged error in charging in the But see Fonnereau t. Poyntz, 1 Bro. Ch. will sums as advanced which had not 472, 480; Powell v. Mouchett, 6 Mad. been advanced. McAlister v. Butterfield, 216 ; Smith v. Streatfield, 1 Meriv. 358. 31 Ind. 25. See also Machem v. Machem, 6 See Smith v. Maitland, 1 Ves. Jr. 28 Ala. 374. 363. 1 Johnson v. Hubbell,2 Stockton's Ch. 332 ; post, § 786, and cases cited. § 180 a-183.] mistake. 177 or is given upon a manifest mistake of facts. Thus, if a testator revokes legacies to A. and B., giving as a reason, that they are dead, and they are, in fact, living, equity will hold the revocation invalid, and decree the legacies. 1 So, if a woman gives a legacy to a man, describing him as her husband, and in point of fact the marriage is void, he having a former wife then living, the bequest will, in equity, be decreed void. 2 § 182 a. But though it is clear, that a legacy, given to a person, in a character which the legatee does not fill, and by the fraudu- lent assumption of which character the testator has been deceived, will not take effect, yet if the testator is not deceived, although a false character is in fact assumed, the legacy will be good. A fortiori, it will be good if both parties not only know the actual facts, but are designedly parties to the assumption of the false character. Thus, where the testator and the legatee A. G. were married, both knowing at the time that the legatee had a prior husband alive, and afterwards the testator gave all the residue of his estate to the legatee, describing her as his wife A. G., it was held that the legacy was good, for as both parties had a guilty knowledge of the facts, no fraud was committed on the testator. And it was then said, that however criminal the conduct of the parties might be, it was no part of the duty of courts of equity to punish parties for immoral conduct by depriving them of their civil rights. 3 § 183. But a false reason given for a legacy, or for the revoca- tion of a legacy, is not always a sufficient ground to avoid the act or bequest in equity. To have such an effect, it must be clear that no other motive mingled in the legacy, and that it constituted the substantial ground of the act or bequest.* The civil law seems to have proceeded upon the same ground. The Digest 5 says, " falsam causam legato non obesse, verius est ; quia ratio legandi legato non coheeret. Sed plerumque doli exceptio locum habebit, si probetur, alias legaturus non fuisse." The meaning of this passage is, that a false reason given for the legacy is not of itself sufficient to destroy it. But there must be an exception of any fraud practised, from which it may be presumed, that the person 1 Campbell v. French, 3 Ves. 321. also Wilkinson v. Joughin, 12 Jur. N. 8. 2 Kennell v. Abbott, 4 Ves. 808. 330.] 8 Giles v. Giles, 1 Keen, 685, 692, 693. 5 Dig. Lib. 35, tit. 1, 1. 72, § 6. See 4 Kennell v. Abbott, 4 Ves. 802. [* See also Swinburne on Wills, Pt. 7, § 22, p. 557. EQ. JTJK. — VOL. I. 12 178 EQUITY JURISPRUDENCE. [CH. VI. giving the legacy would not, if that fraud had been known to him, have given it. 1 And the same reasoning applies to a case of clear mistake. CHAPTER VI. ACTUAL OK POSITIVE FRAUD. [* § 184. Courts of equity have concurrent jurisdiction with courts of law in matters of fraud. § 185. The present jurisdiction of frauds originated in the abolition of the court of Star Chamber. § 186-189. Attempts to define fraud. That is impossible. Courts of equity recog- nize every intentional deception of another, to his detriment, in matters of property, as actionable in some court. § 190, 190 a. Fraud must be proved, either directly or presumptively, to the satis- faction of the court. § 191. Suggestio falsi ; when it will avoid contracts. § 192. Definition of positive fraud. § 193. Party bound by his representation, if made rashly. § 193 a. Praud, by agent, binds the principal, although innocent. § 194. Equity cannot enforce absolute moral justice. § 195. Examples illustrative of legal fraud. § 196. Immaterial misrepresentations not binding in law. § 197. Must be one in which the other party places confidence ; not mere opinion. § 198. Opinion in some matters, the same as facts. § 199. Foolish confidence no ground of relief. § 200. Unless under special circumstances. § 200 a. Party must use his own means of knowledge. § 201. Puffing, no fraud, ordinarily. § 202, 203. No fraud, without deception and damage. § 203 a. Party must repudiate the contract on discovery of fraud. § 204. Suppressio veri, may, or may not, be legal fraud. § 205, 206. Must be a breach of confidence, which the party knows to exist, to be legal fraud. § 207. Party not bound to communicate extraneous facts. § 208-210. But must state intrinsic facts of the essence of the contract. § 211. Koman civil law required absolute good faith. 1 Kennell v. Abbott, 4 Ves. 808. [* A and, upon reasonable inquiry, although lady who had gone through the ceremony this proved not to have been the fact. In of marriage and lived with the testator re Pitts' Will, 5 Jur. n. s. 1235. Any in- as his wife, up to the time of his death, strument defectively executed may was held entitled to a legacy given to the nevertheless be treated as evidence of testator's " wife," the court being satisfied the agreement of the parties, and thus that at the time of going through the form the basis of a, decree in equity re- ceremony of marriage both parties be- forming the instrument. Jones v. Baird, lieved the husband of the lady was dead, 4 Jones, Eq. 167.] § 184.J ACTUAL FRAUD. 179 § 212, 212 a. Common law will not tolerate fraud, even by silence. § 213, 214. The application of the rule depends upon circumstances. § 215. Cases of sureties. § 216. Insurance requires the utmost good faith. § 217, 218. So of all cases of fiduciary relation, or special confidence. § 219, 220. Illustrations of such confidence. § 221, 222. Positive fraud, by overreaching, or betraying confidence in persons of weak mind. § 223, 224. Persons of unsound mind, not able to contract. § 225. History of the law on this subject. § 226. Lunatics liable for torts committed on others. § 227. Relief granted upon the ground of fraud. § 228. Contracts for necessaries, or in ignorance of defect of mind, not held void. § 229. Even matters of record may be avoided. § 230. Drunkenness a ground of relief in equity. , § 281. But it must be such as to destroy reason for the time, or undue advantage must have been taken of the party. k § 232. Equity will sometimes refuse to interfere, even then, when no injustice has been done. § 233. Continental and Scottish writers regard such contracts void. § 234-238 a. Persons of weak mind entitled to the protection of courts of equity. § 239. Duress of circumstances may be ground of relief. § 240-242. Contracts of infants not binding in equity. § 243. Contracts of married women void. § 244. Unconscionable bargains set aside in equity. § 245-250. Inadequacy of price no ground of relief, unless so gross as to be evi- dence of fraud. § 251. Contracts obtained by surprise set aside in equity. § 252, 253. Other instances of actual fraud. § 254. Fraudulent suppression of deeds and wills. § 255. Colorable execution of powers void in equity. § 256. Acts, fraudulently prevented, equity treats, as done. § 257. Consent, fraudulently withheld, equity dispenses with. § 257 a. Fraud on third parties does not always render contract void. § 257 b. Ex parte proceedings, under misapprehension, enjoined. § 257 c. Equity will relieve against attempted fraud upon courts or acts of legislature.] § 184. Let us now pass to another great head of concurrent jurisdiction in equity, that of fraud. And here it may be laid down as a general rule, subject to few exceptions, that courts of equity exercise a general jurisdiction in cases of fraud, sometimes concurrent with, and sometimes exclusive of, other courts. 1 It 1 Barker v. Bay, 2 Buss. 63 ; post, § 238, doubt. In some cases we find the court 252, 264, 440. Mr. Fonblanque, in his of chancery distinctly asserting its juris- note (B. 1, ch. 2, § 3, note u), says : diction ; as in Maundy v. Maundy, 1 Ch. " Whether courts of equity could inter- Eep. 66 ; Well v. Thornagh, Prec. Ch. 123 ; pose, and relieve against fraud practised Goss v. Tracy, 1 P. Wms. 287 ; 2 Vern. in the obtaining of a will, appears to have 700 ; [as to validity of exercise of been formerly a point of considerable power of appointment by will with ref- 180 EQUITY JURISPRUDENCE. [CH. VI. has been already stated, that in a great variety of cases fraud is remediable, and effectually remediable at law. 1 Nay, in certain erence to the state of mind of the tes- tator, Morgan v. Annis, 3 De G & Sm. 461] ; in other cases disclaiming such jurisdiction, though the fraud was gross and palpable ; as in Roberts v. Wynne, 1 Ch. Rep. 125; Archer v. Moss, 2 Vern. 8; Herbert v. Lownes, 1 Ch. Rep. 13 ; Thynn v. Thynn, 1 Vern. 296 ; Devenish v. Barnes, Prec. Ch. 3 ; Barnesley ». Powell, 1 Ves. 287; Marriot v. Marriot, Str. 666. See Dimes v. Steinberg, 2 Sm. & Giff. 75. That an action at law will lie upon a promise, that if the devisor would not charge the land with a rent-charge, the devisee would pay a certain sum to the intended legatee of the rent ; see Rockwood v. Rockwood, 1 Leon. 192; Cro. Eliz. 163. See also Button v. Poole, 1 Vent. 318, 332 ; Berin- ger v. Beringer, 16 June, 26 Car. II. Chamberlin v. Chamberlin, 2 Preem. 34 Leicester v. Foxcroft, cited Gilb. Rep. 11 Reech v. Kennegal, 26 October, 1748. But since the cases of Kerrick v. Bransby, 3 Brown's P. C. 358, and Webb v. Claverden, 2 Atk. 424, it appears to have been set- tled, that a will cannot be set aside in equity for fraud and imposition, because a will of personal estate may be set aside for fraud in the Ecclesiastical Court, and a will of real estate may be set aside at law ; for in such cases, as the animus testandi is wanting, it cannot be considered as a will. Bennet u. Vade, 2 Atk. 324; Anon., 3 Atk. 17. Though equity will not set aside a will for fraud, nor restrain the probate of it in the proper court, yet if the fraud be proved it will not assist the party practising it, but will leave him to make what advan- tage he can of it. Nelson v. Oldfield, 2 Vern. 76. But if the validity of the will has been already determined and acted upon, equity will restrain proceedings in the Prerogative Court to controvert its validity. Sheffield v. Duchess of Buckingham, 1 Atk. 628. Lord Hard- wicke, having admitted that a court of equity cannot set aside a will for fraud, observes, in the above case of Sheffield v. Duchess of Buckingham, that ' the admission of a fact by a party con- cerned, and who is most likely to know it, is stronger than if determined by a jury ; and facts are as properly concluded by an admission, as by a trial.' That the party prejudiced by the fraud may file a bill for a discovery of all its circumstan- ces, is unquestionable. Supposing, then, the defendant to admit the fraud, if the admission is to have the effect ascribed to it by Lord Hardwicke, it still remains to be determined how a court of equity ought to proceed. If it could not relieve, it would follow, as a consequence, that so much of the bill as seeks relief would be demurrable ; but the invariable practice in such cases is to seek relief, and the issue directed is to furnish the ground upon which the court is to proceed in giving such relief." But the question whether a court of equity will interpose and grant relief in cases of wills ob- tained or suppressed by fraud has been much litigated since the note of Mr. Ponblanque was written ; and it is now well settled, that a court of equity will not entertain jurisdiction to cet aside a will obtained by fraud, or establish a, will suppressed by fraud, whatever relief it may otherwise grant under special cir- cumstances. See Allen o. Macpherson, 5 Beav. 469 ; s. c. on appeal, 1 Phillips, Ch. 133. In this case, upon the appeal, Lord Cottenham discussed the authorities at large, and said : " The testator in this case had bequeathed a considerable prop- erty to the plaintiff by his will and sub- sequent codicils. He afterwards, by a further codicil (the ninth), revoked these bequests, and in lieu of them made a small pecuniary provision in his favor. It was alleged by the bill that this altera- tion was procured by false and fraudulent representations made by an illegitimate son of the testator, and by the defendant, Susannah Evans, his daughter, as to the character and conduct of the plaintiff, Susannah Evans being the residuary l Ante, § 59, 60; 3 Black. Comm. 431 ; 1 Fonbl. Eq. B. 1, ch. 2, § 3, note (r) ; 4 Inst. 84; Bright v. Ej'non, 1 Burr. 39( Jackson v. Burgott, 10 Johns. 457, 462. § 184.] ACTUAL FEAUD. 181 cases, such as fraud in obtaining a will, whether of personal estate, or real estate, the proper remedy is exclusively vested in other legatee. To this bill the defendants demurred. The master of the rolls over- ruled the demurrer, and from this judg- ment the defendants have appealed. The question is one of considerable impor- tance. The same objection of fraud, founded upon the same facts, was made in the Ecclesiastical Court upon the ap- plication for probate. It did not, how- ever, prevail. This, then, is, in substance, an attempt to review the proceedings in that court ; for a sufficient case of impo- sition and fraud practised on the testator would have been a ground for refusing the probate. There are, undoubtedly, cases where, fraud being proved, this court has declared the party committing the fraud a trustee for the person against whom the fraud was practised ; but none of these cases appear to me to go so far as the present. The case of Seagrave v. Kirwan has no very close application to the question now before the court. The chancellor of Ireland, Sir Anthony Hart, declared the executor a trustee, as to the residue, for the next of kin. But in that case the testator never intended that the executor should take any benefit under the will. The rule, which then prevailed, that the executor was entitled to the residue, unless otherwise disposed of, except where a legacy was bequeathed to him by the will, was a rule of inter- pretation or construction. The learned judge considered that it was the duty of the executor who prepared the will, and who was a gentleman of the bar, to have informed the testator that such was the rule. He was not allowed .to profit from this omission, and was therefore decreed to be a trustee for the next of kin. The Ecclesiastical Court had no authority to order this. They had no power to do what the justice of the case required. So, in Kennell v. Abbott (4 Ves. 802). There, a fraud had been practised, and the question was one of intention. The testatrix intended the legacy for her hus- band. The legatee had fraudulently as- sumed that character. The master of the rolls, Sir Pepper Arden, came to the conclusion that the character he had so assumed was the only motive for the gift. The law, therefore, he said, would not permit him to avail himself of the testa- trix's bounty. In the case of Marriot v. Marriot, which is mentioned in Strange (p. 666), and also in Chief Baron Gilbert's Reports (p. 203 ; see p. 209), it does not appear what was the nature of the im- puted fraud. The cause was compro- mised, and the judgment, according to the report in Gilbert, was written by the learne'd judge, but not delivered. He says that a court of equity may, accord- ing to the real intention of the testator, declare a trust upon a will, although it be not contained in the will itself, in these three cases. First, in the case of a noto- rious fraud upon a legatee ; as if the drawer of a will should insert his own name instead of the name of the legatee, no doubt he would be a trustee for the real legatee. Secondly, where the words imply a trust for the relations, as in the case of a specific devise to the execu- tors, and no disposition of the residue. Thirdly, in the case of a legatee prom- ising the testator to stand as a trustee for another. And nobody, he adds, has thought that declaring a trust in these cases is an infringement upon the eccle- siastical jurisdiction. These are the only positions laid down in the intended judg- ment, which are applicable to the present question. They do not admit of dis- pute, but are very distinguishable from the case now under consideration. It is sufficient to observe that in none of these instances would the Ecclesiastical Court be competent to afford relief. The same remarks will apply to the case, also, of Kennell v. Abbott, which I have already mentioned. But in Plume v. Beale (1 P. Wins. 188), where a legacy was intro- duced by forgery, Lord Chancellor Cow- per refused to interfere, saying it might have been proved in the Ecclesiastical Court, with a particular reservation as to that legacy. There the interference of the court of equity was unnecessary. The question might have been settled by the Ecclesiastical Court. In the case of Barn- esley v. Powell (1 Ves. Sen. p. 284), Lord 182 EQUITY JURISPRUDENCE. [CH. VI. courts ; in wills of personal estate, in the ecclesiastical courts ; 1 and in wills of real estates, in the courts of common law. 2 But Hardwicke says, that fraud in making or obtaining a will must be inquired into and determined by the Ecclesiastical Court, but that fraud in procuring a will to be established in that court — fraud, not upon the testator, but upon the person disinherited thereby — might be the sub- ject of inquiry in this court. Fraud, he says, in obtaining the will, infects the whole, but "the case of a will in which the probate has been obtained by fraud upon the next of kin, is of another considera- tion ; and Lord Apsley, in the case of Meadows v. the Duchess of Kingston (Amb. 762), recognizes this distinction. But the case which has the closest resem- blance to this is Kerrick v. Bransby, de- cided in the House of Lords (7 Bro. P. C. 457). It was alleged in that case, that the will had been obtained by fraud and imposition practised on the testator ; and the chancellor, Lord Macclesfield, was of that opinion, and pronounced a de- cree, the effect of which was to deprive the legatee of all benefit under it. It is true that the prayer of the bill was, that the will might be cancelled ; but the de- cree did not do more than direct the lega- tee to account for the testator's personal estate, and that what should appear to be in his hands should be paid over to the plaintiff, and that, if necessary, the plain- tiff should be at liberty to use the lega- tee's name to get in the debts or other personal estate of the testator; in sub- stance declaring him a trustee for the plaintiff. But this judgment was re- versed on appeal in the House of Lords. It was suggested at the bar, upon the argument in the present case, that the decree might perhaps have been re- versed on the merits. That, however, has not been the understanding of the profession ; and Lord Hardwicke, who probably was acquainted with the his- tory of the case, expressly states in Barnesley v. Powell, that it was decided on the question of jurisdiction. Lord Eldon, also, in Ex parte Fearon (5 Ves. 633 ; see p. 647), observes that it was determined in Kerrick v. Bransby, that this court could not take any cognizance of wills of personal estate, as to matters of fraud. I am of opinion, therefore, as well on authority as on principle, that the demurrer was proper, and ought to have been sustained." Again, in Price v. Dewhurst, 4 Mylne & Craig, 76, 80, 81, Lord Cottenham said : " The first question which occurs is, how can this court, in administering a testator's prop- erty, take any notice of a will of which no probate has been obtained from the Ecclesiastical Court of this country ? This court knows nothing of any will of personalty, except such as the Ec- clesiastical Court has, by the probate, adjudged to be the last will." The same question occurred before the Supreme Court of the U. S. in the case of Gaines and wife v. Chew and others, 2 Howard, S. Ct. 619, 645, 646. In that case, Mr. Justice McLean, in delivering the opinion of the court, said : " In cases of fraud, equity has a concurrent jurisdiction with a court of law ; but in regard to a will charged to have been obtained through fraud, this rule does not hold. It may be difficult to assign any very satisfactory reason for this exception. That exclu- sive jurisdiction over the probate of wills is vested in another tribunal, is the only one that can.be given. By art. 1637 of the Civil Code, it is declared that 'no testament can have effect unless it has been presented to the judge,' &c. And in Clappier et at. v. Banks, 11 Louis. Rep. 593, it is held, that a will alleged to be i See Gould v. Gould, 3 Story, 537. 2 1 Fonbl. Eq. 1, ch. 2, § 3, note (u) ; 3 Black. Comm. 451; Webb v. Claver- den, 2 Atk. 424; Kerrick v. Bransby, 3 Bro. Pari. Cas. 358 ; 6. o. 7 Bro. Pari. Cas. by Tomlins, 437; Bennet v. Vade, 2 Atk. 324; Andrews u. Pavis, 2 Bro. Pari. Cas. 476 ; Jeremy, Eq. Jurisd. B. 3, Pt, 2, ch. 4, § 5, p. 488, 489 ; Pemberton v. Pemberton, 13 Ves. 297 ; 1 Hovenden on Frauds, Introd. 17; Cooper, Eq. PL 125. 184.] ACTUAL FRAUD. 183 there are many cases, in which fraud is utterly irremediable at law ; and courts of equity, in relieving against it, often go, not only beyond, but even contrary to, the rules of law. 1 And with lost or destroyed, and which has never been proved, cannot be set up as evidence of title, in an action of revendieation. In Armstrong o. Administrators of Kos- ciusko, 12 Wheat. 169, this court held, that an action for a legacy could not be sustained under a will which had not been proved in this country before a court of probate, though it may have been effec- tive, as a will, in the foreign country where it was made. In Tarver v. Tarver et at, 9 Peters, 180, one of the objects of the bill being to set aside the probate of a will, the court said, ' The bill cannot be sustained for the purpose of avoiding the probate. That should have been done, if at all, by an appeal from the Court of Probate, according to the provisions of the law of Alabama.' * The American decisions on this subject have followed the English authorities. And a deliberate consideration of the question leads us to say, that both the general and local law require the will of 1813 to be proved,, before any title can be set up under it. But this result does not authorize a nega- tive answer to the second point. We think, under the circumstances, that the complainants are entitled to full and ex- plicit answers from the defendants in re- gard to the above wills. These answers being obtained, may be used as evidence before the Court of Probate to establish the will of 1813 and revoke that of 1811. In order that the complainants may have the means of making, if they shall see fit, a formal application to the Pro- bate Court, for the proof of the last will and the revocation of the first, having the answers of the executors, jurisdic- tion as to this matter may be sustained. And, indeed, circumstances may arise on this part of the case, which shall re- quire a more definite and efficient action by the Circuit Court. For if the Pro- bate Court shall refuse to take jurisdic- tion, from a defect of power to bring the parties before it, lapse of time, or on any other ground, and there shall be no remedy in the higher courts of the State, it may become the duty of the Circuit Court, having the parties before it, to re- quire them to go before the Court of Probate, and consent to the proof of the will of 1813, and the revocation of that of 1811. And should this procedure fail to procure the requisite action on both wills, it will be a matter for grave consid- eration, whether the inherent powers of a court of chancery may not afford a remedy where the right is clear, by establishing the will of 1813. In the case of Barnesly u. Powell, 1 Ves. Sen. 119, 284, 287, above cited, Lord Hardwicke decreed that the defendant should con- sent, in the Ecclesiastical Court, to the revocation of the will in controversy and the granting of administration, &c. If the emergencies of the case shall require such a course as above indicated, it will not be without the sanction of Louisiana law. The twenty-first article of the Civil Code declares that, 'In civil matters, where there is no express law, the judge is bound to proceed and decide according to equity. To decide equitably, an ap- peal is to be made to natural law and reason, or received usages where posi- tive law is silent.' This view seemed to be necessary to show on what ground and for what purpose jurisdiction may be ex- ercised in reference to the will of 1813, though it has not been admitted to pro- bate." See also Gingell v. Home, 9 Sim- ons, 539, 548 ; Smith v. Spencer, 1 Younge & Coll. N. R. 75 ; Tucker v. Phipps, 3 Atk. i Garth v. Cotton, 3 Atk. 755; Man v. Ward, 2 Atk. 229; Trenchard v. Wan- ley, 2 P. Will. 167. * [In Trexler v. Miller, 6 Iredell, Eq. 248, it was held that a court of equity has no power to fill up a blank in a will, or to restore a bequest, alleged to have been originally in the will, but fraudu- lently obliterated before the probate. The court must take the will as it is cer- tified from the Probate Court.] 184 EQUITY JUKISPRUDENCE. [CH. VI. the exception of wills, as above stated, courts of equity may be said to possess a general, and perhaps a universal, concurrent jurisdiction with courts of law in cases of fraud, cognizable in the latter; and exclusive jurisdiction in cases of fraud beyond the reach of the courts of law.* § 185. The jurisdiction in matters of fraud is probably coeval with the existence of the court of chancery ; and it is equally probable, that, in the early history of that court, it was princi- pally exercised in matters of fraud, not remediable at law. 2 Its present active jurisdiction took its rise in a great measure from the abolition of the court of star chamber, in the reign of Charles the First ; 3 in which court the plaintiff was not only relieved, but the defendant was punished for his fraudulent conduct. So that the interposition of chancery before that period was generally unnecessary. 4 360; Tremblestown ■«. Lloyd, 1 Bligh (w. 8.), 429; Cann v. Cann, 1 P. Will. 723; Dalston v. Coatsworth, 1 P. Will. 733 ; Hampden v. Hampden, cited 1 P. Will. 733 ; s. c. 1 Bro. Pari. Cas. 250 ; Jones v. Jones, 3 Meriv. 161 ; s. c. 7 Price, 663 ; Bennet t>. Wade, 2 Atk. 264; Webb v. Claverden, 3 Atk. 424 ; Mitf. Eq. PI. by Jeremy, 257 ; Belt's Suppl. to Vesey, 74, 143; Ridgway v. Roberts, 4 Hare, 116; Ryves v. Duke of Wellington, 9 Beavan, 599 ; Gould v. Gould, 3 Story, 516. I use the qualified language of the text, though broader language is often used by ele- mentary writers, who assert that courts of equity have jurisdiction to relieve against all frauds, except in cases of wills. [See Cooper on Eq. PI. 125 ; 1 Hovenden on Frauds, Introd. p. 17.] Lord Hard- wicke, in Chesterfield v. Janssen, 2 Ves. 155, said : " This court has an undoubted jurisdiction to relieve against every species of fraud." Yet there are some cases of fraud, in which equity does not ordinarily grant relief ; as in warranties, misrepresentations, and frauds on the sale of personal property ; but leaves the par- ties to their remedy at law. So also in cases of deceitful letters of credit. See Kussell v Clark's Ex'rs, 7 Cranch, 89. But Lord Eldon has intimated that in such cases relief might also be had in equity ; Evans v. Bicknell, 6 Ves. 182 ; and Mr. Chancellor Kent has affirmed the same doctrine ; Bacon v. Bronson, 7 Johns. Ch. 201. In Hardwick v. Forbes's Adm'rs (1 Bibb, Ky. 212), the court said: "It is a well-settled rule of law, that wherever a matter respects personal chattels, and lies merely in damages, the remedy is at law only, and for these reasons : 1st. Because courts of law are as adequate as courts of chancery, to grant complete and effectual reparation to the party in- jured. 2d. Because the ascertainment of damages is peculiarly the province of a jury." And the court farther suggested, that the same principle applied to a rat- able deduction for fraud in like cases. But that a court of equity might properly interfere in such cases, to set aside and vacate the whole contract, at the instance of a party injured in case of suppressio veri or suggest io falsi ; not entering into the point of damages. See Waters v. Mat- tinglay, 1 Bibb, 244 ; Blaekwell v. Old- ham, 4 Dana, 195. 1 Colt v. Wollaston, 2 P. Will. 156; Stent v. Bailis, 2 P. WiU. 220; Bright v. Eynon, 1 Burr. 396; Chesterfield v. Janssen, 2 Ves. 155 ; Ferson o. Sanger, Davies, 259 ; Evans v. Bicknell, 6 Ves. 182 ; Warner v. Daniels, 1 Wood. & Min. 112. [See Ramshire v. Bolton, L. R. 8 Eq. 294; Hill v. Lane, L. R. 11 Eq. 215; Hoare v. Brembridge, L. R. 14 Eq. 522 ; 6. c. 8 Ch. App. 22 ; Jones v. Bolles, 9 Wal. (U. S.) 364.] a 4 Inst. 84. 8 Stat. Car. 16 I. ch. 10. * Fonbl. Eq. B. 1, ch. 2, § 12 ; 1 Mad. § 184-187.] ACTUAL FRAUD. 185 § 186. It is not easy to give a definition of fraud in the exten- sive signification in which that term is used in courts of equity ; and it has been said, that these courts have, very wisely, never laid down, as a general proposition, what shall constitute fraud, 1 or any general rule, beyond which they will not go upon the ground of fraud, lest other means of avoiding the equity of the courts should be found out. 2 Fraud is even more odious than force ; and Cicero has well remarked : " Cum autem duobus modis, id est, aut vi, aut f raude, fiat injuria ; fraus, quasi vulpeculse, vis, leonis videtur. Utrumque homine alienissimum ; sed fraus odio digna majore." 3 Pothier says that the term fraud is applied to every artifice made use of by one person for the purpose of de- ceiving another. 4 " On appelle Dol toute esp&ce d'artifice, dont quelqu'un se sert pour en tromper un autre." 5 Servius, in the Roman law, defined it thus : " Dolum malum machinationem quandam alterius deeipiendi causa, cum aliud simulatur, et aliud agitur." To this definition Labeo justly took exception, because a party might be circumvented by a thing done without simula- tion ; and, on the other hand, without fraud, one thing might be done, and another thing be pretended. And therefore he defined fraud to be any cunning, deception, or artifice, used to circumvent, cheat, or deceive another. " Dolum malum esse omnem callidi- tatem, fallaciam, machinationem ad circumveniendum, fallendum, decipiendum alterum, adhibitam." And this is pronounced in the Digest to be the true definition. "Labeonis Definitio vera est." 6 § 187. This definition is, beyond doubt, sufficiently descriptive of what may be called positive, actual fraud, where there is an Ch. Pr. 89. [As to the jurisdiction in it, the jurisdiction would be cramped, Massachusetts and New Hampshire, and and perpetually eluded by new schemes, some other States, see ante, § 33, note, which the fertility of man's invention Miller v. Scammon, 52 N. H. 69 ; Learned would contrive." See also 1 Domat, v. Holmes, 49 Miss. 290.] Civil Law, B. 1, tit. 18, § 3, art. 1. i Mortlock v. Buller, 10 Ves. 306. » Cic. de Offie. Lib. 1, ch. 13. 2 Lawley v. Hooper, 3 Atk. 279. Lord * 1 Pothier on Oblig. by Evans, Pt. Hardwicke, in his letter to Lord Kames, 1, ch. 1, art. 3, n. 28, p. 19. of the 30th of June, 1759 (Parke's Hist. 5 Pothier, Traite des Oblig. Pt. 1, ch. of Chanc. p. 508), says: "As to relief 1, n. 28. against frauds, no invariable rules can be 6 Dig. Lib. 4, tit. 3, 1. 1, § 2 ; id. Lib. established. Fraud is infinite ; and were 2, tit. 14, 1. 7, § 9. See also 1 Domat, Civ. a court of equity once to lay down rules, Law, B. 1, tit. 18, § 3, n. 1. See also 1 how far they would go, and no farther, Bell, Comrn. B. 2, ch. 7, § 2, art. 173 ; Le in extending their relief against it, or to Neve v. Le Neve, 3 Atk. 654 ; s. c. 1 Ves. define strictly the species or evidence of 64 ; Ambler, 446. 186 EQUITY JURISPRUDENCE. [CH. VI. intention to commit a cheat or deceit upon another to his injury. 1 But it can hardly he said to include the large class of implied or constructive frauds, which are within the remedial jurisdiction of a court of equity. Fraud, indeed, in the sense of a court of equity, properly includes all acts, omissions, and concealments which involve a breach of legal or equitable duty, trust, or confidence, justly reposed, and are injurious to another, or by which an undue and unconscientious advantage is taken of another. 2 And courts of equity will not only interfere in cases of fraud to set aside acts done ; but they will also, if acts have by fraud been prevented from being done by the parties, interfere, and treat the case exactly as if the acts had been done. 3 § 188. Lord Hardwicke, in a celebrated case, 4 after remarking that a court of equity has an undoubted jurisdiction to relieve against every species of fraud, proceeded to give the following enumeration of the different kinds of frauds. First : Fraud, which is dolus malus, may be actual, arising from facts and circumstances of imposition, which is the plainest case. Secondly : It may be apparent from the intrinsic nature and subject of the bargain itself; such as no man in his senses, and not under delusion,/ would make on the one hand, and as no honest and fair man would accept on the other ; which are inequitable and unconsci- entious bargains, and of such even the common law has taken notice. 5 Thirdly : Fraud, which may be presumed from the cir- cumstances and condition of the parties contracting; and this goes farther than the rule of law, which is, that it must be proved, not presumed. But it is wisely established in the court of chan- cery, to prevent taking surreptitious advantage of the weakness or necessity of another, which knowingly to do is equally against conscience, as to take advantage of his ignorance. Fourthly : Fraud, which may be collected and inferred, in the consideration of a court of equity, from the nature and circumstances of the transaction, as being an imposition and deceit on other persons, not parties to the fraudulent agreement. Fifthly : Fraud, in what • i Mr. Jeremy has defined fraud to be v. Eichards, 13 Pet. 36 ; Damschroeder v. a device, by means of which one party Thias, 51 Mo. 100 ; Johnson v. Hathorn, 2 has taken an unconscientious advantage Abb. (N.Y.) 465; 1 Perry on Trusts, § 171]. of the other! Jeremy on Eq. Jurisd. B. 3 Middleton v. Middleton, 1 Jac. & 3, Pt. 2, p. 358. Walk. 96 ; Lord Waltham's case, cited 2 See 1 Fonbl. Eq. B. 1, ch. 2, § 3, note 11 Ves. 638. (r) ; Chesterfield v. Janssen, 2 Ves. 155, 4 Chesterfield v. Janssen, 2 Ves. 155. 156; Gale w.-Gale, 19 Barbour, 251 ; [Smith 6 See James v. Morgan, 1 Lev. 111. § 187-190.] ACTUAL FRAUD. 187 are called catching bargains with heirs, reversioners, or expectants, in the life of the parents, which indeed seems to fall under one or more of the preceding heads. § 189. Fraud, then, being so various in its nature, and so exten- sive in its application to human concerns, it would be difficult to enumerate all the instances in which courts of equity will grant relief under this head. It will be sufficient, if we here collect some of the more marked classes of cases, in which the principles which regulate the action of courts of equity are fully developed, and from which analogies may be drawn to guide us in the investigation of other and novel circumstances. § 190. Before, however, proceeding to these subjects, it may be proper to observe, that courts of equity do not restrict themselves by the same rigid rules as courts of . law do, in the investigation of fraud, and in the evidence and proofs required to establish it. It is equally a rule in courts of law and courts of equity that fraud is not to be presumed ; but it must be established by proofs. 1 Circumstances of mere suspicion, leading to no certain results, will not, in either of these courts, be deemed a sufficient ground to establish fraud. 2 On the other hand, neither of these courts insists upon positive and express proofs of fraud; but each de- duces them from circumstances affording strong presumptions. But courts of equity will act upon circumstances, as presumptions of fraud, where courts of law would not deem them satisfactory proofs. 3 In other words, courts of equity will grant relief upon the ground of fraud, established by presumptive evidence, which evidence courts of law would not always deem sufficient proof to justify a verdict at law. It is in this sense that the remark of Lord Hardwicke is to be understood, when he said, that " fraud may be presumed from the circumstances and condition of the parties contracting ; and this goes farther than the rule of law, which is, that fraud must be proved, not presumed." i And Lord 1 In 10 Coke, 56, it is laid down, that 2 Trenehard v. Wanley, 2 P. "Will. 166 ; covin shall never be intended or presumed Townsend v. Lowfield, 1 Ves. 35 ; 3 Atk. in at law, if it be expressly averred : Qui 534 ; Walker v. Symonds, 3 Swanst. 61 ; odiosa et inhonesta non sunt in lege prae- Bath and Montague's case, 3 Ch. Cas. 85 ; sumenda, et, in facto, quod se habit ad 1 Madd. Pr. Ch. 208 ; 1 Ponbl. Eq. B. 1, bonum et malum, magis de bono, quam ch. 11, § 8. de malo, prsesumendum est. And this is 3 See Warner v. Daniels, 1 Wood. & in conformity to the rule of the civil law. Min. 103. Dolum ex indiciis perspicuis probari con- 4 Chesterfield v. Janssen, 2 Ves. 155, venit. Cod. Lib. 2, tit. 21, 1. 6. 156 ; [Reed v. Noxon, 48 HI. 323 ; Bullock / 188 EQUITY JURISPRUDENCE. [CH. VI. Eldon has illustrated the same proposition by remarking, that a court of equity will, as it ought, in many cases, order an instru- ment to be delivered up, as unduly obtained, which a jury would not be justified in impeaching by the rules of law, which require fraud to be proved, and are not satisfied, though it may be strongly presumed. 1 [* § 190 a. It is not safe to undertake to define what degree or kind of proof will justify a court of equity in granting relief against fraud. For the proof must satisfy the conscience of the chancel- lor, or court. And no man would deem it prudent to attempt to define the extent of that indispensable qualification in a judge, or a court, — the requisite amount or quality of his sense of justice. And men's views, in weighing evidence, are as various as their forms or their features. All that can be said is, that the proof must be sufficient to satisfy the mind of the triers, whether court or jury, of the existence of fraud. And to do this, it must be sufficient to overcome the natural presumption of honesty and fair dealing. And that is undoubtedly one of considerable force. Hence neither courts nor juries should find fraud, except upon reasonably satisfactory evidence. And juries are no more reluctant to act, in such cases, from circumstances, than judges. A jury is, in general, the better, the fairer, and more competent tribu- nal to investigate a question of fraud, depending upon circum- stances. And besides, if there exists in courts of chancery, a capacity, or right, or duty, or disposition, to find fraud, upon less proof, or different proof, from that which is required in courts of law, a ground of preference between the two jurisdictions is at once established, which was never before claimed, and one of a very invidious character* in its practical operation. It is very common now in courts of equity, to send issues of this character into a court of law, to be there tried by a jury. And in the Eng- lish courts of equity they are sometimes tried by a jury summoned into the court of chancery. 2 § 190 b. The extent of responsibility for a false representation is thus defined in a recent case. 3 Every man must be held respon- v. Narrott, 49 111. 62 ; Waddingham o, the evidence. Strauss v. Kranert, 56 111. Loker, 44 Mis. 132 ; Matter of Vander- 554 ; Farmer v. Calvert, 44 Ind. 209.] veer, 5 C. E. Green (N. J.) 463 ; Mahony i Fullager v. Clark, 18 Ves. 483. v. Hunter, 30 Ind. 246 ; Parker v. Phette- 2 [*Ante, § 72 ; Marksbury v. Taylor, place, 2 Cliff. 70 ; Baker v. Kline, 106 10 Bush, 519. Mass. 61. Fraud may be inferred from 8 Barry v. Croskey, 2 Johns. & H. 21. § 190-192.] ACTUAL FRAUD. 189 sible for the consequences of such an act, upon which any one acts, and so acting suffers loss or injury, provided it appears that the representation was made with the direct intent that it should be so acted upon, and in the manner which occasions the injury or loss, and where such injury or loss is the direct and immediate consequence of the representation so made. 1 ] § 191. One of the largest classes of cases, in which courts of equity are accustomed to grant relief, is where there has been a misrepresentation, or suggestio falsi? It is said, indeed, to be a very old head of equity, that if a representation is made to another person, going to deal in a matter of interest, upon the faith of that representation, the former shall make that representation good, if he knows it to be false. 3 To justify, however, an interposition in such cases, it is not only necessary to establish the fact of mis- representation ; but that it is in a matter of substance, or im- portant to the interests of the other party, and that it actually does mislead him. 4 For, if the misrepresentation was of ■ a trifling or immaterial thing ; or if the other party did not trust to it, or was not misled by it ; or if it was vague and inconclusive in its own nature ; or if it was upon a matter of opinion or fact, equally open to the inquiries of both parties, and in regard to which neither could be presumed to trust the other ; in these and the like cases there is no reason for a court of equity to interfere to grant relief upon the ground of fraud. 5 § 192. Where the party intentionally or by design misrepresents a material fact, or produces a false impression, 6 in order to mis- 1 Collins v. Cave, 6 H. & N. 131 ; that a misrepresentation of the law is Taylor v. Sco ville, 54 Barb. (N. Y. ) 34.] not such misrepresentation as equity will 2 Broderick v. Broderiek, 1 P. Will, relieve against. Reed v. Sidener, 32 Ind. 240 ; Jarvis v. Duke, 1 Vern. 20 ; Evans 373. So a representation that tax title v. Bieknell, 6 Ves. 173, 182. under which a party sells, is good, is not 8 Evans v. Bieknell, 6 Ves. 173, 182. a fraud. Drake v. Latham, 50 111. 270. " Neville v. Wilkinson, 1 Bro. Ch. 546 ; And see that relief will not be given Turner v. Harvey, Jacob, 178 ; 1 Fonbl. where the parties have equal means of Eq. B. 1, ch. 2, § 8 ; Small v. Atwood, 1 information. Rockafellow v. Baker, 41 Younge, 407, 461 ; s. c. in Appeal, 6 Clark Penn. St. 319 ; Brown ». Leach, 107 Mass. & Finnell. 232, 395 ; Hough v. Richard- 364. So in matters of opinion merely, or son, 3 Story, 659. [See Printup v. Port, of a promissory nature. Coil v. Pitts- 40 Ga. 276.]- burg Pem. Col., 40 Penn. St. 445 ; Pike a. 6 See 1 Domat, B. 1, tit. 18, § 3, art. 2 ; Pay, 101 Mass. 134 ; Mooney v. Miller, Trower u. Newcome, 3 Meriv. 704; 2 102 Mass. 217. The death of the de- Kent, Comm. Lect. 39, p. 484 (2d edit.) ; frauded party does not bar the action, if Atwood v. Small, 6 Clark & Finnell. 232, the specific property can be traced. 233 ; s. c. Small v. Atwood, in Court of Ecker v. Lafferty, 3 Pitts. 500.] Exchequer, 1 Younge, 407. [It seems 6 See Laidlaw v. Organ, 2 Wheaton, 190 EQUITY JURISPRUDENCE. [CH. VI. lead another, 1 or to entrap or cheat him, or to obtain an undue advantage of him ; in every such case there is a positive fraud in the truest sense of the terms. 2 There is an evil act with an evil intent ; dolum malum ad circumveniendum. And the misrepresen- tation may be as well by deeds or acts, as by words ; by artifices to mislead, 3 as well as by positive assertions. 4 The civil law has well expressed this, when it says : " Dolo malo pactum fit, quotiens circumscribendi alterius causa, aliud agitur, et aliud agi simula- tur." 5 And again : " Dolum malum a se abesse prsestare venditor debet, qui non tantum in eo est, qui fallendi causS, obscurd loqui- tur, sed etiam, qui insidiose obscure dissimulat." 6 The case here put falls directly within one of the species of frauds enumerated by Lord Hardwicke ; to wit, fraud arising from facts and circum- stances of imposition. 7 § 193. Whether the party, thus misrepresenting a material fact, knew it to be false, or made, the assertion without knowing whether it were true or false, is wholly immaterial; 8 for the affirmation of what one does not know or believe to be true is equally, in morals and law, as unjustifiable as the affirmation of what is known to be positively false. 9 And even if the party 178, 195; Pideock o. Bishop, 3 B. & mitted such a, distinction. Misrepresen- Cressw. 605; Smith o. The Bank of tation of circumstances is admitted, and Scotland, 1 Dow, Pari. 72; Evans v. there is positively a deception." And Bicknell, 6 Ves. 173, 182. he added : " If a man, upon a treaty for 1 See The State v. Holloway, 8 Blackf . any contract, will make a false represen- ts ; [Smith v. Richards, 13 Pet. 36]. tation, by means of which he puts the 2 Atwood v. Small, 6 Clark & Finnell. party bargaining under a mistake upon 232, 233 ; s. c. in Court of Exchequer, 1 the terms of the bargain, it is a fraud. Younge, 407 ; Taylor v. Ashton, 11 Mees. It misleads the parties contracting on the & Welsh. 401; Warner v. Daniels, 1 subject of the contract." [Frenzel ». Wood. & Min. 103. Miller, 37 Ind. 1.] 8 See Chisholm v. Gadsden, 1 Strobh. 8 See Wright v. Snowe, 2 De Gex & 220. Smale, 321. [See Sharp v. Mayor, 40 4 3 Black. Comm. 165 ; 2 Kent, Comm. Barb. 256 ; Thompson v. Lee, 31 Ala. 292 ; Lect. 39; p. 484 (2d edit.); Laidlaw v. Bankheadu. Alloway,6 Cold. (Tenn.) 56; Organ, 2 Wheaton, 195; 1 Dow, Pari. Twitchell v. Bridge, 42 Vt. 68; Wilcox 272. v. Iowa Wesleyan University, 32 la. 367 ; 5 Dig. Lib. 2, tit. 14, 1. 7, § 9. Beebe v. Knapp, 28 Mich. 53 ; Graves v. « Dig. Lib. 18, tit. 1, 1. 43, § 2 ; Po- Lebanon Bank, 10 Bush, 23 ; Stone v. Co- thier de Vente, n. 234, 237, 238. veil, 29 Mich. 359 ; Du Flon v. Powers, 14 7 Chesterfield v. Janssen, 2 Ves. 155. Abb. Prac. 391 ; Frenzel v. Miller, 37 Ind. In Neville v. Wilkinson, 1 Bro. Ch. 546, 1 ; Elder v. Allison, 45 Ga. 13.] the lord chancellor (Thurlow) said: "It 9 Ainslie v. Medlycott, 9 Ves. 21; has been said, here is no evidence of act- Graves v. White, Freem. 57. See also ual fraud on R. ; but only a combination Pearson v. Morgan, 2 Bro. Ch. 389 ; Fos- to defraud him. A court of justice ter v . Charles, 6 Bing. 396; s. c. 7 Bing. would make itself ridiculous, if it per- 150; Taylor v. Ashton, 11 Mees. & § 192M93 a.] ACTUAL FRAUD. 191 innocently misrepresents a material fact by mistake, it is equally conclusive, for it operates as a surprise and imposition upon the other party. 1 [§ 193 a. The same general principles apply, whether the fraud was perpetrated by the party directly interested, or by an agent, if the act in which the fraud was committed be adopted by the prin- cipal. If the latter persists in taking the benefit of his agent'? fraud, it is immaterial whether the fraud was originally concocted by the principal or by the agent ; the principal will be held impli- cated to the fullest extent, if he adopts the acts of his agent. 2 Welsh. 401 ; Smith v. Mitchell, 6 Georgia, 458; Hazard u. Irwin, 18 Pick. 85. See also Doggett v. Emerson, 3 Story, C. C. 733 ; Hough u. Richardson, id. 691 ; Ma- son v. Crosby, 1 Wood. & Minot, 352; Smith v. Babcock, 2 id. 246 ; Hammatt v. Emerson, 27 Maine, 308. 1 See Pearson v. Morgan, 2 Bro. Ch. 389 ; Burrows o. Locke, 10 Ves. 475 ; De Manville a. Compton, 1 Ves. & B. 355; Ex parte Carr, 3 Ves. & B. Ill; 1 Marsh, on Insur. B. 1, ch. 10, § 1 ; Car- penter v. American Ins. Co., 1 Story, 57 ; Taymon v. Mitchell, 1 Md. Ch. Dec. 496. In Pearson v. Morgan; 2 Bro. Ch. 385, 388, the case was, that A., being inter- ested in an estate in fee, which was charged with £8,000 in favor of B., was applied to by C, who was about to lend money to B., to know if the £8,000 was still a subsisting charge on the estate. A. stated that it was, and C. lent his money to B. accordingly ; it appearing afterwards that the charge had been sat- isfied, it was, nevertheless, held, that the money lent was a charge on the lands in the hands of A.'s heirs, because he either knew, or ought to have known, the fact of satisfaction, and his representation was a fraud on C. [So of innocent mis- representations in a prospectus. Smith v. Reese River Co., L. R. 2 Eq. 264. But such misrepresentation must he as to es- sence. Kennedy v. Panama, &c, Co., L. R. 2 Q. B. 580. And see further as to fraud in prospectus, Denton v. MacNiel, L. R. 2 Eq. 352 ; Henderson v. Lacan, L. R. 5 Eq. 249 (misrepresentation in prospectus, that directors and then-" friends had taken " a large portion " of the shares, held, ground 'for relief) ; Ship v. Crosskill, L. R. 10 Eq. 73 (misrepresentation in prospec- tus, that half the capital had been sub- scribed for, when, in fact, it had not been at that time, but had been at time of plaintiff's subscription, held, not a case for relief) ; Holdredge v. Webb, 69 Barb. 8. And if one actually believes what he asserts, it seems he is not liable as for deceit, whatever the effect may he as to giving party deceived a right to rescind. Weed v. Case, 55 Barb. (N. Y.) 534; Wheeler v. Randall, 48 III. 182 ; Marshall v. Gray, 39 How. Pr. (N. Y.) 172 ; Marsh v. Talker, 40 N. Y. 562 ; Hartford Ins. Co. v. Matthews, 102 Mass. 221. But where one represents as known by him what is matter of opinion only, that is actionable fraud. Cabot v. Christie, 42 Vt. 121; Fisher v. Mellen, 103 Mass. 503. And that it is the suppression or misrepresen- tation of a material fact, and not the intent to defraud, that gives the right to relief in equity. See per Lord Romilly in Peck v. Gurney, L. R. 13 Eq. 79, p. 113 ; Wilcox v. Iowa/ &c, University, 32 la. 367. Statements of what one does not believe to be true, and what is, in fact, not true, are fraudulent. Twitchell o. Bridge, 42 Vt. 68.] 2 [Fitzsimmons v. Joslin, 21 Vermont, 129, 140-142, where the subject is fully examined, and the case of Cornfoot v. Fowke, 6 M. & W. 358, is questioned. It is here said: That the attempt to discriminate, between the existence of the scienter in the agent, and in the princi- pal, seduced the court into a wrong con- clusion. Lord St. Leonards, in his book on Vendors, p. 718, says, the case of Cornfoot v. Fowke is "open to much observation." And in National Exchange Co. v. Drew, 2 Macqueen, 103, 108, 144, this case is discussed, and attempted to 192 EQUITY JURISPRUDENCE. [CH. VI. And in a recent case, 1 the same doctrine is thus broadly as- serted : where once a fraud has been committed, not only is the person who has committed the fraud precluded from deriving any benefit from it, but every innocent person is so likewise, unless he has innocently acquired a subsequent interest. For a third person, by seeking to derive any benefit under such a transaction, or to retain any benefit resulting therefrom, becomes partiee.ps criminis, however innocent of the fraud in its inception. But where the alleged fraud by a vendor of real estate consisted in a fraudulent concealment of a right of way over the premises, proof of conceal- ment by the vendor's agent has been held not sufficient to set aside the purchase ; there must be proof of direct personal knowledge and concealment by the principal himself. And constructive knowledge of an agent, or knowledge acquired by him, otherwise than as agent for such sale, of a fact, the non-communication of which is made the ground of relief against the purchase, does not at all affect the contract. 2 ] § 194. These principles are so consonant to the dictates of nat- ural justice, that it requires no argument to enforce or support them. The principles of natural justice and sound morals do, in- deed, go further ; and require the most scrupulous good faith, can- dor, and truth, in all dealings whatsoever. But courts of justice be reconciled with established principles.] contract is brought about by fraudulent See Fuller v. Wilson, 3 Ad. & Ell. N. 8. 58. representations of a third party, not an See Coddingtqn v. Goddard, 16 Gray, agent, it cannot be avoided for fraud, 436. The law seems to be that the though, under some circumstances, there principal is liable for the fraud of might be ground for relief under the his agent in the course of his employ- head of mistake. See Fisher v. Boody, ment, as for any other tort. Udell v. 1 Curtis, C. C. K. 206. So a grantor can- Atherton, 7 H. & N. 172 ; Barwick v. not set aside a deed for fraud practised English Joint Stock Bank, L. R. 2 Ex. upon him by his co-grantors without (Ex. Ch. ) 259. See also Sutton v. Wil- showing that grantee had notice or gave ders, L. E. 12 Eq. 373 (trustees held liable no value. Boot v. Bancroft, 8 Gray, 619; for fraud of their solicitors); Earl of Wright v. Flinn, 33 la. 159; Cum- Dundonald v. Masterman, L. R. 7 Eq. mings v. Thompson, 18 Minn. 246 ; Lep- 504 (solicitor held liable for fraud of his per v. Nuttman, 35 Ind. 384. To claim partner). It seems that the same doc- under a contract tainted with fraud is to trine applies to agents of corporations, adopt the fraud. Jsegley v. Lindsay, 67 and that the corporation cannot hold to Pa. St. 217 ; Mendenhall u. Treadway, his contract a stockholder drawn into 44 Ind. 131. taking shares by misrepresentations of 1 Scholefield v. Templer, Johnson, directors. Western Bank of Scotland v. Eng. Ch. 155; Hartopp v. Hartopp, 21 Addie, L. R. 1 H. L. (Sc.) 145; Fogg v. Beavan, 259. Griffin, 2 Allen, 1 ; Shawmut M. F. Ins. 2 Wilde v. Gibson, 1 House of Lords Co. v. Stevens, 9 Allen, 332 ; Boland v. Cases, 605.] Whitman, 33 Ind. 64. But where the § 19-3 a-195.] actual fraud. 193 generally find themselves compelled to assign limits to the exercise of their jurisdiction, far short of the principles deducible ex cequo et bono ; and, with reference to the concerns of human life, they endeavor to aim at mere practical good and general convenience. Hence many things may be reproved in sound morals, which are left without any remedy, except by an appeal in foro conscientiee to the party h ims elf. 1 Pothier has expounded this subject with his usual force and sterling sense. " As a matter of conscience " (says he), "any deviation from the most exact and scrupulous sincerity is repugnant to the good faith that ought to prevail in contracts. Any dissimulation concerning the object of the con- tract, and what the opposite party has an interest in knowing, is contrary to that good faith ; for since we are commanded to love our neighbor as ourselves, we are not permitted to conceal from him any thing which we should be unwilling to have had con- cealed from ourselves under similar circumstances. But in civil tribunals a person cannot be allowed to complain of trifling devia- tions from good faith in the party with whom he has contracted. Nothing but what is plainly injurious to good faith ought to be there considered as a fraud, sufficient to impeach a contract ; such as the criminal manoeuvres and artifices employed by one party to induce the other to enter into the contract. And these should be fully, substantiated by proof. Dolum non nisi perspicuig indieiis probari eonvenit." 2 § 195. The doctrine of law, as to misrepresentation, being in a practical view such as has been already stated, it may not be without use to illustrate it by some few examples. In the first place, the misrepresentation must be of something material, con- stituting an inducement or motive to the act or omission of the other party, and by which he is actually misled to his injury. 3 Thus, if a person owning an estate, should sell it to another, representing that it contained a valuable mine, which constituted an induce- ment to the other side to purchase, and the representation were 1 Pothier de Vente, n. 234, 235, 239. is and what is not a material misrepre- 2 1 Pothier on Oblig. by Evans, p. 19, sentation, see McAleer v. Horsey, 35 Md. n. 30 ; Cod. Lib. 2, tit. 21, L 6 ; Taylor v. 439, in which it is said that if the trans- Fleet, 4 Barbour, S. C. 107 ; Irvine u. action would not have been completed, if Kirkpatrick, 3 Eng. Law & Eq. 17. it had not been for the misrepresenta- 8 [Slaughter v. Genson, 13 Wall. 379] ; tion r then it is material ; but if it would Phillips v. Duke of Bucks, 1 Vera. 223 ; have made no difference in the result, it [Bowman v. Carruthers, 40 Ind. 90]; 1 cannot be deemed material.] Fonbi Eq. B. 1, ch. 2, § 8. [As to what eq. jub. — vol. I. 13 194 EQUITY JURISPRUDENCE. [CH. VI. utterly false, the contract for the sale, and the sale itself, if com- pleted, might be avoided for fraud ; for the representation would go to the essence of the contract. 1 So, where one wishing to sell a public-house falsely represented that the monthly receipts amounted to such a sum. 2 So, of a representation that the estate was in the county of A., when it was, in fact, in another county. 3 But if he should represent that the estate contained twenty acres of woodland or meadow, and the actual quantity was only nine- teen acres and three-quarters, there, if the difference in quantity would have made no difference to the purchaser in price, value, or otherwise, it would not, on account of its immateriality, have avoided the contract. 4 [So, a representation that a certain spring of water was on the land, but which was found to be just without the limits, will not avoid the contract, the spring not being a material inducement to the purchaser. 5 ] So, if a person should sell a ship to another, representing her to be five years old, of a certain tonnage, coppered and copper-fastened, and fully equipped, and found with new sails and rigging ; either of these representa- tions, if materially untrue, so as to affect the essence or value of the purchase, would avoid it. But a trifling difference in either of these ingredients, in no way impairing the fair value or price, or not material to the purchaser, would have no such effect. Thus, for instance, if the ship was a half ton less in size, was a week more than five years old, was hot copper-fastened in some unim- portant place, and was deficient in some trifling rope, or had some sails which were in a very slight degree worn ; these differences would not avoid the contract ; for under such circumstances, the difference must be treated as wholly inconsequential. 6 [So, of a misrepresentation by a horse-dealer, as to the place where he pur- 1 See Lowndes v. Lane, 2 Cox, 363. 2 Philmore v. Hood, 6 Scott, 827 ; [So, where the capacity of a mill is mis- [Thorn v. Helmer, 4 Abb. N. Y. App. Dec. represented. Sieveking v. Litzler, 31 Ind. 408]. 13. A false representation of solvency 3 Best v. Stow, 2 Sandf . Ch. 298. is ground for rescission. Poxworth v. i See the Morris Canal Co. v. Emmett, Bullock, 44 Miss. 457. A false state- 9 Paige, 168 ; Stebbins v. Eddy, 4 Mason, ment by vendor, relied upon by vendee, 414 ; 2 Preem. 107 ; Winston v. Gwath- to the effect that he has examined title mey, 8 B. Monroe, 19 ; Twypont v. War- and found it good, will avoid the sale, cup, Finch, 310 ; Winch v. Winchester, Babcock v. Case, 6.1 Penn. St. 427. But 1 Ves. & Beam. 375. [But see Elliot v. the misrepresentation of the legal effect Bean, 9 Ala. 772.] of the language of a deed, it being known 6 [Winston v. Gwathmey, 8 B. Monroe, to both parties, will not avoid the deed. 19.] Smither .-. Calvert, 44 Ind. 242 ; Upton 6 See 1 Domat, B. 1, tit. 2, § 11, art. v. Englehardt, 3 Biss. 343.] 12. § 195-197.] ACTUAL FRAUD. 195 chased the horse, offered by him for sale. 1 ] The rule of the civil law would here apply: Res bond fide vendita propter minimam causam inempta fieri non debet. 2 Indeed, it may be laid down as a general rule, that when the sale is fair, and the parties are equally innocent, and the thing is sold in gross, by the quantity, by esti- mation and not by measurement, a deficiency will not ordinarily entitle a party to relief, either by an allowance for the deficiency, nor by a rescission of the contract. 3 Thus, for example, the sale of a farm by known boundaries, containing by estimation a cer- tain number of acres, will bind both parties, whether the farm contains more or less. 4 § 196. So, if an executor of a will should obtain a release from a legatee, upon a representation that he had no legacy left him by the will, which was false ; 6 or, if a devisee should obtain a release from the heir-at-law, upon a representation that the will was duly executed, 6 when it was not; in each of these cases the release might be set aside for fraud. 7 But if, in point of fact, in the first case, the legacy, though given in the will, had been revoked by a codicil ; or, in the second case, if the will had been duly executed, although not at the time, or in the manner, or under the circum- stances, stated by the devisee ; the misrepresentation would not avoid the release, because it is immaterial to the rights of either party. § 197. In the next place, the misrepresentation must not only be in something material, but it must be in something in regard to which the one party places a known trust and confidence in the other. 8 It must not be a mere matter of opinion, 9 equally open to both parties for examination and inquiry, where neither party is presumed to trust to the other, but to rely on his own judgment. Not but that misrepresentation, even in a matter of opinion, may be relieved against as a contrivance of fraud, in cases of peculiar 1 [Geddes v. Pennington, 5 Dow, 159.] 239, 240 ; Pusey v. Desbouvrie, 3 P. Will. 2 Dig. Lib. 18, tit. 1, 1. 54 ; 1 Domat, 318, 320. if. 1, tit. 2, § 11, art. 3. 7 [As to setting aside a release on ac- 8 Stebbins v. Eddy, 4 Mason, 414 ; count of fraud, see Ferris v. Crawford, Morris Canal Co. v. Eramett, 9 Paige, 2 Denio, 595.] 168. 8 See Smith v. The Bank of Scotland, 4 Ibid ; ante, § 144 a. [But see ante, 1 Dow, Pari. 275 ; Laidlaw v. Organ, § 141. And see O'Connell v. Duke, 29 2 Wheaton, 178, 195; Evans w.Bicknell, Tex. 299.] 6 Ves. 173, 182 to 192. 5 Jarvis v. Duke, 1 Vern. 19. 9 See Person v. Sanger, 1 Wood. & 6 Broderick v. Broderick, 1 P. Will. Min. 146; Warner v. Daniels, id. 98. 196 EQUITY JURISPRUDENCE. [CH. VI. relationship or confidence, or where the other party has justly re- posed upon it, and has been misled by it. But, ordinarily, matters of opinion between parties, dealing upon equal terms, though falsely stated, are not relieved against ; because they are not pre- sumed to mislead, or influence the other party, when each has equal means of information. Thus, a false opinion, expressed in- tentionally by the buyer to the seller, of the value of the property offered for sale, where there is no special confidence, or relation, or influence between the parties, and each meets the other on equal grounds, relying on his own judgment, is not sufficient to avoid a contract of sale. 1 In such a case, the maxim seems to apply : Scientia, utrinque par, pares contrahentes facit. 2 § 198. But it would be otherwise, where a party knowingly places confidence in another, and acts upon his opinion, believing 1 But see Wall ». Stubbs, 1 Mad. 80 ; Cadman v. Horner, 18 Ves. 10; 2 Kent, Com. Lect. 39, p. 485 (4th edit.). A mis- taken opinion of the value of property, if honestly entertained, and stated as opinion merely, unaccompanied by any assertion or statement untrue in fact, can never be considered as a fraudulent mis- representation. Hepburn o. Dunlop, 1 Wheaton, 189; Irvine v. Kirkpatrick, 3 Eng. Law & Eq. 17. 2 1 Marshall on Insur. B. 1, ch. 11, § 3, p. 473 ; 1 Domat, B. 1, tit. 2, § 11, art. 3, 11, 12. Mr. Chancellor Kent has ex- pounded the doctrine on this subject with admirable clearness and strength, in the following passage of his Commentaries. (Vol. 2, Lect. 39, p. 484, 485, 4th edit.) " When, however, the means of informa- tion relative to facts and circumstances, affecting the value of the commodity, are equally accessible to both parties, and neither of them does or says any thing tending to impose upon the other, the dis- closure of any superior knowledge, which one party may have over the other, as to those facts and circumstances, is not requisite to the validity of a. contract. There is no breach of any implied confi- dence, that one party will not profit by his superior knowledge as to facts and circumstances, open to the observation of both parties, or equally within the reach of their ordinary diligence; because neither party repose in any such confi- dence, unless it be specially tendered or required. Each one, in ordinary cases, judges for himself, and relies confidently, and perhaps presumptuously, upon the sufficiency of his own knowledge, skill, and diligence. The common law affords to every one reasonable protection against fraud in dealing; but it does not go to the romantic length of giving indemnity against the consequences of indolence and folly, or a careless indifference to the ordinary and accessible means of infor- mation. It reconciles the claims of con- venience with the duties of good faith, to every extent compatible with the inter- ests of commerce. This it does by re- quiring the purchaser to apply his at- tention to those particulars which may be supposed within the reach of his ob- servation and judgment ; and the vendor to communicate those particulars and defects which cannot be supposed to be immediately within the reach of such attention. If the purchaser be wanting in attention to these points, where atten- tion would have been sufficient to protect him from surprise or imposition, the maxim caveat emptor ought to apply. Even against this maxim he may provide by requiring the vendor to warrant that which the law would not imply to be warranted ; and if the vendor be wanting in good faith, fides servanda is a rule equally enforced at law and in equity." See also 1 Domat, B. 1, tit. 2, § 11. § 197-199.] ACTUAL FRAUD. 197 it to be honestly expressed. 1 Thus if a man of known skill and judgment in paintings should sell a picture to another, represent- ing it to have been painted by some eminent master, as, for instance, by Rubens, Titian, or Correggio, and it should be false ; there can be no doubt that it would be a misrepresentation, for which the sale might be avoided. 2 And the same principle would apply, in a like case, if he should falsely state his opinion to be, that it was a genuine painting of a great master, with an intent to influence the buyer in the purchase, and the latter, placing con- fidence in the skill, and judgment, and assertion of the seller, should complete the purchase on the faith thereof. But if the seller should truly represent the painting to be of such a master, and add, that it once belonged to a nobleman, or was fixed in a church (which circumstances he knew to be untrue) ; in such a case, if the representation of these collateral circumstances had no real tendency in the mind of the buyer to enhance or influence the purchase, it would not avoid the contract. 3 § 199. Nor is it every wilful misrepresentation even of a fact, which will avoid a contract upon the ground of fraud, if it be of such a nature that the other party had no right to place reliance on it, and it was his own folly to give credence to it ; for courts of equity, like courts of law, do not aid parties who will not use their own sense and discretion upon matters of this sort. 4 This may be illustrated by a case at law, where a party, upon making a purchase for himself and his partners, falsely stated to the seller, to induce him to the sale, that his partners would not give more for the property than a certain price. It was held, that no action would lie at law for a deceitful representation of this sort. Lord Ellenborough on this occasion expressed himself in the following language, which presents many suggestions appbicable to the sub- 1 See Shaeffer v. Sleade, 7 Blackf. late case of Keates v. Cadogan, 2 Eng. 178. [See Haygarth v. Wearing, L. K. 12 Law and Eq. 321, it is in harmony with Eq. 320 ; Hubbell v. Meigs, 50 N. Y. 480 ; the current of authorities.] Post, § 212 a. Wakeman v. Dalley, 51 N. Y. 27 ; Martin i See Trower v. Newcome. 3 Meriv. v. Jordan, 60 Me. 531 ; Holbrook v. Con- 704 ; Scott v. Hanson, 1 Simons, 13 ; Fen- nor, 60 Me. 578.] tone v. Brown, 14 Ves. 144 ; 2 Kent, 2 See 1 Pothier on Oblig., n. 17 to 20, Comm. Lect. 39, p. 484, 485 (4th edit.) ; and note (a) ; Atwood ». Small, 6 Clark id. 486, 487, note (6) ; Davis v. Meeker, 5 & Finnell. 232, 233 ; s. c. 1 Younge, 407. Johns. 354 ; Hervey v. Young, Yelv. 21, 8 See 2 Kent, Comm. Lect. 39, p. 482, and Metcalf's note ; 1 Domat, B. 1, tit. 2, 483 (4th edit.) ; Hill v. Gray, 1 Starkie, § 11, art. 11, 12 ; Sherwood v. Salmon, 352. [Hill v. Gray has sometimes been Day, 128. See Juzan v. Toulmin, 9 Ala. doubted ; but, as it is explained in the 662 ; [Slaughter v. Gerson, 13 Wall. 379]. 198 EQUITY JURISPRUDENCE. [CH. VI. ject now under consideration. " If " (said he) " an action be maintainable for such a false representation of the will and pur- pose of another, with reference to the proposed sale, should not an action be also at least equally maintainable for a false repre- sentation of the party's own purpose ? But can it be contended, that an action might be maintained against a man for representing that he would not give, upon a treaty of purchase, beyond a cer- tain sum, when it could be proved that he had said he would give much more than that sum? And supposing, also, that he had upon such treaty added, as a reason for his resolving not to give beyond a certain sum, that the property was, in his judgment, damaged in any particular respect ; and supposing, further, that it could be proved he had, just before the giving such reason, said he was satisfied it was not so damaged ; would an action be main- tainable for this untrue representation of his own purpose, backed and enforced by this false reason given for it ? And, in the case before us, does the false representation, made by the defendant, of the determination of his partners, amount to any thing more than a falsely alleged reason for the limited amount of his own offer? And if it amount to no more than this, it should be shown, before we can deem this to be the subject of an action, that, in respect of some consideration or other, existing between the parties to the treaty, or upon some general rule or principle of law, the party treating for a purchase is bound- to allege, truly, if he state at all, the motives which operate with him for treating or for making the offer he in fact makes. A seller is unquestionably liable to an action of deceit, if he fraudulently represent the quality of the thing sold to be other than it is, in some particulars, which the buyer has not equal means with himself of knowing ; or if he do so in such a manner as to induce the buyer to forbear making the inquiries, which, for his own security and advantage, he would otherwise have made. But is a buyer liable to an action of deceit for misrepresenting the seller's chance of sale, or the probability of his getting a better price for his commodity, than the price which such proposed buyer offers ? I am not aware of any case, or recognized principle of law, upon which such a duty can be considered as incumbent upon a party bargaining for a purchase. It appears to be a false representation in a matter merely gratis dictum by the bidder, in respect to which the bidder was under no legal pledge or obligation to the seller for the precise accuracy § 199-200 a.] ACTUAL FRAUD. 199 and correctness of his statement* and upon which, therefore, it was the seller's own indiscretion to rely ; and for the consequences of which reliance, therefore, he can maintain no action." 1 § 200. A court of equity would, under the like circumstances, probably hold a somewhat more rigorous doctrine, at least if the party appeared to have been materially influenced by the represen- tation to his disadvantage ; and, if it did not avoid the contract, it wou'd refuse a specific performance of it. 2 If the seller of a farm should falsely affirm, at the sale, that it had been valued by two persons at the price, and the assertion had induced the buyer to purchase it, the contract would certainly not be enforced in equity ; and, upon principle, it would seem to be void. So, if a vendor, on a treaty for the sale of property, should make representations which he knows to be false, the falsehood of which, however, the purchaser has no means of knowing, but he relies on them, a court of equity will rescind the contract entered into upon such treaty, although the contract may not contain the misrepresentations. 3 But, then, in all such cases, the court will not rescind the contract without the clearest proof of the fraudulent misrepresentations, and that they were made under such circumstances as show that the contract was founded upon them. 4 § 200 a. On the other hand, if the purchaser, choosing to judge for himself, does not avail himself of the knowledge or means of knowledge open to him or his agents, he cannot be heard to say that he was deceived by the vendor's misrepresentations ; for the rule is caveat emptor, and the knowledge of his agents is as bind- ing on him as his own knowledge. 5 It is his own folly and laches not to use the means of knowledge within his reach, and he may properly impute any loss or injury, in such a case, to his own negligence and indiscretion. 6 Courts of equity do not sit for the 1 Vernon v. Keys, 12 East, 637, 638 ; paper is admissible as proof of represen- Sugden on "Vendors (,7th edit.), p. 6. See tation. Bradbury u. Bardin, 35 Conn, also Davis v. Meeker, 5 Johns. 354; 2 577.] Kent, Coram. Lect. 39, p. 486, and note 6 Atwood v. Small, 6 Clark & Finnell. (6) ; id. 487 (4th edit.) ; Maddeford v. 232, 233. [See post, § 216, note (a) ; The Austwick, 1 Sim. 89; Curry v...Keyser, Distilled Spirits, 11 Wall. (U. S.) 356. But 30 Ind. 214 ; Drake v. Latham, 50 111. 270 ; in cases of fraudulent representation, or [Slaughter v. Gerson, 13 Wall. 379] . wilful concealment, it is no answer that 2 2 Kent, Comm. Lect. 39, p. 486, 487, the truth might have been learned by and note (b), (4th edit.) ; Buxton v. Lister, inquiry. Central Railw. of Venezuela v. 3 Atk. 386. Kisch, L. R. 2 H. L. 99. David v. Park, 8 Atwood v. Small, 6 Clark & Finnell. 103 Mass. 501. See post, § 400 c] 232, 233. 6 [^ Spalding v. Hedges, 2 Barr, 240, * Ibid. [An advertisement in a news- it was held that, if a party made false 200 EQUITY JURISPBUDENCE. [CH. VI. purpose of relieving parties, under ordinary circumstances, who refuse to exercise a reasonable diligence or discretion. § 201. To the same ground of unreasonable indiscretion and confidence, may be referred the common language of puffing and commendation of commodities, which, however reprehensible in morals, as gross exaggerations or departures from truth, are never- theless not treated as frauds which will avoid contracts. In such cases the other party is bound, and indeed is understood, to exer- cise his own judgment, if the matter is equally open to the obser- vation, examination, and skill of both. To such cases the maxim applies : Simplex commendatio non obligat. The seller represents the qualities or value of the commodity, and leaves them to the judgment of the buyer. 1 The Roman law adopted the same doc- trine. " Ea quae commendandi causa in venditionibus dicuntur, si palam appareant, venditorem non obligant ; veluti, si dicat servum speciosum, domum bene sedificatam." 2 But, if the means of knowl- edge are not equally open, the same law pronounced a different doctrine. " At, si dixerit, hominem literatum, vel artificem prae- stare debet ; nam hoc ipso puris vendidit." 3 The misrepresentation enhances the price. The same rule will apply if any artifice is used to disguise the character or quality of the commodity ; 4 or to mislead the buyer at the sale ; such as using puffers 5 and under- bidden at an auction, or other sale ; or holding out false colors, and thereby taking the buyer by surprise. 6 § 202. In the next place, the party must be misled by the mis- representation ; for, if he knows it to be false, when made, it cannot be said to influence his conduct ; and it is his own indiscretion, and representations of a fact as to land situ- hare given. See Tomlinson v. Savage, ated in a distant country, it is immaterial 6 Ired. Eq. 430 ; Latham v. Morrow, 6 B. that the other party had correct sources Monroe, 630 ; Veazie v. Williams, 3 of information.] Story, 623; Wolfe v. Luyster, 1 Hall, 1 2 Kent, Comm. Lect. 39, p. 485 (4th 146 ; National Fire Ins. Co. v. Loomis, 11 edit.). Paige, 431.] See post, § 293. [On the 2 Dig. Lib. 18, tit. 1, 1. 43. other hand, any trick to suppress bidding 8 Ibid. is fraudulent. Turner v. Adams, 46 Mis. * 2 Kent, Comm. Lect. 39, p. 482, 483, 95.] 484 (4th edit.) ; Turner v. Harvey, Jacob, 6 Bramley u. Alt, 3 Ves. 624 ; Smith v. 178. Clarke, 12 Ves. 483 ; Twining v. Morrice, 6 [But quaere, whether " using puffers " 2 Bro. Ch. 330 ; Marquis of Townshend is alone sufficient to rescind a sale, unless v. Stangroom, 6 Ves. 338 ; Bexwell v. the purchaser was induced thereby to Christie, Cowper, 395 ; 1 Fonbl. Eq. B. 1, pay more than the article was worth ; or ch. 4, § 4, note (x) ; Pickering v. Dawson, at least more than he would otherwise 4 Taunt. 785. § 200 a-203 i.] actual fraud. 201 not any fraud or surprise, of which he has any just complaint to make under such circumstances. 1 § 203. And in the next place, the party must have been misled to his prejudice or injury ; for courts of equity do not, any more than courts of law, sit for the purpose of enforcing moral obliga- tions, or correcting unconscientious acts, which are followed by no loss or damage. It has been very justly remarked, that, to support an action at law for a misrepresentation, there must be a fraud committed by the defendant, and a damage, resulting from such fraud to the plaintiff. 2 And it has been observed with equal truth, by a very learned judge in equity, that fraud and damage coupled together will entitle the injured party to relief in any court of justice. 3 § 203 a. In the next place, the defrauded party may by his sub- sequent acts, with full knowledge of the fraud, deprive himself of all right to relief as well in equity as at law.* Thus, for example, if with full knowledge of the fraud, he should settle the matter in relation to which the fraud was committed, and give a release to the party who has defrauded him, he would lose all title to legal and equitable relief. 5 The like rule would apply, if he knew all the facts, and with such full information he continued to deal with the party. 6 [* § 203 b. In a late case, where this subject is a good deal ex- 1 See Pothier de Vente, n. 210. whatever he may hare received. Van 2 Vernon v. Keys, 12 East, 637, 638. Liew v. Johnson, 6 Thomp. & C. (N. See Hagee v. Grossman, 31 Ind. 223. Y.) 648, 4 Hun, 415; Bassett «. Brown, 3 Bacon v. Bronson, 7 Johns. Chan. 105 Mass. 551. If no money is paid for a 201 ; Fellows.w. Lord Gwydyr, 1 Simons, thing, but a credit is given, the subject of 63 ; Turnbull v. Gadsden, 2 Strobh. Eq. the sale must still be tendered back, and 14. notice' given that the sale is revoked, but 4 [So if one induced to take shares by even then a suit cannot be maintained, fraudulent misrepresentations in prospec- but the litigation would arise over the tus, after discovering the fraud orders validity of the credit. Degraw v. El- his shares sold, he cannot have his name more, 50 N. T. 1. If the sale is without taken from list of contributories. Ex parte consideration, it may be revoked without Briggs, L. K. 1 Eq. 483. See, as to laches tender. Trueman i>. Beagan, 76 Ark. in repudiating contract, Smith's case, L. 273;] R. 2 Ch. App. 604 ; Northrop v. Bushnell, 6 Parsons v. Hughes, 9 Paige, 591. 38 Conn. 498. So where creditors had See § 306. lain by and let grantee, in a fraudulent 6 Vigers v. Pike, 3 Clark & Finnell. deed, buy in valid incumbrances with his 545, 630. See Jackson u. Summorville, own money, and go on and improve the 1 Harris, 359 ; Dingley v. Eobinson, 6 property, they were held estopped. Bobb Greenl. 127 ; Duncan v. McCullough, 4 v. Woodward, 50 Mis. 95. The party de- S. & R. 483; Adams o. Shelby, 10 Ala. frauded must use due diligence in repu- 478 ; Galloway v. Holmes, 2 Dougl. 330. diating the contract, and tender back 202 EQUITY JURISPRUDENCE. [CH. VI. amined, and the English cases from the earliest date reviewed, and much of the learning of the civil law discussed, at the bar, in the Court of Appeal, before the lords justices, it was held, that mis-, representations, to constitute sufficient grounds for setting aside a purchase, must be material, as being of such a nature as, if true, to add to the value ; must not be evidently mere conjectural state- ments, and must be made without a belief in their truth, and with- out reasonable grounds for such belief. And where advertisements for the sale of shares in a mine contained unfounded statements, but the purchaser had not relied upon them, and had had oppor- tunities of judging of their accuracy, it was held no sufficient ground for rescinding the contract. In suits for rescinding con- tracts on the ground of fraud, particularly where the subject is of variable value, it is the duty of the plaintiff to put forward his complaint at the earliest possible period. 1 But where the particu- lars of a sale stated that the premises were in the occupation of C, at a rental of £42 per annum, and the fact proved to be that C. was not tenant to the vendors, but occupied the premises adversely to them ; it was held, that this amounted to such bad faith, as to justify the court in releasing the party from his contract. 2 And where a purchaser, under a decree, discovered that a will had been misstated in the abstract, so as to conceal an important defect in the title, he having before accepted the title and paid the purchase- money ; he was, upon petition, before conveyance, discharged from his purchase, and the purchase-money ordered to be repaid. 3 But as the solicitor had neglected to examine the original will, notwith- standing the abstract showed that it was of a very peculiar nature, and he had been reminded of the necessity of doing so, by the counsel who advised upon the abstract, it was considered that he was not entitled to interest, and that he must pay the costs of all parties, except the person who had the conduct of the sale. 4 § 203 c. And in another case 6 of still later date, before the 1 [* Jennings v. Broughton, 5 DeG., 505; Stewart v. AUiston, 1 Mer. 33. See M. & G. 126. See also Bartlett o. Sal- also Harrison v. Coppard, 2 Cox, 318. mon, 6 De G., M. &. G. 33; post, § 1537 ; 6 New Brunswick & Canada Railw. & Farebrother v. Gibson, 1 DeGex & Jones, Land Co. v. Conybeare, 6 Law T. n. s. 602. 109; s. c. 9 Ho. Lds. Cas. 711. It is here 2 Lachlan v. Reynolds, Kay, 52. said that the bill must show, not merely 8 M'Culloch u . Gregory, 1 Kay & of what the alleged fraud consists, but Johnson, 286. See also Ward v. Trathen, how it was effected. Making unfounded 14 Simons, 82. allegations of fraud basis of claim for 4 Deverell v. Lord Bolton, 18 Vesey, relief will, in general, prevent relief on § 203 5-203 /.] actual fraud. 203 House of Lords, it is said that misrepresentation, entitling to relief in equity, must be as to matter of fact, and not merely a conclusion of opinion. And it is here further said, that when a case is constituted of fraud, it should be most accurately and fully stated. A mere general statement, that something has been done by, or obtained from, a party, under the influence of fraud, is not sufficient ; it must be shown of what it consists, and how it has been effected. And when such a charge is made and fails of proof, it ought to fail with the ordinary penalty of the court, directing the party who makes it without ground to indemnify his antagonist in costs. § 203 d. Where property is bought at an under price, through the misrepresentation of an agent who derived no pecuniary advantage from the transaction, the principal is responsible. And where the same plaintiff had been induced to part with his prop- erty, at such undervalue, at two different times, through the misrepresentation of two different agents of the same principal, one bill may be brought to set aside both transactions, although in themselves wholly distinct, and the same will not be demurra- ble for multifariousness. 1 § 203 e. Brokers who sell their own property under the delusion upon the mind of the purchaser that they are sold on behalf of other parties, whereby the purchaser is induced either to make the purchase, which he otherwise would not have done, or to give a higher price than he would otherwise have done, are guilty of such a fraud as will induce a court of equity to set the contract aside. 2 § 203/. There is a late case in Kentucky 3 where the question arose how far the seller of a store of goods, at cost and carriage, was bound by an assertion that " it amounted to three thousand five hundred dollars," when as afterwards ascertained it did not exceed two thousand dollars, where the view of the court seems to us exceedingly just and sensible. It was here held, that where other grounds. Price v. Berrington, 3 1 Walsham v. Stainton, 9 Jur. n. b. Maen. & G. 486 ; Eyre v. Potter, 15 How. 1261 ; s. c. before V. C. Wood, 1 Hen. U. S. 42, p. 56 ; Fisher v. Boody, 1 Curtis, & M. 322, 8 Law T. u. 8. 633, 1 De G. & C. C. E. 206, p. 211 ; otherwise it would S. 678. seem where there is no express charge of 2 Maturin o. Tredinnick, 9 Law T. fraud, but only of facts from which it is n. s. 82. inferable, and which are not proved. 3 Morehead v. Eades, 3 Bush, 121. See Waters v. Mynn, 14 Jur. 341 ; and see. also per contra, Pish v. Cleland, 33 111. 238 ; Espey v. Lake, 16 Jur. 1106. Banta v. Palmer, 47 111. 99. 204 EQUITY JURISPRUDENCE. [CH. VI. a confiding vendee had no fitting or reasonable opportunity to examine sufficiently for himself the goods constituting a retail store, and decided on his own judgment, a positive assurance and assertion by the vendor, " that the cost and carriage of the goods amounted to three thousand five hundred dollars," when in fact it did not exceed two thousand dollars, may be either actual or constructive fraud according to circumstances. When the vendor knew or believed that it was not true, the affirmation was actually fraudulent ; and even if he believed it to be true, it might be con- structively fraudulent ; for unless he knew it to be true, his duty was, in good faith, to express candidly his mere opinion, which ought not to disarm the vendee or lull his prudent vigilance, and on which opinion he therefore acts at his peril, and, therefore, a positive affirmation, under such circumstances, if untrue, or if the vendor did not know it to be true, was both reckless and deceptive, and the party should be held bound by it to the extent of making good any deficiency afterwards proved to- exist, provided the asser- tion was made expecting to influence the conduct of the other party, and it did have the desired effect. If every court in the land had the nerve to adopt such searching and practical views upon this subject, honesty and fair dealing would be greatly promoted by it. 1 1 See the opinion of the court by Mr. disregard of the most obvious precau- Justiee Robertson. But where the party tions to secure his own interests. The complaining had full opportunity to courts should not be required to be more examine the subject-matter of the con- careful to protect the interests of a party tract, and did so examine and trusted to than he is to protect himself, perhaps ; his own judgment and not the representa- but all attempts to excuse courts from tions of the other party, the courts of affording relief, in clear cases of fraud equity can afford no relief, even where and injustice, upon the ground that the there were material facts concealed, party did not exercise all the vigilance Stevens ». Orman, 10 Fa. 9. But this will which every one now sees he might have depend somewhat upon the nature of the done, have a very lame and unsatisfac- facts concealed, and how far the plaintiff tory relish about them, while, on the con- was really misled to his own detriment trary, no one is ever heard to complain and without fault on his part. The facts of courts affording relief in such cases, of the case last cited were somewhat simi- unless it be the parties guilty of such lar to those in Morehead v. Eades, supra, fraudulent misconduct, and they gener- and the court refused relief here on the ally praise the court for what they must ground that the facts were open to the in their inner consciousness despise, inspection of both parties. But it is There is a late case in Pennsylvania, questionable how far that should excuse Hanner v. Fisher, 58 Penn. St. 453, where the party for obtaining an unjust advan- one attempted to collect a debt of his tage, either by suppression of the truth debtor who was either unable or unwill- or suggestion of falsehood, unless the ing to pay it, by resorting to the device other party is guilty of unwarrantable of assigning the debt to an agent, and § 203 /, 203 . Ballard, 1 Ves. Jr. 215,220; <;. Price, 1 De G., M. & G. 308 ; Wilkinson Hawes v. Wyatt, 3 Bro. Ch. 158 ; Jeremy v. Fawkes, 9 Hare, 592 ; Schuylkill Co. v. on Equity Jurisd. B. 3, Pt. 2, ch. 3, § 1 ; Copley, 10 Am. L. Beg. 783. Equity 2 Eq. Abridg. 183, pi. 2, Gilb. Eq. 9; 3 follows the law as to what is duress. P. Will. 294, note (c); Attorney-General Miller v. Miller, 62 Penn. St. 486. Threat v. Sothon, 2 Vera. 497. of litigation is no ground for relief. § 238 a, 239.] ACTUAL FRAUD. 235 justum est, si per vim vel fraudem petatur, malum et injustum efficitur." 1 On this account courts of equity watch with extreme jealousy all contracts made by a party while under imprisonment ; and, if there is the slightest ground to suspect oppression or imposition in such cases, they will set the contracts aside. 2 Cir- cumstances, also, of extreme necessity and distress of the party, although not accompanied by any direct restraint or duress, may, in like manner, so entirely overcome his free agency as to justify the court in setting aside a contract made by him, on account of some oppression, or fraudulent advantage, or imposition, attendant upon it. 3 1 3 Co. 78. 2 Roy o. Duke of Beaufort, 2 Atk. 190; Nichols v. Nichols, 1 Atk. 409; Hin- ton v. Hinton, 2 Ves. 634, 635; Falkner v. O'Brien, 2 B. & Beatt. 214; Griffith v. Spratley, 1 Cox, 333; Underhill v. Hor- wood, 10 Ves. 219; Attorney-General v. Sothon, 2 Vern. 497. s See Gould v. Okeden, 3 Bro. Pari. 560 ; Bosanquet v. Dashwood, Cas. temp. Talbot, 37 ; Proof v. Hines, Cas. temp. Talb. Ill ; Hawes v. Wyatt, 3 Bro. Ch. .156; Pickett v. Loggon, 14 Ves. 215; Beasley u. Magrath, 2 Sch. & Lefr. 31, 35 ; Carpenter v. Elliot, cited 2 Ves. Jr. 494 ; Parmer v. Parmer, 1 House of Lords Cases, 724; Wood v. Abrey, 3 Mad. 417; Ramsbottom o. Parker, 6 Mad. 6 ; Fitz- gerald v. Rainsford, 1 B. & Beatt 37, note (d); Underhill .;. Horwood, 10 Ves. 219; 1 Ponbl. Eq. B. 1, ch. 2, § 9, note (c) ; Crowe v. Ballard, 1 Ves. Jr. 215, 220; Hugueniri v. Baseley, 14 Ves. 273 ; New- land on Contracts, ch. 22, p. 362, &c. ; id. p. 365, &c. The doctrine of the common law, upon the subject of avoiding con- tracts upon the ground of mental weak- ness, or force, or undue influence, does not seem, in any essential manner, to differ from that adopted in the Roman law, or in the law of modern continental Europe. Thus we find in the Roman law, that contracts may be avoided, not only for incapacity, but for mental im- becility, the use of force, or the want of liberty in regard to the party contracting. Ait Praetor, Quod metus causa gestum erit, ratum non habebo. Dig. Lib. 4, tit. 2, 1. 1. But then the force, or fear, must be of such a nature as may well overcome a firm man. Metum accipiendum, Labeo dicit, non quemlibet timorem, sed majoris malitatis. Dig. Lib. 4, tit. 2, 1. 5. The party must be intimidated by the appre- hension of some serious evil of a present and pressing nature. Metum non vani hominis sed qui merito et in hominem constantissimum cadat. Dig. Lib. 4, tit. 2, 1. 6. He must act, Metu majoris mali- tatis ; and feel, that it is immediate ; Me- tum presentum accipere debemus, non suspicionem inf erendi ejus. See Dig. Lib. 4, tit. 2, 1. 9; 1 Domat, Civil Law, B. 1, tit. 18, § 2, art. 1 to 10. Pothier gives his assent to this general doctrine ; but he deems the civil law too rigid in requiring the menace or force to be such as might in- timidate a constant or firm man ; and very properly thinks, that regard should be had to the age, sex, and condition of the par- ties. Pothier on Oblig. n. 25. Mr. Evans thinks that any contract produced by the actual intimidation of another, ought to be held void, whether it were the result of personal infirmity merely, or of such circumstances as might ordinarily pro- duce the like effect upon others. 1 Evans, Pothier on Oblig. n. 25, note (a), p. 18. The Scottish law seems to have fol- lowed out the line of reasoning of the Roman law with a scrupulous deference and closeness. Ersk. Inst. B. 4, tit. 1, § 26. The Scottish law also puts the case of imposition from weakness upon a clear ground. "Let one be ever so subject to imposition, yet, if he has understanding enough to save himself from a sentence of idiocy, the law makes him capable of managing his own affairs, and conse- . quently his deeds, however hurtful they 236 EQUITY JURISPRUDENCE. [CH. VI. [* § 239 a. So where one had conceived the idea that a deposed clergyman of the Church of England, who had subsequently become the head of the Agapemone, or Free Love, was in reality the Taber- nacle of the Most High, and the abode of His Spirit, his own spirit having become extinct, although entirely sane upon every other point, and under such delusion conveyed all her estate, consisting of a considerable sum invested in the public stocks, and subse- quently died at such Agapemone, it was held, on a bill filed by her relatives and next of kin, that the defendant obtained such stocks by undue influence, and he was decreed to convey them to the heirs, and pay all the costs of the suit, notwithstanding he declared in his answer, that the conveyance to him was made wholly without solicitation or knowledge on his part. 1 ] § 240. The acts and contracts of infants, that is, of all persons under twenty-one years of age (who are by the common law deemed infants), are a fortiori, treated as falling within the like predica- ment. For infants are by law generally treated as having no capacity to bind themselves, from the want of sufficient reason and discernment of understanding; and, therefore, their grants and those of lunatics are, in many respects, treated as parallel both in law and reason. 2 There are, indeed, certain excepted cases, in • which infants are permitted by law to bind themselves by their acts and contracts. But these are all of a special nature ; as, for in- stance, infants may bind themselves by a contract for necessaries, suitable to their degree and quality ; 8 or by a contract of hiring and services for wages ; 4 or by some act which the law requires may be to himself, must be effectual, un- 1066 ; 8. c. 2 Gift. 246. See also Stewart less evidence be brought, that they have v. Hubbard, 3 Jones, Eq. 186 ; Graham v. been drawn or extorted from him by un- Little, id. 152 ; Davis v. McNalley, 5 Sneed, fair practices. Yet where lesion (injury) 683.] in the deed and facility in the grantor 2 1 Ponbl. Eq. B. 1, ch. 2, § 4. concur, the most slender circumstances of s Zouch v. Parsons, 3 Burr. 1801 ; 1 fraud or circumvention are sufficient to Eonbl. Eq. B. 1, ch. 2, § 4, and notes (y) set it aside." Ersk. Inst. B. 4, tit. 1, and (a) ; Co. Litt. 172 a. § 27. Mr. Bell has also stated the same * Wood v. Eenwick, 10 Mees. & Welsh, principle in the Scottish law with great 195. [In America, the doctrine is, that clearness. There may be in one of per- contracts to work and labor for wages feet age a degree of weakness, puerility, made by an infant are voidable, like any or prodigality, which, although not such other of his contracts. See Nickerson v. as to justify a verdict of insanity, and Easton, 12 Pick. 112 ; Vent v. Osgood, 19 place him under guardianship, as insane, Pick. 572; Francis v. Pelmet, 4 Dev. & may yet demand some protection for Batt. 498 ; Peters v. Lord, 18 Conn. 337 ; him against unequal or gratuitous aliena- Bingham on Infancy (Bennett's edit.), tion. 1 Bell, Comm. 139. See Harvey p. 90, and note 3. And see Regina ». v. Mount, 8 Beavan, 439. Lord, 12 Q. B. Rep. 757.] i [*Nottidge v. Prince, 6 Jur. n. s. § 239 a-242.] actual feadd. 237 them to do. 1 And, generally, infants are favored by the law, as well as by equity, in all things which are for their benefit, and are saved from being prejudiced by any thing to their disadvantage. 2 But this rule is designed as a shield for their own protection ; it is not allowed to operate as a fraud or injustice to others ; at least not where a court of equity has authority to reach it in cases of meditated fraud. 3 § 241. In regard to the acts of infants, some are voidable and some are void ; and so, also, in regard to their contracts, some are voidable and some are void. Where they are utterly void, they are from the beginning mere nullities, and incapable of any opera- tion. But where they are voidable, it is in the election of the infant to avoid them or not, which he may do, when he arrives at full age. In this respect, he is by law differently placed from idiots and lunatics ; for the latter, as we have seen, are not, or at least may not, at law, be allowed to stultify themselves. But an infant may, at his coming of age, avoid or confirm any voidable act or contract at his pleasure. In general, where a contract may be for the benefit or to the prejudice of an infant, he may avoid it as well at law as in equity. Where it can never be for his benefit, it is utterly void. 4 And in respect to the acts of infants of a more solemn nature, such as deeds, gifts, and grants, this distinction has been insisted on, that such as do take effect by delivery of his hand are voidable ; but such as do not so take effect are void. 5 § 242. But, independently of these general grounds, it is clear, that contracts made and acts done by infants in favor of persons knowing their imbecility and want of discretion, and intending to take advantage of them, ought, upon general principles, to be held void, and set aside, on account of fraud, circumvention, imposition, or undue influence. And it is upon this ground of an inability to give a deliberate and binding consent, that the nullity of such acts and contracts is constantly put by publicists and civilians. 6 Infans non multum afurioso distat. 1 People v. Moores, 4 Demo, 518; (y), (z), (b); Zouch v. Parsons, 3 Burr. McCall v. Parker, 13 Met. 372. 1801, 1807 ; 1 American Leading Cases, 2 1 Fonbl. Eq. B. 1, ch. 2, § 4, and tit. Infancy. [* See Parley v. Woodburn, notes (y) and (a). 2 Stock. Ch. 96.] 8 See 1 Ponbl. Eq. B. 1, ch. 2, § 4, & Zouch v. Parsons, 3 Burr. 1794; note (z) ; Zouch v. Parsons, 3 Burr. 1802 ; Perkins, § 12. See 8 American Jurist, 1 American Leading Cases, tit. Infancy. 327 to 330. [See Monumental Building Assn. v. Her- 6 See ante, § 222, 223; Ayliffe, Pand. man, 33 Md. 128.] B. 2, tit. 38, p. 216, 217. * 1 Fonbl. Eq. B. 1, ch. 2, § 4, notes 238 EQUITY JURISPRUDENCE. [CH. VI. § 243. In regard to femes covert, the case is still stronger ; for, generally speaking, at law they have no capacity to do any acts, or to enter into any contracts ; and such acts and contracts are treated as mere nullities. And in this respect equity generally follows the law. 1 This disability of married women proceeds, it is said, upon the consideration, that, if they were allowed to bind themselves, the law having vested their property in their husbands, they would be liable on their engagements, without the means of answering them. And if they were allowed to bind their hus- bands, they might, by the abuse of such a power, involve their husbands and families in ruin. 2 But perhaps the more exact state- ment would be that it is a fundamental policy of the common law, to allow no diversity of interests between husband and wife ; and for this purpose it is necessary to take from the wife all power to act for herself without his consent ; and to disable her, even with his consent (for her own protection against his influence), from becoming personally bound by any act or contract whatsoever, done in pais? Courts of equity have, indeed, broken in upon this doctrine ; and have, in many respects, treated the wife as capable of disposing of her own separate property, and of doing other acts, as if she were a, feme sole.* In cases of this sort, the same prin- ciples will apply to the acts and contracts of a feme covert, as would apply to her as a feme sole, unless the circumstances give rise to the presumption of fraud, imposition, unconscionable ad- vantage, or undue influence. 5 [* § 243 a. In a late English case, 6 the Court of Common Pleas decided, two of the judges against the opinion of Chief Justice 1 1 Fonbl. Eq. B. 1, ch. 2, § 6. equity to a settlement, see In re Lush's 2 1 Fonbl. Eq. B. 1, ch. 2, § 6, note (A). Trusts, L. R. 4 Ch. App. 691 ; Sharpe v. 8 See Comyns, Dig. Baron and Feme, Foy, L. R. 4 Ch. App. 35. And that her D. 1, E. 1 to 3, H. N. 0. P. Q. ; id. Chan- fraud may prevent her setting aside her eery, 2 M. 1 to 16. deed on ground of her infancy, see 4 See on this subject the learned notes Schmitheimer v. Eiseman, 7 Bush (Ky.), of Mr. Fonblanque in 1 Fonbl. Eq. B. 1, 298. And that fraudulent representation ch. 2, § 6, notes (h) to (s) ; Clancy on that she is sole will bind her separate Rights, &c, of Husband and Wife ; and property in equity, see Vaughan v. Van- Roper on Husband and Wife ; Com. Dig. derstegan, 2 Drew. 363 ; McHenry v. Chancery, 2 M. 1 to 16. Davies, L. R. 10 Eq. 88. And see as to 6 See 1 Fonbl. Eq. B. 1, ch. 2, § 8 ; frauds by married women, Jones v. Dalbiac v. Dalbiac, 16 Ves. 115. Kearney, 1 Dr. & Warr. 134 ; Hobday 6 [* Wright v. Leonard, 5 Law T. N. s. v. Peters, 28 Beav. 354. But that the 110 ; s. c. 11 C. B. n. s. 258 ; s. o. 8 Jur. fraud of a married woman will not estop N. s. 415. For cases where fraud by mar- her at law, see Lowell v. Daniels, 2 Gray, ried woman was held ground for denying 161. § 243-244.J actual fraud. 239 Erie, that an action at law will lie against husband and wife, for the fraudulent representation by the wife that forged bills were the genuine signatures of the husband, and thereby obtaining a dis- count of the bills. And in another case, 1 the Court of Exchequer were equally divided in opinion, upon a case of fraud committed through the innocent instrumentality of an agent, ignorant of the facts, and where the principal gave no directions, and did not in any way participate in the commission of the fraud committed for his benefit, and the avails of which came to his use, through the action of the innocent agent. If such a case was to be determined in a court of morals, or of honor, there would seem to be but slight ground for difference of opinion in regard to the responsi- bility of the principal. 2 ] § 244. Of a kindred nature to the cases already considered-,- are cases of bargains of such an unconscionable nature, and of such gross inequality, as naturally lead to the presumption of fraud, im- position, or undue influence. This is the sort of fraud to which Lord Hardwicke alluded, in the passage already cited, 3 when he said, that they were such bargains that no man in his senses and not under delusion would make, on the one hand, and as no honest and fair man would accept, on the other, being inequitable and unconscientious bargains. 4 Mere inadequacy of price, or any other inequality in the bargain, is not, however, to be understood as constituting, per se, a ground to avoid a bargain in equity. 6 For 1 Udell v. Atherton, 7 Jur. n. s. 777. Chancellor Wigram said : " Now with 2 Fitzsimmons v. Joslin, 21 Vt. 129, respect to the adequacy of the considera- where it is fully discussed.] tion alone, considered apart from the 8 Ante, § 188 ; Mitf . Eq. PI. by Jeremy, alleged improvidence in the manner of 132, 133, 134 ; Roosevelt a. Fulton, 2 selling, I certainly understand the rule of Cowen, 129; McDonald v. Neilson, 2 the court to be that, even in ordinary Cowen, 139. eases, and a fortiori in cases of sales by * Chesterfield v. Janssen, 2 Ves. 155 ; public auction, mere inadequacy of con- 1 Fonbl. Eq. B. 1, ch. 2, § 9, note (e) ; sideration is not a ground even for refus- Harvey v. Mount, 8 Beavan, 439. ing a decree for specific performance of s Griffith v. Spratley, 1 Cox, 383; an unexecuted contract (White v. Da- Copis v. Middleton, 2 Mad. 409; Collier mon, ex parte Latham), and still less can v. Brown, 1 Cox, 428 ; Low v. Barchard, it be a ground for rescinding an executed 8 Ves. 133 ; Western v. Kussel, 3 "Ves. & contract. The only exception which I Beam. 180 ; Naylor v. Winch, 1 Sim. & believe can be stated, is, where the inade- Stu. 565 ; 1 Fonbl. Eq. B. 1, ch. 2, § 9, quacy of consideration is so gross, as of note (d) ; Osgood u. Franklin, 2 Johns, itself to prove fraud or imposition on the Ch. 1. [Nor to reopen biddings at a sale part of the purchaser. Fraud in the pur- under order of court. Dimock's estate, chaser is of the essence of the objection 3 Penn. L. J. R. 317 ; Borell v. Dann, 2 to the contract in such a case. The case Hare, 440, 450. In this case, Mr. Vice- must, however, be strong, indeed, in 240 EQUITY JURISPRUDENCE. [CH. VI. courts of equity, as well as courts of law, act upon the ground that every person who is not, from his peculiar condition or circum- stances, under disability, is entitled to dispose of his property in such manner and upon such terms as he chooses ; and whether his bargains are wise and discreet, or profitable or unprofitable, or otherwise, are considerations, not for courts of justice, but for the party himself to deliberate upon. § 245. Inadequacy of consideration is not, then, of itself, a dis- tinct principle of relief in equity. The common law knows no such principle. The consideration, be it more or less, supports the contract. Common sense knows no such principle. The value of a thing is what it will produce ; and it admits of no precise stand- ard. It must be in its nature fluctuating, and will depend upon ten thousand different circumstances. One man, in the disposal of his property, may sell it for less than another wOuld. He may sell it under a pressure of circumstances, which may induce him to part with it at a particular time. If courts of equity were to unravel all these transactions, they would throw every thing into confusion, and set afloat the contracts of mankind. 1 Such a con- sequence would, of itself, be sufficient to show the inconvenience and impracticability, if not the injustice, of adopting the doctrine that mere inadequacy of consideration should form a distinct ground for relief. [* § 245 a. This subject is considerably discussed in a late case, before the House of Lords, 2 where it is decided, that the fact that the deed incorrectly recites the consideration of the contract on which the conveyance was made, will not warrant a suit in equity to set aside the contract, but only to reform the conveyance. And where no fiduciary relation exists between the parties dealing for the sale and purchase of an estate, mere inadequacy of considera- which a court of justice shall say, that a breach of trust in fixing so low a reserved purchaser at a public auction, between bidding as £900; and (as I hare already whom and the vendors there has been no observed) that the purchaser was bound previous communication affecting the to have ascertained that a breach of trust fairness of the sale, is chargeable with had not been committed in that respect fraud or imposition, only because his bid- before he accepted the conveyance." ding did not greatly exceed the amount 1 Per Lord Ch. Baron Eyre, in Griffith of the vendor's reserved bidding. I am v. Spratley, 1 Cox, 383 ; 1 Mad. Pr. Ch. perfectly satisfied that the plaintiff's case 213, 214 ; Warner v. Daniels, 1 Wood. & cannot be sustained upon the ground Min. 110. of mere inadequacy. Another principle 2 Harrison ». Guest, 8 Ho. Lds. Cas. must be introduced. It must be made 481. out that the assignees were guilty of a § 244-247.] actual fraud. 241 tion, or irregularity in the statement of it in the conveyance, is not sufficient to impeach the contract, so as to induce a court of equity to set it aside.] § 246. Still, however, there may be such an unconscionableness or inadequacy in a bargain, 1 as to demonstrate some gross imposi- tion or some- undue influence ; 2 and in such cases courts of equity ought to interfere, upon the satisfactory ground of fraud. 3 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. 4 And where there are other ingredients in the case, of a suspicious nature, or peculiar relations between the parties, gross inadequacy of price must necessarily furnish the most vehement presumption of fraud. 6 § 247. The difficulty of adopting any other rule, which would not, in the common intercourse and business of human life, be found productive of serious inconvenience and endless litigation, is conceded by civilians and publicists ; and, for the most part, they seem silently to abandon cases of inadequacy in bargains where there is no fraud, to the forum of conscience, and morals, and religion. Thus, Domat, after remarking that the law of nature 1 See Hamet v. Dundas, 4 Barr, 178. of a reversionary interest, not so great 2 See Barnett v. Spratt, 4 Iredell, Eg. as to shock the moral sense, was not 171. cause for setting aside sale where there 8 Ihid. ; Gartside v. Isherwood, 1 Bro was no fraud. Mayo v. Carrington, 19 Ch. App. 558, 560, 561. [In Erwin v. Gratt. (Va.) 74. So where property was Parham, 12 How. U. S. 197, it was held sold under a trustdeed for about two- that a purchase of a debt of $260,000, for thirds of its value. Weld v. Rees, 48 111. 0, at a sheriff's sale,was not necessarily 428. But where mistake or accident is fraudulent and void, for inadequacy of combined with inadequacy, equity will price.] set aside the sale. Mitchell v. Jones, 50 4 Coles v. Trecothick, 9 "Ves. 246 ; Mis. 438 (partition sale) ; Kloepping v. Underhill v. Harwood, 10 Ves. 219; Copis Stellmacher, 6 C. E. Green (N. J.), 328 v. Middleton, 2 Mad. 409; Stillwell v. (sheriff's sale); Newland v. Gaines, 1 Wilkinson, Jacob, 280 ; Peacock v. Evans, Heisk. (Tenn.) 720; 1 Perry on Trusts, 16 Ves. 512 ; Gwynne v. Heaton, 1 Bro. § 187.] Ch. 9; Osgood v. Franklin, 2 Johns. Ch. fi Ibid. ; 1 Fonbl. Eq. B. 1, ch. 2, § 9, 1, 23; s. c. 14 Johns. 527. [* See Butler note (e) ; id. § 10, and notes (g) and (/<) ; v. Haskell, 4 Desaus. 651; Wright v. id. § 11; id. ch. 4, § 26; 1 Mad. Pr. Ch. Wilson, 2 Yerger, 294; Deaderiek v. 212,213,214; Wormack v. Rogers, 9 Geo. Watkins, 8 Humph. 520. In Howard 60; How o. Weldon, 2 Ves. 616, 518; v. Edgell, 17 Vt. 9, the general question Com. Dig. Chancery, 3 M. 1 ; Huguenin of presumptive fraud resulting from in- v. Baseley, 14 Ves. 273. [So where inad- adequacy of price, connected with other equacy is coupled with relation of physi- circumstances, is extensively discussed cian and patient. Cadwallader v. West, both by the court and counsel. [So it 48 Mis. 483.] has been held that inadequacy of price bq. jur. — vol. I. 16 242 EQUITY JURISPRUDENCE. [CH. VI. obliges us not to take advantage of the necessities of the seller, to buy at too low a price, adds : " But because of the difficulties in fixing the just price of things, and of the inconveniences, which would be too many and too great, if all sales were annulled, in which the things were not sold at their just value, the laws con- nive at the injustice of buyers, except in the sale of lands, where the price given for them is less than half of their value." 1 So that, in the civil law, sales of personal property are usually without redress ; and even sales of immovable property are in the same predicament, unless the inadequacy of price amounts to one-half the value : a rule purely artificial, and which must leave behind it many cases of gross hardship and unconscionable advantage. The civil law, therefore, in fixing a moiety, and confining it to immov- able property, admits, in the most clear manner, the impractica- bility of providing for all cases of this nature. " Rem majoris pretii (says the Code) si tu, vel pater tuus, minoris distraxerit ; humanum est, ut vel pretium te restituente emptoribus, f undum venundatum recipias, auctoritate judicis intercedente ; vel si emptor elegerit, quod deest justo pretio, recipias ; " 2 thus laying down the broadest rule of equity and morals, adapted to all cases. But the law-giver, struck with the unlimited nature of the proposition, immediately adds, in the same law, that the party shall not be deemed to have sold at an undervalue, unless it amounts to one-half. " Minus autem pretium esse videtur, si nee dimidia pars veri pretii soluta sit ; " s a logic not very clear and indisputable. 4 And yet the civil law was explicit enough in denouncing fraudulent bargains. " Si pater tuus per vim coactus domum vendidit ; ratum non habebitur, quod non bond fide gestum est. Malse fidei emptio irrita est. 5 Ad rescindendam venditionem, et malae fidei probationem, hoc solum non sufficit, quod, magno pretio f undum comparatum, minoris dis- tractum esse commemoras." 6 So that we see, in this last passage, the very elements of the doctrine of equity on this subject. 1 1 Domat, Civil Law, B. 1, tit. 2, § 3, bargains. Quemadmodum in emendo et 9, art. 1. See also Heinecciu9, Elem. I. N. vendendo naturaliter concessum est, quod et G. § 352 ; id. § 340. , pluris sit, minoris emere, quod minoris 2 Cod. Lib. 4, tit. 44, 1. 2 ; id. 1. 9 ; sit, pluris vendere. Et ita invicem se cir- Heineec. Elem. J. N. and N. § 340, 352 ; cumscribere, ita in locationibus quoque post, § 248. et conditionibus juris est. Dig. Lib. 19, 3 Cod. Lib. 4, tit. 44, 1. 2; id. 1. 9; tit. 2, 1. 22, § 3 ; 1 Domat, Civil Law, B. 1, 1 Domat, Civil Law, B. 1, tit. 2, § 9; tit. 18, p. 247. 1 Fonbl. Eq. B. 1, ch. 2, § 10, note (/). 5 Cod. Lib. 4, tit. 44, 1. 1, 4, 8. 4 In another p'ace the civil law, in re- « Cod. Lib. 4, tit. 44, 1. 4 ; id. 1. 8, 10. lation to sales, seems plainly to wink out See 1 Domat, B. 1, tit. 18, Vices of Cove- of sight the immorality of inadequate nants, p. 247. § 247-250.] ACTUAL FRAUD. 243 § 248. Pothier, too, of whom it has been remarked, that he is generally swayed by the purest morality, says : " Equity ought to preside in all agreements. Hence it follows, that, in contracts of mutual interest, where one of the contracting parties gives or does something, for the purpose of receiving something else, as a price and compensation for it, an injury suffered by one of the contracting parties, even when the other has not had recourse to any artifice to deceive him, is alone sufficient to render such con- tracts vicious. For as equity, in matters of commerce, consists in equality, when that equity is violated, as when one of the par- ties gives more than he receives, the contract is vicious for want of the equity which ought to preside in it." He immediately adds : " Although any injury whatever renders contracts inequi- table, and consequently vicious, and the principle of moral duty (le for interieur) induces the obligation of supplying the just price ; yet persons of full age are not allowed in point of law to object to their agreements as being injurious, unless the injury be excessive ; a rule wisely established for the security and liberty of commerce, which requires that a person shall not be easily per- mitted to defeat his agreements ; otherwise we should not venture upon making any contract, for fear that the other party, imagining himself to be injured by the terms of it, would oblige us to follow it by a lawsuit. That injury is commonly deemed excessive which amounts to more than a moiety of the just price. And the person who has suffered such an injury may, within ten years, obtain letters of rescission for annulling the contract." x § 249. After such concessions we may well rest satisfied with the practical convenience of the rule of the common law, which does not make the inequality of the bargain depend solely upon the price, but, upon the other attendant circumstances which demonstrate imposition, or some undue influence. 2 The Scottish law has adopted the same practical doctrine. 3 § 250. This part of the subject may be concluded by the re- mark that courts of equity will not relieve in all cases, even of very gross inadequacy, attended with circumstances which might otherwise induce them to act, if the parties cannot be placed in statu quo ; as, for instance, in cases of marriage settlements ; for the court cannot unmarry the parties. 4 1 Pothier on Oblig. n. 33, 34, by Evans ; « Erskine, Inst. B. 4, tit. 1, § 27 ; ante, ante, § 347. § 247 ; note (2), p. 262. 2 1 Eonbl. E(j. B. 1, ch. 2, § 10. * 1 Mad. Pr. Ch. 215 ; North v. Ansall, 2 P. Will. 619. 244 EQUITY JURISPRUDENCE. [CH. VI. § 251. Cases of surprise, and sudden action without due delibera- tion, may properly be referred to the same head of fraud or im- position. 1 An undue advantage is taken of the party under circumstances which mislead, confuse, or disturb the just result of his judgment, and thus expose him to be the victim of the artful, the importunate, and the cunning. It has been very justly re- marked by an eminent writer, that it is not every surprise which will avoid a deed duly made. Nor is it fitting, for it would occa- sion great uncertainty, and it would be impossible to fix what is meant by surprise ; for a man may be said to be surprised in every action which is not done with so much discretion as it ought to be. 2 The surprise here intended must be accompanied with fraud and circumvention, 3 or at least by such circumstances as demon- 1 See ante, § 120, note (1) ; How v. Weldon, 2 Ves. 516. Mr. Baron Powel, in the Earl of Bath and Montague's case (3 Ch. Cas. 56), used the following lan- guage : " It is said that this is a deed that was obtained by surprise and circumven- tion. Now, I perceive this word surprise is of a very large and general extent. They say, that if the deed be not read to or by the party, that is a surprise ; nay, the mistake of a counsel that draws the deed, either in his recitals or other things, that is a surprise of a counsel, and the sur- prise of counsel must be interpreted the surprise of the client, &c. If these things be sufficient to let in a court of equity, to set aside deeds found by verdict to be good in law, then no man's property can be safe. I hardly know any surprise, that should be sufficient to set aside a -deed after a verdict, unless it be mixed up with fraud, and that expressly proved." Lord Chief Justice Treby, in the same case (p. 74), said : " As to the first point of surprise, &c., I confess I am still at a loss for the very notion of surprise; for I take it to be either falsehood or forgery, that is, though I take it they would not use the word, in this case, fraud, if that be not the meaning of it, to be something done unawares, nor with all the precau- tion and deliberation, as possibly a deed may be done. Here was a case cited not long ago, &c, out of the civil law, about surprise, &c. A man was informed by his kinsman that his son was dead, and so got him to settle his estate upon him. This is called in the civil law, surreptio, &c. Now the civilians define that thus : Sur- reptio est cum per f alsam rei narrationem, aliquid extorquetur, when a man will, by false suggestion, prevail upon another to do that which otherwise he would not have done. And I make no doubt that equity ought to set aside that, but then this is probably called a fraud." See Lord Holt's opinion in the same case (p. 103). The lord keeper (Lord Somers), in the same case, said (p. 114) : " Now, for this word surprise, it is a word of a gen- eral signification, so general and so un- certain, that it is impossible to fix it. A man is surprised in every rash and indis- creet action, or whatsoever is not done with so much judgment as it ought to be. But I suppose the gentlemen who use that word in this case mean such surprise as is attended and accompanied with fraud and circumvention. Such a surprise may, indeed, be a good ground to set aside a deed so obtained in equity, and hath been so in all times. But any other surprise never was, and I hope never will be, because it will introduce such a wild uncertainty in the decrees and judgments of the court, as will be of greater consequence than the relief in any case will answer for." See ante, § 120, note (1). [For a case where a marriage contracted in jest was declared void, see McClurg v. Terry, 6 C. E. Green 225. But where a party executed a deed without reading it, relief was denied. Watson u. Planters' Bank, 22 La. Ann. 14.] 2 1 Eonbl. Eq. B. 1, ch. 2, § 8. » Id. ; 1 Mad. Pr. Ch. 212, 213, 214. § 251, 252.] ACTUAL FRAUD. 245 strate that the party had no opportunity to use suitable delibera- tion, or that there was some influence or management to mislead him. If proper time is not allowed to the party and he acts im- providently, if he is importunately pressed, if those in whom he places confidence make use of strong persuasions, if he is not fully aware of the consequences but is suddenly drawn in to act, if he is not permitted to consult disinterested friends or counsel before he is called upon to act, in circumstances of sudden emergency, or unexpected right or acquisition ; in these and many like cases, if there has been great inequality in the bargain, courts of equity will assist the party upon the ground of fraud, imposition, or un- conscionable advantage. 1 § 252. Many other cases might be put, illustrative of what is denominated actual or positive fraud. 2 Among these are cases of the fraudulent* suppression or destruction of deeds and other instruments, in violation of, or injury to, the rights of others ; 3 fraudulent awards, with an intent to do injustice ; 4 fraudulent and illusory appointments and revocations, under powers ; 6 fraud- 1 Evans v. Llewellyn, 1 Cox, 439, 440; s. c. 2 Bro. Cb. 150 ; Irnham v. Child, 1 Bro. Ch. 92 ; Townshend v. Stangroom, 6 Ves. 338 ; Pickett v. Loggon, 14 Ves. 215. 2 See Com. Dig. Chancery, 3 M. 1, &c. [A minority of the stockholders of a cor- poration may maintain a bill in equity in behalf of themselves and the other stock- holders against the corporation and its officers, and those participating in the fraud for conspiracy and fraud in sacri- ficing the interests of the corporation for their own benefit or that of a rival cor- poration by misrepresentations as to credit, thereby enabling them to issue bonds of the corporation below real value. Peabody v. Flint, 6 Allen, 52. So where it was alleged directors leased corporate property too low, and shared profits of lessees. Brewer v. Boston Theatre, 104 Mass. 378. But. the bill must show that proper efforts have been made to set the corporation in motion to redress the wrong, or that such efforts would be useless, .or that immediate action is necessary. Brewer v. Boston Theatre, ubi sup. See Mussina v. Gold- thwaite, 34 Tex. 125. And creditors of an insurance company may maintain a bill in equity against the company and its officers who have funds in their hands sufficient to pay the plaintiffs, and fraud- ulently apply the same to other purposes. Lyman v. Bonney, 101 Mass. 562. Where the widow buys at foreclosure sale of intestate's property with funds of the estate, it is a fraud on the heir. Terry v. Tuttle, 24 Mich. 206. But it seems it is not a fraud for an insolvent to buy a homestead exempt from attachment. Cipperly v. Rhodes, 53 111. 346. Fraud is not sufficient to avoid the act of a legislative body. Jersey City, &c, R.R. v. Jersey City, &c, R.R., 5 C. E. Green 61. That where a patent of United States land has issued to the wrong party equity will hold him as trustee for true owner and compel perform- ance, see Meader v. Norton, 11 Wal. (U. S.) 442. 3 I Mad. Pr. Ch. 255 to 260 ; Bowles v. Stewart, 1 Sch. & Lefr. 222, 225 ; Dor- mer «. Fortesque, 3 Atk. 124 ; Eyton v. Eyton, 2 Vera. 380; Dalton v. Coats- worth, 1 P. Will. 733. * 1 Mad. Pr. Ch. 233, 234 ; Brown v. Brown, 1 Vera. 157, and Mr. Raithby's note (1), 159; Com. Dig. Chancery, 2 K. 6 ; Champion v. Wenham, Ambl. 245. 6 1 Mad. Pr. Ch. 246 to 252. 246 EQUITY JURISPRUDENCE. [CH. VI. ulent prevention of acts to be done for the benefit of others, under false statements or false promises ; 1 frauds in relation to trusts of a secret or special nature ; 2 frauds in verdicts, judgments, decrees, and other judicial proceedings ; 3 frauds in the confusion of boun- daries of estates and matters of partition and dower ; i frauds in the administration of charities ; 5 and frauds upon creditors, and other persons, standing upon a like equity. 6 [* § 252 a. There is a case of some interest, decided by the Court of Chancery Appeal, 7 where the grounds of equitable inter- ference in setting aside judgments and decrees is considerably discussed by two very eminent equity judges, Lords Justices Cairns and Holt. The conclusion to which these learned judges came was, that the fraud, to justify such a proceeding in a court of equity, must be actual and positive, and not merely constructive. And we have had occasion to say, in former editions of these Commen- taries, that the fraud, to justify a court of equity in setting aside the judgments of courts, either of law or equity, domestic or for- i 1 Mad. Pr. Ch. 252, 253; Luttrell v. Lord Waltham, cited 14 Vea. 290 ; Jones ». Martin, 6 Bro. Pari. Cas. 437 ; 5 Ves. 266, note ; 1 Fonbl. Eq. B. 1, ch. 2, § 13, note (q) ; id. B. 1, ch. 4, § 25, and notes ; 2 Chance on Powers, ch. 23, § 3, art. 3015 to 3025; Sugden on Powers, ch. 6, § 2, p. 377 to 387 (3d edit.). 2 2 Mad. Pr. Ch.97, 98; 1 Hovenden on Frauds, ch. 13, p. 468, &c. ; Dalbiac v. Dalbiac, 16 Ves. 124. 3 1 Mad. Pr. Ch. 236, 237 ; Com. Dig. Chancery, 3 M. 1, 3 N. 1, 3 W. ; Daven- port v. Stafford, 8 Beavan, 503 ; Langley v. Fisher, 9 Beavan, 90. [Equity will enjoin the judgment of another court where its amount has been fraudulently increased, even it seems though the court might correct it on motion. Babcock a. McCammant, 53 111. 214. So where there is abuse of legal process, as by bringing suit to obtain possession against an igno- rant tenant, the owner being away. Res- pass o. Zorn, 42 Geo. 389. So where judgment was obtained by surprise. See Turner v. McCarter, 42 Geo. 491. And see ante, § 166. So where the machinery of a sale on execution has been resorted to in order to get the title of a debtor's land into his wife, equity will order a sale of the land to pay his debts. Metro- politan Bank u. Durant, 7 C. E. Green, 35. That fraud is ground of defence to judgment obtained in a sister State. See Coffee v. Neely, 2 Heisk, (Tenn.) 304. Equity will set aside a decree of divorce against a wife for desertion where the separation was in fact voluntary and under articles, and service was only made by publication on false affidavit of igno- rance of residence, and complainant had no knowledge of proceedings till too late to appeal. And it makes no difference that judgment might be set aside for want of jurisdiction, or that husband is dead, there being property in which com- plainant as widow would be interested. Johnson v. Coleman, 23 Wise. 452. So equity will set aside a judgment against the validity of a will obtained by fraud, and reinstate the will. Smith v. Harri- son, 2 Heisk. (Tenn.) 230.] 4 1 Mad. Pr. Ch. 237 ; Mitf. Eq. PL 117 ; 1 Hovenden on Frauds, ch. 8, p. 239 ; id. ch. 9, p. 244. 5 2 Hovenden on Frauds, ch. 28, p. 288. 6 Jeremy on Eq. Jurisd. B. 3, Pt. 2, ch. 3, § 4, p. 411, &c. ; 1 Fonbl. Eq. B. 1, ch. 4, § 12, 13, 14, arid notes ; Com. Dig. Chancery, 3 M. 4 ; Jones v. Martin, 6 Bro. Pari. Cas. 437 ; 5 Ves. 266, note. ' ["Patch v. Ward, Law Bep. 3 Ch. App. 203. § 252-254.] actual fraud. 247 eign, 1 must be that which occurs in the very concoction or pro- curing of the judgment itself, and something not known to the opposite party at the time, and for not knowing which he is not chargeable with neglect or inattention. § 252 b. But a party may be guilty of such fraud, in attempting to enforce a judgment which was originally valid and just, but which has been subsequently satisfied, or where it was collateral to some other debt or judgment which has been satisfied, or in some way annulled, as to justify a court of equity in enjoining the party from pursuing the same. 2 ] § 253. Some of the cases, falling under each of these heads, belong to that large class of frauds commonly called constructive frauds, which will naturally find a place in our future pages. But, as it is the object of these Commentaries, not merely to treat of questions of relief, but also of principles of jurisdiction, a few instances will be here adduced as examples of both species of fraud. § 254. In the first place, as to the suppression and destruction of deeds and wills, and other instruments. If an heir should sup- press them, in order to prevent another party, as a grantee or devisee, from obtaining the estate vested in him thereby, courts of equity, upon due proof by other evidence, would grant relief, and perpetuate the possession and enjoyment of the estate in such grantee or devisee. 3 For cases for relief against spoliation come 1 Post, § 1581 et se/f. own bad acts in destroying or suppressing 2 Paddock v. Palmer, 19 Vt. 581 ; post, the will ; for here the spoliation is, I think, § 876 a.] proved so sufficiently as to entitle the 3 See ante, § 184, and note, post, § 440 ; plaintiff to come here in the first instance 1 Fonbl. Eq. B. 1, ch. 2, § 3, note («) ; for a decree. As to the spoliation, consider Hunt u.Matthews, 1 Vern. 408 ; Wardour it generally as a personal legacy, where t>. Binsford, 1 Vern. 452 ; 2 P. Will. 748, the will is destroyed or concealed by the 749 ; Dalton v. Coatsworth, 1 P. Will, executor, and, I think, in such a case, if 731; Woodroff v. Burton, cited 1 P. Will, the spoliation is proved plainly (though the 734 ; Finch v. Newnham, 2 Vern. 216 ; general rule is to cite the executor into Hampden v. Hampden, 1 Bro. Pari. Cas. the ecclesiastical court), the legatee may 250; s. c. cited 1 P. Will. 733; Barnesley properly come here for a decree upon the v. Powell, 1 Ves. 119,284,289; Tucker v. head of spoliation and suppression. There Phipps, 3 Atk. 360. In (his last case are several cases, where, if spoliation or Lord Hardwicke said : " In this court the suppression are proved, it will change the rule is not to allow a suit against an ex- jurisdiction, and give this court a jurisdic- ecutor for a legacy, before a probate of tion which it had not originally ; as in the the will ; but, in the present case, the plain- case of Lord Hunsdon, Hobb. 109, where tiff ought not to be put to the difficulty of the title was a title merely at law, yet going into the spiritual court to cite the there being a suppression of the deeds defendant, because that would be giving under which that title .accrued, the plain- the defendant a great advantage from his tiff had a decree here for possession and 248 EQUITY JURISPRUDENCE. [CH. "VI. in a favorable light before courts of equity, in odium spoliatoris ; and where the contents of a suppressed or destroyed instrument are proved, the party (as he ought) will receive the same benefit as if the instrument were produced. 1 § 255. In the next place, frauds in regard to powers of appoint- ment. A person, having a power of appointment for the benefit of others, shall not, by any contrivance, .use it for his own benefit. Thus, if a parent has a power to appoint to such of his children as he may choose, he shall not, by exercising it in favor of a child in a consumption, gain the benefit of it himself, or by a secret agreement with a child, in whose favor he makes it, derive a bene- ficial interest from the execution of it. 2 The same rule applies to quiet enjoyment. As the jurisdiction may be changed with regard to a court of law, why may it not with regard to the spirit- ual court I and I think the case of Weeks v. Weeks, which came before me some time ago. an authority that it may : here the spoliation or suppression is certainly fraudulent, voluntary, and malicious, and therefore differs from the case of Pascall v. Pickering, where the spoliation did by no means appear to be fraudulent or ma- licious, but rather inadvertently done, and without any bad design. I think in such cases of malicious and fraudulent spolia- tions, the court will not put the plaintiff under the difficulty of going into the ecclesiastical court, where he must meet with much more difficulty than proving the contents of a deed at law, which has been lost or secreted. For in the spiritual court the plaintiff must prove it a will in writing, and must likewise prove the con- tents in the very words, which will be a difficulty almost insuperable, and which courts of law do not put a person upon doing ; the plaintiff must also prove the whole will, though the remainder of it does not at all belong to or regard his legacy. I think, if this had been a mere personal legacy, the court, under the cir- cumstances of this case, ought to inter- pose, and the rather, because, in bringing suits against an executor, this court goes further in requiring a probate than courts at law. But her# the case is stronger to entitle the plaintiff to a decree, because the legacy is out of real and personal es- tate both ; and as to the real estate, there is no occasion to prove the will in the spiritual court, to entitle the legatee to recover his legacy out of the real estate. This would be clearly the case where the charge is only upon the real estate ; and though the heir is entitled to have the personal estate to exonerate his real, yet, if he is made executor, and has, by a vol- untary and fraudulent act, put the legatee under such difficulties as make it almost impossible for him to prove the will, it is reasonable to let in the legatee to have his legacy, and leave the executor to pay himself out of the personal estate." [*See ante, § 99, n. 4.] 1 Saltern v. Melhuish, Ambler, 247; Cowper v. Cowper, 2 P. Will. 652, &c. ; Rex v. Arundel, Hob. 109 ; Hampden v. Hampden, cited 1 P. Will. 733; 1 Bro. Pari. Cas. 550 ; Bowles v. Stewart, 1 Sch. & Lefr. 225. [For a case of fraudulent mutilation of marriage register where relief was denied by reason of lapse of time, see Chatham v. Hoare, L. R. 9 Eq. 571.] 2 McQueen a. Farquhar, 11 Ves. 479 ; Meyn v. Belcher, 1 Eden, 138; Palmer ». Wheeler, 2 Ball & Beatt. 18; Sugden on Powers, ch. 7, § 2 ; Morris v. Clarkson, 1 Jac. & Walk. Ill ; Rowley v. Rowley, 18 Jur. 306 ; Agassiz v. Squire, 1 Jur. N. s. 50. [But where, although the appointor derives a benefit, the appointment is for the benefit of all the objects of the power, it is good ; so held, where, under a mar- riage settlement, there being no power to grant building leases, the tenant for life, who had power of appointment among the children of the marriage, of whom there were four, appointed to one, and then the § 254-256.] actual fraud. 249 cases where a parent, having a power to appoint among his chil- dren, makes an illusory appointment, by giving to one child a nominal and not a substantial share ; for, in such a case, courts of equity will treat the execution as a fraud upon the power. 1 § 256. In the next place, the fraudulent prevention of acts to be clone for the benefit of third persons. Courts of equity hold themselves entirely competent to take from third persons, and a fortiori, from the party himself, the benefit which he may have derived from his own fraud, imposition, or undue influence, in pro- curing the suppression of such acts. 2 Thus^ where a person had fraudulently prevented another, upon his death-bed, from suffer- ing a recovery at law, with a view that the estate might devolve upon another person, with whom he was connected ; it was ad- judged, that the estate ought to be held as if the recovery had been perfected, and that it was against conscience to suffer it to remain where it was. 3 So, if a testator should communicate his intention to a devisee, of charging a legacy on his estate, and the devisee should tell him that it is unnecessary, and he will pay it, the legacy being thus prevented, the devisee will be charged with the payment. 4 And, where a party procures a testator to make a new will, appointing him as executor, and agrees to hold the property in trust for the use of an intended legatee, he will be held a trus- tee for the latter, upon the like ground of fraud. 5 appointor and appointee conveyed to 1 Sugden on Powers, ch. 7, § 2 ; ch. 9, trustees in trust to grant building leases, § 4 ; Butcher v. Butcher, 9 Ves. 382 ; 2 and then upon trusts corresponding to Hovenden on Frauds, ch. 23, p. 220, &c. ; those of the original settlement. In re 1 Mad. Pr. Ch. 246 to 252 ; Campbell ». Huish's Charity, L. R. 10 Eq. 5. See also Home, 1 Younge & Coll. N. E. Ch. 664 ; Cockcroft r. Sutcliffe,25 (L. J.) Ch. 313; Stolworthy v. Sancroft, 10 Jur. n. s. 762; but see Topham . Bladwell, 1 Vern. 240 ; Lamlee v. Hanman, 2 Vera. 499 ; McNeil Stribblehill o. Brett, 2 Vern. 445; Prec. v. Cahill, 2 Bligh, 228 ; England v. Downs, in Ch. 165. 2 Beavan, 522. [* See Hammersley o. 2 1 Fonbl. Eq. B. 1, ch. 4, § 11 ; 1 Eq. Baron de Biel, 12 Clark & Fin. 45.] Cas. Abr. 90, F. 5, 6. 5 Redman i-. Redman, 1 Vern. 348; « Lamlee v. Hanman, 2 Vern. 499, 500; Scott «. Scott, 1 Cox, 366; Turton v. Pitcairne v. Ogbourne, 2 Ves. Sen. 375 ; Benson, 1 P. Will. 496 ; Morrison ». Ar- Neville v. Wilkinson, 1 Bro. Ch. 543, 547 ; buthnot, 8 Brown, Pari. Cases, p. 247, by 1 Fonbl. Eq. B. 1, ch. 4, § 11, and note (x). Tomlins ; 1 Bro. Ch. 447, note. * 1 Fonbl. Eq. B. 1, ch. 4, § 11, and note ; § 267-272.] CONSTRUCTIVE FRAUD. 261 § 270. So, where the parent, upon a marriage of his son, made a settlement of an annuity or rent-charge upon the wife, in full of her jointure ; and the son secretly gave a bond of indemnity, of the same date, to his parent, against the annuity or rent-charge ; it was held void, as a fraud upon the faith of the marriage contract ; for it affected to put the female party contracting for marriage, in one situation by the articles, and, in fact, put her in another and worse situation by a private agreement. 1 So, where a brother, on the marriage of his sister, let her have a sum of money privately, that her fortune might appear to be as much as was insisted on by the other side, and the sister gave a bond to the brother to repay it ; the bond was set aside. 2 § 271. And where, upon a treaty of marriage, a party, to whom the intended husband was indebted, concealed his own debt, and misrepresented to the wife's father the amount of the husband's, debts, the transaction was treated as a fraud upon the marriage ; and the creditor was prevented by injunction from enforcing his debt, although it did not appear that there was any actual stipula- tion on the part of the wife's father, in respect to the amount of the husband's debts. 3 Upon this occasion the lord chancellor said : " The principle on which all these cases have been decided, is, that faith in such contracts is so essential to the happiness both of the parents and children, that whoever treats fraudulently on such an occasion, shall not only not gain, but even lose by it. 4 Nay, he shall be obliged to make his representation good, and the parties shall be placed in the same situation as if he had been scrupulously exact in the performance of his duty." 5 § 272. In all these cases, and those of a like nature, the distinct ground of relief is a meditated fraud or imposition practised by one of the parties upon third persons, by intentional concealment or misrepresentation. And, therefore, if the parties act under a i Palmer v. Neave, 11 Ves. 165; Scott fiori, 1 W. Black. 363 ; s c. cited 1 Bro. v. Scott, 1 Cox, 366, 378; Lamlee v. Han- Ch. 548. man, 2 Vern. 466. 6 Ibid. See also Thompson v. Harri- 2 Gale b. Lindo, 2 Vern. 475 ; Lamlee son, 1 Cox, 344 ; Eastabrook v. Scott, 3 ». Hanman, 2 Vern. 499 ; 1 Eonbl. Eq. B. Ves. 461 ; Scott v. Scott, 1 Cox, 366 ; 1, ch. 2, § 11. Hunsden ». Cheyney, 2 Vera. 150 ; Bev- 3 Neville v. Wilkinson, 1 Bro. Ch. 543 ; erley v. Beverley, 2 Vera. 133 ; Monte- s. c. 3 P. Will. 74, Mr. Cox's note; 1 fieri v. Montefiori, 1 W. Black. 363; 1 Fonbl. Eq. B. 1, ch. 4, § 11, note [x) ; 3 Fonbl. Eq. B. 1, ch. 4, § 11, note (x) . Ves. 461 ; 16 Ves. 125. Vauxhall Bridge v. Spencer, Jac. 67. 4 Ibid. See also Montefiori v. Monte- 262 EQUITY JURISPRUDENCE. [CH. VII. mutual innocent mistake, and with entire good faith, the conceal- ment or misrepresentation of a material fact will not induce the court to compel the party concealing it, or affirming it, to make it good, or to place the other party in the same situation as if the fact were as the latter supposed. 1 There must be some ingredient of fraud, or some wilful misstatement or concealment, which* has misled the other side. § 273. Upon a similar ground, a settlement, secretly made by a woman, in contemplation of marriage, of her own property to her own separate use, without her intended husband's privity, will be held void, as it is in derogation of the marital rights of the husband, 2 and a fraud upon his just expectations. 3 And a secret 1 Mereweather v. Shaw, 2 Cox, 124 ; Scott v. Scott, 1 Cox, 366; 1 Fonbl. Eq. B. 1, ch. 4, § 11 ; Pitcairne v. Ogbourne, 2 Ves. 375. 2 1 Fonbl. Eq. B. 1, ch. 4, § 11, and note (z) ; id. ch. 2, § 6, note (o) ; Jones v. Martin, 3 Anst. 882 ; s. c. 6 Ves. 266, note ; Fortescue v. Hennah, 19 Ves. 66 ; Bowes v. Strathmore, 2 Bro. Ch. 345 ; s. c. 2 Cox, 28; 1 Ves. Jr. 22; 6 Bro. Par. Cas. (by Tomlins) 427; Ball v. Montgomery, 2 Ves. Jr. 194 ; Carlton v. Earl of Dorset, 2 Vern. 17 ; Gregor v. Kent, 3 Swanst. 404, note; Goddard v. Snow, 1 Rus- sell, 485; Tucker v. Andrews, 13 Maine, 124; Waller v. Armistead, 2 Leigh, 11 ; Manes v. Durant, 2 Rich. Eq. 404 ; McAfee v. Ferguson, 9 B. Monroe, 475; England v. Downs, 2 Beavan, 522. On this occasion, Lord Langdale said : " Joan Mason was a widow with three children, and, under the will of her first husband, she was entitled to some free- hold and leasehold property, to some fur- niture, and to the stock in trade, with which she carried on business as a vic- tualler. Contemplating a second mar- riage, she considered that she ought to make a provision for her children by the first; and being informed that a will which she had made would, upon her marriage, become ineffectual, she made a settlement, and thereby provided that a portion of her freehold property should be subjected to her own power of ap- pointment, but that subject to such power of appointment, that part of her estate over which the power ex- tended, together with all the rest of her property, should be limited to her own separate use for her life, with remainder for her three daugh- ters, in the manner therein mentioned. In the execution of this settlement, so far as it made provision for her children, she was performing a moral duty ; in the circumstances in which she was placed, it was clearly her duty, before she placed herself and her property in the power of her second husband, to secure a provision for her children by her first husband, from whom her property was derived; but in performing a duty towards her children, she had no right to act fraudu- lently towards her second husband. If a woman entitled to property enters into a treaty for marriage, and during the treaty represents to her intended husband that she is so entitled, that upon the mar- riage he will become entitled jure mariti, and if, during the same treaty, she clan- destinely conveys away the property, in such manner as to defeat his marital right, and secure to herself the separate 8 Ibid. Lance v. Norman, 2 Ch. Rep. 41 [79] ; Blanchet v. Foster, 2 Ves. 264 ; England v. Downs, 2 Beavan, 522. [See Lewellen v. Cobbold, 1 Sm. & Gif . 376 ; Wrigley v. Swainson, 3 De G. & Sm. 458 ; Chambers v. Crabbe, 34 Beav. 457. The same rule seems to apply to convey- ances by husband in fraud of rights of wife pending proceedings for divorce. Blenkinsopp v. Blenkiusopp, 1 De G., M. & G. 495.] . § 272, 273.] CONSTRUCTIVE FRAUD. 263 conveyance made by a woman, under like circumstances, in favor of a person, for whom she is under no moral obligation to provide, would be treated in the like manner. But if she should only reasonably provide for her children, by a former marriage under circumstances of good faith, 1 it would be otherwise. 2 In like man- ner, if, previous to her marriage, a woman should represent her- self to her intended husband to be possessed of property, which she should secretly convey away before the marriage, the husband would be entitled to relief against such conveyance. 3 However, circumstances may occur which may deprive the husband of any remedy, as if before the marriage he acquires a knowledge of the prior settlement, 4 or if he has so conducted himself after the settle- use of it, and the concealment continues till the marriage takes place, there can be no doubt but that a fraud is thus prac- tised on the husband, and he is entitled to relief. The equity which arises in cases of this nature depends upon the peculiar circumstances of each case, as bearing upon the question, whether the facts proved do or do not amount to suf- ficient evidence of fraud practised on the husband. It is not doubted that proof of direct misrepresentations, or of wilful concealment with intent to deceive the husband, would entitle him to relief ; but it is said that mere concealment is not, in such a case, any evidence of fraud, and that if a man, without making any inquiry as to a woman's affairs and property, thinks fit to marry her, he must take her and her property as he finds them, and has no right to complain, if, in the absence of any care on his part, she has taken care of herself and her children without his knowledge. This proposition, however, cannot be admitted as stated ; and clearly a woman in such circumstances can only reconcile all her moral duties by making a proper settle- ment on herself and her children, with the knowledge of her intended husband. If both the property and the mode of its conveyance pending the marriage treaty were concealed from the intended husband, as was the case in Goddard v. Snow, there is still a fraud practised on the husband. The non-acquisition of property, of which he had no notice, is no disappointment, but still his legal right to property actually existing is defeated, and the vesting and continuance of a separate power in his wife overT>roperty which ought to have been his, and which is, without his consent, made indepen- dent of his control, is a surprise upon him, and might, if previously known, have induced him to abstain from the mar- riage. Nevertheless, cases have occurred in which concealment, or rather the non- existence of communication to the hus- band, has not been held fraudulent, and whether fraud is made out must depend on the circumstances of each case, as an unmarried woman has a right to dispose of her property as she pleases, and as a conveyance made immediately before her marriage is prima facie good, it is to be impeached only by the proof of fraud." Taylor v. Pugh, 1 Hare, 608, 613, 616; De Manville v. Compton, 1 Ves. & Beam. 354. 1 But see Terry v. Hopkins, 1 Hill, Ch. 1 ; Ramsay y. Joyce, 1 McMullan's Eq. 237, 251 ; Manes v. Durant, 2 Rich. Eq. 404. 2 Ibid.; King v. Cotton, 2 P. Will. 357,674; St. George v. Wake, 1 Mylne & Keen, 610 ; England v. Downs, 2 Beav. 522 ; De Manville v. Compton, 1 Ves. & Beam. 354. 3 England v. Downs, 2 Beavan, 542. [* See Williams v. Carle, 2 Stockton, Ch. 643.] * See Logan v. Simmons, 3 Iredeh, Eq. 487 ; Manes v. Durant, 2 Rich. Eq. 404 ; Ashton v. McDougall, 5 Beavan, 56 ; Griggs v. Staples, 13 Jur. 32 ; Maher o. Hobbs, 2 Y. & C. Exch. Cas. 317; Terry ». Hopkins, 1 Hills, Ch. 4. 264 EQUITY JURISPRUDENCE. [CH. VII. ment, that the wife cannot, without dishonor to herself, live with him [or cannot, without disgrace, retire from the marriage, as when the intended husband induced her to cohabit with him be- fore marriage]. 1 § 274. It is upon the same ground of public policy, that contracts in restraint of marriage are held void. 2 A reciprocal engagement between a man and a woman to marry each other is unquestion- ably good. 8 But a contract, which restrains a person from marry- ing at all, or from marrying anybody, except a particular person, without enforcing a corresponding reciprocal obligation on that person, is treated as mischievous to the general interests of society, which are promoted by the encouragement and support of suit- able marriages. 4 Courts of equity have in this respect followed, although not to an unlimited extent, the doctrine of the civil law, that marriage ought to be free. 5 § 275. Where, indeed, the obligation to marry is reciprocal, although the marriage is to be deferred to some future period, there may not be, as between the parties, any objection to the con- tract in itself, if in all other respects it is entered into in good faith, and there is no reason to suspect fraud, imposition, or undue influence. 6 But, even in these cases, if the contract is designed by the parties to impose upon third persons, as upon parents, or friends standing in loco parentis or in some other particular rela- tion to the parties, so as to disappoint their bounty, or to defeat their intentions in the settlement or disposal of their estates; there, if the contract is clandestine, and kept secret for this pur- pose, it will be treated by courts of equity a.s a fraud upon such parents or other friends, and as such be set aside ; or the equities will be held the same as if it had not been entered into. 7 The general ground upon which this doctrine is sustained is, that pa- rents, and other friends, standing in loco parentis, are thereby induced to- act differently in relation to the advancement of their i Taylor v. Pugh, 1 Hare, 608. Burr. 2225; Phillips u. Medbury, 7 Conn. 2 Hartley v. Bice, 10 East, 22; Lowe 568; Cock «. Richards, 10 Ves. 429; Key v. Peers, 4 Burr. 2225 ; Woodhouse o. v. Bradshaw, 2 Vern. 102 ; Atkins v. Farr, Shepley, 2 Atk. 539, 540 ; Newland on 1 Atk. 287 ; s. c. 2 Eq. Abridg. 247, 248. Contracts, ch. 33, p. 472 to 476 ; 2 White 6 Dig. Lib. 35, tit. 1, 1. 62, 63, 64 ; Key & Tudor's Eq. Lead. Cas. 89, and notes. v. Bradshaw, 2 Vern. 102 ; 1 Fonbl. Eq. 8 Cock v. Richards, 10 Ves. 438; Key B. 1, ch. 4, § 10. v. Bradshaw, 2 Vern. 102. 6 Lowe „, p e ers, 4 Burr. 2229, 2230 ; 4 1 Fonbl. Eq. B. 1, ch. 4, § 10 ; Baker Key v. Bradshaw, 2 Vern. 102. v. White, 2 Vern. 215 ; Woodhouse v. ' Woodhouse v. Shepley, 2 Atk. 535, Shepley, 2 Atk. 535; Lowe v. Peers, 4 539; Cock v. Richards, 10 Ves. 436, 438. § 273-277.] CONSTRUCTIVE FRAUD. 265 children and relatives, from what they would if the facts were known ; and the best influence which might be exerted in per- suading their children and relatives to withdraw from an unsuitable match is entirely taken away. To give effect to such contracts would be an encouragement to persons to lie upon the watch to procure unequal matches against the consent of parents and friends, and to draw on improvident and clandestine marriages, to the destruction of family confidence, and the disobedience of parental authority. 1 These are objects of so great importance to the best interest of society, that they can scarcely be too deeply fixed in the public policy of a nation, and especially of a Christian nation. § 276. In the civil law a strong desire was manifested to aid in the establishment of marriages, as has been already intimated. 2 And hence, all conditions annexed to gifts, legacies, and other valuable interests, which went to restrain marriages generally, were deemed inconsistent with public policy, and held void. A gift, therefore, to a woman, of land, if she should not marry, was held an absolute gift. " Msevise, si non nupserit, fundum quum morietur, lego ; potest dici, et si nupserit, earn confestim ad lega- tum admitti. 3 Si testator rogasset hseredem, ut restituat hseredi- tatem mulieri, si non nupsisset ; dicendum erit compellendum hseredem, si suspectam dicat hsereditatem, adire et restituere earn mulieri, etiam si nupsisset." 4 So, a gift to a father, if his daugh- ter, who is under his authority (in potestate), should not marry, was treated as an absolute gift ; the condition being held void. 5 The avowed ground of these decisions was, that all such condi- tions were a fraud upon the law which favored marriage ; " Quod in fraudem legis ad impediendas nuptias scriptum est, nullum vim habet." 6 § 277. But a distinction was taken in the civil law between such general restraints of marriage, and a special restraint, as to marry- ing or not marrying a particular person ; the latter being deemed not unjustifiable. Thus, a gift, upon condition that a woman should not marry Titius, or not marry Titius, Seius, or Msevius, i "Woodhouse v. Shepley, 2 Atk. 539; * Pothier, Pand. Lib. 35, tit. 1, n. 33; Cock v. Richards, 10 Ves. 438, 539 ; New- Dig. Lib. 36, tit. 1, 1. 65, § 1. land on Contracts, ch. 33, p. 476. s p thier, Pand. Lib. 35, tit. 1, n. 35. 2 Ante, § 260. « Pothier, Pand. Lib. 35, tit. 1, n. 35; s Pothier, Pand. Lib. 35, tit. 1, n. 33; Dig. Lib. 35, tit. 1, 1. 79, § 4. Dig. Lib. 35, tit. 1, 1. 72, § 5. 266 EQUITY JURISPRUDENCE. [CH. YD. was held valid. 1 And the distinction was in some cases even more refined ; for, if a legacy was given to a wife upon condition that she should not marry, while she had children (si a Uberis, ne nup- serif), the condition was nugatory ; but, if it was, that she should not marry while she had children in puberty (si a Uberis impuber- ibus ne nupserit), it was good. 2 And the reason given is, that the care of children, rather than widowhood, might be enjoined; " Quia magis cura liberorum, quam viduitas, injungeretur." 3 § 278. Courts of equity, in acting upon cases of a similar nature, have been in no small degree influenced by these doctrines of the civil law. 4 But it has been doubted, whether the same grounds upon which the Roman law acted, can or ought to be acted on in a Christian country, under the common law. Lord Rosslyn has endeavored to account for the introduction of these doctrines into the English courts of equity, from the desire of the latter to adopt, upon legatary questions, the rules of the ecclesiastical courts, which were borrowed directly from the civil law. And speaking upon the subject of the rule of the civil law, as to conditions in restraint of marriage, he said : 5 " How it should ever have come to be a rule of decision in the Ecclesiastical Court is impossible to be accounted for, but upon this circumstance, that, in the unen- lightened ages, soon after the revival of letters, there was a blind, superstitious adherence to the text of the civil law. They never reasoned ; but only looked into the books and transferred the rules without weighing the circumstances, as positive rules to guide them. It is beyond imagination, except from that circumstance, how, in a Christian country, they should have adopted the rule of the Roman law with regard to conditions as to marriage. First, where there is an absolute, unlimited liberty of divorce, all rules as to marriage are inapplicable to a system of religion and law, where divorce is not permitted. Next, the favor to marriage, and the objection to the restraint of it, were a mere political regula- tion, applicable to the circumstances of the Roman empire at that time, and inapplicable to other countries. After the civil war, 1 Pothier, Pand. Lib. 35, tit. 1, n. 34 ; 6 Stackpole v. Beaumont, 3 Ves. Jr. Dig. Lib. 35, tit. 1, 1. 63, 64. 96, per Lord Rosslyn. See also Lord 2 Pothier, Pand. Lib. 35, tit. 1, n. 34; Thurlow's judgment, in the case of Scott Dig. Lib. 35, tit. 1, 1. 62, § 2. v. Tyler, 2 Bro. Ch. 487 ; s. o. 2 Dick. » Ibid. 712 ; 2 White & Tudor's Eq. Lead. Cas. « 1 Ponbl. Eq. B. 1, ch. 4, § 10 ; Stack- and notes, pole v. Beaumont, 3 "Ves. Jr. 96. § 277-279.] CONSTRUCTIVE FRAUD. 267 the depopulation occasioned by it led to habits of celibacy. In the time of Augustus, the Julian law, which went too far, and was corrected by the Lex Papia Poppcea, not only offered encourage- ment to marriage, but laid heavy impositions upon celibacy. That being established, as a rule in restraint of celibacy (it is an odd expression), and for the encouragement of all persons who would contract marriage, it necessarily followed, that no person could act contrary to it by imposing restraints directly contrary to the law. Therefore, it became a rule of construction, that these conditions were null. It is difficult to apply that to a country where there is no law to restrain individuals from exercising their own discretion, as to the time and circumstances of the marriage which their children, or objects of bounty, may contract. It is perfectly im- possible now, whatever it might have been formerly, to apply that doctrine, not to lay conditions to restrain marriage under the age of twenty-one, to the law of England ; for it is directly contrary to the political law of the country. There can be no marriage under the age of twenty-one, without the consent of the parent." § 279. It is highly probable, that this view of the origin of the English doctrine, as to conditions in restraint of marriage, an- nexed to gifts, legacies, and other conveyances of interests, is historically correct. 1 But whether it be so or not, it may be 1 See Scott v. Tyler, 2 Bro. Ch. 487 ; those cases go no way towards ascer- s. u. 2 Dick. 712 ; s. c. 2 Wh. & T. L. taining the nature and extent of the ob- Cas. 144; Clarke v. Parker, 19 Ves. 13; jection. Towards the latter end of the Eeynish v. Martin, 3 Atk. 330, 331, 332 ; last, and beginning of the present cen- 1 Roper on Legacies, by White, ch. 13 ; tury, the matter is more loosely handled. § 1, p. 654. Lord Thurlow, in Scott v. The canon law is not referred to (pro- Tyler (2 Dick. 716 to 721), has traced fessedly, at least), as affording a distinct out, with much learning and ability, the and positive rule for annulling the obnox- gradual introduction and progress of the ious conditions. On the contrary, they civil-law doctrine, through the instru- are treated as partaking of the force al- mentality of the canon law, into the law lowed them by the law of England. But of England. I gladly extract a portion in respect to their imposing a restraint of of his statements, as they may tend to marriage, they are treated at the same instruct the student more exactly in a time as unfavorable and contrary to the branch of the law, confessedly not common weal and good order of society, without some anomalies. "The earlier It is reasoned, that parental duty and cases," said he, " refer, in general terms, affection are violated, when a child is to the canon law, as the rule by which stripped of its just expectations. That all legacies are to be governed. By that such an intention is improbably imputed law, undoubtedly, all conditions which to a parent, particularly in those instances fell within the scope of this objection, the where there was no misalliance, as in restraint of marriage, are reputed void ; marriage with the houses of Bellases, and, as they speak, pro mm adjectis. But Bertie, Cecil, and Semphile, which the 268 EQUITY JURISPRUDENCE. [CH. VII. affirmed, without fear of contradiction, that the doctrine on this subject, at present maintained and administered by courts of equity parent, if he had been alive, would prob- ably have approved. These ideas apply indifferently to bequests of lands and of money, and were, in fact, so applied in one very remarkable case. Nay, to avoid the supposed force of these obnoxious conditions, strained constructions were made upon doubtful signs of consent ; and every mode of artificial reasoning was adopted to relax their rigor. This was thought more practicable, by calling them conditions subsequent ; although, if that had made such difference, they were, and, indeed, must have been generally, conditions precedent, as being the terms on which the legacy was made to vest. At length, it became a common phrase, that such conditions were only in terrorem. I do not find it was ever seriously sup- posed to have been the testator's intention to hold out the terror of that which he never meant should happen; but the court disposed of such conditions, so as to make them amount to no more. On the other hand, some provisions against improvident matches, especially during infancy, or to a certain age, could not be thought an unreasonable precaution for parents to entertain. The custom of London has been found reasonable, which forfeits the portion, on the marriage of an infant orphan without consent. The Court of Chancery is in the constant hab- it of restraining and punishing such mar- riages. And the legislature has at length adopted the same idea, as far as it was thought general regulation could, in sound policy, go. In this situation the matter was found about the middle of the present century; when doubts occurred, which divided the sentiments of the first men of the age. The difficulty seems to have consisted principally in reconciling the cases, or, rather, the arguments on which they proceeded. The better opin- ion, or, at least, that which prevailed, was that devises of land with which the canon law never had any concern, should follow the rule of the common law ; and that legacies of money being of that sort, should follow the rule of the canon law. Lands devised, charges upon it, powers to be exercised over it, money legacies referring to such charges, money to be laid out in lands (though I do not find this yet resolved), follow the rule of the common law ; and such trusts are to be executed with analogy to it. Mere money legacies follow the rule of the ca- non law ; and all trusts of that nature are to be executed with analogy to that. But still, if I am not mistaken, the question remains unresolved : What is the nature and extent of that rule, as applied to conditions in restraint of marriage ? The canon law prevails in this country only so far as it hath been actually received with such ampliations and limitations as time and occasion have introduced, and subject at all times to the municipal law. It is founded in the civil law; conse- quently the tenets of that law also may serve to illustrate the received rules of the canon law. By the civil law, the provision of a child was considered as a debt of nature, of which the laws of civil society also exacted the payment ; inso- much that a will was regarded as inoffi- cious which did not in some sort satisfy it. By the positive institutions of that law, it was also provided, Si quis cseliba- tfls, vel viduitatis conditionem haeredi, legatariove injunxerit; haeres, legatari- usve e conditione liberi sunto ; neque eo minus delatara haereditatem, legatumve, ex hac lege consequantur. In ampliation of this law, it seems to have been well settled in all times, that if, instead of cre- ating a condition absolutely enjoining celibacy, or widowhood, the same be re- ferred to the advice or discretion of another, particularly an interested per- son, it is deemed a fraud on the law, and treated accordingly; that is, the condi- tion so imposed is holden for void. Upon the same principle, in further ampliation of the law, all distinction is abolished between precedent and subsequent condi- tions ; for it would be an easy evasion of such a law, if a slight turn of the phrase were allowed to put it aside. It has rather, therefore, been construed, that the condition is performed by the mar- riage, which is the only lawful part of the condition, or by asking the consent, for that also is » lawful condition ; and, for the rest, the condition not being law- ful, is holden pro nan adjectd." § 279-281.] CONSTRUCTIVE FRAUD. 269 (for it has undergone some important changes), is far better adapted to the exigencies of modern society throughout Christen- dom, than that which was asserted by the Roman law. While it upholds the general freedom of choice in marriages, it at the same time has a strong tendency to preserve a just control and influ- ence in parents, in regard to the marriages of their children, and a reasonable power in all persons to qualify and restrict their bounty in such a manner, and on such conditions, as the general right of dominion over property in a free country justifies and protects, upon grounds of general convenience and safety. § 280. The general result of the modern English doctrine on this subject (for it will not be found easy to reconcile all the cases) 1 may be stated in the following summary manner. Condi- tions annexed to gifts, legacies, and devises, in restraint of mar- riage, are not void, if they are reasonable in themselves, and do not directly or virtually operate as an undue restraint upon the freedom of marriage. If the condition is in restraint of marriage generally, then, indeed, as a condition against public policy, and the due economy and morality of domestic life, it will be held utterly void. 2 And so, if the condition is not in restraint of mar- riage generally, but still the prohibition is of so rigid a nature, or so tied up to peculiar circumstances, that the party, upon whom it is to operate, is unreasonably restrained in the choice of marriage, it will fall under the like consideration. 3 Thus, where a legacy was given to a daughter, on condition that she should not marry without consent, or should not marry a man who was not seised of an estate in fee-simple of the clear yearly value of £500, it was held to be a void condition, as leading to a probable prohibition of marriage. 4 [And in a later case it was held that a general con- dition in restraint of marriage is good as to the testator's widow, but not good with respect to any other person.] § 281. But the same principles of public policy which annul such conditions, when they tend to a general restraint of marriage, 1 Scott v. Tyler, 2 Bro. Ch. 487 ; 2 Harvey v. Aston, Comm. Rep. 726 ; 8. c. Dick. 718 ; Stackpole v. Beaumont, 3 Ves. 1 Atk. 361. 95 ; 1 Eonbl. Eq, B. 1, ch. 4, § 10, note » Keily v. Monck, 3 Eidgw. Pari. 205, (?). 244, 247, 261 ; 1 Eq. Abridg. p. 110, Con- 2 Keily v. Monck, 3 Bidgw. Pari. 205, dltian, C. in Marg. ; Morley v, Rennoldson, 244, 247, 261 ; 1 Fonbl. Eq. B. 1, eh. 4, 2 Hare, 570. § 10, note (q) ; Rishton v. Cobb, 9 Sim. * Keily v. Monck, 3 Bidgw. Pari. 205, 615; Scott v. Tyler, 2 Bro. Ch. 487; 244, 247, 261; 1 Chitty, Eq. Dig. Mar- riage, W. 270 EQUITY JURISPRUDENCE. [CH. TH. will confirm and support them when they merely prescribe such reasonable and provident regulations and sanctions as tend to pro- tect the individual from those melancholy consequences to which an over-hasty, rash, or precipitate match would probably lead. 1 If parents, who must naturally feel the deepest solicitude for the welfare of their children, and other near relatives and friends, who may well be presumed to take a lively interest in the happi- ness of those with whom they are associated by ties of kindred, or friendship, could not, by imposing some restraints upon their bounty, guard the inexperience and 'ardor of youth against the wiles and delusions of the crafty and the corrupt, who should seek to betray them from motives of the grossest selfishness, the law would be lamentably defective, and would, under the pretence of upholding the institution of marriage, subvert its highest purposes. It would, indeed, encourage the young and the thoughtless to ex- ercise a perfect freedom of choice in marriage ; but it would be at the expense of all the best objects of the institution, the preserva- tion of domestic happiness, the security of private virtue, and the rearing of families in habits of sound morality, and filial obedience and reverence. Such a reproach does not belong to the common law in our day ; and, least of all, can it be justly attributed to courts of equity. § 282. Mr. Fonblanque has, with great propriety, remarked: " The only restrictions which the law of England imposes are such as are dictated by the soundest policy, and approved by the purest morality. That a parent, professing to be affectionate, shall not be unjust ; that, professing to assert his own claim, he shall not disappoint or control the claims of nature, nor obstruct the inter- ests of the community ; that what purports to be an act of gener- osity shall not be allowed to operate as a temptation to do that which militates against nature, morality, or sound policy, or to restrain from doing that which would serve and promote the essential interests of society ; [these] are rules which cannot rea- sonably be reprobated, as harsh infringements of private liberty, or even reproached as unnecessary restraints on its free exercise. On these considerations are founded those distinctions which have from time to time been recognized in our courts of equity, respect- ing testamentary conditions with reference to marriage." 2 i 1 Fonbl. Eq. B. 1, ch. 4, § 10, note (q). " 1 Eonbl. Eq. B. 1, ch. 4, § 10, note (?). § 281-284.J CONSTRUCTIVE FRAUD. 271 § 283. Godolphin also has very correctly laid down the general principle. "All conditions against the liberty of marriage are unlawful. But, if the conditions are only such, as whereby mar- riage is not absolutely prohibited, but only in part restrained, as in respect to time, place, or person, then such conditions are not utterly to be rejected." 1 Still, this language is to be understood with proper limitations ; that is to say, that the restraints upon marriage, in respect to time, place, or person are reasonably asserted. For it is obvious that restraints as to time, place, and * person may be so framed as to operate a virtual prohibition upon marriage, or, at least, upon its most important and valuable ob- jects. As, for instance, a condition that a child should not marry until fifty years of age ; 2 or should not marry any person inhabit- ing in the same town, county, or State ; or should not marry any person who was a clergyman, a physician, or a lawyer, or any per- son, except of a particular trade or employment ; for these would be deemed a mere evasion or fraud upon the law. 3 § 284. On the other hand, some provisions against improvident matches, especially during infancy, or until a certain age of dis- cretion, cannot be deemed an unreasonable precaution for parents and other persons to affix to their bounty. 4 Thus a legacy given to a daughter to be paid her at twenty-one years of age, if she does not marry until that period, would be held good, for it postpones marriage only to a reasonable age of discretion. 5 So, a condition, annexed to a gift or legacy, that the party should not marry without the consent of parents or trustees, or other persons speci- fied, is held good ; for it does not impose an unreasonable restraint upon marriage ; and it must be presumed that the person selected will act with good faith and sound discretion in giving or withhold- ing consent. 6 The civil law, indeed, seems, on this point, to have adopted a very different doctrine ; holding that the requirement of- the consent of a third person, and especially of an interested per- son, is a mere fraud upon the law. 7 1 Godolphin's Orphan's Legacy, Pt. 1, Beaumont v. Squire, 21 L. J. Q. B. 123 ch. 15, § 1. [Young v. Furse, 8 De G., M. & G. 756]. 2 But see 1 Roper on Legacies, ch. 13, 6 Deebody v. Boyville, 2 P. Will. 547 § 2, p. 716, edit, by White. Scott v. Tyler, 2 Bro. Ch. 431, 485; i 8 See Scott v.. Tyler, 2 Dick. 721, 722 ; Dick. 712 ; Clarke v. Parker, 19 Ves. 1 2 Brown, Ch. 488. Lloyd v. Branton, 3 Meriv. 108 ; Dash- * Scott v. Tyler, 2 Dick. 719. woodw. Bulkley, 10 Ves. 229. 6 See Stackpole v. Beaumont, 3 Ves. ' Lord Thurlow, in Scott v. Tyler, 2 96, 97; Scott w.Tyler, 2 Dick. 721, 722, 724; Dick. 720; Ayliffe, Pand. B. 3, tit. 21, p. 374. 272 EQUITY JURISPRUDENCE. [CH. VII. § 285. Other cases have been stated, which are governed by the same principles. Thus it has been said, that a condition not to marry a widow is no unlawful injunction ; for it is not in gen- eral restraint of marriage. So, a condition that a widow shall not marry, is not unlawful, neither is an annuity during widow- hood only. 1 A condition to marry, or not to marry, Titius or Msevia, is good. So a condition, prescribing due ceremonies and a due place -of marriage, is good. And so any other conditions of a similar nature, if not used evasively, as a covert purpose to restrain marriage generally. 2 [And on the same general princi- ple, a condition that the legatee shall not become a nun is valid ; and although the will contain no bequest over, the legacy is for- feited if the legatee does become a nun. 3 ] § 286. But courts of equity are not generally inclined to lend an indulgent consideration to conditions in restraint of marriage ; 4 and on that account (being in no small degree influenced by the doctrines of the civil and canon law), they have not only con- stantly manifested an anxious desire to guard against any abuse, to which the giving of one person any degree of control over another might eventually lead ; but they have, on many occasions, resorted to subtleties and artificial distinctions, in order to escape from the positive directions of the party imposing such conditions. § 287. One distinction is, between cases where, in default of a compliance with the condition, there is a bequest over, and cases where there is not. a bequest over, upon a like default of the party to comply with the condition. In the former case, the bequest over becomes operative upon such default, and defeats the prior 1 Lloyd v. Lloyd, 10 Eng. Law & Eq. See Hooper v. Dundas, 10 Barr, 75 ; Ben- 139. Conditions requiring widowhood, nett v. Robinson, 10 Watts, 348 ; The were generally void by the civil law, when Commonwealth v. Stauffer, 10 Barr, 350 ; the legacy was to the party herself ; but [Stroud v. Bailey, 3 Grant (Penn.), 310]. not where it was to a third person. Ayliffe, But see Scott v. Tyler, 2 Dick. 721, 722; Pand. B. 3, tit. 21, p. 374. Legatum alii s. c. 2 Brown, Ch. 488; Harvey v. Aston, sub conditione sic relictum ; si uxor nup- 1 Atk. 379 ; Marples v. Bainbridge, 1 tui se post mortem mariti non colloca- Mad. 590; Richards o. Baker, 2 Atk. 321 ; verit, contractis nuptiis, conditione deficit, 1 Roper on Legacies, by White, ch. 13, ideoque peti nequaquam potest. Cod. § 2, p. 721, 722. See post, § 291 c. Lib. 6, tit. 40, 1. 1 ; Pothier, Pand. Lib. 35, 2 Scott v. Tyler, 2 Bro. Ch. 488 ; 2 tit. 1, n. 35. In Parsons v. Winslow (6 Dick. 721, 722 ; Godolp. Orp. Leg. Pt. 3, Mass. 169), where the legacy was during ch. 17, § 1 to 10 ; Ayliffe, Pand. B. 3, tit. widowhood and life, without any bequest 21, p. 374. over, the court held the condition to be 8 [Dickson, in re, 1 Eng. Law &Eq. 149.] in terrorem only ; and that the legatee 4 See Long v. Dennis, 4 Burr. 2052. took, notwithstanding a second marriage. Lord Mansfield, in Long v. Dennis, 4 Burr. § 285-289.] CONSTRUCTIVE FRAUD. 273 legacy. 1 In the latter case (that is, where there is no bequest over), the condition is treated as ineffectual, upon the ground that the testator is to be deemed to use the condition in terrorem only, and not to impose a forfeiture, since he has failed to make any other disposition of the bequest upon default in the condition. 2 § 288. Another distinction is taken between conditions in re- straint of marriage, annexed to a bequest of personal estate, and- the like conditions, annexed to a devise of real estate, or to a charge on real estate, or to things savoring of the realty. In the latter cases (touching real estate) the doctrine of the common law, as to conditions, is strictly applied. If the condition be pre- cedent, it must be strictly complied with, in order to entitle the party to the benefit of the devise or gift. If the condition be subsequent, its validity will depend upon its being such as the law will allow to devest an estate. For, if the law deems the condi- tion void as against its own policy, then the estate will be abso- lute and free from the condition. If, on the other hand, the condition is good, then a non-compliance with it will defeat the estate, in the same manner as any other condition subsequent will defeat it. 3 § 289. But, if the bequest be of personal estate, a different rule seems to have prevailed, founded, in all probability, upon the 2055, said: "Conditions in restraint of Long i>. Dennis, 4 Burr. 2055; 1 Eq. marriage are odious, and are, therefore, Abridg. 110, C. ; Parsons v. Winslow, 6 held to the utmost rigor and strictness." Mass. 169 ; 1 Roper on Legacies, by Lord Eldon seems to have disapproved of White, ch. 13, § 1, p. 654 to 660 ; id. § 2, this generality of expression, in Clarke v. p. 687, 715 to 727 ; Eastland v. Reynolds, Parker, 19 Ves. 19. 1 Dick. 317. [But see Dickson, in re, 1 1 Clarke v. Parker, 19 Ves. 13 ; Lloyd Eng. Law & Eq. 149, as to a bequest v. Branton, 3 Meriv. 108, 119 ; 1 Fonbl. over.] Eq. B. 1, ch. 4, § 10, note (?) ; Wheeler s Co. Litt. 206 a and b ; id. 217 a ; id. v. Bingham, 3 Atk. 368 ; Malcolm v. 237, Har.g. & Butler's note (152) ; Bertie O'Callaghan, 2 Mad. 350; Chauneey v. v. , Faulkland, 3 Ch. Cas. 130; s. o. 2 Graydon, 2 Atk. 616. [Where the condi- Freeman, 220; 2 Vern. 333 ; 1 Eq. Cas. tion of a devise w-a4 the giving of a bond Abridg. 108, margin; Harvey v. Aston, not to marry or cohabit with certain Com. 726 ; s. c. 1 Atk. 261 ; Reynish o. persons, with a devise over, the court re- Martin, 3 Atk. 330, 332, 333 ; Fry v. Por- fused to enforce the condition, as tending ter, 1 Mod. 300 ; Long v. Rickets, 2 Sim. to inquiries disturbing the peace of & Stu. 179; Commonwealth v. Stauffer, another family. Poole v. Bott, 11 Hare, 10 Barr, 350 ; Popham v. Bamfield, 1 33.] Vern. 83 ; 1 Fonbl. Eq. B. 1, ch. 4, § 10, 2 Harvey «* Aston, 1 Atk. 361, 375, note (?) ; Graydon v. Hicks, 2 Atk. 16 ; 377 ; Reynish v. Martin, 3 Atk. 330 ; 1 Peyton v. Rury, 2 P. Will. 626 ; 1 Roper. Wilson, 130; 1 Fonbl. Eq. B. 1, ch. 4, on Legacies, by White, ch. 13, § 1, p. § 10, note (?) ; Pendarvis v. Hicks, 2 Free- 650, 666 ; id. § 2, p. 687 to 727 ; post, man, 41; Pullen v. Ready, 2 Atk. 587; § 290, note (2). eq. juk. — vol. i. 18 274 EQUITY JURISPRUDENCE. [CH. VII. doctrines maintained in the ecclesiastical courts, and derived from the canon and civil law. 1 If the condition in restraint of mar- riage be subsequent and general in its character, it is treated as the like condition is at law, in regard to real estate, as a mere nullity, and the legacy becomes pure and absolute. 2 If it be only a limited restraint (such as to a marriage with the consent of parents, or not until the age of twenty-one), and there is no bequest over upon default, the condition subsequent is treated as merely in terrorem ; and the legacy becomes pure and absolute. 3 But if the restraint be a condition precedent, then it admits of a very different application from the rule of the common law in similar cases as to real estate. For, if the condition regard real estate, and be in general restraint of marriage, there, although it is void, yet as we have seen, if there is not a compliance with it, the estate will never arise in the devisee. But if it be a legacy of personal estate, under like circumstances, the legacy will be held good and absolute, as if no condition whatsoever had been annexed to it. § 290. Whether the same rule is to be applied to legacies of personal estate upon a condition precedent, not in restraint of mar- riage generally, but of a limited, and qualified, and legal character, where there is no bequest over, and there has been a default in complying with the condition, has been a question much vexed and discussed in courts of equity, and upon which some diversity of judgment has been expressed. There are, certainly, authorities which go directly to establish the doctrine, that there is no distinc- tion in cases of this sort between conditions precedent and condi- tions subsequent. In each of them, if there is no bequest over, the legacy is treated as pure and absolute, and the condition is made in terrorem only. The civil law and ecclesiastical law recog- nize no distinction between conditions precedent and conditions subsequent, as to this particular subject. 4 On the other hand, there are authorities which seem to inculcate a different doctrine, and to treat conditions precedent, as to legacies of this sort, upon the 1 1 Roper on Legacies, by White, ch. Roper on, Legacies, by White, ch. 13, § 1, 13, § 1, p. 650 to 660 ; Scott v. Tyler, 2 p. 654, &c. ; id. § 2, p. 715, 747 ; Garret v. Bro. Ch. 487 ; 2 Dick. 712 ; Stackpole v. Pritty, 2 Vern. 293 ; Wheeler v. Bingham, Beaumont, 3 Ves. 96. 3 Atk. 364 ; Hooper v. Dundas, 10 Barr, 2 See Morley v. Rennoldson, 2 Hare, 75. 570. * See Harvey v. Aston, 1 Atk. 376; 8 Lloyd v. Branton, 3 Meriv. 117; 8. c. Com. Rep. 738 ; Eeynish v. Martin, 3 Marples v. Bainbridge, 1 Mad. 590 ; 1 Atk. 332. § 289-291.] CONSTEUCTITE FRAUD. 275 same footing as any other bequests or devises at the common law ; that is to say, that they are to take effect only upon the condition precedent being complied with, whether there be a bequest over or not. 1 § 291. But, whichever of these opinions shall be deemed to maintain the correct doctrine, there is a modification of the strict- ness of the common law, as to conditions precedent in regard to personal legacies, which is at once rational and convenient, and promotive of the real intention of the testator. It is, that where a literal compliance with the condition becomes impossible from unavoidable circumstances, and without any default of the party, it is sufficient that it is complied with, as nearly as it practically can be, or (as it is technically called) Cy pres. This modification is derived from the civil law, and stands upon the presumption, that the donor could not intend to require impossibilities, but only a substantial compliance with his directions, as far as they should admit of being fairly carried into execution. It is upon this ground that courts of equity constantly hold, in cases of personal legacies, that a substantial compliance with the condition satisfies it, although not literally fulfilled. Thus, if a legacy upon a condi- tion precedent should require the consent of three persons to a marriage, and one or more of them should die, the consent of the survivor or survivors would be deemed a sufficient compliance with condition. 2 And, d fortiori, this doctrine would be applied to conditions subsequent. 3 1 The former doctrine (that is, that doctrine ; and so is Mr. Hovenden, in his there is no difference between conditions Supplement to Vesey, Jr., Vol. 1, p. 353, precedent and conditions subsequent, as note to 3 Ves. 89. See also Mr. Saun- to this point) was maintained by Lord ders's note to Harvey v. Aston, 1 Atk. Hardwicke, in Eeynish v. Martin, 3 Atk. 361. A distinction has also been taken 330 ; and was recognized by Lord Clare, between cases of personal legacies and in Keily v. Monck, 3 Ridgw. 263 ; and by cases of portions charged on land. In Sir Thomas Plumer, in Malcolm v. O'Cal- the former, the condition may, perhaps, laghan, 2 Mad. 349, 353. See also Gar- be dispensed with, at least under some but v. Hilton, 1 Atk. 381. But the con- circumstances; in the latter, the condition trary doctrine is indicated in Hemmings must be complied with, to entitle the v. Munckley, 1 Bro. Ch. 303 ; Scott ». party to take, although there may be no Tyler, 2 Bro. Ch. 488; 2 Dick. 723, 724; devise over. See Harvey v. Aston, 1 Stackpole v. Beaumont, 3 Ves. 89. See Atk. 361 ; s. c. Com. Rep. 726 ; Cas. T. also Knight v. Cameron, 14 Ves. 388; Talb. 212. Clarke v. Parker, 19 Ves. 13; Elton v. * Swinburne on Wills, Pt. 4, § 7, n. 4, Elton, 1 Ves. 4. Mr. Roper, in his work p. 262 ; 1 Roper on Legacies, by White, on Legacies, 1 Roper on Legacies, by ch. 13, § 2, p. 691, 692. See Clarke v. White, ch. 13, § 1, p. 654 to 660 ; id. § 2, Parker, 19 Ves. 1, 16, 19. p. 715 to. 727, is of opinion that the 3 See 1 Roper on Legacies, ch. 13, § 2, weight of authority is with the latter p. 691 ; Peyton v. Bury, 2 P. Will. 626 ; 276 EQUITY JURISPRUDENCE. [CH. VII. [* § 291 a. So also conditions annexed to a gift, the tendency of which is to induce husband and wife to live separate, or be divorced, are, upon grounds of public policy and public morals, held void. In an earty case, 1 where the father bequeathed a sum of money to his daughter, " if she would be divorced from her husband," the condition was held void ; and although precedent in its character, that, nevertheless, the gift being of personalty took effect. And in another case, 2 where the testator directed, that if " his niece lived with her husband, his executors should pay her £ 2 per month, and no more ; but if she lived from him, and with her mother, then they should allow her £5 per month ; " it was held that the legatee was entitled to the largest sum, without living apart from her husband; and Lord Keeper Henly thought, as the condition was " contra bonos mores, the legacy was simple and pure." And, in a recent case, 3 where an annuity was bequeathed to a daughter, a married woman, " in case she should be living apart from her husband, and should continue to do so " during the life of the testator's widow ; and providing that the annuity should cease whenever the annui- tant should cohabit with her husband ; and where the will also con- tained a residuary trust, the income of which was to be paid to the daughter, during such time as she should continue to live apart from her husband ; but directed, that, whenever she should cohabit with her husband, such income should be paid to other legatees ; the will also containing a trust for children of the daughter, by any other husband ; the daughter and her husband living apart, at the date of the will, but being reconciled and living together at the death of the testator and subsequently : it was held that the daughter was entitled to the benefit of all the provisions of the will in her favor. The vice-chancellor, Knight Bruce, said, in giving judgment : " It is impossible to read the will without perceiving that the testator's wish and object were to obstruct a reconciliation, and prevent the wife from living with her husband. And that, by that wish, by that object, its provisions to her were influenced and directed. The weight of authority and the principles of the civil law, as far as I consider them applicable, seem to me to render a decision in this case, in the daughter's favor, consistent at once with technical equity and moral justice." 4 Graydon «.-. Hicks, 2 Atk. 16, 18 ; Aisla- 2 Brown v. Peck, 1 Eden, 140. bie v. Rice, 3 Mad. 256; Worthington v. 8 Wren v. Bradley, 2 De G. & Sm. 49. Evans, 1 Sim. & Stu. 165. * Leading Cases in Equity, Vol. 2, 411, i [*Tennant v. Braie, Tothill, 141. 412. § 291 a, 291 6.] constructive fraud. 277 § 291 b. Conditions annexed to devises, both of real and per- sonal estate, to a widow, that they shall become inoperative in the event of the marriage of the devisee, have been generally recog- nized both in England and America. 1 It has been attempted, in some American cases, to maintain even that such conditions do not apply to real estate, at common law ; and sometimes even, that conditions in restraint of marriage generally are valid, at common law. 2 But no such principle is fairly maintainable. There seems no impropriety, however, in allowing the operation of conditions, in restraint of the marriage of widows, in favor of such persons as may have a reasonable interest, either pecuniary or moral, in the question of their marriage. It has accordingly been considered that such conditions, or limitations, whether in regard to the con- tinuance of an estate, in real or personal property, were entirely valid. 3 And the American cases recognize the same right to an- nex conditions to a gift, in restraint of the marriage of the donee, although not a widow, provided such conditions be not unreason- able, as in the case of an infant, unless with the consent of her guardian. 4 And a condition subsequent, attached to a bequest of personalty, in restraint of marriage, even in the case of a widow, where no limitation over is provided for, has been held void, as being merely in terrorem. 6 So, also, conditions in general re- straint of marriage, whether of males or females, and whether be- fore marriage or not, are held inoperative, as against sound policy. 6 We consider that there is no well recognized difference between the case of a widow and others, in this respect, which may be said to rest upon principle. It depends wholly upon the inquiry, whether the condition is reasonable, in itself, under the particular circum- stances. There is a recognized difference between real and per- sonal estate, as to the operation of a gift upon condition precedent, which is illegal. In the former case, the estate will not vest, 1 Ante, § 285. * Collier v. Slaughter, 20 Ala. 263. 2 Phillips v. Medbury, 7 Conn. 568; « M'Hvaine v. Gethen, 3 Wharton, 575 ; Commonwealth v. Stauffer, 10 Penn. St. Hoopes v. Dundas, 10 Penn. St. 75 ; Par- 350. • sons v. Winslow, 6 Mass. 169. [But 8 Pringle v. Dunkley, 14 Sm. & M. 16 ; where the motive of the bequest is evi- Hughes v. Boyd, 2 Sneed, 512 ; Hawkins dently the maintenance of the children, v. Skeggs, 10 Humph. 31 ; Collier v. such condition will, it seems, be enforced, Slaughter, 20 Alabama, 263 ; Bennett v. though there is no limitation over. Robinson, 10 Watts, 348 ; McCullough's Tricker v. Kingsbury, 7 W. B. 652.] App. 12 Penn. St. 197 ; Vance v. Camp- 6 Maddox v. Maddox, 11 Grattan, 804 ; bell's Heirs, 1 Dana, 229 ; Holmes v. Meld, 2 Leading Cases in Eq. 416 ; Waters v. 12 Illinois, 424. Tazewell, 9 Md. 291. 278 EQUITY JURISPRUDENCE. [CH. VII. unless the condition be performed, notwithstanding it being against law; 1 but in the latter case, the condition being void, the estate takes effect the same as if it had been absolute. 2 But it has been held that the compromise of a litigation, between the parties them- selves, without the intervention of third parties, is not rendered invalid, in consequence of being founded upon the consideration of marriage. 3 § 291 a. The English cases, and some of the American cases, certainly do argue a substantial difference between the condition which a man may annex to a gift to his widow, and one to any other woman. 4 The Vice-chancellor here says, " The law recognizes in the husband that species of interest in the widowhood of his wife as makes it lawful for him to restrain a second marriage." And it is here laid down, that there is a difference, even in equity, between a condition and limitation, in a gift to one not married, and that one may give an estate to any woman, to continue so long as she shall remain single ; but if he give a life, or other estate, and then append a condition to defeat that estate, if she marries, the condition is not good. Such a distinction may be valid, per- haps, in regard to the creation of estates in the realty ; but we question if it could fairly be maintained in courts of equity, in regard to testamentary gifts of real estate ; and especially of per- sonalty, where the general intent of the donor is more to be regarded than the precise technical form of the gift. 6 And we apprehend that there is no substantial reason, either in law or in 1 Greenleaf s Cruise, Vol. 2, 16. of widow are good, irrespective of who it 2 Maddox v. Maddox, supra. is that imposes them. As to whether a 8 Donallen v. Lenox, 6 Dana, 89. condition in restraint of remarriage of a 4 Lloyd v. Lloyd, 2 Simons, New Series, widower would be good, qucere, see Evans 235. And in Grace v. W ebb, 15 Simons, . Williams, 18 null, 6 Moore, P. C. 300. Ves. 379. [Contra as to the difference 8 Ritchie v. Smith, 6 C. B. 462. received by an officer upon retiring from 9 Powell v. Knowler, 2 Atk. 224 ; Rey- full pay, and going upon half pay. Price nell v. Sprye, 1 De G., M. & G. 660. o. Lovett, 4 Eng. Law & Eq. 110.] »» 1 Fonbl. Eq. B. 1, ch. 4, § 4, note 6 Methwold v. Walbank, 2 Ves. 238. («) ; Chesterfield v. Janssen, 1 Atk. 352 ; 6 Johnson v. Ogilby, 8 P. Will. 276, s. c. 2 Ves. 124, 156; Boynton v. Hub- and Cox's note (1) ; Keir v. Leeman, 9 bard, 7 Mass. 119; Hartwell v. Hartwell, Ad. & El. n. s. 371 ; 2 Lead. Crim. Cas. 4 Ves. 811, 815; [Hunter v. Nalp, 71 Penn. 258 and note ; Newland on Contr. ch. 8, St. 282.] p. 158 ; Shaw v. Reed, 30 Me. 105. 286 EQUITY JURISPRUDENCE. [CH. VII. chievous arrangements may be made to the injury of the public ; and persons may be introduced or kept in office who are utterly unqualified to discharge the proper functions of their stations. 1 Such contracts are justly deemed contracts of moral turpitude ; 2 and are calculated to betray the public interests into the adminis- tration of the weak, the profligate, the selfish, and the cunning. They are, therefore, held utterly void, as contrary to the soundest public policy ; and, indeed, as a constructive fraud upon the gov- ernment. 3 It is acting against the spirit of the constitution of a free government, by which it ought to be served by fit and able persons, recommended by the proper officers of the government for their abilities, and from motives of disinterested purity. 4 It has been strongly remarked that there is no rule better established (it should be added, in law and reason, for, unfortunately, it is often otherwise in practice), respecting the disposition of every office, in which the public are concerned, than this, detur digniori. On principles of public policy, no money consideration ought to influence the appointment to such offices. 5 It was observed of old, that the sale of offices accomplished the ruin of the Roman Re- public. " NullS. ali& re magis Romana Respublica interiit, quam quod magistrates officia venalia erant." 6 § 296. Another class of agreements, which are held to be void on account of their being against public policy, are such as are founded upon corrupt considerations, or moral turpitude, whether they stand prohibited by statute or not ; for these are treated as frauds upon the public or moral law. 7 The rule of the civil law on this subject speaks but the language of universal justice. " Pacta, quae contra leges constitutionesque, vel contra bonos mores fiunt, nullam vim habere, indubitati juris est." 8 It is but applying 1 Chesterfield v. Janssen, 2 Ves. 135, * Morris v. Mac Cullock, 2 Eden, 190; 136; b. c. 1 Atk. 352; Newland on Con- s. o. Ambler, 432, 435; Ire v. Ash, Pree. tracts, ch. 33, p. 477 to 482. Ch. 199; Co. Litt. 234 a; East India 2 Morps v. Mac Cullock, 2 Eden, 190 ; Company v. Neave, 6 Ves. 173, 181, 184 ; s. c. Ambler, 435 ; Law v. Law, 3 P. Will. Hartwell v. Hartwell, 4 Ves. 811. 391 ; s. c. Cas. T. Talb. 140 ; Harrington 6 Lord Kenyon in Blachford v. Pres- v. Du Chastel, 2 Swanst. 167, note ; s. c. ton, 8 T. Eep. 92 ; Newland on Contracts, 1 Bro. Ch. 124. 478. 3 Bellamy v. Burrow, Cas. T. Talb. • Cited Co. Litt. 234 a. [So an agree- 97 ; Harrington v. Du Chastel, 1 Bro. Ch. ment for sharing emoluments of office, 124; s. c. 2 Swanst. 167, note; Garforth in consideration of services in the can- v. Eearon, 1 H. Black. 327, 329 ; Palmer vass, is void. Martin v. Wade, 37 CaL v. Bate, 6 Moore, 28 ; s. c. 2 Bro. & Bing. 168.] 673; Waldo v. Martin, 4 B. & Cressw. 7 Newland on Contracts, ch. 32, p. 469, 319 ; Parsons ». Thompson, 1 H. Black. &c. ; 1 Fonbl. Eq. B. 1, ch. 4, § 5. 322, 326. s Cod. Lib. 2, tit. 3, 1. 6. § 295-297.] CONSTRUCTIVE FRAUD. 287 a preventive check, by withholding every encouragement from wrong, and aiming thereby to enforce the obligations of virtue. For, although the law, as a science, must necessarily leave many moral precepts without due enforcement, as rules of imperfect obligation only, it is most studious not thereby to lend the slightest counte- nance to the violations of such precepts. Wherever the div.ine law, or the positive law, or the common law prohibits the doing of cer- tain acts, or enjoins the discharge of certain duties, any agreement to do such acts, or not to discharge such duties, is against the dearest interests of society, and,, therefore, is held void ; for, other- wise, the law would be open to the just reproach of winking at crimes and omissions, or tolerating, in one form, what it affected to reprobate in another. 1 Hence, all agreements, bonds, and secu- rities, given as a price for future [and all agreements not under seal to pay for past] 2 illicit intercourse 3 Qprcemium pudoris'), or for the commission of a public crime, or for the violation of a pub- lic law, or for the omission of a public duty, 4 are deemed incapa- ble of confirmation or enforcement upon the maxim, Ex turpi con- tractu non oritur actio. 5 § 296 a. But where a party to an illegal or immoral contract comes himself to be relieved from that contract or its obligations, he must distinctly and exclusively state such grounds of relief as the court can legally attend to ; and he must not accompany his claim to relief, which may be legitimate, with other claims and complaints, which are contaminated with the original immoral purpose ; for if he sets up as a ground of relief the non-fulfilment of the illegal contract on the other side, and thereby that he is released from his obligation to perform it, that shows that he still relies upon the immoral contract and its terms for relief, and therefore the court will refuse it. 6 § 297. Other cases might be put to illustrate' the doctrine of i 1 Fonbl. Eq. B. 4, ch,. 4, § 4, and 1568; Franco v. Bolton, 3 Ves. 37.0 ; Ben- notes (s), (y). yon v. Nettlefold, 2 Eng. Law & Eq. 113 ; 2 Beaumont v. Eeere, 8 Q. B. Kep. 483. Clarke v. Periam, 2 Atk. 333, 337 ; Wha- 8 See Sherman v, Barrett, 1 McMull. ley v. Norton, 1 Vern. 483 ; Robinson v. Ex. 147. Gee, 1 Ves. 251, 254 ; Gray v. Mathias, 5 4 [That is, as to future neglect, but not Ves. 286 ; Ottley v. Browne, 1 Ball & to past. A contract to indemnify an Beatt. 360 ; Battersby v. Smith, 3 Mad. officer for past neglect of duty is not 110 ; Thompson v. Thompson, 7 Ves. 470 ; illegal. Hall v. Huntoon, 17 Verm. 244.] St. John v. St. John, 11 Ves. 535, 636. 6 1 Fonbl. Eq. B. 1, ch. 4, § 4, and But see Spear v. Hayward, Prec. Ch. 114. notes (s), (y) ; Walker «. Perkins, 3 Burr. 6 Bates v. Chester, 5 Beavan, 103. 288 EQUITY JURISPRUDENCE. [CH. VII. courts of equity, in setting aside the agreements and acts in fraud of the policy of the law. Thus, if a devise is made upon a secret trust for charity, in evasion of the statutes of mortmain, it will be set aside. 1 So, if a parent grant an annuity to his son to qualify him to kill game, he will not be permitted, by tearing off the seal, to avoi(J the conveyance. 3 So, if a person convey an estate to another to qualify him to sit in parliament, or to become a voter, he will not be permitted to avoid it, upon the ground of its having been done by him in fraud of the law, and upon a secret agree- ment that it shall be given up. 3 So, conveyances made of estates in trust, in order to secure the party from forfeitures for treason or felony, will be set aside against the crown ; but they will be good against the party. So, contracts affecting public elections are held void ; so are assignments of rights or property, pendente lite, when they amount to, or partake of, the character of mainte- nance or champerty, and are reprehended by the law. 4 § 298. And here it may be well to take notice of a distinction often, but not universally, acted on in courts of equity as to the nature and extent of the relief, which will be granted to persons who are parties to agreements or other transactions against public policy, and therefore are to be deemed participes criminis. In general (for it is not universally true), 6 where parties are con- cerned in illegal agreements or other transactions, whether they are mala prohibita or mala in Be, courts of equity, following the rule of law, as to participators in a common crime, 6 will not at 1 Strickland v. Aldridge, 9 Ves. 516 ; cover back the money] ; for, where both Muckleston v. Brown, 6 Ves. 52. parties are equally criminal against such 2 1 Mad. Pr. Ch. 242 ; Curtis v. Perry, general laws, the rule is Potior est conditio 6 Ves. 747 ; Birch v. Blagrave, Ambler, defendentis. But there are other laws 264, 265. which are calculated for the protection 3 See the Duke of Bedford v. Coke, 2 of the subject against oppression, extor- Ves. 116, 117; 3 P. Will. 233; 1 Mad.Pr. tion, deceit, &c. If such laws are vio- Ch. 243. lated, and the defendant takes advantage * Wallis v. Duke of Portland, 3 Ves. of the plaintiff's condition or situation, 494 ; Stevens u. Bagwell, 15 Ves. 139 ; there the plaintiff shall recover. And it Strachan v. Brandon, 1 Eden, 303 ; cited is astonishing that the Reports do not 18 Ves. 127, 128. distinguish between the violation of the 6 The relief granted in courts of one sort and the other." Id. p. 697; equity, in cases of usury, constitutes an Astley v. Reynolds, 2 Str. 915. See 1 exception. Smith v. Bromley, Doug. 695, Eonbl. Eq. B. 1, ch. 2, § 13, and note (r) ; note ; id. 697, 698. In this case Lord 1 Mad. Pr. Ch. 241, 245 ; Browning v. Mansfield said : " H the act is in itself Morris, Cowp. 790. immoral, or a violation of the general 6 Buller, N. P. 131, 132; Harrington laws of public policy, there the party v. Bigelow, 11 Paige, 349. paying shall not have this action [to re- § 297, 298.] CONSTRUCTIVE FRAUD. 289 present interpose to grant any relief ; a acting upon the known maxim, In pari delictu potior est conditio defendentis, et possiden- tis. 2 But in cases where the agreements or other transactions are repudiated on account of their being against public policy, the circumstance, that the relief is asked by a party who is parti- ceps criminis, is not in equity material. The reason is, that the public interest requires that relief should be given ; and it is given 1 See Logan v. Gigley, 11 Geo. 246 ; Jones v. Gowan, 7 Iredell, Eq. 21 ; Gait v. Jackson, 9 Geo. 151. 2 See Bromley v. Smith, Doug. 697, note; id. 698; Vandyck v. Hewitt, 1 East, 96; Hanson ». Hancock, 8 T. R. 575; Browning v. Morris, Cowp. 790; Osborne v. Williams, 18 Ves. 379 ; Buller, N. P. 131, 132 ; 1 Fonbl. Eq. B- 1, ch. 4, § 4, note (y) ; Bosanquet r. Dashwood, Cas. T. Talb. 37, 40, 41. I say, at present ; for there has been considerable fluctua- tion of opinion, both in courts of law and equity on this subject. The old cases often gave relief, both at law and in equity, where the party would otherwise derive an advantage from his iniquity. But the modern doctrine has adopted a more severely just,.and probably politic and moral rule, which is, to leave the parties where it finds them, giving no relief and no countenance to claims of this sort. See the cases at law, Tomkins v. Bernet, 1 Salk. 22 ; Bromley v. Smith, Doug. 695, note ; Collins u. Blantern, 2 Wills. 347 ; Lowry o. Aurdieu, Doug. 468; Marak v. Abel, 3 Bos. & Pull. 35 ; Vandyck v. Hewitt, 1 East, 96 ; Lubbock v. Potts, 7 East, 449, 456; Browning v. Morris, Cowp. 750 ; Hanson o. Hancock, 8 T. R. 575; MeCullum o. Gourlay, 8 Johns. 113; Buller, N. P. 181 ; 1 Fonbl. Eq. B. 1, ch. 4, § 4, and note (y) ; Buller, N. P. 131, 132 ; Inhab. of Worcester o. Eaton, 11 Mass. 368, 376, 377 ; Phelps v. Decker, 10 Mass. 267, 274. And in equity, see the cases of Neville v. Wilkinson, 1 Bro. Ch. 543, 547, 548 ; Jacob, 67 ; Watts v. Brooks, 3 Ves. Jr. 612; East India Company v. Neave, 5 Ves. 173, 181, 184; Thompson v. Thompson, 7 Ves. 469 ; Knowles v. Haughton, 11 Ves. 168 ; St. John v. St. John, 11 Ves. 535, 536 ; Os- borne u. Williams, 18 Ves. 379 ; Bosan- quet v. Dashwood, Cas. T. Talb. 37; Rider v. Kidder, 10 Ves. 366 ; Rawdon v. Shadwell, Ambler, 269, and Mr. Blunt's notes. In the case of Phelps v. Decker (10 Mass. 274), it was broadly laid down that " by the common law, deeds of con- veyance, or other deeds, made contrary to the provisions of a general statute, or for an unlawful consideration, or to carry into effect a coritract unlawful in itself, or in consequence of any prohibitory statute, are void ah initio, and may be avoided by plea ; or, on the general issue, nan est factum,the illegality may be given in evidence." But, in a later case, the doc- trine was qualified ; and the court took the distinction between bonds and con- tracts, sought to be enforced, and actual conveyances of lands or other property. The former might be avoided ; the latter were treated as actual transfers, and gov- erned by the same rule as the payment of money, or the delivery of a personal chat- tel. Inhabitants of Worcester v. Eaton, 11 Mass. 375 to 379. [An assignment of a lease of premises to be used as a place of prostitution cannot be enforced in equity. Smith v. White, L. R. 1 Eq. 626. See ante, § 61. See also D'Wolf v. Pratt, 42 HI. 198; Marlatt v. Warwick, 4 C. E. Green, 439; Cutler v. Tuttle, ib. 549, 562 ; compare Sweet v. Tinslar, 52 Barb. 271. It seems where there is a deed in fraud of creditors, and a written contemporaneous declaration of trust by the grantee in favor of grantor, equity will enforce the trust as between the parties. Ownes v. Ownes, 8 C. E. Green, in 11 Am. Law Reg. (n. s.) .776. See Harvey u. Varney, 98 Mass. 118. See ante, § 64 e, note. In Wells v. Smith, 13 Gray, 207, the court refused to relieve against a judgment at law, obtained on a note given to test by a collusive action whether the maker had any title in property held in trust for his wife.] eq. jur. — VOL. I. 19 290 EQUITY JURISPRUDENCE. [CH. VII. to the public through the party. 1 And in these cases relief will be granted not only by setting aside the agreement or other trans- action, but, also, in many cases, by ordering a repayment of any money paid under it. 2 Lord Thurlow, indeed, seems to have thought, that in all cases where money had been paid for an ille- gal purpose, it might be recovered back, observing that if courts of justice mean to prevent the perpetration of crimes, it must be, not by allowing a man who has got possession to remain in posses- sion, but by putting the parties back to the state in which they were before. 3 But this is pushing the doctrine to an extravagant extent, and effectually subverting the maxim, In pari delicto potior est conditio defendentis. The ground of reasoning, upon which his lordship proceeded, is exceedingly questionable in it- self ; and the suppression of illegal contracts is far more likely, in general, to be accomplished by leaving the parties without remedy against each other, and by thus introducing a preventive check, naturally connected with a want of confidence, and a sole reliance upon personal honor. And so, accordingly, the modern doctrine is established. 4 Relief is not granted where both parties are truly in pari delicto, unless in cases where public policy would thereby be promoted. 5 § 299. Even in cases of a,prcemium pudicitice, the distinction has 1 St. John v. St. John, 11 Ves. 535, 536 ; also cases of gaming before the statute, Bromley v. Smith, Doug. 695, 697, 698; in Chesterfield v. Janssen,2 Ves. 137,138. Hatch v. Hatch, 9 Ves. 292, 298 ; Roberts See also Inhabitants of Worcester v. v. Roberts, 3 P. Will. 66, 74, and note (1) ; Eaton, 11 Mass. 376, 377. Browning v. Morris, Cowp. 790 ; Morris 8 Neville v. Wilkinson, 1 Bro. Ch. 547, v. Mac Cullock, 2 Eden, 190, and note id. 648 ; 18 Ves. 382. 193 ; [Reynell v. Sprye, 1 De G., M. & G. * See Sharp v. Taylor, 2 Phillips, Ch. 660]. 801. 2 See Goldsmith v. Bruning, 1 Eq. 6 See the remarks of Lord Eldon in Abridg. Bonds, &c. F. 4, p. 89 ; 1 Eonbl. Rider v. Kidder, 10 Ves. 366 ; Smith o. Eq. B. 1, ch. 2, § 13, and note ; Smith Bromley, Doug. 696, note. See also v. Bruning, 2 Vern. 392 ; Morris v. Mac Adams v. Barrett, 6 Geo. 404. [Where Cullock, Ambler, 432 ; s. c. 2 Eden, 180. an assignment is intended for an il- Money paid will not in all cases be legal purpose which is not carried into ordered to be paid back. For instance, execution, the mere intent will not a bond, given for future illicit inter- prevent the assignor from recovering course, will be decreed to be set aside ; back the property. Symes v. Hughes, but money paid under the bond will not, L. R. 9 Eq. 475. And the Statute of under all circumstances, be directed to Frauds cannot in such case be set up as be repaid. See Newland on Contracts, a defence, as it would work a fraud, ch. 33, p. 483 to 492 ; Hill v. Spencer, Lincoln u. Wright, 4 De G. & J. 16 ; Ambler, 641, and id. App. 836 (Blunt's Haigh v. Kaye, L. R. 7 Ch. App. 469. edition) ; Nye v. Moseley, 6 B. & Cressw. And where the directors of a corporation 133 ; Dig. Lib. 12, tit. 6, 1. 4, § 3. See invest its funds in an illegal manner, § 298-300.] CONSTRUCTIVE FRAUD. 291 been constantly maintained between bills for restraining the woman from enforcing the security given, 1 and bills for compelling her to give up property already in her possession under the con- tract. At least, there is no case to be found, where the contrary doctrine has been acted on, except where creditors were concerned. And in this respect the English law seems to have had a steady regard to the policy of the Roman jurisprudence. 2 § 300. And, indeed, in cases, where both parties are in delicto, concurring in an illegal act, it does not always follow, that they stand in pari delicto ; for there may be, and often are, very differ- though with the assent of the corpora- tion, it is like any other wrongful invest- ment of trust funds, the consent being ultra vires, and the corporation may fol- low the fund in equity. Great Eastern K. Co. v. Turner, L. E. 8 Ch. App. 149. The defence of illegality is not favored in equity ^and must be distinctly pleaded. Haigh v. Kaye, L. R. 7 Ch. App. 469. And where money illegally borrowed by a corporation has been applied to it8 benefit, with the consent of the share- holders, the corporation is in equity estopped to set up the illegality. In re Magdalena Steam Nav. Co., Johns. 690 ; In re Cork, &c, R. Co., L. R. 4 Ch. App. 748. And where the contract has been executed, the party in possession of the profits will not be allowed to set up ille- gality as an answer to a suit for an ac- count. Gilliam v. Brown, 43 Miss. 641. See Harvey v. Varney, ante, § 61.] 1 See Weakley v. Warkins, 7 Humph. 356. 2 Rider v. Kidder, 10 Ves. 366. The Roman law has stated some doctrines and distinctions upon this subject, which are worthy of consideration. I shall quote them without commenting upon them. They are partially cited in 1 Fonbl. Eq. B. 1, ch. 4, § 4, note (?/). Three cases are put. (1.) Where the turpitude is on the part of the receiver only ; and there the rule is, Quod si turpis causa accipientis fuerit, etiamsi res secuta sit, repeti potest. Dig. Lib. 12, tit. 5, 1. 1, § 2. (2.) Where the turpitude is on the part of the giver alone; and there the rule is the contrary. Cessat quidem con- dictio, quum turpiter datur. Pothier, Pand. Lib. 12, tit 5, art. 8. (3.) Where the turpitude affects both parties; and there the rule is, Ula autem et dantis et accipientis turpitudo versatur, non posse repeti dicimus; veluti, si pecunia detur, ut male judicetur. Dig. Lib. 12, tit. 5, 1. 3; Pothier, Pand. Lib. 12, tit. 5, n. 7. The reason given is : In pari causa pos- sessor potior haberi debet. Dig. Lib. 50, tit. 17, 1. 128 ; Pothier, Pand. Lib. 12, tit. 5, n. 7. Several other examples are given under this head. Idem, si ob stu- prum datum sit ; vel si quis, in adulterio reprehensus, redemerit se, cessat enim repetitio. Item, si dederit fur, ne prode- retur ; quoniam utriusque turpitudo ver- satur, cessat repetitio. Dig. Lib. 12, tit. 5, 1. 4; Pothier, Pand. Lib. 12, tit. 5, ij. 7. Cum te propter turpem causam contra disciplinam temporum meorum, domum adversaria? dedisse profitearis ; frustra earn tibi restitui desideras ; cum in pari causa possessoris conditio melior habeatur. Cod. Lib. 4, tit. 7, 1. 2 ; Poth- ier, Pand. Lib. 12, tit. 5, 1. 7. Sed quod meretrici datur, repeti non potest. Sed nova ratione, non ea, quod utriusque tur- pitudo versatur, sed solius dantis ; a new reason, which Pothier, as well as TJlpian, seems to doubt. See Dig. Lib. 12, tit. 5, 1. 4, § 3; Pothier, Pand. Lib. 12, tit. 5, n. 7, and note (6). On the other hand, when the money had not been paid, or the contract fulfilled, the Roman law deemed the contract void. Quamvis enim utriusljue turpitudo versatur, ac so- lutie quantitatis cessat repetitio, tamen ex hujusmodi Btipulatione, contra bonoa mores interposita, denegandas esse ac- tiones juris auctoritate demonstratur. Cod. Lib. 4, tit. 7, 1. 5 ; Pothier, Pand. Lib. 12, tit. 5, n. 9. 292 EQUITY JURISPRUDENCE. [CH. VII. ent degrees in their guilt. 1 One party may act under circum- stances of oppression, imposition, hardship, undue influence, or great inequality of condition or age ; so that his guilt may be far less in degree than that of his associate in the offence. 2 And, be- sides, there may be, on the part of the court itself, a necessity of supporting the public interests or public policy, in many cases, however reprehensible the acts of the parties may be. 3 [* § 300 a. Thus, in a very recent case, 4 where the daughter concurred with her father in a covenant to surrender copyholds by way of mortgage, to one who loaned a sum of money to the father ; part of the consideration being the permission of the father for the mortgagee to continue his visits to the daughter, whom he was seducing or had seduced ; upon bill and cross-bill to enforce and to set aside the contract, the court at first considered, that it could not interfere for either party, but ultimately ordered the deed to be cancelled, and that the grantee should pay the costs of both suits. § 300 b. And where one, being deserted by his wife, and not having heard of her for two years, supposed her to be dead and married another ; but subsequently learning that his first wife was alive, and supposing himself liable to be prosecuted for bigamy, conveyed his land to another, with the understanding that the grantee would hold it for his use ; and after the grantor, remain- ing in possession four years and paying off a mortgage upon the premises, the grantee refused to reconvey ; the court held the transaction not illegal, and that the grantor was entitled to a re- conveyance both on the ground of a resulting trust in his favor, and the fraud of the grantee. 5 An agreement executed under threat of prosecuting the plaintiff's son for forgery was ordered to be delivered up to be cancelled. 6 ] § 301. In cases of usury, this distinction has been adopted by courts of equity. All such contracts being declared void by the statute against usury, courts of equity will follow the law in the 1 Smith B.Bromley, Doug. 696; Brown- & Walk. 224, 225; 1 Fonbl. Eq. B. 1, ing v. Morris, Cowp. 790 ; Osborne v. ch. 4, § 4, note (y) ; Bosanquet v. Dash- Williams, 18 Ves. 379 ; Phalen v. Clark, wood, Cas. T. Talb. 37, 40, 41 ; Smith v. 19 Conn. 421. Bromley, Doug. 696, note ; Browning v. 2 Bosanquet v. Dashwood, Cas. T. Morris, Cowp. 790; Morris v. Mao Cullock, Talb. 37, 40, 41 ; Chesterfield v. Janssen, 2 Eden, 190, and note 193. 2 Ves. 156, 157 ; Osborne v. Williams, 18 * [* W v. B , 32 Beav. 574. Ves. 379 ; [* Pinckston v. Brown, 3 Jones, 6 Davics v. Otty, 12 Law T. u. s. 789; Eq. 494J. 8. c. 13 W. K. 484 ; s. c. 35 Beav. 208. a See Woodhouse v. Meredith, 1 Jac. « Bayley v. Williams, 4 Gift. 638.] § 300-302.] CONSTRUCTIVE FRAUD. 293 construction of the statute. If, therefore, the usurer or lender come into a court of equity, seeking to enforce the contract, the court will refuse any assistance, and repudiate the contract. 1 But, on the other hand, if the borrower comes into a court of equity, seeking relief against the usurious contract, the only terms upon which the court will interfere, are, that the plaintiff will pay the defendant what is really and bond fide due to him, deducting the usurious interest, 2 and, if the plaintiff do not make such offer in his bill, the defendant may demur to it, and the bill will be dis- missed. 3 The ground of this distinction is, that a court of equity is not positively bound to interfere in such cases by an active ex- ertion of its powers ; but it has a discretion on the subject, and may prescribe the terms of its interference ; and he who seeks equity at its hands, may' well be required to do equity. And it is against conscience, that the party should have full relief, and at the same time pocket the money loaned, which may have been granted at his own mere solicitation. 4 For then a statute, made to prevent fraud and oppression, would be made the instrument of fraud. But, in the other case, if equity should relieve the lender, who is plaintiff, it would be aiding a wrong-doer, who is seeking to make the court the means of carrying into effect a transaction mani- festly wrong and illegal in itself. 5 § 302. And, upon the like principles, if the borrower has paid the money upon an usurious contract, courts of equity (and, in- deed, courts of law also 6 ) will assist him to recover back the i 1 Fonbl. Eq. B. 1, ch. 1, § 3, note (h) ; la. 419. See Spain v. Hamilton, 1 Wal. Fanning v. Dunham, 5 Johns. Ch. 142, 604; Hart v. Goldsmith, 1 Allen, 145; 143, 144. Smith v. Eobinson, 10 Allen, 130. And 2 See Whitehead v. Peck, 1 Kelly, such seems to he the rule in Wisconsin, 140 ; Ballinger v. Edwards, 4 Iredell's even when the party complainant sets up Eq. 449 ; [Sporrer v. Eifler, 1 Heisk. the usury. Cooper v. Tappan, 4 Wise. (Tenn ) 633; Williams v. Fitzhugh, 37 362. As to the present rule in New N. Y. 444]. York, see Bissell v. Kellogg, 60 Barb. » 1 Fonbl. F/- t . B. 1, ch. 1, § 3, note 617.] (h) ; id. B. 1, ch. 4, § 7, note (k) ; Mason * Scott v. Nesbit, 2 Bro. Ch. C41 ; s. o. v. Gardiner, 4 Bro. Ch. 436; Rogers v. 2 Cox, 183; Benfield v. Solomons, 9 Ves. Eathbun, 1 Johns. Ch. 367 ; Fanning v. 84 ; [Turnough v. Cooper, 31 E. L. & E. Dunham, 5 Johns. Ch. 142, 143, 144; 526]. [Ruddell v. Ambler, 18 Ark. 369; Noble 6 1 Fonbl. Eq. B. 1, ch. 1, § 3, note v. Walker, 32 Ala. 456 ; Ware v. Thomp- (h) ; id. B. 1, ch. 4, § 7, and note (it), son, 2 Beasl. (N. J.) 66. But where the « 1 Fonbl. Eq. B. 1, ch. 4, § 7, and party setting up the usury is acting on note (k) ; Smith v. Bromley, Doug. 696, the defensive, it seems he need not offer note ; Browning v. Morris, Cowp. 792 ; what is justly due. Union Bank v. Bell, Bond v. Hays, Ex'r, 12 Mass. 34 ; Nichols 14 Ohio, N. s. 200; Kuhner v. Butler, 11 v. Bellows, 22 Verm. 581. 294 EQUITY JURISPRUDENCE. [CH. VII. excess paid beyond principal and lawful interest ; but not further. [So, the borrower may maintain a bill to compel the giving up of securities left as collateral security for a usurious debt, although he might have a defence in an action at law. 1 ] For it is no just ob- jection to say, that he is particeps criminis, and that Volenti non fit injuria. It would be absurd to apply the latter maxim to the case of a man, who, from mere necessity, pays more than the other can in justice demand, and who has been significantly called the slave of the lender. He can in no just sense be said to pay voluntarily. And as to being particeps criminis, he stands in vinculis, and is compelled to submit to the terms which oppression and his necessities impose on him. 2 Nor can it be said, in any case of oppression, that the party oppressed is particeps criminis ; since it is that very hardship, which he labors under, and which is imposed upon him by another, that makes the crime. 3 § 303. In regard to gaming contracts, it would follow, a for- tiori, that courts of equity ought not to interfere in their favor, but ought to afford aid to suppress them ; since they are not only pro- hibited by statute, but may be justly pronounced to be immoral, as the practice tends to idleness, dissipation, and the ruin of families. 4 No one has doubted that, under such circumstances, a bill in equity might be maintained to have any gaming security delivered up and cancelled. 5 But it was at one time held, that, if the money were actually paid in a case of gaming, courts of equity ought not to assist the loser to recover it back, upon the ground that he is par- ticeps criminis. Lord Talbot on one occasion said : " The case of gamesters, to which this (of usury) has been compared, is no way parallel ; for there both parties are criminal. And, if two persons will sit down, and endeavor to ruin one another, and one pays the 1 [Peters v. Mortimer, 4 Edw. Ch. 279.] will be taken, and the balance only will 2 Smith v. Bromley, Doug. 696, note ; be required to be paid, upon a decree to Bosanquet v. Dashwood, Cas. temp. Talb. give up the security. Holbrook v. Sharp- 39; Browning v. Morris, Cowp. 790; ley, 19 Ves. 181. Bawden v. Shadwell, Ambler, 269, and * 1 Fonbl. Eq. B. 1, ch. 4, § 6, and note Mr. Blunt's notes ; 1 Eonbl. Eq. B. 1, ch. 4, (c). See Robinson v. Bland, 2 Burr. 1077. § 8, note (4). 6 Kawden v. Shadwell, Ambler, 269, 8 Lord Chancellor Talbot, in Bosan- and Mr. Blunt's notes ; Woodroffe v. Farn- quet v. Dashwood, Cas. temp. Talb. 41. ham, 2 Vern. 291 ; Wynne v. Callender, The same principle applies to cases of 1 Russ. 23 ; Baker v. Williams, cited in annuities set aside for want of a memorial Blunt's note to Ambler, 269 ; Portarling- duly registered ; and an account of the ton v. Soulby, 3 Mylne & Keen, 104 ; Os- consideration paid, and payments made, baldiston v. Simpson, 13 Simons, 513. § 302-305.] CONSTRUCTIVE FRAUD. 295 money ; if, after payment, he cannot recover it at law, I do not see that a court of equity has any thing to do, but to stand neuter, 1 there being in that case no oppression upon the party, as in this. 2 § 304. But it is difficult to perceive, why, upon principle, the money should not be recoverable back, in furtherance of a great public policy, independently of any statutable provision. 3 It has been decided, that, if money is paid upon a gaming security, it may be recovered back, for the security is utterly void. 4 Why is not the original gaming contract equally void ? And if it be, why is it not equally within the rule and the policy oh which the rule is founded ? [* Perhaps the case of gaming contracts is not essen tially different from that of most other illegal contracts. It has often been argued that the higher and wiser policy in regard to all illegal contracts would be to allow money paid, in their further- ance, to be recovered back. But the opposite rule has finally pre- vailed, with few exceptions. And we are not able to comprehend how, or why, a court of equity should be able to grant relief upon principles different from those recognized in courts of law. There may be exceptions, based upon great oppression, and unconscion- able advantage taken of one's weakness or want of caution, through the form of an illegal contract, where the courts of equity will treat the fraud as being the chief ingredient, and grant relief to the injured party upon that ground. But where the parties stand upon equal footing, and the contract is illegal, they cannot expect aid either from the courts of law or equity. 6 ] 8 305. The civil law contains a most wholesome enforcement of 1 [In America, it has been recently chier v. Morse, 2 Gratt. 257. So a cred- held, that a court of chancery would not itor under a gambling contract as to set aside a deed, the consideration of stocks cannot share in assets of insolvent which was an illegal wager. It would debtor. Brua's Appeal, 55 Penn. St. leave the parties where it found them. 294] Thomas v. Cronie, 16 Ohio, 54. See also » See McKinney v. Pope, 3 B. Monroe, Raguert ». Cowles, 14 Ohio, 55.] 93 ; Boner v. Montgomery, 9 B. Monroe, 2 Bosanquet ». Dashwood, Cas. temp. 123. Talb. 41 ; 1 Fonbl. Eq. B. 1, ch. 4, § 6 ; M Fonbl. Eq. B. 1, ch. 4, § 6, and Kawdon v. Shadwell, Amb. 269; Wilkin- note (c). son v. L'Eaugier, 2 Y. & Coll. 366. It has 5 [* Spalding v. Preston, 21 Vt. 9 ; been recently held in England, that Adams v. Gay, 19 Vt. 358 ; Brightly, Eq. money, knowingly lent to game, is not Jur. 94, 95, and cases cited. The statutes recoverable. McKinnell v. Bobinson, of many of the American States allow 3 Mees. & Welsb. 434. [So, in Massa- the loser in gaming to recover back the chusettSj White v. Buss, 3 Cush. 448 ; so, money lost. Brightly, Eq. Jur. supra, and money lent to bet on an election. Ma- cases cited.] 296 EQUITY JURISPRUDENCE. [CH. VII. moral justice upon this subject. It not only protects the loser against any liability to pay the money won in gaming ; but if he has paid the money, he and his heirs have a right to recover it back at any distance of time ; and no presumption or limitation of time runs against the claim. " Victum in alese lusu, non posse conveniri. Et, si solverit, habere repetitionem, tam ipsum, quam haeredes ejus, adversus victorem et ejus haeredes ; idque perpetuo, et etiam post triginta annos." x Thirty years was the general limitation of rights in other cases. § 306. Questions are also often made, as to how far contracts, which are illegal by some positive law, or which are declared so upon principles of public policy, are capable, as between the par- ties, of a substantial confirmation. This subject has been already alluded to, and will be again touched in other places. The general rule is, that wherever any contract or conveyance is void, either by a positive law, or upon principles of public policy, it is deemed incapable of confirmation upon the maxim, Quod ah initio non valet, in tractu temporis non convaleseet. 2 But where it is merely voidable, or turns upon circumstances of undue advantage, sur- prise, or imposition, there, if it is deliberately, and upon full exam- ination, confirmed by the parties, such confirmation will avail to give it an ex post facto validity. 8 ] § 307. Let us, in the next place, pass to the consideration of the second head of constructive frauds ; namely, of those which arise from some peculiar confidential or fiduciary relation between the parties. In this class of cases, there is often to be found some intermixture of deceit, imposition, overreaching, unconscionable advantage, or other mark of direct and positive fraud. But the principle on which courts of equity act in regard thereto stands, independent of any such ingredient; upon a motive of general public i Cod. Lib. 3, tit. 43, 1. 1 ; 1 Fonbl. Eq. 3 P. Will. 289 ; 1 Fonbl. Eq. B. 1, ch. 2, B. 1, ch. 4, § 6, note (c). § 13, note (r) ; id. ch. 2, § 14, note (i), 2 Vernon's case, 4 Co. 2 b. [A con- and the note to § 203 a. [If the party de- tract void as against statute cannot be frauded enters into a new contract with set up as matter of equitable defence, f ull knowledge of the fraud, this condones Martin v. Zellerbach, 38 Cal. 300.] it. Davis v. Henry, 4 W. Va. 571. Oth- 8 Newland on Contracts, ch. 25, p. 496 erwise if he is still under the pressure of to 503 ; Chesterfield v. Janssen, 2 Ves. the original transaction. Ibid. ; Morris v. 125 ; s. c. 1 Atk. 301 ; Roberts v. Roberts, Morris, 41 Ga. 271. So if fraud is dis- 3 P. Will. 74, Mr. Cox's note; Cole v. covered before the trade is closed, the Gibson, 1 Ves. 507 ; Crone v. Ballard, fraud cannot be made ground of objec- 3 Bro. Ch. 120 ; Cowen v. Milner, 3 P. tion. Whiting v. Hill, 23 Mich. 399.1 Will. 292, note (C) ; Cole v. Gibbons, § 305-308.] CONSTRUCTIVE FRAUD. 297 policy ; and it is designed, in some degree, as a protection to the parties against the effects of overweening confidence, and self- delusion, and the infirmities of hasty and precipitate judgment. These courts will, therefore, often interfere in such cases, where, but for such a peculiar relation, they would either abstain wholly from granting relief, or would grant it in a very modified and abstemious manner. 1 § 308. It is undoubtedly true, as has been said, that it is not upon the feelings which. a delicate and honorable man must ex- perience, nor upon any notion of discretion, to prevent a voluntary gift or other act of a man, whereby he strips himself of his prop- erty, that courts of equity have deemed themselves at liberty to interpose in cases of this sort. 2 They do not sit, or affect to sit, in judgment upon cases, as custodies morum, enforcing the strict rules of morality. But they do sit to enforce what has not inaptly been called a technical morality. If confidence is reposed, it must be faithfully acted upon, and preserved from any intermixture of imposition. If influence is acquired, it must be kept free from the taint of selfish interest, and cunning, and overreaching bargains. If the means of personal control are given, they must be always restrained to purposes of good faith and personal. good. 3 Courts of equity will not, therefore, arrest or set aside an act or contract merely because a man of more honor would not have entered into it. There must be some relation between the parties, which com- pels the one to make a full discovery to the other, or to abstain from all selfish projects. But, when such a relation does exist, courts of equity, acting upon this superinduced ground, in aid of general morals, will not suffer one party, standing in a situation of which he can avail himself against the other, to derive advantage from that circumstance, for it' is founded in a breach of confi- dence. 4 The general principle, which governs in all cases of this sort, is, that if a confidence is reposed, and that confidence is abused, courts of equity will grant relief. 5 1 See Goddard K.Carlisle, 9 Price, 169; 420; Boney v. Hollingsworth, 23 Ala. Gallatian v. Cunningham, 8 Cowen, 361 ; 698. Taylor v. Taylor, 8 How. U. S. 200. [*See 6 Gartside v. Isherwood, 1 Bro. Ch. also Blandy v. Kimber, 24 Beavan, 148 ; App. 560, 562 ; Osmond o. Fitzroy, 3 P. Ingersoll ». Tioe, 65 Barb. 346.] Will. 129, 131, Cox's note. See the Eng- 2 Huguenin v. Baseley, 14 Ves. 290. lish Quarterly Magazine for May, 1843, s See Taylor v. Taylor, 8 How. U. S. Vol. 29, Pt. 2, p. 362 to 378. [Where 200. there is a known and definite fiduciary 4 Fox v. Mackreth, 2 Bro. Ch. 407, relation between parties, fraud may be 298 EQUITY JURISPRUDENCE. [CH. VH. § 309. In the first place, as to the relation of parent and child. The natural and just influence which a parent has over a child renders it peculiarly important for courts of justice to watch over and protect the interests of the latter ; and, therefore, all contracts and conveyances, whereby benefits are secured by children to their parents, are objects of jealousy, and if they are not entered into with scrupulous good faith, and are not reasonable under the cir- cumstances, they will be set aside, 1 unless third persons have acquired an interest under them ; 2 especially where the original purposes for which they have been obtained are perverted or used as a mere cover. 3 [And the same principles apply to a voluntary gift to a person who has put himself in loco parentis, towards the donor. 4 ] But we are not to indulge undue suspicions of jealousy, or to make unfavorable presumptions as a matter of course in cases of this sort. " It is undoubtedly the duty of courts carefully to watch and examine the circumstances attending transactions of this kind, when brought under review before them, to discover if any undue influence has been exercised in obtaining the convey- ance. But to consider a parent disqualified to take a voluntary deed from his child, without consideration, on account of their relationship, is assuming a principle at war with all filial as well as parental duty and affection, and acting on the presumption that a parent, instead of wishing to promote the interest and welfare, would be seeking to overreach and defraud his child. Whereas, the presumption ought to be, in the absence of all proof tending to a contrary conclusion, that the advancement of the interest of the child was the object in view ; and to presume the existence of circumstances conducing to that result. Such a presumption har- monizes with the moral obligations of a parent to provide for his child, and is founded upon the same benign principle that governs presumed, in all other cases it must be 245 ; Carpenter v. Herriot, 1 Eden, 338 ; proved. Lee v. Pearce, 68 N. C. 76.] Blackborn v. Edgely, 1 P. Will. 607. 1 See Slocum v. Marshall, 2 Wash. [See Baker v. Tucker, 2 Eng. Law & Eq. C. C. 397 ; Baker v. Bradley, 35 Eng. 1, where Blackborn v. Edgely is elabo- Law & Eq. 449. rately examined and approved.] Blun- 2 See Taylor v. Taylor, 8 How. U. S. den v. Barker, 1 P. Will. 639 ; Morris ». 201 ; also Caspell r. Dubois, 4 Barb. 393 ; Burroughs, 1 Atk. 402 ; Tendril ». Smith, Brice o Brice, 5 Barb. 533 ; Whalan i>. 2 Atk. 85 ; Heron v. Heron, 2 Atk. 160. Whalan, 2 Cow. 537. See Jenkins v. Pye, 12 Peters, 241. 8 Young v. Peachey, 2 Atk. 254 ; Glis- 4 [Archer v. Hudson, 7 Beav. 651. See sen v. Ogden, cited ibid. 258 ; Cocking Maitland v. Irving, 15 Sim. 437 ; Mait v. Pratt, 1 Ves. 400; Hawes v. Wyatt, land o. Backhouse, 16 Sim. 68.] 3 Bro. Ch. 156; 1 Mad. Ch. Pract. 244, § 309, 309 a.] constructive fraud. 299 cases of purchases made by parents in the name of a child. The primd facie presumption is, that it was intended as an advance- ment to the child, and so not falling within the principle of a resulting trust. The natural and reasonable presumption in all transactions of this kind is, that a benefit was intended the child, because in the discharge of a moral and parental duty. And the interest of the child is abundantly guarded and protected, by keep- ing a watchful eye over the transaction, to see that no undue influence was brought to bear upon it." 1 [* § 309 a. Transactions between parent and child are to be regarded with jealousy, but in arrangements between father and son, for the settlement of family estates, if the settlement be not obtained by misrepresentation or the suppression of the truth, if the father acquires no personal benefit, and if the settlement is a reasonable one, the court will support it, even though the father did exert parental authority and influence over the son to procure the execution of it. 2 Transactions between parent and child, in the nature of a settlement of property or rights, are regarded with favor, and not with minute regard to the consideration ; but if in the nature of bounty from the child soon after he obtains his majority, are to be viewed with jealousy, and as the subject of in- 1 Jenkins 'v. Pye, 12 Peters, 253, 254. accompanied with some ingredient, show- The opinion of the court in this case was ing undue influence exercised by the delivered by Mr. Justice Thompson, and parent, operating upon the fears or hopes immediately preceding the passage cited of the child ; and sufficient to show rea- in the text, he said : " But the grounds sonable grounds to presume that the act mainly relied upon to invalidate the deed was not perfectly free and voluntary on were, that being from a daughter to her the part of the child ; and, in some cases, father rendered it, at least primd facie, although there may be circumstances void. And if not void on this ground, it tending, in some small degree, to show was so because it was obtained by the undue influence; yet, if the agreement undue influence of paternal authority, appears reasonable, it has been consid- The first ground of objection seeks to ered enough to outweigh light circum- establish the broad principle, that a deed stances, so as not to affect the validity of from a child to a parent, conveying the the deed. It becomes the less necessary real estate of the child, ought, upon con- for us to go into a critical examination siderations of public policy, growing out of the English chancery doctrine on this of the relation of the parties, to be deemed subject, for should the cases be found to void ; and numerous cases in the English countenance it, we should not be disposed chancery have been referred to, which are to adopt or sanction the broad principle supposed to establish this principle. We contended for, that the deed of a child to do not deem it necessary to travel over a parent is to be deemed prima facie all these authorities ; we have looked into void." the leading cases, and cannot discover 2 [* Hartopp v. Hartopp, 21 Beavan, any thing to warrant the broad and un- 259. See Head v. Godlee, Johns. 536 ; qualified doctrine contended for on the Jenner v. Jenner, 2 De G., E. & J. 359.] part of the appellees. All the cases are 300 EQUITY JURISPRUDENCE. [CH. VII. terposition of the court, to guard against undue influence. Hence, where a mortgage was made by father and son immediately after the latter had obtained his majority, to secure debts due from the father, to some extent incurred in improvements on the property and in maintaining and educating the son, and where the wife joined in the conveyance, the son having no separate advice on the occasion, it was held the mortgage could not be supported as a family arrangement, but was void, as obtained by undue influence. 1 ] § 309 b. [The same general principles apply to other family relations besides those of parent and child. Thus, where three brothers induced their sister, who had a reversionary interest in land devised by their father to the brothers for life, to release her interest to them without any consideration except a belief (the only evidence of what was the recital thereof in the deed prepared by the brothers) that the father intended to devise the land to the brothers in fee ; this deed was set aside, it appearing that the sister was in a feeble state of health, and had always relied upon the brothers for advice. 2 ] 1 [Baker v. Bradley, 7 De G., M. & G. 597. The ease of Field v. Evans, 15 Simons, 375, is here examined and ap- proved. The following cases, upon the subject of parental influence, may be ex- amined with advantage, and are not else- where referred to in this work. Carpenter v. Heriot, 1 Eden, 338 ; Thornber v. Sheard, 12 Beavan, 589 ; Hoghton v. Hoghton, 15 Beavan, 278 ; Wallace a. Wallace, 2 Dru. & War. 452 ; Wright v. Vanderplank, 1 Jur. n. s. 932 ; s. c. 2 K. & J. 1 ; 8 De G., M. & G. 131; Bury v. Oppenheim, 26 Beavan, 594. [See Turner v. Collins, L. K. 7 Ch. App. 329 ; Kempson v. Ash- bee, L. R. 10 Ch. App. 15. So where parents are aged and infirm, courts of equity regard with suspicion their con- tracts with their children, unless plainly for the advantage of the parents. So a contract between mother and son was held presumptively fraudulent, she being aged, he being her agent, the contract being in his handwriting, and for his benefit, and there being other suspicious circumstances. Comstock v. Comstock, 57 Barb. (N. Y.) 453. But where a large amount of property was transferred by an aged mother to her daughter, in con- sideration of an annuity about equal to the income of the property surrendered, equity refused to set aside the transfer, it appearing that the mother was compe- tent to act, that the motive was to make up for a deficiency in the share coming to such daughter under her father's will, and that her action was known to and approved by several members of the family at the time. Leddel's Exor. v. Starr, 5 C. E. Green, 274. 2 [Sears v. Shafer, 2 Selden, 268. See also Boney v. Hollingsworth, 23 Ala. 690 ; Hewitt v. Crane, 2 Halst. Ch. 159, 631. Where a wife by undue influence, and with intent to defraud (she being at the time secretly living in adultery), pro- cured her husband to buy land, and have it conveyed to her, and to expend his means in improving it, equity gave relief. Turner v. Turner, 44 Mis. 535. For a case where a gift to a brother was set aside for undue influence over an enfee- bled and aged man, see Todd v. Grove, 33 Md. 188. And so if the father is old and feeble. Deem v. Phillips, 5 W. Va. 188.] § 309 O-310.] CONSTRUCTIVE FRAUD. 301 § 310. In the next place, as to the relation of client and attor- ney or solicitor. It is obvious that this relation must give rise to great confidence between the parties, and to very strong influences over the actions, and rights, and interests of the client. 1 The situation of an attorney or solicitor puts it in his power to avail himself, not only of the necessities of his client, but of his good nature, liberality, and credulity, to obtain undue advantages, bar- gains, and gratuities. Hence, the law, with a wise providence, not only watches over all the transactions of parties in this predica- ment, but it often interposes to declare transactions void, which, between other persons, would be held unobjectionable. 2 It does not so much consider the bearing or hardship of its doctrine upon particular cases, as it does the importance of preventing a general public mischief, which may be brought about by means, secret and inaccessible to judicial scrutiny, from the dangerous influences arising from the confidential relation of the parties. 3 By estab- lishing the principle, that, while the relation of client and attorney subsists in its full vigor, the latter shall derive no benefit to him- self from the contracts, or bounty, or other negotiations of the former ; 4 it supersedes the necessity of any inquiry into the particular means, extent, and exertion of influence in a given case, a task often difficult, and ill supported by evidence, which can be drawn from any satisfactory sources. 5 This doctrine is not neces- 1 Walmesley v. Booth, 2 Atk. 25 ; 1 lisle, 9 Price, 169 ; Edwards v. Meyrick, Eonbl. Eq. B. 1, ch. 4, § 12, note (k). 2 Hare, 68. [That an attorney cannot See also Barnesley v. Powell, 1 Ves. 284; take a gift from his client, while the rela- Bulkley v. Wilford, 1 Clark & Finn. 102, tion subsists, see Tomson v. Judge, 3 177 to 181 ; id. 183 ; ante, § 218 ; Edwards Drew. 306 ; Re Holme's Estate, 3 Gift v. Meyrick, 2 Hare, 60, 268 ; [* Corley v. 337 ; O'Brien v. Lewis, 4 Giff. 221 ; Lord Stafford, 1 De G. & J. 238]. Walker v. Smith, 29 Beav. 394. See 2 1 Mad. Pr. Ch. 94 ; Welles v. Middle- Gardener v. Ennor, 35 Beav. 549.] ton, 1 Cox, 112, 125; 3 P. Will. 131, 5 See Welles v. Middlcton, 1 Cox, 125 ; Cox's note (1); Wright i- Proud, 13 Ves. Wright v. Proud, 13 Ves. 137. See 136; Wood v. Downes, 18 Ves. 126; Sav- Clieslyn v. Dalby, 2 Younge & Coll. 194, ery v. King, 35 Eng. Law & Eq. 100; 5 195. In the case of Hunter v. Atkins (3 H. L. Cas. 627; ante, § 219; Haight v. M. & Keen, 113), Lord Brougham made Moore, 37 N. Y. Sup. Ct. 161 ; McMahan the following remarks on this subject : o Smith, 6 Heisk. 167 ; Mason v. Ring, 3 " There is no dispute upon the rules Abb. N. Y. App. Dec. 210; Poison v. which, generally speaking, regulate cases Young, 37 la. 136; Zeigler v. Hughes, 55 of this description. Mr. Alderman At- 111. 288. kins is either to be regarded in the light 8 Wood v. Downes, 18 Ves. 126 ; ante, of an agent, confidentially intrusted with § 219; De Montmorency v. Devereaux, the management of Admiral Hunter's 7 Clark & Finn. 188. concerns, a person at least in whom he * Wood v. Downes, 18 Ves. 126* Jones reposed a very special confidence, or he v. Tripp, Jac. Kep. 322 ; Goddard v. Car- is not. If he is not to be so regarded, 302 EQUITY JURISPRUDENCE. [CH. VII. sarily limited to cases where the contract or other transaction respects the rights or property in controversy, in the particular then a deed of gift, or other disposition of property in his favor, must stand good, unless some direct fraud were practised upon the maker of it ; unless some fraud, either by misrepresentation or by suppression of facts, misled him, or he was of unsound mind when the deed was made. If the alderman did stand in a confidential relation towards him, then the party, seeking to set aside the deed, may not be called upon to show direct fraud ; but he must satisfy the court, by the circumstances, that some advantage was taken of the confidential relation in which the alderman stood. If the alderman stood towards the admiral in any of the known relations of guar- dian and ward, attorney and client, trustee and cestui que trust, &c, then, in order to support the deed, he ought to show that no such advantage was taken ; that all was fair; that he received the bounty freely and knowingly on the giver's part, and as a stranger might have done. For I take the rule to be this : There are certain relations known to the law, as attorney, guardian, trus- tee ; if a person, standing in these rela- tions to client, ward, or cestui que trust, takes a gift or makes a bargain, the proof lies upon him, that he has dealt with the other party, the client, ward, &c., exactly as a stranger would have done, taking no advantage of his influence or "knowledge, putting the other party on his guard, bringing every thing to his knowledge, which he himself knew. In short, the rule, rightly considered, is, that the person standing in such relation must, before he can take a gift, or even enter into a transaction, place himself exactly in the same position as a stranger would have been in ; so that he may gain no advantage whatever from his relation to the other party, beyond what may be the natural and unavoidable consequence of kindness arising out of that relation. A client, for example, may naturally enter- tain a kindly feeling towards an attorney or solicitor, by whose assistance he has long benefited ; and he may fairly and wisely desire to benefit him by a gift, or without such an intention being the pre- dominating motive, he may wish to give him the advantage of a sale or a lease. No law, that is tolerable among civilized men, men who have the benefits of civility without the evils of excessive re- finement and overdone subtlety, can ever forbid such a transaction, provided the client be of mature age and of sound mind, and there be nothing to show that deception was practised, or that the at- torney or solicitor availed himself of his situation to withhold any knowledge, or to exercise any influence hurtful to others and advantageous to himself. In a word, standing in the relation in which he stands to the other party, the proof lies upon him (whereas, in the case of a stranger, it would lie on those who op- posed him) to show that he has placed himself in the position of a stranger; that he has cut off, as it were, the con- nection which bound him to the party giving or contracting ; and that nothing has happened which might not have hap- pened had no such connection subsisted. The authorities mean nothing else than this, when they say, as in Gibson v. Jeyes (6 Ves. 277), that attorney and. client, trustee and cestui que trust, may deal, but it must be at arm's length ; the parties putting themselves in the situa- tion of purchasers and vendors, and per- forming (as the court said, and, I take leave to observe, not very felicitously, or even very correctly) all the duties of those characters. The authorities mean no more, taken fairly and candidly towards the court, when they say, as in Wright v. Proud (15 Ves. 138), that an attorney shall not take a gift from his client, while the relation subsists, though the transaction may be not only free from fraud, but the most moral in its nature ; a dictum reduced, in Hatch v. Hatch (9 Ves. 296), to this, that it is almost impossible for a gift from client to attorney to stand, because the di.ti- culty is extreme of showing that every thing was voluntary and fair, and with full warning and perfect knowledge ; for in Harris v. Tremenheere (16 Ves. 40), the court only held that, in such a case, a suspicion attaches on the transaction, and calls for minute examination." § 310.] CONSTRUCTIVE FRAUD. 303 suit in respect to which the attorney or solicitor is advising or acting for his client ; but it may extend to other contracts and transactions disconnected therefrom, or at least where, from the attendant circumstances, there is reason to presume that the at- torney and solicitor possessed some marked influence, ascendency, or other advantage over his client in respect to them. 1 1 See Austin v. Chambers, 6 CI. & Finn. 1 ; Trevelyan v. Charter, 12 CI. & Finn. 714: Edwards v. Meyrick, 2 Hare, 60,68.- Mr. Vice-Chancellor Wigram here said : " It was not insisted in argument that a solicitor is under an actual incapacity to purchase from his client. There is not, in that case, the positive incapacity which exists between a trustee and his cestui que trust ; but the rule the court imposes is, that — inasmuch as the parties stand in a relation which gives, or may give, the solicitor an advantage over the client — the onus lies on the solicitor to prove that the transaction was fair. Montesquieu v. Sandys, 18 Ves. 302; Cane v. Lord Allen, 2 Dow, 289. The rule is expressed by Lord Eldon (6 Ves. 278 ; see also Sugden, Vend. & Pur. vol. 3, p. 238, ed. 10) to be, that if the attorney ' will mix with the character of attorney that of vendor, he shall, if the propriety of the transaction comes in question, manifest that he has given his client all that reasonable advice against himself that he would have given him against a third person.' It was ar- gued that the rule I have referred to has no application, unless the defendant was the plaintiff's solicitor in hac re, and this argument is no doubt well founded, Jones v. Thomas, 2 Y. & Coll. 498 ; Gibson r. Jeyes, 6 Ves. 266, 278. It appears to me, however, that the question, whether Mey- rick was the solicitor in hac re, is one rather of words than of substance. The rule of equity, which subjects transac- tions between solicitor and client to other and stricter tests than those which apply to ordinary transactions, is not an iso- lated rule, but is a branch of a rule applicable to all transactions between man and man, in which the relation be- tween the contracting parties is such as to destroy the equal footing on which such parties should stand. In some cases, as between trustee and cestui que trust, the rule goes to the extent of creating a posi- tive incapacity ; the duties of the office of trustee requiring, on general principles, that that particular case should be so guarded. The case of solicitor and client is, however, different. In the case of Gibson v. Jeyes, there was evidence that the client was of advanced age, and of much infirmity, both of mind and body, that the consideration was inadequate, and of various other circumstances. Lord Eldon there shows how each of these cir- cumstances gave rise to its appropriate duty on the part of the attorney In other cases, where an attorney has been employed to manage an estate, he has been considered as bound to prove that he gave his employer the benefit of all the knowledge which he had acquired in his character of manager or profes- sional agent, in order to sustain a bargain made for his own advantage. Cane v. Lord Allen, 2 Dow, 294. But as the com- munication of such knowledge by the attorney will place the parties upon an equality, when it is proved that the com- munication was made, the difficulty of supporting the transaction is quoad hoc removed. If, on the other hand, the attorney has not had any concern with the estate respecting which the question arises, the particular duties to which any given situation of confidence might give rise, cannot of course attach upon him, whatever may be the other duties which the mere ofBce of attorney may impose. If the attorney, being employed to sell, becomes himself the purchaser, his duties and his interests are directly opposed to each other, and it would be difficult — and, without the clearest evidence that no advantage was taken by the attorney of his position, and that the vendor had all the knowledge which could be given him in order to form a judgment, it would be impossible — to support the trans- action. In other cases the relation be- tween the parties may simply produce 304 EQUITY JURISPRUDENCE. [ch. vn. § 311. On the one hand, it is not necessary to establish that there has been fraud or imposition upon the client ; and, on the other hand, it is not necessarily void throughout, ipso facto. 1 But the burden of establishing its perfect fairness, adequacy, and equity is thrown upon the attorney, upon the general rule, that he who bargains in a matter of advantage with a person, placing a confidence in him, is bound to show that a reasonable use has a degree of influence and ascendency, placing the client in circumstances of disadvantage ; as where he is indebted to the attorney, and is unable to dis- charge the debt. The relative position of the parties, in such a case, must at least impose upon the attorney the duty of giving the full value for the estate, and the onus of proving that he did so. If he proves the full value to have been given, the ground for any unfavorable inference is removed. The cases may he traced through every possible variation until we reach the simple case where, though the relation of solicitor and client exists in one transaction, and, therefore, personal influence or ascendency may op- erate in another, yet the relation not ex- isting in luic re, the rule of equity to which I am now adverting may no longer apply. The nature of the proof, therefore, which the court requires, must depend upon the circumstances of each case, according as they may have placed the attorney in a position in which his duties and his pecuniary interests were conflicting, or may have given him a knowledge which his client did not possess, or some in- fluence, or ascendency, or other advan- tage over his client ; or, notwithstanding the existence of the relation of attorney and client, may have left the parties sub- stantially at arm's length, and on an equal footing ; this seems deducible from the cases. Gibson v. Jeyes, 6 Ves. 278 ; Hatch v. Hatch, 9 Ves. 292 ; Welles v. Middleton, 1 Cox, 112 ; s. c. cited 18 Ves. 127 ; Wood v. Downes, 18 Ves. 120; Belleww. Russell, 1 B. & Beatty, 96 ; Montesquieu v. Sandys, 18 Ves. 302 ; Cane v. Lord Allen, 2 Dow, 289 ; Hunter v. Atkins, 3 Myl. & K. 113. I have, therefore, to consider the position in which these parties actually stood to each other. And I certainly am not treating the case of the plaintiff too strictly when I exclude all considerations which the hill does not state as having existed ; and, according to the statements in the bill, it does not appear that the defendant had any peculiar or exclusive knowledge of these particular farms or the value of them, or that he had under- taken auy particular duties respecting them, which were opposed to his becom- ing a purchaser. No equity appears to me to arise, except that which might arise from the mere possibility of the relation of attorney and client, giving the attorney some influence or ascendency over the client, and the circumstance that the plaintiff was pressed by him to pay his bill of costs. On the evidence in the cause I am satisfied that the only ground upon which I can proceed is this bare relation between the parties. Tak- ing the obligations of the defendant to stand as high as the relative position of the parties enable me to place them, ad- mitting the defendant to be the attorney in hdc re, I cannot consider that he is bound to. do more than prove that he gave the full value for the estate. Post, § 313. [The attorney of a party to the cause may purchase at a master's sale, if all is fair. Hess v. Voss, 52 111. 472. For instances of the general rule as to attor- neys and clients, see Salmon v. Cutts, 4 De G. & S. 125 ; Eobinson ». Briggs, 1 Sm. & Gift. 188 ; Brock v. Barnes, 40 Barb. 521 ; Pearson v. Benson, 28 Beav. 598 ; Will- iamson v. Moriarty, 19 W. R. 818. And for instances where contracts between attorney and client were upheld, see Moss v. Bainbridge, 6 De G., M. & G. 292 ; Bla- grave v. Routh, 2 K. & J. 509 ; Clanricarde v. Henning, 30 Beav. 175; Johnson u. Fesemeyer, 3 De G. & J. 13 ; Porter v. Peckham, 44 Col. 204. For a case where the relation of solicitor and client was held not to exist, see Richards o. French, 18 W. R. 636.] 1 Howell v. Ransom, 11 Paige, 638; Evans v. Ellis, 5 Denio, 640. § 311.] CONSTRUCTIVE FRAUD. 305 been made of that confidence ; a rule applying equally to all per- sons standing in confidential relations with each other. 1 If no such proof is established, courts of equity treat the case as one of constructive fraud. 2 In this respect there is said to be a distinc- tion between the case of an attorney and client, and that of a trustee and cestui que trust. In the former, if the attorney, re- taining his connection, contracts with his client, he is subject to the onus of proving that no advantage has been taken of the sit- uation of the latter. But in the case of a trustee, it is not suffi- cient to show that no advantage has been taken ; but the cestui que trust may set aside the transaction at his own option. 3 The reason of this distinction, which savors somewhat of nicety, if not of subtilty, seems to be, that in the case of clients the rule is general and applicable to all contracts, conveyances, and negotia- tions between the attorney and client, and is not limited to the property about which the attorney is retained, or the suit in which he is acting. In the case of a trustee, the rule giving the cestui que trust an option, is limited to the purchase of the first property, and as to other property it would seem that the rule is the same as in other fiduciary relations, that is, at most, it only shifts the burden of proof from the seller to the buyer, to show the entire fairness of the transaction ; or leaves the seller to establish pre- sumptively, that there has been some irregularity in the bargain, or some influence connected with the relation under which it has been made. 4 1 Gibson o. Jeyes, 6 Ves. 278 ; Montes- an attorney and his client, in the course quieu v. Sandys, 18 Ves. 313 ; Bellew v. of which the attorney has taken securi- Russell, 1 B. & Beatty, 104, 107 ; Harris ties from the client, the attorney must not v. Tremenheere, 15 Ves. 34, 39; Cane v. only prove the securities, but the consid- Lord Allen, 2 Bow, 289, 299 ; Edwards v. eration for which they were given. Meyrick, 2 Hare, 60. The like rule ap- Champion v. Rigby, 1 Buss. & Mylne, plies to counsel employed as a confidential 539. adviser ; for he is disabled from purchas- 8 Cane v. Lord Allen, 2 Dow, 289, 299 ; ing, for his own benefit, charges on his post, § 322. See the remarks of Lord client's estate without his permission ; Brougham, in Hunter v. Atkins, 3 Mylne and the disability will continue as long as & Keen, 113 ; ante, § 310, note, where he the reason exists, although the confiden- seems to put the cases of client and at- rial employment may have ended. Car- torney, guardian and ward, trustee and ter v. Falman, 8 Clark & Finn. 657, 607. cestui que trust, upon the same general [See Spencer v. Topham, 22 Beav. 573 ; footing, and is governed by the same rule. Lewis ». Hillman, 3 H. of L. Cas. 706 ; The same distinction is stated in Edwards Bayliss v. Williams, 6 Coldw. (Tenn.) 440.] v. Meyrick, 2 Hare, 60, 68, 69 ; ante, § 310, 2 See Jones v. Thomas, 2 Y. & Coll. note. 498. In this case it was held, that where i See post, § 313 ; Montesquieu v. San- an account is decreed to be taken between dys, 18 Ves. 302, 318. e 48 Mis. 483 ; Ahearn v. Hogan, 6 Dunbar v. Tredennick, 2 B. & Beatty, lDrury, 310]. 319 ; Norris v. Le Neve, 3 Atk. 38. 1 Dent v. Bennett, 2 Keen, 539; 4 « [See Kimber v. Barber, L. R. 8 Ch. Mylne & Craig, 269, 276, 277 ; Gibson v. App. 56 (reversing s. c. 20 W. R. 602) ; Russell, 2 Younge & Coll. N. R. 104; Lewis v. Hillman, 3 H. of L. Cas. 607; s. c. The Jurist (English), Oct. 7th, 1843, Jeffries v. Wiester, 2 Sawyer, 135; Ingle p. 875. But see Pratt v. Barker, 1 Sim. 1 ; v. Hartman, 37 la. 274 ; Ruckman v. [Ingersoll v. Roe, 65 Barbour, 346]. Bergholz, 37 N. J. (Law) 437; Bain v. 2 1 Fonbl. Eq. B. 1, ch. 3, § 12, note Brown, 56 N. Y. 285 ; Tynes v. Grimstead, (£); Benson v. Heathom, 1 Younge & 1 Tenn. Ch. 508; TJhlrich v. Muhlke, 61 Coll. N. R. 326. 111. 499.] 8 Cic. de Offic. Lib. 1, ch. 13; Hugue- nin v. Baseley, 14 Ves. 284. 310 EQUITY JUBI8PBCDEXCE. [CH. YII. their confidence, to acquire unreasonable gifts or advantages ; 1 or, indeed, to deal validly with their principals in any case, except where there is the most entire good faith, and a full disclosure of all facts and circumstances, and an absence of all undue influence, advantage, or imposition. 8 § 316. Upon these principles, if an agent sells to his principal his own property, as the property of another, without disclosing the fact, the bargain, at the election of the principal, will be held void. 3 So, if an agent, employed to purchase for another pur- chases for himself, he will be considered as the trustee of his em- ployer. 4 Therefore, if a person is employed as an agent, to purchase up a debt of his employer, he cannot purchase the debt upon his own account, for he is bound to purchase it at as low a rate as he can ; and he would otherwise be tempted to violate his duty. 3 The same rule applies to a surety, who purchases up the debt of his principal. And, therefore, in each case, if a purchase is made of the debt, the agent or surety can entitle himself, as against bis principal, to no more than he has actually paid for the debt. 6 So, if an agent discover a defect in the title of his principal to land, he cannot misuse it to acquire a title for himself ; if he do, he will be held a trustee for his principal. 7 1 See Church r. Mar. Ins. Co., 1 Mason, Fisher, 8 Kan. 90, 9 Kan. 501 ; White r. 341; Barker v. Mar. Ins. Co.,2Mason,369; Ward, 26 Ark. 445; Glenwaters r. Mfl- Woodhouse r. Meredith, 1 Jac. & Walk, ler, 49 Miss. 150; Brown r. Post, 1 Hun 204, 222; Massey r. DaTies. 2 Yes. Jr. IX. T.), 306; Barazea i. Story, 39 Tex. 318; Crowe r. Ballard, 3 Bro. Ch. 120; 354. See Condit r. Blackwell, 7 C. E. Lees e. Xuttall, 1 Boss. & Mylne, 53 ; Green, 481 : McMahon r. McGraw, 26 s. c. 1 Tamlyn, 282; [Jeffries c. Wiester, Wise. 614; Beck r. Kantorowiez, 3 K. 2 Sawyer, 139. & J. 230.] 2 See Crowe r. Ballard, 3 Bro. Ch. s Gillett p. Peppercorne, 3 Bear. 78, 117 ; Pnrcell v. Macnamara, 14 Yes. 91 ; 83, 84. Huguenin r. Baseley, 14 Tes. 273 ; Watt * Lees .. Xuttall, 1 Buss. & M. 53; v. Grore, 2 Sen. & Lefr. 492 ; Fox .-. s. c. 1 Tamlyn, 282 ; pesl, § 327 ; Taylor Mackreth, 2 Bro. Ch. 400 ; s. c. 2 Cox, r. Salmon, 2 Mees. & Cromp. 139; s. c. 4 320; Coles t-. Trecothiek, 9 Ves. 246; Mylne & Craig, 129; Torrey r. Bank of Lowther r. Lowther, 13 Tes. 102, 103 ; Xew Orleans, 9 Paige, 649 ; Van Epps u. Selsey v. Bhoades, 2 Sim. & Sra. 41 ; Van Epps, 9 Paige, 237 ; Cram r. Mit- Morret v. Paske, 2 Atk. 53; Green c. chell, 1 Sandf. 251; Dobson r. Racey, 3 Winter, 1 Johns. Ch. 27 ; Parkist r. Alex- Sandf. 61 ; Voorhees r. Presbyterian ander, 1 Johns. Ch. 394. The case of Chnreh, 8 Barbour, 136; post, § 1201 a, Gray v. Mansfield, 1 Ves. 379, has been § 1211 a. Terr justly doubted by Mr. Belt as not 5 Beed v. Norris, 2 Mylne & Craig, consistent with established principles. 361, 374. See Belfs Supplement, 167. [Cleveland 6 Dad. Ins. Co. v. Beed, 1 Biss. 180 ; Krutz v. » Bingo v. Binns, 10 Peters, 269. § 215-317.] CONSTRUCTIVE FRAUD. 311 § 316 a. In all cases of purchases and bargains respecting prop- erty, directly and openly made between principals and agents, the utmost good faith is required. The agent must conceal no facts within his knowledge which might influence the judgment of his principal, as to the price or value ; and, if he does, the contract will be set aside. 1 The question in all such cases does not turn upon the point whether there is any intention to cheat or not ; but upon the obligation, from the fiduciary relation of the parties, to make a frank and full disclosure. 2 Of course, upon the prin- ciples already stated, if the relation of principal and agent has wholly ceased, the parties are restored to their common compe- tency to deal with each other. It is also to be understood as a just qualification of the whole doctrine, that the principal may, at his election, deem the bargain made or act done by his agent valid or not ; and that the agent cannot himself avoid it on that ground. 3 § 317. In the next place, as to the relation of guardian and ward. In this most important and delicate of trusts the same principles prevail, and with a larger and more comprehensive effi- ciency. It is obvious that, during the existence of the guardian- ship the transactions of the guardian cannot be binding upon the ward, if they are of any disadvantage to him ; and, indeed, the relative situation of the parties imposes a general inability to deal with each other.* But courts of equity proceed yet farther in cases of this sort. They will not permit transactions between guardians and wards to stand, even when they have occurred after the minority has ceased, and the relation become thereby actually ended, if the intermediate period be short, 5 unless the circumstances demonstrate, in the highest sense of the terms, the fullest delibera- tion on the part of the ward, and the most abundant good faith * Farnam v. Brooks, 9 Pick. 212 ; of a guardian may be a reason for set- [Kimber v. Barber, L. B. 8 Ch. App. 66]. ting aside a voluntary settlement by the 2 Ibid. ward, even though he take no personal 3 Story on Agency, § 210, and cases benefit ; so where the settlement was im- there cited. provident, there being no power of revo- * See 3 P. Will. 131, Cox's note (1) ; cation Everitt «. Everitt, L. R. 10 Eq. 1 Eonbl. Eq. B. 1, ch. 2, § 12, note \k) ; 405. So of undue influence of trustees. 1 Mad. Pr. Ch. 102, 103 ; Dawson v. Mas- Ellis v. Barker, 20 W. R. 160.] Bey, 1 B. & Beatt. 226. See Bostwick v. 6 See Richardson v. Linney, 7 B. Mon- Atkins, 3 Comst. 53 ; Blackmore o. Shel- roe, 571 ; Andrews v. Jones, 10 Ala. 400. by, 8 Humph. 439. [The undue influence 312 EQUITY JURISPRUDENCE. [CH. VII. (uberrima fides) on the part of the guardian. For, in all such cases, the relation is still considered as having an undue influence upon the mind of the ward, and as virtually subsisting, especially if all the duties attached to the situation have not ceased ; as, if the accounts between the parties have not been fully settled, or if the estate still remains in some sort under the control of the guardian. 1 § 318. Lord Hardwicke has expounded the general ground of this doctrine in a clear manner. " Where " (says he) " a man acts as a guardian, or trustee in nature of a guardian, for an infant, the court is extremely watchful to prevent that person's taking any advantage immediately upon his ward's coming of age, and at the time of settling accounts, or delivering up the trust ; because an undue advantage may be taken. It would give an opportunity, either by flattery, or force, by good usage unfairly meant, or by bad usage imposed, to take such an advantage. And, therefore, the principle of the court is of the same nature with relief in this court on the head of public utility ; as in bonds obtained from young heirs ; and rewards given to an attorney pending a cause ; and marriage-brokage bonds. All depends upon public utility ; and, therefore, the court will not suffer it, though, perhaps, in a particu- lar instance, there may not be an actual unfairness." 2 His lord- ship afterwards added : " The rule of the court, as to guardians, is extremely strict, and in some cases does infer some hardship ; as, where there has been a great deal of trouble, and he has acted fairly and honestly, that yet he shall have no allowance. But the court has established, that on great utility, and on necessity, and on this principle of humanity, that it is a debt of humanity that one man owes to another ; as every man is liable to be in the same circumstances." 3 § 319. Lord Eldon has expressed himself even in a more empha- tic manner on this subject. " There may not be " (says he) " a more moral act, one that would do more credit to a young man, beginning the world, or afford a better omen for the future, than, if a trustee having done his duty, the cestui que trust, taking into i Dawson v. Massey, 1 B. & Beatt. 380; 1 P. Will. 120, Cox's note; 1 Cox, 229; Wright v. Proud, 13 Ves. 136; 125; Wright v. Proud, 13 Ves. 136, 138; Wedderburn v. Wedderbum, 4 Mylne & Wood v. Downes, 18 Ves. 126. [See Craig, 41. Sullivan v. Blackwell, 28 Miss. 737 ; Haw- 2 Hylton v. Hylton, 2 Ves. 648, 549; kins' Appeal, 32 Penn. St. 263.] Pierce v. Waring, cited ibid, and in 1 Ves. 8 Hylton v. Hylton, 2 Ves. 548, 549. § 317-321.] CONSTRUCTIVE FRAUD. 313 his fair, serious, and well-informed consideration, were to do an act of bounty like this. But the court cannot permit it, except quite satisfied that the act is of that nature, for the reason often given ; and recollecting, that, in discussing whether it is an act of rational consideration, an act of pure volition uninfluenced, that inquiry is so easily baffled in a court of justice,- that instead of the spontane- ous act of a friend uninfluenced, it may be the impulse of a mind misled by undue kindness, or forced by oppression ; and the diffi- culty of getting property out of the hands of the guardian or trustee thus increased. And, therefore, if the court does not watch these transactions with a jealousy almost invincible, in a great majority of cases, it will lend its assistance to fraud, where the connection is not dissolved, the account not settled, every thing remaining pressing upon the mind of the party under the care of the guardian or trustee." * The same principles are ap- plied to persons standing in the situation of quasi guardians or confidential advisers. 2 § 320. In the cases to which these principles have been applied, in order to set aside grants and other transactions between guard- ian and ward, two circumstances of great importance have gene- rally concurred : first, that the grants and transactions have taken place immediately upon the ward's attaining age ; and, secondly, that the former influence of the guardian has been demonstrated to exist to an undue degree ; or, in other words, that the parties have not met upon equal terms. 3 If, therefore, the relation has entirely ceased, not merely in name but in fact, and if sufficient time has elapsed to put the parties in complete independence as to each other ; and if a full and fair settlement of all transac- tions growing out of the relation has been made, there is no objec- tion to any bounty or grant conferred by the ward upon his guardian. 4 Indeed, in such cases, it is only the performance of a highly moral duty, recommended as well by law as by natural justice. 5 § 321. In the next place, with regard to the relation of trustee 1 Hatch v. Hatch, 9 Ves. 297. 5 [Where the question was of the va- 2 Revett v. Harvey, 1 Sim. & Stu. 502 ; lidity of a will of a former ward in favor [Espey v. Lake, 16 Jur. 1106; s. c. 10 of his late guardian, it was held that the Hare, 260]. burden was upon the person who had 8 See Dawson v. Massey, 1 B. & Beatt. recently been guardian, to show that the 229, 232, 236 ; Aylward o. Kearney, 2 B. influence had determined, and that the & Beatt. 463. transaction was perfectly fair. Garvin's * Hylton v. Hylton, 2 Ves. 547, 549. Adm'r v. Williams, 60 Mis. 206. In 314 EQUITY JURISPRUDENCE. [CH. YH. and cestui que trust, or rather beneficiary, or fide-commissary, as we could wish the person beneficially interested might be called, to escape from the awkwardness of a barbarous foreign idiom. 1 In this class of cases the same principles govern as in cases of guard- ian and ward, with at least as much enlarged liberality of applica- tion, and upon grounds quite as comprehensive. Indeed, the cases are usually treated as if they were identical. 2 A trustee is never permitted to partake of the bounty of the party for whom he acts, except under circumstances which would make the same valid, if it were a case of guardianship. A trustee cannot purchase of his cestui que trust, unless under like circumstances ; or, to use the expressive language of an eminent judge, a trustee may purchase of his cestui que trust, provided there is a distinct and clear con- tract, ascertained . to be such, 3 after a jealous and scrupulous examination of all the circumstances; and it is clear that the cestui que trust intended that the trustee should buy ; and there is no fraud, no concealment, and no advantage taken by the trustee of information, acquired by him as trustee. 4 But it is difficult to make out such a case, where the exception is taken, especially North Carolina, the purchase by a guard- ian of the ward's property at sale, made by the clerk of the court by order of court, is not necessarily void. Doe v. HasseU, 68 N. C. 213; Lee v. Howell, 69 N. C. 200; compare Bland v. Floyd, 24 La. Ann. 603.] 1 The phrase cestui que trust is a barba- rous Norman law French phrase ; and is so ungainly and ill adapted to the Eng- lish idiom, that it is surprising that the good sense of the English legal profes- sion has not long since banished it, and substituted some phrase in the English idiom, furnishing an analogous meaning. In the Roman law the trustee was com- monly called hozres jiduciarius ; and the cestui que trust, hceres fidei-commissarius, which Dr. Halifax has not scrupled to tr&n&\aXe fide-committee (Halifax, Anal, of Civil Law, ch. 6, § 16, p. 34; id. ch. 8, § 2, 3, p. 45, 46). I prefer fide-commis- sary, as at least equally within the anal- ogy of the English language. But bene- ficiary, though a little remote from the original meaning of the word, would be a very appropriate word, as it has not, as yet, acquired any general use in a differ- ent sense. Hceres fidei commissarius was sometimes used in the civil law to denote the trustee. See Vicat, Vocab. voce fidei commissarius. The French law calls the cestui que trust, fidei commissaire. See Fer- riere, Diet, voce, fidei commissaire. Merlin, Repertoire, voce, substitution, et substitution fidei commissaire. Dr. Brown uses the word, fidei commissary, 1 Brown, Civil Law, 190, note. 2 Hatch v. Hatch, 9 Ves. 292, 296, 297 ; Newland on Contracts, ch. 32, p. 459, &c. ; Jeremy on Eq. Jurisd. B. 1, ch. 1, § 3, p. 142, &c. ; 1 Fonbl. Eq. B. 1, ch. 2, § 12, note (k) ■ Farnam v. Brooks, 9 Pick. 212. See also Bulkley v. Wilford, 2 Clark & Finn. 102, 177 to 183 ; ante, § 317, 320. 8 See Dobson v. Racey, 3 Sandf . 61 ; Brackenridge v. Holland, 2 Blackf. 377 ; Poillon v. Martin, 1 Sandf. 569 ; Stuart v. Eissam, 2 Barb. 494. * See Brannan v. Oliver, 2 Stuart, 47 ; Julian v. Reynolds, 8 Alabama, 680; Stallings v. Freeman, 2 Hill, Ch. 401; Pratt v. Thornton, 28 Maine, 335. But see McCartney u. Calhoun, 17 Ala. 301; Marshall v. Stevens, 8 Humph. 159; Beeson v. Beeson, 9 Barr, 279 ; McKinley v. Irvine, 13 Ala. 681 ; [Franks v. Bol- lans, L. R. 3 Ch. App. 717]. § 321, 322.] CONSTRUCTIVE FRAUD. 315 where there is any inadequacy of price or any inequality in the bargain. 1 And therefore, if a trustee, though strictly honest, should buy for himself an estate of his cestui que trust, and then should sell it for more, according to the rules of a court of equity, from general policy, and not from any peculiar imputation of fraud, ' he would be held still to remain a trustee to all intents and pur- poses, and not to be permitted to sell to or for himself. 2 § 322. But we are not to understand, from this last language, that, to entitle the cestui que trust to relief, it is indispensable to show that the trustee has made some advantage, where there has been a purchase by himself ; and that, unless some advantage has been made, the sale to the trustee is good. That would not be putting the doctrine upon its true ground, which is, that the prohi- bition arises from the subsisting relation of trusteeship. 3 The ingredient of advantage made by him would only go to establish, that the transaction might be open to the strong imputation of being tainted by imposition or selfish cunning. 4 But the principle applies, however innocent the purchase may be in a given case. 5 It is poisonous in its consequences. The cestui que trust is not bound to prove, nor is the court bound to decide, that the trustee has made a bargain advantageous to himself. The fact may be so ; and yet the party not have it in his power distinctly and clearly to show it. There may be fraud ; and yet the party not be able to show it. It is to guard against this uncertainty and hazard of abuse, and to remove the trustee from temptation, that the rule does and will permit the cestui que trust to come at his own option, and, with- 1 Ante, § 310 ; Coles v. Trecothick, that after » fair actual sale to a third 9 "Ves. 246; Pox v. Mackreth, 2 Bro. Ch. party, the trustee may subsequently pur- 400 ; Gibson v. Jeyes, 6 Ves. 277 ; Which- chase borid fide of such vendee. Baker v. cote v. Lawrence, 3 Ves. 740 ; Campbell Peck, 9 W. R. 472. Especially if the v. Walker, 5 Ves. 678 ; Ayliffe v. Murray, purchase is made a considerable time 2 Atk. 59; Hawley v. Cramer, 4 Cowen, after the sale by the trustee. Stephen v. 717 ; Van Epps v. Van Epps, 9 Paige, Beall, 22 Wall. 329.] 237 ; Scott v. Davis, 4 Mylne & Craig, 3 See Newland on Contracts, ch. 32, p. 87. 461 ; Ex parte Lacey, 6 Ves. 625, 626 ; 1 2 See Pox v. Mackreth, 2 Brown, Ch. Mad. Pr. Ch. 92, 93 ; Chesterfield v. Jans- 400; s. c. 1 Cox, 310, 317; Prevost o. sen, 2 Ves. 138. Gratz, 1 Peters, Cir. 367, 368 ; s. c. 6 i See Campbell v. Walker, 5 Ves. 678 ; Wheat. 481 ; Hamilton v. Wright. 6 Clark 13 Ves. 601. & Pinnell. Ill, 133; Edward v. Meyrick. 6 Ex parte James, 8 Ves. 337, 345; Ex 2 Hare, 60, 68; Hawley v. Cramer, 4 parte Bennett, 18 Ves. 381, 385; Cane v. Cowen, 717. Quaere, does the doctrine Lord Allen, 2 Dow, 289, 299 ; Dobson v. extend to all purchases made by a trustee Racey, 3 Sandf . 61 ; Slade v. Van from the cestui que trust, or is it limited to Vetchen, 11 Paige, 21 ; ante, § 311. purchases of the trust estate ■? [It seems 316 EQUITY JURISPRUDENCE. [CH. VII. out showing essential injury, to insist upon having the experiment of another sale. 1 So that in fact, in all cases where a purchase has been made by a trustee on his own account of the estate of his cestui que trust, although sold at public auction, it is in the option of the cestui que trust to set aside the sale, whether bond fide made or not. 2 So a trustee will not be permitted to obtain any profit or advantage to himself in managing the concerns of the cestui que trust, but whatever benefits or profits are obtained will belong exclusively to the cestui que trust. 3 In short, it may be laid down as a general rule, that a trustee is bound not to do any thing which can place him in a position inconsistent with the interests of the trust, or which have a tendency to interfere with his duty in discharging it. 4 And this doctrine applies, not only to trustees strictly so called, but to other persons standing in like situation ; such as assignees and solicitors of a bankrupt or insolvent estate, who are never per- mitted to become purchasers at the sale of the bankrupt or insolvent estate. 6 It applies in like manner to executors and administrators who are not permitted to purchase up the debts of the deceased on their own account; but, whatever advantage is thus derived by them, by purchases at an undue value, is for the common benefit of the estate. 6 Indeed, the doctrine may be more broadly stated ; that executors or administrators will not be per- mitted, under any circumstances, 7 to derive a personal benefit from the manner in which they transact the business, or manage the 1 Davoue v. Fanning, 2 Johns. Ch. 252, where Mr. Chancellor Kent has examined the cases with a most exemplary diligence. Ex parte Bennett, 10 Ves. 381, 385, 386 ; ante, § 311 ; Michaud v. Girod, 4 Howard, Sup. Ct. 503. 2 Campbell v. Walker, 5 Ves. 678, 680 ; 13 Ves. 601 ; Ex parte Lacey, 6 Ves. 625; Ex parte Bennett, 10 Ves. 381, 385, 386 ; Morse v. Royal, 12 Ves. 355 ; Whitcomb v. Minchin, 5 Mad. 91 ; Belt's Supplement, p. 11, 12. 3 Saagar v. Wilson, 4 Serg. & Watts, 102. * Hamilton v. Wright, 9 Clark & Finnell. Ill, 123. 6 Ex parte Lacey, 6 Ves. 625 ; Ex parte James, 8 Ves. 337 ; Ex parte Bennett, 10 Ves. 381 ; Davoue v. Fanning, 2 Johns. Ch. 252; Lady Ormond v. Hutchinson, 13 Ves. 47 ; Harrison v. Monk, 10 Ala. 185; Cram v. Mitchell, 1 Sandf. Ch. 251 ; Farnam v. Brooks, 9 Pick. 212. [So an assignee cannot buy in a debt of the bankrupt. Pooley v. Quilter, 2 De G & J. 327.] 6 Ex parte Lacey, 6 Ves. 628 ; Ex parte James, 8 Ves. 346 ; Green a. Winter, 1 Johns. Ch. 27; Forbes v. Ross, 2 Bro. Ch. 430 ; Hawley v. Mancius, 7 Johns. Ch. 174. 7 Green v. Sargent, 23 Verm. 466. [So an indirect purchase by an adminis- trator at his own sale may be set aside within a reasonable time. Kruse v. Stef- fens,47 111. 112 ; Ives v. Ashley, 97 Mass. 198. Actual fraud must be shown to avoid such sale at law ; the remedy is in equity. Seackel v. Litchfield, 13 Allen, 417. But it seems the rule does not apply where an administrator purchased at a sale by sheriff to enforce vendor's lien of the intestate. Wilson v. Miller, 30 Md. 82. A distinction has been taken between the case where the administrator § 322-323.] CONSTRUCTIVE FRAUD. 817 assets, of the estate. 1 And if a trustee misapply the funds of his cestui que trust or beneficiary, and purchase a judgment or other security therewith, the latter has an election to take such judg- ment or security, or to call upon the trustee to make good the original fund. 2 [* § 322 a. And where the eestuis que trust, after they come of age, or in any other mode competent to release the previous de- faults of the trustees, do any act which would ordinarily have that effect, between other parties, it will not be so regarded, unless the trustees had fully informed the eestuis que trust of their rights, or they acted under full knowledge of the liability of the trustees. 3 But where the cestui que trust, knowing all the facts, has for a long time acquiesced in an improper investment of the fund, the trustees , will not be made chargeable with any unexpected loss subsequently occurring. 4 And the same rule applies, where the contract of sale is made between the directors of different corporations, the persons acting on behalf of one board having an interest in the other com- pany. 5 ] § 323. There are many other cases of persons, standing, in re- gard to each other, in the like confidential relations, in which simi- lar principles apply. Among these may be enumerated the cases is interested in the estate and where he is but their duties and services are treated not, holding that he can, if interested, and as gratuitous and honorary. A different the sale is fairly conducted, make a valid rule prevails in many, if not all, of the purchase. Erazer's Bx'ors v. Lee, 42 States of this Union. See post, § 1268. Ala. 25.] s Steele v. Babcock, 1 Hill (N. Y.), i SchiefEelin v. Stewart, 1 Johns. Ch. 527. 620; Brown v. Brewerton, 4 Johns. Ch. 8 [* Burrows u. Walls, 5 De Gex, M. 303; 4 Dow, Pari. 131; Evertson v. & G. 233. See also Lloyd v. Atwood, Tappen, 6 Johns. Ch. 497 ; Hawley v. 3 De Gex & Jones, 614. Mancius, 7 Johns. Ch. 174 ; Cook v. Cool- * Griffiths v. Porter, 25 Beavan, 236 ; ingridge, Jac. 607, 621 ; Ward v. Smith, Liddell v. Norton, 21 Beavan, 183 ; West 3 Sandf. 592 ; Michaud v. Girod, 4 How. v. Sloan, '3 Jones, Eq. 102. U. S. 504 ; Painter v. Henderson, 7 Barr, 6 Cumberland Coal & Iron Co. v. Sher- 48 ; Jeremy on Equity Jurisd. B. 1, ch. 1, man, 8 Law Keg. 333. In South Carolina § 3, p. 142, &c. ; 1 Eonbl. Eq. B. 2, ch. 7, the courts of equity, after a good deal of § 6, note (/>); id. § 7, and note (*■); [Moses vacillation, in Stallings v. Foreman, 2 v. Moses, 50 Ga. 9 ; Goodwin v. Goodwin, Hill, Ch. 401, held that an executor or 48 Ind. 584 ; Sheldon v. Kice, 30 Mich, administrator is not to be regarded as a 296 ; Harper v. Mansfield, 58 Mo. 17 ; mere trustee to sell, and that his purchase Lytle v. Beveredge, 58 N. Y. 593 ; Sta- at his own sale, at a fair price, is valid, pies v. Staples, 24 Gratt. 225; Cnibb v. both in law and equity. The legislature Bray, 36 Wis. 333]. Trustees are not then established the same rule by statute, voluntarily allowed a compensation in Huger w. Huger, 9 Rich. Eq. 217, 224,225 ; England for their services, unless specially 1 Perry on Trusts, § 207.] provided for in the creation of the trust ; 318 EQUITY JURISPRUDENCE. [CH. Til. which arise from the relation of landlord and tenant, of partner and partner, of principal and surety, and various others, where mutual agencies, rights, and duties are created between the parties by their own voluntary acts, or by operation of law. But it would occupy too much space to go over them at large ; and most of them are resolvable into the principles already commented on. 1 On the whole, the doctrine may be generally stated that wherever confi- dence is reposed, and one party has it in his power, in a secret manner for his own advantage, to sacrifice those interests which he is bound to protect, he will not be permitted to hold any such advantage. 2 § 324. The case of principal and surety, however, as a striking illustration of this doctrine, may be briefly referred to. The con- tract of surety imports entire good faith and confidence between the parties in regard to the whole transaction. Any concealment of material facts, or any express or implied misrepresentation of such facts, or any undue advantage taken of the surety by the creditor, either by surprise, or by withholding proper information, will undoubtedly furnish a sufficient ground to invalidate the con- tract. Upon the same ground, the creditor is, in all subsequent transactions with the debtor, bound to equal good faith to the 1 See 1 Hovenden on Frauds, ch. 6, p. 3, § 2, p. 395 ; Griffiths v. Robins, 3 Mad. 199, 209 ; id. vol. 2, ch. 20, p. 153 ; ch. 21, 191. See Burke v. Rogerson, 12 Jur. n. s. p. 171 ; Maddeford v. Austwick, 1 Sim. 635 ; s. c. 14 L. T. n. s. 780. [So of offi- 89 ; 1 Chitty, Dig. Fraud, vii. ; Oliver v. cers of corporations and of stockholders. Court, 8 Price, 127 ; Farnam v. Brooks, Thus it is a fraud in a director to post- 9 Pick. 212. [See Bentiey v. Craven, 18 pone a call to enable him to transfer his Beav. 75 ; Perens v. Johnson, 3 Sm. & G. shares and get rid of liability. Gilbert's 419; Richie v. Cowper, 28 Bear. 344; Case, L. R. 5 Ch. App. 559. So a collu- Clegg v. Edmonson, 8 De G., M. & G. 787 ; sive forfeiture of shares will not relieve Clements v. Hall, 2 De G. & J. 173. But the owner of liability to call. Gower's persons about to enter into partnership Case, L. R. 6 Eq. 77. So that a director are not in any relation of confidence, and cannot deal on behalf of the company their misrepresentations of values of with himself or a firm of which he is a property owned by them will not consti- partner. See Aberdeen R. Co. v. Blaikie, tute fraud. Uhler v. Semple, 5 C. E. 23 L. Times, 315 (H. of L.) ; s.c.l Macq. Green, 288. But where a partnership or 461 ; Flanagan v. Great West. R.R. Co., joint-stock company is in contemplation, E. R. 7 Eq. 116. See Imperial M. C. and a proposed partner or promoter pur- Assn. v. Coleman, L. R. 6 Ch. App. 558. chases property to sell to the associates, See § 229 6, note 2. After purchase by the he acts as quasi agent, and cannot sell at mortgagee at his own foreclosure sale, the an advance, without full disclosure of the mortgagor may redeem as though there facts. Short v. Stevenson, 63 Penn. St. had been no sale. Harper e. Ely, 56 111 95 ; Densmore Oil Co. v. Densmore, 9 Am. 179 ; Roberts v. Fleming, 53 111. 196. L. Reg. (n. s.) 96; Beck v. Kantorowicz, But the mortgagee having so purchased 3 K. & J. 230.] is in adversely, and is not trustee for 2 Jeremy on Eq. Jurisd. B. 3, Pt. 2, ch. mortgagor, and may buy in outstanding § 323-325 a.] CONSTRUCTIVE FRAUD. 319 surety. 1 If any stipulations, therefore, are made between the creditor and the debtor, which are not communicated to the surety, and are inconsistent with the terms of his contract, or are preju- dicial to his interests therein, they will operate as a virtual dis- charge of the surety from the obligation of his contract. 2 And, on the other hand, if any stipulations for additional security, or other advantages, are obtained between the creditor and the debtor, tho surety is entitled to the fullest benefit of them. 3 § 325. Indeed, the proposition may be stated in a more general form ; that if a creditor does any act injurious to the surety, or inconsistent with his rights, or if he omits to do any act, when required by the surety, which his duty enjoins him to do, and the omission proves injurious to the surety ; in all such cases the latter will be discharged, and he may set up such conduct as a defence to any suit brought against him, if not at law, at all events in equity. 4 [* § 325 a. But where an official bond is given for faithful administration, nominally to one of the officers of court, but in fact for the security of parties interested in the discharge of the title. Roberts v. Eleming, ubi sup. ; Grif- fin v. Marine Co., 53 111. 196. And the mortgagee may bargain with the mortga- gor for the equity, though equity looks upon such contracts with jealousy. Rush- brook v. Lawrence, L. R. 8 Eq. 25 ; 5 Ch. App. 3 ; Ford v. Olden, L. R. 3 Eq. 461 ; Prees v. Coke, L. R. 6 Ch. App. 645. And may purchase at a prior mortgagee's sale. Shaw ». Bunny, 33 Beav. 494 ; 2 De G., J. & S. 468. See Kirkwood v. Thompson, 2 Hem. & Mil. 392 ; 2 De G., J. & S: 613; Parkinson v. Hanbury, 2 De G., J. & S. 450. 1 See Cecil v. Plaistow, 1 Anstr. 202 ; Leicester v. Rose, 4 East, 372 ; Pidcock v. Bishop, 3 B. & Cressw. 605 ; Owen v. Homan, 3 Eng. Law & Eq. 121 ; Smith v. Bank of Scotland, 1 Dow, 272 ; Bank of United States v. Etting, 11 Wheat. 59 ; [Boschert v. Brown, 72 Penn. St. 372]. 2 See King v. Baldwin, 2 Johns. Ch. 554, and the cases there cited ; s. c. 17 Johns. 384 ; Bonar v. Macdonald, 1 Eng. Law & Eq. 1 ; Nisbet v. Smith, 2 Bro. Ch. 583. 8 Hayes v. Ward, 4 Johns. Ch. 123 ; Mayhew v. Crickett, 2 Swanst. 186, and the authorities cited, p. 191, note (a) ; Boultbee v. Stubbs, 18 Ves. 23 ; Ex parte Rushforth, 10 Ves. 409, 421 ; post, § 499. 4 The proposition is thus qualified, because in a variety of cases it is certainly very questionable whether the defence can be asserted at law ; though there is no doubt that it can be asserted in all cases in equity. It has, indeed, been said, by a learned court, that there is nothing in the nature of a defence by a surety, to make it peculiarly a subject of equity jurisdiction ; and that, whatever would exonerate a surety in one court, ought to exonerate him in the other. The People v. Janssen, 7 Johns. 332; s. p. 2 Johns. 554, 557. But this doctrine does not seem to be universally adopted ; and certainly it has not been acted upon in England to the extent which its terms seem to import. See Theobald on Prin- cipal and Surety, p. 117 to 138. [So where the purchase was illegal, and the value of the bank stock bought imper- illed by such illegality, held, that an in- nocent surety for the price was dis- charged. Denison v. Gibson, 24 Mich. 186.] 320 EQUITY JUBISPRUDENCE. [CH. Vn. official duty thereby insured, it was held that the surety on such bond is not discharged by the neglect of those interested to exer- cise that supervision over the official conduct of the principal which it was, by statute, made their duty to do. In order to have that effect, it would seem that the negligence must amount to a virtual connivance at the official delinquency ; or must be so gross as to be equivalent to a wilful shutting of the eyes to the fraud about to be committed. But this case rests upon grounds some- what peculiar. 1 It is now regarded as settled that there must be something which amounts to fraud to enable the surety to say that he is released from his contract on account of misrepresentation or concealment. But in regard to his being released by the surrender of securities held by the creditor, there is no difference whether they existed at the date of the suretyship or not. 2 ] § 326. It is upon this ground, that if a creditor, without any communication with the surety, and assent on his part, should afterwards enter into any new contract with the principal, incon- sistent with the former contract, or should stipulate, in a binding manner, upon a sufficient consideration, for further delay and post- ponement of the day of payment of the debt, that will operate in equity as a discharge of the surety. 3 [* But it is not every altera- tion of his position by the act of the creditor, which will discharge the surety. To have this effect, the alteration must be such as interferes for a time with his remedies against the principal debtor. 4 And where the creditor, in making the arrangement with the principal to give time, or otherwise vary the strict enforcement of the letter of the contract, reserves his rights against the surety, although without communicating this fact to the surety, it will not 1 [* Dawson v. Lawes, Kay, 280 ; ante, v. Stubbs, 18 "Ves. 20 ; Ludlow ». Simond, § 164 a. 2 Caines, Cas. Err. 1 ; King v. Baldwin, 2 Pledge v. Buss, 6 Jur. s. s. 695. The 2 Johns. Ch. 554 ; 17 Johns. 384 ; Ex case of Newton v. Chorlton, 10 Hare, 646, parte Gifford, 6 Ves. 805; Rees o. Ber- is treated as overruled. Post, § 499. And rington, 2 Ves. Jr. 540 ; 2 White & Tu- where the consideration of the contract, dor's Eq. Lead. Cas. 707, and notes ; guaranteed by the surety, was the pur- Blake o. White, 1 Younge & Coll. 420. chase of real estate, the title to which Qucere, whether a surety on a bond for was subsequently found defective, and the fidelity of a party for an indefinite the defect supplied by the vendor, with- period can, by notice to the obligee, ter- out the knowledge of the surety, but by minate his liability. See Gordon v. Cal- consent of the principal ; it was held the vert, 2 Sim. 253 ; s. o. 4 Russ. 581 ; Bon- surety was not discharged. Campbell v. ser v. Cox, 6 Beavan, 379. Moulton, 30 Vt. 667.] * [* Tucker ». Laing, 2 K. & J. 745. 8 Skip v. Huey, 3 Atk. 91 ; Boultbee § 325 a-327.] constructive fraud. 321 operate as a release of the surety. 1 ] But there is no positive duty incumbent on the creditor to prosecute measures of active dili- gence ; and, therefore, mere delay on his part (at least if some other equity does not interfere), unaccompanied by any valid con- tract for such delay, will not amount to laches, so as to discharge the surety. 2 On the other hand, if the creditor has any security from the debtor, and he parts with it, without communication with the surety, or by his gross negligence it is lost, 3 that will operate at least to the value of the security, to discharge the surety. 4 [* And even where done under a misapprehension, the conse- quences must fall upon the person who did the act. 5 ] § 327. Sureties, also, are entitled to come into a court of equity, after a debt has become due, to compel the debtor to exonerate them from their liability, by paying the debt. 6 And although (as we have seen) the creditor is not bound by his general duty to active diligence in collecting the debt, yet it has been said that a surety, when the debt has become due, may come into equity, and compel the creditor to sue for, and collect the debt from the prin- cipal ; at least if he will indemnify the creditor against the risk, delay, and expense of the suit. 7 But, whether the surety can thus compel the creditor to sue the principal or not, he has a clear + 1 Webb o. Hewitt, 3 Kay & J. 338. Sim. & Stu. 457. See also Schroeppell v. But it is here said, if the creditor release Shaw, 3 Comst.460. the debtor he cannot reserve any right 6 [*Lord Eldon, in Wilson, ex parte, 11 against the surety, for the debt is gone. Vesey, 410. In Scholefield u. Templer, And in equity, a composition by the Johns. Eng. Ch. 155, the rice-chancellor, debtor, effected with all his creditors, by in commenting upon this case, says : " I the surrender of all his property, oper- do not see that the statement of the facts ates as a release, and no rights can be re- of the case fits the reasons for the judg- served against the surety. Id. ; Kearsley ment." But if we correctly understand «. Cole, 16 M. & W. 128.] the comments of Lord Eldon, the misap- 2 Wright v. Simpson, 6 Ves. 734 ; prehension of the proper relation of his Heath v. Hay, 1 Y. & Jerv. 434 ; United reasons to the judgment is not justly laid States v. Kirkpatrick, 9 Wheat. 720; to his charge. City of Maquoketa v. McLemore v. Powell, 12 Wheat. 554; Willey, 35 la. 232 ; Pleasanton's App. 75 Josslyn v. Smith, 13 Vt. 353. Fenn. St. 344 ; Harriman v. Egbert, 36 8 [But see Lang v. BrevarJ, 3 Strobh. la. 270 ; Hayes v. Little, 52 Ga. 555.] Eq. 59, where it was held that the neg- 6 Nisbet v. Smith, 2 Bro. Ch. 579 ; Lee lect of the creditor to record a mortgage v. Brook, Moseley, 318 ; Cox v. Tyson, 1 given by the principal debtor, to recover Turn. & Euss. 395. the debt, did not discharge the surety. 7 Hayes v. Ward, 4 Johns. Ch. 123, See also Pickens v . Finney, 12 S. & M. 131, 132 ; King v. Baldwin, 2 Johns. Ch. 468.] 554 ; s. c. 17 Johns. 381 ; Wright v. Simp- 4 Mayhew v. Crickett, 2 Swanst. 185, son, 6 Ves. 734 ; Bishop v. Day, 13 Vt. 81 ; 191, and note (o) ; Law u. East India [*Gilliam v. Esselman, 5 Sneed, 86.] Company, 4 Ves. 833 ; Capel v. Butler, 2 EQ. JtJK. — vol.i. 21 322 EQUITY JURISPRUDENCE. [CH. VII. right, upon paying the debt to the principal, to be substituted in the place of the creditor, as to all securities held by the latter for the debt, and to have the same benefit that he would have therein. 1 This, however, is not the place to consider at large the general rights and duties of persons standing in the relation of creditors, debtors, and sureties ; and we shall have occasion again to advert to the subject, when considering the marshalling of securities in favor of sureties. 2 [* § 327 a. Contracts of suretyship limited by time are usually construed strictly, and not extended beyond the period fixed, even when the creditors and the principal extend the same relation. Thus, where two bankers carried on business under articles of partnership, providing that if, at the end of five years, the term fixed, either partner should wish to carry on the business, and should not take the share of the other at a valuation, the assets should be realized and debts paid, and the surplus divided ; and one of the partners had procured a surety to indemnify the other against all loss in respect of the partnership, the business of the bank having been continued by the firm more than a year after the expiration of the five years : it was held that the surety was thereby discharged ; and that, whether these facts would constitute a defence at law or not, a court of equity would restrain the obligee from proceeding in such an action. 8 ] § 328. Let us now pass to the consideration of the third class of constructive frauds, combining, in some degree, the ingredients of the others, but prohibited mainly, because they unconscientiously compromit, or injuriously affect, the private rights, interests, or duties of the parties themselves, or operate substantially as frauds upon the private rights, interests, duties, or intentions of third persons. § 329. With regard to this last class, much that has been already stated, under the preceding head of positive or actual fraud, as to unconscionable advantages, overreaching, imposition, undue influ- ence, and fiduciary situations, may well be applied here, although certainly with diminished force, as the remarks there made did not turn exclusively upon constructive fraud. '.-See Cray thorne». Swinburne, 14 Ves. 8 [*Small v. Currie, 5 De G., M. & G. 162; Wright v. Morley, 11 Ves. 12, 22; 141. See also Watson v. Allcock, 4 De Hayes v. Ward, 4 Johns. Ch. 123. [*See G., M. &. G. 242 , Bonar v. Macdonald, 3 3 Equity Lead. Cas. 657-559.] H. L. Cases, 226 ; Eailton v. Mathews, 2 Post, § 499, 502, 637. 10 Clark & Finnell. ». s. 934.] § 327-330.] CONSTRUCTIVE FRAUD. 323 [* § 329 a. Where the contract is between those who sustain, or have lately sustained, any intimate and confidential relation, the law presumes the existence of that superiority and influence on the one part, and that confidence and dependence on the other, which is the natural result of the relation, and will accordingly decree the cancellation of the contract, unless it appear affirma- tively to have been equal and just. But if there be nothing in the relation tending to show influence on the one part and dependence on the other, it may nevertheless be shown, that confidence existed and was betrayed, and the court will regard it the same as if it grew out of a special relation. 1 § 329 b. And where one sustains any such fiduciary obligation to another, that such other is fairly entitled to his advice and services, either for the joint benefit of the two, or the exclusive benefit of himself, and the party sustaining such relation, in viola- tion of his obligation and duty, enters into any subsidiary contract, with a view to his own advantage, all profits thus resulting belong to the party for whose benefit he was bound to have acted. Thus where one, who was both solicitor for and partner in a concern, entered into a contract with a third party to sell land to the con- cern, at an advance above his purchase, and divide the profits between them, and this was done without the knowledge of the company, it was held that the share of the profits thus secured to the solicitor and partner belonged to the company, and it was decreed accordingly. 2 § 329 e. But in a recent case 3 carried to the court of final resort, it was held, that a bill to set aside a purchase by an agent should be dismissed with costs, it being proved, that the plaintiff, at the time of the sale, had distinct notice that the agent was one of the beneficial purchasers, and not having instituted a suit for six years.] § 330. To this same class may also be referred many of the cases arising under the Statute of Frauds, 4 which requires certain 1 [*Smith v. Kay, 7 House of Lords 9 L. T. v. s. 162 ; Dally v. Wonham, 33 Cas. 750. It is the duty of the defend- Bear. 154. ant, standing in the relation of superi- 2 Tyrrell v. The Bank of London, 8 ority to plaintiff, and charged with obtain- Jur. n. 8. 849 ; s. c. 31 L. J. n. a. Ch. 3 ing an unjust advantage by means of s. c. 10 W. R. 359 ; Broun v. Kennedy, 9 undue influence, to show affirmatively, as Jur. w. s. 1163 ; s. c. 33 L. J. n. s. Ch. 71 far as practicable, that such was not the s. c. 12 W. B. 224 ; s. c. 33 Beav. 133. fact. Davies v. Davies, 9 Jur. s. s. 1002 ; * Wentworth v. Lloyd, 32 Beav. 467 s. c. 4 Giff. 417 ; s. c. 11 TV. E. 1040 ; s. c. s. c. 10 House of Lords Cas. 589.] * Stat. 29 Charles H. ch. 3, § 1, 4. 324 EQUITY JURISPRUDENCE. [CH. VII. contracts to be in writing, in order to give them validity. In the construction of that statute, a general principle has been adopted, that, as it is designed as a protection against fraud, it shall never be allowed to be set up as a protection and support of fraud. Hence, in a variety of cases, where from fraud, imposition, or mis- take, a contract of this sort has not been reduced to writing, but has been suffered to rest in confidence or in parol communications between the parties, courts of equity will enforce it against the party, guilty of a breach of confidence, who attempts to shelter himself behind the provisions of the statute. 1 Some instances of this sort have been already mentioned; and others again will occur in the subsequent pages. 2 § 331. And, here, we may apply the remark, that the proper jurisdiction of courts of equity is to take every one's act, according to conscience, and not to suffer undue advantage to be taken of the strict forms of law, or of positive rules. 3 Hence it is, that, even if there be no proof of fraud or imposition ; yet, if upon the whole circumstances, the contract appears to be grossly against conscience, or grossly unreasonable and oppressive, courts of equity will sometimes interfere and grant relief ; i although they certainly are very cautious of interfering, unless upon very strong circum- stances. 5 But the mere fact that the bargain is a very hard or un- reasonable one, is not, generally, sufficient, per se, to induce these courts to interfere. 6 And indeed it will be found that there are very few cases not infected with positive or actual fraud, in which they do interfere, except where the parties stand in some very 1 See 3 Wooddes. Lect. 57, p. 431, 432 ; law ; as in the case of a contract to pay Montecute v. Maxwell, 1 P. Will. 619, for a horse a barley-corn a nail, doubling 620 ; 1 Eq. Abridg. 19 ; Attorney-General it every nail, and there were thirty-two v. Sitwell, 1 Younge & Coll. 583 ; ante, nails in the shoes of the horse. James ». § 157, 161, and note. Morgan, 1 Lev. Ill, cited 2 Ves. 155; 1 2 Ante, § 158; post, § 374, 752 to 766. Atk. 351, 352; Whalley v. Whalley, 3 » Chesterfield v. Janssen, 2 Ves. 137, Bligh, 1. arguendo. 6 Willis v. Jernegan, 2 Atk. 251, 252. * Nott v. Hill, 1 Vern. 167, 211 ; s. c. See 1 Fonbl. Eq. B. 1, ch. 2, § 10, and 2 Vern. 26; Berny o. Pitt, 2 Vern. 14; note (A); Proof v, Hines, Cas. T. Tain. Chesterfield o. Janssen, 2 Ves. 145, 148, 111 ; Kamsbottom v. Parker, 6 Maddock, 154, 155, 158 ; Twistleton v. Griffith, IP. 5 ; 2 Swanston, 147, note (a), and espe- Will. 310 ; Cole v. Gibbons, 3 P. Will. 290 ; daily under page 150, the Reporter's cita- Bowes v. Heaps, 3 Ves. & B. 117 ; Gwynne tion from Lord Nottingham's MS. of the v. Heaton, 1 Bro. Ch. 1 ; Collins v. Hare, case of Berny v. Pitt, and the remarks 2 Bligh (n. s.), 106. of Lord Hardwicke on this case, in 1 Atk. 6 In some cases of grossly unreason- 852, and 2 Ves. 157 ; Freeman v. Bishop, 2 able contracts, relief may be had, even at Atk. 39. § 330-333.] CONSTRUCTIVE FRAUD. 325 peculiar predicament, and in some sort, under the protection of the law, from age, or character, or relationship. 1 § 332. One of the most striking cases, in which the courts inter- fere, is in favor of a very gallant, but strangely improvident class of men, who seem to have mixed up in their character qualities of very opposite natures, and who seem, from their habits, to require guardianship during the whole course of their lives ; having at the same time great generosity, credulity, extravagance, heedlessness, and bravery. Of course it will be at once understood, that we here speak of common sailors, in the mercantile and naval service. Courts of equity are always supposed to take an indulgent consid- eration of their interests, and to treat them in the same light with which young heirs and expectants are regarded. Hence it is, that contracts of seamen respecting their wages and prize-money are watched with great jealousy, and are generally relievable whenever any inequality appears in the bargain, or any undue advantage has been taken. 2 It has been remarked, by a learned judge, that this title to relief arises from a general head of equity, partly on ac- count of the persons with whom the transaction is had, and partly on account of the value of the thing purchased. 3 And, he added, that he was warranted in saying, that they were to be viewed in as favorable a light as young heirs are, by what has been often said in cases of this kind, and what has been done by the legislature itself, which has considered them as a class of men, loose, and unthinking, who will, almost for nothing, part with what they have acquired, perhaps, with their blood. 4 § 333. But the great class of cases, in which relief is granted, under this head, is where the contract or other act is substantially 1 SeeHuguenino.Baseley, 14 Ves. 271. ford, 2 Ves. 281 ; Baldwin v. Rochfort, 1 And see Mr. Swanston's valuable note to Wils. 229. Yet it is obvious, that Lord Davis v. Duke of Marlborough, 2 Swanst. Hardwicke, in Chesterfield v. Janssen, 2 149, note (a) ; Jeremy on Equity Jurisd. Ves. Sen. 137, did not contemplate them B. 2, Pt. 2, ch. 3, § 4, p. 399; Thornhill v. as entitled to such peculiar protection; Evans, 2 Atk. 330. for he puts their case as not relievable. 2 See the authorities on the subject of " The contracts of sailors, selling their contracts with seamen, fully collected in shares before they knew what they were, the work on Contracts, by Prof. Parsons, could not be set aside here." But see the "Vol. 1. cases in 1 Wilson, 229; 2 Ves. 218. 8 Sir Thomas Clarke, in How i>. Wei- * How v. Weldon, 2 Ves. Sen. 616. don, 2 Ves. 516, 518 ; 1 Fonbl. Eq. B. 1, See also the admirable opinion of Lord ch. 2, § 12, note (k) ; Jeremy on Eq. Stowell, in the Juliana, 2 Hagg. Adm. Jurisd. B. 3, Pt. 2, ch. 3, § 1, p. 401 ; 3 P. 604. But see Griffith v. Spratley, 1 Cox, Will. 131, Cox's note (1) ; Taylor v. Eoch- 383. 326 EQUITY JURISPEUDENCE. [CH. VII. a fraud upon the rights, interests, duties, or intentions of third persons. And, here, the general rule is, that particular persons, in contracts, and other acts, shall not only transact bond fide be- tween themselves, but shall not transact maid fide in respect to other persons, who stand in such a relation to either, as to be affected by the contract or the consequences of it. 1 And, as the rest of mankind, besides the parties contracting, are concerned, the rule is properly said to be governed by public utility. 2 § 334. It is upon this ground, that relief has been constantly granted, in what are called catching bargains with heirs, rever- sioners, and expectants, during the life of their parents or other ancestors. 3 Many, and, indeed, most of these cases (as has been pointedly remarked by Lord Hard wi eke), "have been mixed cases, compounded of almost every species of fraud ; there being some- times proof of actual fraud, which is always decisive. There is always fraud presumed or inferred from the circumstances or con- ditions of the parties contracting, from weakness on one side and usury on the other, or extortion or advantage taken of that weak- ness. There has always been an appearance of fraud from the nature of the bargain, even if there be no proof of any circumven- tion, but merely from the intrinsic unconscionableness of the bar- gain. In most of these cases have concurred deceit and illusion on other persons, not privy to the fraudulent agreement. The father, ancestor, or relation from whom was the expectation of the estate, has been kept in the dark. The heir or expectant has been kept from disclosing his circumstances, and resorting to them for advice, which might have tended to his relief, and also reforma- tion. This misleads the ancestor, who has been seduced to leave his estate, not to his heir or family, but to a set of artful persons, who have divided the spoil beforehand." 4 § 335. Strong as this language may appear, it is fully borne out by the general complexion of the cases in which relief has been afforded. Actual fraud, indeed, has not unfrequently been re- pelled. 5 But there has always been constructive fraud, the nature 1 Per Lord Hardwicke, in Chesterfield of Marlborough, 2 Swanst. 147, 151, 152, u. Janssen, 2 Ves. 156, 157. 165, 174. 2 Chesterfield v. Janssen, 2 Ves. 156, * Lord Hardwicke, in Chesterfield v. 167 ; 1 Mad. Pr. Ch. 97, 98, 99, 214 ; 1 Eq. Janssen, 2 Ves. 157 ; Earl of Aldborough Abridg. 90, &c. v. Frye, 7 Clark & Finnell. 436. 3 1 Ponbl. Eq. B. 1, ch. 2, § 12, and <* Bowes v. Heaps, 3 Ves. & Beam. 117, note (k) ; Jeremy on Eq. Jurisd. B. 3, Pt. 119; Peacock v. Evans 16 Ves. 512. 2, ch. 3, § 4, p. 397, &c. ; Davis o. Duke § 333-336.] CONSTRUCTIVE FRAUD. 327 and circumstances of the transaction being an imposition and deceit upon third persons, who were not parties to it. The relief is founded in part upon the policy of maintaining parental and quasi parental authority, and preventing the waste of family estates. It is also founded in part upon an enlarged equity, flow- ing from the principles of natural justice; upon the equity of protecting heedless and necessitous persons against the designs of that calculating rapacity which the law constantly discoun- tenances ; of succoring the distress frequently incident to the owners of unprofitable reversions, and of guarding against the improvidence with which men are commonly disposed to sacrifice the future to the present, especially when young, rash, and dis solute. 1 § 336. Indeed, in cases of this sort, courts of equity have ex tended a degree of protection to the parties, approaching to an incapacity to bind themselves absolutely by any contract, and, as it were, reducing them to the situation of infants, in order to guard them against the effects of their own conduct. 2 Hence it is, that, in all cases of this sort, it is incumbent upon the party dealing with the heir, or expectant, or reversioner, to establish, not merely that there is no fraud, but (as the phrase is) to make good the bargain ; that is, to show that a fair and adequate con- sideration has been paid. 3 For, in cases of this sort (contrary to the general rule), mere inadequacy of price or compensation is sufficient to set aside the contract. 4 The relief is granted upon the general principle of mischief to the public, without requiring any particular evidence of imposition, unless the contract is shown to be above all exception. 5 But it is not necessary, in 1 See Davis v. Duke of Marlborough, onus is upon him to show that he gave 2 Swanston, 147, 148, the Reporter's note ; a fair price." Twistleton v. Griffith, 1 P. Will. 310 ; * Peacock v. Evans, 16 Ves. 512, 514 ; Cole e. Gibbons, 3 P. W. 293; Baugh v. Gowland v. De Faria, 17 Vcs. 20; Bernal Price, 1 Wils. 320 ; 2 Ves. 144, 155 ; Bar- u . Donegal, 1 Bligh (n. s.), 594; Hincks- nardiston v. Lingood, 2 Atk. 135, 136 ; man u. Smith, 3 Kuss. 433 ; Earl of Ald- Bowes v. Heaps, 3 Ves. & Beam. 117, 119, borough v. Frye, 7 Clark & Finnell. 436; 120; Walmesley v. Booth, 2 Atk. 27, 28; Edwards u. Browne, 2 Collyer, 100; 1 Mad. Pr. Ch. 97, 98, 99. [Boothby v. Boothby, 15 Beav. 212; St. 2 Gwynne v. Heaton, 1 Bro. Ch. 1, 9; Albany. Harding, 27 Beav. 11]. Peacock v. Evans, 16 Ves. 512, 514. 5 Walmesley v. Booth, 2 Atk. 28 ; 1 3 Earl of Aldborough v. Frye, 7 Clark Mad. Pr. Ch. 97, 98 ; Sir John Strange, & Finnell. 436, 456. In this case Lord in Chesterfield v. Janssen, 2 Ves. 149; Cottenham said: "It appears to be es- Gwynne v. Heaton, 1 Bro. Ch. 1, 9; tablished by several cases that where a Hincksman v. Smith, 3 Russ. 433 ; Ryle v. party deals with an expectant heir, the Brown and Swindell, 1 M'Clel. 519 ; s c. 328 EQUITY JURISPRUDENCE. [CH. VII. cases of this sort, to establish in evidence that the full value of the reversionary interest or other expectancy has been given, according to the ordinary table for calculations of this sort. It will be sufficient to make the purchase unimpeachable, if a fair price, or the fair market-price, be given therefor, at the time of the dealing. 1 § SS' The doctrine applies, as we have seen, not merely to heirs dealing with their expectancies, but to reversioners and re- mainder-men, dealing with property already vested in them, but of which the enjoyment is future, and is, therefore, apt to be under-estimated by the giddy, the necessitous, the improvident, and the young. 2 According, however, to the decisions, age does not seem to make much difference as to the protection afforded to expectant heirs, since the aim of the rule is chiefly directed to prevent deceit and imposition upon parents and other ancestors. 3 And in regard to reversioners and remainder-men, if they are at the time necessitous, and laboring under pecuniary distress and embarrassment, an equally indulgent protection will also be af- forded to them. 4 [* § 337 a. In a late case it is said that it is the imperative duty of the purchaser of a reversion from an expectant heir to preserve evidence of the bona fides of the transaction, and that the sale was for full consideration ; and in the absence of such evidence the sale will be set aside. 5 And in another case, it was held that 13 Price, 758 ; Earl of Aldborough v. 158 ; 1 Atk. 353 ; Gwynne u. Heaton, 1 Frye, 7 Clark & Finnell. 436, 456. Bro. Ch. 1, 9. [That equity will not set 1 Headen v. Kosher, M'Clel. & Younge, aside a sale of a legacy of fixed amount 89; Potts v. Curtis, 1 Younge, 543; Men- payable at a fixed time, though made weather v. Herran, 8 B. Monroe, 162; several years before its becoming due, Earl of Aldborough v. Frye, 7 Clark & and though legatee is a dissipated, im- Finnell. 436, 458 to 461. [See Lord v. provident, and weak-minded young man, Jeffkins, 35 Beav. 7 ; and that mere in- and the price inadequate, see Parmelee v. adequacy is not enough, see Mayo v. Car- Cameron, 41 N. Y. 392 ; 1 Perry on Trusts, rington, 19 Gratt. (Va.) 74.] § 188. Equity looks with jealousy on a 2 Gowland v. De Faria, 17 Ves. 20; conveyance of the equity by mortgagor Peacock v. Evans, 16 Ves. 512 ; Mr. to mortgagee. See Prees v. Coke, L. R. Swanston's note, 2 Swanston, 147, 148 ; 1 6 Ch. App. 645. See ante, § 323, note (6). Fonbl. Eq. B. 1, ch. 2, § 12, note (£). But For a case where equity refused to en- see Nichols v. Gould, 2 Ves. 422. force a contract for sale of an expect- 8 Davis v. Duke of Marlborough, 2 ancy, see Lowry v. Spear, 7 Bush (Ky.), Swanst. 151; 1 Fonbl. Eq. B. 1, ch. 2, 451.] § 12, note (h) ; Ormond v. Fitzroy, 3 P. 6 [» Salter v. Bradshaw, 5 Jur. N. s. Will. 131 ; Wiseman v. Beake, 2 Vera. 831. See also Bowes v. Heaps, 3 Vesey 121. & B. 117 ; Edwards v. Burt, 2 De G., M. * Ibid. ; Wood v. Abrey, 3 Mad. 418, & G. 55. 422 ; Chesterfield ». Janssen, 2 Ves. 157, § 336-337 C.] CONSTRUCTIVE FRAUD. 329 the rule, throwing the burden of proof in such cases upon the purchaser, was applicable where the transaction was a charge and not a sale, and where the heir was of full age and perfectly under- stood the nature and extent of the transaction. 1 § 337 b. This subject occupies considerable space in the English equity reports. It is entirely well settled by many late decisions, that all contracts for the purchase of reversionary interests are viewed in courts of equity with marked watchfulness and sus- picion. If there is any inadequacy in the price paid, ever so small, the court will set aside the sale. 2 The burden of proof that the sale was originally a fair one rests upon the party seek- ing to complete it. 3 And a sale of reversionary estate and the granting a lease of it stand upon the same principles. 4 And con- tracts of this character will always be set aside where there is either advantage taken of the necessities of the seller, or any marked inadequacy in the price. 5 There are some instances in which the sale of reversionary interests is supported on the ground of being part of a family arrangement ; but it must clearly appear to be of that character to justify such a result. 6 § 337 c. The principle that courts of equity will discourage dealings with expectant heirs, and others entitled to estates in expectancy, either by way of the purchase or mortgage of such estates, has nothing to do with family settlements made by per- sons in such circumstances, for the support of the wife or chil- dren of such persons. But contracts of the latter character, or any other reasonable and commendable family arrangement as to the settlement of property, is rather favored by courts of equity 7 1 Bromley v. Smith, 5 Jur. n. s. 833. is payable is not within the rule. Web- * Foster v. Roberts, 7 Jur. s . a. 400 ; ster v. Cook, L. R. 2 Ch. App. 542. g. c. 29 Bear. 467 ; Jones v. Ricketts, B Douglas v. Culverwell, 5 Law T. 8 Jur. n. s. 1198 ; s. c. 31 Beav. 130 ; h. ». 484 ; s. c. 3 Giff. 251 ; affirmed 6 Perfect v. Lane, 30 Beav. 197 ; Nesbitt Law T. n. s. 272. v. Berridge, 9 Jur. h. s. 1044 ; s. c. 32 6 Talbot v. Stanif orth, 1 Johns. & H. Beav. 282; Clark v. Malpas, 31 Beav. 484; 7 Jur. v. s. 961; s. c. 8 id. 757; 80; Baker v. Monk, 10 Jur. n. s. 624; Jenner v. Jenner, 2 De G., F. & J. 369. s. c. 33 Beav. 419. See Firmin v. Pulham, 2 De G. & Sm. 99 ; 8 Hannah v. Hodson, 5 Law T. n. s. Willoughby v. Brideoke, 13 W. R. 515. 42. i Shafto v. Adams, 4 Giff. 492 ; s. c. 4 Grosvenor v. Sherratt, 28 Beav. 659. 10 Jur. n. s. 121. But to establish a So a mortgage stands on the same family arrangement, there must be a ground as a sale. Tottenham v. Emmet, full disclosure of all the facts, whether 14 W. R. 3. But a person entitled to a demanded or not. Greenwood v. Green- present income out of which an annuity wood, 2 De G., J. & S. 28. If one of tl e 330 EQUITY JURISPRUDENCE. [CH. VII. § 337 d. But where a creditor obtains security for the father's debt by a conveyance from the son, it is incumbent upon him to show, that the son understood the transaction, and that he did not execute the instrument by reason of any undue influence from the father. 1 And an assignment made by a daughter for the benefit of her mother, the daughter at the time contemplating marriage, and the conveyance being made without the knowledge of her intended husband, was set aside, both on the ground of undue influence and of fraud upon the marital rights of the hus- band. 2 ] § 338. The ground of the interposition of courts of equity in cases of reversioners and remainder-men has been commented on by a late learned judge, with great clearness. " At law, and in equity also" (says he), "generally speaking, a man, who has a power of disposition over his property, whether he sells to relieve his necessities, or to provide for the convenience of his family, cannot avoid his contract upon the mere ground of inadequacy of price. A court of equity, however, will relieve expectant heirs and reversioners from disadvantageous bargains. In the earlier cases it was held necessary to show that undue advantage was actually taken of the situation of such persons. But in more modern times it has been considered, not only that those who were dealing for their expectations, but those who were dealing for vested remainders also, were so exposed to imposition and hard terms, and so much in the power of those with whom they con- tracted, that it was a fit rule of policy to impose upon all who deal with expectant heirs and' reversioners, the onus of proving that they had paid a fair price ; and otherwise to undo their bargains, and compel a reconveyance of the property purchased. 8 The principle and the policy of the rule may both be equally question- able. Sellers of reversions are not necessarily in the power of parties be a married woman and she sur- 1 Berdoe v. Dawson, 11 Jur. n. s. 254. vive her husband, and do not affirm the 2 Chambers v. Crabbe, 11 Jur. N. s. contract, it will not bind the others. 277 ; 34 Beav. 457. See also Rhodes v. Bolitho v. Hilyar, 11 Jur. n. s. 556. The Bate, 11 Jur. n. s. 803. But if not one- Judicial Committee of the Privy Council sided, it is said it will not be set aside, lately had occasion to discuss the va- Potts v. Surr, 13 W. R. 909 ; 34 Beavi lidity of sales of reversionary interests 543. See also Williams v. Williams, 2 and expectancies, and came to the con- Drew. & Sm. 378.] elusion that there is nothing absolutely 3 s. p. Bawtree v. Watson, 3 Mylne & contra bonos mores in them. Godfray v. Keen, 340; Newton v. Hunt, 5 Sim. 511; Godfray, 12 Jur. N. s. 397. Edwards v. Burt, 2 De G., M. & G. 55. § 337 d, 338.] constructive fraud. 331 those with whom they contract, and are not necessarily exposed to imposition and hard terms. And persons, who sell their ex- pectations and reversions from the pressure of distress, are thrown by the rule into the hands of those who are likely to take advan- tage of their situation ; for no person can securely deal with them. The principle of the rule cannot, however, be applied to sales of reversions by auction. 1 There being no treaty between the vendor and the purchaser, there can be no opportunity for fraud or imposition on the part of the purchaser. The vendor is in no sense in the power of the purchaser. The sale at auction is evidence of the market-price." This language, however, correct as it may be in its application to the case before the court, where the purchaser had no knowledge of the vendor or his circum- stances, or even knew his name until, after the purchase at public auction, he applied for an abstract of the title, must not be inter- preted to extend to all cases of sales at public auction ; and espe- cially where there had been a previous treaty in negotiation between the vendor and the purchaser or a private sale, and the embarrassment and distress of the vendor is fully known, and the public auction is resorted to by the parties, either by design or by management, to cover up the transaction, or to disguise its true character from the public. To make the sale and the purchase of the reversion valid, under any circumstances, it should clearly appear that the auction is free, fair, and with the ordinary pre- cautions. 2 The reason is plain. Where the sale at public auc- 1 Sir John Leach, in Shelly v. Nash, ence or passion of a dissipated man, its 3 Mad. 232. And see Peacock v. Evans, operation is not confined to heirs, but 16 Ves. 514, 515; 1 Mad. Pr. Ch. 98, 99. extends to all persons, the pressure of Mr. Swanston is of opinion, that, though whose wants may be considered as ob- the principle of the relief, afforded to structing the exercise of that judgment reversioners, by its generality, seems to which might otherwise regulate their extend to every description of persons, dealings." 1 Fonbl. Eq. B. 1, ch. 4, § 12, dealing for or with a reversionary inter- note (&). In Wood v. Abrey, 3 Mad. 423, est ; yet it may be doubted, whether, in the Vice-Chancellor said : " The policy order to constitute a title to relief, the of this rule as to reversions may be well reversioner must not also combine the doubted; and, if the cases were looked character of heir. He has collected and into, it might be found that the rule was compared the cases. Mr. Fonblanque originally referred only to expectant heirs, manifestly does not contemplate any and not to reversioners." See also Jeremy such limitation of the doctrine. He says : on Eq. Jurisd. B. 3, Pt. 2, ch. 3, § 4, p. 398, " The real object, which the rule pro- 399 ; Hincksman v. Smith, 3 Bussell, 433. poses, being to restrain the anticipation See also Newton v. Hunt, 5 Sim. 511. of expectancies, which must, from its very 2 Ibid.; post, § 347; Earl of Aldbor- nature, furnish to designing men an op- ough v. Frye, 7 Clark & Finnell. 436, 456, portunity to practise upon the inexperi- 460, 461, 466. 332 EQUITY JURISPRUDENCE. [CH. VTT. tion is free, fair, and with the ordinary precautions, the fair market-price is presumed to be obtained. But if the sale at public auction be obtained under circumstances which establish clearly that the fair market-value has not been obtained, and that reasonable precautions and advertisements have not been used for this purpose, and that the parties have connived in such a manner as to make the sale appear to be a public and free sale, when it is in fact a mere cover of a private arrangement, then no such inference can arise in favor of the bona fides of the auction. 1 § 339. The whole doctrine of courts of equity, with respect to expectant heirs and reversioners, and others in a like predicament, assumes that the one party is defenceless, and is exposed to the demands of the other under the pressure of necessity. It assumes, also, that there is a direct or implied fraud upon the parent or other ancestor, who, from ignorance of the transaction, is misled into a false confidence in the disposition of his property. Hence it should seem, that one material qualification of the doctrine is, the existence of such ignorance. If, therefore, the transaction has been fully made known at the time to the parent, or other person, standing in loco parentis? as, for example, to the person from whom the spes successionis is entertained, or after the expira- tion of whose present estate the reversionary interest is to become vested in possession, and it is not objected to by him, the extraor- dinary protection, generally afforded in cases of this sort by courts of equity, will be withdrawn. A fortiori, it will be with- drawn, if the transaction is expressly sanctioned or adopted by such parent or other person standing in loco parentis. 8 And it 1 Post, § 347 ; Earl of Aldborough that the extraordinary protection, given v. Frye, 7 Clark & Finnell. 436, 456, 460, in the general case, must be withdrawn, 461, 466. if it shall appear that the transaction was 2 [See Jenkins v. Stetson, 9 Allen, 128 ; known to the father, or other person McBee v. Myers, 4 Bueh (Ky.), 356.] standing in loco parentis, — the person, for 8 King v. Hamlet, 4 Sim. 223 ; s. c. example, from whom the spes successionis 2 Mylne & Keen, 473, 474. The judg- was entertained, or after whom the rever- ment of Lord Brougham, in this case, on sionary interest was to become vested in this point, is very able, and deserves a possession, — even although such parent thorough examination. His lordship on or other person took no active part in this occasion said : " Two propositions the negotiation ; provided the transaction I take to be incontestable, as applicable was not opposed by him, and bo carried to the doctrines of this court upon the through in spite of him. Secondly, that subject of an expectant heir dealing with if the heir flies off from the transaction, his expectancy, and as governing more and becomes opposed to him with whom especially the present question. First, he has been dealing, and repudiates the § 338-340.] CONSTRUCTIVE FRAUD. 333 has been strongly said, that it would be monstrous to treat the contracts of a person of mature age, as the acts of an infant, when his parent was aware of his proceedings, and did nothing to prevent them. The parent might thus lie by, and suffer his son to obtain the assistance which he ought himself to have rendered ; and then only stand forward to aid him in rescinding engagements, which he had allowed him to make, and to profit by. 1 § 340. The other qualification of the doctrine is not less im- portant. The contract must be made under the pressure of some necessity: for the main ground of the doctrine is, the pressure upon the heir, or the distress of the party, dealing with his ex- pectancies, who is, therefore, under strong temptations to make undue sacrifices of his future interests. 2 Both of these qualifica- tions need not, indeed, in all cases and under all circumstances, whole bargain, he must not, in any re- spect, act upon it, so as to alter the situa- tion of the other party, or his property ; at least, that if he does so, the proof lies upon him of showing that he did so under the continuing pressure of the same dis- tress which gave rise to the original deal- ing. Still more fatal to his claim of relief will it be, if the father, or person in loco parentis, shall be found to have concurred in the adoption of the repudi- ated contract. Either of these proposi- tions would be decisive of the present question, if they are well founded in law, and if the facts allow of their application to it. I shall examine each of them in both respects. The whole doctrine with respect to an expectant heir, assumes that the one party is defenceless and ex- posed unprotected to the demands of the other, under the pressure of necessity. It would be monstrous to treat' the con- tracts of a person of mature age, as the acts of an infant, when his parent was aware of his proceedings, and did noth- ing to prevent them. The parent might thus lie by, and suffer his son to obtain the assistance which he ought himself to have rendered ; and then only stand for- ward to aid him in rescinding engage- ments which he had allowed him to make and to profit by. If all the cases be ex- amined from the time of Lord Notting- ham downwards, no trace will be found in any one of them of the father's or other ancestor's privity. On the con- trary, wherever the subject is touched upon, his ignorance is always assumed as part of the case ; and its being so seldom mentioned either way, shows clearly that the privity of the father or ancestor never was contemplated. It is, however, several times adverted to in a manner demonstrative of the principle. In Cole v. Gibbons (3 P. Wms. 290), the ground of this whole equity is said to be the pol- icy of the law, to prevent the heir being seduced from a dependence upon the an- cestor, who probably would have relieved him. In the same spirit, Lord Cowper, in Twistleton v. Griffith (1 P. Wms. 310), had before stated, as one effect of the law, its tendency, by cutting off relief at the hands of strangers, to make the heir disclose his difficulties at home. So, in The Earl of Chesterfield v. Janssen (1 Atk. 339), Mr. Justice Burnett treats such transactions as things done behind the father's back, and, as it were, a fraud upon him; a view of the subject also adopted by Lord Hardwicke, in the same case (1 Atk. 333, 334). It is as well to mention these cases, because there has been no decision upon the point ; but it is quite a clear one, and only new because the facts never afforded a case for de- cision, the proposition having apparently never been questioned." 1 King o. Hamlet, 2 Mylne & Keen, 473,474; s. c.4Sim. 185. 2 King v. Hamlet, 4 Sim. 182 ; s. c. 2 Mylne & Keen, 473, 474. 334 EQUITY JURISPRUDENCE. [CH. Til. concur to justify relief. It may be sufficient, that either of them forms so essential an ingredient in the case, as to give rise to a just presumption of constructive fraud. 1 § 341. The doctrine of courts of equity upon this subject, if it has not been directly borrowed from, does in no small degree follow out the policy of, the Roman law in regard to heirs and expectants. By the Macedonian degree (so called from the name of the usurer who gave occasion to it), all obligations of sons, contracted by the loan of money, while they were living in sub- jection to the paternal authority and jurisdiction, were declared null without distinction. And they were not allowed to be valid even after the death of the father ; not so much out of favor to the son, as out of odium to the creditor, who had made an unlaw- ful loan, which was vicious in its origin, as well as in its example. " Verba Senatus consulti Macedoniani hsec sunt, &c. Placere, ne cui, qui filiofamilias mutuam pecuniam dedisset, etiam post mortem parentis ejus, cujus in potestate fuisset, actio petitioque daretur ; ut scirent, qui pessimo exemplo fsenerarent, nullius posse filiifami- lias bonum nomen, expectata patris morte, fieri." 2 Upon this decree Lord Hardwicke has remarked, that the senate and law- makers in Rome were not so weak as not to know that a law to restrain prodigality, to prevent a son's running in debt in the life 1 Earl of Portmore v. Taylor, 4 Sim. wards the other party, of whom he had 182 ; Davis o. Duke of Marlborough, 2 become really independent, he must no Swanst. 139, 1S4. See also King v. Ham- longer be treated differently from other let, 2 Mylne & Keen, 473, 474, 480. Lord persons. From the rule to which all are Brougham, on this occasion addressing subject, he cannot be exempt, the rule himself to this point, said : " The whole which forbids a party to repudiate a deal- ground of the doctrine is the pressure ing of which he voluntarily and freely is upon the heir, or the distress of the party availing himself. Least of all shall he dealing with his expectancies. While he be permitted to use for his own benefit, continues under that pressure, the law or, which is the same thing, to make away (as Lord Thurlow said in Gwynne v. with, or in any manner place out of his Heaton, 1 Bro. C. C. 1) treats him as an reach, for his present benefit, the prop- infant. But the infancy is determined erty of another ; and then to repudiate when the pressure is removed. The pro- the contract by which that property came tection which Sir William Grant well into his possession. To hold that he was describes, in Peacock v. Evans (16 Ves. entitled to do this, after the pressure of 512), as approaching nearly to incapacity his circumstances had been removed, and of contracting, must cease, when the ex- merely because he owed the possession igency of the case is at an end. When originally to the pressure of former diffi- the expectant heir has himself thrown culties, would be an extravagant stretch off the trammels, which necessity had of the doctrines of this court." imposed on him, or rather had induced 2 Dig. Lib. 14, tit. 6, 1. 1 ; 1 Domat, him to fetter himself withal, and has Civil Law, B. 1, tit. 6, § 4, and art. 1, 2 ; placed himself in an adverse attitude to- 1 Fonbl. Eq. B. 1, ch. 2, § 12, note (I). § 340-343.] CONSTRUCTIVE FRAUD. 335 of his father, would be vain in many cases. Yet they made laws to this purpose, namely, the Macedonian decree already mentioned, happy if they could in some degree prevent it ; JEst aliquod prodire tenus. 1 § 342. It is upon similar principles, that post obit bonds, and other securities of a like nature, are set aside, when made by heirs and expectants. A post obit bond is an agreement, on the receipt of money by the obligor, to pay a larger sum, exceeding the legal rate of interest, upon the death of a person from whom he (the obligor) has some expectations, if he should survive him. 2 Such bonds operate as a virtual fraud upon the bounty of the ances- tor, and disappoint his intentions, generally by design, and usually in the event. § 343. A case of a very similar character is a contract, by which an expectant heir, upon the present receipt of a sum of money, promises to pay over to the lender a large, though an uncertain proportion, of the property which might descend to him upon the death of his parent or other ancestor, if he should survive him. It is a fraud upon such parent or other ancestor, and introductive of the worst public mischiefs ; for the parent or ancestor is thereby induced to submit in ignorance to the disposition which the law makes of his estate, upon the supposition that it will go to his heir, when in fact a stranger is, against his will, made the substituted heir. 3 It might be very different, if there Was a fair, although a secret, agreement between all the heirs to share the estate equally : for such an agreement would have a tendency to suppress all attempts of one or more to overreach the others, as well as to prevent all exertions of undue influence. 4 1 Chesterfield v. Janssen, 2 Ves. 158. Harwood v. Tooke, 2 Sim. 192 ; Hyde v. 2 Boynton v. Hubbard, 7 Mass. 119; White, 5 Sim. 524. Mr. Chief Justice Chesterfield v. Janssen, 2 Ves. 157 ; 1 Atk. Parsons, in Boynton v. Hubbard (7 Mass. 352; Fox v. Wright, 6 Mad. Ill; Whar- 112), expounded this whole subject with ton v. May, 5 Ves. 27 ; Curling v. Towns- admirable fulness and force ; and held hend, 19 Ves. 628 ; Earl of Aldborough that even at law such securities could be v. Frye, 7 Clark & Fin. 436. [The right relieved against; I gladly extract the to relieve against unconscionable interest following passage from his opinion : on loans secured by mortgages of expec- " Another case is, where the deceit is tancies, is not affected by a repeal of the upon persons not parties to the contract, usury laws. Miller v. Cook, L. R. 10 Eq. as a deceit on a father or other relation, 641 ; Tyler v. Yates, L. R. 11 Eq. 265 ; to whom the affairs of an heir or expec- s. o. 6 Ch. App. 665.] tant are not disclosed ; so that they are 8 Boynton v. Hubbard, 7 Mass. 112. influenced to leave their fortunes to be 4 Beckley v. Newland, 2 P. Wms. divided amongst a set of dangerous per- 182 j Wethered v. Wethered, 2 Sim. 183 ; sons and common adventurers, in fact, 336 EQUITY JURISPRUDENCE. [ch. vn. § 344. From what has been already said, it follows, as a natural inference, that contracts of this sort are not in all cases utterly void ; but they are subject to all real and just equities between the parties, so that there shall be no inadequacy of price, and no although not in form. This deceit is re- lieved against as a public mischief, de- structive of a well-regulated authority or control of persons over their children, or others, having expectations from them, and as encouraging extravagance, prod- igality, and vice. From the forms of proceeding in courts of equity, it must he admitted that these principles may often be more correctly applied there than in courts of law. Chancery may compel a discovery of facts which a court of law cannot ; and from facts dis- closed, a chancellor, as a judge of facts, may infer other facts, whence deceit, public or private, may be irresistibly presumed. Whereas at law, fraud can- not be presumed, but must be admitted or proved to a jury. But, when a court of law has regularly the fact of fraud admitted or proved, no good reason can be assigned why relief should not be ob- tained there, although not always in the same way in which it may be obtained in equity. A case, in which an heir or expectant is frequently relieved against his own contract, is a post obit bond. This is an agreement on the receipt of a sum of money by the obligor, to pay a larger sum, exceeding the legal rate of interest, on the death of the person from whom he has some expectation, if the obligor be then living. This contract is not con- sidered as a nullity ; but it may be made on reasonable terms, in which the stip- ulated payment is not more than a just indemnity for the hazard. But whenever an advantage is taken of the necessity of the obligor, to induce him to make this contract, he is relieved, as against an un- conscionable bargain, on payment of the principal and interest. This contract may be made on data whence its reason- ableness may be ascertained; for the lives of the obligor, and of the person on whose death the payment is to be made, are subject to be valued, as is done in insurances upon lives. But the cove- nant declared on in the case at bar is not in the nature of a post obit contract. Another case in which an heir is relieved, is when he is entitled to an estate in re- version or remainder, expectant on the death of some ancestor or relative, and he contracts to sell the same for present money. All these cases are not relieved against as fraudulent ; because a reason- able and sufficient consideration may be paid, as ascertained by the annual value of the estate and of the intervening life. But, as in post obit contracts, when an ad- vantage is taken by the purchaser of the necessity of the seller, he will be relieved against the sale, on repaying the prin- cipal and interest, and sometimes paying for reasonable repairs made by the pur- chaser. This relief is granted on the ground that the contract of sale was un- conscionable. In unconscionable post obit contracts, courts of law may, when they appear, in a suit commenced upon them, to have been against conscience, give re- lief by directing a recovery of so much money only as shall be equal to the prin- cipal received and the interest. But in sales of remainders and reversions by grants executed, I know of no relief that courts of law can give, unless the grants shall appear to have been fraudulently obtained of the grantor ; in which case the fraud will vitiate and render null the grants so infected. The contract before us is not a sale of a remainder or rever- sion ; but is different from any noticed in the reports that have been cited. There is one case of a contract between pre- sumptive heirs, respecting their expec- tancies, from the same ancestor. It is the case of Beckley v. Newland. The parties had married two sisters, presump- tive heirs of Mr. Turgis. The husbands agreed that whatever should be given by Mr. Turgis should be equally divided between them. After Mr. Turgis's death, the defendant, who had the greater part given to him, was compelled to execute the agreement. The reciprocal benefit of the chance was a sufficient consideration. The tendency of the agreement was to guard against undue influence over the § 344, 345.] CONSTRUCTIVE FRAUD. 337 inequality of advantages in the bargain. If in other respects these contracts are perfectly fair, courts of equity will permit them to have effect, as securities for the sum to which ex aequo et bono the lender is entitled ; for he who seeks equity, must do equity ; and, there- fore, relief will not be granted upon such securities, except upon equitable terms. 1 § 345. And where, after the contemplated events have occurred, and the pressure of necessity has been removed, the party freely and deliberately, and upon full information, confirms the precedent, testator ; and it could not be unreason- able to covenant to do what the law would have done if Turgis had died in- testate. The covenant declared on in the case at bar is an agreement by an heir having two ancestors then living, an uncle and an aunt, that if he survive them, or either of them, he will convey to a stranger one-third part of all the es- tate, real and personal, which shall come to him from those ancestors, or either of them, by descent, distribution, or devise. And it is found by the jury that this contract was not obtained from the heir by the fraud of the purchaser. If, there- fore, this covenant is void, it must be on the principle that it is a fraud, not on either of the parties, for that the jury have negatived, but on third persons not parties to it, productive of public mis- chief, and against sound public policy. If the contract had this effect, it is ap- parent to the court from the record ; the whole contract being a part of the record. And that a contract of this nature had this effect we cannot doubt. The an- cestor, having no knowledge of the ex- istence of the contract is induced to submit his estate to the disposition of the law which had designated the defendant as an heir. The defendant's agreement with the plaintiff is to substitute him as a co-heir with himself to his uncle's es- tate. The uncle is thus made to leave a portion of his estate to Boynton, a stranger, without his knowledge, and consequently without any such intention. This, Lord Hardwicke calls a deceit on the ancestor. And what is the conse- quence of deceits of this kind upon the public ? Heirs, who ought to be under the reasonable advice and direction of eq. juk. — vol.i. 2 their ancestor, who has no other influence over them than what arises from a fear of his displeasure, from which fear the heirs may be induced to live industriously, virtuously, and prudently, are, with the aid of money speculators, let loose from this salutary control, and may indulge in prodigality, idleness, and vice ; and taking care, by hypocritically preserving appearances, not to alarm their ancestor, may go on trafficking with his expected bounty, making it a fund to supply the wastes of dissipation and extravagance. Certainly the policy of the law will not sanction a transaction of this kind, from a regard to the moral habits of the citizens." [In a subsequent case in the same court, where Boynton v. Hubbard was cited and approved, it was deter- mined that an heir expectant might law- fully covenant, with the consent of his ancestor, to convey the estate, which should come to him by descent or other- wise from such ancestor, a fair consider- ation being paid. Fitch v. Fitch, 8 Pick. 480. And see Trull t;. Eastman, 3 Met. 123.] 1 Boynton v. Hubbard, 7 Mass. 112, 120 ; Curling v. Townshend, 19 Ves. 628 ; Bernal v. Donegal, 3 Dow, 133, s. c. 1 Bligh (n. s.}, 594 ; Wharton v. May, 5 Ves. 27 ; 1 Fonbl. Eq. B. 1, eh. 2, § 13, and note (p) ; Evans v. Cheshire, Belt's Sup- plement, 300; Crowe v. Ballard, 3 Bro. Ch. 120; Gwynne v. Heaton, 1 Bro. Oh. 1, 9, 10 ; Davis v. Duke of Marlborough, 2 Swanst. 174; Earl of Aldborough <,. Frye, 6 Clark & Fin. 436, 462, 464. [See Pennell v. Millar, 23 Beav. 172 ; Totten- ham v. Emmet, 13 W. R. 123; 14 W. R. 3 ; Benyon v. Fitch, 35 Beav. 570 ; Ayles- ford v. Morris, L. R. 8 Ch. App. 484.] 338 EQUITY JURISPRUDENCE. [CH. VII. contract, or other transaction, courts of equity will generally hold him bound thereby ; for, if a man is fully informed, and acts with his eyes open, he may, by a new agreement, bar himself from relief. 1 But if the party is still acting under the pressure of the original transaction, or the original necessity; or, if he is still under the influence of the original transaction, and of the delusive opinion that it is valid and binding upon him ; then, and under such circumstances, courts of equity will hold him not barred from relief by any such confirmation. 2 1 Chesterfield •>. Janssen, 2 Ves. 125; 1 Atk. 354 ; Crowe v. Ballard, 3 Bro. Ch. 150 ; Coles v. Gibbon, 3 P. Will. 293, 294 ; Cole o. Gibson, 1 Ves. 503, 506, 507; Cann v. Cann, 1 P. Will. 723. Mr. Fon- blanque has remarked that Lord Hard- wicke, in Chesterfield v. Janssen (2 Ves. 125; lAtk. 351), has brought together, and classed, all the cases upon the subject of confirmation ; and the result seems to be, that, if the original contract be illegal or usurious, no subsequent agreement or confirmation of the party can give it va- lidity. But, if it be merely against con- science, then, if the party, being fully informed of all the circumstances of it, and of the objections to it, voluntarily comes to a new agreement, he thereby bars himself of that relief which he might otherwise have had in equity. Not so, if the confirmation be a continu- ance of the original fraud or imposition. 1 Fonbl. Eq. B. 1, ch. 2, § 13, note (r). See also id. § 14, note (v). Whether this statement will be found fully borne out by the authorities, is, perhaps, not beyond doubt. Where a contract is utterly void, as from illegality, or as being contrary to good morals, or as contrary to public policy, there seems the strongest reason to say, that it cannot acquire any validity, from any confirmation; for the original taint attaches to it through every change. To give it efficacy would contradict two well-established maxims of the common law. Quod contra legem fit, pro infecto habetur. Quod ab initio non valet, in tractu temporis non convalescet ; et quae malo sunt inchoata principio, vix est, ut bono peragantur exitu. 4 Co. 2 ; id. 31 ; 1 Fonbl. Eq. B. 1, ch. 4, § 11, note (y). But, where the contract is merely voidable, it seems, upon general principles, capable of confirmation. The difficulty is, not so much in stating that it is capable of con- firmation, but under what circumstances the confirmation ought to be held conclu- sive. The remarks of Lord Hardwicke, in Chesterfield v. Janssen, 2 Ves. 158, 159, 1 Atk. 354 ; and Cole v. Gibson, 1 Ves. 506, 507, compared with those of Lord Thurlow, in Crowe v. Ballard, 3 Bro. Ch. 120; s. c. 1 Ves. 219, 220; s. c. 2 Cox, 257, and of Lord Eldon, in Wood v. Downes, 18 Ves. 123, 124, 128; and of Lord Erskine, in Morse v. Royal, 12 Ves. 373, 374, have not wholly relieved the doctrine from difficulty. In Cole v. Gib- son, 1 Ves. 503, 506, 507. Lord Hardwicke seemed to hold a marriage brokage bond capable of confirmation, though held void upon public policy. But in Shirley v. Mar- tin, in 1779, the Court of Exchequer held, that contracts, avoided on account of public inconvenience, would not admit of subsequent confirmation by the party; and, therefore, that a marriage brokage bond was incapable of confirmation. Cited 1 Fonbl. Eq. B. 1, ch. 2, § 14, note (u) ; id. ch. 4, § 10, note (s) ; s. c. cited 1 Ball & B. 357, 358; 3 P. W. 75, Cox's note. See also Say v. Barwick, 1 Ves. & B. 195. See Gwynne v. Heaton, 1 Bro. Ch. 1, and Mr. Belt's note (I), ibid. See also ante, § 263, and Newland on Contracts, ch. 25, p. 496 to 503. [If the expectant delays in seeking relief, that is a circumstance which may be de- cisive against him. Sibbering v. Earl of Balcarras, 3 De G. & Sm. 735 ; Lord v. Jeffkins, 35 Beav. 7.] 2 Wood v. Downes, 18 Ves. 123, 124, 128; Crowe v. Ballard, 3 Bro. Ch. 120; s. c. 1 Ves. 214, 219, 220 ; s. c. 2 Cox, 253, 257; Taylor v. Rochford, 2 Ves. 281 ; Murray v. Palmer, 2 Sch. & Lefr. § 345-347.] CONSTRUCTIVE FRAUD. 339 [* § 345 a. In a case before the lord chancellor, 1 where the plain- tiff, a builder, had been denied his payments, by the withholding of ■the certificates of the architects, who were the arbiters of the con- tract ; and where, by the pressure of his workmen and the use of actual force on the part of one of them, he had been compelled to assent to an agreement to refer his claim to an arbitrator, to be paid according to the valuation of the arbitrator, giving up his con- tract, upon the receipt of ,£50, there being a much larger sum due him ; and where the arbitrator proceeded to make the valua- tion, and was attended by the builder : it was held, reversing the decision of the vice-chancellor, 2 that the plaintiff had so acted upon the agreement, as to ratify and confirm it, and was not therefore entitled to relief.] § 346. Similar principles will govern in cases, where the heir or other expectant is relieved from his necessities, and becomes opposed to the person with whom he has been dealing, and seeks to repudiate the bargain. In such cases he must not do any act, by which the rights or property of the other party will be inju- riously affected, after he is thus deemed to be restored to his general capacity. If he does, he becomes affected with the ordi- nary rule, which governs in other cases, and forbids a party to repudiate a dealing, and at the same time to avail himself fully of all the rights and powers resulting therefrom, as if it were com- pletely valid. 3 § 347. Even the sale of a post obit bond at public auction will not necessarily give it validity, or free it from the imputation of being obtained under the pressure of necessity. For the circum- stances may be such as to establish, that the expectant is acting without any of the usual precautions to obtain a fair price ; and is in great distress for money ; and is really in the hands and under the control of those who choose to become bidders for the purpose of fleecing him. 4 The case is not like the case of an ordinary sale of a reversion at public auction, where the usual 486 ; Roche v. O'Brien, 1 B. & Beatt. 338, * s. c. 6 Jur. n. s. 550 ; s. c. 2 Gift. 166. 339, 340, 353, 354, 356 ; Morse v. Royal, See Jones v. Smith, 33 Miss. 215.] 12 Ves. 373, 374 ; Gowland v. De Faria, » King v. Hamlet, 2 Mylne. & Keen, 17 Ves. 20 ; Dunbar v. Tredennick, 2 Ball 474, 480. See also Gwynne v. Heaton, & B. 316, 317, 318. 1 Bro. Ch. 1 ; Peacock v. Evans, 16 Ves. i [* Ormes v. Beadel, 6 Jur. u. s. 1103, 512; ante, § 339, 340. Not. 1860; s. c. 9 W. R. 25; s. c. 2 GifE. * Fox o. Wright, 6 Mad. 77; Earl of 166. Aldborough v. Frye, 7 Clark & Fin. 436. 340 EQUITY JURISPRUDENCE. [CH. VII. precautions are taken ; for there it may be perfectly proper not to require the purchaser to show that he has given the full value. 1 Where the sale is public, and free and fair, it may be justly pre- sumed, that the fair market-price is obtained, and there seems no reason to call in question its general validity ; but it should be specially impeached. In sales of reversions at public auction, there is not usually any opportunity, as there is upon a private treaty, for fraud and imposition upon the seller. The latter is in no just sense in the power of the purchaser. The sale by public auction is, under ordinary circumstances, evidence of the market- price. 2 But the sale of post obit bonds at auction carries with it, generally, a presumption of distress and pecuniary embarrassment ; and if the ordinary precautions are thrown aside, there is a violent presumption of extravagant rashness, imprudence, or circumven- tion. § 348. Contracts of a nature nearly resembling post obit bonds have, in cases of young and expectant heirs, been often relieved against, upon similar principles. Thus, where tradesmen and others have sold goods to such persons at extravagant prices, and under circumstances demonstrating imposition, or undue advan- tage, or an intention to connive at secret extravagance, and profuse expenditures, unknown to their parents, or other ancestors, courts of equity have reduced the securities, and cut down the claims to their reasonable and just amount. 3 § 349. Another class of constructive frauds upon the rights, interest, or duties of third persons, embraces all those agreements and other acts of parties, which operate directly or virtually to delay, defraud, or deceive creditors. Of course, we do not here speak of cases of express and intentional fraud upon creditors, but of such as virtually and indirectly operates the same mischief, by abusing their confidence, misleading their judgment, or secretly undermining their interest. It is difficult, in many cases of this sort, to separate the ingredients, which belong to positive and in- tentional fraud, from those of a mere constructive nature, which 1 Earl of Aldborough v. Frye, 7 Clark Baithby's note (1) ; id. 1 Eq. Abr. 91, G & Fin. 436; ante, § 338. pi. 3; Lamplugh v. Smith, 2 Vern. 77; 2 Shelly v. Nash, 3 Mad. 232 ; Eox v. Whitley v. Price, 2 Vern. 78 ; Brooke v. Wright, 6 Mad. & Geld. Ill; Earl of Gaily, 2 Atk. 34, 35, 36; Freeman v. Aldborough v. Frye, 7 Clark & Fin. 436, Bishop, 2 Atk. 39 ; Gilbert, Lex Praetor. 456 to 461 ; [Lord v. Jeffkins, 35 Beav. 7]. 291. But see Barney v. Beak, 2 Ch. Cas. s Bill v. Price, 1 Vern. 467, and Mr. 136; Gwynne v. Heaton, 1 Bro. Ch. 9,10. § 347-350.] CONSTRUCTIVE FRAUD. 341 the law pronounces fraudulent upon principles of public policy. Indeed, they are often found mixed up in the same transaction ; and any attempt to distinguish between them, or to weigh them separately, would be a task of little utility, and might, perhaps, mislead and perplex the inquiries of students. § 350. It must be a fundamental policy of all enlightened nations to protect and subserve t.he rights of creditors ; and a great anxiety to afford full relief against frauds upon them has been manifested, not only in the civil law, but from a very early period, in the com- mon law also. 1 In the civil law it was declared, that whatever was done by debtors to defeat their creditors, whether by alienation, or by other disposition of their property, should be revoked or null, as the case might require. " Ait Praetor ; Quae fraudationis causa gesta erunt, cum eo, qui fraudem non ignoraverit ; de his curatori bonorum, vel ei, cui de ea re actionem dare oportebit, intra annum, quo experiundi potestas fuerit, actionem dabo. Idque etiam adver- sus ipsum, qui fraudem fecit, servabo. Necessario Praetor hoc edictum proposuit ; quo edicto consuluit creditoribus, revocando ea, quaecunque in fraudem eorum alienata sunt. 2 Ait ergo Praetor ; Quae fraudationis causa gesta erunt. Haec verba generalia sunt, et continent in se omnem omnino in fraudem factam, vel alienation-em vel quemcunque contractum. Quodcunque igitur fraudis causa" factum est, videtur his verbis revocari, qualecunque fuerit. Nam, lat6 ista verba patent. Sive ergo rem alienavit, sive acceptitatione vel pacto aliquem liberavit. 3 Idem erit probandum. Et si pignora liberit, vel quern alium in fraudem creditorum praeponat." 4 And the rule was not only applied to alienations, but to fraudulent debts and, indeed, to every species of transaction or omission, prejudicial to creditors. " Vel ei praebuit exceptionem, sive se obligavit fraud- andorum creditorum causa, sive numeravit pecuniam, vel quodcun- que aliud fecit in fraudem creditorum ; palam est, edictum locum habere, &c. Et qui aliquid fecit, ut desinat habere, quod habet, ad hoc edictum pertinet. In fraudem facere videri etiam eum, qui non facit, quod debet facere, intelligendum est ; id est, si non utitur servitutibus." 6 1 See Loomis v. Tifft, 16 Barbour, 543. * Dig. Lib. 42, tit. 8, 1. 3, § 1, 2; id. 2 Dig. Lib. 42, tit. 8, 1. 1, § 1. 1. 4; Pothier, Pand. Lib. 42, tit. 8, n. 1 to * Dig. Lib. 42, tit. 8, 1. 1, § 2 ; Pothier, 36; 1 Domat, B. 2, tit. 10, art 1, pr. tot. ; Pand. Lib. 44, tit. 8, n. 2. id. art. 8. * Id. 1. 2 ; 1 Domat, B. 2, tit. 10, art. 7. 342 EQUITY JURISPRUDENCE. [CH. VII. § 351. Hence, all voluntary dispositions, made by debtors, upon the score of liberality, were revocable, whether the donee knew of the prejudice intended to the creditors or not. " Simili modo dici- mus, et si cui donatum est, non esse queerendum, an sciente eo, eui donatum gestum sit : sed hoc tantum, an fraudentur creditores." 1 And the like rule was applied to purchasers, even for a valuable consideration, if they knew the fraudulent intention at the time of their purchases, and thus became partakers of it, that they might profit by it. 2 " Quae fraudationis causS. gesta erunt, cum eo, qui fraudem non ignoraverit, de his, &c, lectionem dabo. Si debitor in fraudem creditorum minore pretio fundum scienti emptori ven- diderit ; deinde hi, quibus de revocando eo actio datur, eum petant ; qusesitum est, an pretium restituere debent? Proculus existimat, omnimodi restituendum esse fundum, etiamsi pretium non solvatur ; et rescriptum est secundum Proculi sententiam." 3 § 352. The common law adopted similar principles at an early period. These principles, however, have been more fully carried into effect by the statutes of 50 Edward III. ch. 6, and 3 Henry VII. ch. 4, against fraudulent gifts of goods and chattels ; by the statute of 13 Elizabeth, ch. 5, against fraudulent conveyances of lands to defeat or delay creditors ; and by the statute of 27 Eliza- beth, ch. 4, against fraudulent or voluntary conveyances of lands, to defeat subsequent purchasers. These statutes have always received a favorable and liberal interpretation in all the courts, both of law and equity, in suppression of fraud. 4 Indeed, the principles and rules of the common law, as now universally known and understood, are so strong against fraud, in every shape, that Lord Mansfield has remarked, that the common law would have attained every end proposed by these statutes. 5 This is, perhaps, stating the matter somewhat too broadly, at least in regard to the i Dig. Lib. 42, tit. 8, 1. 6, § 11 ; 1 Domat, utes of 50 Edward III. ch. 6, and 3 Henry B. 2, tit. 10, art. 2. VII. ch. 4, expressly declare all gifts, 2 Dig. Lib. 42, tit. 8, 1. 1 ; Pothier, Pand. &c, of goods and chattels, intended to Lib. 42, tit. 8, n. 1. defraud creditors, to be null and void. a Dig. Lib. 42, tit. 8, 1. 1 ; id. 1. 7 ; 1 Do- 1 Ponbl. Eq. B. 1, ch. 4, § 12, note (c) ; Com. mat, B. 2, tit. 10, art. 4. Dig. Covin, B. 2. In Hamilton v. Russell 4 Cadogan v. Kennett, Cowp. 432; (1 Cranch, 309), the Supreme Court of Jeremy on Eq. Jurisd. B. 3, Pt. 2, ch. 3, the United States said, that the statutes § 4, p. 410, 411, 412 ; Newland on Con- of 13 Eliz. and 27 Eliz. are considered as tracts, ch. 23, p. 370, 371 ; Com. Dig. only declaratory of the principles of the Covin, B. 2, 3. common law. See 1 Fonbl. Eq. B. 1, ch. 5 lb. ; Hamilton v. Russell, 1 Cranch, 4, § 13, and note (d) ; Co. Litt. 2906. 309; Com. Dig. Covin, B. 2. The stat- § 351-353.] CONSTRUCTIVE FRAUD. 343 statute of 27 Elizabeth, ch. 4, as it is now construed; for the latter, in favor of subsequent purchasers, applies to cases of volun- tary conveyances, whether they are fraudulent or not. 1 Courts of equity, from the enlarged principles upon which they act, to pro- tect the rights and interests of creditors, give full effect to all the provisions, and exert their jurisdiction upon the same construction of these statutes, which is adopted by courts of law. 2 They even go further ; and (as we shall presently see) extend their aid to many cases not reached by, these statutes. § 353. And, in the first place, let us consider the nature and operation of the statute of 13 Elizabeth, ch. 5, as to creditors, which has been universally adopted in America, as the basis of our jurisprudence on the same subject. The object of the legislature evidently was, to protect creditors from those frauds which are fre- quently practised by debtors, under the pretence of discharging a moral obligation ; that is, under the pretence of making suitable provisions for wives, children, and other relations. Independently of the statute, no one can reasonably doubt that a gift or convey- ance, which has neither a good nor a meritorious consideration to support it, ought not to be valid against creditors ; for every man is bound to be just before he is generous ; 3 and the very fact that he makes a voluntary gift or conveyance to mere strangers to the prej- 1 See Buckle v. Mitchell, 18 Ves. 110 ; bee v. Farrington, 1 Swanst. 106, 113. But Doe v. Manning, 9 East, 59 ; Doe v. Rus- upon the statute of 27 Eliz. ch. 4, subse- ham, 17 Queen's Bench, 723 ; Townshend quent purchasers for a valuable consider- v. Windham, 2 Ves. 10, 11 ; Walker v. ation may set aside the former voluntary Burroughs, 1 Atk. 93, 94 ; Cathcart v. conveyance, though bond fide made, even Robinson, 5 Peters, 264. There is a dis- though such purchasers had full notice tinction made in England between the of such voluntary conveyance. Doe v. statute of 13 Eliz. ch. 5, and the statute of Routledge, Cowp. 711, 712 ; Gooch's case, 27 Eliz. ch. 4, which should be here borne 5 Co. 60, 61; Twyne's case, 3 Co. 83; in mind, though it will naturally come Doe v. Manning, 9 East, 59 ; Buckle v. under consideration in a subsequent page. Mitchell, 18 "Ves. 110 ; Holloway v. Mil- All voluntary conveyances are not void lard, 1 Mad. 414, 417 ; Cotterell i>. Howe, against creditors, equally the same as 13 Simons, 506. The statute of 27 Eliz. they are against subsequent creditors, ch. 4, does not apply to goods and chat- It is necessary on the statute of 13 Eliz. tels, but to lands and other real estate to prove that the party was indebted at only. Jones v. Croucher, 1 Sim. & Stu. the time, or immediately after the execu- 315; Atherley on Mar. Sett. ch. 13 tion of the deed, or otherwise it would be p. 207 ; post, § 355 to 365, and § 425 to attended with bad consequences, because 434. the statute extends to goods and chattels ; 2 Ibid. and such construction would defeat every 3 Copis o. Middleton, 2 Mad. 428 ; provision for children and families, though Partridge v. Gopp, 1 Eden, 166, 167, 168; the father was not indebted at the time. s. c. Ambler, 598, 599. Walker v. Burroughs, 1 Atk. 93; Batters- 344 EQUITY JURISPRUDENCE. [CH. VII. udice of his creditors, affords a conclusive evidence that it is fraudulent. The statute, while it seems to protect the legal rights of creditors against the frauds of their debtors, anxiously excepts from such imputation the bored fide discharge of moral duties. It does not, therefore, declare all voluntary conveyances to be void ; but only all fraudulent conveyances to be void. 1 And whether a conveyance be fraudulent or not is declared to depend upon its being made "upon good consideration and bond fide." 2 It is not sufficient that it be upon good consideration or bond fide. It must be both. And, therefore if a conveyance or gift be defective in either particular, although it is valid between the parties and their representatives, yet it is utterly void as to creditors. § 354. This leads us to the inquiry, what are deemed good con- siderations in the contemplation of the statute. A good considera- tion is sometimes used in the sense of a consideration which is valid in point of law; and then it includes a meritorious, as well as a valuable consideration. 3 But it is more frequently used in a sense contradistinguished from valuable ; and then it imports a consideration of blood, or natural affection, as when a man grants an estate to a near relation, merely founded upon motives of gen- erosity, prudence, and natural duty. A valuable consideration is such as money, marriage, or the like, which the law esteems as an equivalent given for the grant, and it is, therefore, founded upon motives of justice. 4 Deeds, made upon a good consideration only, are considered as merely voluntary ; those made upon a valuable consideration are treated as compensatory. The words " good consideration," in the statute, may be properly construed to include both descriptions ; for it cannot be doubted, that it meant to pro- 1 1 Fonbl. Eq. B. 1, ch. 4, § 12 (a) ; conveyance to a stranger, made bona fide Doe v. Routledge, Cowp. 708 ; Cadogan by a party not indebted at the time, would v. Kennett, Cowp. 432, 434 ; Holloway v. be good against subsequent creditors. Millard, 1 Mad. 414 ; Sagitary v. Hide, 2 Holloway p. Millard, 1 Mad. 227, 228 ; Vern. 44. Many of the succeeding re- Walker v. Burroughs, 1 Atk. 93. marks upon this subject I have taken, 2 Ibid. ; Bacon, Abridg. Fraud, C. almost literally, from Mr. Fonblanque's 8 Hodgson v. Butts, 3 Cranch, 140 ; very able notes ; and I desire this general Copis v. Middleton, 2 Mad. 430 ; Twyne's acknowledgment to be taken, as an ex- case, 3 Co. 81 ; Taylor v. Jones, 2 Atk. pression of my very great obligations to 601 ; Newland on Contracts, ch. 23, p. 386 ; him in every part of my work. 1 Fonbl. Partridge v. Gopp, Ambler, 598, 599 ; s. o. Eq. B. 1, ch. 4, § 12, and note (a). The 1 Eden, 167, 168 ; Atherley on Mar. Sett, word '" voluntary " is not to be found ch. 13, p. 191, 192. either in the statute of 13 Eliz. ch. 5, or 4 2 Black. Com. 297 ; 1 Fonbl. Eq. B. of the statute of 27 Eliz. ch. 4 ; Hollo- 1, ch. 4, § 12, note (a), way v. Millard, 1 Mad. 414. A voluntary § 353-356.] CONSTRUCTIVE FRAUD. 345 tect conveyances, made bond fide and for a valuable consideration, as well as those made bond fide upon the consideration of blood or affection. 1 § 355. In regard to voluntary conveyances, they are unquestion- ably protected by the statute in all cases, where they do not break in upon the legal rights of creditors. But when they break in upon such rights, and so far as they have that effect, they are not permitted to avail against those rights. If a man, therefore, who is indebted, conveys property to his wife or children, such a con- veyance is, or at least may be, within the statute ; for, although the consideration is good, as between the parties, yet it is not in contemplation of law, bond fide ; for it is inconsistent with the good faith which a debtor owes to his creditors, to withdraw his property voluntarily from the satisfaction of their claims ; 2 and no man has the right to prefer the claims of affection to those of justice. This doctrine, however (as we shall presently see), requires, or at least may admit of, some qualification in relation to existing creditors, where the circumstances of the indebtment and the conveyance repel any possible imputation of fraud, as where the conveyance is of a small property by a person of great wealth, and his debts bear a very small proportion to his actual means. § 356. But, at all events, the same doctrine does not apply to a man not indebted at the time, or in favor of subsequent creditors. There is nothing inequitable or unjust in a man's making a volun- tary conveyance or gift, either to a wife, or to a child, or even to a stranger, if it is not, at the time, prejudicial to the rights of any other persons, or in furtherance of any meditated design of future fraud or injury to other persons. 3 If, indeed, there is any design of fraud, or collusion, or intent to deceive third persons, in such conveyances, although the party be not then indebted, the convey- 1 Doe v. Routledge, Cowp. 708, 710, 2 Ves. Sen. 10; Copis v. Middleton, 2 711, 712 ; Copis v. Middleton, 2 Mad. 430 ; Mad. 425. See Seward u. Jackson, 5 Hodgson w. Butts, 3Cranch, 140; Twyne's Cowen, 406; Wickes v. Clarke, 8 Paige, case, 3 Co. 81. 160, 165; [Kane v. Roberts, 40 Md. 590 2 1 Fonbl. Eq. B. 1, ch. 4, § 12, note Patten v, Casey, 57 Mo. 118]. (a) ; Twyne's case, 3 Co. 81 ; Towns- 8 1 Fonbl. Eq. B. 1, ch. 4, § 12, note (a) hend v. Windham, 2 Ves. 10, 11 ; Doe v. Townshend v. Windham, 2 Ves. 11 ; Walk- Routledge, Cowp. 711 ; Russell v. Ham- er v. Burroughs, 1 Atk. 93 ; Bac. Abridg. mond, 1 Atk. 15, 16 ; Holloway !>. Mil- Fraud, C. ; Doe v. Routledge, Cowp. 710, lard, 1 Mad. 414; Bayard v. Hoffman, 711; Russell v. Hammond, lAtk. 15, 16 4 Johns. Ch. 450 ; Reade v. Livingston, Holloway v. Millard, 1 Mad. 414 ; Batters 3 Johns. Ch. 481; Taylor v. Jones, 2 bee v. Farringdon, 1 Swanst. 106, 113 Atk. 600, 601 ; Townshend v. Windham, Reade v. Livingston, 3 Johns. Ch. 481. 346 EQUITY JURISPRUDENCE. [CH. VII. ance will be held utterly void, as to subsequent as well as to pres- ent creditors, for it is not bond fide 1 § 357. It has been justly remarked, that the distinction between cases where the party is indebted, and those where he is not in- debted, is drawn from considerations too obvious to require illus- tration from cases. For, if a man indebted were allowed to divest himself of his property in favor of his wife or his children, his creditors would be defrauded. But if a man not indebted, and not meaning to commit a fraud, could not make an effective settle- ment in favor of such objects, because, by possibility, he might afterwards become indebted, it would destroy those family pro- visions, which are, under certain restrictions, a benefit to the pub- lic, as well as to the individual objects of them. 2 § 358. In regard to voluntary conveyances, there is an inter- mediate case touching creditors, which requires consideration. Suppose a party possessed of a large estate, and indebted at the same time to a considerable amount, but his debts bearing a small proportion to his actual property, should make a settlement, or other voluntary conveyance, in favor of his wife or children, of a part of his estate, which would still leave a large surplus in his own hands, beyond the assets necessary to pay his debts ; and afterwards, at a distance of time, he should lose or spend so much of his property as not to ' leave enough to discharge such debts ; the question would then arise, whether, in regard to such credi- tors, the settlement or other conveyance would be void or not. To 1 Stileman v. Ashdown, 2 Atk. 481 ; probably meant no more than this : that, Reade v. Livingston, 3 Johns. Ch. 481 ; as to subsequent creditors, there could Richardson i'. Smallwood, Jac. 552. As scarcely arise a presumption that the to subsequent creditors, it cannot be pre- conveyance was intentionally fraudulent sumed that a voluntary conveyance is (without which such subsequent credit- fraudulent, unless the party at the time ors could have no case for relief), unless is deeply indebted. Lord Alvanley, in the party were deeply indebted at the Lush v. Wilkinson (5 Ves. 387), said: time, and contemplated a fraud upon his " A single debt will not do. Every man creditors. In this view, there is much must be indebted for the common bills of force in his lordship's remarks. Indeed, his house, though he pays them every this seems to be the view of the matter week. It must depend upon this, whe- entertained by Mr. Chancellor Kent, in ther he was in insolvent circumstances at the same case. Ibid. 501. See also the the time." See also Skarf v. Soulby, 16 remarks of Sir William Grant, in Kidney Sim. 481. Mr. Chancellor Kent, in Reade v. Coussmaker, 12 Ves. 155, and Sir v. Livingston (3 Johns. Ch. 498), said : Thomas Plumer, in Holloway v. Mil- " Such a loose dictum, one would suppose, lard, 1 Mad. 414. See the Jurist, Jan- was not of much weight, as there is no uary 6, 1844, p. 461. preceding case, which gives the least 2 1 Fonbl. Eq. B. 1, ch. 4, § 12, note, countenance to it." But Lord Alvanley § 356-359.] CONSTRUCTIVE FBAUD. 347 such a case it is somewhat difficult to apply the preceding reason- ing, so as to avoid the settlement or other conveyance ; because there is no pretence to say, that upon the posture of the facts any actual fraud could be intended, or that the creditors were preju- diced, except by their own voluntary delay. § 359. Upon this question, a learned judge (Mr. Chancellor Kent) has pronounced an opinion, which, from his acknowledged ability and sagacity in sifting the authorities, is entitled to very great weight. His language is, " The conclusion to be drawn from the cases is, that, if the party is indebted at the time of the voluntary settlement, it is presumed to be fraudulent in respect to such debts (that is, those antecedently due), and no circumstance will permit those debts to be affected by the settlement, or repel the legal presumption of fraud. The presumption of law in this case does not depend upon the amount of the debts, or the extent of the property in settlement, or the circumstances of the party. There is no such line of distinction set up or traced in any of the cases. The attempt would be embarrassing, if not dangerous, to the rights of creditors, and prove an inlet to fraud. The law has, therefore, wisely disabled the debtor from making any voluntary settlement of his estate to stand in the way of' existing debts. This is the clear and uniform doctrine of the cases." * 1 Mr. Chancellor Kent, in Reade v. the common law.'' " A fair, voluntary con- Livingston, 3 Johns. Ch. 500, 501. See veyance may be good against creditors, also 2 Seh. & Lefr. 714 ; Fitzer ». Fitzer, notwithstanding its being voluntary. The 2 Atk. 511, 513 ; Taylor v. Jones, 2 Atk. circumstance of a man being indebted, at 602 ; Bayard v. Hoffman, 4 Johns. Ch. the time of his making a voluntary con- 450 ; Richardson v. Smallwood, Jac. 552. veyance, is an argument of fraud. The But see contra, Verplank v. Sterry, 12 question, in every case, therefore, is, Johns. 536, and Jackson v. Town, 4 whether the act done is a bond fide trans- Cowen, 603, 604. See Seward v. Jackson, action, or whether a trick or contrivance 8 Cowen, 406 ; Wickes u. Clark, 8 Paige, to defeat creditors." If this language 161, 165. That there is very great weight contains a. true exposition of the law on in this reasoning cannot be questioned, this subject, then the question of fraud, or That it is, upon principle, entirely satis- not, is open in all cases, where a man is factory, as the true exposition of the indebted, as a matter of fact ; and the law statute of 13 Eliz. ch. 5, or of the common does not absolutely pronounce that the law, as to creditors, may admit of some indebtment per se makes the settlement diversity of judgment. Lord Mansfield fraudulent. Lord Mansfield used lan- has justly remarked, in Cadogan v. Ken- guage to a like effect, in Doe v. Rout- nett, Cowp. 434, upon the statute of 13 ledge, Cowp. 708, 709, 710, 711. The Elizabeth :" Such a construction is not to doctrine (as we have seen) in Hinde's be made in support of creditors, as will Lessee ••. Longworth (11 Wheaton, 199), make third persons sufferers. Therefore, stands upon grounds analogous to those the statute does not militate against any of Lord Mansfield, and is not easily rec- transaction bond fide made, and where oncilable with that in Reade v. Livingston, there is no imagination of fraud. And so is 3 Johns. Ch. 500, 501. See also Holloway 348 EQUITY JURISPRUDENCE. [CH. VII. § 360. This doctrine is certainly strictissimi juris, and assumes, as a principle of law, that the mere indebtment of a party consti- tutes, per se, conclusive evidence of fraud in a voluntary convey- ance, in all cases where the creditors, to whom he is then indebted, are concerned. 1 Nay, it seems to go farther; for, upon the same reasoning, subsequent creditors have been allowed to partici- pate in the same relief, even though, as to them alone, without such antecedent debts, there could be no relief. 2 The doctrine r. Millard, 1 Mad. 414 ; Jones v. Boulter, 1 Cox, 288, 294, 295. In Richardson v. Smallwood (Jac. Rep. 552), the subject was considerably discussed by the Master of the Rolls; but from his reasoning I should not draw any other conclusion, than that an indebtment at the time was a circumstance presumptive of a fraudu- lent intent. See Skarf v. Soulby, 16 Sim. 481. 1 In Townshend o. Windham ( 2 Ves. 10, 11), Lord Hardwicke said: "I know no case on the statute of 1 3 Eliz;, where a man, indebted at the time, makes a vol- untary conveyance to a child, without consideration, and dies indebted, but that it shall be considered as a part of his es- tate for the benefit of his creditors, &c." " A man actually indebted, and convey- ing voluntarily, always means it to be in fraud of creditors, as I take it." Belt's Supp. p. 243, 247. But this language, though so very general, ought not, on that very account, to have more than general truth ascribed to it, where the indebtment is of a nature and extent that makes it presumptive of fraud, or the conveyance is a direct and immediate in- terference with the rights of creditors. See Richardson v. Smallwood, Jac. Rep. 552. [The language of Sir R. T. Kinders- ley, in Jenkyn t. Vaughan, 3 Drew. 419, quoted with approval in Crossley v. El- worthy, L. R. 12 Eq. 158, we think states the present rule in England correctly. He says : " And with regard to creditors being so at the time, it is established that it is not necessary to show from any thing actually said or done by the party that he had the express design by the deed to defeat creditors ; but if he in- cludes in it property to such an amount that, having regard to the state of his property, and to the amount of his liabil- i ities, its effect might probably be to delay or defeat creditors, if the court is satisfied of that, the deed is within the meaning of the statute." See Freeman v. Pope, L. R. 5 Ch. App. 538 (qualifying Spirett v. Willows, 3 I). J. & S. 293) ; Kent v. Riley, L. R. 14 Eq. 190. See also Gridley v. Watson, 53 111. 186 ; Johnson v. West, 43 Ala. 689; Pomeroy v. Bailey, 43 N. H. 118. Where insolvency follows shortly after the settlement, the burden is on the settlor to show that he was solvent. See Crossley v. Elworthy, ubi sup. ; Mackay v. Douglas, L. R. 14 Eq. 106. In this case the bill was brought by a creditor who had obtained a judgment subsequently to the settlement, on ground of misrepre- sentations made before the settlement, there being debts prior to the settlement unpaid. Sembk, that the claim for the misrepresentations was to be considered in determining the question of solvency at the time of the settlement. And where the settlor is about to embark in haz- ardous business, it is not, it seems, suffi- cient to protect the settlement against creditors who become such in the course of such business, that he was then sol- vent, and that the settlement covered but a small part of his property. Mackay v. Douglas, L. R. 14 Eq. 106. But see Win- chester i>. Charter, 102 Mass. 272 ; Tha- cher t'. Phinney, 7 Allen, 146 ; Sedgwick v. Place, Blatchford, J., 6 Am. Law Rev. 181. See post, p. 378, note (a).] 1 Reade v. Livingston, 3 Johns. Ch. 498, 499 ; Walker v. Burroughs, 1 Atk. 94 ; 1 Mad. Pr. Ch. 220, 221 [See also Jenkyn v. Vaughan, 3 Drew. 419 ; Cross- ley v. Elworthy, L. R. 12 Eq. 158 ; Free- man v. Pope, L. R. 5 Ch. App. 538, that where any antecedent indebtedness re- mains unpaid, subsequent creditors can avoid the conveyance, if voidable by prior creditors."] 360, 361.] CONSTRUCTIVE FRAUD. 349 was certainly not understood by Lord Alvanley, as going to this extent ; for he put the case upon the proof of fraud arising from previous insolvency. 1 § 361. Where the conveyance is intentionally made to defraud creditors, it seems perfectly reasonable that it should be held void, as to all subsequent, as well as to all prior creditors, on account of ill faith. 2 But where the conveyance is bond fide made, and under circumstances demonstrative of the non-existence of any intention to defraud any creditor, there seems to be some difficulty in perceiving how the subsequent creditors can make out any right, as against the voluntary grantees, through the equity of the antece- dent creditors. 3 Mr. Chancellor Kent, in the case above referred 1 Lush v. Wilkinson, 5 Ves. 387 ; s. o. cited in Kidney v. Coussmaker, 12 Ves. 150, 155. See also Copis u. Middleton, 2 Mad. 430 ; Reade u. Livingston, 3 Johns. Ch. 501 ; Stephens u. Olive, 2 Bro. Ch. 90. 2 See Reade v. Livingston, 3 Johns. Ch. 499, 501 ; 1 Hovend. Supp. to Vesey, Jr. p. 124 (7) ; Richardson v. Smallwood, Jac. Rep. 552 ; Jeremy on Eq. Jurisd. B. 3, Pt. 2, ch. 3, § 4, p. 413 ; Newland on Con- tracts, eh. 33, p. 389 ; M'Lane v. Johnson, 43 Vt. 48. [Where there was a distribu- tion of property by father among his children, and no fraudulent intent on part of the father, but his children, who prompted the settlement, and profited by it, were aware that creditor's claims would be defeated, the distribution was held void. Cornish u. Clark, L. R. 14 Eq. 184. In Beyfuss v. Bullock, L. R. 7 Eq. 391, the question was raised whether revoking trusts in favor of an insolvent, and appointing new trusts, was fraudu- lent, the power to revoke being in the bankrupt and his father, and exercised jointly.] 8 See Holloway v. Millard, 2 Mad. 419 ; Walker a. Burroughs, 1 Atk. 94. In Taylor u., Jones (2 Atk. 600), the Mas- ter of the Rolls manifestly proceeded upon the ground, that the conveyance was fraudulent in fact. In Stephens v. Olive (2 Bro. Ch. 92), where there were prior debts, but secured by mortgage, Lord Kenyon held the settlement good. See also George v. Millbanke, 9 Ves. 194, that a settlement, containing a provision for payment of debts, would be good against all future creditors. Lord El- don there said : " In general cases, prima facie, a voluntary settlement will be taken to be fraudulent." But this sup- poses that it is not conclusive of fraud ; but that it is open to be rebutted. In Kidney v. Coussmaker (12 Ves. 136, 155), Sir William Grant said : " Though there has been much controversy, and a variety of decisions upon the question, whether such a settlement (a voluntary settle- ment) is fraudulent as to any creditors, except such as were creditors at the time, I am disposed to follow the latest deci- sion, that of Montague v. Lord Sandwich, which is, that the settlement is fraudu- lent only as against such creditors as were creditors at the time." Montague v. Lord Sandwich is nowhere reported at large. It was decided in 1797, by Lord Rosslyn, and is referred to in 5 Ves. 386, and 12 Ves. 148. Mr. Chancellor Kent has said, that, in this case, " Lord Rosslyn declared a settlement void as to creditors prior to its date. There was no question of insolvency made ; but it was clearly held by Lord Rosslyn in this case (see 12 Ves. 156, note) that if the settlement be affected, as fraudulent against such prior creditors, the subject is thrown into assets, and all subsequent creditors are let in." He manifestly founds this remark upon the Reporter's note (a) in 12 Ves. 156. But I have not been able to ascertain that Lord Ross- lyn gave any such relief, in this case, to subsequent creditors. The note in 5 Ves. 586, and 12 Ves. 148, would rather, lead my mind to an opposite conclusion, 350 EQUITY JURISPRUDENCE. [CH. VII. to, after having remarked, " that there is no doubt, in any case, as to the safety and security of the then existing creditors," pro- ceeded to state : " No voluntary postnuptial settlement was ever permitted to affect them. And the cases seem to agree, that the subsequent creditors are let in only in particular cases ; as, where the settlement was made in contemplation of future debts; or where it is requisite to interfere and set aside the settlement in favor of the prior creditors; or where the subsequent creditor can impeach the settlement, as fraudulent, by reason of the prior indebtment." * And he finally arrived at the conclusion, " That fraud, in a voluntary settlement, was an inference of law, and ought to be so, so far as it concerned existing debts. But that, as that he gave relief only to prior credi- tors pro tanto. Mr. Atherley (Marr. Sett. ch. 13, p. 213, note 1) has expressed an unqualified dissent from this supposed opinion of Lord Rosslyn ; and, in my judgment, with very great reason. Where the settlement is set aside, as an inten- tional fraud upon creditors, there is strong reason for holding it so, as to subsequent creditors, and to let them into the full benefit of the property. Kichardson v. Smallwood, Jac. Rep. 532. See also Hol- loway v. Millard, 1 Mad. 414: But see Walker v. Burroughs, 1 Atk. 94, on this point. [So a post-nuptial settlement by a trader of all his property, present and future, reserving his stock in trade, was held fraudulent, bankruptcy following in five years, though all existing debts were paid. Ware v. Gardner, L. R. 7 Eq. 317. See Savage v. Murphy, 34 N. Y. 508; Case v. Phelps, 39 N. Y. 164. So where only a part of the settlor's property was included in the conveyance, his assets about equalling his indebtedness at the time. Churchill K.Wells, 7 Coldw. (Tenn.) 361 ; Carpenter v. Carpenter, 2-5 N. J. Eq. 194. That where the settlor is not indebted when he makes the settlement, it cannot be avoided by subsequent creditors, ex- cept for intentional fraud, see Mattingly r. Nye, 8 Wall. ( U. S. ) 370. See also M'Lane v. Johnson, 43 Vt. 48 ; Clark v. ICreig, 7 Philadelphia R. 126. But the settle- ment by an insolvent of all his property, is fraudulent against subsequent credi- tors. Redfield v. Buck, 35 Conn. 328. In a ease where the settlor conveyed all his property to trustees to pay his creditors. and the balance, if any, to hold for the separate use of his wife, such settlement of the balance was held valid against subsequent creditors. Vance v. Smith, 2 Heisk. (Tenn.) 343 ; Irion v. Mills, 41 Tex. 310. For cases where settlements were sustained, as against subsequent creditors, see Pike v. Miles, 23 Wis. 164 ; Townsend v. Maynard, 45 Penn. St 198 ; Lyman v. Cessford, 15 la. 229; Holmes v. Clark, 48 Barb. 237 ; Childs i-. Connor, 38 N. Y. Sup. Ct. 471.] 1 Reade /'. Livingston, 3 Johns. Ch. 497, 501. See Richardson v. Smallwood, Jac. Rep. 552. See on the point, whether a subsequent creditor can set aside a post-nuptial settlement, a learned disser- tation in the English Jurist for January, 1844, No. 365. p. 461, 462. In Ede v. Knowles, 2 Younge & Coll. N. R. 172, 178, Mr. Viee-Chancellor Bruce said: " The plaintiff does not allege by his bill, that he was a creditor at the time of the settlement. I apprehend, that a deed can only be set aside as fraudulent against creditors at the instance of a person who was a creditor at the time, though when it shall have been set aside subsequent creditors may be let in." [* But where, a few days before the trial of an action of trespass, the defendant in the action executed a deed of all his property, and was subsequently committed to prison for non-payment of the costs of the action, and declared insolvent, the deed was set aside, at the instance of the creditor, as being fraudulent and void under the stat- ute. Barling v. Bishopp, 6 Jur. if. s. 812 ; s. c. 8 W. R. 631.] § 361, 362.] CONSTRUCTIVE FRAUD. 351 to subsequent debts, there is no such necessary legal presumption ; and there must be a proof of fraud in fact ; and the indebtment at the time, though not amounting to insolvency, must be such as to warrant that conclusion." 1 § 362. The same subject has undergone repeated discussions in the Supreme Court of the United States. The doctrine established in that court is, that a voluntary conveyance, made by a person not indebted at the time in favor of his wife or children, cannot be impeached by subsequent creditors, upon the mere ground of its being voluntary. It must be shown to have been fraudulent, or made with a view to future debts. 2 And, on the other hand, the mere fact of indebtment at the time does not, per se, constitute a substantive ground, to avoid a voluntary conveyance for fraud, even in regard to prior creditors. The question, whether it is fraudu- lent or not, is to be ascertained, not from the mere fact of indebt ment at the time alone, but from all the circumstances of the case. And if the circumstances do not establish fraud, then the voluntary conveyance is deemed to be above all exception. The language of the court, upon the occasion alluded to, was as follows : "A deed from a parent to a child, for the consideration of love and affection, is not absolutely void as against creditors. It may be so under circumstances. But the mere fact of being indebted to a small amount would not make the deed fraudulent, if it could be shown that the grantor was in prosperous circumstances, and unembar- rassed, and that the gift to a child was a reasonable provision, according to his state and condition in life, and leaving enough for the payment of the debts of the grantor. The want of a valuable consideration may be a badge of fraud ; but it is only presumptive, and not conclusive evidence of it, and may be met and rebutted by evidence on the other side." 3 And this language ^it should be 1 Reade v. Livingston, 3 Johns. Ch. Wheaton, 199 ; Bennett v. Bedford Bank, 497, 501. See Richardson v. Smallwood, 11 Mass. 421. See McLaughlin v. Bank Jac. Rep. 552; Skarf v. Soulby, 16 Sim. of Potomac, 7 Howard, 220; [Offutt v. 481. [* See Cook v. Johnson, 1 Beasley, King, 1 MacArthur, 312 ; Sparkman u. 51 ; Hawley v. Sackett, 6 Thomp. & C. Place, 5 Ben. 184 ; Summers v. Hoover, 322. And a voluntary settlement made 42 Ind. 153 ; Rickets v. McCulIy, 7 Heisk. upon the eve of embarking in trade is 712; Re Cornwall, 9 Blatchford, 116.] strong evidence of fraud, and the burden 3 Hinde's Lessee v. Longworth, 11 is upon him to protect it. Mackay v. Wheat. 199. See also Verplank v. Sterry, Douglas, L. R. 14 Eq. 106; Tanguery v. 12 Johns. 536, 554, 556, 557 ; Partridge v. Bowles, L. R. 14 Eq. 151; Cornish v . Gopp, Ambler, 597, 598; s. c. 1 Eden, Clark, id. 184 ; Kent v. Riley, id. 190.] 167, 168, 169 ; Gilmore v. North American 2 Sexton v. Wheaton, 8 Wheaton, 229, Land Co., Peters, C. R. 461. 230; Hinde's Lessee v. Longworth, 11 352 EQUITY JURISPRUDENCE. [CH. VII. remembered) was used in a case where the conveyance wjas sought to be set aside by persons claiming as judgment creditors upon antecedent debts. 1 § 362 a. The same doctrine seems now well established in Eng- land. In a recent case, where the very point was before the court, 2 Lord Langdale said : " There has been a little exaggera- tion in the arguments on both sides, as to the principle on which the court acts in such cases as these ; on one side it has been assumed that the existence of any debts, at the time of the execu- tion of the deed, would be such evidence of a fraudulent intention as to induce the court to set aside a voluntary conveyance, and oblige the court to do so under the statute of Elizabeth. I cannot think the real and just construction of the statute warrants that proposition, because there is scarcely any man who can avoid being indebted to some amount ; he may intend to pay every debt as soon as it is contracted, and constantly use his best endeavors to have ample means to do so, and yet may be frequently, if not always, indebted in some small sum ; there may be a withholding of claims contrary to his intention, by which he is kept indebted in spite of himself ; it would be idle to allege this as the least foundation for 1 The doctrine of the Supreme Court comes within the statute of 13th of Eliz- seems in entire coincidence with that held abeth, ch. 6. But, if the grantor be not by Lord Mansfield, in Cadogan v. Kennett, indebted to such a degree as that the set- Cowp. 432, 434, and Doe v. Eoutledgc, tlement will deprive the creditors of an ( 'owp. 705, 710, 711, 712. See also Lush ample fund for the payment of their b. "Wilkinson, 5 Ves. 387; Holloway v. debts, the consideration of natural love Millard, 1 Mad. 414 ; Kidney v. Couss- and affection will support the deed, al- maker, 12 Ves. 155 ; Sagitary v. Hide, 2 though a voluntary one, against his cred- Vern. 44. It approaches very nearly to itors ; for, in the language of the decisions, the doctrine held in the Supreme Court it is free from the imputation of fraud." of the United States, as to the construe- Ibid. 577. Mr. Newland maintains the tion of the statute of 27th of Elizabeth, same opinion, with great strength. New- as to subsequent purchasers ; for in the land on Contracts, ch. 23, p. 384, 385. other case the voluntary conveyance is Mr. Eonblanque has remarked, that, " If not held absolutely void ; but only the a conveyance or gift be of the whole, or burden of proof to repel fraud is thrown of the greater part, of the grantor's prop- upon the claimants under it. Cathcart v. erty, such conveyance or gift would be Robinson, 5 Peters, 277, 280, 281. See presumed to be fraudulent ; for no man alsoVerplankv. Sterry, 12 Johns. 536, 554, can voluntarily divest himself of all, or 556, 557, 558. In this last case, Mr. Jus- the most of what he has, without being tice Spencer, in delivering his opinion in aware that future creditors will probably the Court of Errors, held the doctrine suffer by it." 1 Fonbl. Eq. B. 1, ch. 4, maintained in the Supreme Court of the § 12, note (a) ; [Rumbolds v. Parr, 51 Mo. United States, as to creditors, in the 592], broadest terms. " If," said he, " the per- 2 Townsend v. Westacott, 2 Beavan, son making a settlement is insolvent, or 340, 345. [See also Crossley v. Elworthy, in doubtful circumstances, the settlement L. R. 12 Eq. 158.] § 362-363.] CONSTRUCTIVE FRAUD. 353 assuming fraud, or any bad intention. On the other hand, it is said that something amounting to insolvency must be proved, to set aside a voluntary conveyance ; this, too, is inconsistent with the principle of the act, and with the judgments of the most emi- nent judges. The evidence as to Westacott's property, when he executed the settlement, I cannot rely on ; it is brought forward many years after the witnesses had known it, and they speak to the value of the property without taking into consideration any charges that might be upon it ; and I am not in a situation of knowing whether there were any charges upon it." § 363. The same doctrine has been asserted by the Supreme Court of Connecticut, in a recent case, which hinged exclusively upon the same point. It was there laid down as the unanimous opinion of the court, and there is much persuasiveness as well as reasonableness and equity in the doctrine, that, " Where there is no actual fraudulent intent, and a voluntary conveyance is made to a child, in consideration of love and affection, if the grantor is in prosperous circumstances, unembarrassed, and not considerably indebted, and the gift is a reasonable provision for the child, according to his state and condition in life, comprehending but a small portion of his estate, leaving ample funds unencumbered for the payment of his debts; then, such conveyance will be valid against conveyances (debts) existing at the time. But, though there be no fraudulent intent, yet, if the grantor was considerably indebted and embarrassed at the time, and on the eve of bank- ruptcy ; or, if the value of the gift be unreasonable, considering the condition in life of the grantor, disproportioned to his prop- erty, and leaving a scanty provision for the payment of his debts ; then, such conveyance will be void as to creditors." 1 1 Salmon v. Bennett, 1 Connecticut, party is in debt at the time of settlement, 625, 648 to 651 ; s. p. Newland on Con- it is void, as to subsequent as well as to tracts, ch. 28, p. 384, 385. Mr. Chancel- prior creditors ; and this without any lor Kent, in commenting on this case, reference to the amount of the debts, says : " I have not been able to find the See note to Bigelow's Dig. (2d edition) case in which a mere voluntary convey- p. 200, title Conveyance. On the other ance to a wife, or child, has been plainly hand, it may be asserted, with some Con- or directly held good against the credi- fidence, that there is no English case tor at the time. The cases appear to me which pointedly decides that such a con- to be upon the point uniformly in favor veyance is void, merely from the circum- of the creditor." [Reade v. Livingston, stance that the party was indebted at the 3 Johns. Ch. 604.] Mr. Atherley (Marr. time, if the debts bore no proportion to Sett. ch. 13, p. 212 to 219) maintains the his assets, and there was no presumption same doctrine. He holds, that if the of meditated fraud. The cases cited by eq. jur. — vol. i. 23 354 EQUITY JURISPRUDENCE. [ch. vn. § 364. The same doctrine has been expressly held, on different occasions, by the Judges of the Supreme Court of New York; and Mr. Chancellor Kent do not appear to me to reach the point, at least not in a form free from difficulty and obscurity. The case of St. Amand v. The Countess of Jersey, 1 Comyn, 255, is quite ob- scurely reported ; but it may be gathered from that report that the grantor was deeply indebted at the time, and probably there was a strong presumption of fraud in fact. The case of Fitzer v. Fitzer, 2 Atk. 511, was the case of a subsequent creditor, having an assignment under the insolvent act of Geo. II. ch. 2, to compel an execution of the trusts of a deed of separation in favor of a wife. It was not the case of a voluntary conveyance held void. In Taylor v. Jones, 2 Atk. 600, 602, the reasoning of the Master of the Rolls certainly goes to the mainte- nance of the doctrine. But the judgment seems ultimately to have turned upon the point that the conveyance was fraud- ulent, and there was a trust in it in favor of the grantor for life. Some part of the doctrine of the Master of the Rolls would not now be held maintainable. The doctrine of Lord Hardwicke, in Russell v. Hammon, 1 Atk. 15, by no means war- rants so general a conclusion. His Lord- ship's language, in Walker v. Burrows, 1 Atk. 93, though broad and sweeping, does not come up to it; and the case turned on the Statute of Bankruptcy, 21 Jac. I. ch. 15. Townshend v. Windham, 2 Ves. 1, 10, 11, was the case of the exe- cution of a power ; and Lord Hardwicke held the property assets for the payment of the debts of existing creditors. The question did not arise, whether the debtor had other estates at the time, sufficient to pay his debts ; and Lord Hardwicke treated the case as an intentional execu- tion of the power to defraud creditors. On the other hand, the case of Stephens v. Olive, 2 Bro. Ch. 90, shows that the fact of indebtment is not sufficient to set aside the conveyance, if the debt is act- ually secured by mortgage. Now it is somewhat difficult to distinguish between the case of a specific security for debts, and a general security, founded upon an ample fortune in the grantor. Each op- erates, if at all, to repel the same impu- tation of fraudulent intent; and if the law makes the mere fact of indebtment per se a fraud as to existing creditors, the security, in either case, cannot control the presumption. The doctrine, too, of Lord Alvanley, in Lush v. Wilkinson, 5 Ves. 383, trenches upon the conclusiveness of the presumption. And, notwithstanding Mr. Chancellor Kent's doubts on this case, in Reade v. Livingston, 3 Johns. Ch. 497, 498, it has been repeatedly recognized in later cases. 12 Ves. 150, 155 ; 2 Mad. 430. It must, therefore, be admitted, that there is some difficulty in reconcil- ing the language of the English cases, although the cases themselves may be all distinguishable from each other. The question really resolves itself into this, whether a voluntary conveyance is void against creditors, because it ultimately operates to defeat the debts of existing creditors, or whether it is void, only when, from the circumstances, the presumption fairly arises that it either was intended to defraud, or did necessarily defraud, such creditors. Sir Thomas Plumer, in Hol- loway v. Millard, 1 Mad. 417, 419, mani- festly treated the statute of 13 of Eliz. as only applying to fraudulent convey- ances. " This conveyance is not one of that description (i. e. to defraud creditors). It is not fraudulent merely because it is voluntary. A voluntary conveyance may be made of real or personal property without any consideration whatever, and cannot be avoided by subsequent credi- tors, unless it be of the description men- tioned in the statute, &c. Its being vol- untary is prima facie evidence (he does not say conclusive), where the party is loaded with debt at the time, of an intent to defeat and defraud his creditors ; but if unindebted, his disposition is good." He afterwards added : A " voluntary dis- position, even in favor of a child, is not good, if the party is indebted at the time." But this must be taken in connection with his preceding remarks as applying to a case of being loaded with debts. See also Copis v. Middleton, 2 Mad. 426, 428, 430. In Jones r. Boulter (1 Cox, 288, 294), Lord Ch. B. Skinner said : " There is no mention in the act ( Stat. 13 Eliz. ) of vol- § 364, 365.] constructive FRAUD. 355 in the latest case on this subject, it has been expressly affirmed that neither a creditor, nor a purchaser, can impeach a convey- ance hond fide made, founded on natural love and affection, and free from the imputation of fraud, and where the grantor had, independent of the property granted, an ample fund to satisfy his creditors. This qualification, however, was then annexed to the doctrine, that, if a fraudulent use is made of such a settle- ment, it may be carried back to the time when the fraud was commenced. 1 § 365. Under this apparent diversity of judgment, it would ill become the commentator to interpose his own views as to the comparative weight of the respective judicial opinions. It may probably be found in the future, as it has been in the past, that professional opinions will continue somewhat divided upon the subject, until it shall have undergone a more searching judicial examination, not upon authority merely, but upon principle. If the question were now entirely freed from the bearing of dicta and opinions in earlier times, there is much reason to believe that it would settle down into the proposition (certainly most conformable to the language of the statute of 13th of Eliz.), that mere indebt- ment would not per se establish that a voluntary conveyance was void, even as to existing creditors, unless the other circumstances of the case justly created a presumption of fraud, actual or con- structive, from the condition, state, and rank of the parties; and the direct tendency of the conveyance to impair the rights of cred- itors. 2 In the latest English case, touching this subject, it was untary conveyances ; and the question Verplank o. Sterry, 12 Johns. 536. See has always been whether, in the transac- also Huston's Adm'r v. Cantril, 11 Leigh, tion, there has been fraud or covin. Here 136; [Laid v. Scott, 5 Heisk. 314]. were creditors at the time, and this is said 2 See Jones u. Boulter, 1 Cox, 288, always to have been a badge of fraud. It 294, 295 ; Stephens v. Olive, 2 Bro. Ch. 90. is true that this circumstance is always See also 1 Fonbl. Eq. B. 1, ch. 4, § 12, note strong evidence of fraud. But if there are (a) ; Jeremy on Eq. Jurisd. B. 3, Pt. 2, ch. other circumstances in the case, that alone will 3, § 4, p. 412, 413 ; Twyne's case, 3 Co. 81 not be sufficient." Eyre, B., is still more 6; Newland on Contr. ch. 23, p. 383, 384, explicit. He said : " The 13th of Elizabeth 385, where the learned author asserts the is a wholesome law, plainly penned, and opinion intimated in the text, in a posi- I wonder how artificial reason could puz- tive manner, and maintains it by very zle it. An artificial construction has en- cogent reasoning. Mr. Chancellor Kent, tangled courts of justice; namely, that a in his learned opinion, already noticed (3 voluntary conveyance of a person in- Johns. Ch. 506 ), has traced out some of debted at the time is to he deemed fraud- the analogies between the English law ulent." See also 1 Eonbl. Eq. B. 1, ch. 4, and the continental law on this subject, § 12, note (a). and I gladly refer the learned reader 1 Jackson v. Town, 4 Cowen, 604; to his citations. Voet has discussed the 356 EQUITY JUKISPRUDENCE. [CH. VII. unequivocally held, that a voluntary deed, made in consideration of love and affection, is not necessarily void as against the creditors of the grantor, upon the common law, or the statute of Elizabeth, but that it must be shown from the actual circumstances, that the deed was fraudulent, and necessarily tended to delay or defeat creditors. 1 § 366. There is another qualification of the doctrine respecting the rights of creditors, which deserves attention in this place, not only from its practical importance in regard to the jurisdiction of courts of equity, but also from the fact that it has given rise to some diversity of judicial opinion. The point intended to be sug- gested is this, whether, in order to make a conveyance void, as against existing creditors, it is indispensable that it should make a transfer of property, which could be taken in execution by the creditors, or compulsorily applied to the payment of the debts of the grantor ; or whether the rule equally applies to the conveyance of any property whatsoever of the grantor, although not directly so applicable to the discharge of debts. § 367. The English doctrine upon this subject, after various discussions, has at length settled down in favor of the former prop- osition ; namely, that in order to make a voluntary conveyance void as to creditors, either existing or subsequent, it is indispen- sable, that it should transfer property, which would be liable to be taken in execution for the payment of debts. The reasoning by which this doctrine is established is, in substance, that the statute of 13th of Elizabeth did not intend to enlarge the reme- dies of creditors, or to subject any property to execution, which was not already, in law or equity, subject to the rights of cred- itors. That a voluntary conveyance of property not so subject, could not be injurious to creditors, nor within the purview of the subject in his Commentaries, 1 Voet, ad less he knows that the donor was insol- Pand. Lib. 39, tit. 5, § 20; Pothier, in his vent at the time, or that he will not have Traite" des Donations, entre Vif s, § 2 ; sufficient left to pay his creditors, and the and Grenier in his Traite" des Donations, donation is in fraud of his creditors. But Tom. 1, Partie 1, ch. 2, § 2, p. 253, &c. Voet those who are technically called universal holds, that the donee is liable to the ex- donees, donataires universels (which embrace isting, but not to the future, debts of the not only donees of the whole property of donor, when he is donee of all, or of the the donor, but of the whole of a particu- raajor part, of the donor's property: lar kind, as movables, &c), are liable for utrum donatis omnibus bonis aut majore the existing debts of the donor, but not eorum parte. Pothier says, that the for his future debts, donee of particular things is not bound to * Gale v. Williamson, 8 Mees. & Welsh, pay the existing debts of the donor, un- 405, 409, 410, 411. § 365-368.] CONSTRUCTIVE FRAUD. 357 statute, because it would not withdraw any fund from their power, which the law had not already withdrawn from it. And that would be a strange anomaly, to declare that to be a fraud upon creditors, which in no respect varied their rights or remedies. Hence, it has been decided that a voluntary' settlement of stock, or of choses in action, or of copyholds, or of any other property, not liable to execution, is good, whatever may be the state and condition of the party as to debts. 1 § 368. Mr. Chancellor Kent, in a very elaborate argument, has discussed the same subject, and doubted the soundness of the reasoning by which that doctrine is attempted to- be established. He maintains that, in cases of fraudulent alienations of this sort, courts of equity ought to interfere, and grant remedial justice, whether the property could be reached by an execution at law or not, for otherwise a debtor, under shelter of it, might convert all his property into stock, and settle it upon his family, in defiance of his creditors, and to the utter subversion of justice. And he further insists, that the cases antecedent to the time of Lord Thur- low, and especially in the time of Lord Hardwicke and Lord Northington, do sustain his own doctrine. 2 1 See Dundas v. Dutens, 1 Ves. Jr. to have said, " The opinion in Horn ». 196 ; s. c. 2 Cox, 196 ; McCarthy v. Gould, Horn is so anomalous and unfounded, 1 B. & Beatt. 390 ; Grogan v. Cooke, 2 B. that forty such opinions would not satisfy & Beatt. 233 ; Caillard v. Estwick, 1 Anst. me. It would be preposterous and ab- 381 ; Nantes v. Corrock, 9 Ves. 188, 189 ; surd to set aside an agreement, which, if Eider v. Kidder, 10 Ves. 368 ; Guy o. set aside, leaves the stock in the name Pearkes, 18 Ves. 196, 197 ; Cochrane v. of a person, where you could not touch Chambers, 1825, MSS. cited in Mr. Blunt's it." Grogan v. Cooke, 2 B. & Beatt. 233. note to Horn a. Horn, Ambler, 79; Mat- In Partridge e. Gopp, Ambl. 696; 8. c. 1 thews v. Fearer, 1 Cox, 278 ; [Winchester Eden, 163, Lord Chancellor Northington b. Guddy, 72 N. C. 115]. made the donees of £500 each refund in 2 Bayard v. Hoffman, 4 Johns. Ch. 452 favor of creditors. But he seems to have to 459 ; Edgell v. Haywood, 3 Atk. 352. been impressed with the opinion, that the See also Mitf. PI. by Jeremy, 115, and transaction was fraudulent, or, to use his 1 Jac. & Walk. 371 ; M'Durmut v. Strong, own words, that the transaction smelt of 4 Johns. Ch. 687 ; Spader' v. Davis, 5 craft and experiment. The transaction Johns. Ch. 280 ; s. o. 20 Johns. 554. The was secret; and, Dona clandestina sunt cases cited by Mr. Chancellor Kent go semper suspiciosa. Twyne's case, 3 Co. very far to establish the doctrine which 81. Whatever may be the true doctrine he contends for. Taylor v. Jones (2 Atk. on this subject, a distinction may per- 600) is a decision of the Master of the haps exist between cases, where a party Polls, directly in point. The case of indebted actually converts his existing King o. Dupine, cited in Mr. Saunders's tangible property into stock, to defraud note to 2 Atk. 603, note 2, and reported 3 creditors ; and cases, where he becomes Atk. 192, 200, is strong the same way ; possessed of stock without indebtment at and so is Horn v Horn, Ambl. 79. Upon the time ; or, if indebted, without having this latter case, Lord Thurlow is reported obtained it by the conversion of any 858 EQUITY JURISPBUDENCE. [CH. VII. § 369. But, whatever may be the true doctrine, as to these critical and nice questions, it is certain that a conveyance, even if for a valuable consideration, is not, under the statute of 13th of Elizabeth, valid in point of law from that circumstance alone. It must also be bond fide; for if it be made with intent to defraud or defeat creditors, it will be void, although there may, in the strictest sense, be a valuable, nay, an adequate, consideration. This doctrine was laid down in Twyne's case (3 Co. 81), and it has ever since been steadily adhered to. 1 Cases have repeatedly been decided, in which persons have given a full and fair price for goods, and where the possession has been actually changed; yet being done for the purpose of defeating creditors, the transaction has been held fraudulent, and, therefore, set aside. 2 Thus, where a person, with knowledge of a decree against the defendant, bought the house and goods belonging to him, and gave a full price for them, the court said, that the purchase, being with a manifest view to defeat the creditor, was fraudulent, and, notwithstanding the valuable consideration, void. 3 So, if a man should know of a judgment and execution, and, with a view to defeat it, should purchase the debtor's goods, it would be void ; because the purpose is iniquitous. 4 § 370. But cases of this sort are carefully to be distinguished from others, where a sale, or assignment, or other conveyance, other tangible property. Where tangible son ». Holt, 39 N. H. 557 ; Harrison n. property is converted into stock to de- Jaquess, 29 Ind. 208 ; and see Pulliam u. fraud existing creditors, there may be a. Newberry, 41 Ala. 168 ; Carny v. Palmer, solid ground to follow the fund, howeyer 2 Cold. (Tenn.) 35; Stein v. Herman, 23 altered. Wise. 132. But where the price paid 1 Newland on Contr. ch. 23, p. 370, was adequate, and a portion of the pur- 371 ; 1 Fonbl. Eq. B. 1, ch. 4, § 12, note chase money was applied to the payment (o) ; Cadogan v. Kennett, Cowp. 434 ; of debts, it was held that the vendee could Worseley v. De Mattos, 1 Burr. 474, 475 ; not be held to account for such portion McNeal v. Glenn, 4 Maryland, 87 ; Grover of the purchase money as was so used. v. Grover, 3 Md. Ch. Dec. 35. Clements v. Moore, 6 Wal. (U. S.) 299.] 2 Cadogan v. Kennett, Cowp. 434; 4 R>id. ; Worseley v. De Mattos, 1 Bridge v. Eggleston, 14 Mass. 245; Har- Burr. 474, 475. [That if it is a bona fide rison v. Trustees of Phillips Academy, 12 sale, and not a mere cover, intent to de- Mass. 456. feat a particular creditor will not make 8 Ibid. ; Worseley v. De Mattos, 1 the transaction fraudulent, see Wood v. Burr. 474, 475. [That a participation by Dixie, 7 Q. B. 892 ; Hale v. Saloon Orani- grantee in fraudulent intent to hinder the bus Co., 4 Drew. 492 ; Darvill v. Terry, creditors of the grantor, will make the 6 H. & N. 807. And a fortiori an insol- transaction voidable though full value vent may sell or mortgage where the was paid, see Holmes v. Penney, 3 K. & intent is to get money to pay his debts. J. 90 ; Wadsworth v. Williams, 100 Mass. In re Coleman, L. R. 1 Ch. App. 128 j 126 ; Chapel v. Clapp, 29 la. 191 ; Robin- Lowry v. Howard, 35 Ind. 170.] §. 369-371.J CONSTRUCTIVE FRAUD. 359 merely amounts to giving a preference in payment to another creditor, or where the assignment or conveyance is made for the benefit of all creditors ; for such a preference, 1 or such a general assignment 2 or conveyance, is not treated as maid fide, but as merely doing what the law admits to be rightful. A sale, assign- ment, or other conveyance, is not necessarily fraudulent because it may operate to the prejudice of a particular creditor. 3 But secret preferences made to induce particular creditors to sign a general assignment, and unknown to the other creditors who execute the assignment, are treated as frauds upon such creditors. 4 § 371. It may be added that, although voluntary conveyances are or may be void as to existing creditors, they are perfect and effectual as between the parties, and cannot be set aside by the grantor, if he should become dissatisfied with the transaction. 6 1 [York Co. Bank v. Carter, 38 Perm. St. 446; Lampson v. Arnold, 19 la. 479; Hessing v. McCloskey, 37 111. 341 ; May- field v. Kilgour, 31 Md. 240; Carpenter v. Muren, 42 Barb. 300. And a. prefer- ence to a bona fide creditor is not voidable, because of intent participated in by such creditor to defeat other creditors. Ban- field v. Whipple, 14 Allen, 13; Gray v. St. John, 35 111. 222; Walden v. Mur- dock, 23 Cal. 540 ; Young v. Dumas, 39 Ala. 60; Chase v. Walters, 28 la. 460; Bear's Estate, 60 Penn. St. 430. And it is immaterial what motive induces the debtor to prefer one bona fide creditor to another. Crawford v. Austin, 34 Md. 49. But it must not be a cover for personal benefit. Banfield v. Whipple, 14 Allen, 13. But a reservation of surplus will not make it fraudulent. Beach v. Bestor, 47 111. 521. If the transaction contains any elements of hindrance or delay to other creditors not necessary to the security of the preferred creditor, he being aware of his debtor's intent, it will, it seems, be voidable. Poster u. Grigsby, 1 Bush (Ky.), 86. So a general assignment is, it seems, void against a particular creditor whom it was the especial motive of the assignment to hinder. Stickney v. Crane, 35 Vt. 89. The law in England under the Bankrupt Act is, that a preference made without pressure, and in contempla- tion of bankruptcy, is fraudulent. See Ex parte Craven, L. R. 10 Eq. 648. As to what is pressure, see Ex parte Tem- pest, L. K. 6 Ch. App. 70. The transfer by way of preference, may be of the debtor's whole property as well as of a part. Alton v. Harrison, L. R. 4 Ch. App. 622; Hobbs v. Davis, 50 Ga. 213; Thorn- ton v. Tandy, 39 Tex. 544.] 2 [Lee v. Green, 35 E. L. & E. 261 ; Wolverhampton Bank v. Marston, 7 H. & N. 148; Johnson v. Osenton, L. B. 4 Ex. 107. But see Dalton v. Currier, 40 N. H. 237, where a general assignment for creditors, in order to save the prop- erty from attaching creditors, not made under their statute, but depending for its validity upon the common law, was held void as against the policy of the at- tachment laws. That even a general assignment is contrary to policy of insol- vent law, and void, see Edwards v. Mit- chell, 1 Gray, 239; Stanfield d. Sim- mons, 12 Gray, 442. But see Adams v. Blodgett, 2 Woodb. & M. -233. And such assignments are against the policy of the Bankrupt Act, and void or voida- ble by the assignee. In re Pierce & Hol- brook, 3 Bank. Beg. 61 ; In re Spicer & Peckham v. Ward & Trow, id. 127 ; In re Catlin assignee v. Foster, ib. 134.] 8 Holbird v. Anderson, 5 T. E. 235; Pickstork v. Lyster, 3 M. & Selw. 371. See ante, § 369, note 4. * Post, § 378. 6 Petre v. Espinasse, 2 Mylne & Keen, 496; Bill v. Cureton, id. 510, 530. But see post, § 426. 360 EQUITY JURISPRUDENCE. [CH. VII. It is his own folly to have made such a conveyance. They are not only valid as to the grantor, but also as to his heirs, and all other persons claiming under him in privity of estate with notice of the fraud. 1 A conveyance of this sort (it has been said, with great truth and force) is void only as against creditors ; and then only to the extent in which it may be necessary to deal with the conveyed estate for their satisfaction. To this extent, and to this only, it is treated as if it had not been made. To every other purpose it is good. Satisfy the creditor, and the conveyance stands. 2 [And if a creditor is a party to such deed and ac- quiesces in it, he cannot afterwards avoid it; 3 nor can any one claiming under him. 4 ] But the assignees of a bankrupt, or an insolvent debtor, are entitled to the same rights and stand in the same predicament as the creditors themselves, and are deemed to represent them. 6 § 372. The circumstances under which a conveyance will be deemed purely voluntary, or will be deemed affected by a consid- eration valuable in itself, or in furtherance of an equitable obliga- tion, are very important to be considered ; but they more properly belong to a distinct treatise upon the nature and validity of settle- ments. It may not, however, be useless to remark, in this place, that a settlement made upon a wife after marriage is not to be treated as wholly voluntary, where it is done in performance of a 1 Randall v. Phillips, 3 Mason, 378. 62 Barb. 26 ; Therasson v. Hickok, 37 Vt 2 Sir W. Grant, in Curtis v. Price, 12 454; Ogden v. Prentice, 33 Barb. 160. Ves. 103 ; Worseley v. De Mattos, 1 Burr. i Olliver v. King, 35 Eng. Law & Eq. 474 ; 1 Mad. Pr. Ch. 222, 223 ; 1 Eonbl. 312 ; s. c. 8 De G., M. & G. 110 ; Baldwin Eq. B. 1, ch. 4, § 12, note (a) ; Jeremy on v. Cawthorne, 19 Ves. 164 ; Steel v. Brown, Eq. Jurisd. B. 3, Pt. 2, ch. 3, § 4 ; Malin v. 1 Taunt. 381 ; Harvey, ex parte, 27 Eng. Garnsey, 16 Johns. 189 ; Reichart v. Cas- Law & Eq. 272. So one who purchases telor, 6 Binn. 109 ; Drinkwater v. Drink- the equity of redemption or execution on water, 4 Mass. 354. See ante, § 61, note, foreclosure sale, cannot contest the mort- [Scholey v. Worcester, 6 Thomp. & C. gage as fraudulent ; his right is to redeem 574, 4 Hun, 302; Dietrich v. Koch, 35 in paying what is justly due. Russell v. Wis. 618 ; Harman v. Harman, 63 111. Dudley, 3 Mete. 147 ; Taylor v. Dean, 7 572 ; O'Neil v. Chandler, 42 Ind. 471 ; Allen, 251. But otherwise, if an assignee Clemens v. Clemens, 28 Wis. 637 ; Noble of an insolvent clearly manifests his in- v. Noble, 26 Ark. 317.] tent to avoid the mortgage, and sells all 8 [As to what concurrence by the cred- his interest in the estate. Ereeland . Livingston (3 Johns. Ch. 481), after reviewing the authorities, has come to a conclusion unfavorable to the valid- ity of such a settlement. Sir William Grant, in Randall ». Morgan (12 Ves. 67), seemed to think the question not settled. An anonymous case in Preced. § 374, 375.] CONSTRUCTIVE FRAUD. 365 memorandum, to take a case out of the Statute of Frauds, must contain, not only a description of the property, and the price, but the names of the parties to be bound by the contract ; and the defect will not be supplied by correspondence between the parties, from which these facts are obviously implied. 1 ] § 375. The same policy, of affording protection to the rights of creditors, pervades the provisions of the statute of 3d and 4th of William and Mary, ch. 14, respecting devises in fraud of creditors, and of the statutes made in the American States in pari materia.' 1 There is an apparent anomaly in equity jurisprudence upon this subject, not easily reconcilable with sound principles. The statute of William and Mary is confined to fraudulent devises ; and, there- fore, fraudulent conveyances, whether voluntary or not, are not reached by it. And, hence, it has been adjudged in England, that, if a man makes a conveyance of lands in his lifetime, in order to defraud his creditors, and dies, his bond-creditors have no right to set aside the conveyance ; for the statute (it is said) was only designed to secure such creditors against any imposition, which might be supposed in a man's last sickness. But, if he gave away his effects in his lifetime, this prevented the descent of so much to the heir ; and, consequently, took away their remedy against the heir, who was liable only in respect to land descended. And as a bond is no lien whatever on lands in the hands of the obligor, much less can it be so when they are given away to a stranger. 3 This doctrine has been strongly questioned ; and, at the time when it was promulgated, gave great dissatisfaction. 4 And, hence, we may see the reason why voluntary conveyances of lands cannot be set aside, except by creditors, who have reduced their debts to judgment before the death of the party ; for, until that time, they constitute no lien on the land. 5 in Ch. 101, is in favor of such a settle- 8 Parslow v. Weaden, 1 Eq. Abridg. 14, ment. See also Eamsden v. Hylton, 2 PI. 7 ; 1 Fonbl. Eq. B. 1, ch. 4, § 12, 14, Ves. 308, the remarks of Lord Hard- and note (I). wicke. See also Lavender v. Blackstone, 4 Ibid. ; and Jones v. Marsh, Cas. T. 2 Lev. 146, 147; 1 Vent. 194; Guchen- Talb. 64. back v. Rose, 4 Watts & Serg. 546. [See s 1 Fonbl. Eq. B. 1, ch. 4, § 12; Gilb. Warden v. Jones, 2 De G. & J. 76.] Lex Pretoria, p. 293, 294; Colman «. * [* Skelton v. Cole, 1 De Gex & Jones, Croker, 1 Ves. Jr. 160. See Bean v. 687.] Smith, 2 Mason, 282 to 285. SeeMitf. Eq. 2 See 1 Roberts on Wills, ch. 1, § 20; PI. by Jeremy, 126, 127 ; Jackson ». Cald- Jeremy on Eq. Jurisd. B. 3, Pt. 2, ch. 3, well, 1 Cowen, 622. But see Lister v. Tax- § 4, p. 415, 416; 1 Eonbl. Eq. B. 1, ch. 4, ner, 6 Hare, 281. § 14, note (»). 366 EQUITY JURISPRUDENCE [CH. VII. § 376. In America, however, the policy of the legislature has taken a much wider and more effectual range to obtain its' objects. Generally, if not universally, lands and other hereditaments are with us made assets for the payment of debts, as auxiliary to the personal property of the deceased. And if the party, in his lifetime, has fraudulently conveyed his estate, with a view to defeat his creditors upon his decease, the real assets are sub- ject to the same disposition as if no such conveyance had been made. 1 The French law seems to have proceeded upon a policy equally broad and salutary ; and has enabled creditors, in cases of insolvency, to rescind alienations, either voluntary or in fraud of their rights. 2 § 377. These cases of interposition in favor of creditors, being founded upon the provisions of positive statutes, a question was made at an early day whether they were exclusively cognizable at law ; or they could be carried into effect also in equity. The jurisdiction of courts of equity is now firmly established ; for it extends to cases of fraud, whether provided against by statute or not. And, indeed, the remedial justice of a court in equity in many cases arising under these statutes, is the only effectual one which can be administered ; as that of courts of law must often fail, from the want of adequate powers to reach or redress the mischief. 3 § 378. There are other cases of constructive frauds against creditors, which the wholesome moral justice of the law has equally discredited and denounced. We refer to that not unfrequent class of cases, in which, upon the failure or insolvency of their debtors, some creditors have, by secret compositions, obtained undue ad- vantages, and thus decoyed other innocent and unsuspecting credi- 1 See Drinkwater v. Drinkwater, 4 chaser, so that the simple avoiding of the Mass. 354. Wildridge v. Patterson, 15 mortgage would be no relief. Barthol- Mass. 148. omew v. McKinstry, 2 Allen, 448. So an 2 Pothier on Oblig. n. 153. administrator may maintain a bill to re- 3 Jeremy on Eq. Jurisd. B. 3, Pt. 2, ch. cover property conveyed by his intestate 3, § 4, p. 408, 409 ; id. ch. 4 ; 1 Fonbl. Eq in fraud of creditors, and it makes no B. 1, ch. 4, § 12, and note (c) ; id. § 14, difference though all debts are barred by notes (i) and (k) ; 1 Eq. Abridg. 149, E. the lapse of the two years' limitation, since 6 ; White u. Hussey, Preced. in Ch. 14. the amount recovered will be new assets. [Where the assignee of an insolvent is Welsh v. Welsh, 105 Mass. 229. As to entitled by statute to recover the prop- whether an assignee can, independently erty fraudulently conveyed or its pro- of statute, sue in equity to recover prop- ceeds, equity will compel the assignment erty fraudulently conveyed, see Verselius to him of a fraudulent mortgage, where v. Verselius, 9 Blatch. C. C. B. 189.] the equity is held by a bond fide pur- § 376-379.] constructive fraud. 367 tors into signing deeds of composition, which they supposed to be founded upon the basis of entire equality and reciprocity among all the creditors ; when, in fact, there was a designed or actual imposition upon all but the favored few. The purport of a com- position or trust-deed, in cases of insolvency, usually is, that the property of the debtor shall be assigned to trustees, and shall be collected and distributed by them among the creditors, according to the order and terms prescribed in the deed itself. And, in consideration of the assignment, the creditors, who become parties, generally agree to release all their debts, beyond what the funds will satisfy. Now, it is obvious, that in all transactions of this sort, the utmost good faith is required ; and the very circumstance that other creditors, of known reputation and standing, have already become parties to the deed, will operate as a strong inducement to others to act in the same way. But, if the signatures of such prior creditors have been procured by secret arrangements with them, more favorable to them than the general terms of the com- position deed warrant, those creditors really act (as has been said by a very significant, although a homely figure) as decoy-ducks upon the rest. They hold out false colors to draw in others, to their loss or ruin. § 379. In modern times, the doctrine has been acted upon in courts of law, as it has long been in courts of equity, that such secret arrangements are utterly void, and ought not to be enforced, even against the assenting debtor, or his sureties, or his friends. 1 There is great wisdom, and deep policy, in the doctrine ; and it is founded in the best of all protective policy, that which acts by way of precaution, rather than by mere remedial justice ; for it has a strong tendency to suppress all frauds upon the general creditors, by making the cunning contrivers the victims of their own illicit and clandestine agreements. The relief is granted not for the sake of the debtor, for no deceit or oppression may have been practised upon him ; but for the sake of honest, and humane, and unsuspecting creditors. And, hence, the relief is granted equally, whether the debtor has been induced to agree to the secret bargain by the threats or oppression of the favored credi- 1 Chesterfield v. Janssen, 1 Atk. 352 ; Bromley, Doug. 696, note ; Jones v. Baik- 1 Ves. 155,156; 3 P. Will. 131; Cox's ley, id. 695, note; Coc'kshott v. Bennett, note; Spurrette. Spiller, 1 Atk. 105; Jack- 2 T. B. 763; Jackson v. Lomas, 4 T. B. man v. Mitchell, 13 Ves. 581; Smith v. 166; Fawcett v. Gee, 4 Anst. 910. 368 EQUITY JURISPRUDENCE. [CH. VII. tors, or whether he has* been a mere volunteer, offering his ser- vices, and aiding in the intended deception. Such secret bargains are not only deemed incapable of being enforced or confirmed, but even money paid under them is recoverable back, as it has been obtained against the clear principles of public policy. 1 And it is wholly immaterial, whether such secret bargains give, to the favored creditors a larger sum, or an additional security or advan- tage, or only misrepresent some important fact ; for the effect upon other creditors is precisely the same in each of these cases. They are misled into an act, to which they might not otherwise have assented. 2 § 380. For the like reasons, any agreement, made by an insol- vent debtor with his assignee, by which the estate of the insol- vent is to be held in trust by the assignee, to secure certain benefits for himself and his family, such as to pay certain annuities to himself and his wife, out of the rents or proceeds of the property assigned, and to apply the surplus to the extinction of debt due to the assignee, will be held void, and will be rescinded, upon the ground of public policy, whenever it comes before a court of equity, even though the suit happened to be at the instance of the insolvent himself. For it is a contrivance in fraud of creditors, 1 Smith v. Bromley, Doug. 696, note ; creditor was at liberty to refuse the com- Jones v. Barkley, id. 695, note ; Jaekman position, it is established by a series of v. Mitchell, 13 Ves. 581 ; Ex parte Sadler decisions, that a creditor cannot ostensibly and Jackson, 15 Ves. 55; Mawson v. accept such composition and sign the deed, Stock, 6 Ves. 300 ; Ye'omans u. Chatter- which expresses his acceptance of the ton, 9 Johns. 294 ; Wiggin v. Bush, 12 terms, and at the same time stipulate for Johns. 306. or secure to himself a peculiar and sepa- 2 Ibid. ; Eastabrook v. Scott, 3 Ves. rate advantage, which is not expressed 456 ; Constantine v. Blache, 1 Cox, 287 ; upon the deed ; and in the case of Leices- 1 Fonbl. Eq. B. 1, ch. 4, § 11, note (x) ; ter v. Rose ( 4 East, 372), it is stated by Cullingworth v. Lloyd, 2 Beav. 385, and Mr. Justice Le Blanc, that in the consid- the learned note of the Reporter, p. 390 ; eration of cases of this nature, it is not Leicester v. Rose, 4 East, 372. In Cul- material whether the agreement be en- lingworth v. Lloyd, Lord Langdale said : tered into at a meeting of all the creditors " It must be observed that Edmund assembled for the purpose, or impliedly Grundy was winding up the business un- by their affixing their signatures to the der a power of attorney, which enabled same deed, carried round or produced to him to pay the debts by an equal pound each separately, and signed by them; rate ; but it does not appear, that there those who, by executing the deed hold was any general meeting of the creditors, out that they come in under the general or any agreement entered into by the agreement, are not permitted to stipulate creditors generally. The advertisements, for a further partial benefit to them- however, show a proposition to the cred- selves." [See Furlong «. Fottrell, L. R. itors at large to pay them all a composi- (Ir.) 3 Eq. 432; Mare v. Sandford, 1 Giff. tion on certain terms ; and although every 288.] § 379-382.] CONSTRUCTIVE FRAUD. 369 to ■which the assignee, who is, or ought to be, a trustee for them, is a party. 1 § 381. In concluding this discussion, so far as it regards credi- tors, it is proper to be remarked, that although voluntary and other conveyances, in fraud of creditors, are thus declared to be utterly void ; yet, they are so, only so far as the original parties and their privies, and others claiming under them, who have notice of the fraud, are concerned. For bond fide purchasers for a val- uable consideration, without notice of the fraudulent or voluntary grant, are of such high consideration, that they will be protected, as well at law as in equity, in their purchases. 2 It would be plainly inequitable, that a party who has, bond fide, paid his money upon the faith of a good title, should be defeated by any creditor of the original grantor, who has no superior equity, since it would be impossible for him to guard himself against such latent frauds. The policy of the law, therefore, which favors the security of titles, as conducive to the public good, would be subverted, if a creditor, having no lien upon the property, should yet be permitted to avail himself of the priority of his debt, to defeat such a bond fide pur- chaser. Where the parties are equally meritorious, and equally innocent, the known maxim of courts of equity is, Qui prior est in tempore, potior est in jure ; he is to be preferred, who has acquired the first title. 3 This point, however, will naturally present itself in other aspects, when we come to the consideration of the general protection, afforded by courts of equity, to purchasers standing in such a predicament. § 382. Other underhand agreements, which operate as a fraud upon third persons, may easily be suggested, to which the same remedial justice has been applied. Thus, where a father, upon the marriage of his daughter, entered into a covenant,* that upon his death he would leave her certain tenements, and that he would, also by his will, give and leave her a full and equal share, with her brother and sister, of all his personal estate; and he after- wards, during his life, transferred to his son a very large portion of his personal property, consisting of public stock, but retained i McNiel v. Cahill, 2 Bligh, 228. v. Langham, 1 Sid. 133 ; Wilson and Wor- * Ante, § 64 c, 108, 139, 165 ; post, § 409, mal's case, Godbolt, 161 ; Bean v. Smith, 434, 436. [See Hubbell v. Currier, 10 1 Mason, 272 to 282 ; Anderson v. Roberts, Allen, 333.] 18 Johns. 513 ; Fletcher v. Peck, 6 Cranch, 8 See Dame Burg's case, Moore, 602 ; 133, 134 ; Daubeney v. Cockburn, 1 Meriv. Woodcock's case, 33 H. 6, 14; Predgers 638, 639; Ledyard ». Butler, 9 Paige, 132. BQ. JUK. — VOL. I. 24 370 EQUITY JURISPRUDENCE. [CH. VII. the dividends for his life ; it was held, that the transfer was void, as a fraud upon the marriage articles ; and the son was compelled to account for the same. 1 Covenants of this nature are proper in themselves, and ought to be honorably observed. They ought not to be, and indeed are not, construed to prohibit the father from making, during his lifetime, any dispositions of his personal prop- erty among children, more favorable to one than another. But they do prohibit him from doing any acts which are designed to defeat and defraud the covenant. He may, if he pleases, make a gift bond fide to a child ; but then it must be an absolute and unqualified gift, which surrenders all his own interest, and not a mere reversionary gift, which saves the income to himself during his own life. 2 § 383. So if a friend should advance money to purchase goods for another, or to relieve another from the pressure of his neces- sities, and the other parties interested should enter into a private agreement over and beyond that with which the friend is made acquainted : such an agreement will be void at law, as well as in equity ; for the friend is drawn in to make the advance by false colors held out to him, and under a supposition that he is ac- quainted with all the facts. 3 So the guaranty of the payment of a debt, procured from a friend upon the suppression by the parties of material circumstances, is a virtual fraud upon him, and avoids the contract. 4 § 384. Another class of constructive frauds of a large extent, and over which courts of equity exercise an exclusive and very salutary jurisdiction, consists of those where a man designedly or knowingly produces a false impression upon another, who is thereby drawn into some act or contract, injurious to his own rights or interests. 3 This subject has been partly treated before ; but it should be again brought under our notice in this connection. 6 No man can reasonably doubt, that if a party, by the wilful sugges- 1 Jones v. Martin, 3 Anst. 882 ; s. c. 6 * Pidcock v. Bishop, 3 B. & Cressw. Ves. 265. See also Randall v. Willis, 5 605 ; Smith v. Bank of Scotland, 1 Dow, Ves. 261; 8 Brown, Pari. 242, by Tom- Pari. 272. See Owen v. Homan, 3 Eng. lins ; McNiel v. Cahill, 2 Bligh, 228. See Law & Eq. 121 ; 25 id. 1 ; Squire v. Whit- Stocken v. Stocken, 4 Mylne & Craig, 95. ton, 1 House of Lords Cases, 333 ; ante, [For a case of fraud on marital rights, see § 215. McKeogh v. McKeogh, L. R. (Ir.) 4 Eq. « Com. Dig. Chancery, 4 W. 28 ; Bean 338.] v. Smith, 2 Mason, 285, 286 ; 1 Mad. Ch. 2 Ibid. Pr. 256, 257 ; ante, § 191, &c. a Jackson v. Duchaise, 3 T. R. 561. « Ante, § 192 to 204. § 382-385.] CONSTRUCTIVE FRAUD. 371 tion of a falsehood, is the cause of prejudice to another, who has a right to a full and correct representation of the fact, his claim ought in conscience to be postponed, to that of the person whose confidence was induced by his representation. And there can be no real difference between an express representation, and one that is naturally or necessarily implied from the circumstances. 1 The wholesome maxim of the law upon this subject is, that a party who enables another to commit a fraud is answerable for the consequences ; 2 and, the maxim so often cited, Fraus est celare fraudem, is, with proper limitations in its application, a rule of general justice. § 385. Tn many cases, a man may innocently be silent ; for, as has often been observed, Aliud est tacere, aliud celare. But, in other cases, a man is bound to speak out ; and his very silence becomes as expressive as if he had openly consented to what is said or done, and had become a party to the transaction. 3 Thus, if a man, having a title to an estate, which is offered for sale, and knowing his title, stands by and encourages the sale, or does not forbid it, and thereby another person is induced to purchase the estate, under the supposition that the title is good, the former, so standing by and being silent, will be bound by the sale, and neither he nor his privies will be at liberty to dispute the validity of the purchase. 4 So, if a man should stand by, and see another 1 1 Fonbl. Eq. B. 1, ch. 3, § 4, notes the jury to consider, whether he had not (m) and (n) ; Sugden on Vendors, ch. 16. assented to the sale, and ceased to be the 2 Bac. Max. 16. owner of the property. On this occasion, 3 1 Fonbl. Eq. B. 1, ch. 3, § 4, and Lord Denman, in delivering the opinion notes (m) and (n) ; Savage v. Foster, 9 of the court, said : " The rule of law is Mod. 35 ; Com. Dig. Chancery, 4 I. 3, 4 clear, that where one, by his words or Vf . 28 ; Hanning «. Ferrers, 1 Eq. Abridg. conduct, wilfully causes another to be- 356, pi. 10 ; ante, § 204 to 220. lieve in the existence of a certain state 4 Ibid. ; Storrs v. Barker, 6 Johns. Ch. of things, and induces him to act on that 166, 169 to 172 ; Wendell v. Van Bens- belief so as to alter his own previous selaer, 1 Johns. Ch. 354. Courts of law position, the former is concluded from now act upon the same enlightened prin- averring against the latter a different ciples in regard to personal property, in state of things, as existing at the same the transfer of which no technical form- time ; and the plaintiff might have parted alities usually intervene to prevent the with his interest in the property by verbal application of them. Thus, where it ap- gift or sale, without any of those formal- peared that certain goods of the plaintiff ities that throw technical obstacles in the were seized on an execution against a way of legal evidence. And we think his third person (in whose possession they conduct, in standing by and giving a sort were) and sold to the defendant, and of sanction to the proceedings under the the plaintiff made no objection to the execution, was a, fact of such a nature, gale, though he had full notice of it ; it that the opinion of the jury ought, in was held that the facts ought to be left to conformity to Heane v. Bogers (9 B. & 872 EQUITY JURISPRUDENCE. [CH. TIT. person, as grantor, execute a deed of conveyance of land belonging to himself, and, knowing the facts, should sign his name as a wit- ness, he would in equity be bound by the conveyance. 1 So, if a party having a title to an estate, should stand by, and allow an innocent purchaser to expend money upon the estate, without giving him notice, he would not be permitted by a court of equity to assert that title against such purchaser, at least not without fully indemnifying him for all his expenditures. 2 The same rule has been applied both at law and in equity, where the owner of chattels; with a full knowledge of his own title, has permitted another person to deal with these chattels as his own, in his trans- actions with third persons, who have bargained and acted in the confidence that the chattels were the property of the person with whom they dealt ; for in cases where one of two innocent persons must suffer a loss, and d fortiori, in cases where one has misled the other, he, who is the cause or occasion of that confidence by which the loss has been caused or occasioned, ought to bear it. 3 Indeed, cases of this sort are viewed with so much disfavor by courts of equity, that neither infancy nor coverture will constitute any excuse for the party guilty of the concealment or misrepre- sentation ; for neither infants nor femes covert are privileged to practise deception or cheats on other innocent persons. 4 [* § 385 a. And a feme covert is held bound by an election under a decree against the husband, obtained in a suit instituted by her next friend, upon the ground that the contrary doctrine would enable her to turn her disability to a fraudulent advantage. 5 And where an infant in contemplation of marriage represented himself of full age, ignorantly as he claimed, and entered into a covenant, by way of settlement upon his intended wife, to pay to trustees named the agreed value of her stock in business, for her separate use and that of her children by a former marriage ; and in confi- dence of such covenant took possession of the stock, and continued Cressw. 586), and Graves v. Key (3 Barn. 179; Pickard v. Sears, 6 Adolph. & Ellis & Adol. 318, note a), to hare been taken, 474, supra. i whether he had not in point of fact ceased * 1 Fonbl. Eq. B. 1, ch. 3, § 4 ; Savage to be the owner." Pickard v. Sears, 6 v. Foster, 9 Mod. 35 ; Evroy v. Nichols, Adolph. & Ellis, 474. 2 Eq. Abridg. 489; Clare v. Earl of Bed- i Teasdale v. Teasdale, Sel. Ch. Cas. ford, cited 2 Vern. 150, 161 ; Beckett ». 59 ; 1 Fonbl. Eq. B. 5, ch. 3, § 4, note (m). Cordley, 1 Bro. Ch. 357 ; Sugden on Ven- 2 See Cawdor v. Lewis, 1 Younge & dors, ch. 16, p. 262, 9th edit. ; post, 387 to Coll. 427 ; The Chautaque County Bank 390. See Bright v. Boyd, 1 Story, 478. v. White, 6 Barbour, 590 ; post, § 388. 5 [Barrow v. Barrow, 4 Kay & Johnson, 8 Nicholsons. Hooper, 4 Mylne& Craig, 409. § 385-387.] CONSTRUCTIVE FRAUD. 373 the business some years after he became of age, when the wife died ; and, upon the trustees claiming performance of the covenants, he answered that he was not liable, by reason of infancy; it was held, on the ground of misrepresentation and also of acquiescence, that the defendant could not set up the plea of infancy in bar of the covenant. 1 .] § 386. In order, however, to justify the application of this co- gent moral principle, it is indispensable that the party so stand- ing by and concealing his rights should be fully apprised of them, and should by his conduct or gross negligence, encourage or influ- ence the purchase ; for if he is wholly ignorant of his rights, or the purchaser knows them, or, if his acts, or silence or negligence, do not mislead, or in any manner affect the transaction, there can be no just inference of actual or constructive fraud on his part. 2 [For a right can be lost or forfeited only by such conduct as would make it fraudulent and against conscience to assert it. 3 ] § 387. There are, indeed, cases, where even ignorance of title will not excuse a party ; for, if he actually misleads the purchaser by his own representations, although innocently, the maxim is justly applied to him, that, where one of two innocent persons must suffer, he shall suffer, who, by his own acts, occasioned the confidence and the loss. 4 Thus, where a tenant in tail under a settlement, encouraged a stranger to purchase an annuity, charged on the land by his father's will, from a younger brother, and said, that he believed his brother had a good title ; he was compelled to make good the annuity, notwithstanding his ignorance of his own title under the settlement, and of the annuity's being invalid ; for, under the circumstances of the case, there was negligence on his part in not instituting proper inquiries, he having heard that there had been a settlement. 6 So, where a mother, who was a tenant in tail, and absolute owner of a term of years, was present at a treaty for her son's marriage, and heard her son declare that the term was to come to him after the death of the mother ; and she became a witness to a deed, whereby the son took upon him- 1 Nelson v. Stocker, 5 Jur. N. s. 262; 546; 3 P. Will. 74, Mr. Cox's note; Scott s. c. 28 L. J. u. s. Ch. 751.] v. Seott, 1 Cox, 378, 379, 380; Evans v. 2 See 2 Hovend. on Frauds, ch. 22 Bieknell, 6 Ves. 173, 182, 183, 184 ; Pear- p. 184. son v. Morgan, 2 Bro. Ch. 388 ; Com. Dig. 3 [Devereux v. Bengwyn, 5 Iredell, Eq_. Chancery, 4 W. 28. 351.] 6 Hobbs v. Norton, 1 Vern. 136; 1 Eq. * See Neville v. Wilkinson, 1 Bro. Ch. Abridg. 356, PI. 8. 374 EQUITY JURISPRUDENCE. [CH. VII. self to settle the reversion of the term, expectant on his mother's death, upon the issue of the marriage ; and the mother did not insist upon more than a life-estate therein ; she was held bound to make good the title, notwithstanding it was insisted that she was ignorant that as tenant in tail she had an absolute power to dispose of it. 1 § 388. Another case, illustrative of the same doctrine, may be put, arising from the expenditure of money upon another man's estate, through inadvertence, or a mistake of title. 2 As, for in- stance, if a man, supposing he has an absolute title to an estate, should build upon the land, with the knowledge of the real owner who should stand by and suffer the erections to proceed, without giving any notice of his own claim ; he would not be permitted to avail himself of such improvements, without paying a full com- pensation therefor ; for, in conscience, he was bound to disclose the defect of title to the builder. 3 Nay, a court of equity might, under circumstances, go further, and oblige the real owner to per- mit the person making such improvements on the ground to enjoy it quietly and without disturbance. 4 § 389. And, upon the like principle, if a person, having a con- veyance of land, keeps it secret for several years, and knowingly suffers third persons afterwards to purchase parts of the same premises from his grantor, who remains in possession, and is the reputed owner, and to expend money on the land, without notice of his claim, he will not be permitted afterwards to assert his legal title against such innocent and bond fide purchasers. To allow him to assert his title under such circumstances, would be to counte- nance fraud and injustice ; and the conscience of the party is 1 Hunsden v. Cheney, 2 Vern. 150; 4 East India Company v. Vincent, 2 Starrs v. Barker, 6 Johns. Ch. 166, 168, Atk. 83; Dann v. Spurrier, 7 Ves. 231, 173, 174. See also Beverly u. Beverly, 235 ; Jackson v. Cator, 5 Ves. 688 ; Storrs 2 Vern. 133 ; Redman v. Redman, 1 Vern. v. Barker, 6 Johns. Ch. 168, 169 ; Shannon 347 ; Scott v. Scott, 1 Cox, 366, 378 ; Raw v. Bradstreet, 1 Sch. & Lefr. 73. The civil v. Potts, 2 Vern. 239 ; Savage v. Foster, law carried its doctrine in cases of this 9 Mod. 35 ; 1 Mad. Ch. Pr. 210, 211 ; sort much further ; for, in all cases where Bac. Abridg. I. Fraud, B. ; Raw v. Potts, improvements were bona fide made upon Preced. Ch. 35 ; Brinckerhoff i\ Lansing, any estate by a purchaser or other person, 4 Johns. Ch. 65, 70. innocently, and under a belief that he was 2 Com. Dig. Chancery, 4 I. 3 ; ante,, the true owner of the estate, he was enti- § 385; post, § 799 a, 799 6, 1237, 1238,' tied to a compensation for the benefit 1239. actually conferred upon the estate. See i Pilling v. Armitage, 12 Ves. 84, 85. Bright «. Boyd, 1 Story, 478, 494, 495, See Wells u. Banister, 4 Mass. 514 ; Bright 496 ; post, § 799 a, 799 b, 1237, 1238, 1239. v. Boyd, 1 Story, 478. § 387-390 a.] constructive fraud. 375 bound by an equitable estoppel ; for in such a case, it is emphati- cally true, — Qui tacet, consentire videtur; qui potest et debet vetare, jubet, si non vetat?- § 390. A more common case, illustrative of the same doctrine, is, where a person, having an encumbrance or security upon an estate, suffers the owner to procure additional money upon the estate by way of lien or mortgage, concealing his prior encum- brance or security. In such a case he will be postponed to the second encumbrancer ; for it would be inequitable to allow him to profit by his own wrong in concealing his claim, and thus lending encouragement to the new loan. 2 Thus, if a prior mortgagee, who knows that another person is about to lend money on the mortgaged property, should deny that he had a mortgage, or should assert that it was satisfied, he would be_ postponed to the second mortgagee, who should lend his money on the fault of the repre- sentations so made. 3 So, if a prior mortgagee, whose mortgage is not registered, should be a witness to a subsequent mortgage or conveyance of the same property, knowing the contents of the deed, and should not disclose his prior encumbrance, he would be postponed or barred of his title. 4 Such transactions may well explain the maxim, fraus est celare fraudem. [* § 390 a. So where one puts the evidence of his lien into the debtor's hands, so as to enable him to represent it as extinguished, and thereby gain further credit upon the mortgage of the same property, the first lien will be postponed to the subsequent one. 5 But where one gives his broker blank transfers of certain shares of railway stock, and the broker fraudulently inserts different shares, of greater value, and delivers such transfers to a bond fide pur- chaser, it is only a good transfer to the extent for which it was made, the purchaser being put upon his inquiry by seeing the deeds in blank, and the mode of conveyance being regarded as inopera- 1 Wendell v. Van Rensselaer, 1 Johns. Eyans v. Bicknell, 6 Ves. 173, 182, 183 ; Cli. 354; 2 Inst. 146, 305; Branch's Max. Pearson v. Morgan, 2 Bro. Ch. 385, 388; 181,185; Hanningy. Ferrers, lEq.Abridg. Plumb v. Eluitt, 2 Anst. 432; 1 Fonbl. 357 ; Storrs v. Barker, 6 Johns. Ch. 166, Eq. B. 1, ch. 3, 4, note (w) ; Sugden on 168 ; Bright v. Boyd, 1 Story, 478 ; ante, Vendors, ch. 16 ; Lee v. Munroe, 7 Cranch, 385. 368. 2 Draper v. Borlace, 2 Vern. 370 ; Clare 8 Lee v. Munroe, 7 Cranch, 366, 368. v. Earl of Bedford, cited 2 Vern. 150, 151 ; * Brinckerhoff v. Lansing, 4 Johns. Mocatta v. Murgatroyd, 1 P. Will. 393, Ch. 65. 394; Berrisford v. Milward, 2 Atk. 49; » [* Perry-Herrick v. Attwood, 2 De Beckett v. Cordley, 1 Bro. Ch. 353, 357; Gex & J. 21. 376 EQUITY JURISPRUDENCE. [CH. VII. tive at law ; the deed being executed and delivered in blank, it was held that legal title, and an equal equity remaining in the seller, shall prevail over the mere equity of the purchaser. 1 ] § 391. In all this class of cases, the doctrine proceeds upon the ground of constructive fraud, or of gross negligence, which in effect implies fraud. And, therefore, where the circumstances of the case repel any such inference, although there may be some degree of negligence, yet courts of equity will not grant relief. 2 It has, accordingly, been laid down by a very learned judge, that the cases on this subject go to this result only, that there must be positive fraud, or concealment, or negligence, so gross as to amount to constructive fraud. 3 And, if the intention be fraudu- lent, although not exactly pointing to the object accomplished ; yet the party will be bound to the same extent as if it had been exactly so pointed. 4 § 392. Upon the same principles, if a trustee should permit the title-deeds of the estate to go out of his possession for the purpose of fraud ; and, intending to defraud one person, he should defraud another, courts of equity will grant relief against him. 5 So, if a bond should be given upon an intended marriage, and to aid it ; and the marriage with that person should afterwards go off, and another marriage should take place upon the credit of that bond ; the bond would bind the party in the same way as it would if the original marriage had taken effect. 6 § 393. What circumstances will amount to undue concealment, or to misrepresentation, in cases of this sort, is a point more fit for a treatise of evidence, than for one of mere jurisdiction. But it has been held, that a first mortgagee's merely allowing the mortgagor to have the title-deeds, or a first mortgagee's witnessing a second mortgage-deed, but not knowing the contents, or even concealing from a second mortgagee information of a prior mort- gage, when he made application therefor, the intention of the party applying to lend money not being made known, are not of them- 1 Tayler v. Great Indian Peninsula * Evans v. Bicknell, 6 "Ves. 191, 192 ; Bailw. Co., 5 Jur. n. s. 1087.] Beckett v. Cordley, 1 Bro. Ch. 357 ; 1 2 Tourle e. Rand, 2 Bro. Ch. 652 ; 1 Fonbl. Eq. B. 1, ch. 3, § 4 ; Plumb v. Mad. Ch. Pr. 256, 257. Fluitt, 2 Anst. 432, 440. a Evans v. Bicknell, 6 Ves. 190, 191, & Evans v. Bicknell, 6 Ves. 174, 191 ; 192; Merewether v. Shaw, 2 Cox, 124. Clifford v. Brooke, 13 Ves. 132. See Hewitt v. Loosemore, 9 Eng. Law & 6 See Evans v. Bicknell, 6 Ves. 191. Eq. 35 ; Sugden on Vendors, ch. 16, p. 262, &c. (9th edit.). § 390 o-394.] CONSTRUCTIVE FRAUD. 377 selves sufficient to affect the first mortgagee with constructive fraud. 1 There must be other ingredients to give color and body to these circumstances ; for they may be compatible with entire innocence of intention and object. 2 Nothing but a voluntary, dis- tinct, and unjustifiable concurrence on the part of the first mort- gagee, in the mortgagor's retaining the title-deeds, is now deemed a sufficient reason for postponing his priority. And, in regard to the other acts above stated, they must be done under circum- stances which show a like concurrence and co-operation in some deceit upon the second mortgagee. 8 § 394. It is curious to trace how nearly the Roman law ap- proaches that of England on this subject; thus demonstrating that if they had not a common origin, at least each is derived from that strong sense of justice which must pervade all enlight- ened communities. It is an acknowledged principle of the Roman jurisprudence, that a creditor who consents to the sale, donation, or other alienation of the property of his debtor, which is pledged 1 Jeremy on Eq. Jurisd. B. 1, ch. 2, § 2, p. 193, 194, 195 ; 1 Mad. Ch. Pr. 429 to 431 ; id. 256 ; Plumb o. Fluitt, 2 Anst. 432; Evans v. Bicknell, 6 Ves. 174; Cothay v. Sydenham, 2 Bro. Ch. 391 ; West v. Reid, 2 Hare, 249, 259. In this last case Mr. Vice-Chancellor Wigram said : " In short, let the doctrine of con- structive notice be extended to all cases (it is, in fact, more confined in Plumb v. Fluitt, Evans v. Bicknell, Cothay v. Syd- enham, and other cases), but let it be ex- tended to all cases in which the purchaser has notice that the property is affected, or has notice of facts raising a presump- tion that it is so, and the doctrine is rea- sonable, though it may sometimes operate with severity. But once transgress the limits which that statement of the rule imposes, — once admit that a purchaser is to be affected with constructive notice of the contents of instruments not necessary to, nor presumptively connected with the title, only because by possibility they may affect it (for that may be predicated of al- most any instrument) ; and it is impossible in sound reasoning, to stop short of the conclusion that every purchaser is af- fected with constructive notice of the contents of every instrument, of the mere existence of which he has notice, — a purchaser must be presumed to in- vestigate the title of the property he purchases, and may, therefore, be pre- sumed to have examined every instru- ment forming a link, directly or by inference, in that title ; and that pre- sumption I take to be the foundation of the whole doctrine. But it is impossible to presume that a purchaser examines instruments not directly nor presump- tively connected with the title, because they may by possibility affect it." See Jackson u. Rowe, 2 Sim. & Stu. 472 ; Hodgson v. Dean, 2 Sim. & Stu. 221; Hewitt v. Loosemore, 9 Eng. Law. & Eq. 35; and see also Jones v. Smith (per Lord Chancellor on appeal), 1 Phill. 244. 2 See 1 Fonbl. Eq. B. 1, ch. 3, § 4, and notes (m) and (n) ; Evans v. Bicknell, 6 Ves. 172, 182, 190, 191, 192; Ibbotson v. Rhodes, 2 Vern. 554 ; Plumb v. Fluitt, 2 Anst. 432 ; Hewitt v. Loosemore, 9 Eng. Law & Eq. 35 ; Barnett v. Weston, 12 Ves. 133; Berry v. Mutual Ins. Co., 2 Johns. Ch. 603, 608 ; Tourle o. Rand, 2 Bro. Ch. 650, and Mr. Belt's note ; Peter v. Russell, 2 Vern. 726, and Mr. Raithby's note (1). 8 1 Fonbl. Eq. B. 1, ch. 3, § 4, note (n) ; Peter v. Russell, 2 Vern. 726, and Mr. Raithby's note (1); 1 Mad. Pr. Ch. 256, 257. 378 EQUITY JURISPRUDENCE. [CH. VII. or mortgaged for his debt, cannot assert his title against the pur- chaser, unless he reserves it ; for his loss of title cannot, under such circumstances, be asserted to be to his prejudice ; since it is by his consent ; and otherwise the purchaser would be deceived into the bargain. " Creditor, qui permittit rem venire, pignus di- mittit. 1 Si consensit venditioni creditor, liberatur hypotheca. 2 Si in venditione pignoris consenserit creditor, vel ut debitor hanc rem permutet, vel donet, vel in dotem det ; dicendum erit, pignus libe- rari, nisi salvS, causa pignoris sui consensit, vel venditioni vel ceeteris." 3 But as to what shall be deemed a consent, the Roman la,w is very guarded. For it is there said, that we are not to take for a consent of the creditor to an alienation of the pledge, the knowledge which he may have of it ; nor the silence which he may keep after he knows it ; as, if he knows, that his debtor is • about selling a house, which is mortgaged to him, ■ and he says nothing about it. But, in order to deprive him of his right, it is necessary that it should appear by some act that he knows what is doing to his prejudice, and consents to it ; or, that there is some ground to charge him with dishonesty for not having declared his right when he was urider an obligation to do it, by which the purchaser was misled. Thus, if upon the alienation, the debtor declares that the property is not encumbered, and the creditor knowingly signs the contract, as a party or witness, thereby ren- dering himself an accomplice in the false affirmation, he will be bound by the alienation. But the mere signature of the creditor, as a witness to a contract of alienation, will not of itself bind him, unless there are circumstances to show that he knew the contents, and acted disingenuously and dishonestly by the pur- chaser. 4 " Non videtur consensisse creditor, si, sciente eo, debitor rem vendiderit, cum ideo passus est venire, quod sciebat, ubique pignus sibi durare. Sed si subscripserit forte in tabulis emptionis consensisse videtur, nisi manifeste appareat deceptum esse." 5 § 395. Another class of constructive frauds consists of those where a person purchases with full notice of the legal or equitable title of other persons to the same property. In such cases he will not be permitted to protect himself against such claims ; but his 1 Dig. Lib. 50, tit. 17, 1. 158. * Domat, B. 3, tit. 1, § 7, art. 15, and 2 Dig. Lib. 20, tit. 6, 1. 7; Pothier, Strahan's note. Pand. Lib. 20, tit. 6, art. 2, n. 21. « Dig. Lib. 20, tit. 6, 1. 8, § 15 ; Pothier, » Dig. L*. 20, 1. 4, § 1. Pand. Lib. 20, tit. 6, art. 2, n. 20, 27. § 394-396.] CONSTRUCTIVE PEAUD. 379 own title mil be postponed, and made subservient to theirs. 1 It would be gross injustice to allow him to defeat the just rights of others by his own iniquitous bargain. He becomes, by such con- duct, particeps criminis with the fraudulent grantor ; and the rule of equity, as well as of law, is, " Dolus et f raus nemini patrocinari debent." 2 And in all such cases of purchasers with notice, courts of equity will hold the purchaser a trustee for the benefit of the persons whose rights he has thus sought to defraud or defeat. 3 Thus, if title-deeds should be deposited as a security for money (which would operate as an equitable mortgage), and a creditor, knowing the fact, should subsequently take a mortgage of the same property ; he would be postponed to the equitable mortgage of the prior creditor ; and the notice would raise a trust in him to the amount of such equitable mortgage. 4 So if a mortgagee, with notice of a trust, should get a conveyance from the trustee, in order to protect his mortgage, he would not be allowed to de- rive any benefit from it ; but he would be held to be subject to the original trust, in the same manner as the trustee. For it has been significantly said, that although a purchaser may buy an encumbrance, or lay hold on any plank to protect himself, yet he shall not protect himself by the taking of a conveyance from a trustee, with notice of the trust ; for he hereby becomes a trustee ; and he must not, to get a plank to save himself, be guilty of a breach of trust. 5 § 396. The same principle applies to cases of a contract to sell lands, or to grant leases thereof. If a subsequent purchaser has 1 Com. Dig. Chancery, 4 0. 1 ; Sug- would have included the land, cannot den on Vendors, ch. 16, § 5, 10 ; ch. 17, enforce his lien as against the mortgage, § 1, 2. An admitted exception (which is when afterwards reformed in equity, more fully adverted to in a, subsequent Young v. Cason, 48 Mis. 259. note) is the case of a dowress. A person, 2 2 Fonbl. Eq. B. 2, ch. 6, § 3; 3 Co. purchasing with a notice of her title, 78. may yet, by getting in a prior legal title 3 Ibid. ; 1 Fonbl. Eq. B. 2, ch. 6, § 2 ; or term, protect himself against her title. Murray v. Ballou, 1 Johns. Ch. 566; Mur- This is an anomaly, but it is now so firmly ray v. Finster, 2 Johns. Ch. 158 ; Maun- established that it cannot be shaken. See drell it. Maundrell, 10 Ves. 260, 261, 270. Swannock v. Lefford, Ambler, 6, and Mr. i Birch v. Ellames, 2 Anst. 427 ; Plumb Blunt's note, and the note of Lord Hard- v. Fluitt,2 Anst. 433. [See Agra Bank v. wicke's judgment in Co. Litt. 208 o. Bad- Barry, Ir. L. B. 6 Eq. 128.] nor v. Vanderberdy, Show. Pari. Cas. 60 ; 6 Saunders v. Dehew, 2 Vern. 271 ; 2 Maundrell v. Maundrell, 10 Ves. 271, 272 ; Fonbl. Eq. B. 2, ch. 6, § 2 ; post, § 413, 414, Wynn v. Williams, 5 Ves. 130 ; Male v. 421. See also Poster v. Blackstone, 1 Smith, Jacob, 497 ; ante, § 57 a ; post, § 410, Mylne & Keen, 297 ; Timson v. Bamsbot- note. [So a judgment creditor, with no- torn, 2 Keen, 35. tice that but for mistake a prior mortgage 380 EQUITY JURISPRUDENCE. [CH. VII. notice of the contract, he is liable to the same equity, and stands in the same place, and is bound to do the same acts, which the person who contracted, and whom he represents, would be bound to do. 1 § 397. It is upon the same ground, that, in countries where the registration of conveyances is required, in order to make them perfect titles against subsequent purchasers, if a subsequent pur- chaser has notice, at the time of his purchase, of any prior un- registered conveyance, he shall not be permitted to avail himself of his title against that prior conveyance. 2 This has been long the settled doctrine in courts of equity ; and it is often applied in America, although not in England, in courts of law, as a just exposition of the registry acts. 3 The object of all acts of this sort is, to secure subsequent purchasers and mortgagees against prior secret conveyances and encumbrances. But where such purchasers and mortgagees have notice of any prior conveyance, it is impossible to hold that it is a secret conveyance, by which they are prejudiced. On the other hand, the neglect to register a prior conveyance is often a matter of mistake, or of overween- ing confidence in the grantor ; and it would be a manifest fraud, to allow him to avail himself of the power, by any connivance with others, to defeat such prior conveyance. 4 The ground of the doctrine is (as Lord Hardwicke has remarked) plainly this : " That the taking of a legal estate, after notice of a prior right, 1 Taylor v. Stibbert, 2 Ves. Jr. 438; Mason, 285; Coppin v. Fernyhougb, 2 Davis v. Earl of Strathmore. 16 Ves. 419, Bro. Ch. 291 ; Sugden on Vendors, ch. 16. 428, 429; Underwood v. Courtown, 2 Sch. [Benham v. Keane, 1 J. & H. 685; Rol- & Lefr. 64 ; Mackreth v. Symraons, 15 land v. Hart, L. B. 6 Cb. App. 678.] Ves. 350; Jeremy on Eq. Jurisd. B. 1, 8 Doe d. Robinson v. Alsop, 5 B. & eh. 2, § 2, p. 192, &c. ; Com. Dig. Chan- Aid. 142 ; Norcross v. Widgery, 2 Mass. eery, 4 C. 1. 506 ; Bigelow's Dig. Conveyance, P. and 2 Sugden on Vendors, ch. 16, § 5, 10; note; Jackson v. Sharp, 9 Johns. 163; ch. 17, § 1, 2 ; 1 Fonbl. Eq. B. 1, ch. 1, Jackson v. Burgott, 10 Johns. 457 ; Jack- § 3, note (h) ; 1 Mad. Pr. Ch. 260 ; Bushell son o. West, 10 Johns. 466 ; Johnson's v. Bushell, 1 Sch. & Lefr. 99 to 108 ; Eyre Dig. Deed, VIII. ; Farnsworth i\ Childs, 4 v. Dolphin, 2 B. & Beatt. 302; Blades v. Mass. 637. See, as to the registry acts, 4 Blades, 1 Eq. Abridg. 358; Worseley v. Kent, Coram. Lect. 58, p. 168 to 194 (4th De Mattos, 1 Burr. 474, 475; Forbes edit). v. Dennister, 1 Bro. Pari. Cas. 425; Shel- * Le Neve v. Le Neve, 3 Atk. 646; 1 don v. Coxe, 2 Eden, 224; Le Neve v. Ves. 64; Ambler, 436, and Blunt's note, Le Neve, 3 Atk. 646; s. o. 1 Ves. 64; ibid. ; Belt's Suppl. 50 ; Bushell v. Bushell, Amb. 436 ; 2 White & Tudor's Eq. Lead. 1 Sch. & Lefr. 98, 99, 100, 101, 102 ; Eyre Cas. 21, and notes ; Drew v. Lord Nor- v. Dolphin, 2 Ball & Beatt. 299, 300, 302; bury, 9 Irish Eq. 171 ; Chandos v. Brown- 1 Mad. Pr. Ch. 260, 261 ; Toulmin v. low, 2 Eidg. Pari. 428; Bean u. Smith, 2 Steere, 3 Meriv. 209, 224. § 396-399.] CONSTRUCTIVE FRAUD. 381 makes a person a maid fide purchaser ; and not that he is not a purchaser for a valuable consideration in every other respect. This is a species of fraud and dolus malus itself ; for he knew the first purchaser had the clear right of the estate ; and, after know- ing that, he takes away the right of another person, by getting the legal title. 1 And this exactly agrees with the definition of the ciyil law of dolus malus." 2 " Now, if a person does not stop his hand, but gets the legal estate, when he knows the equity was in another macMnatur ad circumveniendum." 3 § 398. This doctrine, as to postponing registered to unregis- tered conveyances upon the ground of notice, has broken in upon the policy of the registration acts in no small degree ; for a regis- tered conveyance stands upon a different footing from an ordinary conveyance. It has, indeed, been greatly doubted, whether courts ought ever to have suffered the question of notice to be agitated as against a party who has duly registered his conveyance. But they have said that fraud shall not be permitted to prevail. There is, however, this qualification upon the doctrine, that it shall be available only in cases where the notice is so clearly proved as to make it fraudulent in the purchaser to take and register a con- veyance, in prejudice to the known title of the other party. 4 § 399. What shall constitute notice, in cases of subsequent purchasers, is a point of some nicety, and resolves itself, some- times into matter of fact, and sometimes into matter of law. 5 Notice may be either actual and positive, or it may be implied and constructive. 6 Actual notice requires no definition; for in 1 Le Neve v. Le Neve, 3 Atk. 646, and 8 Sim. 156, 157; s. c. 3 Mylne & Craig, cases before cited. 112. See, as to the effect of notice, by an 2 Dig. Lib. 4, tit. 3, 1. 2 ; id. Lib. 2, tit. assignee of an equitable interest, to the 14, § 9. legal holder of the property, to give pri- 8 Dig. Lib. 4, tit. 3, 1. 2; id. Lib. 3, tit. ority of right over prior assignees, who 14, § 9. have given no notice, Timson v. Ramsbot- 4 Wyatt v. Barwell, 19 Ves. 439; Sug- torn, 2 Keen, 35; Foster v. Blackstone, 1 den on Vendors, ch. 16, § 5, 10. There Mylne & Keen, 297 ; post, § 421 a, 1035 a; are some cases in which notice does not [Chadwick v. Turner, L. E. 1 Ch. App. affect a purchaser. Thus, where an es- 310; Holland v. Hart, L. R. 6 Ch. App, tate is limited to such uses as A. shall 678]. , appoint; and a judgment is obtained 6 Com. Dig. Chancery, 4 C. 2. See against him, and he then appoints the es- Dey v. Dunham, 2 Johns. Ch. 190 ; Jones tate to B., who has notice of the judg- v. Smith, 1 Hare, 43 ; post, § 1035, 1047, ment ; B. will, notwithstanding the notice, 1057. take the estate free from the lien of the 6 Sugden on Vendors, ch. 17, § 1, 2. judgment ; for he takes under the deed of In a treatise like the present, it is imprac- appointment, and of course by a title ticable to do more than to glance at topics prior to the judgment. Skeeles v. Shearly, of this nature. The learned reader will 382 EQUITY JURISPRUDENCE. [CH. VII. that case knowledge of the fact is brought directly home to the party. Constructive notice is in its nature no more than evidence of notice, the presumption of which is so violent, that the court will not even allow of its being controverted. 1 [Or, as has been elsewhere denned, constructive notice is knowledge imputed by the court on presumption, too strong to be rebutted, that the knowledge must have been communicated. 2 ] find full information on the subject in treatises which profess to examine it at large. See Sugden on Vendors, ch. 16 and 17 (9th edit.) ; Newland on Contracts, ch. 36, p. 504 to 516. 1 Plumb o. Fluitt, 2 Anst. 438, per Eyre, C. B. ; Kennedy v. Green, 3 M. & K. 719; Wilde v. Gibson, 1 House of Lords Cases, 605 ; 4 Kent, Coram. Lect. 58, p. 179, 180 (4th edit.). See also Jones v. Smith, 1 Hare, 43 ; Meux v. Bell, 1 Hare, 73; West v. Reid, 2 Hare, 257. In Jones v. Smith, 1 Hare, 43, Mr. Vice- Chancellor Wigram examined the cases as to constructive notice very largely, and upon that occasion said : " It is, indeed, scarce'y possible to declare, a priori, what shall be deemed constructive notice, be- cause, unquestionably, that which would not affect one man may be abundantly sufficient to affect another. But I believe I may, with sufficient accuracy for my present purpose, and without danger, as- sert, that the cases in which constructive notice has been established, resolve them- selves into two classes : first, cases in which the party charged has had actual notice, that the property in dispute was, in fact, charged, encumbered, or in some way affected, and the court has thereupon bound him with constructive notice of facts and instruments, to a knowledge of which he would have been led by an in- quiry after the charge, encumbrance, or other circumstance affecting the property of which he had actual notice ; and, sec- ondly, eases in which the court has been satisfied from the evidence before it, that the party charged had designedly ab- stained from inquiry for the very purpose of avoiding notice. How reluctantly the court has applied, and within what strict limits it has confined the latter class of cases, I shall presently consider. The proposition of law, upon which the former class of cases proceeds, is not, that the party charged had notice of a fact or in- strument, which, in truth, related to the subject in dispute without his knowing that such was the case, but that he had actual notice that it did so relate. The proposition of law, upon which this sec- ond class proceeds, is not that the party charged had incautiously neglected to make inquiries, but that he had design- edly abstained from such inquiries for the purpose of avoiding knowledge, — a pur- pose which, if proved, would clearly show that he had a suspicion of the truth, and a fraudulent determination not to learn it. If, in short, there is not actual notice, that the property is in some way affected, and no fraudulent turning away from a knowledge of the facts, which the res gestce would suggest to a prudent mind ; if mere want of caution, as distinguished from fraudulent and wilful blindness, is all that can be imputed to the purchaser, — then the doctrine of constructive notice will not apply ; there the purchaser will in equity be considered, as in fact he is, a honafide purchaser without notice. This is clearly Sir Edward Sugden's opinion (Vend, and Purch. Vol. 3, p. 471, 472, ed. 10) ; and with that sanction I have no hesitation in saying it is mine also." Affirmed on appeal, 1 Phillips, 244. See also Gibson v. Ingo, 6 Hare, 112 ; Farrow v. Eees, 4 Beav. 18 ; Taylor v. Baker, 5 Price, 306 ; Penny o. Watts, 1 Mac. & G. 150. [* See this subject extensively dis- cussed by Vice-Chancellor Stuart, in Ogilvie v. Jeaffreson, 6 Jur. n. s. 970, where it is held that one has constructive notice of such facts as he might have as- certained, but for his own want of care and prudence.] 2 [Hewitt v. Loosemore, 9 Hare, 449 ; s. c. 9 Eng. Law & Eq. 35; Sogers v. Jones, 8 New Hamp. 264 ; Griffith v. Grif- fith, 1 Hoff. Ch. 153.] § 399, 400.] CONSTRUCTIVE FRAUD. 383 § 400. An illustration of this doctrine of constructive notice is where the party has possession or knowledge of a deed, under which he claims his title, and it recites another deed, which shows a title in some other person, there the court will presume him to have notice of the contents of the latter deed, and will not per- mit him to introduce evidence to disprove it. 1 And generally it may be stated, as a rule on this subject, that where a purchaser cannot make out a title, but by a deed which leads him to another fact, he shall be presumed to have knowledge of that fact. 2 So, the purchaser is, in like manner, supposed to have knowledge of the instrument tinder which the party with whom he contracts, as executor, or trustee, or appointee, derives his power. 3 In- deed, the doctrine is still broader; for, whatever is sufficient to put a party upon inquiry (that is, whatever has a reasonable cer- tainty as to time, place, circumstances, and persons), is, in equity, held to be good notice to bind him. 4 Thus, notice of a lease will 1 Ibid.; Cuyler v. Brandt, 2 Caines, Cas. in Err. 326 ; 2 Fonbl. Eq. B. 2, eh. 6, § 3, note (m) ; Eyre v. Dolphin, 2 B. & Beatt. 301, 302. [So it seems although the contents are misrecited. McGavock v. Deery, 1 Coldw. (Tenn.) 265.] 2 2 Fonbl. Eq. B. 3, ch. 3, § 1, note (b) ; Mertins v. Jolliffe, Ambler, 311, 314 ; Marr v. Bennett, 2 Ch. Cas. 246; Sugden on Vendors, ch. 16 ; 2 Eonbl. Eq. B. 2, ch. 6, § 3, and note (m) ; Com. Dig. Chancery, 4 C. 2. This doctrine, however, is to be received with some qualifications. For if a man purchases an estate under a deed, which happens to relate also to other lands not comprised in that purchase, and afterwards he purchases the other lands, to which an apparent title is made, inde- pendent of that deed, the former notice of the deed will not itself affect him in the second transaction ; for he was not bound to carry in his recollection those parts of a deed which had no relation to the particular purchase he was then about to make, nor to take notice of more of the deed than affected his then purchase. Hamilton v. Royse, 2 Sch. & Lefr. 327. In short, he is bound to take notice of those things only in the deed, which affect his present purchase, not any future pur- chase. Mertins v. Jolliffe, Ambler, 811. [See Van Doren v. Robinson, 1 C. E. Green, 256. But though a deed dis- closing a trust is in the chain of title, and would have to be shown in defence of an action at law, the defence of bond fide purchaser without notice will avail in equity, where knowledge of it was fraud- ulently withheld. Pilcher v. Rawlins, L. R. 7 Ch. App. 259; s. c. 11 Eq. 53.] * 2 Eonbl. Eq. B. 2, ch. 6, § 3, note (m) ; id. B. 3, ch. 3, § 1, note (b) ; Mead v. Lord Orrery, 3 Atk. 238; Drapers' Company v. Yardly, 2 Vern. 662 ; Dunch v. Kent, 1 Vern. 319 ; Jackson o. Neely, 10 Johns. 374 ; Sugden on Vendors, ch. 17, § 2. See post, § 422. [So one who takes as a pledge stock standing in the name of "A. B., Trustee," is put on in- quiry as to the character and limitations of the trust, and acts at his peril. Shaw i). Spencer, 100 Mass. 382. Compare Ash- ton v. Atlantic Bank, 3 Allen, 217; 2 Perry on Trusts, § 814, 815, and cases cited.] 4 2 Eonbl. Eq. B. 2, ch. 6, § 3, and note (m) ; B. 3, ch. 3, § 1, and note (b) ; Smith v. Low, 1 Atk. 490 ; Ferrars v. Cherry, 2 Vern. 384 ; Daniels v. Davison, 16 Ves. 250 ; Howarth v. Deem, 1 Eden, 351, and Mr. Eden's note, ib. ; Sterry v. Arden, 1 Johns. Ch. 267 ; Surman v. Barlow, 2 Eden, 167 ; Parker v. Brooke, 9 Ves. 583 ; Green v. Slayter, 4 Johns. Ch. 38 ; Eyre v. Dolphin, 2 B. & Beatt. 301, 302 ; Com. Dig. Chancery, 4 C. 2. [See Coy v. Coy, 15 Minn. 119.] 384 EQUITY JURISPRUDENCE. [CH. Til. be notice of its contents. 1 So, if a person should purchase an estate from the owner, knowing it to be in the possession of ten- ants, he is bound to inquire into the estate 2 which these tenants have, and, therefore, he is affected with notice of all the facts as to their estates. 3 [* § 400 a. So where, upon an agreement to sell part of a vendor's land, the vendor and purchaser entered into mutual covenants, prohibiting building, except in a specified manner, on the sold and unsold parts, it was held that a subsequent owner of the unsold part, claiming through the grantor by means of deeds, one of which referred to the deed containing the prohibitory clause, but not to the clause, was bound by the prohibition, in equity; 4 and that a clause in the, contract giving liquidated damages, on the failure of the grantor to perform covenants on his part, did not preclude the interference of a court of equity by interlocutory injunction. § 400 b. As to the time at which one must receive notice to affect him in equity, it is in general sufficient if it be received before he has parted with his money, or placed himself in a posi- tion where he cannot resist the payment, as would be the case where the rights of third parties had attached. 5 And it is not in- dispensable to the validity of notice of an equitable interest, that 1 Hall v. Smith, 14 Ves. 426. chaser, which is to fix him with implied 2 [See Baynard v. Norris, 3 Gill, 468 ; notice, if he does not pursue his inquiries Dahl v. Page, 2 Green, Ch. 143 ; James through every derivative lessee, until he v. Lichfield, L. K. 9 Eq. 51.] arrives at the person entitled to the orig- 8 Taylor v. Stibbert, 2 Ves. Jr. 440 ; inal lease, which can alone convey to him Spunner «. Walsh, 10 Irish, Eq. 380; information of the covenant." See also Daniels v. Davison, 16 Ves. 249, 252 ; Elagg v. Mann, 2 Sumner, 486, 554, 555 ; Smith v. Low, 1 Atk. 489; Allen v. An- Blaisdell v. Stevens, 16 Vt. 179; 17 id. thony, 1 Meriv. 282; 2 Fonbl. Eq. B. 2, 329; Westervelt v. Huff, 2 Sandf. 98; ch. 6, § 3, and note (m) ; Meux v. Maltby, Hood v. Fahnstock, 1 Barr, 470. [So a 2 Swanst. 281 ; Chesterman v. Gardner, tenant is fixed with notice of all cove- 5 Johns. Ch. 29 ; Hanbury v. Litchfield, 2 nants of his lessor. Eielden v. Slater, L. Mylne & Keen, 629, 632, 633. In this last E. 7 Eq. 523. But see Carter v. Williams, case, the Master of the Rolls (Sir C. C. L. R. 9 Eq. 678. So the condition of the Pepys) said: "It is true, that where a premises may be notice of a right of way tenant is in possession of the premises, by necessity. Davies v. Sear, L. R. 7 Eq. a purchaser has implied notice of the 427.] nature of his title. But if, at the time 4 [* Coles v. Sims, 5 De G., M. & G. 1.] of his purchase, the tenant in possession 5 Collinson v. Lister, 20 Beavan, 356 ; is not the original lessee, but merely holds 8. c. on appeals, 7 De G., M. &. G. 634 ; under a derivative lease, and has no [Bennett v. Titherington, 6 Bush (Ky.), knowledge of the covenant contained in 192 ; Wells ?;. Morrow, 38 Ala. 125 j the original lease, it has never been con- Wilson v. Hunter, 30 Ind. 466]. strued want of due diligence in the pur- § 400-400 &] CONSTRUCTIVE FRAUD. 385 it should come from the party, or his agent. It is sufficient if it be derived aliunde ; provided it be of a character likely to gain credence. 1 In regard to the inquiry required of a party, it should be such as a prudent and careful man would exercise in his own business of equal importance. 2 Accordingly, where the mortgagee is informed that there are charges affecting the estate, and is cog- nizant of two only-, he cannot claim to be a purchaser without notice of other charges, because he believes that the two, which satisfy the word charges, are all the charges upon it. He is bound to inquire whether there are any others. The rule with respect to the consequences of a purchaser abstaining from making in- quiries does not depend exclusively upon a fraudulent motive ; a man may abstain from mere heedlessness, or stupidity, and be none the less responsible for the consequences ; but if he make reasonable inquiry, and is deterred by a false answer, he is excus- able, if it be of a character to delude a prudent man. But if he make no inquiry, he is not to be excused upon the ground that a .false answer, or one leading to no result, would have been given if he had inquired. This, cannot be known. 3 § 400 c. In a somewhat recent case, 4 where one purchased shares in a joint-stock company, upon the representations of a prospectus different from the articles of association, and after he had knowl- edge of the articles, endeavored unsuccessfully to sell his shares", it was held that he could not thereafter repudiate the shares on the ground of fraud ; for the reason that it was his duty to repudi- 1 Rawbone's Bequest, 3 Kay & J. 300 ; Ware v. Lord Egmont, 4 De G., M. & G. Smith e. Smith, 2 Cr. & M. 231 ; [Lloyd 460. In Jones v. Williams, the Master v. Banks, L. R. 3 Ch. App. 488 ; s. c. 4 of the Rolls says of the case of Kennedy Eq. 222 ; In re Tiehener, 35 Beav. 317. v. Green, 3 My. & Keen, 699 : " It is But see In re Brown's Trusts, L. R. 5 Eq. always the first case cited in all causes 88.] depending on questions of motive; but, 2 Briggs v. Taylor, 28 Vt. 180. The in truth, it rarely has any application to rule of diligence is here discussed, and any one of them." This is indeed a the English and American cases cited, sharp comment, but too pertinent to be more at length than we could here re- lightly regarded. [See Shaw v. Spencer, peat, without occupying too much space. 100 Mass. 382. But where it is reason- [As to the English rule making non- ably certain that the inquiry would have -inquiry for title-deeds constructive notice had no result, it seems that the party is of claim of one with whom they were not to be treated as having notice, be- deposited, even as against one taking title cause he has not inquired. Carter v. Wil- under a registered conveyance, see liams, L. R. 9 Eq. 678. See Bacon v. Wormald v. Maitland, 35 L. J. Ch. v. s. O'Connor, 25 Tex. 213.] 69 ; Agra Bank v. Barry, Ir. L. R. 6 Ch. * Briggs ex parte, 12 Jur. ». s. 322 ; 128.] s. c. Law Rep. 1 Eq. 483, 14 Law T. N. s. 8 Jones v. Williams, 24 Beavan, 47 ; 39: eq. jub. — vol. I. 26 386 EQUITY JURISPRUDENCE. [CH. VII. ate them at once upon the discovery of 'fraud, if he claimed to do it at all. And Lord Romilly here intimates an opinion, that inas- much as the prospectus made express reference to the articles the purchaser was affected with notice of their contents. But in a later case, 1 where the purchaser of shares was induced to make the purchase by representations in the prospectus which the pro- moters had no reason to believe true and which turned out to be untrue, although the articles were referred to in the prospectus, Vice-Chancellor Wood held that the purchaser was not bound to go " upon an errand of inquiry whether the statements were cor- rect or not." " He was entitled to rely upon the representations made to him as being true to the knowledge of the directors," and to believe that the promoters had made proper inquiry to learn the truth.] § 400 d. But, in a great variety of cases, it must necessarily be matter of no inconsiderable doubt and difficulty to decide what cir- cumstances are sufficient to put a party upon inquiry. Vague and indeterminate rumor or suspicion is quite too loose and inconven-- ient in practice to be admitted to be sufficient. 2 But there will be found almost infinite gradations of presumption between such rumor, or suspicion, and that certainty as to facts, which no mind could hesitate to pronounce enough to call for further inquiry, and to put the party upon his diligence. No general rule can, there- fore, be laid down to govern such cases. Each must depend upon its own circumstances. 3 There is no case which goes the length of saying, that a failure of the utmost circumspection shall have the same effect of postponing a party, as if he were guilty of fraud or wilful neglect, or had positive notice. 4 And, although a mis- take of law, upon the construction of a deed or contract, will not alone discharge a purchaser from the legal effects of notice of such deed or contract ; yet there may be a case of such doubtful equity 1 Smith v. The Reese River Mining note (b) ; Eyre v. Dolphin, 2 B. & Beatt Co., 12 Jur. n. s. 616 ; s. o. Law Rep. 2 301 ; Hine v. Dodd, 2 Atk. 275. Set Eq. 264, 14 W. R. 606. See Central Jones v. Smith, The English Jurist, May Railway of Venezuela v. Kisch, L. R. 2 27th, 1845, p. 431 ; Flagg v. Mann, 2 H.L. 99.] Sumner, 489, 549, 560. 2 Sugden on Vendors, ch. 17 ; Wild- * Plumb v. Fluitt, 2 Anst. 433, 440. grove v. Wayland, Godb. 147 ; Jolland v. See Dey v. Dunham, 2 Johns. Ch. 190, Stainbridge, 3 Ves. 478 ; [Maul v, Rider, 191 ; Hewitt v. Loosemore, 9 Eng. Law 69 Penn. St. 167 ; Richardson v. Smith, & Eq. 35 ; Worthington v. Morgan, 16 11 Allen, 134]. Sim. 547. * See 2 Fonbl. Eq. B. 3, ch. 3, § 1, § 400 C-402.] CONSTRUCTIVE FRAUD. 387 under the circumstances, that it ought not to be enforced against such a purchaser. 1 The mere fact, that the assignees of an -insol- vent debtor have made a sale of the estate at auction, under cir- cumstances of negligence on their part, will not affect the purchaser with notice, as such circumstances are collateral to the question of title. Even if before he takes the conveyance, he have notice of such circumstances, yet if he have purchased bond fide, his title is not necessarily voidable. But the question must depend in a great measure upon this, whether the conduct of the assignee be such a gross and palpable breach of duty as ought justly to avoid the sale. 2 § 401. How far the registration of a conveyance, in countries where such registration is authorized and required by law, shall operate as constructive notice to subsequent purchasers, by mere presumption of law, independent of any actual notice, has been much discussed both in England and in America. It is not doubted in either country that a prior conveyance duly registered, operates to give full effect to the legal and equitable estate conveyed thereby, against subsequent conveyances of the same legal and equitable estate. 3 But the question becomes important as to other collateral effects, such as defeating the right of tacking of mortgages, and other incidentally accruing equities between the different pur- chasers. For, if the mere registry, in such cases, without actual knowledge of the conveyance, operates as constructive notice, it shuts out many of those equities which otherwise might have an obligatory priority. 4 It has been truly remarked, that there is a material difference between actual notice, and the operation of the registry acts. Actual notice may bind the conscience of the parties ; the operation of the registry acts may bind their title, but not their conscience. 6 § 402. In England, the doctrine seems at length to be settled, that the mere registration of a conveyance shall not be deemed 1 Cordwill v. Mackrill, 2 Eden, 344, p. 148 ; Monteflore v. Browne, 7 H. of L. 348; Parker v. Brooke, 9 Ves. 683, 588 ; Cas. 241, 269.] 2 Fonbl. Eq. B. 2, ch. 6, § 3, and note ; 8 Wrightson v. Hudson, 2 Eq. Abr. Bovey v. Smith, 1 Vern. 144, 149 ; Walk- 609, PI. 7. er v. Smallwood, Amb. 676. 4 Newland on Contracts, eh. 36, p. 2 Borell v. Dann, 2 Hare, 450 to 455. 508. [The latest English cases tend to restrict 6 Underwood v. Courtown, 2 Sch. & the doctrine of constructive notice. Atty.- Lef r. 66. See Latouche v. Dunsany, 1 Gen. v. Stephens, 6 De G., M. & G. Ill, Sch. & Lefr. 137 ; Dey v. Dunham, 2 Johns. Ch, 190, 191. 388 EQUITY JURISPBUDENCE. [CH. VII. constructive notice to subsequent purchasers, but that actual notice must be brought home to the party, amounting to fraud. 1 The subject certainly is attended with no inconsiderable difficulty. Some learned judges have expressed a doubt, whether courts of equity ought not to have said, that in all cases of a public regis- try, which is a known repository for conveyances, a subsequent purchaser ought to search, or be bound by notice of the registry, in the same way as he would be by a decree in equity, or by a judgment at law. 2 Other learned judges have intimated a differ- ent opinion ; assigning as a reason, that if the registration of the conveyance should be held constructive notice, it must be notice of all that is contained in the conveyance ; and, then, subsequent purchasers would be bound to inquire after the contents, the incon- veniences of which cannot but be deemed exceedingly great. 3 The question seems first to have arisen in a case of the tacking of mortgages, about the year 1730 ; and it was then decided, by Lord Chancellor King, that the mere registration of a second mortgage did not prevent a prior mortgagor from tacking a third mortgage, when he had no actual notice of the existence of the second mort- gage. 4 This decision has ever since been steadily adhered to, perhaps more from its having become a rule of property, than from a sense of its intrinsic propriety. § 403. In America, however, the doctrine has been differently settled ; and it is uniformly held, that the registration of a con- veyance operates as constructive notice to all subsequent purchasers of any estate, legal or equitable, in the same property. 6 The rea- soning upon which this doctrine is founded, is the obvious policy of the registry acts, the duty of the party purchasing under such circumstances to search for prior encumbrances, the means of which search are w'ithin his power, and the danger (so forcibly alluded to by Lord Hardwicke) of letting in parol proof of notice, or want of notice, of the actual existence of the conveyance. 6 ' Wyatt v. Barwell, 19 Ves. 435 ; Jol- Lefr. 64, 66; Pentland v. Stokes, 2 B. & land v. Stainbridge, 3 Ves. 477; Com. Beatt. 75. Dig. Chancery, 4 C. 1. * Bedford v. Backhouse, 2 Eq. Abridg. 2 Morecock v. Dickens, Amb. 480 ; 615, PI. 12 ; s. p. Wrightson v. Hudson, 2 Hine v. Dodd, 2 Atk. 275 ; Parkist v. Al- Eq. Abridg. 609, PI. 7 ; Cator v. Cooly, 1 exander, 1 Johns. Ch. 399; Sugden on Cox, 182; Wiseman o. Westland, 1 Y. & Vend. ch. 16, 17. Jerv. 117. 8 Latouche v. Dunsany, 1 Sch. & Lefr. 5 Parkhurst v. Alexander, 1 Johns. Ch. 157 ; Underwood v. Courtown, 2 Sch. & 394 ; Schutt v. Large, 6 Barb. 373. 6 Hine v. Dodd, 2 Atk. 275. § 402-405.] CONSTEUCTIVE FEAUD. 389 The American doctrine certainly has the advantage of certainty and universality of application ; and it imposes upon subsequent purchasers a "reasonable degree of diligence only in examining their titles to estates. 1 § 404. But this doctrine, as to the registration of deeds, being constructive notice to all subsequent purchasers, is not to be under- stood of all deeds and conveyances which may be de facto regis- tered, but of such only as are authorized and required by law to be registered, and are duly registered in compliance with law. If they are not authorized or required to be registered, 2 or the registry itself is not in compliance with the law, 3 the act of regis- tration is treated as a mere nullity ; and, then, the subsequent pur- chaser is affected only by such actual notice as would amount to a fraud. 4 § 405. It is upon similar grounds, that every man is presumed to be attentive to what passes in the courts of justice of the state or sovereignty where he resides. And, therefore, a purchase made of property actually in litigation, pendente lite, for a valuable con- sideration, and without any express or implied notice in point of fact, affects the purchaser in the same manner as if he had such notice ; and he will accordingly be bound by the judgment or decree in the suit. 6 1 Johnson v. Stagg, 2 Johns. 510 ; cording. Stevens v. Hampton, 46 Mis. 404 ; Frost v. Beekman, 1 Johns. Ch. 288, 299 ; Bishop v. Schneider, 46 Mis. 472 ; Wood v. s. c. 18 Johns. 544 ; Parkist v. Alexander, Cochrane, 39 Vt. 544 ; Polk v. Cosgrove, 1 Johns. Ch. 394. The better opinion 4 Biss. 437. So where deed has no seal, also seems to be, that the registration of BacouiLlat v. Sansevain, 32 Cal. 376 ; Same an equitable mortgage, or title, or en- v. Bene, ib. 450. And see St. John v. Con- cumbrance, is notice to a subsequent pur- ger, 40 111. 535. So the record of a deed chaser, as much as if it were a, legal from a grantor whose title-deed is not on security or title. Parkist v. Alexander, record, is not constructive notice to those 1 Johns. Ch. 398, 399, and the cases there taking title from the record owner. See cited. [Digman v. McCollum, 47 Mis. Ely v. Wilcox, 20 Wise. 523; Maul v. 372.] Eider, 59 Penn. St. 167. So a mortgagee 2 Villard v. Roberts, 1 Strobh. Eq. 393 ; is not affected with constructive notice Lewis v. Baird, 3 McLean, 56. of the recorded subsequent deeds of his 8 Tillman v. Cowand, 12 S. & M. 262. mortgagor. George v. Wood, 9 Allen, 80 ; 4 Ibid. ; Underwood v. Courtown, 2 Cooper v. Bigley, 13 Mich. 463. The rec- Sch. & Lefr. 68 ; Latouche v. Dunsany, ord of a deed that misdescribes the prem- 1 Sch. & Lefr. 157 ; Astor v. Wells, 4 ises in some particulars has been held to Wheat. 466; Frost v. Beekman, 1 Johns, be sufficient to put a subsequent purchaser Ch. 300 ; Lessee of Heister v. Fortner, upon his inquiry. Partridge v. Smith, 2 2 Binn. 40; Farmer's Loan & Trust Co. Biss. 133.] v. Maltby, 8 Paige, 361. [So of record of 5 Com. Dig. Chancery, 4 C. 3 and 4 an unacknowledged deed, or on its face 2 Fonbl. Eq. B. 2, ch. 6, § 3, note (n) defectively acknowledged, where acknowl- Sorrell v. Carpenter, 2 P. Will. 482 2dgment is a statute prerequisite to re- Worsley v. Earl of Scarborough, 3 Atk. 390 EQUITY JURISPRUDENCE. [CH. VII. § 406. Ordinarily, it is true, that the decree of a court binds only the parties and their privies in representation or estate. But he who purchases during the pendency of a suit, is held bound by the decree that may be made against the person from whom. he derives title. The litigating parties are exempted from taking any notice of the title so acquired ; and such purchaser need not be made a party to the suit. 1 Where there is a real and fair purchase, without any notice, the rule may operate very hardly. 2 But it is a rule founded upon a great public policy ; for otherwise, alienations made during a suit might defeat its whole purpose, and there would be no end to litigation. 3 And hence arises the maxim, pendente lite, nihil innovetur ; the effect of which is not to annul the conveyance, but only to render it subservient to the rights of the parties in the litigation. 4 As to the rights of these parties, the conveyance is treated as if it never had any existence ; and it does not vary them. 5 A lis pendens, however, being only a general notice of an equity to all the world, it does not affect any particu- lar person with a fraud, unless such person had also special notice of the title in dispute in the suit. 6 If, therefore, the right to re- Johns. Ch. 566; Murray u. Finster, 2 Johns. Ch. 155; Griffith v. Griffith, 1 Hoff. Ch. 153. [See Sumner v. Waugh, 56 111. 531; Haven v. Adams, 8 Allen, 363 ; Leitch v. Wells, 48 Barb. 637 ; Baird v. Baird, Phil. (N. C.) Eq. 317; Edwards v. Banksmith, 35 Geo. 213. And it seems to make no difference, that the lands are in a different county from that where the suit is pending. Wickliffe's Ex'or v. Breckenridge's Heirs, 1 Bush (Ky.), 427. Lis pendens continues until final order, but the fact that the decree re- quires annual accounts, will not, it seems, keep the cause alive as lis pendens, espe- cially where no accounts are actually filed. Dudley v. Witter, 46 Ala. 664. As to what proceedings constitute Us pendens, see Porter u. Barclay, 18 Ohio (n. s.), 546; Allen u. Atchison, 26 Tex. 616; August v. Seeskind, 6 Cold. (Tenn.) 166; In re Barned's Banking Co., L. B. 2 Ch. App. 171." Filing a bill without service of the subpoena is lis pendens. Drew v. Norbury, 9 W. Eq. 176 ; Leitch v. Wells, 48 N. Y. 591.] 6 Mead v. Lord Orrery, 3 Atk. 242, 24.3; 2 Fonbl. Eq. B. 2, ch. 6, § 3, note (n) ; id. B. 3, § 1, note (b). 392 ; Bishop of Winchester v. Paine, 11 Ves. 194; Garth v. Ward, 2 Atk. 175; Mead o. Lord Orrery, 3 Atk. 242; Gas- keld v. Durdin, 2 B. & Beatt. 169 ; Moore v. Macnamara, 2 B. & Beatt. 186 ; Murray v. Ballou, 1 Johns. Ch. 566. See Lewis v. Mew, 1 Strobh. Eq. 180 ; Price v. White, 1 Bailey's Eq. 244, that the pleadings in the suit pending should direct a purchaser's attention to the identity of the property. See Haven v. Adams, 8 Allen, 363. By statute in England, the names of parties, &c, must be registered, in order that cause shall operate as lis pendens. 13 & 14 Vict. ch. 35. § 17 ; Sugd. on V. and P. ch. 13, § 1, s. 61.] 1 Bishop of Winchester v. Paine, 11 Ves. 197 ; Metcalf v. Pulvertoft, 2 V. & Beam. 205. 2 2 P. Will. 483; Story on Equity Plead. § 156, 351; 2 Story on Equity Jurisp. § 908. 8 Co. Litt. 224 6 ,- Metcalf v. Pulvertoft, 2 V. & Beam. 199; Gaskeld u. Durdin, 2 B. & Beatt. 169. * Co. Litt. 224 b; Metcalf v. Pulver- toft, 2 V. & Beam. 199; Gaskeld v. Dur- din, 2 B. & Beatt. 169. 6 Ibid. ; Bishop of Winchester v. Paine, 11 Ves. 197 ; Murray v. Ballou, 1 § 406-408.] constructive fraud. 391 lief in equity depends upon any supposed co-operation in a fraud, it is indispensable to establish an express or direct notice of the fraudulent act. And although, as we have seen, a registered deed will be postponed to a prior unregistered deed, where the second purchaser had actual notice of the first purchase ; yet the doctrine has never been carried to the extent of making a lis pendens con- structive notice of the prior unregistered deed ; but actual notice is required. 1 § 407. In general, a decree is not constructive notice to any per- sons who are not parties or privies to it ; and, therefore, other per- sons are not presumed to have notice of its contents. But a person who is not a party to a decree, if he has actual notice of it, will be bound by it ; and if he pays money in opposition to it, he will be compelled to pay it again. 2 And a purchaser, having notice of a judgment, will be bound by it, although it has not been docketed, so as to secure the priority of lien and satisfaction, attached to judgments. 3 § 408. To constitute constructive notice, it is not indispensable that it should be brought home to the party himself. It is suffi- cient, if it is brought home to the agent, attorney, or counsel of the party ; for, in such cases, the law presumes notice in the prin- cipal, since it would be a breach of trust in the former not to com- municate the knowledge to the latter. 4 But, in all these cases, notice to bind the principal should be notice in the same transac- tion, or negotiation; for, if the agent, attorney, or counsel was employed in the same thing by another person, or in another business or affair, and at another time, since which he may have forgotten the facts, it would be unjust to charge his present prin- cipal on account of such a defect of memory. 5 It was significantly 1 Wyatt v. Barwell, 19 Ves. 439 ; New- 4 Com. Dig. Chancery, 4 C. 5 and 6 ; man v. Chapman, 2 Rand. 93. 2 Fonbl. Eq. B. 2, ch. 6, § 4 ; Sheldon v. 2 2 Fonbl. Eq. B. 2, ch. 6, § 3, note Cox, 2 Eden, 224, 228; Jennings v. Moore, (n) ; Harvey o. Montague, 1 Vern. 57 ; 2 Vern. 609 ; Sugden on Vendors, ch. 17 ; Sugden on Vendors, ch. 17, § 1, 2. Astor v. Wells, 4 Wheat. 466 ; [Jones v. 3 Davis v. Earl of Strathmore, 16 Ves. Bamford, 21 la. 217. So where both 419. [* As to personal estate, the pur- parties employ the same solicitor. Bol- chaser of a trustee, who had»o power of land v. Hart, 6 Ch. App. 678 ; 1 Perry on sale, acquires only the title of the vendor. Trusts, § 222.] And where the trust is created under a 6 Com. Dig. Chancery, 4 C. 5 and 6, will, the record of the will in the probate and cases before cited; Fitzgerald ». court is notice of the trust to every one. Ealconberg, Fitzgibb. 211 ; [McCormick The law implies notice in such case. v. Wheeler, 36 HI. 114]. EUis v. Woods, 9 Rich. Eq. 19.] 392 EQUITY JURISPRUDENCE. [CH. Til. observed by Lord Hardwicke, that, if this rule were not adhered to, it would make the titles of purchasers and mortgagees depend altogether upon the memory of their counsellors and agents ; and oblige them to apply to persons of less eminence as counsel, as being less likely to have notice of former transactions. 1 i Warrick v. "Warrick, 3 Atk. 294; Worsley v. Earl of Scarborough, 3 Atk. 292; Lowther v. Carlton, 2 Atk. 242,392. But notice to a, solicitor in one transac- tion, which is closely followed by and connected with another, so as clearly to give rise to a presumption that the prior transaction was present in his mind, and that he could not hare forgotten it, is constructive notice to his client. A for- tiori if it is clear that, at the time of the second transaction, the first was fully in his mind. Hargreaves v. Rothwell, 1 Keen, 154, 159. [* But see Wythes v. Labouchere, 3 De G. & J. 593. In Ogil- vie v. Jeaffreson, 6 Jur. n. s. 970 (July, 1860), the general question of notice to a solicitor, in a different transaction, being notice to his client, is a good deal dis- cussed, and the cases reviewed ; and the conclusion arrived at, that the employ- ment of the solicitor of the other party, and who, by consequence, has a direct motive not to disclose any fraud, or de- fect of title, which may have come to his knowledge in his former employment, is such a degree of negligence as will affect the client with' knowledge of all the facts which might have been learned by a care- ful and watchful course. And a distinc- tion is here taken in regard to' the degree of watchfulness required of one about to advance his money, as a purchaser, and others, who are not placed in circum- stances demanding any extraordinary cir- cumspection ; and it is declared that where one remits the proper diligence required of his position, he is not entitled to the peculiar privileges of that position, for instance, that of a bona fide purchaser for value. The distinction of the text, be- tween notice to an agent in the same, or a different transaction, is not here alluded to. It seems not now to be regarded by the English judges as of controlling force ; but that every case must depend upon the degree of care and watchfulness exercised by the principal upon the particular oc- casion, as well in the selection -of his solicitor as in other respects. If he select one known to have a motive not to dis- close the truth, he is affected with the actual knowledge .of his solicitor, unless the solicitor was under some prior pro- fessional obligation not to disclose such facts. And the same rule applies where the solicitor knows of the facts, although such knowledge is acquired in a different transaction, and omits to disclose them, through negligence or indifference. This want of care in the agent makes the knowledge that of his client. But where the knowledge acquired by the agent, in the ' prior transaction, is so remote, in point of time, as not to be remembered, it will not affect the client. And if the agent is bound not to disclose, and this is not known to the client ; or if known, the knowledge is not of a charac- ter to excite suspicion, the client will not be regarded as wanting in proper care, in not employing another solicitor. So that the question of constructive notice to the principal through his solicitor, or agent, depends upon the circumstances of the particular case. Hart, Leslie, & Warren v. Farmers' & Mechanics' Bank, 33 Vt. 272. It is said, in the case of Browne v. Savage, 5 Jur. n. s. 1020, that notice to one trustee of an encumbrance on the fund is sufficient, but inquiries, for en- cumbrances, should be made of all the trustees. But where the mortgagor being a solicitor acting for himself and the mortgagee, it was held this did not affect the mortgagee with notice of facts within the knowledge of the mortgagor. Espin v. Pemberton, 5 Jur. n. s. 55 ; s. c. 4 Drew. 333 ; s. c. 28 L. J. N. s. Ch. 308. The distinction between notice in the same and in a different transaction is not adverted to, although obviously arising in the case. But when this case came before the Lord Chancellor on appeal, 5 Jur. n. s. 157 ; s. c. 28 L. J. w. s. Ch. 311, his lordship does advert to this point, and § 408-409.] CONSTRUCTIVE FRAUD. 393 § 408 a. Although the general rule, that notice to the agent is notice to the principal, is well established, yet there are some nice cases which may arise in the application of the rule. Thus, for example, suppose the case of a corporation acting by a board of directors, or trustees, or other officers or agents ; the question may arise, whether notice to one of the board of facts unknown to all the others, will bind the corporation, or whether the notice should be offered to the board itself, or a majority of them. The authorities on this point do not seem entirely in harmony. 1 § 409. The doctrine, which has been already stated, in regard to the effect of notice, is strictly applicable to every purchaser, whose title comes into his hands, affected with such notice. But it in no manner affects any such title derived from another per- son, in whose hands it stood free from any such taint. Thus, a purchaser with, notice may protect himself by purchasing the title of another bond fide purchaser for a valuable consideration with- out notice ; for. otherwise, such bond fide purchaser would not enjoy the full benefit of his own unexceptionable title. 2 Indeed, he would be deprived of the marketable value of such a title ; since it would be necessary to have public notoriety given to the existence of a prior encumbrance, and no buyer could be found, lays down the precise English rule in re- employment. This rule seems reasonable gard to it. " If a person employs a solici- and tangible, and any thing short of this tor, who either knows, or has it intimated leads to constant embarrassment. And to him in the course of his employment, its effect does not depend either upon a fact that is hostile to his interest, he is the fact of it being communicated to the bound by it, whether the fact is commu- principal or the probability that it would nicated to, or is concealed from him. be. Where the agent is guilty of a posi- Constructive notice is properly the knowl- tive fraud, as in Kennedy v. Green, 3 My. edge which the court imputes to a person." & K. 699, this rule may require qualifica- His lordship therefore prefers calling it tion. That a director cannot be presumed actual knowledge, or imputed knowledge, to hare communicated his own fraud, and because what is known to his agent is the that consequently his knowledge of such same as if known to himself, and so also fraud is not notice to the corporation, see of what one might learn upon inquiry, In re European Bank, L. R. 5 Ch. App. which he fraudulently abstains from mak- 358. See also Hunt v. Elmes, 7 Jur. n. s. ing, lest he might learn something un- 200.] favorable. But where one bona fide makes 1 See Story on Agency, § 140 a, 140 b ; inquiry and receives such information as Commercial Bank v. Cunningham, 24 puts him at rest, he will be excused. It Pick. 278 ; Porter v. Bank of Rutland, 19 may therefore be assumed that, according Verm. 410. [See In re European Bank, to the English rule, what is in the recol- L. R. 5 Ch. App. 358.] lection of an agent at the time he enters 2 1 Fonbl. Eq. B. 2, ch. 6, § 2, note (i) ; another employment, becomes notice to Mitf. Plead, by Jeremy (1827), p. 278 (4th his principal; as much as if it were re- edit.) ; Com. Dig. Chancery, 4 A. 10; 4 I. peated during the second employment, or 3, 4, 11 ; [1 Perry on Trusts, § 222]. came first to his knowledge during such b94 EQUITY JURISPRUDENCE. [CH. VII. or none except at a depreciation equal to the value of the encum- brance. For a similar reason, if a person who has notice, sells to another who has no notice, and is a bond fide purchaser for a val- uable consideration, the latter may protect his title, although it was affected with the equity arising from notice, in the hands of the person from whom he derived it; for, otherwise, no man would be safe in any purchase, but would be liable to have his own title defeated by secret equities, of which he could have no possible means of making a discovery. § 410. This doctrine, in both of its branches, has been settled for nearly a century and a half in England; and it arose in a case in which A. purchased an estate, with notice of an encumbrance, and then sold it to B., who had no notice ; and B. afterwards sold it to C, who had no notice ; and the question was, whether the en- cumbrance bound the estate in the hands of C. The then Master of the Rolls thought, that although the equity of the encumbrance was gone, while the estate was in the hands of B., yet it was revived upon the sale to C. But the Lord Keeper reversed the decision, and held, that the estate in the hands of C. was dis- charged of the encumbrance, notwithstanding the notice of A. and C. 1 This doctrine has ever since been adhered to as an indis- pensable muniment of title. 2 And it is wholly immaterial of what nature the equity is, whether it is a lien, or an encumbrance, or a trust, or any other claim ; for a bona fide purchase of an estate, for a valuable consideration, purges away the equity from the estate, in the hands of all persons who may derive title under it, with the exception of the original party whose conscience stands bound by the violation of his trust and meditated fraud. But, if the estate becomes revested in him, the original equity will reattach to it in his hands. 3 1 Harrison v. Forth, Prec. Ch. 61 ; s. c. cannot avail himself of his co-tenant's 1 Eq. Abridg. Notice, A. 6, p. 331. want of notice, on deriving title from 2 2 Fonbl. Eq. B. 2, ch. 6, § 2, note (i) ; him by partition. Blatchley v. Osborn, Brandlyn v. Ord, 1 West, 512 ; s. c. 1 Atk. 33 Conn. 226. That an assignee of a 571 ; Lowther ». Carlton, 2 Atk. 242 ; Per- mortgage, though without notice, takes rars v. Cherry, 2 Vern. 383 ; Mertins a. Jol- subject to all equities, see Conover v. Van liffe, Ambl. 313 ; Sweet v. Southcote, 2 Mater, 3 C. E. Green, 481 ; per con., Bro. Ch. 66 ; McQueen v. Farquhar, 11 see Welch ». Priest, 8 Allen, 165, the Ves. 477, 478 ; Bracken v. Miller, 4 Watts estate of the mortgagee in Massachusetts & Serg. 102. [See Webster v. Van Steen- being a legal estate.] berg, 46 Barb. 211 ; Le Neve v. Le Neve, » 2 Fonbl. Eq. B. 2, ch. 6, § 2, note (i), 2 Lead. Cas. in Eq. 23, and notes. But it and cases before cited ; and Kennedy v. seems a tenant in common with notice Daly, 1 Sch. & Lefr. 379; Bumpua v. § 409-410 a.] CONSTRUCTIVE FRAUD. 395 [* § 410 a. It will have been perceived that the term constructive notice is here used in a somewhat indefinite sense. The same is true in regard to most text-writers and judges. This form of expression is applied, indiscriminately, to such notice as is not susceptible of being explained or rebutted, and to that which may be. It seems more appropriate to the former kind of notices. It will then include notice by the registry, and notice by lis pendens. But such notice as depends upon possession, upon knowledge of an agent, upon facts to put one upon inquiry, and some other similar matters, although often called constructive notice, is rather implied notice, or presumptive notice, subject to be rebutted or explained. Constructive notice is thus a conclusive presumption, or a presumption of law, while implied notice is a mere presump- Plattner, 1 Johns. Ch. 219; Jackson u. Henry, 10 Johns. 185 ; Jackson v. Given, 8 Johns. 137; Demarest v. Wyncoop, 3 Johns. Ch. 147 ; Alexander v. Pendleton, 8 Cranch, 462; Ingram v. Pelham, Ambl. 153; Pitzsimmons v. Ogden, 7 Cranch, 218. The rule adopted in equity, in favor of bond fide purchasers without notice, not to grant any relief against them, is founded, as we have seen, upon a general principle of public policy. Wall- wyn v. Lee, 9 Ves. 24. It is not, how- ever, absolutely universal ; for it has been broken in upon in two classes of cases. In the first place, it is not allowed in favor of a judgment creditor who has no notice of the plaintiff's equity. This appears to proceed upon the principle that such judgment creditor shall be deemed entitled merely to the same rights as the debtor had, as he comes in under him, and not through him ; and upon no new consideration, like a purchaser. Burgh v. Burgh, Rep. temp. Pinch, 28. In the second place, it is not allowed in favor of a bond fide purchaser without notice, against the claims of a dowress, as such. Williams v. Lambe, 3 Brown, Ch. Pep. 264. This last exception is ap- parently anomalous, and has been estab- lished upon the distinction that the protection of a bond fide purchaser does not apply against a party plaintiff, seek- ing relief upon the ground of a legal title (such as Dower is), but only against a party plaintiff, seeking a, relief upon an equitable title. The propriety of the distinction has been greatly ques- tioned. It has been impugned by Lord Rosslyn, in Jerrard u. Saunders (2 Ves Jr. 454). The cases of Burlare v. Cook, Preem. (2 R. 24), and Parker v. Blyth- more (2 Eq. Abridg. 79, pi. 1), are against it. Rogers v. Leele (2 Preem. 84), and the above case of Williams v. Lambe, are in its favor. Mr. Sugden doubts the correctness of the distinction. Sug- den on Vendors, ch. 18, sub finem (9th edit.). On the other hand, Mr. Belt maintains its correctness. Belt's note (1) to 3 Brown, Ch. 264. So does Mr. Beames (Beam. Eq. PI. 244, 245), and Mr. Roper, also, in his work on Husband and Wife, vol. 1, 446, 447. Mr. Hovenden, in his note to 2 Preem. 24, acquiesces in it. See also Medlicott v. O'Donel, 1 B. & Beatt. 171. See also Mitf. Eq. Plead, by Jer- emy, p. 274, note (d) (4th edit.). The same distinction was expressly affirmed in Collins v. Archer, 1 Russ. & Mylne, 292. There is a peculiarity in the case of » dowress which operates against her, and, upon thi3 point of notice, is proper to be mentioned. Though notice of the title will protect every other interest in the inheritance, it will not protect hers. MaundreU v. Maundrell, 10 Ves. 271, 272 ; Wynn v. Williams, 5 Ves. 130 ; Mole v. Smith, Jacob, 497 ; Swannock v. Lifford, Ambl. 6 ; s. c. Co. Litt. 208 a, Butler's note (105) ; Radner v. Vanderbendy, Show. Pari. Cas. 69; ante, §57 a; post, § 434, 436, 630, 631 ; [Ely v. Wilcox, 26 Wise. 91 ; Church v. Ruland, 64 Penn. St. 432]. 396 EQUITY JURISPRUDENCE. [CH. VII. tion of fact. If this distinction were carefully preserved by writers upon this subject, it would enable us to escape a good deal of con- fusion in regard to the subject of notice.] § 411. Indeed, purchasers of this sort are so much favored in equity, that it may be stated to be a doctrine now generally estab- lished, that a bond fide purchaser for a valuable consideration, without notice of any defect in his title at the time of his pur- chase, may lawfully buy in any statute, mortgage, or other encum- brance upon the same estate for his protection. If he can defend himself by any of them at law, his adversary will have no help in equity to set these encumbrances aside ; for equity will not disarm such a purchaser ; but will act upon the wise policy of the common law, to protect and quiet lawful possessions, and strengthen such titles. 1 We shall have occasion, hereafter, in various cases, to see the application of this doctrine. § 412. And this naturally leads us to the consideration of the equitable doctrine of tacking, as it is technically called, that is, uniting securities, given at different times, so as to prevent any intermediate purchasers from claiming a title to redeem, or other- wise to discharge one lien, which is prior, without redeeming or discharging the other liens also, which are subsequent to his own title. 2 Thus, if a third mortgagee, without notice of a second mortgage, should purchase in the first mortgage, by which he would acquire the legal title, the second mortgagee would net be permitted to redeem the first mortgage without redeeming the third mortgage also ; for, in such a case, equity tacks both mortgages together in his favor. And, in such a case, it will make no differ- ence that the third mortgagee, at the time of purchasing the first mortgage, had notice of the second mortgage ; for he is still entitled to the same protection. 8 § 413. There is, certainly, great apparent hardship in this rule ; 1 2 Fonbl. Eq. B. 3, ch. 2, § 3 ; Com. » 2 Fonbl. Eq. B. 3, ch. 2, § 2, and Dig. Chancery, 4 A. 10 ; 4 I. 3 ; 4 I. 11 ; notes (b), (c) ; Com. Dig. Chancery, 4 A. 4 W. 29. [Where a mortgagee has armed 10 ; Marsh v-. Lee, 2 Vent. 337, 338 ; s. c. the holder of the equity with the means to 1 Ch. Cas. 162 ; Maundrell v. Maundrell, commit afraud, by trusting to him the title- 10 Ves. 260,270; Morett v. Paske, 2 Atk. deeds, and he makes a subsequent mort- 53, 54 ; Matthews v. Cartwright, 2 Atk. gage to a bond fide encumbrancer with- 347 ; Robinson v. Davison, 1 Bro. Ch. 63 ; out notice, such mortgage will hare prior- Newland on Contracts, ch. 36, p. 515; ity. Hunter w. Walters, L. E. 11 Eq. 292.] Sugden on Vendors, ch. 16, 17; Powell 2 Jeremy on Equity Jurisd. B. 1, ch. 2, on Mortgages, vol. 2, p. 554, Mr. Coven- § 1, p. 188 to 191 ; [* Spencer v. Pearson, try's note (A); [Wormald v. Maitland, 24 Beavan, 266]. 35 L. J. Ch. (n. s.) 69]. § 410 a-415.] CONSTRUCTIVE FRAUD. 397 for it seems most conformable to natural justice, that each mort- gagee should, in such a case, be paid according to the order and priority of his encumbrances. 1 The general reasoning, by which this doctrine is maintained, is this : In cequali jure, melior est con- ditio possidentis. Where the equity is equal, the law shall prevail ; and he that hath only a title in equity shall not prevail against a title by law and equity in another. 2 But, however correct this reasoning may be when rightly applied, its applicability to the case stated may reasonably be doubted. It is assuming the whole case, to say that the right is equal, and the equity is equal. The second mortgagee has a prior right, and at least an equal equity ; and then the rule seems justly to apply, that, where the equities are equal, that title which is prior in time shall prevail ; Qui prior est in tempore, potior est in jure. 3 § 414. It has been significantly said, that it is a plank, gained by the third mortgagee, in a shipwreck, tabula in naufraffio.* But, independently of the inapplicability of the figure, which can justly apply only to cases of extreme hazard to life, and not to mere seizures of property, it is obvious, that no man can have a right, in consequence of a shipwreck, to convert another man's property to his own use, or to acquire an exclusive right against a prior owner. The best apology for the actual enforcement of the rule is, that it has been long established, and that it ought not now to be departed from, since it has become a rule of property. § 415. Lord Hardwicke has given the following account of the origin and foundation of the doctrine. " As to the equity of this court, that a third encumbrancer, having taken his security or 1 Brace v. Duchess of Marlborough, 2 doctrine of tacking is founded on the P. Will. 492 ; Lowthian a. Hasel, 3 Bro. assumption of a principle which is not Ch. 163. ■ true in point of fact ; for, as between A., 2 Jeremy on Equity Jurisd. B. 1, ch. 2, whose deed is honestly acquired and § 1, p. 188 to 192 (4th edit.) ; 2 Fonbl. Eq. recorded to-day, and B., whose deed is B. 3, ch. § 1, and notes. with equal honesty acquired and recorded 3 Mr. Chancellor Kent, in his learned to-morrow, the equities upon the estate Commentaries, has expressed a strong dis- are not equal. He who has been fairly approbation of the doctrine of tacking, prior in point of time, has the better " There is," says he, " no natural equity equity, for he is prior in point of right." in tacking, and when it supersedes a prior 4 Kent, Comm. Lect. 58, p. 178, 179 (4th encumbrance, it works manifest injustice, edit.). By acquiring a still more antecedent en- * Marsh v. Lee, 2 Vent. 337 ; "Wortley cumbrance, the junior party acquires, by v. Birkhead, 2 Ves. 574 ; Brace v. Duch- substitution, the rights of the first encum- ess of Marlborough, 2 P. Will. 491. See brancer over the purchased security, and post, § 421 a. he justly acquires nothing more. The" 398 EQUITY JUEISPRUDENCE. [CH. VII. mortgage without notice of the second encumbrance, and then, being puisne, taking in the first encumbrance, shall squeeze out and have satisfaction before the second ; that equity is certainly- established in general ; and was so in Marsh v. Lee, by a very solemn determination by Lord Hale, who gave it the term of the creditor's tabula in naufragio. This is the leading case. Perhaps it might be going a good way at first ; but it has been followed ever since ; and, I believe, was rightly settled only on this founda- tion by the particular constitution of the law of this country. It could not happen in any other country but this ; because the jurisdiction of law and equity is administered here in different courts, and creates different kind of rights in estates. And, there- fore, as courts of equity break in upon the common law, where necessity and conscience require it, still, they allow superior force and strength to a legal title to estates ; and, therefore, where there is a legal title and equity on one side, this court never thought fit, that, by reason of a prior equity against a man, who had a legal title, that man should be hurt ; and this, by reason of that force, this court necessarily and rightly allows to the common law and to legal titles. But if this had happened in any other country, it could never have made a question ; for if the law and equity are administered by the same jurisdiction, the rule, Qui prior est in tempore, potior est in jure, must hold." 1 1 Wortley v. Birkhead, 2 Ves. 573. The same quotation is in 2 Fonbl. Eg. 304, B. 3, eh. 2, § 2, in u. (e). Mr. Cov- entry, in his valuable notes to Powell on Mortgages (Vol. 2, p. 454, note), sup- poses that the English law on this subject is sanctioned by the civil law. In this view of the matter he is entirely mistaken. The civil law admits no such principle as tacking ; the general rule is : Qui prior est in tempore, potior est in jure. There are two acknowledged exceptions : one where the first encumbrancer consents to the second pledge, so as to give a priority ; another is, where the second pledge is for money to preserve the property. The doctrine of the civil law, referred to by Mr. Coventry, simply gives to a third mortgagee, paying off a first mortgage, the same priority, by way of substitution, which the first mortgagee had. It does not change the rights of the third mort- gagee, as to his own mortgage. So the doctrine is stated in the Pandects (incor- rectly referred to by Mr. Coventry), and so is the doctrine of Domat, in the passage cited. See Dig. Lib. 20, tit. 4, 1. 16; 1 Domat, B. 3, tit. 1, § 3, art. 7, and id. § 6, art. 6, 7 ; Pothier, Pand. Lib. 20, tit. 4, § 1, n. 1 to 32, and especially n. 10, 11, Cod. Lib. 8, tit. 18, 1. 1, 5. The language of the civil law, in the principal passage cited is : Plane, cum tertius creditor pri- mum de sua rjecunia dimisit, in locum ejus substituitur in ea quantitate, quam superiori exsolvit. Dig. Lib. 20, tit. 4, 1. 16. In Fonblanque's Equity (2 Ponbl. B. 3, ch. 1, § 9, p. 272), it is said in the text : " By the civil law the mortgage is properly a security only for the debt it- self, for which it was given, and the con- sequences of it, as the principal sum and interest, and the costs and damages laid out in preserving it." The passage, on which reliance is had for this purpose, is 'the Dig. Lib. 13, tit. 7, 1. 8, § 5. Cum pin- § 415, 416. j CONSTRUCTIVE FRAUD. 399 § 416. Indeed, so little has this doctrine of tacking to commend itself, that it has stopped far short of the analogies, which would seem to justify its application ; ! and it has been confined to cases where the party, in whose favor it is allowed, is originally a bond fide purchaser of an interest in the land for a valuable consider- ation. Thus, if a puisne creditor, by judgment, or statute, or recog- nizance, should buy in a prior mortgage, he would 'not be allowed to tack his judgment to such a mortgage, so as to cut out a mesne mortgagee. 2 The reason is saM to be, that a creditor can in no just sense be called a purchaser; for he does not advance his money upon the immediate credit of the land ; and, by his judg- ment, he does not acquire any right in the land. He has neither jus in re, nor jus ad rem ; but a mere lien upon the land, which may, or may not, afterwards be enforced upon it. 3 But if, instead of being a judgment creditor, he were a third mortgagee, and should then purchase in a prior judgment, statute, or recognizance, in such case he would be entitled to tack both together. The rea- son for the diversity is, that in the latter case he did originally lend nus ex pactione venire potest, non solum ob sortem non solutam venire poterit, sed ob csetera quoque, veluti usuras, et quae in id impensa sunt. Mr. Brown, in his Treatise on the civil law (Vol. 1, B. 2, ch. 4, p. 202), deduces the conclusion that Mr. Fonblanque intended to say, that it did not involve such effects as that the heir of a mortgagor, also indebted by a bond to the mortgagee, should not redeem without also paying the bond debt and such like provisions known to our courts of equity. In this Mr. Brown thinks Mr. Fonblanque is incorrect ; and he relies on the text of the code (Co'd. Lib. 8, tit. 27, 1. 1) ; At si in possessione fueris constitu- tus ; nisi ea quoque pecunia tibi a debitore reddatur vel offeratur, qua? sine pignore debetur, earn restituere propter excep- tionem doli mali non cogeris. Jure enim contendis, debitores earn solam pecuniam, cujus nomine ea pignora obligaverunt, offerentes audiri non oportere, nisi pro ilia etiam satisfecerint, quam mutuam simpliciter acceperunt. Quod in secundo creditore locum non habet; nee enim neceBsitas ei imponitur chirographarium etiam debitum priori creditori offerre. It is apparent that this passage merely respects the right of a mortgagee to tack, as against his own debtor, a second loan without security, when his debtor seeks to redeem. It does not touch the case of tacking so as to cut out an intermediate encumbrancer. Domat supports the text of Fonblanque (1 Domat, B. 1, tit. 1, § 3, art, 4, 7, 8) . That, by the civil law, there can be a tacking of debts, so as to cut out an intermediate encumbrance, seems contrary to the Dig. Lib. 20, tit. 4, 1. 20 ; Pothier, Pand. Lib. 20, tit. 4, n. 10. See 2 Story on Eq. Jurisd. § 1010, note, where this subject is examined more at large. But see 1 Brown, Civil Law, 208, and 4 Kent, Comm. Lect. 58, p. 136, note (a) ; id. 175, 176 (4th edit.). 1 See Thorneycraft v. Crockett, 2 House of Lords Cases, 239. 2 2 Fonbl. Eq. B. 3, ch. 3, § 1, note (o) ; id. B. 3, ch. 1, § 9; and note (n) ; Brace v. Duchess of Marlborough, 2 P. Will. 492 to 495; Anon., 2 Ves. 662; Morret v. Paske, 2 Atk. 52, 53 ; Ex parte Knott, 11 Ves. 617 ; Belchier v. Butler, 1 Eden, 522, and Mr. Eden's note ; Lacey v. Ingle, 2 Ph. Ch. 413. But see Wright c. Pilling, Prec. Ch. 499. [* See Mayor of Brecon v. Seymour, 26 Beavan, 548.] 8 roid. ; Averall v. Wade, Lloyd & Goold's Eep. 252, 262. 400 EQUITY JURISPRUDENCE. [CH. VII. his money upon the credit of the land ; but in the former he did not, but was only a general creditor, trusting to the general assets of his debtor. 1 § 417. The same principle applies to a first mortgagee lending to the mortgagor a further sum upon a statute or judgment. In such a case he will be entitled to retain against the mesne mort- gagee, till both his mortgage, and statute or judgment are paid ; for he lent his money originally upon the credit of the land ; and it may well be presumed, that he lent the further sum upon the statute or judgment upon the same security, although it passed no present interest in the land, but gave a lien only. 2 § 418. And yet, such a prior mortgagee, having a bond debt, has never been permitted to tack it against any intervening encum- brancers of a superior nature between his bond and mortgage ; nor against other specialty creditors $ nor even against the mortgagor himself ; but only against his heir, to avoid circuity of action. 3 The reason given is, that the bond debt, except in the hands of the heir, is not a charge on the land ; and tacking takes place only when the party holds both securities in the same right. For if a prior mortgagee takes an assignment of a third mortgage, as a trustee only for another person, he will not be allowed to tack two mortgages together, to the prejudice of intervening encum- brancers. 4 Neither is a mortgagee permitted to tack where the 1 Ibid. ; Higgin v. Lyddal, 1 Ch. Cas. 149 ; Mackreth v. Symmons, 15 Ves. 354. 2 Ibid.; Shepherd v. Titley, 2 Atk. 352 ; Ex parte Knott, 11 Ves. 617; Lacey v. Ingle, 2 Phillips, Ch. 413. A fortiori, the same principle applies to the first mortgagee's lending on the second mort- gage ; for in such a case he positively lends on the credit of the land, and will he allowed to tack against a, mesne en- cumbrancer. Morret v. Paske, 2 Atk. 53, 54. And even sums subsequently lent on notes, if distinctly agreed at the time to be on the security of the mortgaged property, will be allowed to be tacked. Matthews v. Cartwright, 2 Atk. 347; 2 Story on Eq. Jurisp. § 1010, note. 3 Powis v. Corbet, 3 Atk. 556 ; Low- thian v. Hasel, 3 Brown, Ch. 163 ; Mor- ret v. Paske, 2 Atk. 52, 53 ; Shuttleworth v. Layeock, 1 Vern. 245; Coleman v. Winch, 1 P. Will. 775; Price v. Fast- nedge, Ambler, 685; and Mr. Blunt's note; Troughton v. Troughton, 1 Ves. 86 ; Heams v. Bance, 3 Atk. 630 ; Jones v. Smith, 2 Ves. Jr. 376 ; Adams v. Clax- ton, 6 Ves. 229 ; 2 Fonbl. Eq. B. 3, ch. 1, § 11; id. § 9, note («)• In the Roman law, rules somewhat different prevailed. While, as we have seen, tacking was not allowed against intermediate encum- brancers, the creditor himself was, as against his debtor, allowed to tack a subsequent debt contracted by his debtor after the mortgage. Ante, § 415, note, and post, § 420 ; 2 Story on Eq. Jurisp. § 1010, and note. See also 1 Brown, Civil Law, 202, and note 5 ; id. 20, 8 ; 4 Kent, Comm. Lect. 58, p. 136, and note ; id. 175, 176 (2d and 3d edit.). [But where a further advance on parol agree- ment that it shall be secured by the mort- gage, equity will not aid the mortgagor, or one having no better equity to redeem without repaying such advance. Stone v. Lane, 10 Allen, 74.] * Morret v. Paske, 2 Atk. 53 ; 2 Fonbl. Eq. B. 3, ch. 1, § 9, and note («). § 416-419.] CONSTRUCTIVE) FRAUD. 401 • equity of redemption belongs to different persons, when the mortgagee's title to both estates occurs. 1 § 419. It cannot be denied, that some of these distinctions are extremely thin, and stand upon very artificial and unsatisfactory reasoning. The account of the matter given by Lord Hardwicke, 2 is probably the true one. But it is a little difficult to perceive how the foundation could support such a superstructure, or rather, why the intelligible equity of the case, upon the principles of natural justice, should not be rigorously applied to it. Courts of equity have found no difficulty in applying it, where the puisne encumbrancer has bought in a prior equitable encumbrance ; for in such cases they have declared, that where the puisne encum- brancer has bought in a prior equitable encumbrance ; for in such cases they have declared, that where the puisne encumbrancer has not obtained the legal title ; or where the legal title is vested in a trustee ; or where he takes in autre droit ; the encumbrances shall be paid in the order of their priority in point of time, according to the maxim above mentioned. 3 The reasonable principle is here adopted, that he who has the better right to call for the legal title, or for its protection, shall prevail. 4 1 White v. Hillaire, 5 Younge & Coll. Fastnedge, Ambler, 685, and Mr. Blunt's 697, 609. note ; Jeremy on Eq. Jurisd. B. 1, ch. 2, 2 Wortley v. Birkhead. 2 Ves. 574; § 1, 2, p. 191, 193, 194; 1 Fonbl. Eq. B. 1, ante, § 415, p. 443. See Berry v. Mutual ch. 4, § 25, and note (e) ; Pomfret v. Wind- Ins. Co., 2 Johns. Ch. 603, 608. Lord sor, 2 Ves. 472, 486 ; Brandlyn v. Ord, 1 Eosslyn, in Jones u. Smith (2 Ves. Jr. Atk. 571. 377), said : " Why a bond is not upon the 4 Ibid. ; Medlicott v. O'Donel, 1 B. & same footing, I do not know. It is im- Beatt. 171 ; 2 Fonbl. Eq. B. 2, ch. 6, § 2. possible to say why a bond may not be In America, the doctrine of tacking is tacked to a mortgage as well as one mort- never allowed as against mesne encum- gage to another." The asserted ground brances, which are duly registered, for doubtless is, that a bond debt is no lien the plain reason, that the Registry Acts on the land, whereas a mortgage and are held, not only to be constructive no- judgment are. This may be still more tice, but the Acts themselves, in effect, distinctly shown by the rule, that a mort declare the priority to be fixed by the gagee of a copyhold estate cannot tack registration. Grant v. Bisset, 1 Caines, a judgment to his mortgage ; the reason Cas. in Err. 112 ; Frost v. Beekman, 1 is, that a judgment does not affect or Johns. Ch. 298, 299 ; Parkist v. Alexander, bind copyhold estates. Heir of Carmore 1 Johns. Ch. 398, 399; St. Andrew's v. Parke, 6 Vin. Abridg. p. 222, pi. 6 ; Church v. Tomkins, 7 Johns. Ch. 14 ; Os- cited 2 Fonbl. Eq. B. 3, ch. 1, § 9, and born v. Carr, 12 Conn. 196 ; Averill n. note («) ; Jeremy on Eq. Jurisd. B. 1, ch. Guthrie, 8 Dane, 82 ; [Chandler v. Dyer, 2 § 1 p. 190 191. 3 ? "Vt. 345]. The same doctrine exists in ' » Brace v. Duchess of Marlborough, 2 other Registry countries. Latouehe v. P. Will. 495 ; Ex parte Knott, 11 Ves. Lord Dunsaney, 1 Sch. & Lefr. 137, 157. 618 ; Berry v. Mutual Ins. Co., 2 Johns. As to tacking in cases of personal prop- Ch. 608; Frere v. More, 8 Price, 475; erty, see 2 Story, Eq. Jurisp. § 1034; Barnett v. Weston, 12 Ves. 130 ; Price v. 1035. EQ. JUK. — VOL.1. 26 402 EQUITY JURISPRUDENCE. [CH. VII. § 420. The civil law lias proceeded upon a far more intelligible and just doctrine on this subject. It wholly repudiates the doc- trine of tacking ; and gives the fullest effect to the maxim, Qui prior est in tempore, potior est in Jure ; excluding it only in cases of fraud, or of consent, or of a superior equity. 1 § 421. But, whatever may be thought as to the foundation of the doctrine of tacking in courts of equity, it is now firmly estab- lished. It is, however, to be taken with this most important qualification, that the party who seeks to avail himself of it is a bond fide purchaser, without notice of the prior encumbrance, at the time when he took his original security ; for if he then had such notice, he has not the slightest claim to the protection or assistance of a court of equity ; and he will not be allowed, by purchasing in such prior encumbrance, to tack his own tainted mortgage or other title to the latter. 2 § 421 a. Questions bearing a close analogy to that of tacking have also arisen, involving equities between parties asserting adverse rights. Thus, for example, where a mortgagee takes a mortgage and a covenant from sureties to pay the mortgage money, and afterwards he advanced an additional ■ sum to the mortgagor and took a second mortgage therefor on the premises, and subsequently he brought his action against the sureties, and recovered the amount of the first mortgage debt from them ; but he refused to give up the first mortgage, or to assign it to the sureties, without being paid the second advance, and they brought a suit against him to compel an assignment to them of the first mortgage ; the question arose, whether they had a right to an assignment of the first mortgage, without paying the second ad- vance. It was held, that they had no priority, and before they would compel an assignment, they must pay the second advance. 3 § 421 b. There are other cases, standing, indeed, upon a firmer 1 See Dig. Lib. 20, tit. 4,1. 16; Pothier, note A.; Com. Dig. Chancery, 4 A. 10, Pand. Lib. 20, tit. 4, § 1, n. 1 to 32 ; 1 4 I. 3, 4 I. 4, 4 W. 28 ; 4 Kent Comm. Domat, B. 3, tit. 1, § 6, art. 6 ; ante, § 415, Lect. 58, p. 176 to 179 (4th edit.) ; post, note; § 418, note(l); post, § 1010, and § 434; Redfearn v. Ferrier, 1 Dow, 50. note. But see Davies v. Austen, 1 Ves. Jr. 247 ; 2 2 Fonbl. Eq. B. 3, ch. 3, § 1, note (6) ; Johnson v. Brown, 2 Younge & Coll. N. R. id. B. 2," ch. 6, § 2, and note (i) ; Brace 268 ; Lacey v. Ingle, 2 Phillips, Ch. 413. v. Duchess of Marlborough, 2 P. Will. 3 Williams v. Owen, The (English) •. 491, 495 ; Sugden on Vendors, ch. 16, 17 ; Jurist, 30 Dec,. 1843, p. 1145 ; post, § 499, Green v. Slater, 4 Johns. Ch. 38 ; Toul- 499 a. [* This proposition siems ques- min v. Steere, 3 Meriv. 210 ; Powell on tionable, to say the least. See Smith v. Mortgages, by Coventry, vol. 2, p. 454, Day, 23 Vt. 656.] 420-421 b.] CONSTRUCTIVE FRAUD. 403 ground than that of the mere right of tacking, where a subsequent assignee or encumbrancer of equitable property may acquire a priority over an elder assignee or encumbrancer of the same prop- erty, by his exercise of superior diligence, and doing acts which will give him a better claim or protection in equity. 1 Thus, for example, a second encumbrancer upon equitable property, who has given notice of his title to the trustees of the property, will be preferred to a prior encumbrancer, who has omitted to give the like notice of his title to the trustees ; for the notice is an effect- ual protection against any subsequent dealing on the part of the trustees. 2 So the second assignee of the interest of the assignor, 1 Foster v. Blackstone, 1 Mylne & Keen, 297; Timson v. Ramsbottom, 2 Keen, 35 ; ante, § 399, note. [So a mort- gagee of a life policy, who gives notice even after the death, will be preferred to an assignee in bankruptcy who has not given notice. In re Russell's Policy Trusts, L. R. 15 Eq. 26 ; Stuart v. Cock- erell, L. R. 8 Eq. 607. But see Ex parte Caldwell, L. R. 13 Eq. 188. One having a contract for the purchase of land may assign it, and the assignee, by giving no- tice to the trustees, is entitled to perform- ance of the contract. Shaw o. Foster, L. R. 5 H. L. 321 ; s. c. 5 Ch. App. 604. But notice of intent to assign is not enough. DMd. ; Ponder v. Scott, 44 Ala. 241. And see Smith v. Gibson, 15 Minn. 89.] 2 Ibid. ; ante, § 399, note ; post, § 1035 a, 1047, 1057 ; Etty v. Bridges, 2 Younge & Coll. 488, 492. In this case, Mr. Vice- Chancellor Bruce said : " That notice should be given to the trustee of a fund upon dealing with an equitable interest in it, is not, I apprehend, so much a rule as an example, or instance, or effect of a rule. In Dearie v. Hall (3 Russ. 1), we find Lord Lyndhurst thus expressing himself : ' In cases like the present, the act of giving the trustee notice is, in a certain degree, taking possession of the fund ; it is going as far towards equitable possession as it is possible to go; for after notice given, the trustee of a fund becomes a trustee for the assignee who has given him notice.' Sir Thomas Plumer's previous observations in the same case, which occur between the 20th and the 28th pages of the same volume, are, with more minuteness of detail, to the same effect. The opinions of the judges, in Ryall v. Rowles (1 Ves. 348, 1 Atk. 165), of which that of Mr. Justice Burnett has been reported from his note- book by Mr. Bligh (9 Bligh, n. s. 578), contain recognitions of the same princi- ple. So the opinion in Foster v. Cocker- ell (9 Bligh, n. s. 332), of Lord Lynd- hurst, upon advising the House of Lords to affirm Sir John Leach's decision in Foster v. Blackstone (1 Mylne & Keen, 297), in which case the latter learned judge had before thus expressed himself : 'Abetter equity is where a second en- cumbrancer, without notice, takes a pro- tection against a subsequent encum- brancer, which the prior encumbrancer has neglected to take. Thus, » declara- tion of trust of an outstanding term ac- companied by delivery of the deeds creat- ing and continuing the term, gives a bet- ter equity than the mere declaration of trust to a prior encumbrancer.' These authorities, though not the only author- ities,' are, I apprehend, more than suffi- cient to show the rule to be, that to per- fect a transaction of the description now in question, the purchaser or encum- brancer must, if he cannot acquire pos- session, go as near it as he can, as the circumstances of the case will permit, must in a sense, if the expression may be used, set his mark upon the property, or do every thing reasonably practicable to prevent it from being dealt with in fraud of an innocent purchaser afterwards. The law has held, that generally, where there are trustees, this is done sufficiently, upon dealing with an equitable interest in the fund, by giving them notice ; be- cause, although the notice does not neces- 404 EQUITY JURISPRUDENCE. [CH. TO. in the residuary estate of a testator, who has given notice to the executors thereof, will be preferred to a prior assignee, who has given no such notice. 1 So, it is said to be a better equity, where a second encumbrancer takes a protection against a subsequent encumbrancer, which the prior encumbrancer neglected to take. Thus, a declaration of trust of an outstanding term, accompanied by a delivery of the deeds, creating and continuing the term, will give a better equity than a mere declaration of trust taken by a prior encumbrancer. 2 § 421 c. A different doctrine is maintained in some of the States of America ; for it is there held that, as between different assign- ees of a chose in action, he who is first in time is first in right, notwithstanding he has given no notice to the debtor or the sub- sequent assignee. The debtor will, however, be protected, if he has made payment to the second assignee before notice of the prior assignment. 3 § 422. Another instance of the application of this wholesome doctrine of constructive fraud, arising from notice, may be seen in the dealings with, executors and other persons, holding a fidu- ciary character, and third persons colluding with them in violation of their trust. Thus, purchases from executors of the personal property of their testator are ordinarily obligatory and valid not- withstanding they may be affected with some peculiar trusts or equities in the hands of the executors. For the purchaser cannot be presumed to know that the sale may not be required in order to discharge the debts of the testator, for which they are legally sarily prevent such a fraud, it renders its prior encumbrancer claims by an equi- commission much less likely, and gives table title ; for if notice has been duly an increased probability, or an increased given by the latter, his title will prevail, chance of redress, if the fraud shall be Ibid. It is now also settled, that an in- committed, supposing reasonable dili- quiry of the legal holder of equitable gence to be used ; inasmuch, as not only property, as to the state of the title, is will the trustees, if asked, be likely to not necessary to give effect to a notice give the information of the notice, but if by a subsequent assignee, so as to entitle they shall fail to do so, they may be him to a priority over a prior assignee, liable to make good the loss. It is obvi- who has given no notice. Timson v. ous, however, that unfairness or forget- Eamsbottom, 2 Keen, 35. fulness, or negligence on a trustee's part, 8 Muir v. Schenck, 3 Hill , 228. See or his death, or infirmity, may render the Story on Conflict of Laws, § 328, 330. notice, as a prevention of fraud, useless." See also Murray v. Lichburn, 2 Johns. 1 Timson u. Rainsbottom, 2 Keen, 35; Ch. Cas. 441, 443; post, § 1039; Red- post, § 1035 a, 1047, 1057. feam v. Ferrier, 1 Dow, 550 ; Davies v. 2 Foster v. Blackstone, 1 Mylne & Austen, 1 Ves. Jr. 247 ; Story on Conflict Keen, 297. But it will not create a prior of Laws, § 375, 396 ; James v. Morey, 2 equity in a subsequent encumbrancer, Cowen, 246. that he claims by a legal title, and the § 421 6—423.] CONSTRUCTIVE FBAOD. 405 bound, before all other claims. 1 But, if the purchaser knows that the executor is wasting and turning the testator's estate into money, the more easily to run away with it, or for any other unlawful purpose, he will be deemed particeps criminis, and his purchase set aside as fraudulent. 2 § 423. The reason for this diversity of doctrine has been fully stated by Sir William Grant. "It is true" (said he) "that executors are, in equity, mere trustees for the performance of the will ; yet in many respects, and for many purposes, third persons are entitled to consider them absolute owners. The mere circum- stance that they are executors will not vitiate any transaction with them; for the power of disposition is generally incident, being frequently necessary. And a stranger shall not be put to examine whether, in the particular instance, that power has been discreetly exercised. But, from that proposition, that a third person is not bound to look to the trust in every respect, and for every purpose, it does not follow that, dealing with the executor for the assets, he may equally look upon him as absolute owner, and wholly over- look his character as trustee, when he knows the executor is applying the assets to a purpose wholly foreign to his trust. No decision necessarily leads to such a consequence." 3 The same doctrine is applied to the cases of executors or administrators col- luding with the debtors to the estate, either to retain or to waste i 2 Eonbl. Eq. B. 2, ch. 6, § 2, and Wrigley, 4 Bro. Ch. 125. See ante, § 400, notes (k) and (I) ; Humble v. Bill, 2 Vern. note. 444 ; Ewer v. Corbet, 2 P. Will. 148 ; Mc- 2 Worseley v. De Mattos, 1 Burr. 475 ; Leod v. Drummond, 14 Ves. 359; 8. c. 17 Ewer v. Corbet, 2 P. Will. 148; Mead v. Ves. 154, 155 ; Hill v. Simpson, 7 Ves. Lord Orrery, 3 Atk. 235, 237 ; Benfield v. 166; Scott v. Tyler, 2 Dick. 712, 725; Solomons, 9 Ves. 86, 87 ; Hill v. Simpson, Newland on Contr. ch. 36, p. 512, 513, 514 ; 7 Ves. 152; McLeod o. Drummond, 14 Com. Dig. Chancery, 4 W. 29 ; Bayner v. Ves. 359 ; s. c. 17 Ves. 153 ; Newland on Pearsall, 3 Johns. Ch. 578. This doctrine Contracts, ch. 36, p. 513; 1 Mad. Pr. Ch. was overthrown in the case of Humble v. 228, 229, 230 ; Drohan v. Drohan, 1 Ball Bill (or Savage), upon appeal to the & Beatt. 185 ; Com. Dig. Chancery, 4 W. House of Lords. 1 Bro. Pari. Cas. 71. 2a; Scott v. Tyler, 2 Bro. Ch. 431 ; 2 It was, however, reasserted in Ewer v. Dick. 712, 725; Bonny v. Ridgard, cited Corbet, 2 P. Will. 148 ; Nugent v. Gifford, 2 Bro. Ch 438 ; 4 Bro. Ch. 130 ; Scott i>. 1 Atk. 463; Elliot v. Merryman, 2 Atk. Nesbit, 2 Bro. Ch. 641; s. c. 2 Cox, 183. 42; Ithell v. Beane, 1 Ves. 215; Mead v. [So if the sale is under such circum- Lord Orrery, 3 Atk. 235; Dickinson v. stances that the purchaser must be rea- Lockyer, . 4 Ves. 36 ; Hill v. Simpson, 7 sonably taken to know that it was for the Ves. 152 ; Taylor v. Hawkins, 8 Ves. 209 ; executor's own benefit. Walker v. Tay- McLeod v. Drummond, 14 Ves. 352 ; s. c. lor, 4 Law Times (n. a.), 845, cited in 17 Ves. 153. In this last case, the whole Shaw v. Spencer, 100 Mass. 382, 393 ; 2 of the authorities were examined at large Perry on Trusts, § 814, 815.] by Lord Eldon, and commented on with a Hill v. Simpson, 7 Ves. 166. his usual acuteness. See also Andrew v. 406 EQUITY JURISPRUDENCE. [CH. VII. the assets ; for, in such cases, the creditors will be allowed to sue the debtors directly in equity, making the executor or adminis- trator also a party to the bill ; although, ordinarily, the executor or administrator only can sue for the debts due to the deceased. 1 So, in cases of collusion between a mortgagor and mortgagee, a creditor or annuitant of the mortgagor may have a right to redeem, and to call for an account ; although, ordinarily, such a right be- longs only to the mortgagor, and his heirs and privies in estate. 2 Indeed, the doctrine may be even more generally stated ; that he who has voluntarily concurred in the commission of a fraud by another, shall never be permitted to obtain a profit thereby against those who have been thus defrauded. § 424. It seems at one time to have been thought, that no per- son but a creditor, or a specific legatee of the property, could question the validity of a disposition made of assets by an execu- tor, however fraudulent it might be. But that doctrine is so repugnant to true principles, that it could scarcely be maintained whenever it came to be thoroughly sifted. 3 It is now well under- stood that pecuniary and residuary legatees may question the validity of such a disposition ; and, indeed, residuary legatees stand upon a stronger ground than pecuniary legatees generally; for, in a sense, they have a lien on the fund, and may go into equity to enforce it upon the fund.* § 425. The last class of cases which it is proposed to consider under the present head of constructive fraud, is that of voluntary conveyances of real estate, in regard to subsequent purchasers. 5 This class is founded, in a great measure, if not altogether, upon the provisions of the statute of 27th of Elizabeth, ch. 4, which has 1 Holland v. Prior, 1 Mylne & Keen, as it seems, coexecutors, are never per- 240 ; Newland v. Champion, 1 Ves. 106 ; mitted to question the disposition which Doran v. Simpson, 4 Ves. 651 ; Alsager v. the executors have made of the assets. Rowley, 6 Ves. 748 ; Beckley v. Dorring- But creditors, and specific and pecuniary ton, West, 169 ; post, § 581, note, § 828 ; legatees, may follow either legal or equi- Story on Equity Pleadings, § 178, 514; table assets into the hands of third per- Burroughs c. Elton, 11 Ves. 29 ; Benfield sons, to whom fraud is imputable." It v. Solomons, 9 Ves. 86. appears to me, that the cases above cited, 2 White v. Parnther, 1 Knapp, 179, and especially that of McLeod r. Drum- 229 ; Troughton v. Binkes, 6 Ves. 572. mond, 14 Ves. 353 ; s. c. 17 Ves. 153, 8 Mead v. Lord Orrery, 3 Atk. 235 ; establish a different conclusion. 14 Ves. 361 ; 17 Ves. 169. 6 The statute does not extend to con- * Hill v. Simpson, 7 Ves. 152 ; McLeod veyances of personal property, but only v. Drummond, 14 Ves. 359 ; s. c. 17 Ves. to conveyances of real property. Jones 169 ; Bonny v. Ridgard, cited 2 Bro. Ch. v. Croucher, 1 Sim. & Stu. 315. See 438; 4 Bro. Ch. 130; 17 Ves. 165. Mr. Bohn v. Headley, 7 H.&J.257; [Jones ». Maddock (1 Mad. Pr. Ch. 230) states, Hall, 6 Jones, Eq. (N. C.) 26.] that " residuary and general legatees, and, § 423-426.] CONSTRUCTIVE FRAUD. 407 been already alluded to. The object of that statute was, to give full protection to subsequent purchasers from the grantor, against mere volunteers, under prior conveyances. As between the par- ties themselves, such conveyances are positively binding, and can- not be disturbed ; for the statute does not reach such cases. 1 § 426. It was for a long period of time a much litigated ques- tion in England, whether the effect of the statute was to avoid all voluntary conveyances (that is, all such as were made merely in consideration of natural love or affection, or were mere gifts), although made bond fide, in favor of all subsequent purchasers, with or without notice ; or whether it applied only to conveyances made with a fraudulent intent, and to purchasers without notice. After no inconsiderable diversity of judicial opinion, the doctrine has at length been established in England (whether in conformity to the language or intent of the statute is exceedingly questiona- ble), that all such conveyances are void as to subsequent purcha- sers, whether they are purchasers with or without notice, although the original conveyance was bond fide, and without the slightest admixture of intentional fraud ; upon the ground that the statute in every such case infers fraud, and will not suffer the presump- tion to be gainsaid. 2 The doctrine, however, is admitted to be full 1 Petre v. Espinasse, 2 Mylne & Keen, Eq. Jurisd. B. 3, Pt. 2, ch. 3, § 4, p. 408 496 ; Bill v. Cureton, id. 503, 510 ; In re to 411 ; Pulvertoft v. Pulvertoft, 18 Ves. Grant, 2 Story, 313; Hopkirk v. Ban- 84,86, 111; Doe v. Routledge, Cowper, dolph, 2 Brock. 133; Hudnol o. Wilder, 711,712. Mr. Eonblanque has assailed 4 MeCord, 295. the doctrine that a purchaser with notice 2 Doe v. Manning, 9 East, 58 ; Pulver- should still be entitled to prevail against toft v. Pulvertoft, 18 Ves. 84, 86, 111 ; the bona fide voluntary conveyance, with Buckle v. Mitchell, 18 Ves. 100 ; Cotter- great force of reasoning. He asserts, ell v. Homer, 13 Simons, 506 ; Com. Dig. that it amounts to an encouragement on Chancery, 4 C. 7; Sterry v. Arden, 1 the part of the purchaser, of a breach of Johns. Ch. 261, 267 to 271 ; Com. Dig. that respect which is morally due to the Covin, B. 3, 4 ; Sugden on Vendors, ch. fair claims of others ; and that it may 16, § 1, art. 1, 2. [See the late able case render the provisions of a statute, in- of Tarlton v. Liddell, 7 Eng. Law & Eq. tended by the legislature to be preventive 360.] The elaborate judgment of Bord of fraud, the most effectual instrument Ellenborough, in Doe v. Manning (9 East, of accomplishing it. 1 Fonbl. Eq.B. 1, 58), contains a large survey of the an- ch. 4, § 13, note (g). To which it may be thorities, to which the learned reader is added, that it affords a, temptation, nay, referred. See also 1 Mad. Pr. Ch. 421 a premium arid justification on the part to 427 ; 1 Eonbl. Eq. B. 1, ch. 4, § 3, and of the grantor, to violate those obliga- notes (/) and (g) ; Jeremy on Eq. Jurisd. tions which his own voluntary convey- B. 1, ch. 2, § 1, p. 188 to 192 ; Newland ance imports, and which, in conscience on Contracts, ch. 34, p. 391 ; 2 Hovenden and sound morals, he is bound to hold on Frauds, ch. 18, p. 73, &e. ; Bell's Supp. sacred. [But though a settlor can defeat to Vesey, 25, 26 ; Atherley on Marr. Sett, the settlement when voluntary, by a deed ch. 13, p. 187, &c, 193, 194; Jeremy on or mortgage for value, he cannot by suf- 408 EQUITY JURISPRUDENCE. [CH. VII. of difficulties ; and it has been confirmed, rather upon the pressure of authorities, and the vast extent to which titles have been acquired and held under it, than upon any notion that it has a firm foundation in reason and a just construction of the statute. The rule stare decisis, has here been applied to give repose and secu- ri ty to titles fairly acquired, upon the faith of judicial decisions. 1 § 427. In America, a like diversity of judicial opinion has been exhibited. Mr. Chancellor Kent has held the English doctrine obligatory, as the true result of the authorities. But at the same time, he is strongly inclined to the opinion, that, where the pur- chaser has had actual (and not merely constructive) notice, it ought not to prevail. 2 When the same case, in which this opinion was declared, came before the Court of Errors of New York, Mr. Chief -Justice Spencer delivered an elaborate opinion against the English doctrine, and asserted that no voluntary conveyance, not originally fraudulent, was within the statute. The Court of Errors, on that occasion, left the question open for future decision. 3 But the doctrine of Mr. Chief-Justice Spencer has been asserted in the Supreme Court of the same State at a later period. 4 § 428. The question does not seem, positively, to have been adjudged in Massachusetts. But, in an important case of a voluntary conveyance (which was adjudged to be intentionally fraudulent), the court said : " That deed conveyed his (the grant- or's) title to the plaintiff, as against the grantor, and every other person, unless it was fraudulent at the time of its execution, in which case it was void against creditors and subsequent pur- chasers." 6 From this language it is certainly a just inference, f ering a judgment. Dolphin v. Aylward, 4 Jackson v. Town, 4 Cowen, 603, 604. L. R. 4 H. L. 486. It seems that a ven- See Seward v. Jackson, 8 Cowen, 406 ; dor who has made a voluntary convey- Wickes v. Clarke, 8 Paige, 165. ance cannot compel an unwilling pur- 5 Bicker v. Ham, 14 Mass. 139. And chaser to take the title ; otherwise, if the see Mr. Bigelow's note, Big. Dig. Convey- purchaser is willing to take the title, if ance, p. 200. [It seems well settled in good. Peter v. Nicolls, L. R. 11 Eq. 391. America that a voluntary settlement or A voluntary conveyance made without gift is good against subsequent grantees power of revocation, will be set aside on with notice. See Black v. Thornton, 31 presumed mistake, unless it is clear the Geo. 641 ; Howard o. Snelling, 32 Geo. settlor intended it to be irrevocable. 195 ; Aiken ». Bruen, 21 Ind. 137 ; Chaffin Hall v. Hall, L. R. 14 Eq. 365.] u . Kimball, 23 111. 36. As to whether the i Ibid. same rule applies to conveyances actually 2 Sterry v. Arden, 1 Johns. Ch. 261, fraudulent (as intended to defraud credi- 270, 271 ; s. o. 12 Johns. 536. tors), the authorities are in conflict. That 8 1 Sterry v. Arden, 12 Johns. 536, 554 a subsequent grantee with notice may to 559. avoid such conveyance, see Am. Leading § 426-429.] CONSTRUCTIVE FRAUD. 409 that voluntary conveyances, bond fide made, are, in that State, valid against subsequent purchasers. [And this doctrine has been distinctly affirmed in a late case in that State, where the authorities on this subject were critically examined. 1 ] § 429. The Supreme Court of the United States have come to the same conclusion ; and it may be fit here to state the grounds of that opinion, as given by the Chief Justice, in delivering the judgment of the court. " The statute of Elizabeth is in force in this district [of Columbia] . The rule, which has been uniformly observed by this court in construing statutes, is to adopt the con- struction made by the courts of the country, by whose legislature the statute was enacted. This rule may be susceptible of some modification when applied to British statutes, which are adopted in many of these States. By adopting them, they become our own as entirely as if they had been enacted by the legislature of the State. The received construction in England, at the time they were admitted to operate in this country, indeed, to the time of our separation from the British empire, may very properly be con- sidered as accompanying the statutes themselves, and forming an integral part of them. But, however we may respect subsequent Cases, 47 ; Wyman v. Brown, 50 Me. 139. means conclusive evidence, of fraud in Per can., see Stevens u. Morse, 47 N. H. the first voluntary conveyance ; and that 532 ; Gregory v. Ha worth, 25 Cal. 653. a voluntary gift made when the grantor Some cases imply that the fraudulent is not indebted, in good faith, and with- conveyance may be avoided, by subse- out intent to defraud future creditors or quent grantee with notice, if without val- subsequent purchasers, is good as against uable consideration, otherwise not. Cop- a subsequent purchaser for valuable con- page k. Barnett, 34 Miss. 621. And see sideration with notice. Such we under- Wymano. Brown, vbisup. A purchaser for stand to be the construction practically value without notice may avoid convey- adopted in this commonwealth, and which ances actually fraudulent, though for val- is, to use the words of Chancellor Kent, ue ; and voluntary settlements or gifts, un- 'the better American doctrine.' 4 Kent, less bona fide and reasonable. See Key- Com. (6th edit.) 463, note; Bennett v. nolds v. Vilas, 8 Wise. 471 ; Gardner v. Bedford Bank, 11 Mass. 421 ; Kicker v. Cole, 21 la. 205 ; Howard o. Snelling, Ham, 14 Mass. 137 ; Salmon v. Bennett, 1 ubi sup.] Conn. 525 ; Cathcart c. Kobinson, 5 Pet. 1 [Beali). Warren, 2 Gray, 446. Thomas, 280; Jackson a. Town, 4 Cow. 603; 1 J., there said : " The true construction of Story on Eq. § 427, et seq. ; 1 Cruise Dig. the statute we think is, that conveyances (Greenl. edit.) tit. 7, ch. 2, § 7, note ; 1 are not avoided merely because they are Amer. Lead. Cas. (3d edit.) 78." This voluntary, but because they are fraudu- entire opinion is an able exposition of the lent ; that a voluntary gift of real estate law upon the subject, and is eminently is valid as against subsequent purchasers deserving the careful consideration and and all other persons, unless it was fraud- study of all who desire to find a full and ulent at the time of its execution ; that a careful analysis of the principles devel- subsequent conveyance for a valuable oped by the numerous cases bearing consideration is evidence, but by no upon the question.] 410 EQUITY JURISPRUDENCE. [CH. VII. decisions (and certainly they are entitled to great respect), we do not admit their absolute authority. If the English courts vary their construction of a statute, which is common to the two countries, we do not hold ourselves bound to fluctuate with them. § 430. " At the commencement of the American Revolution, the construction of the statute of 27th of Elizabeth seems not to have been settled. The leaning of the courts towards the opinion, that every voluntary settlement should be deemed void as to a subse- quent purchaser, was very strong ; and few cases are to be found, in which such a conveyance has been sustained. But these deci- sions seem to have been made on the principle, that such subse- quent sale furnished a strong presumption of a fraudulent intent, which threw on the person, claiming under the settlement, the burden of proving it from the settlement itself, or from extrinsic circumstances, to be made in good faith, rather than as furnishing conclusive evidence not to be repelled by any circumstances what- ever. § 431. " There is some contrariety and some ambiguity in the old cases on the subject. But this court conceives that the modern decisions, establishing the absolute conclusiveness of a subsequent sale, to fix fraud on a family settlement, made without valuable consideration, — fraud not to be repelled by any circumstances whatever, — go beyond the construction which prevailed at the American Revolution ; and ought not to be followed. § 432. " The universally received doctrine of that day unques- tionably went as far as this. A subsequent sale without notice, by a person who had made a settlement not on a valuable considera- tion, was presumptive evidence of fraud ; which threw on those claiming under such settlement the burden of proving that it was made bond fide. This principle, therefore, according to the uniform course of this court, must be adopted in construing the statute of 27th of Elizabeth, as it applies to this case." 1 [* § 432 a. Where a bond given by the father to his son, for the payment of a sum of money at his decease, was assigned by the son, in contemplation of marriage, to the trustees of his marriage settlement, for the benefit of his wife and children, it was held, the trustees must be regarded as bond fide specialty creditors, it not 1 Cathcart v. Robinson, 6 Peters, 280. § 429-432 6.] constructive fraud. 411 appearing that the obligor, when he executed the bond, was in insolvent circumstances. 1 § 432 b. The rule seems well established in the American courts, that a voluntary conveyance or mere gift, for the settlement of a child, made by one in such pecuniary condition as to be entirely responsible for all his indebtedness, notwithstanding, is not to be held void as against creditors, either past or future, since there is no presumptive fraudulent intent, and the transaction is a natural and allowable disposition of property. Thus it was held in an early case in Vermont, where the authorities were very extensively and carefully examined, 2 that where one in prosperous circum- stances, and not largely indebted, in consideration of natural love and affection, made a voluntary conveyance of a portion of his estate to his daughter, leaving amply sufficient to pay* all he owed, that such conveyance was good against a subsequent mortgage given to secure a debt existing before the conveyance to the daughter. And it was held that it would not affect the validity of the latter conveyance, that the grantor subsequently, by unforeseen events, became embarrassed, and unable to pay all his debts exist- ing at its date. And in a recent decision in Kentucky 3 it was held that if the grantor be not indebted, at the date of a voluntary con- veyance to his wife, or a child, to such an extent that it will deprive the creditors of an ample fund for the payment of their debts, and there be no purpose of defrauding creditors, either existing or con- templated, the conveyance will be upheld in a court of equity. But it was held in another case, 4 that a distinction is to be made, so far 1 I* Payne v. Mortimer, 5 Jur. n. s. trade should remain under his control 749 • s. c. 5 Jur. n. s. 307 ; s. c. 1 Giff. 118 ; during his life, and becomes bankrupt g. c. 28 L. J. n. s. Ch. 437, 716. five years afterwards, it was held void as 2 Brackett v. Waite, 4 Vt. 389; s. c. 6 to all the property as to subsequent cred- id. 411 • Holley v. Adams, 16 id. 209. itors, on the ground of fraudulent intent. s Duhine v. Young, 3 Bush, 343. Ware ». Gardner, 17 W. K. 439 ; s. o. * Enders v. Williams, 1 Met. (Ky.) L. B. 7 Eq. 317. 347. The cases are very numerous in An assignment of substantially all the the late English equity reports, where debtor's property for the benefit of five conveyances claimed to have been fraud- of his creditors, was upheld under the ulent under the statutes of the 13 and 27 statute of 13 Eliz., and distinguished from Eliz. have been considered and deter- a preference under the bankruptcy act, mined, in Alton v. Harrison, 17 W. E. 1034, be- Where a trader not embarrassed at fore the Vice-Chancellor Stuart, and the time, voluntarily conveys all his real affirmed by Lord Justice Giffard, L. E. 4 and personal estate, present and future, Ch. App. 622. The ground of declaring including his stock in trade, to a trustee voluntary conveyances void as to credi- tor the benefit of his wife and children, tors, is further described, in Eeese Eiver but with the proviso that the stock in Silver Mining Co. v. Atwell, 17 W. E. 412 EQUITY JURISPRUDENCE. [CH. VII. as creditors are concerned, between a voluntary conveyance to children and strangers ; and that in the former case, -where there is no actual fraudulent intent, and the gift is a reasonable advance- ment to the child with reference to the grantor's means, and ample property, unencumbered, is retained for the payment of debts, the conveyance is good.] § 433. The doctrine as to subsequent conveyances of the grantor, avoiding prior voluntary conveyances, applies in England only to purchasers strictly and properly so called, 1 for, as between volun- tary conveyances, the first prevails ; unless the last be for the pay- ment of debts, which, indeed, can scarcely under such circum- stances, be called voluntary. 2 [So, a voluntary conveyance by a woman in contemplation of marriage, without the knowledge of her future husband, is not avoided by the marriage, under the 27 Eliz. ch. 4, since the husband does not take as a purchaser. 3 ] The doctrine is also to be understood with this qualification, that the first conveyance is bond fide ; for, if it is fraudulent, the second will prevail. 4 But then, in cases between different volunteers, a court of equity will generally not interfere, but will leave the par- ties where it finds them as to title. It will not aid one against another ; neither will it enforce a voluntary contract. 6 It has been said that there are exceptions, and' that they stand upon special grounds, such as the interference of courts of equity in favor of settlements upon a wife and children, for whom the party is under 601 (M. K.) ; Law Rep. 7 Eq. 347. See Chadwick v. Doleman, 2 Vern. 530, 531; also Beyf ul v. Bullock, Law Rep. 7 Eq. Boughton v. Boughton, 1 Atk. 625 ; Wor- 391 ; s. c. 17 W. R. 526. A deed will rail v. Jacob, 3 Meriv. 256, 269 ; Sear ». be held void which conveys the grant- Ashwell, 3 Swanst. 411, note, or's estate to different trusts after his 3 [Doe d. Richards o. Lewis, 5 Eng. decease from those covenanted for in a Law & Eq. 400. But the deed might former deed. Phelp v. Amcotts, 17 W. R. have been bad, if it had been found as a 703.] fact that it was intended as a fraud on 1 It extends to a mortgagee, however, marital rights.] Ledyard v. Butler, 9 Paige, 132. But not 4 Naldred v. Gilham, 1 P. Will. 580, to one who buys at a sheriff's sale. Ridg- 581; Colton v. King, 2 P. Will. 359; ■nay v. Underwood, 4 Wash. 129. Cecil v. Butcher, 2 Jac. & Walk. 573 to 2 1 Fonbl. Eq. B. 1, ch. 4, § 12; id. 578; 1 Fonbl. Eq. B. 1, ch. 4, § 25^ B. 1, ch. 5, § 2, and note (A) ; Jeremy on Viers v. Montgomery, 4 Cranch, 177; Equity Jurisd. B. 2, ch. 3, p. 283, § 25 ; ante, § 426. Atnerley on Marr. Sett. ch. 13, p. 185 ; 5 Pulvertoft v. Pulvertoft, 18 Ves. 91, Goodwin v. Goodwin, 1 Ch. Rep. 92 [173] ; 93, 99 ; Colman v. Sarrel, 1 Ves. Jr. 52, Clavering v. Clavering, 2 Vern. 473 ; s. c. 54 ; Ellison u. Ellison, 6 Ves. 656 ; Antro- Prec. Ch. 235 ; s. c. 1 Bro. Pari. Cas. 122 ; bus v. Smith, 12 Ves. 39 ; Ex parte^Fye, Villers v. Beaumont, 1 Vern. 100; Allen 18 Ves. 140; 1 White & Tudor's Eq. v. Arme, 1 Vern. 365 ; Earl of Bath and Lead. Cas. 420, and notes ; Minturn y. Montague's case, 3 Ch. Cas. 88, 89, 93 ; Seymour, 4 Johns. Ch. 500 ; Atherley on § 432 I, 433.] CONSTRUCTIVE FRAUD. 413 a natural and moral obligation to provide. 1 But, although the doc- trine in favor of such exceptions has been maintained by highly Man-. Sett. ch. 13, p. 186; id. ch. 5, p. 125, 131 to 145; 1 Fonbl. Eq. B. 1, ch. 4, § 25, and notes (e) and (i) ; id. B. 1, ch. 6, § 2, and note (h) ; § 3; Ex parte Pye, 18 Ves. 149. This doctrine, however, is to he understood with proper qualifications. If there be a voluntary contract, inter vivos, and something re- mains to be done to give it effect, as, for example, if there be a voluntary contract to transfer stock, and the stock is not transferred, a court of equity will not enforce the transfer. But if the stock is actually transferred, then a court of equity will enforce all the rights growing out of the transfer against anybody. Ellison v. Ellison, 6 Ves. 662 ; Colman v. Sarrel, 1 Ves. Jr. 50; Pulvertoft v. Pul- Tertoft, 18 Ves. 91, 93, 99. So in the case of a voluntary assignment of a bond, even where the bond is not delivered, but is kept in possession of the assignor, a court of equity, in the administration of the assets of the assignor, would con- sider the bond as a debt due to the as- signee, no farther act remaining to be done by the assignor. There is a plain dis- tinction between an assignment of stock, where the stock has not been trans- ferred, and an assignment of a bond. In the former case, the material act (the transfer) remains to be done by the grant- or; and nothing is in fact done which will entitle the, assignee to the aid of the court until -the stock is transferred; whereas the court will admit the assignee of a bond as a creditor. Upon this ground, where A. made a voluntary as- signment of a policy upon his own life to trustees, for the benefit of his sister and her children, if they should outlive him ; and he delivered the deed of assignment to one of the trustees, but he kept the policy in his own possession ; and after- wards surrendered the policy to the office for a valuable consideration ; and after- wards a bill was brought against A. by the surviving trustee in the deed, to have the policy replaced; it was decreed accordingly. The court said that the gift of the policy was complete without a delivery ; that no act remained to be done by the grantor to complete the title of the trustees ; and, therefore, it was not a case where the court was called upon to assist a volunteer. Fortescue v. Barnett, 3 Mylne & Keen, 36. On the other hand, if something remains to be done to give effect to the voluntary act or contract, a court of equity will not interfere to aid the party. Thus, where a testator had indorsed upon the back of a bond of his debtor, " I do hereby forgive the said A. B. the sum of £700, part of the within sum of £1200, for which he is indebted to me ; '' and afterwards died ; and a suit was brought against the debtor at law for the full amount of the bond ; and a bill was brought by him against the exec- utor for an injunction to restrain further proceedings in the action, on the payment of all sums due on the bond, except the £700, the court refused to interfere, say- ing that the plaintiff gave no considera- tion for the alleged release; and that, as the plaintiff was a mere volunteer, he had no right to come into equity for relief. In truth, there was no technical valid release at law ; and the court was asked to supply this defect. Tuffnell v. Constable, 8 Sim. 69. See Flower v. Mar- ten, 2 Mylne & Craig, 459, 474, 475; post, § 706, 706 a. Upon similar grounds, where an obligee of a bond, five days be- fore her death, signed a memorandum not under seal, which was indorsed on the bond, and which purported to be an as- signment of the bond without any con- 1 1 Fonbl. Eq. B. 1, ch. 4, § 25, and note (c) ; id. B. 1, ch. 5, § 2 ; Atherley on Marr. Sett. ch. 3, p. 131 to 139 ; 1 Fonbl. Eq. B. 4, ch. 1, § 7, and note (»); Ellis v. Nimmo, Lloyd & Goold, 348. But see contra, Holloway v. Headington, 8 Simons, 325, and Jefferys o. Jefferys, 1 Craig & Phillips, 138, 140; in both which cases Ellis v. Nimmo seems shaken, if not entirely overthrown. And see Moore v. Crofton, 3 Jones & Lat. 438. See ante, § 95, 169; post, § 706, 706 a, 787 a, 793, 793 6, 987, 1040 6. 414 EQUITY JURISPRUDENCE. [CH. VII. respectable authority, yet it must be now deemed entirely over- thrown by the weight of more recent adjudications, in which it has been declared that the court will not execute a voluntary contract, and that the principle of the court to withhold its assistance from a volunteer, applies equally whether he seeks to have the benefit of a contract, a covenant, or a settlement. 1 § 434. But, although voluntary conveyances and covinous con- veyances may thus, although good between the parties, be set aside sideration, and at the same time delivered the bond to the assignee ; it was held by the Lord Chancellor that the circumstan- ces of the case did not constitute it a donatio mortis causa because it was uncon- ditional ; and that the gift was incom- plete as an absolute gift ; and, as it was without consideration, it could not be en- forced by the assignee. Edward v. Jones, 1 Mylne & Craig, 226 ; s. c. 7 Sim. 325. See Antrobus v. Smith, 12 Ves. 39. See also Duffield v. Elwes, 1 Bligh, 493, 529, 530, n. s., where Lord Eldon said : " The principle, which is applied in the de- cision of this case, is the principle upon whicli courts of equity refuse to complete voluntary conveyances. No court of equity will compel a completion of them, and throughout the whole of what I have now read, the donor is con- sidered as a party who may refuse to complete the intent he has expressed. But I think that is a misapprehension ; because nothing can be more clear than that this donatio mortis causa must be a gift made by a donor in contemplation of the conceived approach of death ; that the title is not complete till he is actually dead ; and that the question, therefore, never can be, what the donor can be com- pelled to do, but what the donee, in the case of a donatio mortis causa, can call upon the representatives, real or personal, of that donor to do. The question is this, whether (he act of the donor being, as far as the act of the donor itself is to be viewed, complete, the persons who rep- resent that donor, in respect of personal- ty, — the executor in respect of realty, — and the heir-at-law, are not bound to complete that which as far as the act of the donor is concerned in the question was incomplete. In other words, where it is the gift of a personal chattel, or the gift of a deed, which is the subject of the donatio mortis causa, whether, after the death of the individual who made that 'gift, the executor is not to be considered a trustee for the donee ; and whether, on the other hand, if it be a gift affecting the real estate, — and I distinguish now between a security upon land and the land itself, — whether, if it be a gift of such an interest in law, the heir-at-law of the testator is not, by virtue of the opera- tion of the trust, which is created, not by indenture, but a bequest, arising from op- eration of law, a trustee for that donee. I apprehend that really the question does not turn at all upon what the donor could do, or what the donor could not do. But if it was a good donatio mortis causa, what the donee of that donor could call upon the representatives of the donor to do, after the death of that donor." 1 Lord Cottenham, in Jefferys v. Jeffe- rys, 1 Craig & Phillips, 138, 141; s. p. Holloway v. Headington, 8 Simons, 325. See also post, § 706, 706" a, 787, 793 6, 973, 987; Tuffnell v. Constable, 8 Sim. 69; Meek v. Kettlewell, before Lord Lynd- hurst in The (English) Jurist, 23 Dec. 1843, p. 1121. [Where the assured, in a policy of life assurance, made an assign- ment of it to a trustee for his children, and gave notice to the company and the trustee who accepted in writing, but pol- icy and assignment were never delivered to the trustee : held, that administrator of assured must deliver up policy to trus- tee. Otis v. Beckwith, 49 HI. 121. So a delivery, without consideration of shares, assigned in blank, upon trust to pay in- come to assignor for life, and at his death for certain charities (the assignor reserv- ing right to modify or revoke), is valid in equity, and will be upheld against the widow. Stone v. Hackett, 12 Gray, 227.] § 433-434 a.] constructive fraud. 415 and held void as to creditors and purchasers, and others, whom they may injure in their rights and interests ; yet we are not to understand, that courts of equity grant this relief, and interpose in favor of the latter, under all circumstances. On the contrary, they never do interpose at all, where the property has been conveyed by the voluntary and covinous grantee to a bond fide purchaser for a valuable consideration without notice. Such a person is a favorite in the eyes of courts of equity, and is always protected (as has been already intimated) against claims of this sort. 1 Indeed, in every just sense, his equity is equal to that of any other person, whether he be a creditor, or a purchaser of the grantor; and where the equity is equal, we have seen that the rule applies, potior est conditio possidentis. 2 And, where there is a bond fide purchaser from the voluntary or fraudulent grantor, and another from the voluntary or fraudulent grantee, the grantees will have preference, according to the priority of their respective titles. 8 [§ 434 a. .So, another qualification or exception to the general doctrine concerning the statute 27 Eliz. ch. 4, has lately been laid down ; viz., that in order that a subsequent conveyance to pur- chasers for value should have the effect to defeat a prior voluntary conveyance, it is essential that both conveyances should be made by one and the same person. Therefore, where a voluntary con- veyance had been made by an ancestor in his lifetime, and after- wards his devisee conveyed the same property to a bond fide purchaser for value, it was held that the first conveyance was not fraudulent and void, under the statute 27 Eliz. ch. 4, as against the subsequent purchaser. And the court said the principle upon which voluntary conveyances had been held fraudulent and void as against subsequent purchasers for value was, that by the second sale the vendor so entirely repudiated the former conveyance, as 1 Com. Dig. Chancery, 4 I. 3, 4 I. 11, Mass. 541; State of Connecticut v. Brad- 4 W. 29; ante, § 381; Atherley on Marr. ish, 14 Mass. 296; Trull v. Bigelow, 16 Sett. ch. 5, p. 128 ; ch. 14, p. 238 ; 2 Fonbl. Mass. 406 ; ante, § 64 c, 108, 139, 381, 409 ; Eq. B. 3, ch. 3, § 1, and notes ; id. B. 2, [Hubbell v. Currier, 10 Allen, 333J. ch. 6, § 2 ; Com. Dig. Covin, B. 3, 4 ; 2 2 Fonbl. Eq. B. 3, § 1 ; id. B. 2, ch. 6, Chancery, 4 I. 3, 4 I. 4, 4 W. 29 ; Sugden § 2 ; 1 Fonbl. B. 1, ch. 4, § 25 ; Fletcher on Vendors, ch. 16, § 10; Prodgers v. v. Peck, 6 Cranch, 87, 133 ; ante, § 298. Langham, 1 Sid. 123; Parr o. Eliason, 1 3 Anderson v. Roberts, 18 Johns. 513; East, 92, 95; Sterry v. Alien, 1 Johns, s. o. 3 Johns. Ch. 377, 378; Sands v. Hil- Ch. 261, 271 ; s. c. 12 Johns 536 ; F»ob- dreth, 14 Johns. 498. But see Preston o. erts v. Anderson, 3 Johns. Ch. 377, 378 ; Crofut, 1 Connect. 527, note ; Sugden on B. o. 18 Johns. 513; Bean v. Smith, 2 Vendors, ch. 16, § 10; Doe d. Newman ». Mason, 278, 279, 280; Gore v. Brazier, 3 Eusham, 9 Eng. Law & Eq. 417. 416 EQUITY JURISPRUDENCE. [CH. VII. that, against himself and the purchaser for value, it should be conclusively taken, that the intention to sell existed when he made the voluntary .conveyance, and that it was made in order to defeat the subsequent purchaser. And that this principle did not apply where the grantor in the second conveyance was a different person from him who made the voluntary conveyance, for the acts of one man could not show the mind and intention of another. 1 ] § 435. The civil law proceeded upon the same enlightened policy. In the case of alienations of movables, and immovables, bond fide purchasers for a valuable consideration, having no knowledge of any fraudulent intent of the grantor or debtor, were protected. " Ait praetor ; Quse fraudationis causa gesta erunt, cum eo, qui fraudem non ignoraverit, actionem dabo." 2 Upon this, there fol- lows this comment. " Hoc Edictum eum Coercet, qui sciens eum in fraudem creditorum hoc f acere, suscepit, quod in fraudem credi- torum fiebat. Quare, si quid in fraudem creditorum factum sit, si tamen is, qui cepit, ignoravit, cessare videntur verba Edicti." 3 And the very case is afterwards put, of a bond fide purchaser from a fraudulent grantee, the validity of whose purchase is unequivo- cally affirmed. " Is, qui a debitore, cujus bona possessa sunt, sciens rem emit, iterum alii bona fide ementi vendidit ; queesitum sit, an secundus emptor conveneri potest ? Sed verior est Sabini sententia, bona fide emptorem non teneri ; quia dolus ei duntaxat nocere debeat, qui eum admisit; quemadmodum diximus, non teneri eum, si ab ipso debitore ignorans emerit. Is autem, qui dolo malo emit, bona fide autem ementi vendidit, in solidum pretium rei, quod accepit, tenebitur." 4 The same doctrine is fully recognized by Voet. 5 And its intrinsic justice is so persuasive and satisfac- tory, that, whether derived from Roman sources or not, it would have been truly surprising not to have found it embodied in the jurisprudence of England. 6 § 436. Indeed, the principle is more broad and comprehensive; 1 Doe d. Newman v. Rusham, 9 Eng. 2 Dig. Lib. 42, tit. 8, 1. 1. Law & Eq. 410, overruling Jones v Whitr 8 Dig. Lib. 42, tit. 8, 1. 6, § 8 ; 1 Domat, taker, 1 Longf. & Towns. Ir. 14 ; [Bell v. B. 2, tit. 10, § 42, art. 3. McCawley, 29 Geo. 355]. On the other * Dig. Lib. 42, tit. 8, 1. 9; Pothier, hand, it has been held in America, that a Pand. Lib. 42, tit. 8, art. 3, § 25. purchaser for value of the administrator 5 2 Voet, Comm. Lib. 42, tit. 8, § 10, of a person who had made a voluntary p. 195. conveyance, might avoid the former deed 6 Wilson v. YCorral's case, Godb. 161 ; as a subsequent purchaser under 27 Eliz. Bean v. Smith, 2 Mason, 279 to 281 ; An- ch. 4 ; Clapp v. Leatherbee, 18 Pick. 131. derson «. Roberts, 18 Johns. 513. See § 426, note (2). § 434 0-437.] CONSTRUCTIVE PEAUD. 417 and, although not absolutely universal (for we have seen that there are anomalies in the case of judgment creditors, and the case of dower) ; * yet it is generally true, and applies to cases of every sort, where an equity is sought to be enforced against a bond fide purchaser of the legal estate without notice, or even against a bond fide purchaser, not having the legal estate, where he has a better right or title to call for the legal estate than the other party. 2 It applies, therefore, to cases of accident and mistake, as well as to cases of fraud, which, however remediable between the original parties, are not relievable, as against such purchasers, under such circumstances. 3 § 437. We have thus gone over the principal grounds upon which courts of equity grant relief in matters of accident, mistake, and fraud. In all these cases (to recur to a train of remark already suggested), it may be truly asserted, that the remedy and relief administered in courts of equity are, in general, more complete, adequate, and perfect, than they can be at common law. The remedy is more complete, adequate, and perfect, because equity uses instruments and proofs not accessible at law ; such as an injunction, operating to prevent future injustice, and a bill of dis- covery, addressing itself to the conscience of the party in matters of proof. The relief, also, is more complete, adequate, and per- fect, inasmuch as it adapts itself to the special circumstances of each particular case ; adjusting all cross equities ; and bringing all the parties in interest before the court, so as to prevent multiplicity of suits and interminable litigation. 4 Courts of law, on the other hand, cannot do more than pronounce a positive judgment in a set formulary, for the plaintiff or for the defendant, without professing or attempting to qualify that judgment, according to the relative equities of the parties. Thus, if a deed is fraudulently obtained without consideration, or for an adequate consideration ; or, if by 3 See ante, § 57 a, 108, 381, 410, note ; (e) ; id. B. 1, ch. 1, § 7 ; Sugden on Vendors, post, § 630, 631 ; 1 Fonbl. Eq. B. 1, ch. 1, ch. 16 ; 2 Chance on Powers, ch. 23, § 1, § 3, note, p. 22 ; 2 Fonbl. Eq. B. 2, ch. 6, art. 2859 to 2863 ; Pomfret v. Windsor, 2 § 2, notes (h) and (i) ; id. B. 3, ch. 3, § 1, Ves. 472, 486 ; Medlicott v. O'Donel, 1 B. note (a) ; id. B. 6, ch. 3, § 3, note (») ; 1 & Beatt. 171 ; Ex parte Knott, 11 Ves. Fonbl. Eq. B. 1, ch. 1, § 7, note (w) ; id. B. 618; Brace v. Duchess of Marlborough, 1, ch. 1, § 3, note (/), p. 22 ; id. B. 1, ch. 2 P. Will. 495 ; ante, § 64 c, 108, 139, 381, 5, § 4 ; Jeremy on Eq. Jurisd. B. 2, ch. 3, 409, 411 ; post, § 434, 436. p. 283 ; Mitford, Eq. PL by Jeremy, 274, * Ante, § 64 c, 108, 381, 409, 410, 434; note Id). post, § 630, 631. 2 2 Fonbl. Eq. B. 2, ch. 6, § 2, note i See MM. Eq. PI. by Jeremy, p. Ill, (A) ; 1 Fonbl. B. 7, ch. 4, § 25, and note - 112, 113. EQ. JUR. — VOL. I. 27 418 EQUITY JURISPRUDENCE. [CH. VII. fraud, accident, or mistake, a deed is framed contrary to the inten- tion of the parties in their contract on the subject ; the forms of proceeding in the courts of common law will not admit of such an investigation of the matter in those courts, as will enable them to do justice. The parties claiming under the deed have, therefore, an advantage in proceeding in a court of common law, which it is against conscience they should use. Courts of equity will (as we have seen), on this very ground, interfere to restrain proceedings at law, until the matter has been properly investigated. And, if it finally appears that the deed has been improperly obtained ; or that it is contrary to the intention of the parties in their contract ; these courts will, in the first case, compel a delivery and cancella- tion of the deed ; or order it to be deposited with an officer of the court ; and will farther direct a reconveyance of the property, if it has been so conveyed that a reconveyance may be necessary. In the second case, they will either rectify the deed according to the intention of the parties ; or they will restrain the use of it in the points in which it has been framed contrary to, or it has gone beyond their intention in the original contract. 1 § 438. In like manner, courts of equity will (as we have seen) aid defective securities under like circumstances. They will also interfere, not only to relieve against instruments which create rights, but against those which destroy rights ; such as a release fraudulently or improperly obtained. 2 And, finally, they will not only prevent the unfair use of any advantage in proceed- ing in a court of ordinary jurisdiction, gained by fraud, accident, or mistake, but they will also, if the consequences of the ad- vantage have been actually obtained, restore the injured party to his rights. 3 § 439. The flexibility of courts of equity, too, in adapting their decrees to the actual relief required by the parties, in which their proceedings form so marked a contrast to the proceedings at the common law, is illustrated in a striking manner, in cases of acci- dent, mistake, and fraud. If a decree were in all cases required to be given in a prescribed form, the remedial justice would neces- sarily be very imperfect, and often wholly beside the real merits 1 Mitf. Eq. PI. by Jeremy, 128, 129; principles upon which courts of equity id. 112, 113. take jurisdiction in such cases, see Rolfe * Mitf. Eq. PI. by Jeremy, 129, 130. v. Gregory, 4 De G., J. & S. 679 ; 1 Peny 8 Ibid. 131. [For a statement of the on Trusts, § 166.1 § 437-439.] CONSTRUCTIVE FRAUD. 419 of the case. Accident, mistake, and fraud are of an infinite variety in form, character, and circumstances, and are incapable of being adjusted by any single and uniform rule. Of each of them one might say, " Mille trahit varios adverso sole colores." The beau- tiful character, pervading excellence, if one may so say, of equity jurisprudence is, that it varies its adjustments and proportions, so as to meet the very form and pressure of each particular case in all its complex habitudes. Thus, to present a summary of what has been already stated, if conveyances or other instruments are fraudulently or improperly obtained, they are decreed to be given up and cancelled. 1 If they are money securities, on which the money has been paid, the money is decreed to be paid back. If they are deeds, or other muniments of title, detained from the rightful party, they are decreed to be delivered up. 2 If they are deeds suppressed or spoliated, the party is decreed to hold the same rights as if they were in his possession and power. 3 If there has been any undue concealment, or misrepresentation, or specific promise collusively broken, the injured party is placed in the same situation, and the other party is compelled to do the same acts, as if all had been transacted with the utmost good faith. 4 If the party says nothing, but by his expressive silence misleads another to his injury, he is compellable to make good the loss ; and his own title, if the case requires it, is made subservient to that of the confiding purchaser. 5 If a party, by fraud or misrep- resentation, induces another to do an act injurious to a third person, he,is made responsible for it. 6 If, by fraud or misrepresen- tation, he prevents acts from being done, equity treats the case, as to him, as if it were done ; and makes him a trustee for the other. 7 If a will is revoked by a fraudulent deed, the revocation is treated as a nullity. 8 If a devisee obtains a devise by fraud, he is treated as a trustee of the injured parties. 9 In all these, and 1 See 1 Mad. Pr. Ch. 208, 211, 212, 261 ; 1 Mad. Pr. Ch. 552; 1 Jac. & Walk. MM. Eq. PI. by Jeremy, 127, 128, 132. 96; 11 Ves. 638. 2 Mitf . Eq. PI. by Jeremy, 124. 8 1 Fonbl. Eq. B. 1, ch. 1, § 3, note (/), 2 Mitf. Eq. PI. 117, 118; Jeremy on p. 13; id. B. 1, ch. 2, § 13, note (q). But Eq. Jurisd. B. 3, Pt. 2, ch. 3, § 1, 385, &c. ; Bee Ambler, 215; 3 Bro. Ch. 156, note ; 7 1 Mad. Pr. Ch. 211, 258. Ves. 373, 374. 4 1 Mad. Pr. Ch. 209, 210; 1 Fonbl. 9 1 Eonbl. Eq. B. 1, ch. 1, § 3, note Eq. B. 1, ch. 3, § 4, and notes. (/), p. 13 ; 2 Fonbl. B. 4, Pt. 1, ch. 1, § 3, 6 1 Mad. Pr. Ch. 211 ; 1 Fonbl. Eq. B. and note (g) ; Mitf. Eq. PI. by Jeremy, 1, ch. 3, § 4, and notes (m) and (n). _ 257. 6 3 P. Will. 131, note ; Jeremy on Eq. Jurisd. B. 3, ch. 2, § 1, p. 388, 389. 420 EQUITY JURISPRUDENCE. [CH. VII, many other cases which might be mentioned, courts of equity undo what has been done, if wrong ; and do what has been left, undone, if right. § 440. "We may conclude this head, by calling the attention of the reader to the remark (which has been necessarily introduced in another place), that courts of equity will exercise a concurrent jurisdiction with courts of law in all matters of fraud, excepting only of fraud in obtaining a will, which, if of real estate, is con- stantly referred to a court of law to decide it, in the shape of an issue of devisavit vel non ; 1 and which, if of personal estate, is, in England, cognizable in the spiritual or ecclesiastical courts. 2 But, even in this case, the bill may be retained, to abide the decision in the proper court, and relief be decreed according to the event. 3 No other excepted case is known to exist ; and it is not easy to discern the grounds upon which this exception stands, in point of reason or principle, although it is clearly settled by authority. 4 But where the fraud does not go to the whole will, but only to some particular clause ; or where the fraud is in unduly obtaining the consent of the next of kin to the probate, courts of equity will lay hold of these circumstances to declare the executor a trustee for the next of kin. 5 [* § 440 a. As there are many schemes now set on foot to dis- pose of alleged mineral treasures, represented to lie buried in other- wise valueless lands, by means of joint-stock companies set on foot for the purpose of purchasing such lands at a price far above their known value, and this kept secret as to the shareholders and a majority of the directors often ; it may be useful to state a recent decision by the present Lord Chancellor Hatherly, as Vice-Chan- cellor Wood ; 6 the defendant held a lease of the lands alleged to 1 See Gould v. Gould, 3 Story, 537; 108 ; Mitf. Eq. PI. by Jeremy, 257 ; Barnes- [Archer v. Meadows, 33 Wis. 167 ; 1 Perry ley v. Powell, 1 Ves. 284 ; id. 119 ; 1 Mad. on Trusts, § 182]. Pr. Ch. 206 ; Jones v. Jones, 7 Price, 663; 2 Ante, § 184, 238; Allen v. Macpher- Allen v. Macpherson, 1 Phill. Ch. 133. son, 5 Beav. 469 ; s. c. on Appeal, 1 Phil- 6 Mitf. Eq. PI. by Jeremy, 257 ; Barn- lips, Ch. 133. esley v. Powell, 1 Ves. 284 ; Tucker ». 3 See ante, § 184, note ; and Gaines &, Phippe, 3 Atk. 360 ; Allen v. Macpherson, Wife v. Chew, 2 Howard, Sup. Ct. 619, 1 Phill. Ch. 133. In this last case many 645. of the former decisions are collected in * Ante, § 184, 238, 252, 254; 1 Fonbl. which courts of equity have granted re- Eq. B. 1, ch. 1, § 3, note (/), p. 13; 2 lief in cases of fraud in wills. See the Fonbl. Eq. B. 4, Pt. 1, ch. 1, § 3, and note opinion cited at large, ante, § 184, note ; (e) ; Kerrick v. Bransby, 3 Brown, Pari, and also the other authorities cited in the Cas. 358 ; 7 Bro. Pari. Cas. by Tomlins, same note, p. 437. See Wild v. Hobson, 2 Ves. & B. » [Atwool v. Merryweather, Law Bep. § 439-440 J.J CONSTRUCTIVE FRAUD. 421 have mineral lead upon them, but which he seemed to have known to be of small value. In order to dispose of the lease for twenty- one years at £4,000, the company was formed by an accomplice for the purchase of the lands or the lease at £7,000, he to retain £3,000 for his services in forming the company, and the defend- ant to receive £4,000 for the lease and a certificate of 600 paid-up shares in the company at £5 each, making £3,000 more. The capital stock of the company was fixed at £30,000, £3,940 of which had been paid by the subscribers and gone into the defend- ant's hands when the fraud was discovered ; all the directors except the defendant and his one accomplice supposing that the bond fide price of the land was £7,000, and that the defendant paid for his shares. The court set aside the contract, and decreed the defend- ant to restore the money received by him, and to surrender his certificate of shares. § 440 b. The subject of shareholders in joint-stock companies being bound to contribute to the payment of debts of the com- pany by reason of allowing their names to remain upon the list of shareholders, notwithstanding they may have been induced in the first instance to take shares in the company by the fraudulent misrepresentations of the company, has been largely discussed in the English courts within the last few years ; and the rule seems to be now firmly established in the House of Lords. 1 The gene- ral principles involved are thus stated in the House of Lords. Where a person has been by the fraudulent misrepresentation of directors, or their fraudulent concealment of facts, drawn into a contract to purchase shares in a company, the directors cannot enforce the contract against him, but he may rescind it. But he must do so within a reasonable time. A contract induced by fraud is not void but voidable, and therefore, although the persons who induced the same by fraud may not enforce it, other persons may, in consequence of it, acquire interests and rights, which they may enforce against the party so drawn into the con- tract. 5 Eq. 464 The question how far aequi- 325 ; s. c. Law Rep. 3 Eq. 576 ; s. p. Hen- escence in any such fraud will preclude derson v. The Royal British Bank, 7 E. & redress, and what amounts to such acqui- B. 356. See Henderson u. Lacon, L. B. escence, was considered by the same 5 Eq. 249, as to acquiescence. See Ash- learned judge in Clinch o. Financial Cor- ley's case, L. R. 9 Eq. 263. See ante, poration, Law Rep. 5 Eq. 450. See ante, § 323, note (2). Upon the general ques- § 323, note (1). tion of the jurisdiction in courts of 1 Oakes v. Turquand, Law Rep. 2 H. L. equity to set aside conveyances made in 422 EQUITY JURISPRUDENCE. [CH. VII. § 440 c. The rule of law that persons co-operating in an illegal transaction will not obtain the aid of a court of equity applies to the mode of relief by setting aside conveyances fraudulently exe- cuted or obtained. 1 But where the parties to the conveyance do not stand upon an equal footing, the grantor being in an infirm state of mind, and not competent to conduct his business affairs with ordinary skill and sagacity, and the grantee was his son-in-law and confidential friend and legal adviser, and the grantor acted on the advice of the grantee, it was held the parties were not so far in pari delicto, or upon equal grounds, as to preclude the relief sought by the grantor in compelling the grantee to reconvey the land in pursuance of an oral agreement, notwithstanding the pur- pose of the grantor in making the conveyance was to place the premises for the time out of the reach of his creditors, and was unquestionably fraudulent as to them. 2 But a court of equity will not set aside a mortgage upon the ground that the plaintiff was induced to execute it through the fraudulent representation of the defendant that he would not enforce it ; nor upon the ground of misrepresentation, as to the legal effect of the instrument. 3 § 440 d. One who appeals to a court of equity to declare an absolute deed to operate merely as a mortgage must allege and prove that the clause of redemption was omitted by reason of igno- rance, fraud, mistake, or undue advantage taken by the grantee against the grantor. The allegation that the grantor executed the deed without condition, " but intended it simply as a mortgage, as will more fully appear by the proofs," will not be sufficient ground for relief. Nor is the allegation that the grantee agreed to make a defeasance at a subsequent day sufficient. 4 ] fraud of the rights of others and award extensively discussed and placed in a damages for injuries already incurred or very clear light. likely hereafter to ensue, see Dodd i». 2 Freelove v. Cole, 41 Barb. 318. See Cook, 11 Gray, 495 ; Whitemore t>. Cor- also as to the disposition of courts of yell, 7 Allen, 446. But such courts will equity to set aside contracts, where the not interfere to set aside a conveyance parties stand in unequal relations as to which is not capable of doing injury to capacity, and an unconscionable advan- the plaintiff, although made with -that tage has been taken of the weaker party, purpose. Johnson v. Crane, 40 Barb. 78. and allow securities so taken to stand Nor will the court interfere, where the only for the amount actually advanced, defect seems merely formal, and one See Futrill u. Futrill, 6 Jones, Eq. 337 ; which may be cured by presumption or Garrow v. Brown, 1 Winst. Eq. 46. construction. Ludlow v. Van Ness, 8 8 Catlin v. Fletcher, 9 Min. 85. See Beav. 178. also Fish v. Cleland, 33 HI. 238. 1 Stewart . 3 Sumner, 98, 111 ; Pattison v. Hull, 9 Picton, 4 Barn. & Cressw. 715. See an Cowen, 747, 765 to 773 ; Clayton's case, elaborate article on the question of the 1 Meriv. 605, 606, 607, 608. But see Hall Appropriation of Payments in the Ameri- v. Wood, 14 East, 243, n. ; Kirby v. Duke can Law Magazine (Philadelphia), No. 1, of Marlborough, 2 Maule & Sel. 19; for April, 1843, p. 31 to 52. See also 1 Marryatts v. White, 2 Starkie, 101 ; Pe- American Lead. Cas. 123, and notes, ters v. Anderson, 5 Taunt. 596; Bosan- § 459 e-459 g.] account. 445 the balance of the old firm, in the order of the earliest items thereof. " In such a case " (it has been said by a very able judge), " there is no room for any other appropriation than that which arises from the order in which the receipts and payments take place, and are carried into the account. Presumably, it is the sum first paid in that is first drawn out. It is the first item on the debit side of the account that is discharged or reduced by the first item on the credit side. The appropriation is made by the very act of setting the two items against each other. Upon that principle all accounts current are settled, and particularly cash accounts. "When there has been a continuation of dealings, in what way can it be ascer- tained whether the specific balance, due on a given day, has or has not been discharged, but by examining whether payments to the amount of that balance appear by the account to have been made ? You are not to take the account backwards, and strike the balance at the head, instead of the foot of it. A man's banker breaks, owing him, on the whole account, a balance of £ 1,000. It would surprise one to hear the customer say : ' I have been for- tunate enough to draw out all that I paid in during the last four years ; but there is £1,000 which I paid in five years ago, that I hold myself never to have drawn out ; and, therefore, if I can find anybody who was answerable for the debts of the banking-house, such as they stood five years ago, I have a right to say, that it is that specific sum which is still due to me, and not the £1,000 that I paid in last week.' " 1 § 459 g. On the other hand, if, under the like circumstances, moneys have been received by the new firm, and drawn out by the creditor from time to time, and upon the whole, the original bal- ance due to the creditor has been increased, but never at anytime been diminished, in the hands of the firm ; in such a case, the items of payment made by the new firm are still to be applied to the extinguishment of the balance of the old firm, and will dis- charge the share of the deceased or retiring partner to that extent, but no further ; for, in such a case, the general rule as to running i Sir William Grant, in Clayton's case, Clark & Finnell. 214, 227, 228. [So where 1 Meriv. 608, 609 ; Johne's case, 1 Meriv. the first deposit was a trust fund, but 619 ; Smith v. Wigley, 3 Moore & Scott, more than its amount has since been 174; Sterndale v. Hankinson, 1 Simons, drawn out, the balance in bank cannot 393; Bodenham v. Purchas, 2 Barn. & be followed as such fund. Brown v. Aid. 39 ; Pemberton v. Oakes, 4 Russ. Adams, L. R. 4 Ch. App. 764.] 154; Bank of Scotland a. Christie, 8 446 EQUITY JURISPRUDENCE. [CH. Till. accounts is applied with its full force. 1 A fortiori, where payments have been made, and no new sums have been deposited by the creditor with the new firm, the payments will be applied in extin- guishment, pro tanto, of the balance due by the old firm, in the order of the items thereof. 2 § 459 h. The cases which we have hitherto been considering, are cases of running accounts ; and, under such circumstances, the rule will apply equally to cases where a part of the debt is secured by a guaranty or by sureties as well as where there are no such parties. 3 But, where there are no such running accounts, if no special appropriation is made by the debtor, the creditor may, as we have seen, 4 apply the money to any [legal] demand which he has against the debtor, whether it be a balance of an old account, or of a new account ; for in such a case the interest of third per- sons is not concerned, and the case of running accounts constitutes, as it were, an implied appropriation by the parties to the account generally. 6 And payments made generally by a debtor to his cred- itor may be applied by the creditor to a balance due to the creditor, although other debts have since been incurred, upon which the debtor has given a bond, with a surety, for security thereof. 6 By 1 Palmer's case, 1 Meriv. 623, 624; Sleech's case, 1 Meriv. 538; Bodenham v. Purchas, 2 Barn. & Aid. 39. See In re Mason, 3 Mont., Deac. & De Gex, 490 ; Law Magazine, May, 1845, p. 184. 2 Sleech's case, 1 Meriv. 538, &c. 3 United States v. Kirkpatrick, 9 Wheat. 720, 737, 738; United States v. Wardwell, 5 Mason, 82, 87 ; Postmaster- General v. Furher, 4 Mason, 333, 335. But see United States v. Eckford's Ex'rs, 1 Howard, Sup. Ct. 250; s. c. 17 Peters, 251 ; United States v. January, 7 Cranch, 672. [Where a compromise of three different debts was made for a sum less than their face, payment to be made by instalments, and if any instalment not paid, creditor to be remitted to his origi- nal rights, and on the first debt a judg- ment had been recovered, making it a lien on land : Held, that as against sub- sequent encumbrancers an instalment must be applied pro rata to the three debts. Thompson v. Hudson, L. R. 6 Ch. App. 320. Where three notes were se- cured by same mortgage, held, proceeds of foreclosure sale might be applied to note last maturing, without discharging surety on first note. Matthews v. Swit- rees, 46 Mis. 301.J 4 Ante, § 459 b. 6 Lysaght v. Walker, 5 Bligh (n. b.), 1, 28; Bosanquet o. Wray, 6 Taunt. 597; Brooke v. Endeby, 2 Brod. & Bing. 70. In United States v. January, 7 Cranch, 572, it seems to have been thought by a ma- jority of the court, " that the rule adopted in ordinary cases is not applicable to a case where different sureties under differ- ent obligation are in interest." But that case was one of a public officer, who had given bonds at different times. The case was very obscurely reported ; but its true bearing is stated in a note to United States v. Wardwell, 5 Mason, 87. It is true, that the case of United States v. January has been recognized as good law in United States v. Eckford's Ex'ors, 1 How. Sup. Ct. 250, 261. But there were peculiar circumstances in this last case ; and United States v. Kirkpatrick express- ly recognizes the general doctrine of ap- propriation. 6 Kirby v. Duke of Marlborough, 2 M. & Selw. 18; Williams v. Kawlinson, 3 Bing. 71 ; Parr v. Howlin, 1 Ale. & Nap. 197. § 459 #-462.] account. — agency. 447 the Scotch law, a creditor, having several debts due from the same debtor, has a right to ascribe a payment made indefinitely and without appropriation by his debtor, to whichever debt he may see fit to apply it, and is entitled to make this appropriation and elec- tion even at the latest hour. 1 The rule of our law seems (as we have seen) more qualified, and to omit the right of election of the creditor to a reasonable period after the payment, or to cases where the appropriation may be presumed to be indifferent to the debtor. 2 § 460. In cases of account not founded in any such privity of contract, but founded upon relations and duties required by law, or upon torts and constructive trust, for which equitable redress is sought, it is more difficult to trace out a distinct line, where the legal remedy ends, and the equitable jurisdiction begins. § 461. In our subsequent examination of this branch of juris- diction, it certainly would not be going beyond its just boundaries, to include within it all subjects which arise from the two great sources already indicated, and terminate in matters of account; namely, first, such as have their foundation in contract, or quasi contract, and, secondly, such as have their foundation in trusts, actual or constructive, or in torts affecting property. But, as many cases included under one head are often connected with principles belonging to the other, and as the jurisdiction of courts of equity is often exercised upon various grounds, not completely embraced in either; or upon mixed considerations; it will be more convenient, and perhaps not less philosophical, to treat the various topics under their own appropriate heads, without any nice dis- crimination between them. We may thus bring together in this place such topics only as do not seem to belong to more enlarged subjects, or such as do not require any elaborate discussion, or such as peculiarly furnish matter of illustration of the general principles which regulate the jurisdiction. § 462. Let us, then, in the first place, bring together some cases arising ex contractu, or quasi ex contractu, and involving accounts. And here, one of the most general heads is that of AGENCY, where one person is employed to transact the business of another for a recompense or compensation. The most important agencies of 1 Campbell v. Dant, 2 Moore, Priv. 2 Ante, § 459 b, 459 c. See Caldwell Conn. 292. See Moss v. Adams, 4 Ire- v. Wentworth, 14 N. H. 431. dell, E4. 42. 448 v EQUITT JURISPRUDENCE. [CH. VIII. this sort which fall under the cognizance of courts of equity, are those of attorneys, factors, bailiffs, consignees, receivers, and stew- ards. 1 In most agencies of this sort, there are mutual accounts between the parties ; or, if the account is on one side, as the rela- tion naturally gives rise to great personal confidence between the parties, it rarely happens that the principal is able, in cases of con- troversy, to establish his rights, or to ascertain the true state of the accounts, without resorting to a discovery from the agent. Indeed, in cases of factorage and consignments, and general receipts and disbursements of money by receivers and stewards, it can scarcely be possible, if the relation has long subsisted, that very intricate and perplexing accounts should not have arisen, where, independently of a discovery, the remedy of the principal would be utterly nugatory, or grossly defective. It would be rare, that spe- cific sales and purchases, and the charges growing out of them, could be ascertained and traced out with any reasonable certainty ; and still more rare, that every receipt and disbursement could be verified by direct and positive evidence. The rules of law in all such agencies require that the agent should keep regular accounts of all his transactions, with suitable vouchers. 2 And it is obvi- ous, that if he can suppress all means of access to his books of account and vouchers, the principal would be utterly without redress, except by the searching power of a bill of discovery, and the close inspection of all books, under the authority and guidance of a Master in Chancery. Besides, agents are not only responsible for a due account of all the property of their principals, but also for all profits which they have clandestinely obtained by any 1 Jeremy on Eq. Jurisd. B. 3, Pt. 2, v, Sharland, 5 Ves. 87 ; Moses v. Lewis, ch. 5, p. 513 to 515. In general, a bill 12 Price, 502. In this last case the will not lie by an agent against his prin- court refused to entertain jurisdiction for cipal, for an account, unless some special an account, it appearing that the whole ground is laid ; as the incapacity to get matter was a set-off or other defence at proof, unless by discovery. Dinwiddie law. The court admitted the general v. Bailey (6 Ves. 136). But in the case jurisdiction of courts of equity in mat- of stewards, a discovery from his prin- ters of account ; but denied that it was cipal is ordinarily necessary, for the rea- applicable to cases of this sort. Id. 510. . sons stated by Lord Eldon in the same See also Frietas v. Don Santos, 1 Y. & case (6 Ves. 141). " The nature of this Jerv. 574; Smith v. Leveaux, 2 De G-, J. dealing is, that money is paid in confi- & S. 1. dence, without vouchers, embracing a 2 Pearce v. Green, 1 Jac. & Walk. 135 ; great variety of accounts with the ten- Ormond v. Hutchinson, 13 Ves. 53; ants ; and nine times in ten, it is impossi- Clarke v. Tipping, 9 Beavan, 284. ble that justice be done to the steward," [Otherwise where the relation is only without going into equity for an account that of servant. Rich v. Austin, 40 Vt. against his principal. See Middleditch 416.] § 462-462 J.J account. — agency. 449 improper use of that property. And the only adequate means of reaching such profits must be by such a bill of discovery. 1 In cases of-, fraud, also, it is almost impracticable to thread all the intrica- cies of its combinations, except by searching the conscience of the party, and examining his books and vouchers ; neither of which can be done by the courts of common law. 2 [* § 462 a. The bare relation of principal and agent does not entitle the principal to come into a court of equity for an account, if the matter can be fairly tried at law. 3 And where the principal brought a bill for an account against one employed as commercial traveller, he was held entitled to an account only from the time of giving notice to the agent to keep and render a special account. 4 And it was here held that special damage by reason of the mis- conduct of the agent was no ground for compensation by way of an account. And an agent cannot maintain a bill for an account upon the ground alone that he was entitled to commissions for his services. 5 But if the defendant as agent has received sums of money for the plaintiff, the particulars and amount of which are unknown to him, a bill praying for discovery and an account will be maintained. 6 Where the accounts are too complicated to be dealt with in a court of law, a court of equity will entertain juris- diction. 7 § 462 b. There is a somewhat remarkable case 8 decided by Lord Chelmsford, Chancellor, in regard to the liability of an agent to 1 East India Company v. Henchman, cannot sue for an account in equity. 1 Ves. Jr. 289 ; Massey v. Dayies, 2 Ves. Moxon v. Bright, L. R. 4 Ch. App. 292. Jr. 318 ; Borr v. Vandall, 1 Ch. Cas. 30. But that one whose compensation is 2 Earl of Hardwicke u. Vernon, 14 measured by profits, is entitled to an Ves. 510. account of profits, see Hargrave v. Con- 8 [* Barry v. Stevens, 31 Beav. 258. roy, 4 C. E. Green, 281. Where the But in Makepiece v. Rogers, 11 Jur. w. s. inquiry into profits is merely collateral, 314 ; s. c. 34 L. J. n. b. Ch. 396 ; in the there is no right to maintain a bill for court of Chancery Appeal, Lord Justice an account otherwise than on ground of Turner said, " There was no authority for discovery in aid of proceedings at law. saying that a bill would not lie at any Haskins v. Burr, 106 Mass. 48. time by a principal against an agent for 6 Hemings v. Pugh, 9 Jur. w. s. 1124 ; an account." And his lordship regretted s. c. 4 Gill, 456 ; Taylor v. Tompkins, 2 that any thing said by him in Phillips v. Heisk. (Tenn.) 89. Phillips, 9 Hare, 471, should have in- ' Hill v. So. Staffordshire Railway, 11 duced a contrary opinion. Jur. x. s. 192. 4 Hunter v. Belcher, 9 Law T. n. s. 8 Turner v. Burkinshaw, Law Rep. 2 501. Ch. App. 488. How far the party injured 6 Smith v. Leveaux, 1 H. & M. 123 ; by the fraud of another may lose his s. o. 2 De G., J. & S. 1. [So one entitled remedy by acquiescence, see post, § 1539 to a royalty on sales of patented articles a.] eq. jur. — vol. I. 29 450 EQUITY JURISPRUDENCE. [CH. VIII. account for money in his hands. The defendant had been the plaintiff's steward and most confidential agent- for nearly twenty years, receiving and paying out all his moneys, and even drawing all the money from his bank account, for the plaintiff's own pri- vate use during all the time. There were accounts rendered, occasionally but not regularly, for the first ten years; then no accounts for five years, when complaint being made, he rendered accounts annually for the last four years. The plaintiff finally had the accounts examined by a solicitor, who discovered errors and omissions, when this bill was brought, and the balance found in the defendant's hands exceeded £4000, upon which the plaintiff claimed to charge interest for the balances due at the end of each year. The Lord Chancellor held that as there was no satisfactory evidence to charge the defendant with fraud, in purposely with- holding the money, and there had been no demand for an account, interest could only be charged from the date of the master's report. The decision must be regarded, in this country, as exceedingly unsatisfactory. It is clear that the defendant must either have intentionally withheld the money, or else that he was guilty of gross neglect ; and in either case he should be charged with annual interest. So, too, upon another ground, he either did receive, or might have received, interest upon the money while in his hands, and in either view he is responsible for interest. And again, the plaintiff was entitled to have the money due, at the end of each year, and would have received it but for the defendant's fault ; and may be presumed either to have paid interest for the want of the money, or else it may be inferred that he would have placed the same at interest if it had been paid when due.] § 463. In agencies also of a single nature, such as a single con- signment, or the delivery of money to be laid out in the purchase of an estate, or of a cargo of goods ; or to be paid over to a third person ; although a suit at law may be often maintainable, 1 yet, if the thing lie in privity of contract and personal confidence, the aid of a court of equity is often indispensable for the attainment of justice. Even when not indispensable, it may often be exceedingly convenient and effectual, and prevent a multiplicity of suits. The 1 But see Navulshaw v. Brownrigg, 7 it, to collect debts, and pay over moneys Eng. Law & Eq. 106 ; Coquillard v. Suy- received to the principal, he may sue the dam, 8 Blackf. 24. [Where agency is of agent for an account in equity. Zettelle fiduciary character, e. g., to manage, v. Myers, 19 Gratt. (Va.) 62.] lease, and sell property, pay expenses on § 462 5-464. J account. — agency. 451 party in such cases often has an election of remedy. This doc- trine was expounded with great clearness and force by Lord Chief Justice Willes, in delivering the opinion of the court in a cele- brated case. Speaking of the propriety of sometimes resorting to a suit at law, he said : " Though a bill in equity may be proper in several of these cases, yet an action at law will lie likewise. As if I pay money to another, to lay out in the purchase of a particular estate, or any other thing, I may either bring a bill against him, considering him as a trustee, and praying that he may lay out the money in that specific thing ; or I may bring an action against him, as for so much money had and received for my use. Courts of equity always retain such bills, when they are brought under the notion of a trust ; and therefore, in this very case (a consign- ment to a factor for sale), they have often given relief, where the party might have had his remedy at law, if he had thought proper to proceed in that way." 1 § 464. Perhaps the doctrine here laid down, although generally true, is a little too broadly stated. The true source of jurisdiction in such cases, is not the mere notion of a virtual trust ; for then equity jurisdiction would cover every case of bailment. But it is the necessity of reaching the facts by a discovery ; and having jurisdiction for such a purpose, the court, to avoid multiplicity of suits, will proceed to administer the proper relief. 2 And hence it is that in the case of a single consignment to a factory v for sale, a court of equity will, under the head of discovery, entertain the suit for relief, as well as discovery ; there being accounts and disburse- ments involved, which, generally speaking, cannot be so thoroughly investigated at law, 3 although (as we have seen) a court of equity is cautious of entertaining suits upon a single transaction, where there are not mutual accounts. 4 Nay, so far has the doctrine been carried, that even though the case may appear, as a matter of account, to be perfectly remediable at law ; yet if the parties have gone on to a hearing of the merits of the cause, without any pre- 1 Scott v. Surman, "Willes, 405. peal, 57 Penn. St 474. See Durant v. 2 Ante, § 71 ; 3 Black. Comm. 437; Einstein, 5 Rob. (N. Y.) 423.] Ludlow v. Simond, 2 Caines, Cas. in Err. a Ludlow v. Simond, 2 Caines, Cas. in 1, 38, 52 ; Mackenzie v. Johnston, 4 Mad. Err. 1, 38, 52 ; Post v. Kimberly, 9 Johns. 374; Pearce v. Green, 1 Jac. & Walk. 493; Mackenzie v. Johnston, 4 Mad. 374. 135. [Where a pledge is held as general * Porter v. Spencer, 2 Johns. Ch. 171 ; security, and the account contains ser- Wells v. Cooper, cited 6 Ves. 136 ; ante, eral items, the pledgor may maintain a § 458. But see Coquillard v. Suydam, 8 bill for an account. Conyngham's Ap- Blackf. 25. 452 EQUITY JURISPRUDENCE. [ch. vm. liminary objection being taken to the jurisdiction of the court upon this ground, the court will not then suffer it to prevail, but will administer suitable relief. 1 § 465. Cases of account between trustees and cestuis que trust may properly be deemed confidential agencies, and are peculiarly within the appropriate jurisdiction of courts of equity. 2 The same general rules apply here, as in other cases of agency. A trustee is never permitted to make any profit to himself in any of the con- cerns of his trust. 3 On the other hand, he is not liable for any i Post v. Kimberly, 9 Johns. 493. [* See ante, § 74 a-74 e, where the ten- dency to ascribe jurisdiction in equity to the want of discovery is discussed.] 2 Jeremy on Eq. Jurisd. B. 3, Pt. 2, ch. 5, p. 522, 523. 8 Docker v. Somes, 2 Mylne & Keen, 664. In this case it was decided that if a trustee mixes trust funds with his private moneys, and employs both in a trade or adventure of his own, the cestui que trust may, if he prefers it, insist upon having a proportionate share of the profits, instead of interest on the amount of the trust funds so employed. On this occasion Lord Brougham delivered an elaborate judgment, from which I have made the following extracts, as they strik- ingly exemplify the doctrine of the text. His Lordship said: "Wherever a trus- tee, or one standing in the relation of a trustee, violates his duty, and deals with the trust estate for his own behoof, the rule is that he shall account to the cestui que trust for all the gain which he has made. Thus, if trust money is laid out in buying and selling land, and a profit made by the transaction, that shall go, not to the trustee who has so applied the money, but to the cestui que trust whose money has been thus applied. In like manner (and cases of this kind are more numerous), where a trustee or exec- utor has used the fund committed to his care in stock speculations, though the loss, if any, must fall upon himself ; yet, for every farthing of profit he may make, he shall be accountable to the trust es- tate. So, if he lay out the trust money in a commercial adventure, as in buy- ing or fitting out a vessel for a voyage, or put it in the trade of another person, from which he is to derive a certain stip- ulated profit, although I will not say that this has been decided, I hold it to be quite clear that he must account for the profits received by the adventure or from the concern. In all these cases, it is easy to tell what the gains are ; the fund is kept distinct from the trustee's other moneys, and whatever he gets he must account for and pay over. It is so much fruit, so much increase on the es- tate or chattel of another, and must fol- low the ownership of the property, and go to the proprietor. So it is also where one not expressly a trustee, has bought or trafficked with another's money. The law raises a trust by implication, cloth- ing him, though a stranger, with the fiduciary character, for the purpose of making him accountable. If a person has purchased land in his own name with my money, there is a resulting trust for me ; if he has invested my money in any other speculation without my consent, he is held a trustee for my benefit. And so an at- torney, guardian, or other person, stand- ing in a like situation to another, gains not for himself, but for the client, or in- fant, or other party, whose confidence has been abused. Such being the undeniable principle of equity, such the rule by which breach of trust is discouraged and punished, — discouraged by intercepting its gains, and thus frustrating the inten- tions that caused it ; punished, by charg- ing all losses on the wrong-doer, while no profit can ever accrue to him, — can the court consistently draw the line as the cases would seem to draw it, and except from the general rule those instances where the risk of the malversation is most imminent ; those instances where the trustee is most likely to misappropriate ; namely, those in which he uses the trust § 464, 465.] ACCOUNT. — AGENCY. 453 loss which occurs in the discharge of his duties, unless he has been guilty of negligence, malversation, or fraud. 1 The same doctrine funds in his own traffic? At first sight this seems grossly absurd, and some reflection is required to understand how the court could ever, even in appearance, counte- nance such an anomaly. The reason which has induced judges to be satisfied with allowing interest only, I take to have been this : They could not easily sever the profits, attributable to the trust money, from those belonging to the whole capital stock ; and the process became still more difficult where a great proportion of the gains proceeded from skill or labor em- ployed upon the capital. In cases of separate appropriation there was no such difficulty ; as, where land or stock had been bought and then sold again at a profit. And here, accordingly, there was no hesitation in at once making the trus- tee account for the whole gains he had made. But where, having engaged in some trade himself, he had invested the trust money in that trade along with his own, there was so much difficulty in severing the profits which might be sup- posed to come from the money misapplied from those which came from the rest of the capital embarked, that it was deemed more convenient to take another course, and instead of endeavoring to ascertain what profit had been really made, to fix upon certain rates of interest as the sup- posed measure or representative of the profits, and assign that to the trust estate. This principle is undoubtedly attended with one advantage ; it avoids the neces- sity of an investigation of more or less nicety in each individual case, and it thus attains one of the important benefits re- sulting from all general rules. But mark what sacrifices of justice and expediency are made for this convenience. All trust estates receive the same compensation, whatever risks they may have run dur- ing the period of their misappropriation ; all profit equally, whatever may be the real gain derived by the trustee from this breach of duty ; nor can any amount of profit made be reached by the court, or even the most moderate rate of mercan- tile profit, that is the legal rate of inter- est, be exceeded, whatever the actual gains may have been, unless by the very clumsy and arbitrary method of allowing rests, in other words, compound interest ; and this without the least regard to the profits actually realized. For, in the most remarkable case in which this method has been resorted to, Raphael v. Boehm (which indeed is always cited to be doubted, if not disapproved), the com- pound interest was given with a view to the culpability of the trustee's conduct, and not upon any estimate of the profits he had made by it. But the principal objection which I have to the rule, is founded upon its tendency to cripple the just power of this court, in by far the most wholesome, and indeed necessary exercise of its functions, • and the en- couragement thus held out to fraud and breach of trust. What avails it towards preventing such malversations that the contrivers of sordid injustice feel the power of the court only where they are clumsy enough to keep the gains of their dishonesty severed from the rest of their stores ? It is in vain they are told of the court's arm being long enough to reach them, and strong enough to hold them, if they know that a certain delicacy of touch is required, without which the hand might as well be paralyzed or shrunk up. The distinction, I will not say sanctioned, but pointed at, by the negative authority of the cases, pro- claims to executors and trustees, that they have only to invest the trust money in the speculations, and expose it to the hazards of their own commerce, and be charged 5 per cent on it ; and then they may pocket 15 or 20 per cent by a suc- cessful adventure. Surely, the supposed difficulty of ascertaining the real gain made by the misapplication is as nothing compared with the mischiefs likely to arise from admitting this rule, or rather this exception to one of the most general i "Wilkinson v. Stafford, 1 Ves. Jr. 32, E. 379 ; Adair v. Shaw, 1 Sch. & Lef r. 272 ; 41, 42 ; Shepherd v. TowgooiJ, 1 Turn. & Caffrey v. Darby, 6 Ves. 488. 454 EQUITY JURISPRUDENCE. [CH. VIII. is applicable to cases of guardians and wards, and other relations of a similar nature. 1 § 466. Cases of account between tenants in common, 2 between joint-tenants, between partners, between part-owners of ships, 3 and between owners of ships and the masters, fall under the like considerations. They all involve peculiar agencies like those of bailiffs, or managers of property, and require the same operative power of discovery, and the same interposition of equity. 4 Indeed, in all cases of such joint interests, where one party receives all the profits, he is bound to account to the other parties in interest for their respective shares, deducting the proper charges and expenses ; whether he acts expressly by their authority as bailiff, or only by implication as manager, without dissent, jure domini, over the property. 5 § 466 a. Trustees, directors of private companies, and other per- sons standing in a similar situation, are not only not allowed to make any profit out of their offices, but it is primd facie a breach of trust on their part to take upon themselves the management of any part of the concern for a compensation or profit, by way of commission, or brokerage, or salary. Thus, for example, a director of a company created to employ steamships for the benefit of the rules of equitable jurisdiction. Even if had so enormously augmented the value cases were more likely to occur than I of the capital, as if he had only obtained can think they are, of inextricable diffi- from it a profit ; although the refinements culties in pursuing such inquiries, I of the civil law would certainly bear us should still deem this the lesser evil by out, even in charging all gains accruing far, and be prepared to embrace it. Mr. upon those goods, as in the nature of ac- Solicitor-General put a case of a very cretions belonging to the true owners of plausible aspect, with the view of de- the chattels." See Wedderburn v. Wed- terring the court from taking the course derburn, 4 Mylne & Craig, 41 ; Clarke v. which all principle points out. He Tipping, 9 Beavan, 284. feigned the instance of an apothecary 1 See Jeremy on Eq. Jurisd. B. 3. Pt. buying drugs with £100 of trust money, 2, ch. 5, p. 543, 544, 545 ; id. p. 522, 523. and earning £1,000 a year by selling 2 [Leach v. Beattie, 33 Vt. 195 ; Darden them to his patients; and so he might v. Cowper, 7 Jones (N. C), L. 210. But have taken the case of trust money see Pico v. Columbet, 12 Cal. 414.] laid out in purchasing a piece of steel or 8 [McClellan v. Osborne, 51 Me. 118 ; skein of silk, and these being worked up Dyckman v. Valiente, 42 N. Y. 549.] into goods of the finest fabric, Binning- * See Abbott on Shipp. B. 1, ch. 3, § 4, ham trinkets or Brussels lace, where the 10, 11, 12 ; Doddington v. Hallett, 1 Ves. work exceeds by 10,000 times the mate- 497 ; Ex parte Young, 2 Ves. & Beam, rial in value. But such instances, in 242; Com. Dig. Chan. 3 V. 6, '2 A. 1; truth, prove nothing, for they are cases Drury v. Drury, 1 Ch. Bep. 49 ; Strelly v. not of profits upon stock, but of skilful Winson, 1 Vern. 297. labor very highly paid; and no reason- 6 Strelly v. Winson, 1 Vern. 297; Horns, able person would ever dream of charg- Gilpin, Ambl. 255 ; Pulteney v. Warren, 6 ing a trustee whose skill, thus bestowed, Ves. 73, 78 ,>[*Field v. Craig, 8 Allen, 357]. § 465-466 a.] ACCOUNT. — AGENCY. 455 company, cannot assume to himself, with the consent of the other directors, the situation of a ship's hushand, so as to charge the ship's company for such a compensation, as a stranger acting in the same office might. 1 1 Benson w. Heathorn, 1 Younge &Coll. N. R. 326, 340, 341. In this case Mr. Vice-Chancellor Knight said : " The next point relates to the commissions and the discounts. It may be right, and probably is fair to assume, for the purpose of the argument, that all these charges and allowances to Mr. Heathorn were such as would have been according to usage, and proper in the case of a stranger. His posi- tion, however, was very different. He was one of six directors of this company, to whom exclusively the entire management of its affairs was intrusted. I say ex- clusively, because, as is obviously neces- sary in companies of this description, the shareholders in general were prohibited from interfering. These six directors being so intrusted, receive among them from the funds of the company, as a re- muneration for their trouble in being the exclusively acting partners in this con- cern, a sum of no less than £650 per annum, capable, as I read the deed, of in- crease, but not liable to diminution ; this sum they are to divide between themselves as they think fit. Now, it is obvious that persons so circumstanced were under an obligation to the shareholders at large to use their best exertions in all matters which related to the affairs of the com- pany for the welfare of the concern thus intrusted, not gratuitously, to their charge. I apprehend that, without any special provision for the purpose, it was by law an implied and inherent term in the en- gagement, that they should not make any other profit to themselves of that trust or employment, and should not acquire to themselves, while they remained direc- tors, an interest adverse to their duty. The main or only business of this com- pany consisted in acquiring, managing, and working steam-vessels. ' It may have been that a ship's husband was necessary. It is the defendant's case, or the case at least of Mr. Heathorn, that a ship's hus- band was necessary. This is denied on the part of the plaintiffs, who say that the directors might very well have per- formed such a duty as the management of the vessels required without the inter- position of a ship's husband. On this I gave no opinion ; but if a ship's husband was necessary, it is obvious he would be- come the responsible servant of the direc- tors, in an onerous office, — that he would become an accounting party to them, and that his conduct as well as his accounts, however respectable he might be, would require a constant and vigilant superintendence and control. That con- stant and vigilant superintendence and control one and all of the directors had, for value, contracted to give ; and what is done t One of these very directors becomes himself the person whose con- duct and accounts it is his duty to super- intend, to check, and to watch ; at once, therefore, to put the case at the very low- est, and in a manner most favorable to Mr. Heathorn, paralyzing him as director in this respect, and leaving the company, as far as these important matters were concerned, under the protection of but five, while they believed themselves to be under the protection of six. But it does not rest there. The five remaining direc- tors were placed in the difficult and invid- ious position of having to check and con- trol the accounts of one of their own body, with whom they were associated on equal terms, in the management of every other part of the affairs of the concern. It has been, nevertheless, with an appearance of seriousness, treated as an arguable ques- tion, whether I can allow this gentleman to receive profits, however reasonable in amount, if they had been claimed by an- other person, which he has made by this employment, in which he ought never to have embarked. If the court were to do so, if the court were to allow to a person so circumstanced that which might fairly be allowed to a stranger, it would ob- viously afford the strongest encourage- ment to a departure from what is the right and regular course in every similar establishment. A party would take a situation of this nature with the certainty 45b EQUITY JURISPRUDENCE. [ch. vni. § 467. In many cases of frauds by an agent a court of common law cannot administer effectual remedies ; as, for instance, it can- not give damages against his estate for a loss arising from his torts, when such torts die with the person ; and a fortiori, the rule will apply to courts of equity, which do not entertain suits for damages. But, where the tort arises, in the course of an agency, from a fraud of the agent, and respects property, courts of equity will treat the loss sustained as a debt against his estate. 1 § 468. Courts of equity adopt very enlarged views in regard to the rights and duties of agents ; and in all cases where the duty of keeping regular accounts and vouchers is imposed upon them, they will take care that the omission to do so shall not be used as a means of escaping responsibility, or of obtaining undue recom- pense. If, therefore, an agent does not, under such circumstances, of haying a fair remuneration, and with the probable advantage of retaining what was unfair. It is mainly this danger, the danger of the commission of fraud in a manner and under circumstances which, in the great majority of instances, must preclude detection, that in the case of trustees and all parties whose character and responsibilities are similar (for there is no magic in the word), induces the court (not only for the sake of justice in the individual case, but for the protection of the public generally, and with a view to assert and vindicate the obligation of plain and direct dealing between man and man in all cases, but especially in those where one man is trusted by another) to adhere strictly to the rule that no profit of any description shall be made by a person so circumstanced, — saying to the person complaining, that he has thus em- ployed his time and skill without remu- neration, that he has elected so to treat the matter ; that he has had his reward, for he has had the possibility, nay, the proba- bility, of retaining to himself that which he never ought to have retained ; that he has been willing to run the risk, and can- not complain if he happens to lose the stake. It is on this principle that Lord Eldon proceeded in the cases so familiar to us all of purchases by trustees. It is only an instance of the application of the rule, not the rule itself. In those cases Lord Eldon said (I aUude particularly to Ex parte Lacey, 6 Ves. 627, which occurred soon after Lord Eldon first received the seal) : ' The rule is founded on this, that, though you may see in a particular case that he has not made advantage, it is utterly impossible to examine upon satisfactory evidence in the power of the court, by which I mean, in the power of the parties in ninety-nine cases out of » hundred, whether he has made advantage or not.' If, in the present case, Mr. Heathorn had openly and directly brought forward the matter before the body of shareholders generally, I consider it pos- sible, if not probable, that he would have been allowed to receive, and would now have been entitled to retain, aH the sums in question paid for commission. He has not elected to take that open and straightforward course ; he has chosen that the matter should be undisclosed, and he must abide the inevitable result." 1 Lord Hardwicke v. Vernon, 4 Ves. 418 ; Bishop of Winchester v. Knight, 1 P. Will. 406. But see Jesus College v. Bloom, Ambler, 55. In many cases of tort, a remedy would lie at law against the personal representative of the party ; as, for instance, where a tenant has tor- tiously dug ore, and sold it during his lifetime ; if the ore, or the proceeds of it come to the possession of his administra- tor or executor, or he has assets, a suit will lie at law for the same. 1 P. Will. 407. See Jesus College v. Bloom, Ambler, 54; Hambley v. Trott, Cowp. 374. § 467-469.] account. — agency. 457 keep regular accounts and vouchers, he will not be allowed the compensation, which otherwise would belong to his agency. 1 Upon similar grounds, as an agent is bound to keep the property of his principal distinct from his own, if he mixes it up with his own, the whole will be taken, both at law and in equity, to be the prop- erty of the principal until the agent puts the subject-matter under such circumstances that it may be distinguished as satisfactorily as it might have been before the unauthorized mixture on his part. 2 In other words, the agent is put to the necessity of show- ing clearly what part of the property belongs to him ; and so far as he is unable to do this, it is treated as the property of his prin- cipal. 3 Courts of equity do not in these cases proceed upon the notion, that strict justice is done between the parties ; but upon the ground that it is the only justice that can be done ; and that it would be inequitable to suffer the fraud or negligence of the agent to prejudice the rights of his principal. 4 [* 468 a. Where a client places money in the hands of his solicitor, for investment, and the solicitor, by means of a fraud practised on another client, procures him to give a mortgage to the client leaving the money for investment, and then appropriates the money to his own use, it was held that the mortgage was not valid, in the absence of proof that the money was paid to the solicitor, as the agent of the mortgagor. 5 ] § 469. Another head is that of APPORTIONMENT, CONTRIBU- TION, and General Average, which are in some measure blended together, and require and terminate in accounts. In most of these cases, a discovery is indispensable for the purposes of justice ; and where this does not occur, there are other distinct grounds for the exercise of equity jurisdiction, in order to avoid circuity and mul- tiplicity of actions. Some cases of this nature spring from con- tract; others, again, from a legal duty, independent of contract; and others, again, from the principles of natural justice, confirming the known maxim of the law, qui sentit commodum, sentire debit et onus. The two latter may, therefore, properly be classed among 1 White v. Lady Lincoln, 8 Ves. 363; But it was held by the Lord Chancellor B. p. 15 Ves. 441. on appeal, 7 Jur. n. s. 29, that unless the 2 Lupton v. White, 15 Ves. 436, 440. mortgagor disclaimed all liability upon 8 Panton v. Panton, cited 15 Ves. 440 ; the contract, and took the earliest oppor- Chedworth v. Edwards, 8 Ves. 46. tunity to have it set aside, his acquiescence 4 Lupton v. White, 15 Ves. 441 ; post, would render it binding upon him. See § 623. s. c. 10 H. of L. Cas. 229.] * [*Wall v. Cockrell, 6 Jur. h. s. 768. 458 EQUITY JURISPRUDENCE. [CH. THJ. obligations resulting quasi ex contractu. 1 This will abundantly appear in the sequel of these Commentaries. 2 § 470. And first, as to Apportionment and Contribution, which may conveniently be treated together. Lord Coke has re- marked that the word apportionment " cometh of the word portio, quasi partio, which signifieth a part of the whole, and apportion sigiiineth a division of a rent, common, &c, or a making of it into parts." 3 It is sometimes used to denote the distribution of a com- mon fund, or entire subject among all those who have a title to a portion of it. 4 Sometimes, indeed, in a more loose but an analo- gous sense, it is used to denote the contribution, which is to be made by different persons, having distinct rights, towards the discharge of a common burden or charge to be borne by all of them. In respect, then, to apportionment in its application to contracts in general, it is the known and familiar principle of the common law, that an entire contract is not apportionable. The reason seems to be, that as the contract is founded upon a consideration dependent upon the entire performance of the act, and if from any cause it is not wholly performed, the casus foederis does not arise, and the law will not make provisions for exigencies which the parties have neglected to provide for themselves. Under such circumstances, it is deemed wholly immaterial to the rights of the other party, whether the non-performance has arisen from the design or negligence of the party bound to perform it, or to inevitable casualty or accident. In each case the contract has not been completely executed. 5 The same rule is applied to cases where the payment is to be made 1 Deering v. Earl of Winchelsea, 1 Cox, the case of an old party-wall which divided 318 ; s. c. 2 Bos. & Pul. 270. See 1 White two estates, and was necessary to he re- & Tudor's Eq. Lead. Cas. 60, and notes. built, and was rebuilt by the owner of one, 2 Mr. Chancellor Kent has, in several who claimed contribution from the other, of his judgments, treated the subject of and had a decree in his favor. There is a contribution, and insisted strongly that it most persuasive course of reasoning used is not necessarily founded upon contract, to support this judgment ; but it is mainly but upon principles of natural justice, rested upon principles of equity, derived independent of contract. See Cheese- from the civil and foreign law. See Camp- borough v. Millard, 1 Johns. Ch. 409; bell v. Mesier, 4 Jolins. Ch. 334; a. c. Stevens v. Cooper, 1 Johns. Ch. 425 ; 6 Johns. 21. Campbell v. Mesier, 4 Johns. Ch. 334. 3 Co. Litt. 147 6. In this opinion he is not only fully borne 4 Ex parte Smyth, 1 Swanst. 338, 339, out by the doctrines of the English law the Reporter's note. (Deering v. Earl of Winchelsea, 1 Cox, 6 Paradine v. Jane, Aleyn, 26, 27; 318 ; s. c. 2 Bos. & Pul. 270), but by the Story on Bailments, § 36; Ex parte Boman and foreign law, which he has, Smyth, 1 Swanst. 338, 339, the Report- with his usual ability and learning, com- er's note, and cases cited ; Ibid. 1 Fonbl. mented upon. And he has applied it to Eq. B. 1, ch. 5, § 9, notes (m) to (r). § 469-471 a.] account. — apportionment. 459 under a contract upon the occurrence of a certain event or upon certain conditions. In the application of this doctrine of the common law, courts of equity have generally, but not universally, adopted the maxim, cequitas sequitur legem. 1 Whether rightly or wrongly, it is now too late to inquire, although, as a new ques- tion, there is much doubt whether in so adopting the maxim they have not in many cases deserted the principles of natural justice and equity, as well as the analogies by which they were governed in other instances in which they have granted relief. 2 We have already had occasion to cite cases in which this rigid doctrine as to non-apportionment has been applied. 3 There are, however, some exceptions to the rule both at law and in equity, which we shall presently have occasion to consider, and some in which courts of equity have granted relief, where it would at least be denied at law. 4 § 471. Some cases of apportionment in equity have already been mentioned. 5 But at the common law, the cases are few in which an apportionment under contract is allowed, the general doctrine being against it, unless specially stipulated by the parties. Thus, for instance, where a person was appointed collector of rents for another, and was to receive .£100 per annum for his services ; and he died at the end of three quarters of the year, while in the ser- vice; it was held, that his executor could not recover £75 for the three-quarters' service, upon the ground that the contract was entire, and there could be no apportionment ; for the maxim of the law is, Annua nee debitum judex non separat ipsum. 6 So where the mate of a ship engaged for a voyage at thirty guineas for the voyage, and died during the voyage, it was held, that at law there could be no apportionment of the wages. 7 § 471 a. " In its familiar practical applications, the principle that an entire contract cannot be apportioned, seems founded on 1 Post, § 474, 480 to 483. 8 Ante, § 101 to 104. "■ Ibid. [Where A. had a severable con- 4 Post, § 472, 473, 479. tract for leases of three different plats on 5 Ante, § 93. completion of buildings on such plats re- 6 Co. Litt. 150 a; Countess of Plym- spectively, and mortgaged the whole con- outh v. Throgmorton, 1 Salk. 65 ; 3 Mod. tract to B., who built on one of the plats 153. and demanded a lease, A. having become 7 Cutter v. Powell, 6 T. R. 320. See insolvent : Held, that B. was entitled to also Appleby v. Dodd, 8 East, 300; Jesse lease of such plat without assuming the v. Eoy, 1 Cromp., Jerv. & Rose. 316, 329, responsibility of building on the other 339. plats. Wilkinson a. Clements, L. E. 8 Ch. App. 96.] 460 EQUITY JURISPRUDENCE. [CH. VIII. reasoning of this nature ; that the subject of the contract, being a complex event constituted by the performance of various acts, the imperfect completion of the event, by the performance of some only of those acts (as service during a portion of the specified period, navigation to an extent less than the voyage undertaken), cannot, by virtue of that contract of which it is not the subject, afford a title to the whole or to any part of the stipulated benefit. Whatever be the origin or the policy of the principle, it has, unquestionably, been established as a general rule, from the earli- est period of our judicial history. 1 § 472. Courts of equity, to a considerable extent, act, as we have seen, upon this maxim of the common law in regard to con- tracts. But, where equitable circumstances intervene, they will grant redress. Thus, if an apprentice-fee of a specific sum be given, and the master afterwards becomes bankrupt, equity will (as we have seen) decree an apportionment. 2 So, where an attorney, while he lay ill, received the sum of 120 guineas for a clerk who was placed with him, and he died within three weeks afterwards, the court decreed a return of 100 guineas, notwith- standing the articles provided, that, in case of the attorney's death, £60 only should be returned. 3 This case, upon the statement in the report, is certainly open to the objection taken to it by Lord Kenyon, who said that it carried the jurisdiction of the court as far as it could be ; 4 for it overturned the maxim, modus et con- ventio vineunt legem. But, in truth, the case (according to the Register's Book) seems to have been very correctly decided ; for 1 Ex parte Smyth, 1 Swanet. p. 338, 420 ; Lea v. Barber, 2 Anst. 425, n ; Mul- note. " The following are some of the loy v. Backer, 5 East, 316 ; Liddard v. authorities by which it is enforced or Lopes, 10 East, 526 ; How v. Synge, 15 qualified : Bro. Abr. Apportion. PI. 7, 13, East, 440 ; Fuller v. Abbott, 4 Taunt. 105 ; 22, 26; id. Contract, PI. 8, 16, 30, 31, 35; Stevenson v. Snow, 3 Burr. 1237 ; Long id. Laborers, PI. 48, 10 H. 6, 23 ; 3 Vin. v. Allen, Marsh, on Insurance, 660 ; Park Abr. 8, 9 ; Finch Law, Lib. 2, ch. 18 ; on Insurance, 529 ; Ritchie v. Atkinson, Countess of Plymouth v. Throgmorton, 10 East, 295; Waddington v. Oliver, 2 1 Salk. 65 ; Tyrie v. Fletcher, Cowp. 666 ; N. R. 61. And see Abbott's Law of Mer- Robinson v. Bland, 2 Burr. 1077 ; 1 Bl. chant Ships, p. 292, et seq." 234 ; Loraine v. Thomlinson, Doug. 585 ; 2 Ante, § 93 ; Hale v. Webb, 2 Bro. Bermon v. Woodbridge, Doug. 781 ; Roth- Ch. 78; Ex parte Sandby, 1 Atk. 149; well v. Cook, 1 B. & P. 172 ; Meyer ... Hirst v. Tolson, 13 Jurist, 596. Gregson, Marsh, on Insurance, 658 ; Cha- 8 Newton v. Rowse, 1 Vern. 460, and ter v. Becket, 7 T. R. 201 ; Cook v. Jen- Raithby's note (2). nings, 7 T. R. 381; Cutter v. Powell, 6 * Hale v. Webb, 2 Bro. Ch. 80; 1 T. R. 320; Wiggins v. Ingleton, Lord Fonbl. Eq. B. 1, ch. 5, § 8, note (g). Raym. 1211 ; Cook v. Tombs, 2 Anstr. § 471 a-473 a.] account. — apportionment. 461 in the pleadings it was stated that the plaintiff at the time was unwilling to sign the articles, or to pay the 120 guineas, unftl the attorney had declared, that in case he should not live to go abroad, the 120 guineas should be returned to him, and that he was only troubled with a cold, and hoped to be abroad in two or three days ; and thereupon the plaintiff signed the articles. 1 This allegation was, in all probability, proved, and was the very turning-point of the case. If so, the case stands upon a plain ground of equity, that of mutual mistake, or misrepresentation, or unconscientious advantage. [* One would suppose that this case turned solely upon the ground of a fraudulent misrepresentation. For that is the only ground upon which the court could have departed from the express words of the contract ; and, in that view, the proper decree would have been a return of the whole sum paid.' So that the case affords rather an imperfect illustration of the doctrine of apportionment.] § 473. Other cases of apprentice-fees may exemplify the same salutary interposition of courts of equity. Thus, where an appren- tice had been discharged from service, in consequence of the mis- conduct of the master, it was decreed that the indentures of apprenticeship should be delivered up, and a part of the appren- tice-fee paid back. 2 So, where the master undertook, in con- sideration of the apprentice-fee, to do certain acts during the apprenticeship, which by his death were left undone and could not be performed, an apportionment of the apprentice-fee was decreed. 3 [* § 473 a. But the mere refusal of the master to allow his apprentice to work, although improper and without excuse, is not sufficient ground for a court of equity to decree the cancellation of the articles of apprenticeship and a return of the premium. The appropriate remedy in such case is by an action at law for damages. 4 And it was here held that -the case of Therman v. Abell, 5 where it was held that a " tradesman who turns away his apprentice for negligence and misdemeanors, shall be decreed to refund part of the money he had with him," is not sound law ; but that the case of Argles v. Heasemen, 6 where the " apprentice quitted his master on being misused, and the court refused to 1 Mr. Raithby's note to 1 Vern. 460; 8 Sarin v. Bowdin, Rep. temp. Finch, ante, § 93. 396. 2 Lockley v. Elbridge, Eep. temp.' * [* Webb v. England, 7 Jur. n. s. 153. Finch, 128. See Therman u. Abell, 2 6 2 Vernon, 64 Vern. 64. 6 1 Atk. 518.] 462 EQUITY JURISPRUDENCE. [CH. VIII. enjoin a suit at law by the master upon the bond for faithful ser- vice,"" was to be followed.] § 474. These are cases where an apportionment might not always be reached at the common law ; but yet, which belong to the recognized principles of equity. But, on the other hand, where an apprentice-fee has been paid, and the apprenticeship has been dissolved at the request of the friends of the apprentice, but without any default in the master, and without any agreement for a return of any part of the fee, there a court of equity will not interfere, for there is no equity attaching itself to the transaction, and the contract does not import any return. 1 § 475. In regard to rents, the general rule at the common law leaned strongly against any apportionment thereof. Hence it was well established, that, in case of the death of a tenant ior life, in the interval between two periods, at each of which a portion of rent becomes due from the lessee, no rent could be recovered for the occupation since the first of these periods. 2 The rule seems to have been rested on two propositions : 1st. That the entire contract cannot be apportioned. 2d. That under a lease with a periodical reservation of rent, the contract for the payment of each portion is distinct and entire. 3 Hence it followed, that, on the determination of a lease by the death of the lessor before the day appointed for the payment of the rent, the event, on the com- pletion of which the payment was stipulated, namely, occupation of the lands during the period stipulated, never occurring, no rent became payable, and in respect of time, apportionment was not in any case permitted. 4 § 475 a. Some exceptions and some qualifications were, however, in certain cases and under certain circumstances, incorporated into the common law at an early period, in respect to rent grow- ing out of real estate, where there was a division or severance of the land from which the rent issued. In other cases, the rent was held to be wholly extinguished. A few examples of each sort may perhaps be usefully introduced in this place ; but the full examina- tion of the whole subject properly belongs to another department of the law. 5 Thus, for instance, if a man had a rent-charge, and i Hale v. Webb, 2 Bro. Ch. 78 ; Hirst Ibid. v. Tolson, 13 Jurist, 696. * Ibid. ; Chin's oase, 10 Co. 127. 2 Ex parte Smyth, 1 Swanst. 338, and 6 Co. Litt. 148 a; Com. Dig. Suspen- note. sion, R. 6, D. 4; 1 Fonbl. Eq. B. 1, ch. 6, § 473 a-475 6.] account. — apportionment. 463 purchased a part of the land, out of which it issued, the whole rent-charge was extinguished. 1 But, if a part of the land came to him by operation of law, as by descent, then the rent-charge was apportionable ; that is, the tenant and the heir were to pay according to the value of the lands respectively held by them ; and, of course, the part apportionable on the heir was extin- guished. 2 But a rent-service was in both cases apportionable. 3 So, if a lessor granted part of a reversion to a stranger, the rent was to be apportioned. 4 On the other hand, if part of the land out of which a rent-charge issued, was evicted by a title para- mount, the rent was apportioned. 5 So, although a rent-charge is in its nature entire and against common right, yet if it descended to coparceners, by this rule of law the rent was apportioned be- tween them, and the tenant was subject to several distresses for the rent, and partition might be made before seisin of the rent. 6 So a rent-service incident to the reversion might be apportionable by a grant of a part of the reversion. 7 § 475 b. " In some cases a rent-charge may be apportioned by the act of the party ; as, if the grantee releases part of his rent to the tenant of the land, such release does not extinguish the whole rent. So, if the grantee gives part of it to a stranger, and the tenant attorns, such grant shall not extinguish the residue, which § 9, and notes ; Bac. Abridg. Bent, M. ; which it attaches." [But where the act Com. Dig. Chancery, 4 N. 5, 2'E. ; Ex claimed to be an extinguishment was parte Smyth, 1 Swanst. 338, 339, the Be- done under misapprehension as to rights, porter's note. equity will apportion. Van Rensselaer i Co. Litt. 147 b, 148 a, 148 b; Bac. v. Chadwick, 22 K Y. 32. If a tenant, Abr. Rent, M. ; Com. Dig. Suspension, C. for a term, hold over under a parol See also Averall v. Wade, 1 Lloyd & agreement that either party may give Goold, 252, and the Reporter's note, notice of the termination of the tenancy, p. 264, 265. But see 1 Swanston, 338, the rent may be apportioned. May v. note (a). Mr. Swanston, in his note (a) Rice, 108 Mass. 150.J to Ex parte Smyth, 1 Swanst. 338, says : 2 Co. Litt. 149 b; Bac. Abridg. Rent, " Apportionment frequently denotes, not M. ; Com. Dig. Suspension, C. division, but distribution ; and in its ordi- 8 Ibid. ; Com. Dig. Suspension, E. ; nary technical sense, the distribution of [ Voegtly v. Pittsburg, &c, R.R., 2 Grant's one subject, in proportion to another Cas. 243]. previously distributed." There is some 4 Co. Litt. 148 a; Com. Dig. Suspen- reason to question the accuracy of this sion, E. ; Ewer v. Moyle, Cro. Eliz. 771 ; statement. Apportionment does not re- Bac. Abr. Rent, M. 1. fer to a distribution of one subject, in 6 Com. Dig. Suspension, E. ; Co. Litt. proportion to another " previously dis- 147 b ; Bac. Abr. Rent, M. 1, 2. tributed," but a distribution of a claim or 6 Co. Litt. 164 6. [See Cruger v. Mo- charge among persons having different Laury, 41 N. Y. 219.] interests or shares, in proportion to their 7 Bac. Abridg. Rent, M. 1. interest or shares in the subject-matter to 464 EQUITY JURISPRUDENCE. [CH. VIII. the grantee never parted with, because such release or disposition makes no alteration in the original grant, nor defeats the intention of it, as the purchase of part of the land does ; for the whole rent is still issuable out of the whole land, according to the original intention of the grant. Besides, since the law allowed of such sorts of grants, and thereby established such sort of property, it would have been unreasonable and severe to hinder the proprie- tor to make a proper distribution of it for the promotion of his children, or to provide for the contingencies of his family, which were in his view. The objection that has been made to these sorts of apportionments or division of rent-charges is this, that the tenant thereby would be exposed to several suits and distresses for a thing which, in its original creation, was entire and recov- erable upon one avowry." x § 475 c. And the question may also arise, " Whether the tenant shall pay the whole rent, though part of the thing demised be lost and of no profit to him, or though the use of the whole be for some time intercepted or taken away without his default. And here it seems extremely reasonable, that, if the use of the thing be en- tirely lost or taken away from the tenant, the rent ought to be abated or apportioned, because the title to the rent is founded upon this presumption, that the tenant enjoys the thing during the contract ; and, therefore, if part of the land be surrounded or covered with the sea, this being the act of God, the tenant shall not suffer by it, because the tenant without his default wants the enjoyment of part of the thing, which was the consideration of his paying the rent ; nor has the lessor reason to complain, be- cause, if the land had been in his own hands, he must have lost the benefit of so much as the sea had covered." 2 § 476. However reasonable an apportionment may seem to be in the case last suggested upon the ground that the teDant had not, by reason of inevitable casualty, enjoyed the full benefit of the lands demised to him, the same principle was not, at the common law, carried out in favor of the lessor, in case the lease by inevitable casualty determined before the entire rent was due. For, in such a case, the rule was inflexibly applied, that the rent 1 Bac. Abridg. Rent, M. 1. therein stated would now be supported, 2 Bac. Abridg. Rent, M. 1. The pas- may perhaps admit of a doubt. See ante, eage is here given as it stands in Bacon's § 101 to 104. Abridgment. But whether the doctrine §475 5-477.] account. — apportionment. 465 should not be apportioned. If, therefore, the lease be determined by the death of the lessor (he having but a life-estate in the land demised), before the day appointed for the payment of the rent, the event on which that payment was stipulated, namely, the oc- cupation of the land demised, during the period specified, no rent whatsoever was payable by the tenant, even although he had occupied the land up to a single day of the time when the rent would have become due, for no apportionment in respect to time was, in any case, admitted by the common law. The executor of the deceased was not entitled to any rent, because the contract was not completely performed ; the remainder-man, or reversioner, was not entitled, because the rent was not due in his time. 1 And this severe doctrine of the common law, artificial and unjust as it seems to be, was, as we shall presently see, scrupulously followed in equity. It was to cure this manifest defect, that the statute of 11 Geo. II. (ch. 19, § 15) was passed, and the like remedial jus- tice has been still more amply provided for by the statute of 4 and 5 Will. IV. ch. 22. § 477. On the other hand, cases may easily be stated where apportionment of a common charge, or, more properly speaking, where contribution towards a common charge seems indispensable for the purposes of justice, and accordingly has been declared by the common law in the nature of an apportionment towards the discharge of a common burden. Thus, if a man, owning several acres of land, is bound in a judgment or statute or recognizance operating as a hen on the land, and afterwards he alienes one acre to A., another to B., and another to C, &c. ; there, if one alienee is compelled in order to save his land to pay the judgment, statute, or recognizance, he will be entitled to contribution from the other 1 Chin's case, 10 Co. 127. The prin- And that is the reason that the rent so cipal reason there given is, " Because the reserved is not due or payable before the rent reserved is to be raised out of the day of payment incurred, because it is profits of the land, and is not due until to be rendered and restored out of the the profits are taken by the lessee : for issues and profits ; and that is the reason, these words reddendo inde, or resercando that if the land is evicted, or if the lease inde, is as much as to say, that the lessee determined before the legal time of pay- shall pay so much of the issues and prof- ment, no rent shall be paid, for there its at such days to the lessor, for reddere shall never be an apportionment in re- inde nihil aliud est quam acceptum restituere, spect of part of the time, as there shall seu reddere est quasi retro dare, and reddi- be upon an eviction of part of the land ; tits dicitur, a reddendo, quia retro it, sc. to and, therefore, if tenant for life makes a the lessor, donor, &c, sicut proventus, a lease for years, rendering rent at the prooeniendo ; and obuentus ab obceniendo. feast of Easter, and the lessee occupies eq. jur. — vol. I. 30 466 EQUITY JURISPRUDENCE. [CH. VIII. alienees. 1 The same principle -will apply in the like case, where the land descends to parceners who make partition ; and then, one is compelled to pay the whole charge ; contribution will lie against the other parceners. 2 The same doctrine will apply to co-feoffees of the land, or of different parts of the land. 3 In all these cases (and others might be mentioned), a writ of contribution would lie at the common law, or in virtue of the statute of Marl- bridge. 4 for three-quarters of the year, and in the last quarter before the feast of Easter the tenant for life dies, here shall be no ap- portionment of the rent for three-quarters of the year, because no rent was due till the feast of Easter, and no apportion- ment shall be in respect of time ; but in the same case, if part of the land had been evicted before the feast of Easter, and the feast of Easter occurred in the life of the lessor, there shall be an appor- tionment of the rent, but not in respect of the time which well continued, but in respect that parcel of the land leased is evicted." 1 Fonbl. Eq. B. 1, ch. 5, § 90, note (o) ; Ex parte Smyth, 1 Swanst. 338, and the Reporter's note ; Bissett on Estates for Life, ch. 11, p. 268 to 272. 1 Harbert's case, 3 Co. 12, 13 ; Viner's Abridg. Contribution and Average, A. pi. 4, 6, 8, 9, 12, 25, 27. See also American Law Mag. for April, 1844, art. 5, p. 64 to 82. But see post, § 1233 a, where the sub- ject is discussed in another connection, and the authorities are shown to be not in harmony on the subject. 2 Ibid. ; Viner's Abridg. Contribution and Average, A. pi. 6, 7, 9, 22, 23, 24. 8 Ibid. ; Harbert's case, 3 Co. 12 ; Peering v. Earl of Winchelsea, 1 Cox, 321 ; s. c. 2 Bos. & Pull. 276 ; post, § 499, and note. [And there is a corresponding right to come in and share in the benefit of the redemption by contributing, al- though the time has gone by when an in- dependent redemption might have been made (the party seeking to be let in was an assignee in insolvency, and ignorant of the fact of decree for foreclosure, though there were facts which should have put him on his guard). Seymour v. Davis, 35 Conn. 264.] 1 See Harbert's case, 3 Co. 12 ; Deer- ing v. Earl of Winchelsea, 1 Cox, 321 ; s. c. 2 Bos. & Pull. 270; Co. Litt. 165 a; Fitzherbert Nat. Brev. 16. Lord Chief Baron Eyre, in one of his most luminous judgments, has expounded the general grounds of the doctrine of contribution, as known at the common law, as well as in equity, in a manner so clear that it will be better to quote his own language than to risk impairing its force by any abridgment. " If we take a view," said he, " of the cases, both in law and equity, we, shall find that contribution is bottomed and fixed on general principles of jus- tice, and does not spring from contract ; though contract may qualify it, as in Swain v. Wall, 1 Ch. Rep. 149. In the Register, p. 176 (6), there are two writs of contribution, one inter co-hceredes, the other inter co-feoffatos. These are founded on the statute of Marlebridge. The great object of the statute is, to protect the inheritance from more suits than are necessary. Though contribution is a part of the provision of the statute, yet, in Fitz. N. B. 338, there is a writ of contri- bution at common law amongst tenants in common, as for a mill falling to decay. In the same page Eitzherbert takes notice of contribution between co-heirs and eo- 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 provision of the statute. As to co-heirs the statute is express ; it does not say so as to co-feoffees ; but it gives contribution in the same manner. In Sir William Harbert's case, 3 Co. 11 (b), many cases of contribution are put ; and the reason given in the books is, that in cequalijure the law requires equality. One shall not bear the burden in ease of the rest ; and the law is grounded in great equity. Con- tract is never mentioned. Now, the doc- § 477-479.] account. — apportionment. 467 § 478. But there are many difficulties in proceeding in cases "where an apportionment or contribution is allowed at the common law : for, where the parties are numerous, as each is liable to con- tribute only for his own portion, separate actions and verdicts may become necessary against each. And thus a multiplicity of suits may take place ; and no judgment in one suit will be conclusive in regard to the amount of contribution, in a suit against another person. The like difficulty may arise in cases where an appor- tionment is to be made under a contract for the payment of money or rent, where the parties are numerous and the circumstances complicated. Whereas, in equity, all parties can at once be brought before the court in a single suit ; and the decree appor- tioning the rent will thus be conclusive upon all the parties in interest. 1 § 479. But the ground of equity jurisdiction, in cases of appor- tionment of rent and other charges and claims, does not arise solely from the defective nature of the remedy at common law, where such a remedy exists. It extends to a great variety of cases where no remedy at all exists in law, and yet where ex aequo et bono, the party is entitled to relief. 2 Thus, for instance, where a plaintiff was lessee of divers lands, upon which an entire rent was reserved, and afterwards the inhabitants of the town, where part of the lands lay, claimed a right of common in part of the lands so let, and upon a trial, sucaeeded in establishing their right ; in this case there could be no apportionment of the rent at law, because, although a right of common was recovered, there was no eviction of the land. But it was not doubted that in equity a bill was maintainable for an apportionment, if a suitable case for relief were made out. 3 So where, by an ancient composition, a rent is payable in lieu of tithes, and the lands come into the seisin and possession trine of equality operates more effectually by his prerogative any two tons of wine in this court than in a court of law. The he thinks fit, by which one man might difficulty in Coke's cases was, how to suffer solely. But the contribution is make them contribute. They were put given, of course, on general principles, to their audita querela or scire facias. In which govern all these cases." Peering equity, there is a string of cases in 1 Eq. v. Earl of Winchelsea, 1 Cox, 321 ; s. c. 2 Cas. Abr. tit. Contribution and Average. Bos. & Pull. 270, 271, 272 ; Lord Redesdale Another case occurs in Hargrave's Law in Stirling v. Forrester, 3 Bligh, 596, o. s. Tracts on the right of the King on the . * Post, § 483 to 488. prisage of wine. The King is entitled to 2 Ante, § 472, 473. one ton before the mast, and one ton be- s Com. Dig. Chancery, 2 E., 4 N. ; hind ; and in that case a right of contri- Jew v. Thirkenell, 1 Ch. Cas. 31 ; B. o. 3 bution accrues ; for the King may take Ch. Rep. 11. 468 EQUITY JURISPRUDENCE. [CH. VIII. of divers grantees, the composition will be apportioned among them in equity, though there may be no redress at law. 1 So, where money is to be laid out in land, if the party who is entitled to the land in fee, when purchased, dies before it is purchased, the money being in the mean time secured on a mortgage, and the interest made payable half-yearly, the interest will be apportioned in equity between the heir and the administrator of the party so entitled, if he dies before the half-yearly payment is due. 2 So, where portions are payable to daughters at eighteen or marriage, and, until the portions are due, maintenance is to be allowed, payable half-yearly at specific times, if one of the daughters should come of age in an intermediate period, the maintenance will be apportioned in equity. 3 § 480. But still there are many cases in which courts of equity have refused to allow an apportionment of rent and other charges, acting (it must be admitted), not upon the principles which ordi- narily govern them, but upon the notion of a strict obedience to the analogies of the law. Thus, where a purchaser of an interest in New South Sea Annuities from a husband during his life, remainder to other persons (which had been originally secured upon a mortgage, but by order of the court had been transferred to government securities), insisted, in a petition in equity, that, notwithstanding the husband died before the Christmas half-year became due, yet he was entitled to be paid proportionally for the time the husband lived ; Lord Hardwicke said, that if it had con- tinued a mortgage, the purchaser would have been entitled to the demand he now made, because there interest accrues every day for the forbearance of the principal, though, notwithstanding, it is usual in mortgages to make it payable half-yearly. But, that South Sea Annuities are considered as mere annuities ; and, therefore, the purchaser is no more entitled than he would be in case of a common annuity payable half-yearly, where the annuitant, in whose place he stands, dies before the half-year is completed. 4 This 1 Com. Dig. Chancery, 4 N. 5, cites * Pearly v. Smith, 3 Atk. 261 ; 1 Fonbl. Saville, 5. See Aynsley v. Woodsworth, Eq. B. 1, ch. 5, § 9, note (o) ; Jeremy on 2 V. & Beam. 331. Eq. Jurisd. B. 3, Pt. 2, ch. 5, p. 520, 521, 2 Edwards v. Countess of Warwick, 2 522. [And under a statute providing for P. Will. 176. the apportionment of "income," given 8 Hay v. Palmer, 2 P. Will. 501. See until a certain event, dividends of profits also ante, § 472, 473. [An annuity in lieu declared after the event were held unap- of dower was held apportionable. Blight portionable. Granger v. Bassett, 98 Mass. v. Blight, 51 Penn. St. 420.] 462 ; and see Jones u . Ogle, L. R. 14 Eq. § 479, 480.] ACCOUNT. — APPORTIONMENT. 469 is certainly correct reasoning upon the course of the authorities ; and yet it is difficult to see why, in reason, interest payable half- yearly should stand distinguished from an annuity payable half- yearly. Why, in such case, may not portions of the annuity be deemed in equity to accrue daily, as much as interest, when the latter is, like the former, payable only half-yearly ? The same principle has been adopted in cases where money is to be laid out in land upon a settlement, and in the mean time to be invested in government securities ; if the tenant for life dies in the middle of the half-year, the reversioner is entitled to the whole dividend, and there is no apportionment ; although there would be if the money were laid out on mortgage. 1 419. The English Apportionment Act has been held to apply, not only to cases where the life-estate was held under an instrument made after the act, but also to cases where a lease was made after the act, under a settlement made prior to the act. Llewellyn u. Rous, L. R. 2 Eq. 27 ; and see Heasman v. Pearse, L. R. 8 Eq. 599. Aliter, as to dividends of in- vested proceeds, where lands settled pre- vious to the Apportionment Act were taken under the Lands Clauses Act. In re Lawton Estates, L. R. 3 Eq. 469. Where there is a trust to accumulate rents till A. attains twenty-one, when he is to be let into possession, it seems the Apportion- ment Act applies. Wheeler v. Tootel, L. R. 3 Eq. 571 ; and see Donaldson v. Don- aldson', L. R. 10 Eq. 635 ; Clive v. Clive, L. R. 7 Ch. App. 433. The Apportion- ment Act does not apply to payments under order of Court. Jodrell v. Jodrell, L. R. 7 Eq. 461.] 1 Sherrard v. Sherrard, 3 Atk. 502; Rashleigh v. Master, 3 Bro. Ch. 99, 101 ; Webb v. Shaftesbury, 11 Ves. 361 ; Wil- son v. Harman, Ambl. 279 ; s. c. 2 Ves. 672 ; 1 Eonbl. Eq. B. 1, ch. 5, § 9, note (o); Hay v. Palmer, 2 P. Will. 502, and Mr. Cox's note. See also ante, § 479. Mr. Swanston, in his learned note to the case of Ex parte Smyth, 1 Swanst. 338, 348, says : " The rule of law which refuses apportionment of rent in respect of time, is applicable to all peri- odical payments becoming due at fixed intervals ; not to sums accruing de die in diem. Annuities, therefore (3 Atk. 261 ; 2 Bl. 1016), and dividends on money in the funds, are not apportionable. Rashleigh v. Master, 3 Bro. C. C. 101; Wilson v. Harmon, 2 Ves. 672 ; Amb. 279 ; Pearly v. Smith, 3 Atk. 260 ; Sherrard v. Sher- rard, 3 Atk. 502. But interest, whether the principal is secured by mortgage (Wilson v. Harmon, Sherrard v. Sher- rard), or by bond, notwithstanding that it is expressly made payable half-yearly (Banner v. Lowe, 13 Ves. 135), may be apportioned : for, though reserved at fixed periods, it becomes due de die in diem for forbearance of the principal, which the creditor is entitled to recall at pleasure. Thus a sum of money, which it was covenanted in marriage-articles should be invested in lands, having been lent on mortgage, at the death of the per- son entitled to an estate tail in the land, the interest was apportioned in favor of his administratrix. Edwards v. Countess of Warwick, 2 P. Will. 176; 1 Bro. P. C. ed. Toml. 207. In strictness these are not cases of apportionment (3 P. W. ed. Cox, 503, n. 1 ) ; they are not instances of the distribution of one entire subject among individuals entitled each to a part, but the appropriation of distinct subjects to the respective owners. A remarkable exception to the general rule has been introduced in the instance of annuities for the maintenance of infants (Hay v. Palmer, 2 P. Will. 501 ; Rhenish v. Mar- tin, 1746, M. S. ; Sheppard v. Wilson, 4 Hare, 395), or of married women living separate from their husbands (Howel ». Hanf orth, 2 Bl. 1016 ; 1 Schoales & Lef r. 470 EQUITY JURISPRUDENCE. [ch. vm. § 481. So where a tenant for life made a lease of the estate for years, rendering rent quarter-yearly, and died before the end of the quarter, an apportionment of the rent -was denied in equity. 1 Upon this occasion the Lord Chancellor said : " There are several remedial statutes relating to rents ; 2 but this is a casus omissus. The law does not apportion rent in point of time, and I do not know that equity ever did it. 3 This is an accident which the 303) ; an exception supported by the ne- cessity of the case, and the consequent presumption of intention (2 Bl. 1017 ; 2 P. W. 303), and therefore not extending to an annuity for the separate use of a married woman, living with her husband and maintained by him. Anderson v. Dwyer, 1 Schoales & Lefr. 301. An an- nuity, payable quarterly, secured by the bond of a testator whose will charged his real, in aid of his personal, estate, being, under an order of the Court of Chancery, directed to be paid half-yearly, at Mid- summer and -Christmas, and the annui- tant haying died between Lady-Day and Midsummer, her representative was de- clared entitled to the arrears due at Lady- Day. Webb v. Lady Shaftesbury, 11 Ves. 361. 1 Jenner t>. Morgan, 1 P. Will. 392 ; ante, § 476. [So in case of tenant pur autre vie, see Mills v. Trumper, L. R. 4 Ch. App. 320. So where the lease is made by testator, not by life tenant. Marshall v. Moseley, 21 N. Y. 280. So where the whole annual tax is assessed to the life tenant, and he dies within the year, and the tax is paid by his executors, there can be no apportionment of the burden. Holmes v. Taber, 9 Allen, 246.] 2 Before the statute of 11 George II. ch. 19, § 15, if a tenant for life died be- fore the rent-day, the intermediate rent was lost. That statute has cured many hardships of the common law on this subject, but not all. Paget v. Gee, Am- bler, 198 ; s. c. id. App. p. 807 (Mr Blunt's edition) ; Wykham v. Wykham, 3 Taunt. 331. The recent statute of 4 & 5 Wil- liam, ch. 22, has extended the like reme- dial justice to other analogous cases. Ante, § 476. It declares, that all rent reserved and made payable in leases, which determine on the death of the per- son making them, or on the death of the life or lives, for which such person was entitled to the lands demised, shall be within the provisions of the statute of 11 Geo. II. ch. 19. It also declares, that all rent-service reserved in any lease by a tenant in fee, or for any life-interest, or by any lease granted under any power, and all rent-charge and other rents, annu- ities, pensions, dividends, moduses, com- positions, and all other payments of every other description, made payable or com- ing due at a fixed period, shall be appor- tioned so, and in such manner, that on the death of any person interested there- in, &c, &c, or on the determination by any other means whatsoever of the interest of any such person, he or she, and his or her executors, administrators, and assigns, shall be entitled to a proportion of such rents and other payments. In the con- struction of this statute, it has been held that it applies to cases in which the inter- est of the person interested in such rents and payments is terminated by his death, or by the death of another person ; but that it does not apply to the case of a tenant in fee, nor provide for apportion- ment of rent between the real and per- sonal representatives of such person whose interest is not terminated by his death. Brown v. Amyott, 3 Hare, 173; Beer v. Beer, 9 Eng. Law & Eq. 468. See also Ex parte Smyth, 1 Swanston, 337, 338, and Mr. Swanston's learned note, ibid., where the principal cases are commented on at large. 1 Fonbl. Eq. B. 1, ch. 6, § 9, and notes ; Jeremy on Eq. Jurisd. B. 3, Pt. 2, ch. 5, p. 519, 520, 521, 522. 8 In Meeley v. Webber, cited 2 Eq. Abridg. 704, where a person leased his tithes at a rent payable at Michaelmas, and died in September, the court decreed an apportionment. There is much good sense in the decision. See also Aynsley v. Woodsworth, 2 V. & Beam. 331. § 481, 482.] account. — apportionment. 471 judgment creditor (the plaintiff) might have guarded against by receiving the rent weekly ; so that it is his fault, and becomes a gift in law to the tenant." x And yet, if the tenant had actually paid the whole rent to the remainder-man, including this period, from a conscientious sense of duty, the party might, under such circumstances, have been entitled to his share pro ratd. At least, in the case where a tenant in tail made a lease, but not according to the statute, and died without issue between the days of pay- ment, and afterwards the remainder-man received the whole rents, Lord Hardwicke decreed that the executors of the tenant were entitled against him to an apportionment, although, in strictness, the tenant could not have been compelled to pay it. 2 § 482. The distinction between this case and the former case is extremely thin ; and the reasons given for it are rather ingenious and subtle than satisfactory. If it would not be unconscientious for the tenant to withhold the rent, because the executor of the tenant for life had no equity, it is difficult to perceive that there can spring up any equity against the remainder-man, unless the tenant paid the rent with an express understanding that there should be an apportionment, which can hardly be pretended to have been proved in the cases on this point. 3 It would have been, per- haps, more consonant to the general principles of courts of equity, to have decided that, as the tenant held his lease upon the terms of a compensatory contract, it was against conscience that he should be at liberty to treat the rent, under any circumstances of an involuntary departure from the terms of the lease, as a gift ; * and that, as the parties had omitted to provide in their contract for the exigency, equity would presume an intention of the parties to treat the rent as accruing, pro tanto, from day to day ; and as a debitum in prcesenti solvendum in futuro. Lord Hardwicke, on one occasion, in discussing a question of apportionment, after quot- ing the maxim, JEquitas sequitur legem, added : " When the court i Jenner v. Morgan, 1 P. "Will. 392. 312 ; Ex parte Smyth, 1 Swanst. 346, 347, See Jeremy on Eq. Jurisd. B. 3, Pt. 2, 348, note, ch. 1, p. 519, 520, 521. * See Vernon v. Vernon, 2 Bro. Ch. 2 Paget v. Gee, Ambl. 196 ; s. c. App. 659, 662. Lord Thurlow seems to have (Mr. Blunt's edition), p. 807 ; Ex parte proceeded upon a principle somewhat like Smyth, 1 Swanst. 337, and note; id. 355, this in Vernon v. Vernon (2 Bro. Ch.659, 356; Aynsley v. Woodsworth, 2 V. & 662), holding that where a person was a Beam. 331 ; Jeremy on Eq. Jurisd. B. 3, tenant from year to year, or a tenant at Pt. 2, ch. 5, p. 520. will under a tenant in tail, the demises 3 See Hawkins v. Kelly, 8 Ves. 308 to being determinable at his death, and he 472 EQUITY JURISPRUDENCE. [CH. Till. finds the rules of law right, it will follow them ; but then it will likewise go beyond them." 1 dying before the half-year expired, the rent should be apportioned between the representatives of the tenant in tail and the remainder-man. His lordship said: " That the tenant holding from year to year, or period to period, from a guardian, ■without lease or covenant, cannot be allowed to raise an implication in his own favor, that he should hold without paying rent to anybody." See Hawkins ii. Kelly, 8 Ves. 312 ; Ex parte Smyth, 1 Swanst. 337, and ibid., Mr. Swanston's learned note ; Clarkson v. Earl of Scar- borough, cited 1 Swanston, 354, note (a). [* Where the tenant for life had paid the expenses of renewal of the lease for another term and died before the term expired, it was held that the proportion to be paid by the remainder-man of the fine and expenses of renewal was to be ascertained by reference to the actual enjoyment of the tenant for life, and compound interest to be computed upon the portion attributable to the remainder- man until the death of the tenant for life, and simple interest from that time until payment. Bradford v. Brownjohn, Law Kep. 3 Ch. App. 711. See also Cox v. Cox, Law Rep. 8 Eq. 343 ; Alhusen v. Whittell, Law Rep. 4 Eq. 295.] 1 Paget v. Gee, Ambler, App. p. 810 (Mr. Blunt's edition). [Life tenant and Remainder-man. — Where a testator had bound himself to pay a certain sum to trustees for a life tenant and remainder- man, with interest from his decease, and after several years a sum was realized by the trustees from his estate insufficient to meet the covenant : Held, that the trus- tees must ascertain what sum at £i per cent from decease would have produced that sum, and such £4 per cent should go to life tenant. Cox v. Cox, L. R. 8 Eq. 343; considering In re Grabowski's Set- tlement, L. R. 6 Eq. 12. And see Mac- laren v. Stainton, L. R. 11 Eq. 382. Where stock is sold out to invest in real estate under a power so to do, and the sale is delayed by difficulties as to title, the consequent loss of income to life ten- ant cannot be apportioned so as to fall in part on the corpus. Freman v. Whitbread, L. R. 1 Eq. 266. As to what is corpus, and what income of estate of deceased person, see Ibbotson v. Elam, L. R. 1 Eq. 188; Maclaren v. Stainton, L. R. 11 Eq. 382. As to apportionment of purchase- money of leaseholds taken from life ten- ant under Lands Clauses Act, see In re Pfleger, L. R. 6 Eq. 426 ; In re Phillips' Trusts, L. R. 6 Eq. 250; In re Wood's Estate, L. R. 10 Eq. 572. And as to ap- portionment of rent under same act, where part of leasehold is taken, see Slipper v. Tottenham, &c, R. Co., L. R. 4 Eq. 112. Vendor and purchaser. — Vendor of leasehold agreeing to pay all " out- goings " up to a certain day, must pay the accruing rent up to that day. Lawes u. Gibson, L. R. 1 Eq. 135. Apportionment where charge upon different Estates. — Where Whiteacre was mortgaged for a certain debt, and by a subsequent deed, White- acre, Blackacre, and personal property were mortgaged to secure same debt and a further debt: Held, that as between heir and administrator, Whiteacre was primarily liable for the first debt, and that the second debt was to be appor- tioned on Whiteacre, Blackacre, and the personalty. Lipseom v. Lipscom, L. R. 7 Eq. 501. And where Whiteacre is first given as security for advances, and then Blackacre is added, further advances being required, and the estates are devised to different persons, all advances up to time of giving security on Blackacre are to be paid out of White- acre, and all subsequent advances appor- tioned on what remains of Whiteacre and on Blackacre. De Rochefort v. Dawes, L. R. 12 Eq. 540. Where an annuity was charged on mining land of A., producing large but uncertain income, and agricultural land of B., producing small but certain income, it was held, that the charge was to be apportioned accord- ing to the income from year to year, not according to salable value. Ley v. Ley, L. R. 6 Eq. 174. An annuity to support a wife or child for life is payable until death, and is apportionable. Fisher v. Fisher, Pa. Law J. p. 178. See 2 Perry on Trusts, § 556. Legacies in part void under Mortmain Act. — Where a person possessed of real and personal estate gives legacies to a. § 482-484.] account. — contribution. — charges. 473 § 483. But a far more important and beneficial exercise of equity jurisdiction, in cases of apportionment and contribution, is, when encumbrances, fines, and other charges on real estate are required to be paid off, or are actually paid off by some of the parties in interest. 1 This subject has already come incidentally under our notice, 2 but it requires a more ample examination in this place. In most cases of this sort, there is no remedy at law, from the extreme uncertainty of ascertaining the relative pro- portions, which, different persons, having interests of a very dif- ferent nature, quality, and duration, in the subject-matter, ought to pay. And, when there is a remedy, it is inconvenient and imperfect, because it involves multiplicity of suits, and opens the whole matter for contestation anew in every successive litigation. 3 § 484. The subject may be illustrated by one of the most com- mon cases, that of an apportionment and contribution towards a mortgage upon an estate, where the interest is required to be kept down, or the encumbrance to be paid. Let us suppose a case where different parcels of land are included in the same mort- gage, and these different parcels are afterwards sold to different purchasers, each holding in fee and severalty the parcel sold to himself. In such a case, each purchaser is bound to contribute to the discharge of the common burden or charge, in proportion to the value which his parcel bears to the whole included in the mort- gage. 4 But to ascertain the relative values of each, is a matter of charity, equity will generally apportion oneration of said B. estate from another the legacy with reference to the amounts charge, and after the payment of the of the realty and personalty, and so save £10,000 in exoneration of the B. estate, a a part from the operation of the Statute part of it had to be refunded out of the B. of Mortmain ; but where A. bequeathed estate for payment of debts : Held, that £3,000 to B., payable out of his personalty the condition was not apportionable, and and realty, and B. bequeathed the legacy that no part of the £13,000 could be raised so secured to a charity, apportionment out of the B. estate. Caldwell v. Cress- was refused. Brook v. Badley, L. R. 3 Ch. well, L. R. 6 Ch. App. 278. Apportion- App. 672. And where a sum is given in ment of Rent, see May v. Rice, 108 Mass. trust for different objects, some of them 150 ; Bank v. Hill, 8 Bush, 66.] illegal as being charitable, without speci- J Com. Dig. Chancery, 2 J., 2 S. ; 1 fying how much for each, equity will Fonbl. Eq. B. 1, ch. 5, § 9, and notes ; either direct an inquiry as to how much Ritson v. Brumlow, 1 Ch. 91 ; Cheese- is to be attributed to each object, or borough v. Millard, 1 Johns. Ch. 409; divide the fund equally among the dif- Scribner v. Hickok, 4 Johns. Ch. 530 ; ferent objects, as may seem most expe- Averall v. Wade, Lloyd & Goold, 252, and dient. Hoare v. Osborne, L. R. 1 Eq. the Reporter's note, 264, 265, 266.] 585. Apportionment of Condition. — Where . 2 Ante, § 477. a testator directed £13,000 to be raised 8 Ante, § 477, 478. out of his B. estate, in case £10,000 out * Cheeseborough v. Millard, 1 Johns, of his personalty shall be applied in ex- Ch. 409, 415 ; Stevens v. Cooper, 1 Johns. 474 EQUITY JURISPRUDENCE. [Cfl. Till. great nicety and difficulty ; and unless all the different purchasers are joined in a single suit, as they can be in equity, although not at law, the most serious embarrassments may arise in fixing the proportion of each purchaser, and in making it conclusive upon all others. § 485. So, if there are different persons having different inter- ests in an estate under mortgage, as, for instance, parceners, 1 ten- ants for life or in tail, remainder-men, tenants in dower or for a term of years, or for other limited interests, it is obvious that the question of apportionment and contribution in redeeming the mort- gage, as well as in payment of interest, may involve the most im- portant and intricate inquiries ; and to do entire justice, it may be indispensable that all the parties in interest should actually be brought before the court. Now, in a suit at the common law, this is absolutely impossible ; for no persons can be made parties, except, those whose interest is joint, and of the same nature and character, and is immediate and vested in possession. So, that a resort to a court of equity, where all these interests can be brought before the court, and definitely ascertained and disposed of, is indispensa- ble. If to this we add, that in most cases of mortgage, an account of what has been paid upon the mortgage, either by direct pay- ments or by perception of the rents and profits of the estate, is necessary to be taken ; we shall at once see that the machinery of a court of common law is very ill adapted to any such purpose. But if we add, further, to all this, that there may be mesne encum- brances and other cross equities between some of the parties, all of which are required to be adjusted, in order to arrive at a just result, and to attain the full end of the law by closing up all future litigation, we shall not fail to be convinced, that the only appropriate, adequate, and effectual remedy must be administered in equity. Indeed, from its very nature, as we shall have occa- sion to see fully hereafter, the jurisdiction over mortgages belongs peculiarly and exclusively to courts of equity. And wherever, as is the case in some of the American States, an attempt has been made to ingraft the remedy of redemption upon the ordinary processes of courts of law, it has been found to be inconvenient, embarrassing, and, in complicated cases, impracticable. Ch. 425 ; Harris v. Ingledew, 3 P. "Will. 1 Stirling v. Forrester, 3 Bligh, 590, 98, 99 ; Harbert's case, 3 Co. 14 ; Taylor 596. v. Porter, 7 Mass. 355. [*But see post, § 1233 a.] § 484-487.] account. — contribution. — charges. 475 § 486. Very delicate, and often very intricate, questions arisei in the adjustment of the rights and duties of the different parties in interest in the inheritance. In the first place, in regard to the paying off of encumbrances. If a tenant in tail in possession pays off an encumbrance, it will ordinarily be treated as extin- guished ; and the remainder-man cannot be called upon for con- tribution, unless the tenant in tail has kept alive the encumbrance, or preserved the benefit of it to himself by some suitable assign- ment, or has done some other act or thing, which imports a posi- tive intention to hold himself out as a creditor of the estate, in lieu of the mortgagee. The reason for this doctrine is, that a tenant in tail can, if he pleases, by fine or recovery, become the absolute owner of the estate; and, therefore, his discharge of encumbrances is treated, as made in the character of owner, unless he clearly shows that he intends to discharge them and become a creditor thereby. 1 But the like doctrine does not apply to a ten- ant in tail in remainder, whose estate may be altogether defeated by the birth of issue of another person ; for it must be inferred that such a tenant in tail, in paying off an encumbrance without an assignment, means to keep the charge alive. 2 A fortiori, the doctrine would not apply to the case of a tenant for life paying off an encumbrance ; for, if he should pay it off without taking an assignment, he would be deemed to be a creditor to the amount paid, upon the ground that there can be no presumption that, with his limited interest, he could intend to exonerate the estate. 3 He cannot be presumed, primd facie, to discharge the estate from the debt ; for that would be to discharge the estate of another person from the debt. But, in both cases, the presumption may be rebutted by circumstances, which demonstrate a contrary inten- tion. 4 § 487. In respect to the discharge of encumbrances, it was for- merly a rule in equity, that the tenant for life and the reversioner, * Wigsell v. Wigsell, 2 Sim. & Stu. « Saville v. Sarille, 2 Atk. 463, 464 ; 364 ; Jones v. Morgan, 1 Bro. Ch. 206 ; Jones v. Morgan, 1 Bro. Ch. 218 ; Shrews- Kirkham v. Smith, 1 Ves. 258 ; Amesbury bury v, Shrewsbury, 1 Ves. Jr. 233 ; s. c. t». Brown, 1 Ves. 477 ; Shrewsbury v. 3 Bro. Ch. 120 ; Ex parte Digby, Jacob, Shrewsbury, 3 Bro. Ch. 120; s.c. 1 Ves. 235. Jr. 227 ; St. Paul v. Viscount Dudley and i Jones v. Morgan, 1 Bro. Ch. 218, 219 ; Ward, 15 Ves. 173 ; Faulkner v. Daniel, St. Paul v. Viscount Dudley and Ward, 3 Hare, 199, 217. 15 Ves. 173; Redington v, Kedington, 1 2 Wigsell v. Wigsell, 2 Sim. & Stu. B. & Beatt. 141, 142. 364. 476 EQUITY JURISPRUDENCE. [CH. VIII. or remainder-man, were bound to contribute towards tbe payment of encumbrances, in a positive proportion, fixed by tbe court ; so that they paid a gross sum, in proportion to their interests in the estate. The usual proportion was, for the tenant for life to pay one-third, and the remainder-man or reversioner to pay two-thirds of the charge. 1 A similar rule was applied to cases of fines paid upon the renewal of leases. 2 But the rule is now, in both cases, entirely exploded in England ; and a far more reasonable rule is adopted. It is this : that the tenant shall contribute beyond the interest, in proportion to the benefit he derives from the liquidation of the debt, and the consequent cessation of annual payments of interest during his life (which of course will depend much upon his age and the computation of the value of his life) ; and it will be referred to a Master, to ascertain and report what proportion of the capital sum due the tenant for life ought, upon this basis, to pay, and what ought to be borne by the remainder- man or reversioner. 3 If the estate is sold to discharge encum- brances (as the encumbrancer may insist that it shall be), in such a case, the surplus, beyond what is necessary to discharge the encumbrances, is to be applied as follows : the income thereof is to go to the tenant for life, during his life ; and then the whole capital is to be paid over to the remainder-man or reversioner. 4 § 488. In regard to the interest due upon mortgages and other encumbrances, the question often arises, by whom and in what manner it is to be paid. And here the general rule is, that a ten- 1 Powell on Mortg. ch. 11, p. 311 ; Many cases may occur of far more corn- Ballet v. Sprainger, Pree. Ch. 62 ; Shrews- plicated adjustments than are here stated ; bury (County of) v. Earl of Shrewsbury, but in a treatise like the present, little 1 Ves. Jr. 233 ; Rives v. Rives, Prec. Ch. more than the general rules can be indi- 21 ; 1 Fonbl. Eq.. B. 1, ch. 5, § 9, note (a), cated. See Rives v. Rives, Prec. Ch. 21 ; 3d edit. ; Faulkner v. Daniel, 3 Hare, 199, 1 Fonbl. Eq. B. 1, ch. 5, § 9, and note. 217. See also Gibson v. Crehore, 5 Pick. 146. 2 White v. White, 4 Ves. 33 ; Verney The converse case of that stated in the v. Verney, 1 Ves. 428 ; s. c. Amb. 88 ; text will readily occur to the learned Nightingale v. Lawson, 1 Bro. Ch. 440. reader ; namely, where mortgage-money 8 See 1 Powell on Mortg. ch. 11, p. 311, or a mortgage is devised to a tenant for 312, Mr. Coventry's note, M. ; Penrhyn v. life, with a remainder over, and the mort- Hughes, 5 Ves. 107 ; White v. White, 4 gage-money is paid by the mortgagor. Ves. 33, 9 Ves. 554 ; Allan v. Backhouse, The old rule used to be, to divide it be- 2 Ves. & B. 70, 79. See ante., § 482, note 3. tween the tenant for life and the remain- 4 Penrhyn v. Hughes, 5 Ves. 107 ; der-man, in the proportion of one-third White v. White, 4 Ves. 33 ; 3 Powell on and two-thirds. But it would probably Mortg. ch. 19, p. 922, Mr. Coventry's note, now be governed by the same rules as H. ; id. 1043, note O.; Lloyd v. Johnes, those in the text. 3 Powell on Mortg. 9 Ves. 37 ; Foster v. Hilliard, 1 Story, 77. 1043, Mr. Coventry's note, 0. § 487-488 a.] account. — contribution. — charges. 477 ant for life of an equity of redemption is bound to keep down and pay the interest, although he is under no obligation to pay off the principal. 1 But a tenant in tail is not bound to keep down the interest; and yet, if he does, his personal representative has no right to be allowed the sums so paid, as a charge on the estate. 2 The reason of this distinction is, that a tenant in tail, discharging the interest, is supposed to do it, as owner, for the benefit of the estate. He is not compellable to pay the interest ; because he has the power, at any time, to make himself absolute owner against the remainder-man, and reversioner. The latter have no equity to compel him, in their favor, to keep down the interest, inasmuch, as if they take any thing, it is solely by his forbearance, and, of course, they must take it cum onere? § 488 a. Similar questions may arise, as to the apportionment of the money between a tenant for life and a remainder-man in fee, who have united in a sale of the estate, without providing for the manner of apportioning the purchase-money between them, and one of them has died before any apportionment has been made. In such a case how is the money to be divided ? Is the tenant for life to be deemed entitled to the income of the whole fund during his life, and then the whole fund go to the remainder-man ? Or is the value of the estate of each party to be ascertained, calculating that of the tenant for life according to the common tables respect- ing the probabilities of life, and the principal of the fund to be apportioned between them accordingly ? It has been held, upon deliberate consideration, that the latter is the true rule applicable to such cases upon the ground that it must be presumed, in such cases of a joint sale, that the parties mean to share the purchase-money according to their respective interests in the estate at the time of the sale, and not merely to substitute one fund for another. 4 1 Saville v. Saville, 2 Atk. 463, 464 ; that case, be required to keep down the Shrewsbury v. Shrewsbury, 1 Ves. Jr. interest. The reason is, that the infant, 233. of his own free will, cannot bar the 2 Amesbury v. Brown, 1 Ves. 480, 481 ; remainder, and make himself absolute Redington v. Redington, 1 Ball & B. 143 ; owner. See Jeremy on Eq. Jurisd. B. 1, Chaplin v. Chaplin, 3 P. Will. 234, 235. ch. 2, § 1, p. 187 ; Sergeson v. Sealey, 8 Ibid. There is an exception to the 2 Atk. 416, and Mr. Saunders's note (1), general rule, that a tenant in tail is not id. ; Amesbury v. Brown, 1 Ves. 479, 480, bound to keep down the interest, which 481 ; Bertie v. Lord Abingdon, 3 Meriv. confirms, rather than impugns, the gen- 560. eral rule. If the tenant in tail is an 4 Foster v. Hilliard, 1 Story, 77, where infant, his guardian or trustee will, in the subject was discussed at large. See 478 EQUITY- JURISPRUDENCE. [CH. VIII. § 489. These remarks may suffice to show (for it is not our pur- pose to bring the minute distinctions upon these important subjects under a full review) J the beneficial operations of courts of equity, in apportionments and contributions, upon this confessedly intricate subject ; and, also, how utterly inadequate a court of common law would be to do complete justice, in a vast variety of cases, which may easily be suggested. Without some proceedings, in the nature of an account before a Master, there would be no suitable ele- ments, upon which any court of justice could dispose of the merits of such cases, so as to suppress future litigation, or to administer to the conflicting rights of different parties. § 490. Another class of cases, which still more fully illustrates the importance and value of this branch of equity jurisdiction, is that of General Average, a subject of daily occurrence in mari- time and commercial operations. General average, in the sense of the maritime law, means a general contribution, that is to be made by all parties in interest, towards a loss or expense, which is voluntarily sustained or incurred for the benefit of all. 2 The principle upon which this contribution is founded, is not the result of contract, but has its origin in the plain dictates of natural law. 3 It has been more immediately derived to us from the positive declarations of the Roman law, which borrowed it from the more ancient text of the Rhodian jurisprudence. Thus, the Rhodian law, in cases of jettison, declared, that, " If goods are thrown over- board in order to lighten a ship, the loss, incurred for the sake of all, shall be made good by the contribution of all. ' Lege Rhodia ' (says the digest) ' cavetur, ut si levandse navis gratia jactus mer- cium factus est, omnium contributione sarciatur, quod pro omnibus datum est.' " i But the principle is by no means confined to cases of jettison ; but it is applied to all other sacrifices of property, sums paid, and expenses voluntarily incurred in the course of maritime voyages for the common benefit of all persons concerned in the also Brent v. Best, 1 Vera. 69 ; Truelock 2 Abbott on Shipp. Pt. 3, ch. 8, § 1, v. Robey, 11 Jurist, 999 ; Tbynn v. Duvall, p. 342 ; Moore, 297 ; Viner's Abridg. 2 Vera. 117 ; Houghton v. Hapgood, 13 Contribution and Average, A. pi. 1, 2, 26. Pick. 154. But see Penrhyn ■;. Hughes, 8 Ibid. ; Deering v. Earl of Winehel- 6 Ves. 99, 107. [* See Edmunds v. Waugh, sea, 1 Cox, 318, 323 ; s. c. 2 Bos. &' Pull. 12 Jur. n. s. 326; s. c. L. R. 1 Eq. 418; 270,' 274; Stirling v. Forrester, 3 Bligh, 14 W. R. 257.] 690, 596. 1 See 1 Bridgeman's Digest, Average * Dig. Lib. 14, tit. 2, 1. 1. and Contribution, III. ; 1 Chitty, Eq. Dig. Apportionment. §489-491.] ACCOUNT. — CONTRIBUTION. — AVERAGE. 479 adventure. The principle has, indeed, been confined to a sacrifice of property, and the contribution confined to the property saved thereby, although it certainly might have gone farther, and have required a corresponding apportionment of the loss or sacrifice of property upon all persons, whose lives have been preserved thereby, upon the same common sense of danger, and purchase of safety, alluded to by Juvenal, when, in a similar case, his friend desired his life to be saved by a sacrifice of his property ; Fundite, quce rnea sunt etiam puleherrima. § 491. In general average, being, then, as has been already stated, not confined to cases of jettison, but extending to other losses and expenditures for the common benefit, it may readily be perceived, how difficult it would be for a court of law to apportion and adjust the amount, which is to be paid by each distinct interest, which is involved in the common calamity and expenditure. Take, for instance, the common case of a general ship or packet, trading between Liverpool and New York, and having on board various shipments of goods, not unfrequently exceeding a hundred in num- ber, consigned to different persons, as owners or consignees ; and suppose a case of general average to arise during the voyage, and the loss or expenditure to be apportioned among all these various shippers according to their respective interests, and the amount which the whole cargo is to contribute to the reimbursement thereof. By the general rule of the maritime law, in all cases of general average, the ship, the freight for the voyage, and the cargo on board, are to contribute to such reimbursement, according to their relative values. The first step in the process of general average, is to ascertain the amount of the loss for which contribu- tion is to be made, as, for instance, in the case of jettison, the value of the property thrown overboard, or sacrificed for the com- mon preservation. The value is generally indefinite and unascer- tained, and, from its very nature, rarely admits of an exact and fixed computation. The same remark applies to the case of ascer- tainment of the value of the contributory interest, the ship, the freight, and the cargo. These are generally differently estimated by different persons, and rarely admit of a positive and indisputa- ble estimation in price or value. Now, as the owners of the ship, and the freight, and the cargo, may be, and generally are, in the supposed case, different persons, having a separate interest, and often an adverse interest to each other, it is obvious, that unless all 480 EQUITY JURISPRUDENCE. [CH. VIII. the persons in interest can be made parties in one common suit, so as to have the whole adjustment made at once, and made binding upon all of them, infinite embarrassments must arise, in ascertain- ing and apportioning the general average. In a proceeding at the common law, every party, having a sole and distinct interest, must be separately sued ; 2 and as the verdict and judgment in one case will not only not be conclusive, but not even be admissible evi- dence in another suit, as it is res inter alios acta; and as the amount to be recovered must in each case depend upon the value of all the interests to be affected, which, of course, might be differ- ently estimated by different juries, it is manifest that the grossest injustice, or the most oppressive litigation might take place in all cases of general average on board of general ships. A court of equity, having authority to bring all the parties before it, and to refer the whole matter to a Master, to take an account, and to adjust the whole apportionment at once, affords a safe, convenient, and expeditious remedy. And it is accordingly the customary mode of remedy in all cases, where a controversy arises, and a court of equity exists in the place, capable of administering the remedy. 2 [* § 491 a. But where a controversy arose in the English courts of equity, in regard to general average, or contribution to a loss sustained, by. collision at sea, between two American ships, it was held, that the English statutes had no application to the case, and that the court would not take judicial notice ; that the law of America is the same, in regard to the matter in dispute, as that of England ; but if that fact were averred and proved in the cases, the English courts may administer American law between Amer- icans. 3 ] § 492. Another class of cases, to illustrate the beneficial effects of equity jurisdiction over matters of account, is that of Contri- bution between Sureties, who are bound for the same princi- pal, and upon his default, one of them is compelled to pay the money, or to perform any other obligation, for which they all became bound. 4 In cases of this sort, the surety who has paid the whole, is entitled to receive contribution from all the others, for i Abbott on Shipp. Pt. 3, ch. 8, § 17. 196 ; [Merithew v. Sampson, 4 Allen, 2 Abbott on Shipp. Pt. 3, ch. 8, § 17; 192]. Shepherd v. Wright, Shower, Pari. Cas. 3 [* Cope v. Doherty, 4 Kay & John- 18 ; Hallett v. Bousefield, 18 Ves. 190, son, 367.] 4 Com. Dig. Chancery, 4 D. 6. § 491-493.] ACCOUNT. — CONTRIBUTION. — SURETIES. 481 what he has done in relieving them from a common burden 1 [although the several sureties sign without any communication with each other 2 ] . § 493. The claim certainly has its foundation in the clearest principles of natural justice ; for, as all are equally bound and are equally relieved, it seems but just that in such a case all should contribute in proportion towards a benefit obtained by all, upon the maxim, Qui sentit commodum, sentire debet et onus. 3 And the doctrine has an equal foundation in morals ; since no one ought to profit by another man's loss ; where he himself has incurred a like responsibility. Any other rule would put it in the power of the creditor to select his own victim; and, upon motives of mere caprice or favoritism, to make a common burden a most gross personal oppression. It would be against equity for the creditor to exact or receive . payment from one, and to permit, or by his conduct to cause, the other debtors to be exempt from payment. And the creditor is always bound in conscience, although he is seldom bound by contract, as far as he is able, to put the party paying the debt upon the same footing with those who are equally bound. 4 It can be no matter of surprise, therefore, to find, that courts of equity, at a very early period, adopted and acted upon this salutary doctrine, as equally well founded in equity and mo- rality. 5 The ground of relief does not, therefore, stand upon any notion of mutual contract, express or implied, between the sureties to indemnify each other in proportion (as has sometimes been argued) ; but it arises from principles of equity, independent of contract. 6 If the doctrine were otherwise, a surety would be utterly without relief ; because (as we shall presently see) he has not, either in equity or at law, any title to compel the obligee to 1 Layer e. Nelson, 1 Vern. 456. On r. Swinburne, 14 Ves. 159; Kogers v. the subject of contribution, there is a Mackenzie, 4 Ves. 752. valuable note of the Reporter's to the i Stirling v. Forrester, 3 Bligh, 690, case of Averall u. Wade, Lloyd & Goold, 591. 264 to 266 ; Spencer v. Parry, 3 Adolph. 5 Com. Dig. Chancery, 4 D. 6, S. 2 ; & Ell. 331 ; Daries v. Humphries, 6 Maule Peter v. Rich, 1 Ch. 34 ; Morgan v. Sey- & Selw. 153 ; Cowell v. Edwards, 2 Bos. & mour, 1 Ch. 121 ; Stirling u. Forrester, Pull. 268 ; Brown v, Lee, 6 Barn. & Cress. 3 Bligh, 590, 591. 689 ; Kemp v. Finden, 12 Mees. & Welsh. 6 Deering v. Earl of Winchelsea, 1 Cox, 421. 318 ; s. c. 2 Bos. & Pull. 270 ; 1 White & 2 [Norton v. Coons, 2 Selden, 33.] Tudor's Eq. Lead. Cases, 60, and notes ; 8 See Shelly's case, 1 Co. 99 ; Deering Ex parte Gilford, 6 Ves. 805 ; Craythorne u. Earl of Winchelsea, 1 Cox, 318, 322 ; v. Swinburne, 14 Ves. 159 ; Stirling v. s. c. 2 Bos. & Pull. 270, 274; Craythorne Forrester, 3 Bligh, 590, 596; Campbell EQ. JUS. — VOL. I. 31 482 EQUITY JURISPRUDENCE. [ch. vin. assign over the bond to him, upon his making payment or other- wise discharging the obligation. 1 § 494. In the Roman law analogous principles existed, although, from the different arrangements of that system, they were devel- oped under very different modifications. By that law, sureties were liable, indeed, for the whole debt due to the creditor; but this liability was subject to three modifications. In the first place, the creditor was generally bound to proceed by process of discus- sion (as it is now called), in the first instance against the principal debtor, to obtain satisfaction out of his effects, before he could v. Mesier, 4 Johns. Ch. 334, 338 ; Onge v. Truelock, 2 Molloy, 31, 42; Copis v. Middleton, 1 Turn. & Russ. 224 ; Hodgson v. Shaw, 3 Mylne & Keen, 191. In Stirling v. Forrester, 3 Bligh, 496, Lord Redesdale said : " The decision in Deering v. Lord "Winchelsea (1 Cox, 318 ; 2 Bos. & Pull. 270) proceeded on a principle of law, which must exist in all countries, that, where sev- eral persons are debtors, all shall be equal. The doctrine is illustrated in that case by the practice in questions of average, &c, where there is no express contract, but equity distributes the loss equally. On the prisage of wines, it is immaterial whose wines are taken ; all must contribute equally. So it is where goods are thrown overboard for the safety of the ship. The owners of the goods saved by that act must contribute proportionally to the loss. The duty of contribution extends to all persons who are within the scope of the equitable obligation." Post, § 495, note (2). But see Johnson p. Johnson, 11 Mass. 359 ; Taylor v. Savage, 12 Mass. 98 ; [Chipman v. Morrill, 20 Cal. 130]. J Gammon v. Stone, 1 Ves. 339 ; Wof- fington b. Sparks, 2 Ves. 569, 570. But see Morgan v. Seymour, 1 Ch. 120, and Ex parte Crisp, 1 Atk. 135 ; Copis v. Middleton, 1 Turn. & Russ. 224; Hodg- son v. Shaw, 3 Mylne & Keen, 189; Dowbiggin v. Bourne, 2 Younge & Coll. 471 ; Reed v. Norris, 2 Mylne & Craig, 361. Mr. Chancellor Kent, in Cheese- borough v. Millard (1 Johns. Ch. 413), seems to have thought that a surety pay- ing off a debt is entitled to a cession or assignment of the debt, to enable him to have satisfaction from the principal and his co-sureties. He relied on the cases in 1 Ch. 20, and 1 Atk. 35 ; but he did not cite the cases in 1 Ves. 339, and 2 Ves. 569, 570. However, the point was not decided by him. See also Avery v. Pet- ten, 7 Johns. Ch. 211, where the same learned Chancellor acted upon the ground that an assignment might be decreed; but upon very satisfactory grounds he refused it in that case. His grounds, however, seem equally applicable against any assignment in any case, where all the parties in interest are not before the court; and if they are, there seems no necessity for the assignment, since there may be a direct decree for contribution without it. It is one thing to decide that a surety is entitled, on payment, to have an assignment of the debt; and quite another to decide that he is entitled to be subrogated, or substituted, as to other equities and securities, in place of the creditor, against the debtor and his co- sureties. See King v. Baldwin, 2 Johns. Ch. 560 ; Hayes v. Ward, 4 Johns. Ch. 123. See also Himes v. Keller, 3 Watts & Serg. 401; Bowditch u. Green, 3 Met. 310; Powell's Ex'rs v. White, 11 Leigh, 309. In Stirling u. Forrester, 3 Bligh, 590, 591, Lord Redesdale said : " If several per- sons are indebted, and one makes pay- ment, the creditor is bound in conscience, if not by contract, to give the party pay- ing the debt all his remedies against the other debtors." Mr. Theobald, in his Treatise on Principal and Surety, ch. 10, § 270, has by mistake attributed a remark of Sir Samuel Romilly, arguendo, to the Lord Chancellor. It bears on this very point, and therefore the error should be corrected. See post, § 499 to 502, and notes, id. ; and Wright v. Morley, 11 Ves. 12, 22 ; Butcher v. Churchill, 14 Ves. 568, 575, 576; post, §635, 636. § 493, 494.] ACCOUNT. — CONTRIBUTION. — SURETIES. 483 resort to the sureties. In the next place, in a suit against one surety, although each surety was bound for the whole debt after the discussion of the principal debtor ; yet the surety in such suit had a right to have the debt apportioned among all the solvent sureties on the same obligation, so that he should be compellable to pay his own share only ; and this was called the benefit of divi- sion. 1 But if a surety should pay the whole debt, without insist- ing upon the benefit of division, then he had no right of recourse over against his co-sureties, unless (which is the third case), upon the payment, he procured himself to be substituted to the original debt (which he might insist on) by a cession thereof from the creditor; in which case he might insist upon a payment of a proper proportion from each of his co-sureties. 2 And, in case of the insolvency of either of the sureties, the share of the insolvent was to be apportioned upon all the solvent sureties, pro raid. 3 The same principles in a great measure, but not in all cases* now regulate the same subject among the continental nations of Europe, whose jurisprudence is derived from the civil law. 4 1 1 Domat, B. 3, tit. 4, § 2, art. 1, 6; Pothier on Oblig. by Evans, n. 407 ; Poth- ier, Panel. Lib. 46, tit. 1, § 5, art. 1, n. 41 to 45 ; id. art. 3, n. 51 to 61 ; Cheesebor- ough v. Millard, 1 Johns. Ch. 414; Hayes v. Ward, 4 Johns. Ch. 131, 132 ; post, § 636, note. 2 1 Domat, B. 3, tit. 4, § 4, art. 1 ; Poth- ier on Oblig. by Evans, n. 407, 519, 520, 521 (556, 557, 558, of the French editions) ; Pothier, Pand. Lib. 56, tit. 1, art. 2, n. 45 to 51. » 1 Domat, B. 3, tit. 4, art. 2 ; Pothier on Oblig. by Evans, n. 407, 415, 418, 419, 420, 421, 445, 518, 519, 520, 521 (555 to 559, of French editions) ; id. 282 ; Pothier, Pand. Lib. 46, tit. 1, art. 2, n. 45 to 51 ; Dig. Lib. 46, tit. 1, 1. 26 ; Cod. Lib. 8, tit. 14, 1. 2. See also 1 Bell, Comm. B. 3, Pt. 1, ch. 3, § 3, art. 283 to 286 ; Ersk. Inst. B. 3, tit. 3, art. 61 to 74 ; 1 Domat, B. 3, tit. 1, § 3, art. 6, and Domat's note ; post, § 635. 4 Merlin, Ke'pert. art. Discussion; id. Division ; Pothier on Oblig. by Evans, Pt. 2, ch. 6, art. 2, n. 407, 415, 416; id.Pt. 2, ch. 3, art. 8, n. 280 ; id. Pt. 3, ch. 1, art. 6, § 2, n. 519 to 524 (556 to 559, of the French editions) ; 1 Domat, B. 3, tit. 1, § 3^ art. 6, and Domat's note, ibid.; Cod. Lib. 8, tit. 14, 1. 2. The same principle, in regard to the necessity of the creditor's discussing the principal debtor, before resorting to the surety, has been adopted in most countries deriving their jurispru- dence from the civil law; but it is not universally adopted. It prevails in France, Holland, and Scotland"; but not (as it seems) generally in Germany. See Mr. Chancellor Kent's learned opin- ion in Hayes v. Ward, 4 Johns. Ch. 130 to 135, where he cites the foreign authori- ties on this point. These authorities fully justify his statement. The follow- ing extract from that opinion may be acceptable. "According to the Roman law, in use before the time of Justinian, the creditor, as with us, could apply to the surety, before applying to the princi- pal. Jure nostro est potestas creditori, relicto reo, eligendi fidejussores (Code, Lib. 8, tit. 41, § 5) ; and the same law was declared in another imperial ordinance (Code, Lib. 8, tit. 41, § 19). But Justin- ian, in one of his Novels (Nov. ch. 1, en- titled Ut Creditores primo loco conven- iant Principalem), allowed to sureties the exception of discussion, or beneficium or- dinis, by which they could require that, before they were sued, the principal 484 EQUITY JURISPRUDENCE. [CH. VIII. § 495. Originally, it seems to have been questioned, whether contribution between sureties, unless founded upon some positive contract between them, incurring such liability, was a matter capable of being enforced at law. But there is now no doubt that it may be enforced at law, as well as in equity, although no such contract exists. 1 And it matters not, in case of a debt, whether the sureties are jointly and severally bound, or only severally, or whether their suretyship arises under the same obligation or instrument, or under divers obligations or instruments, if all the instruments are for the same identical debt. 2 debtor should, at their expense, be prose- cuted to judgment and execution. It is a dilatory exception, and puts off the action of the creditor against the surety, until the remedy against the principal debtor has been sufficiently exhausted. This provision in the Novels has not been followed in the states and cities of Ger- many, except in Pomerania (Heinecc. Elem. Jur. Germ. Lib. 2, tit. 146, § 449, 450, 451, 465) ; but it has been adopted in those other countries in Europe, as France, Holland, Scotland, &c, which follow the rules of the civil law (Pothier, Traite' des Oblig. No. 407-414; Code Napole'on, No. 2021, 2, 3 ; Voet, Com. ad Pand. tit. De Fidejussoribus, 46, 1, 14-20 ; Hub. Prselec. Lib. 3, tit. 21, § 6 ; Ersk. Inst. 504, § 61). A rule of such general adoption shows that there is nothing in it inconsistent with the relative rights and duties of principal and surety, and that it accords with a common sense of justice, and the natural equity of mankind." It may be well here to state that I generally cite Pothier on Obligations from Mr. Evans's edition. It is important to re- mark that after n. 456, in Evans's edition, the subsequent numbers differ from the common French editions, owing to Pothier having, in his later editions, inserted be- tween that number and number 457, a new section containing thirty-five numbers, so that No. 457, in Evans's edition, stands in the common editions of Pothier, No. 493. See Mr. Evans's note (a) to Pothier on Oblig. Pt. 2, ch. 6, § 9, p. 306. This ex- planation may be useful to the reader, to prevent mistakes, or supposed mistakes, in the references usually made in English and American works to Pothier. Post, § 635 to 640. 1 See Kemp v. Finden, 12 Mees. & Welsh. 421 ; Norton v. Coons, 3 Denio, 130 ; Harris u. Ferguson, 2 Bailey, 397. [That the doctrines as to principal and surety are the same at law and in equity, see Cooper v. Evans, L. E. 4 Eq. 45.] 2 Deering v. Earl of Winchelsea, 1 Cox, 318; s. c. 2 Bos. & Pull. 270; 1 Saun. 264 (a), Mr. Williams's note (c) ; Cray- thorne v. Swinburne, 14 Ves. 159, 169. In Stirling v. Forrester (3 Bligh, 590, o. s.), Lord Redesdale said : " The prin- ciple established in the case of Deering e. Lord Winchelsea, is universal, that the right and duty of contribution is founded in doctrines of equity. It does not de- pend upon contract. If several persons are indebted, and one makes the payment, the creditor is bound in conscience, if not by contract, to give to the party paying the debt all his remedies against the other debtors. The cases of average in equity rest upon the same principle. It would be against equity for the creditor to exact or receive payment from one, and to per- mit, or by his conduct to cause, the other debtors to be exempt from payment. He is bound, seldom by contract, but always in conscience, as far as he is able, to put the party paying the debt upon the same footing with those who are equally bound. That was the principle of decision in Deering v. Lord Winchelsea ; and in that case there was no evidence of contract, as in this. So, in the case of land de- scending to coparceners, subject to a debt ; if the creditor proceeds against one of the coparceners, the other must contrib- ute. If the creditor discharges one of the coparceners, he cannot proceed for the whole debt against the others ; at the most, they are only bound to pay their § 495-496 a.] account. — contribution. — sureties. 485 § 496. But still the jurisdiction now assumed in courts of law upon this subject, in no manner affects that originally and intrin- sically belonging to equity. 1 Indeed, there are many cases in which the relief is more complete and effectual in equity than it can be at law ; as, for instance, where an account and discovery are wanted ; or where there are numerous parties in interest, which would occasion a multiplicity of suits. 3 In some cases the remedy at law is now utterly inadequate. As, if there are several sureties, and one is insolvent, and another pays the debt, he can, at law, recover from the other solvent sureties only the same share as he could if all were solvent. Thus, if there are four sureties, and one is insolvent, a solvent surety, who pays the whole debt, can recover only one-fourth part thereof (and not a third part) against the other two solvent sureties. 3 But in a court of equity, he will be entitled to recover one-third part of the debt against each of them ; for, in equity, the insolvent's share is apportioned among all the other solvent sureties.* [* § 496 a. In some of the American States, courts of law now follow the rule adopted in courts of equity in apportioning the share of an insolvent surety upon those who remain solvent. 5 And the distinction, in the extent of redress, between a court of law and a court of equity, in cases where some of the sureties are insolvent, is .certainly not based upon any very obvious principle affecting the different jurisdictions. It has more the appearance proportions." His lordship afterwards, 159 ; Cowell v. Edwards, 2 Bos. & Pull, in pronouncing judgment, added the 268 ; Wright v. Hunter, 5 Yes. 792. words which have been already cited in 3 Cowell v. Edwards, 2 Bos. & Pull. § 493, note. See also post, § 498, in what 268 ; Brown v. Lee, 6 B. & Cressw. 697. cases no contribution is allowed. [But if See also Rogers v. Mackenzie, 4 Ves. 752 ; the instruments are different, as if one is Wright v. Hunter, 5 Ves. 792. a bond in replevin and the other is a bond * Peter v. Bich, 1 Ch. Rep. 34 ; Cowell upon a supersedeas, there is no contribu- v. Edwards, 2 Bos. & Pull. 268 ; Hale v. tion. Keller v. Williams, 10 Bush, 216.] Harrison, 1 Ch. Cas. 246 ; Deering v. Earl 1 Wright v. Hunter, 5 Ves. 792. of Winchelsea, 2 Bos. & Pull. 270; s. c. (Where complainants signed a note, and 1 Cox, 318. But see Swain v. Wall, 1 Ch. sent it to defendants, with authority to Rep. 149, 150, 161. See also Pothier on issue it upon their signing it jointly with Oblig. n. 275, 281, 282, 428, 521 (n. 556, of them, and defendants, instead of so doing, the French editions), the same principles, merely guaranteed its payment by com- 6 [* Mills v. Hyde, 19 Vt. 59 ; Hender- plaiuants, and discounted it, and suit at son v. McDuffee, 5 N. H. 38 ; Chitty on law was brought on it, equity compelled Cont. (Perkins's edit. 1860) 584, and note, contribution ; the remedy at law not See also Jones v. Blanton, 6 Ired. Eq. 116 ; being plain and certain. Edsell v. Briggs, Aiken v. Peay, 5 Strobh. 15; Johnson » 20 Mich. 429.] Vaughn, 65 111. 425.] 2 Craythorne v. Swinburne, 14 Ves. 486 EQUITY JURISPRUDENCE. [CH. VIII. of an arbitrary rule, and as such may be expected to gradually disappear, in the same way most of its kindred have already done.] § 497. And upon the like grounds, if one of the sureties dies, the remedy at law lies only against the surviving parties ; whereas, in equity, it may be enforced against the representative of the de- ceased party, and he may be compelled to contribute his share to the surviving surety, who shall pay the whole debt. 1 Where there are several distinct bonds with different penalties, and a surety upon one bond pays the whole, the contribution between the sure- ties is in proportion to the penalties of their respective bonds. But, as between the sureties to the same bond, the general rule is that of equality of burden, inter sese. 2 [* § 497 a. It may be questioned whether the more recent deci- sions in courts of equity justify any such discrimination between sureties for the same debt, by different bonds, with different sums as penalties, 3 unless where the purpose of the different sums in which the sureties are bound is to show that the obligor incurs the hazard of only a portion of the debt, or a portion of what the other sureties assume. 4 ] § 498. These are cases of contribution of a simple and distinct character. But, in cases of suretyship, others of a very complicated nature may arise, from counter equities between some or all of the parties, resulting from contract, or from equities between them- selves, or from peculiar transactions regarding third persons. 5 Thus, for instance, although the general rule is, that there shall be a contribution between sureties, by the rule of equality, that may be modified by express contract between them ; and, in such a case, courts of equity will be governed by the terms of such con- tract, in giving or refusing contribution. 6 In like manner, there 1 Primrose v. Bromley, 1 Atk. 89 ; equality of burden and benefit. We in- [Conover v. Hill, 76 111. 342 ; Harris v. fer, therefore, that the difference between Douglas, 64 111. 466]. the penalties of the bond will make no 2 See Deering v. Earl of Winchelsea, difference, provided each exceed the debt, 1 Cox, 318 ; s. c. 2 Bos. & Pull. 270 ; [ante, or the purpose of each is to bind all the § 495]. sureties to the extent of the whole debt. s [* See Deering v. Earl of Winchel- But see Armitage v. Pulver, 37 N. Y. sea, and notes, English and American, 1 494. Leading Cases in Equity, 78 ; o. c. 1 Cox, * Coope v. Twynam, 1 T. & Buss. 426 ; 318 ; 2 B. & P. 270. This was the case post, § 498 ; ante, § 495.] which first decided that contribution 6 See Hyde v.. Tracey, 2 Day, Cas. among sureties is not matter of contract, 422 ; Ransom v. Keyes, 9 Cowen, 128. but of general equity, on the ground of 6 Swain v. Wall, 1 Ch. 149 ; Cray- § 496o-498 a.] account. — contribution. — sureties. 487 may arise by implication, from the very nature of the transaction, an exemption of one surety from becoming liable to contribution in favor of another. Thus, if one surety should not upon his own mere motion, but at the express solicitation of his co-surety, be- come a party to the instrument ; and such co-surety should after- wards be compelled to pay the whole debt ; in such a case, he would not be entitled to contribution, unless it clearly appeared that there was no intention to vary the general right of contribu- tion, in the understanding of the parties. 1 So, if different sure- ties should be bound by different instruments, for equal portions of the debt of the same principal, and it clearly appeared that the suretyship of each was a separate and distinct transaction, there would be no right of contribution of one against the other. 2 So, if there should be separate bonds, given with different sureties, and one bond is intended to be subsidiary to, and a security for the other, in case of a default in payment of the latter, and not to be a primary concurrent security ; in such a case, the sureties in the second bond would not be compellable to aid those in the first bond by any contribution. 3 § 498 a. A question of another sort has arisen : How far, and under what circumstances, the discharge of one surety by the cred- itor would operate as a discharge of the other sureties from their liability. It seems now clearly established at law, that a release or discharge of one surety by the creditor will operate as a dis- charge of all the other sureties, even though it may be founded on a mere mistake of law. 4 But it may be doubtful, whether the thorne v. Swinburne, 14 Ves. 159, 169; 159. See Cooke v. , 2 Freem. 97. Deering v. Earl of Winchelsea, 1 Cox, [Where two were sureties on a bond, 318 ; s. c. 2 Bos. & Pull. 270. which provided that no new arrangement 1 Turner u. Davies, 2 Esp. 478 ; May- between principal and creditor should dis- hew v. Crickett, 2 Swanst. 193 ; Taylor ;;. charge sureties, and one of the sureti es Savage, 12 Mass. 98, 102 ; [* Cutter v. became insolvent, and a third party be- Emery, 37 N. H. 567. That mere re- came bound as surety for the whole debt quest is not enough, that there must be a by a separate instrument, and paid the promise to indemnify, or taking of secur- debt, he had contribution against the boI- ity from principal, see Bagott v, Mullen, vent surety on the first bond. W hiting 32 Ind. 332. But see Hendrick o. Whit- v. Burke, L. B. 10 Eq. 539 ; 6 Ch. App. temore, 105 Mass. 23 ; McKee v. Camp- 342. But if the cause of action is barred bell, 27 Mich. 497.] against one surety, he is not compelled to 2 Coope v. Twynam, 1 Turn. & Buss, contribute. Shelton v. Farmer, 9 Bush, 426. It would be different, if it should 314.] appear that it was the same transaction 8 Nicholson v. Revell, 4 Adolph. & split into different parts by the agree- Ellis, 675 ; s. c. 6 Nev. & Mann. 200 ; ante, ment of all the parties. Ibid. [And see § 112 ; [* Pledge v. Buss, Johnson, Eng. Armitage v. Pulver, 37 N. Y. 494.] Ch. 663]. 8 Craythorne v. Swinburne, 14 Ves. 488 EQUITY JURISPRUDENCE. [CH. VIII. same rule will be allowed universally to prevail in equity. Thus, if a creditor has accepted a composition from one surety, and dis- charged him, it has been thought that he might still recover against another surety his full proportion of the original debt, without deducting the composition paid, if it did not exceed the proportion for which the surety was originally liable. In other words, each surety, notwithstanding such discharge, might be held liable in equity to pay his share of the original debt, treating each as liable for his equal or pro ratd proportion, upon an equitable apportionment of it. 1 [* The bond fide holder of a bill of ex- l In Ex parte Gifford (6 Ves. 805), Lord Eldon held, that a discharge of one surety did not discharge the other sure- ties ; and that, as each surety was bound to contribute his share towards the gen- eral payment, no one could recover oyer against another who had been discharged, unless for the excess paid by him beyond his due proportion. The creditor might, therefore, accept a composition from one surety, and still proceed against another, to recover his full proportion of the orig- nal debt, without deducting the composi- tion paid, if it did not exceed the propor- tion for which the surety was originally liable. Mr. Theobald, in his Treatise on Principal and Surety (ch. 11, § 283, note (i), p. 267), thinks this decision could not have been made ; and that it is misre- ported. I see no reason to question either the accuracy of the report, or the soundness of the doctrine. If the dis- charge of one surety is not the discharge of another, it seems difficult to see how the sum paid by one surety shall take away the obligation of another to pay his proportion of the original debt, if, upon the discharge, the right to proceed against such surety for his proportion was expressly, or by implication, reserved to the extent of that proportion. This seems to have been the ground of Lord Eldon's decision. In Stirling v. Forres- ter (3 Bligh, 591), Lord Redesdale said: "If the creditor discharges one of the coparceners, he cannot proceed for his whole debt against the others ; at the most, they are only bound for their pro- portions." The same principle would apply to co-sureties ; and, indeed, Stirling v. Forrester (3 Bligh, 591, 596) seems mainly to have been decided upon thi9 ground. The distinction is between a discharge of the principal, and a. dis- charge of the surety ; between a part payment by a surety, and a part pay- ment by the principal. In the recent case of Nicholson v. Eevell (4 Adolph. & Ellis, 675 ; s. c. 6 Nev. & Mann. 192, 200), the Court of King's Bench decided that the creditor's discharge of one debtor, on a joint and several note, was, in law, a discharge of all the debtors. Lord Den- man, in delivering the judgment of the court, said : " This view cannot, perhaps, be made entirely consistent with all that is said by Lord Eldon, in the case Ex parte Giff ord, where his lordship dismissed a petition to expunge the proof of a surety against the estate of a co-surety. But the principle, to which we have ad- verted, was not presented to his mind in its simple form ; and the point, certainly, did not undergo much consideration. For some of the expressions employed would seem to lay it down, that a joint debtee might release one of his debtors, and yet, by using some language of res- ervation in the agreement between him- self and such debtor, keep his remedy entire against the others, even without consulting them. If Lord Eldon used any language which could be so inter- preted, we must conclude that he either did not guard himself so cautiously as he intended, or that he did not lend that degree of attention to the legal doctrine connected with the case before him, which he was accustomed to afford. We do not find that any other authority clashes with our present judgment, which must be in favor of the defendant." It § 498 a, 498 J.J account. — contribution. — sureties. 489 change, who takes it without notice that the acceptor signed for accommodation merely, is not precluded from releasing the drawee by notice subsequently acquired. 1 But if this fact be known to the creditor at the time he accept the bill, for a guaranty of a float- ing balance of account, he is bound to deal with the several parties upon the paper according to their actual and not their apparent relations to each other. 2 But if the creditor is informed, when his debt is contracted, that the relation of principal and surety exists between his co-debtors, he is bound thereafter to treat them as such at his peril. 3 § 498 b. The rule laid down in the preceding section, that where the creditor varies the contract by an arrangement between himself and the principal, without the privity of the surety ; or between himself and one or more of the sureties, without the concurrence of the others ; as if he release one of the sureties, that he thereby vitiates his claim against the surety not consulted only to the extent of the injury thereby sustained by him, may have the countenance of absolute moral justice, and has certainly is, however, to be remembered, that his lordship was here dealing with the ques- tion at law ; but it by no means follows, that, because a security is extinguished at law, therefore it is extinguished in equity, if it is the clear intention of the parties that it shall not be extinguished. See 2 Story on Eq. Jurisp. § 1370, 1372. Pothier adopts very much the same prin- ciples and reasonings as Lord Eldon ; asserting that the release by the creditor of one debtor would liberate all the others, if the creditor meant thereby to extinguish the debt ; but not, if the cred- itor meant to reserve his rights against the other co-debtors for their proportions. 1 Pothier on Oblig. by Evans, n. 275, 278, 279, 280, 281 ; id. n. 521 [556]. Pothier has also treated the point of a discharge of one surety ; and he holds, that a dis- charge of one surety discharges the other sureties for such proportion of the debt as, upon payment of the whole debt, they could have had recourse to him for. Pothier on Oblig. by Evans, n. 275, 277, 280, 281, 428, 429, 445, 519, 520, 521, 521 B, 623 [n. 656-560 of the French edi- tions]. The rule of the civil law is the same. Si ex duobus, qui apud te fidejus- serant in viginti, alter, ne ab eo pateres, quinque tibi deberit, vel promiserit; nee alter liberabitur. Et si ab altero quinde- cim petere institueris, nulla exceptione (cedendarum actionem) summoveris. Re- liqua autem quinque, si a priori fidejussore petere institueris, doli mali exceptione summoveris. Dig. Lib. 46, tit. 1, 1. 15, § 1 ; Pothier, Pand. Lib. 46, tit. 1, n. 47 ; [* ante, § 164 a, and note ; Garey v. Hig- nutt, 32 Md. 552]. 1 [* Graham, ex parte, 5 De G., M. & G. 356 ; Farmers & Mech. Bank v. Rath- bone, 26 Vt. 19, where the subject is very fully and satisfactorily discussed, and the cases extensively cited and com- pared by Isham, J. The law seems now settled otherwise. See Oriental, &c, Co. v. Overend, L. R. 7 Ch. App. 142. 2 Davies v. Stainbank, 6 De G., M. & G. 679. But this latter case seems to rest mainly upon the ground that the bill was held as a mere guaranty. It was held that a, landlord, who made distress for rent upon property he held as security for a loan to the tenant, thereby released the surety. Pearl v. Deacon, 1 De G. & Jones, 461. 8 Wythes v. Labouchere, 3 De G. & J. 593. 490 EQUITY JURISPRUDENCE. [CH. Vni. been sustained by the opinions of eminent judges. 1 But it is not supported by the general course of modern decisions, and is at variance with the cardinal principle of the law of suretyship, that the surety may claim to stand upon the very terms of his con- tract. 2 And where a landlord held a note with surety for money loaned his tenant, and had also a security for this and other money subsequently loaned, by the mortgage of the tenant's furniture, it was held that he released the surety by taking the furniture under a distress for rent in arrear. 3 ] § 498 e. Indeed, circumstances may exist, under which even a release of the principal might not release the surety from the debt, where it was clear, from the whole transaction, that it was intended that the surety should remain bound. Thus, where, before the release to the principal, the surety had paid part of the debt, and given a security (an acceptance) for the remainder, it was held that it was not a release of the surety, in the absence of all evidence to establish the contrary intent. 4 § 499. Sureties are not only entitled te contribution from each other for moneys paid in discharge of their joint liabilities for the principal ; but they are also entitled to the benefit of all securi- ties, which have been taken by any one of them to indemnify 1 Where the surety is bound by the of Limitations. Ibid. But see Shelton same instrument for performance of dis- v. Farmer, 9 Bush, 314. The surety is tinct acts, he may be discharged by con- entitled to relief against any arrangement duct of the creditor as to one, and yet between principal and creditor which remain bound as to the other. Harrison would work injustice to him, e. g., where v. Seymour, L. R. 1 C. P. 518. Any creditor prosecuted principal for perjury act or omission of the creditor injurious as to the debt, and was about to take a to the surety and inconsistent with his note, which was all the property princi- rights discharges him. See Watts v. Shut- pal possessed in compounding of the fel- tleworth, 29 L. J. (Ex.) 229, p. 234; Ex ony. Held, surety could enforce applica- parte Agra Bank, L. R. 9 Eq. 725 ; Hen- tion of such note on the debt. Breese v. derson v. Huey, 45 Ala. 275. Innocent Schuler, 48 111. 329. acceptance of a payment which is a pref- 2 Evans o. Bremridge, 2 Kay & John- erence, and which has to be repaid in son, 174. It is here said that the dicta to consequence, will not discharge surety, the contrary in Ex parte Gifford, 6 Ves. Petty v. Cooke, L. R. 6 Q. B. 790. Agree- 805, have not been followed, inent of creditor with the principal to 3 Pearl v. Deacon, 1 De G. & J. 461.] give time to surety will discharge him. i Hall v. Hutchins, 3 Mylne & Keen, Oriental, &c. Co. v. Overend, L. R. 7 Ch. 426. [Where in a release of the principal App. 142. The neglect of creditor to sue, the rights against the surety are reserved, whereby his direct claim against the es- it is construed not as a release of the tate of a deceased surety is outlawed, debt, but as a covenant not to sue the will not discharge a co-surety. Camp v. principal, and the surety remains bound. Bostwick, 20 Ohio, N. s. 337. And the Green v. Wynn, L. R. 7 Eq. 28; 4 Ch. co-surety on paying the debt can enforce App. 204.] contribution, notwithstanding the Statute § 498 6-499.] account. — contribution. — sureties. 491 himself against such liabilities. 1 Courts of equity have gone farther in their favor, and held them entitled, upon payment of the debt due by their principal to the creditor, to have the full benefit of all the collateral securities, both of a legal and equitable nature, which the creditor has taken as an additional pledge for his debt. 2 Thus, for example, if, at the time when the bond of the principal and surety is given, a mortgage also is made by the principal to the creditor, as an additional security for the debt ; there, if the surety pays the debt, he will be entitled to have an assignment of that mortgage, and to stand in the place of the mortgagee. 3 [*And the same rule applies to all securities taken by the creditor subsequent to the surety becoming bound. 4 ] And, as the mortgagor cannot get back his estate again without a re- conveyance, that assignment and security will remain a valid and effectual security in favor of the surety, notwithstanding the bond is paid. 5 This indeed is but an illustration of a much broader doctrine established by courts of equity, which is, that a creditor shall not, by his own election of the fund, out of which he will 1 See Theobald on Principal and Sure- ty, ch. 11, § 283 ; Swain v. "Wall, 1 Ch. Rep. 149 ; Steale v. Mealing, 24 Ala. 285. But see Bowditch v. Green, 3 Met. 360 ; Himes v. Keller, 3 Watts & Serg. 401 ; Commer- cial Bank of Lake Erie v. "Western Re- serve Bank, 11 Ohio (Stanton), 444 ; "Wig- gin v. Dorr, 3 Sumner, 410; [* Miller v. Sawyer, 30 Vt. 412 ; Leary v. Cheshire, 3 Jones Eq. 170 ; McCune v. Belt, 45 Mis. 174 ; Aldrich's Adm'r v. Hapgood, 39 Vt. 617 ; Furnold v. Bank of Mo., 44 Mis. 336. 2 Craythorne v. Swinburne, 14 Ves. 159; Wright v. Morley, 11 Ves. 12, 22; Copis v. Middleton, 1 Turn. & Russ. 224 ; Jones v. Davis, 4 Russ. 277 ; Dowbiggin v. Bourne, 1 Younge, 111 ; s. c. 2 Younge & Coll. 462, 470; Hodgson v. Shaw, 3 Mylne & Keen, 183 ; Reed v. Norris, 2 M. & Craig, 361 ; ante, § 327 ; Ex parte Rush- worth, 10 Ves. 409, 420, 422 ; Mayhew v. Crickett, 2 Swanst. 191 ; Wade v. Coope, 2 Sim. 155. But see Bowditch o. Green, 3 Met. 360, contra. But a surety for a part of a debt is not entitled to the bene- fit of a security given by the debtor to the creditor at a different time for an- other part of the debt. Wade v. Coope, 2 Simons, 155 ; [unless he pay the whole debt. Wilcox v. Pah-haven Bank, 7 Allen, 270. See York v. Landis, 65 N. C. 535; Berthold v. Berthold, 46 Mis. 557. After ratable payment by the sureties, what- ever an individual surety recovers from the principal is not ordinarily to be shared with the others. See Harrison v. Phillips, 46 Mis. 520, for an exception to the rule.] 8 See Loud v. Sergeant, 1 Edw. Ch. 164; Marsh v. Pike, 1 Sandf. 211; Mc- Lean v. Towle, 3 Sandf. 117, 136, 161 ; Bank v. Campbell, 2 Rich. Eq. 180 ; At- ■ wood v. Vincent, 17 Conn. 576 ; Wheatley v. Calhoun, 12 Leigh, 265; [*Gedye v. Matson, 25 Beavan, 310. 4 Pledge v. Buss, Johnson, Eng. Ch. 663.] 6 Ante, § 421 a; Williams u. Owen, The (English) Jurist, 30th Dec, 1843, p. 1145, and the learned note of the re- porter, p. 1146, 1147 ; Copis v. Middleton, 1 Turn. & Russ. 224, 229, 231 ; Dowbig- gin v. Bourne, 2 Younge & Coll. 471, 472. Lord Brougham, in the case of Hodgson v. Shaw, 3 Mylne & Keen, 190, 191, 192, puts this doctrine in a strong light. Post, 499 c, n. 2. See also Boultby v. Stubbs, 16 Ves. 20 ; Stokes v. Menton, 3 Swanst. 130, note ; Mayhew v. Crickett, 2 Swanst. 185, 190, note ; Beckett v. Booth, 1 Eq. Abridg. 595. 492 EQUITY JURISPRUDENCE. [CH. Tin. receive payment, prejudice the rights which other persons are entitled to ; but they shall either be substituted to his rights, or they may compel him to seek satisfaction out of the fund, to which they cannot resort. 1 It is often exemplified in cases where a party, having two funds to resort to for payment of his debt, elects to proceed against one, and thereby disappoints another party, who can resort to that fund only. In such a case, the disappointed party is substituted in the place of the electing creditor, or the latter is compelled to resort, in the first instance, to that fund which will not interfere with the rights of the other. 2 [*And it is true also, that the creditor may compel the sureties to assign to him all securities held by them for the payment of the debt, provided the creditor cannot enforce the payment of the debt in any other mode. But it was held, in a recent case in Connecticut, 3 that where a mortgage is given to indemnify the surety, and not to secure the debt, the security does not in the first instance attach to the debt as an incident, but if any equity arises in behalf of the creditor it comes into operation subsequently, and grows out of intervening insolvency. And until this equity arises the surety has a right to relinquish the security, and the creditor can only enforce his equity after it is perfected, and against such securities as the surety holds after knowledge of the creditor's equity. This, although in conformity to the common understand- ing of unprofessional and business men, is not, we apprehend, altogether consistent with the general scope of the rule as held among the profession. It is generally understood that the surety holds all securities in trust, no.t only for the other sureties, but i Wright o. Morley, 11 Vee. 12 ; Ex § 558, 559, 560 to 568 ; Boazman v. John- parte Gifford, 6 Ves. 805, 807. See Bum- son, 3 Sim. 377 ; [Heyman v. Dubois, L. R. bold v. Rumbold, 3 Ves. 63 ; Mayhew v 13 Eg. 158]. Crickett, 2 Swanst. 186, 191 ; Miller v. 2 Sagittary v. Hyde, 1 Tern. 455, and Ord, 2 Binn. 382 ; Cheeseborough u. Mil- Mr. Raithby's note ; Mills o. Eden, 10 lard, 1 Johns. Ch. 409, 412; Stevens v. Mod. 488; Aldrich v. Cooper, 8 Ves. 388; Cooper, 1 Johns. Ch. 430; Lawrence v. Trimmer v. Bayne, 9 Tes. 209 ; Robinson Cornell, 4 Johns. Ch. 545 ; King v. Bald- v. Wilson, 2 Mad. 437 ; Cheeseborough v. win, 2 Johns. Ch. 654; Hayes v. Ward, 4 Millard, 1 Johns. Ch. 412, 413; King i>. Johns. Ch. 123; Clason v. Morris, 10 Baldwin, 2 Johns. Ch. 554; Hayes v. Johns. 524 ; Ererston v Booth, 19 Johns. Ward, 4 Johns. Ch. 123 ; 1 Mad. Pr. Ch. 486 ; Averall v. Wade, Lloyd & Goold, 202, 203 ; post, § 558, 559, 633, 634 635, 252; ante, § 324, 326, 493; post, § 502; 636, 1028; [*Pledge v. Buss, Johnson^ Stirling v. Forrester, 3 Bligh, 590, 591 ; Eng. Ch. 663. post, § 633 to 640 ; Selby v. Selby, 4 Russ. ' Jones e. Quinnipiack Bank, 29 336 ; Gwynne v. Edwards, 2 Russ. 289 n ; Conn. 25. Bute v. Cunynghame, 2 Russ. 275 ; post, § 499, 499 a.] account. — contribution. — sureties. 493 for the creditor also, until the debt is paid. 1 In a late English case, 2 the surety upon a bond to secure a money debt was himself secured by another bond of indemnity entered into by the princi- pal debtor's father, who had died, having by will devised certain property specifically upon trust to pay the debt. The creditor having applied to the surety, the surety had recourse to the ex- ecutors, who said they had no funds in hand, and that they were unable under the will to raise the money by sale of any portion of the testator's estate, except under a decree of court. It was held that the surety, although he had not actually paid any thing, was entitled to maintain a bill against the executors for administration of the estate, payment of the debt, and indem- nity, and that in such a proceeding it was not requisite to make all the creditors of the estate parties of the bill, or quasi parties, by filing it on behalf of all who might choose to come in under it-] § 499 a. The principle seems in former times to have been car- ried farther by courts of equity, and to have authorized the surety to insist upon an assignment, not merely of collateral securities, properly speaking, but of collateral incidents, and dependent rights, growing out of the original debt. Thus, where the principal in a bond had been sued, and gave bail, and judgment was obtained against the principal, and also against the bail, by the creditor, and afterwards the sureties on the original bonds (who had counter- bonds) were compelled to pay it ; and then brought their bill in equity to have the benefit of the judgment of the creditor against the bail, by having it assigned to them ; it was decreed by the court accordingly. So that although the bail were themselves but sure- ties, as between themselves and the principal debtor, yet, coming in the room of the principal debtor, as to the creditor, it was held, that they likewise came in the room of the principal debtor as to the sureties on the original bond. 3 This decision consequently established, that the original sureties had precisely the same rights that the creditor had ; and were to stand in his place. The orig- inal sureties had no direct contract or engagement by which the 1 New Bedford Savings Institution o. Brown, 6 Johns. Ch. 398, 406, was cited Fairhaven Bank, 9 Allen, 175, 178, and by counsel for plaintiff in support of the cases cited by Chapman, J. See Osborn proceeding.] v. Noble, 46 Miss. 449. » p ars0 ns v. Briddock, 2 Vern. 608 ; 2 Wooldridge v. Norris, Law Bep. 6 Wright v. Morley, 11 Ves. 22. Eq. 410. The case of Champion v. 494 EQUITY JURISPRUDENCE. [CH. VIII. bail were bound to them ; but only a claim against the bail, through the medium of the creditor, to all whose rights, and the power of enforcing them, they were held to be entitled. 1 This decision has been much questioned ; and although it may be distinguishable in its circumstances from others on which we shall have occasion to comment, yet it must now be deemed to be much shaken in point of authority. 2 - But, however this may be, it seems certain, that a surety upon a second bond, given as collateral security for the original bond, has a right, upon payment of his own bond, to be substituted to the original creditor, as to the first bond, and to have an assignment thereof, as an independent subsisting obliga- tion for the debt. 3 § 499 b. Another point of more extensive importance in prac- tice is, whether a surety, who pays off the debt of the principal, for which he is bound, is entitled to require the creditor, upon such payment, to make an assignment to him of the debt, and of the instrument by which it is evidenced. It seems formerly to have been thought that he had such a right ;' and the general lan- guage of some of the authorities, that the surety is in such cases entitled to every remedy which the creditor had against the prin- cipal, was supposed fully to justify and support this conclusion. 4 But the doctrine is now fully established 5 that the surety has 1 Wright v. Morley, 11 Ves. 22. 6 [But it seems not in America. The 2 Hodgson v. Shaw, 3 Mylne & Keen, doctrine of Copis v. Middleton has not 189. But see Wright v. Morley, 11 Ves. generally been received with approbation 22 ; Dowbiggin v. Bourne, 1 Younge, 111, by the American courts, and it has here 114, 115; s. c. 2 Younge & Coll. 462, 472, often been held, that, although the lien 473. or security be extinguished at law, yet, 3 Hodgson v. Shaw, 3 Mylne & Keen, for the benefit of the security, it contin- 183, 193 ; ante, § 493, note ; Cheesebor- ues in equity in full force. See Lathrop ough v. Millard, 1 Johns. Ch. 413 ; Avery & Dale's Appeal, 1 Barr, 512 ; Powell v. v. Petten, 7 Johns. Ch. 211. See Himes White, 11 Leigh, 309; Speiglemyer ». v. Keller, 3 Watts & Serg. 401. [*This Crawford, 6 Paige, 254; Bodgers v. Mc- is, perhaps, questionable.] Clure, 4 Gratt. 81 ; McCleary u. Beirne, 4 Ex parte Crispe, 1 Atk. 135; Par- 10 Leigh, 395; Perkins v. Kershaw, 1 sons v. Briddock, 2 Vern. 608; Wright v. Hill, Ch. 344; 2 Bland, 509; 1 Harr. Morley, 11 Ves. 12, 21, 22; Dowbiggin v. 374; Tinsley v. Anderson, 3 Call, 329; Bourne, 1 Younge, 411 ; s. c. 2 Younge & Burns v. Huntington Bank, 1 Penn. 395 ; Coll. 464 ; Butcher v. Churchill, 15 Ves. Fleming v. Beaver, 2 Rawle, 132 ; Croft 567, 575, 676; Ex parte Eushforth, 10 v. Moore, 9 Watts, 417; Cuyler v. Ens- Ves. 409, 414 ; Robinson v. Wilson, 2 worth, 6 Paige, 32 ; Matthews v. Aiken, Mad. 464 ; Craythorne v. Swinburne, 14 1 Const. 595 ; Ellsworth v. Lockwood, Ves. 160, 162. See also Hodgson v. Shaw, 42 N. Y. 89; York v. Landis, 65 N. C. 3 Mylne & Keen, 183, 185 ; Hotham v. 535 ; Berthold v. Bertliold, 46 Mis. 557. Stone, 1 Turner & Russ. 226, note ; But- By the Mercantile Law Amendment cher v. Churchill, 14 Ves. 568, 575, 576. Act (19 & 20 Vict. ch. 97), the surety is § 499 a-499 c] account. — contribution. — sureties. 495 no such right to be enforced in equity, and that he cannot insist upon any such assignment. The ground is that by the payment of the debt the title derived under the instrument has become ex- tinguished, and functus officio ; and, therefore, an assignment there- of would be utterly useless; and if the surety shall afterwards sue for the debt at law, in the name of the creditor, the princi- pal might plead such payment in bar of the action. 1 In such a case it would make no difference in the right of the surety to sue, that upon payment of the debt, he had procured an assignment thereof to be made to a third person, instead of to himself, for his benefit. 2 Neither would it make any difference, that several judg- ments had been obtained by the creditor against the principal and surety, and that the latter had paid the debt on the judgment against him, and then sought an assignment to be made of the judgment against the principal ; for the judgment would be effect- ually extinguished by such payment ; and the surety would not be permitted to avail himself of it against the principal. 3 § 499 c. The error of the contrary opinion, if indeed, upon the principles of enlarged equity, any there be, seems to have arisen from confounding the right of the surety, on payment of the debt, to be substituted for the creditor, and to have an assignment of any independent collateral securities, with the supposed right to have the original debt assigned. Such independent collateral securities may well be required to be assigned by the creditor, in favor of the surety ; because, in many cases, the principal would not be entitled to have a retransf er thereof from the surety, without paying him the sums advanced by him to the creditor, as a matter of equity between the parties. But the assignment of the debt itself, which had been already paid, would be a mere nullity in entitled to an assignment on paying the Stalwood, Cas. temp. Hard. 133 ; Davis debt. See In re Cochran's estate, L. R. v. Perrine, 4 Edw. Ch. 65 ; Morrison v. 6 Eq. 209. But he is not entitled to the Marvin, 6 Ala. 797 ; Briley » Sugg, 1 judgment on which he pays. A pay- Dev. & Batt. 366 ; Armitage «. Baldwin, ment of the judgment by one is an ex- 5 Beav. 278. tinguishment of it. Hull v. Sherwood, 2 See Reed v. Norris, 2 Mylne & Craig, 69 Mo. 172 ; Holmes v. Day, 108 Mass. 361 ; Jones '». Davids, 4 Russ. 277 ; Copis 103.] v. Middleton, 1 Turn. & Russ. 224, 229. i Woffington v. Sparks, 2 Ves. 569 ; But see Butcher v. Churchill, 14 Ves. 568, Gammon v. Stone, 1 Ves. 339 ; Copis v. 575, 576. Middleton, 1 Turn. & Russ. 224, 229; a Dowbiggin v. Bourne, 2 Younge & Jones v. Davids, 4 Russ. 297 ; Hodgson o. Coll. 464. But see Hill v. Kelly, 1 Ridg. Shaw, 3 Mylne & Keen, 183 ; Hudson v. L. & Schoales, 265. 496 EQUITY JURISPRUDENCE. [CH. VIII. equity, as well as at law, since it could not have, in the hands of the surety, any subsisting obligation. 1 § 499 d. Upon reasoning somewhat analogous, to that the sup- 1 This whole subject is examined in a masterly manner by Lord Eldon, in Copis v. Middleton, 1 Turn. & Russ. 224, 229, 231 ; and by Lord Brougham, in Hodgson v. Shaw, 3 Mylne & Keen, 183. In a former case, Lord Eldon said : " It is a general rule, that in equity a surety is entitled to the benefit of all the se- curities which the creditor has against the principal. But then, the nature of those securities must be considered. When there is a bond merely, if an ac- tion was brought upon the bond, it would appear, upon oyer of the bond, that the debt was extinguished. The general rule, therefore, must be qualified, by consid- ering it to apply to such securities as continue to exist, and do not get back, upon payment to the person of the prin- cipal debtor. In the case, for instance, where, in addition to the bond, there is a mortgage with a covenant, on the part of the principal debtor, to pay the money, the surety, paying the money, would be entitled to say, 'I have lost the benefit of the bond ; but the creditor has a mortgage, and I have a right to the benefit of the mortgaged estate which has not got back to the debtor."' Lord Brougham, speaking on the same subject, said : " The rule here is undoubted, and it is one founded on the plainest principles of nat- ural reason and justice, that the surety paying off a debt shall stand in the place of the creditor, and have all the rights which he has, for the purpose of ob- taining his reimbursement. It is hardly possible to put this right of substitution too high ; and the right results more from equity than from contract or quasi contract ; unless in so far as the known equity may be supposed to be imported into any transaction, and so to raise a contract by implication. The doctrine of the court, in this respect, was lumi- nously expounded in the argument of Sir Samuel Romilly, in Craythorne v. Swinburne ; and Lord Eldon, in giving judgment in that case, sanctioned the ex- position by his full approval. ' A surety,' to use the language of Sir Samuel Rom- illy's reply, 'will be entitled to every remedy which the creditor has against the principal debtor, to enforce every se- curity and all means of payment ; to stand in the place of the creditor, not only through the medium of contract, but even by means of securities, entered into with- out the knowledge of the surety ; having a right to have those securities transferred to him, though there was no stipulation for that, and to avail himself of all those securities against the debtor.' I have purposely taken this statement of the right, because it is there placed as high as it ever can be placed ; and yet it is quite consistent with the principle of Copis v. Middleton. Thus, the surety paying is entitled to every remedy which the cred- itor has. But can the creditor be said to have any specialty after the bond is gone by payment? The surety may enforce any security against the debtor which the creditor has ; but by the" supposition there is no security to enforce, for the payment has extinguished it. He has a right to have all the securities transferred to him ; but there are, in the case sup- posed, none to transfer. They are abso- lutely gone. He may avail himself of all those securities against the debtor, but his own act of payment has left none of which he can take advantage." See also Dowbiggin v. Bourne, 2 Younge & Coll. 462, 471. It is observable, that the whole of this reasoning proceeds upon the ground, that by the payment by the surety, the original debt is extinguished. Now, that is precisely what the Roman law (as we shall presently see) denied; and it treated the transaction between the surety and the creditor according to the presumed intention of the parties, to be, not so much a payment as a sale of the debt. 1 Domat, B. 3, tit. 1, § 6, art. 1 ; post, § 500, and § 635, 636, 637. It is not wonderful, that courts of equity, with this enlarged doctrine in their view, which is in entire conformity to the intention of the parties, as well as to the demands of justice, should have struggled to adopt it into the equity jurisprudence of England. The opposing doctrine is founded more on technical rules, than on any solid rea- § 499 c, 499 d.~\ account. — contribution. — sureties. 497 posed error of which we have been considering, it was formerly held, that if a surety upon a bond-debt should discharge it, he would be entitled to be considered as substituted for the original creditors, as a specialty creditor of his principal ; and, conse- quently, in the marshalling of the assets of the principal, he would; as to the debt so paid, have a priority over simple contract cred- itors. 1 But upon this point, also, a different doctrine is now estab- lished ; and it is held that a surety, so paying a bond-debt, will be treated in marshalling assets, as a mere simple contract creditor. 2 The ground of this doctrine is, that the surety is not subrogated to the rights of the creditor in such a case (whether he has pro- cured an assignment of the bond, when paid or not) ; but he is in soning founded in general equity. In truth, courts of equity, in many cases, do adopt it, and act upon it, as in cases where they give the right of substitution to particular parties, where there are two funds, out of one of which a creditor has insisted upon receiving satisfaction, to the disappointment of the parties who have no claim upon the other fund. Ante, § 499; post, § 633 to 640. Whether it might not have been as wise for courts of equity to have followed out the Ro- man law to its full extent, instead of adopting a modified rule, which stops, or may stop, short of some of the purposes of reciprocal justice, it is now too late to inquire, and therefore the discussion would be useless. See Cheeseborough v. Millard, 1 Johns. Ch. 409, 412, 413, 414; ante, § 493, note. Sir William Grant, in Butcher v. Churchill (14 Ves. 568, 575, 576), seems to have proceeded upon the principle of the Roman law, in holding that the assignment of a bond to a sure- ty, who had compounded the debt with the creditor, and taken the assignment, ought to be upheld in equity, however it might be at law, for the purpose of secur- ing to him the amount he had paid on the bond and interest. But see Armitage v. Baldwin (5 Beav. 278), where the surety paid the debt due to the creditor after the creditor had obtained judgment for it against the principal debtor, and also an- other judgment against his bail in that action, and upon such payment the sure- ty took an assignment from the creditor of both judgments — Lord Langdale thought, that as the bill alleged that the surety had " duly paid and satisfied the original judgment," he could not main- tain a bill against the bail on the judg- ment against him to charge the estate of the bail. But his lordship suggested that the plaintiff might, by a proper proceed- ing, ultimately succeed in establishing a right against the estate of the bail. [Hull v. Sherwood, 59 Mo. 172 ; Holmes v. Day, 108 Mass. 103.] 1 Hotham v. Stone, 1 Turn. & Buss. 226, note ; Robinson v. Wilson, 2 Mad. 464; Wright v. Morley, 11 Ves. 22. The case of Powell's Ex'rs v. White, 11 Leigh, 309, fully approves this same doctrine. 2 Copis v. Middleton, 1 Turn. & Buss. 224, 229, 231 ; Jones v. Davids, 4 Russ. 277; Foster v. Athneim, 1 Ala. 302; Hodgson d. Shaw, 3 Mylne & Keen, 183. [Contra, in most American States. See Eppes v. Randolph, 2 Call, 125 ; 3 id. 329 ; West v. Belcher, 5 Munf. 187; McMahon v. Fawcett, 2 Rand. 514 ; Watts v. Kin- ney, 3 Leigh, 272 ; Wheatley v. Calhoun, 12 Leigh, 265 ; Litterdale v. Robinson, 2 Brock. 161; 12 Wheat. 594; Pride v. Boyce, 1 Rice, Eq. 276 ; Schultz v. Carter, 1 Speer's Eq. 534; Croft v. Moore, 9 Watts, 451 ; Lathrop & Dale's Appeal, 1 Barr, 512 ; Enders v. Brune, 4 Rand. 438 ; Grider o. Payne, 9 Dana, 188; Dias v. Bouchand, 3 Edw. Ch. 485; United States v. Hunter, 5 Mason, 62. The rule is now changed by the Mercantile Law Amendment Act. See In re Coch- ran's estate, L. R. 5 Eq. 209J, EQ. JUR. — VOL. I. 32 498 EQUITY JURISPRUDENCE. [CH. VIII. fact as well as in law, to be deemed only as having paid money for the principal upon the footing of an implied contract of indemnity subsisting between them. 1 Yet there are many cases in which a 1 Ibid. Lord Eldon, in Copis v. Mid- dleton, 1 Turn. & Russ. 228, said : " I take the present case to be simply this. Upon loans of money to A., joint bonds were given by A. and B., B. being surety for A. ; two of the bonds were paid off by B. in the lifetime of A. ; now, if one of two joint obligors, being a surety, pays off the debt in the lifetime of the principal, he is at law merely a simple contract creditor of the principal; and, if the principal lives for twenty years after the payment of the debt, he continues during all that time to be at law a simple con- tract creditor only. Then the question is, Whether, by the death of the princi- pal, he is to be converted, in a court of equity, into a specialty creditor against his assets. With respect to the bond paid off after the death of the principal, the questions are : Whether, inasmuch as, at the death of principal, there was money due upon the bond, there was an equity on the part of the surety to compel the creditor to go in against the assets of the principal; and, whether, there having been no interposition for that purpose, the right of the surety to stand in the place of the creditor can now be maintained. When it is considered that this was a joint bond, and that no action at law could be maintained, except against the surety, the surviving debtor, it is a strong proposition to say, that the surviv- ing debtor is to be considered in equity as a specialty creditor against the assets of the deceaseddebtor." And, again, in p. 230, 231, 232, he said: "The facts of this case are simply these. Two indi- viduals gave a bond, the one as the prin- cipal, and the other as surety ; no other assurance was executed at the time ; no mortgage was made to secure the debt ; no counter-bond was given by the prin- cipal to the surety ; and the question to be decided is, Whether the surety, hav- ing paid the bond after it was due, is a simple contract or a specialty creditor ? I understand it to have been the opinion of the Master, an opinion founded on one or two caseB, which have been stated, that the surety was to be considered as a specialty creditor, to stand in the place of the person whom he paid. That doctrine appears to me to be contrary to all that has been settled during the whole time I have been in this court. Every thing that was arranged in bank- ruptcy before the late statute, enabling the surety to prove every thing determined before, appears to me to have authorized the court to consider it quite clear, that if there was nothing in the case beyond what I have stated, the surety, having paid the bond, could be nothing more than a simple contract creditor in respect of that payment. The bond was not as- signed to anybody in consideration of a sum of money paid, which was one way we used to manage these things; there was no counter-bond given, which was another way in which we used to manage these things ; so that if the surety paid one bond, he became instantly a specialty creditor by virtue of the other bond. If any suit was now instituted, I apprehend the payment of the bond would show that the bond was gone. There has been a case cited, where, upon the general ground that a surety.is entitled to the benefit of all securities which the creditor has against the principal, it seems to have been thought that the surety was entitled to be, as it were, a bond-creditor, by vir- tue of the bond. I take it to be exceed- ingly clear, if, at the time the bond is given, a mortgage is also made for secur- ing the debt, the surety, if he pays the bond, has a right to stand in the place of the mortgagee; and, as the mortgagor cannot get back his estate again without a conveyance, that security remains a valid and effectual security, notwithstand- ing the bond-debt is paid. But if there is nothing but the bond, my notion is, that, as the law says, that bond is discharged by the payment of what was due upon it ; the bond is gone, and cannot be set up." Lord Brougham, in Hodgson v. Shaw, 3 Mylne & Keen, 190, 191, 192, still more elaborately expounded the doctrine. "When" (said he) "a person pays off a bond in which he is either co-obligor or bound subsidiarie, he has, at law, an § 499 d.~] ACCOUNT. — CONTRIBUTION. — SURETIES. 499 surety, paying a debt, will be entitled to stand in the place of the creditor, or to obtain the full benefit of all the proceedings of the creditor against the principal. Thus, for example, if the creditor, in case of the bankruptcy of the principal, has proved his debt before the commissioners, and then the surety pays the debt, the latter will be entitled to the dividends declared on his estate, and the creditor will be held to be his trustee for this purpose. 1 So, action against the principal for money paid to his use ; and he can have nothing more. The joint obligation towards the creditor is held to give to the principal notice of the payment, and also to prove his consent or authority to the making that payment. This is necessary for en- abling any man, who pays another's debt, to come against that other ; because a person cannot make himself the creditor of another by volunteering to discharge his obligations. But beyond this claim, which is on simple contract merely, there exists none against the principal by the surety who pays his debt ; nor, when the matter is closely viewed, ought there to ex- ist any other. The obligation, by specialty, is incurred, not towards the surety, even in the event of his paying, but only towards the obligee. And there is no natural reason why, because I bind myself under seal to pay another person's debt, the creditor requiring a security of that high nature, I should, therefore, have as high a security against the principal debtor. If I had chosen to demand it, I might have taken a similar obligation, when I became so bound. And if I omitted to do so, I can only be considered as possessing the rights which arise from having paid money for him, which I had voluntarily, and with- out consideration, undertaken to pay. The case standing thus at law, do con- siderations of equity make any alteration in its aspect % " His lordship then pro- ceeded to state what is contained in the passage already cited ante, § 499 c, note 1, p. 496, and then added : " Living the principal debtor, the surety could only bring indebitatus assumpsit for the money he had paid to that principal's use. The death of that debtor cannot clothe him with a higher title. Living the debtor, the creditor could not have assigned the bond on payment by the surety ; for there was no longer any thing to assign. The death of the debtor cannot surely operate a revivor of the specialty, enable the creditor to assign it, or the court to hold it assigned in equity, and empower the surety to sue upon it the executors or ad- ministrators of him, who, had he chanced to survive, never could have been sued, except upon the money counts in an ac- tion of assumpsit. Observe the conse- quence that would have followed from any other principles, while the law of debtor and creditor continued, as it was till the recent alteration, and when landed estates were not real assets for payment of simple contract debts. If the princi- pal debtor continued alive, the surety could not in any way touch his real estates except through the medium of a judg- ment. But if he happened to die, his real estates became assets, although the law had never been changed. There can be no doubt, therefore, with respect to the principle of Copis v. Middleton ; and Lord Eldon expressed himself without any hesitation in that case, though pressed with the authority of Sir William Grant in Hotham v. Stone, upon which he re- marked, that the case had been appealed and compromised without coming to an argument." But see in America the case of Powell's Ex'rs v. White, 11 Leigh, 309, which upholds the old doctrine. i Ex parte Bushforth, 10 Ves. 409; Wright v. Morley, 11 Ves. 12, 22, 23; Watkins v. Flanagan, St Buss. 421 ; Ex parte Houston, 2 G. & Jamieson, 36 ; Ex parte Gee, 1 G. & Jamieson, 330. [As to whether the surety is bound by the elec- tion of the creditor to prove against the joint instead of the separate estate, qucere, see Ex parte Carue, L. B. 3 Ch. App. 463. If the surety has paid only part of the debt proved, the dividends will be appor- tioned accordingly. Hobson v. Bass, L. R. 6 Ch. App. 792. See Gray v. Seck- ham, L. B. 7 Ch. App. 680.] 500 EQUITY JURISPRUDENCE. [CH. VI1X. the surety may compel the creditor to go in and prove his debt before the commissioner ; and then, if he pays the whole debt, the creditor will in like manner become a trustee of the dividends for him. 1 [So, where a surety for the purchase-money of land, pays the debt, he is subrogated to the vendor's lien on the land for the unpaid purchase-money. 2 ] In cases of this sort courts of equity seem to be regulated by the same principles which govern their interference, in favor of sureties, to compel creditors to proceed in the first instance against the principal for the recovery of their debts. 3 [* § 499 e. The general principle that the surety, upon payment of the debt, is entitled to be subrogated to all the rights of the creditor is extensively discussed and fully maintained by the New York Court of Appeals. 4 This was where the creditor held a chattel mortgage as collateral security for a debt for the payment of which the plaintiff stood as surety, and after paying the debt the court held he was entitled to stand in the place of the creditor in all respects as to the chattel mortgage, and enforce it to the same extent and in the same mode he might have done. But where two sureties agreed among themselves to assume the debt, and accordingly paid one-half each, it was held, that one of them was not entitled to the benefit of securities thereafter taken for his own indemnity. 5 But before any severance of interest each surety is entitled to the benefit of all the securities held either by the creditor or by the other sureties ; and the creditor is also entitled to the benefit of all securities held by the sureties or either of them. 6 "Where a cred- i Ex parte Eushforth, 10 Ves. 409,414 ; tick v. Wilkins, 7 Heisk. 307 ; Wilson v. Wright v. Simpson, 6 Ves. 734. Stewart, 26 Ohio St. 504. 2 [Eddy v. Traver, 6 Paige, 521 ; Welch 5 Hall v. Cushman, 16 N. H. 462. See v. Parran, 2 Gill, 320 ; Magruder v. Peter, Harrison v. Phillips, 46 Mis. 520. 11 Gill & Johns. 219 ; Kleiser .,. Scott, 6 « Paris v. Hulett, 26 Vt. 308 ; Brown Dana, 137 ; Burk v. Chishman, 3 B. Mon- v. Ray, 18 N. H. 102 ; Lane v. Stacey, 8 roe, 50 ; In re McGill, 6 Barr, 504 ; Da- Allen, 41 ; Clapp v. Lebanon Bank, 46 vidson o. Carroll, 20 La. Ann. 199 ; Tuck Penn. St. 88 ; Sears v. Leforce, 17 Iowa, v. Calvert, 33 Md. 209.] 473. It seems to have been held in some 3 Ante, § 327 ; post, § 639. cases that a surety who pays the debt 4 [* Lewis v. Palmer, 28 N. Y. 271. cannot call upon a co-surety to reimburse And see Billings v. Sprague, 49 111. 509 ; his share of it, unless the principal is in- Mitchell v. De Witt, 25 Tex. (Supp.) 180 ; solvent, which he must allege and prove Storms v. Storms, 3 Bush (Ky.), 77 ; in order to recover of the co-surety. Rhame v. Lewis, 13 Rich. (S. C.) Eq. 269 ; Boiling v. Doneghy, 1 Duvall, 220. The Kirkman v. Bank of America, 2 Cold, surety is upon payment entitled to subro- (Tenn.) 397 ; Dempsey v. Bush, 18 Ohio, gation to the judgment recovered against jr. s. 376 ; Clark v. Williams, 10 N. C. himself and the principal debtor, to be 679 ; Person v. Perry, 70 N. C. 697 ; Bit- enforced against one who became bail at § 499 <#-500.] ACCOUNT. — CONTRIBUTION. — SURETIES. 501 itor who is also surety takes security both for the debt and his liability as surety, he is entitled to have his own debt first paid, in full, before he applies any portion of the security for the benefit of his co-sureties. 1 But one may become surety for a former surety, and not for the principal debtor. 2 ] § 500. Upon this subject a far more liberal and comprehensive doctrine pervades the Roman law. Not only is the surety by that law entitled in such cases to the benefit of all the collateral securi- ties taken by the creditor ; but he is also entitled to be substituted as to the very debt itself, to the creditor, by way of cession or assignment. And upon such cession or assignment upon payment of the (Jebt by the surety, the debt is in favor of the surety, treated not so much as paid, as sold; not as extinguished, but as trans- ferred with all its original obligatory force against the principal. 8 " Fidejussoribus succurri solet, ut stipulator compellatur ei, qui soli- dum solvere paratus est, vendere cseterorum nomina. Cum is, qui et reum et fidejussores habens, ab uno ex fidejussoribus accepta pecunia, prsestat actiones; poterit quidem dici, nullas jam esse, cum suum perceperit, et perceptione omnes liberati sunt. Sed non ita est ; non enim in solutum accepit, sed quodanimodo nomen debi- toris vendidit. Et ideo habet actiones, quia tenetur ad id ipsum, ut prsestet actiones." i Here we have the doctrine distinctly put, the the request of the principal debtor, possession and for redemption, see Hall v. Schuetzel's Appeal, 49 Penn. St. 23. But Hall, 46 N. H. 240. A fraudulent vendor a surety to a bond for supersedeas does of land, to avoid his debts, cannot compel not thereby become a co-surety for the the vendee to account for the land or the debt with one who was surety for an un- use of it. Sweet v. Timloe, 52 Barb. 271. dertaking to secure the discharge of an As to the extent of an account, see Shin- attachment in the original action. Hart- del's Appeal, 57 Penn. St. 43. well v. Smith, 15 Ohio, x. s. 200. Where * Brown v. Ray, 18 N. II. 102 ; Hess's one surety pays the debt in some specific estate, 69 Penn. St. 272 ; Field v. Hamil- property.the co-surety is only bound to ton, 45 Vt.35; Magee e.Leggett, 48 Miss, contribute his proportion of the value of 139 ; Allison v. Sutherlin, 50 Mo. 274. such property where that is less than the 2 Adams v. Flanagan, 36 Vt. 400 ; nominal amount of the debt. Jones v. Keith v. Goodwin, 31 id. 268.] Bradford, 25 Ind. 305. 8 p thier on Oblig. by Evans, n. 275, And where some of the stockholders 280, 281, 428, 429, 430, 519, 520, 621, 522 are made to pay the debt of a corporation [n. 556, 557, 558, 559 of the French edi- under the provisions of the statute, the tions]. other stockholders may be compelled in * Dig. Lib. 46, tit. 1, 1. 17, 36 ; Pothier, equity to contribute their proportion of Pand. Lib. 46, tit. 1, n. 46 ; ante, § 327, the money thus paid, according to the 494 ; post, § 635 to 638 ; 1 Domat, B. 3, tit. number of shares held by each. Erick- 1, § 3, art. 6, 7 ; id. § 6, art. 6, 7 ; Pothier son v. Nesmith, 46 N. H. 371. In regard on Oblig. by Evans, n. 275, 280, 281, 428, to bills in equity to compel an account of 429, 430, 519, 520, 521, 522 [n. 556, 567, rents and profits by the mortgagee in 558, 559 of the French editions]. 502 EQUITY JURISPRUDENCE. [CH. VIII. objection to it stated, and the ground upon which its solution depends affirmed. The reasoning may seem a little artificial ; but it has a deep foundation in natural justice. The same doctrine stands in substance approved in all the countries which derive their jurisprudence from the civil law. 1 § 501. The Roman law carried its doctrines yet farther, in fur- therance of the great principles of equity. It held the creditor bound not to deprive himself of the power to cede his rights and securities to the surety, who should pay him the debt ; and, if by any voluntary and unnecessary act of his own, such a cession became impracticable, the surety might, by what was technically called exceptio cedendarum actionum, bar the creditor of so much of his demand as the surety might have received by a cession or assignment of his liens and rights of action against the principal debtor. " Si creditor a debitore culpa sua causa ceciderit, propd est, ut actione mandati nihil a mandatore consequi debeat ; cum ipsius vitio acciderit, ne mandatori possit actionibus cedere." 2 But this qualification should be added, that a mere omission by the creditor to collect the debt due of the hypothecated property, so" that it is lost by his laches, will not discharge the sureties ; but the creditor must be guilty of some wrongful act, as by a release or 1 Voet, ad Pand. Lib. 46, tit. 1, § 27, cessary or improper act, deprived the 29, 30 ; Pothier on Oblig. by Evans, n. surety of that resource. The surety, by 275, 280, 281, 427, 428, 429, 430, 519, 520, his very character and relation of surety, 522 [n. 555, 556, 557 of the French edi- has an interest that the mortgage taken tions] ; Huber, Prselect. Inst. Lib. 3, tit. 21, from the principal debtor should be dealt ii. 8 ; 1 Bell, Comm. B. 3, Pt. 1, ch. 3, § 3, with in good faith and held in trust, not p. 264, &c, art. 283, 4th edit. ; Ersk. Inst, only for the creditor's security, but for B. 3, tit. 3, art. 68 ; 1 Kames, Eq. 122, 124. the surety's indemnity. A mortgage so 2 Dig. Lib. 46, tit. 2, 1. 95, § 11 : taken by the creditor, is taken and held Pothier, Pand. Lib. 46, tit. 1, n. 46, 47 ; in trust, as well for the secondary inter- Pothier on Oblig. by Evans, n. 275, 280, est of the surety, as for the more direct 428, 429,430, 519,520, 521, 521 B., 522 and immediate benefit of the creditor; [n. 555, 556, 557, 558, 559, 560 of the , and the latter must do no wilful act, French editions] ; Cheeseborough v. Mil- either to poison it in the first instance, or lard, 1 Johns. Ch. 414 ; Stevens v. to destroy or cancel it afterwards. These Cooper, 1 Johns. Ch. 430, 431 ; Hayes v. are general principles founded in equity, Ward, 4 Johns. Ch. 130. In this last case, and are contained in the doctrines laid Mr. Chancellor Kent said : " According down in Pothier's Treatise on Obligations, to the doctrine of the civil law, the surety No. 496, 519, 520, to which reference has may, per exceptionem cedendarum actionum, ■ been made in the former decisions of thiB bar the creditor of so much of his de- court." See also post, § 635, 636. The mand as the surety might have received case of Macdonald v. Bell, 3 Moore, Privy by an assignment of his lien and right of Council, 315, 332, fully recognizes the action against the principal debtor ; pro- same doctrine. vided the creditor had, by his own unne- § 500-502 a.] account. — contribution. — sureties. 503 fraudulent surrender of the pledge, in order to discharge the surety. 1 § 502. The same doctrine has been in some measure transfused into the English law in an analogous form, not indeed by requiring an assignment or cession of the debt to be made; but by putting the surety paying the debt, under some circumstances, in the place of the creditor. 2 And if the creditor should knowingly have done any act to deprive the surety of this benefit, the surety, as against him, would be entitled to the same equity as if the act had not been done. 3 On the other hand, if a surety has a coun- ter-bond or security from the principal, the creditor will be entitled to the benefit of it ; and may in equity reach such security to satisfy the debt. 4 [* 502 a. But where the creditor had lent the principal two sums, of £2,000, and £3,000, on distinct securities, and the plain- tiff was surety for the first sum only, it was held, that the plaintiff, upon paying the first sum, was not entitled to have a transfer of the securities held for that sum, until the creditor had also been paid the other sum. 5 And if the advances to the principal are made at different times, and the one without sureties, is made without the knowledge of the sureties for the other advance, it would seem it will not affect the rule. In the absence of con- tract the law implies a right in the creditor to hold all his security till the whole sum advanced is paid, and the surety, in that respect, stands in his place. 6 1 Macdonald v. Bell, 3 Moore, Privy 6 [* Earebrother v. "Wodehouse, 23 Council, 315, 332. See Schroepell v. Beavan, 18. Shaw, 3 Comst. 457. 6 Williams v. Owen, 13 Simons, 597. 2 Robinson v. Wilson, 2 Mad. 437. In But see Bowker o. Bull, 1 Simons, n. a. the case of a Crown debtor, a surety is 29, where it is held that a contract will substituted to the prerogative of the sometimes be implied, which will deprive Crown, in regard to the debt, and then the creditor of that advantage. Post, is admitted to use the Crown remedies. § 634 a. And where a person was surety The King v. Bennet, Wightwick, 2 to 6 ; on part of a debt, the whole of which was ante, § 499 to 499 d, and notes. secured by mortgages made at different 8 Hayes v. Ward, 4 Johns. Ch. 130 ; times of policies on life of principal : Cheeseborough v. Millard, 1 Johns. Ch. Held, that the creditor had the right to 413,414; Stevens v. Cooper, 1 Johns. Ch. consolidate his mortgages and retain his 430; Miller v. Ord, 2 Bin. 382; Alrich v. debt out of either policy ; and that the Cooper, 8 Ves. 388, 391, 395 ; Ex parte surety was subrogated on payment to Bushf orth, 10 Ves. 409 ; Wright v. Mor- same equity, and was entitled as against ley, 11 Ves. 22. [See Hoysradt v. Hoi- assignee in bankruptcy of the deceased land, 50 N. H. 433.] principal to be repaid out of the policies 4 1 Eq. Abridg. p. 93, K. 5. See also .all he had had to pay. Heyman v. Du- Com. Dig. Chancery, 4D.6; [Carpenter bois, L. K. 13 Eq. 158 ; ante, § 499 e. A v. Bowen, 42 Miss. 28]. surety on a probate bond paying the 504 EQUITY JURISPRUDENCE. [CH. VTII.- § 502 b. The surety, by making a new and independent ar- rangement with the creditor, in regard to the security of the debt, puts himself in the place of a principal, and cannot thereafter complain of the creditor for any want of diligence in pursuing the principal. As where, after judgment against him, the surety makes an arrangement with the creditor (irrespective of the prin- cipal) for a stay of execution, so long as he kept up certain poli- cies for securing the debt, and afterwards the creditor, having taken the principal debtor in execution, discharged him without payment. 1 So, too, it has been held, that, where the surety is indemnified by his principal, he is not released by any new con- tract made with, or indulgence shown to, the principal debtor, he being virtually a co-principal. 2 It is here said, " A surety who is fully indemnified by property in his possession, which by the terms of the assignment he is at liberty to convert into money, stands much in the same light as a surety who has received the amount of the debt in money from the principal. And in such case he is clearly the principal. And so, if he had received half the money, he would be a co-principal ; and in all these cases, as it seems to us on general principles, he should not be permitted to claim the privileges of a strict surety without indemnity." § 502 c. A surety, who executes a bond on the faith of it being executed by the principal debtor also, cannot be released from his obligation on the ground that the principal has never executed it, provided the principal has executed an instrument on which the surety may sue him and become a specialty creditor of his. 3 ] § 503. There are many other cases of contribution, in which the jurisdiction of courts of equity is required to be exercised, in order to accomplish the purposes of justice. Thus, for instance, in cases of a deficiency of assets to pay all debts and legacies, if any debt is subrogated to the rights of the ceeds to sue the co-surety, equity will re- administrator. Clark u. Williams, 70 strain such suit. Silvey v. Dowell, 53 111. N. C. 679. 260. A co-surety who has paid the debt 1 Reade v. Lowndes, 23 Beavan, 361. may recover it from a surety indemnified It seems doubtful how far such a dis- by property in his hands. Parham v. charge will affect the surety, in any case, Green, 64 N. C. 436. unless it be regarded as a technical dis- 8 Cooper v. Evans, Law Rep. 4 Eq. charge of the debt. 45. The surety is released if induced to 2 Smith v. Estate of Steele, 25 Vt. sign by representation of payee that note 427. See also Chilton v. Robbins, 4 Ala. was for goods, when it was for pre-exist- 223. And if a surety who is indemni- ing debt. Ham v. Greve, 34 Ind. 18 ; but fied, procures the assignment of the debt otherwise, if before signing he learned to a third party for his benefit, who pro- the truth from the maker. Ibid.] § 502 6-505.] account. — contribution. — sureties 505 of* the legatees have been paid more than their proportion, before all the debts are ascertained, they may be compelled to refund and contribute, in favor of the unpaid debts, at the instance of credit- ors, at the instance of other legatees, and in many cases, although rot universally, at the instance of the executor himself. 1 § 504. In like manner, contribution lies between partners for any excess, which has been paid by one partner beyond his share, against the other partners, if upon a winding up of the partnership affairs, such a balance appears in his favor ; or, if, upon a disso- lution, be has been compelled to pay any sum, for which he ought to be indemnified. The cases in which a recovery can be had at law by way of contribution between partners are very few, and stand upon special circumstances. The usual, and indeed almost the only, effectual remedy is in equity, where an account of all the partnership transactions can be taken ; and the remedy to ascer- tain and adjust the balance is, in a just sense, plain, adequate, and complete. 2 It is under the same circumstances, that an action of account at the common law lies ; but that, as we have already seen, is in most cases a very cumbersome, inconvenient, and tardy remedy. The same remark applies to an action of covenant on sealed articles of partnership, or an action of assumpsit upon unsealed articles, where there have been any breaches of the arti- cles; for there may be many breaches of them, during the con- tinuance of the partnership, which scarcely admit of adequate redress in this way. 3 This subject will, however, hereafter present itself in a more enlarged form. 4 § 505. Contribution also lies between joint-tenants, tenants in common, and part owners, of ships and other . chattels, for all 1 Ante, § 90, 92 ; Jeremy on Eq. Jurisd. from fraudulently stripping himself of B. 3, Pt. 2, ch. 2, p. 364 ; id. B. 3, Pt. 2, his property, so as to throw the burden ch. 5, p. 518; Noel v. Robinson, 1 Vern. of the debt on his co-surety, see Bowen 94, and Mr. Raithby's notes, ibid. ; Wal- v. Hoskins, 45 Miss. 183.] cott v. Hall, 2 Bro. Ch. 305 ; Anon., 1 P. 2 See Collyer on Partnership, ch. 8, Will. 495, and Mr. Cox's note; Newman § 2, 4, p. 143, 157, 162; Gow on Partn. u. Barton, 2 Vern. 205, and Mr. Raithby's ch. 2, § 3, 4, p. 92 to 141. See Wright v. note; Edwards v. Freeman, 2 P. Will. Hunter, 1 East, 20; Sells v. Hubbell's 447; Hardwick v. Wind, 1 Anst. 112; Administrators, 2 Johns. Ch. 397 ; Wright Davis v. Davis, 1 Dick. 32 ; Jewson o. u. Hunter, 5 Ves. 792. Grant, 3 Swanst. 659 ; Com. Dig. Chan- 8 See Duncan v. Lyon, 3 Johns. Ch. eery, 3 V. 6. See also on the subject of 362 ; Niven v. Spickerman, 12 Johns. 401 ; contribution, the Reporter's note to Aver- Gow on Partn. ch. 2, § 3, p. 92 ; Dunham all v. Wade, Lloyd & Goold, 264 ; ante, v. Gillis, 8 Mass. 462. § 492. [That equity, where the princi- i Post, § 659 to 683; Story on Partn. pal is insolvent, will restrain a surety § 219 to 242. 506 EQUITY JURISPRUDENCE. [CH. VIII. charges and expenditures incurred for the common benefit. But it seems unnecessary to dwell upon these cases, and others of a like nature, as they embrace nothing more than a plain application of principles already fully expounded. 1 We may conclude this head with the remark, that the remedial justice of courts of equity, in all cases of apportionment and contribution, is so complete, and so flexible in its adaptation to all the particular circumstances and equities, that it has, in a great measure, superseded all efforts to obtain redress in any other tribunals. § 506. Liens also give rise to matters of account ; and although this is not the sole, or indeed the necessary, ground of the inter- ference of courts of equity ; yet, directly or incidentally, it becomes a most important ingredient in the remedial justice administered by them in cases of this sort. The subject, as a general head of equity jurisdiction, will more properly fall under discussion in another place. But a few considerations, touching matters of account involved in it, may be here glanced at. A lien is not in strictness either a jus in re, or a jus ad rem ; but it is simply a right to possess and retain property, until some charge attaching to it is paid or discharged. 2 It generally exists in favor of artisans and others, who have bestowed labor and services upon the prop- erty, in its repair, improvement, and preservation. 3 It has also an existence, in many other cases, by the usages of trade ; and in maritime transactions, as in cases of salvage and general average. 4 It is often created and sustained in equity, where it is unknown at law ; as in cases of the sale of lands, where a lien exists for the unpaid purchase-money. 5 It is not confined to cases of mere labor and services on the very property, or connected therewith ; but it often is, by the usage of trade, extended to cases of a general bal- ance of accounts, in favor of factors and others. 6 Now, it is obvi- 1 Com. Dig. Chancery, 3 V. 6; Eogers 2 Brace v. Duchess of Marlborough, 2 v. Mackenzie, 4 Ves. 752 ; Lingard a. P. Will. 491 ; Gilman v. Brown, 1 Mason, Bromley, 1 V. & Beam. 114. [One of 221 ; Ex parte Hey wood, 2 Rose, 355, 357 ; two cestui que trusts under a deed of trust post, § 1215, 1216. ordinarily cannot hare contribution 8 Abbott on Shipping, Pt. 2, ch. 3, § 1, against the other for permanent improve- 17 ; Chase v. Westmore, 5 M. & Selw. ments ; but if such improvements in- 180. crease price brought at foreclosure sale, 4 Abbott on Shipping, Pt. 2, ch. 3, § 1, there should be compensation. Gardner 17 ; Pt. 3, ch. 3, § 11 ; id. ch. 10, § 1, 2. a. Diedricks, 41 HI. 158. That one ten- 6 Sugden on Vendors, ch. 12, § 1, ant in common cannot at common law p. 541 (7th edit.) ; id. ch. 12, § 1, Vol. 2, sue the other for contribution f or neces- p. 57 (9th edit.). sary repairs made against his will, see 6 Paley on Agency, ch. 2, § 3 ; Kru- Calvert v. Aldrich,'99 Mass. 74.1 ger v. Wilcocks, Ambler, 252, and Mr. § 505-506 a. J account. — liens. 507 ous, that most of these cases must give rise to matters of account ; and as no suit is maintainable at law for the property by the owner, until the lien is discharged, and as the nature and amount of the lien often are involved in great uncertainty, a resort to a court of equity, to ascertain and adjust the account, seems, in many cases, absolutely indispensable for the purposes of justice ; since, if a tender were made at law, it would be at the peril of the owner ; and, if it was less than the amount due, he would inevitably be cast in the suit, and be put to the necessity of a new litigation under more favorable circumstances. So, in many cases, where a lien exists upon various parcels of land, some parts of which have been afterwards sold to different purchasers, and the lien is sought to be enforced upon the lands of the purchaser, it may often become necessary to ascertain what parcels ought primarily to be subjected to the lien in exoneration of others ; and a bill for this purpose, as well as for an account of the amount of the encumbrance, may be indispensable for the purposes of justice. 1 Cases of pledges pre- sent a similar illustration, whenever they involve indefinite and unascertained charges and accounts. [* § 506 a. And where policy-holders, whose claims were disputed, deposited the policy as a security, and the depositors submortgaged the same, and subsequently notified the submortgagees to hold the ultimate balance upon the policy, and other securities included in the same mortgage, for the benefit of a bank, and the bank gave them notice to the same effect, it was held that the transaction created a valid security on the insurance money in favor of the bank. 2 And where foreign principals requested a London firm to buy Mexican bonds and " hold them at their disposal," the princi- pals having paid the money thus advanced, and requested their agents to " keep the bonds in safe custody," which they promised to do ; it was held, they had a lien on the bonds for the general balance of their accounts against the principal. 3 But the decree of the Master of the Rolls was reversed by the Lord Chancellor, who held that a general lien can only be maintained in particular trades, where its existence has been judicially declared, as in the Blunt's note ; Green v. Farmer, 4 Burr, and priority as to contributions is more 2218. fully considered. 1 Skeel v. Spraker, 8 Paige, 182 ; 2 [* Myers v. United Guarantee & Life Patty v. Pease, 8 Paige, 277 ; post, § 634 a, Assurance Co., 7 De G., M. & G. 112. 1233 a, where the marshalling of securities 3 Bock v. Goppissen, 6 Jur. N. s. 547. 60a EQUITY JURISPRUDENCE. [CH. VIII. case of wharfingers, factors, and bankers, or in other trades where there is express evidence of custom. 1 ] § 507. Let us, in the next place, bring together some few cases involving accounts, which may arise either from privity of con- tract or relation, or from adverse or conflicting interests. § 508. Under this head the jurisdiction of courts of equity in regard to Rents and Profits may properly be considered. A great variety of cases of this sort resolve themselves into matters of account, not only when they arise from privity of contract, but also when they arise from adverse claims and titles, asserted by different persons. 2 Between landlord and tenant accounts often extend over a number of years, where there are any special terms or stipulations in the lease, requiring expenditures on one side and allowances on the other. In such cases, where there are any con- troverted claims, a resort to courts of equity is often necessary to a due adjustment of the respective rights of each party. 3 § 509. Mr. Fonblanque asserts that courts of equity, when resorted to for the purpose of an account of mesne profits, will, in many cases, consult the principle of convenience; and will, therefore, sometimes decree it, where the party has not already established his right at law. 4 To some extent, as in cases of shareholders in real property of a peculiar nature (such, as share- holders in the New River Water- Works in England), he is borne out by authority. But there is great reason to question whether the doctrine is generally admissible as a rule in equity, resulting from mere convenience. 5 It seems rather to result from the pecu- liar character of the property where there are many proprietors, in the nature of partners, having a common title to the profits ; and, therefore, the whole becomes appropriately a matter of account. 6 § 510. But another class of cases is still more frequent, arising from tortious or adverse claims and titles. 7 Thus, where a judg- i a. c. 7 Jur. n. s. 81.] 6 Townsend v. Ash, 3 Atk. 336. See 2 See 1 Fonbl. Eq. B. 1, ch. 3, § 3, and Pulteney v. "Warren, 6 Ves. 91, 92 ; Nor- note (£) ; id. B. 1, ch. 1 ; id. B. 1, ch. 1, ton w. Frecker, 1 Atk. 624, 525. § 3, note (/) ; Bac. Abridg. Accompt, B. id. ; Hughes v. Davies, 5 Sim. 349. Dig. Chancery, 3 C. ; id. l)ismes. M. 1 Mitford, Eq. PI. 125, by Jeremy ; 13. Pulteney v. Warren, 6 Ves. 89. * 3 Black. Com. 437 ; Co. Litt. 159 a, 518 EQUITY JURISPRUDENCE. [CH. VIII. upon considerations eminently of an ecclesiastical nature, and are more suitable for a general treatise on tithes. 1 § 521. Having passed under review some of the principal heads of Equity Jurisdiction in matters of account, which do not require any elaborate examination, or belong to subjects which peculiarly illustrate the nature of it, we may conclude this examination with some few matters which appropriately belong to the head of Ac- count, and are incident to the exercise of this remedial jurisdiction in all its forms. § 522. In the first place, in all bills in equity for an account, both parties are deemed actors when the cause is before the court upon its merits. It is upon this ground that the party defendant, contrary to the ordinary course of equity proceedings, is entitled to orders in a cause to which a plaintiff alone is generally entitled. As, for instance, in such a case, a defendant may have an order for a ne exeat regno, even against a co-defendant. 2 So, it is a gen- eral rule, that no person but a plaintiff can entitle himself to a decree. But in bills for an account, if a balance is ultimately found in favor of the defendant, he is entitled to a decree for such balance against the plaintiff. And for a like reason, although a defendant cannot ordinarily revive a suit which has not proceeded to a decree ; yet, in a bill for an account, if the plaintiff dies after an interlocutory decree to account, the defendant is entitled to revive the suit against the personal representatives of the plaintiff. 3 And if the defendant dies, his personal representative may revive the suit against the plaintiff. 4 The good sense of the doctrine seems to be that, wherever a defendant may derive a benefit from further proceedings, whether before or after a decree, he may be said to have an interest in it, and consequently ought to have a right to revive it. 5 § 523. In the next place, there are some matters of defence, i Earl of Coventry v. Burslen, 2 Anst. law on a promissory note given for land, 667, note ; Gordon v. Simpkinson, 11 Ves. payment of the note was decreed in favor 609; Stawell v. Atkyns, 2 Anst. 564; 1 of defendant.] Mad. Pr. Ch. 202; Mayor of York u . » 1 Eq. Abridg. 3 PI. 5 ; Anon., 3Atk. Pilkington, 1 Atk. 282, 283 ; Warden, 691, 692 ; Ludlow v. Simond, 2 Cain. Err. &c., of St. Paul's u. Morris, 9 Ves. 155. 39 ; Lord Stowell v. Cole, 2 Vera. 219, See also Whaley v. Dawson, 2 Sch. & and Mr. Raithby's note; Horwood e. Lefr. 370, 371 ; Daws v. Benn, 1 Jao. & Sohmedes, 12 Ves. 316. Walk. 513. 4 Kent v. Kent, Prec. Ch. 197. 2 Done's case, 1 P. Will. 263. [See " Williams v. Cooke, 10 Ves. 406; Kraker v. Shields, 20 Gratt. (Va.) 377, Horwood v. Schmedes, 12 Ves. 311, 316. where, in a suit to enjoin proceedings at §520-523.] account. — tithes. 519 either peculiarly belonging to cases of account, or strikingly illus- trative of some of the principles already alluded to, under the head of accident, mistake, or fraud. Thus, it is ordinarily a good bar to a suit for an account, that the parties have already in writing stated and adjusted the items of the account, and struck the balance. 1 In such a case a court of equity will not interfere ; for under such circumstances, an indebitatus assumpsit upon an insimul computassent lies at law, and there is no ground for resort- ing to equity. If, therefore, there has been an account stated, that may be set up by way of plea, as a bar to all discovery and relief, unless some matter is shown, which calls for the interposition of a court of equity. 2 But, if there has been any mistake, or omission, or accident, or fraud, or undue advantage, by which the account stated is in truth vitiated, and the balance is incorrectly fixed, a court of equity will not suffer it to be conclusive upon the parties ; but will allow it to be opened and re-examined. 3 In some cases, as of gross fraud, or gross mistake, or undue advantage or imposi- tion, made palpable to the court, it will direct the whole account to be opened, and taken de novo? In other cases, where the mis- take, or omission, or inaccuracy, or fraud, or imposition, is not shown to affect or stain all the items of the transaction, the court will content itself with a more moderate exercise of its authority. 5 1 Dawson v. Dawson, 1 Atk. 1 ; Tay- 486. [An account of selectmen to town, lor v. Haylin, 2 Bro. Ch. 310 ; Johnson v. accepted at town meeting, was reopened Curtis, cited 2 Bro. Ch. 310, Mr. Belt's under special circumstances. Chatham note ; s. c. 3 Bro. Ch. 266, and Mr. Belt's v. Niles, 36 Conn. 403. Settlement opened note ; Burk v. Brown, 2 Atk. 397, 399 ; for mistake. La Trobe o. Hayward, 13 Sumner v. Thorpe, 2 Atk. 1 ; Story on Ma. 190. Where the mistake is so patent Equity Plead. § 798 to 802. that it must have been observed, six 2 Ibid. ; Dawson v. Dawson, 1 Atk. 1 ; years will bar a suit to reopen the ac- Anon., 2 Freeman, 62; Chambers v. count, there being no relation of trust. Goldwin, 9 Ves. 265, 266 ; Taylor v. Hay- ' Bandel o. Ely, 3 Brewst. 270. An ac- lin, 1 Cox, 435 ; s. c. 3 Bro. Ch. 310 ; count settled between partners will not Chappedelaine v. Decheneaux, 4 Cranch, be reopened by a court of equity in ab- 306; Perkins v. Hart, 11 Wheat. 237; sence of proof of fraud, misrepresenta- Story on Equity Plead. § 798 to 802. tion, or denial of access to the books. 3 A settled account between client and Shirk's Appeal, 3 Brews. 119.] attorney, or between other persons stand- * 1 Eonbl. Eq. B. 1, ch. 1, § 3, note ing in confidential relations to each other, (/); "Vernon o. Vawdry, 2 Atk. 119; will be more readily opened than any Barrow v. Bhinelander, 1 Johns. Ch. 550 ; others ; and even, it is said, upon general Piddock v. Brown, 3 P. Will. 288 ; Whar- allegations of error, without any specific ton v. May, 5 Ves. 27, 48, 49 ; Story on errors being pointed out ; where the an- Equity Plead. § 800 to 802 ; Clarke v. swer admits errors. Matthews v. Wal- Tipping, 9 Beavan, 284. wyn, 4 Ves. 125; Newman v. Payne, 2 6 H>id. ; Johnson v. Curtis, 2 Bio. Ch. Ves. Jr. 199. See also Beaumont v. 310, Mr. Belt's note ; s. c. 3 Bro. Ch. 266, Boultbee, 5 Ves. 485; Story on Eq. Mr. Belt's note. Plead. § 800; Todd v. Wilson, 9 Beavan, 520 EQUITY JURISPRUDENCE. [CH. Tin. It will allow the account to stand, with liberty to the plaintiff to surcharge and falsify it ; the effect of which is, to leave the account in full force and vigor, as a stated account, except so far as it can be impugned by the opposing party, who has the bur- den of proof on him to establish errors and mistakes. 1 Some- times a still more moderate course is adopted ; and the account is simply open to contestation, as to one or more items, which are specially set forth in the bill of the plaintiff, as being errone- ous or unjustifiable ; and in all other respects, it is treated as con- clusive. 2 § 524. When, upon a bill to open a stated account, liberty is given to surcharge and falsify, the cause is referred to a master. The examination of the account then takes place before hipa, and upon his report the court finally acts ; for in matters of account it never acts directly, but only through the instrumentality of a master, by whom the whole matter is thoroughly sifted. The liberty to surcharge and falsify includes not only an examination of errors of fact, but of errors of law. 3 § 525. These terms, " surcharge " and " falsify," have a distinct sense in the vocabulary of courts of equity, a little removed from that which they bear in the ordinary language of common life. In the language of common life we understand " surcharge " to import an overcharge in quantity, or price, or value, beyond what is just, correct, and reasonable. In this sense, it is nearly equiv- alent to " falsify ; " for every item which is not truly charged as it should be, is false ; and, by establishing such overcharge, it is falsified. But in the sense of courts of equity these words are used in contradistinction to each other. A surcharge is appro- priately applied to the balance of the whole account ; and supposes credits to be omitted, which ought to be allowed. A falsification applies to some item in the debits ; and supposes that the item is wholly false, or in some part erroneous. This distinction is taken notice of by Lord Hardwicke ; and the words used by him are so clear that they supersede all necessity for further commentary. " Upon a liberty to the plaintiff to surcharge and falsify," says he, " the onus probandi is always on the party having that liberty ; for the court takes it as a stated account, and establishes it. But, 1 Pitt v. Cholmondeley, 2 Ves. 565, 62, 63; Consequa v. Fanning, 3 Johns. 566 ; Perkins v. Hart, 11 Wheat. 237 ; Ch. 587 ; a. c. 17 Johns. 511 ; Twogood Story on Equity Plead. § 801, 802 v. Swanston, 6 Ves. 484, 486. 2 Brownell v. Brownell, 2 Bro. Ch. 8 Koherts v Kuffin, 2 Atk. 112. § 523-526.] account. — in general. 521 if any of the parties can show an omission, for which credit ought to be, that is a surcharge ; or if any thing is inserted that is a wrong charge, he is at liberty to show it, and that is a. falsification. But that must be by proof on his side. And that makes a great difference between the general cases of an open account, and where [leave] only to surcharge and falsify; for such must be made out." 1 § 526. What shall constitute, in the sense of a court of equity, a stated account, is in some measure dependent upon the particu- lar circumstances of the case. An account in writing, examined and signed by the parties, will be deemed a stated account, not- withstanding it contains the ordinary preliminary clause, that errors are excepted. 2 But in order to make an account a stated account, it is not necessary that it should be signed by the par- ties. 3 It is sufficient if it has been examined and accepted by both parties. And this acceptance need not be express ; but may be implied from circumstances. 4 Between merchants at home, an account which has been presented, and no objection made thereto, after the lapse of several posts, is treated, under ordinary circum- stances, as being, by acquiescence, a stated account. 5 Between merchants in different countries, a rule founded in similar consid- erations prevails. If an account has been transmitted from the one to the other, and no objection is made after several opportu- nities of writing have occurred, it is treated as an acquiescence in the correctness of the account transmitted ; and, therefore, it is deemed a stated account. 6 In truth, in each case, the rule admits, or rather requires, the same general exposition. It is, that an account rendered shall be deemed an account stated, from the presumed approbation or acquiescence of the parties, unless an objection is made thereto within a reasonable time. 7 That reason- able time is to be judged of, in ordinary cases, by the habits of business at home and abroad; and the usual course is required 1 Pitt v. Cholmondeley, 2 Ves. 565, 6 Sherman v. Sherman, 2 Vern. 276; 566. See also Perkins v. Hart, 11 Wheat, s. c. 1 Eq. Abridg. 12 PL 10, 11 ; Irving 237, 256. |* In opening a settled account, v. Young, 1 Sim. & Stu. 333 ; [Wiggins v. it is not uncommon to allow the correc- Burkam, 10 Wal. (U. S.) 129]. tion of errors, on both sides. Floyd v. 6 Willis v. Jernegan, 2 Atk. 252; Priester, 8 Rich. Eq. 248.] Tickel a. Short, 2 Ves. 239 ; Murray, v. 2 See Johnson v. Curtis, cited 2 Brown, Toland, 3 Johns. Ch. 569, 575; Preeland Ch. 310; 3 Brown, Ch. 266, and Mr. v. Heron, 7 Cranch, 147. Belt's notes. ' Ibid. ; Com. Dig. Chancery, 2 A. 3 ; 3 Willis v. Jernegan, 2 Atk. 251, 252. [Towsley v. Denison, 45 Barb. 490 ; Man- 4 Ibid. sell v. Payne, 18 La. Ann. 124]. 522 EQUITY JURISPRUDENCE. [CH. Tin. to be followed, unless there are special circumstances to vary it, or to excuse a departure from it. § 527. Upon lite grounds, d fortiori, a settled account will be deemed conclusive between the parties, unless some fraud, mis- take, omission, or inaccuracy is shown. 1 For it would be most mis- chievous to allow settled accounts between the parties, especially where vouchers have been delivered up or destroyed, to be unrav- elled, unless for urgent reasons, and under circumstances of plain error, which ought to be corrected. 2 And, in cases of settled accounts, the court will not generally open the account ; but will, at most, only grant liberty to surcharge and falsify, unless in cases of apparent fraud. 3 [* § 527 a. But where the parties are not upon equal terms in stating or settling an account, a court of equity will often wholly disregard it. As where the subject-matter of the account grew out of the relation of attorney and client. Hence a promise by a client to pay money to counsel for his advocacy or for other ser- vices connected with the litigation, whether made before, during, or after the litigation, is, in the English courts, regarded as abso- lutely void, as against good policy, and will not, therefore, support an account stated. 4 ] 1 [Look wood v. Thome, 11 N. Y. 170; the amount of this debt, it was held, that Bull Adm'r v. Harris, 31 111. 487 ; Sut- outgoing partner must account for one- phen v. Cushman, 35 111. 186 ; Town a. third this bad debt to the surviving part- Wood, 37 111. 512. Where both parties ner, the third partner being dead. Bank- have equal knowledge of facts, and pre- head v. Alloway, 6 Cold. (Tenn.) 56. But cise accuracy is not contemplated, the not for one-half, though the third partner settlement should not be reopened for an had died insolvent. Ibid. Where fraud unimportant error. Hamilton Woollen is alleged, the charges must be specific. Co. v. Goodrich, 6 Allen, 191. See Hager Badger v. Badger, 2 Cliff. C. C. R. 137. v. Thomson, 1 Black (U. S.), 80. But That the account must have been origi- equity will relieve for mutual mistake nally a proper subject for equity jurisdic- without fraud, if the error is considerable, tion, in order to have equity interfere So where there were three partners, and even for fraud in a settled account, see one went out receiving $3,000, and as- Dickinson v. Lewis, 34 Ala. 638-1 signing all his interest in the assets to the 2 Brownell v. Brownell, 2 Bro. Ch. 62 ; others, they agreeing to pay all the debts, Taylor v. Haylin, 2 Bro. Ch. 310 ; John- and it appeared that the sum of $3,000 son v. Curtis, cited 2 Bro. Ch. 310 ; s. c. had been arrived at by figuring the losses 3 Brown, Ch. 266, Mr. Belt's notes ; of the firm, and deducting one-third of Chambers v. Goldwin, 5 Ves. 837, 838 ; these as share of outgoing partner from Pitt v. Cholmondeley, 2 Ves. 566 ; [Wier the balance due him of his private ac- v. Tucker, L. R. 14 Eq. 25]. count; and that by mutual mistake of 8 Vernon v. Vawdry, 2 Atk. 119; the partners in believing that a certain Chambers v. Goldwin, 9 Ves. 265, 266 ; large debt due the firm, which proved a Drew v. Power, 1 Sch. & Lefr. 192. bad debt, made good the losses of the * [* Kennedy v. Broun, 13 C. B. N. a. firm, these were not set high enough by 677.] §526-529.] account. — in general. 523 § 528. In regard to acquiescence in stated accounts, although it amounts to an admission, or presumption of their correctness, it by no means establishes the fact of their having been settled, even though the acquiescence has been for a considerable time. There must be other ingredients in the case to justify the conclusion of a settlement. 1 § 529. It is, too, a most material ground, in all bills for an account, to ascertain whether they are brought to open and correct errors in the account reeenti facto ; or whether the application is made after a great lapse of time. In cases of this sort, where the demand is strictly of a legal nature, or might be cognizable at law, courts of equity govern themselves by the same limitations as to entertaining such suits as are prescribed by the statute of limita- tions in regard to suits in courts of common law in matters of account. If, therefore, the ordinary limitation of such suits at -law be six years, courts of equity will follow the same period of limita- tion. 2 In so doing, they do not act, in cases of this sort (that is, in matters of concurrent jurisdiction) so much upon the ground of analogy to the statute of limitations, as positively in obedience to such statute. 3 But where the demand is not of a legal nature, but is purely equitable ; or where the bar of the statute is inap- plicable ; courts of equity have another rule, founded sometimes upon the analogies of the law, where such analogy exists, and sometimes upon its own inherent doctrine, not to entertain stale or antiquated demands, and not to encourage laches, and negli- gence. 4 Hence, in matters of account, although not barred by the statute of limitations, courts of equity refuse to interfere after a considerable lapse" of time, from considerations of public policy, from the difficulty of doing entire justice, when the original trans- 4 Lord Clancarty v. Latouehe, 1 B. & Sturt v. Mellish, 2 Atk. 610; Pomfret v. Beatt. 428 ; Irving v. Young, 1 Sim. & Lord Windsor, 2 Ves. 472, 476, 477 ; Stu. 333. Bond v. Hopkins, 1 Sch. & Lefr. 428 ; 2 Hovenden v. Lord Annesley, 2 Sch. Smith v. Clay, Amb. 647 ; 3 Bro. Ch. & Lefr. 629 ; Smith v. Clay, 3 Brown, Ch. 639, note ; Stackhouse v. Barnston, 10 639, n. ; [Kandel o. Ely, 3 Brewst. 270]. Ves. 466, 467 ; Mooers v. White, 6 Johns. 8 Hovenden v. Lord Annesley, 2 Sch. Ch. 360 ; Rayner v. Pearsall, 3 Johns. &Lefr. 629, 630, 631; Spring v. Gray, 5 Ch. 578; Lewis w. Baird, 3 McLean, 83; Mason, 527, 528 ; , Sherwood v. Sutton, Creath v. Sims, 5 How. S. B. 192 ; Bay v. 5 Mason, 143, 146 ; ante, § 55 a. Bogart, 2 Johns. Cas. 432; Ellison v. i Sherman v. Sherman, 2 Vern. 276 ; Moffat, 1 Johns. Ch. 46 ; Sherwood v. Sut- s. c. 1 Eq. Abridg. 12 ; Bridges v. Mit- ton, 4 Mason, 143, 146 ; Eobinson v. Hook, chell, Bunb. 217 ; s. c. Gilb. Eq. 217 ; 4 Mason, 139, 150, 152 ; Piatt v. Vattier, Foster u. Hodgson, 19 Ves. 180, 184; 9 Peters, 405; Willison v. Watkins, 3 524 EQUITY JURISPRUDENCE. [CH. IX. actions have become obscure by time, and the evidence may be lost, and from the consciousness that the repose of titles and the security of property are mainly promoted by a full enforcement of the maxim, Vigilantibus, non dormientibus, jura subveniunt. 1 Under peculiar circumstances, however, excusing or justifying the delay, courts of equity will not refuse their aid in furtherance of the rights of the party ; since in such cases there is no pretence to insist upon laches or negligence, as a ground for dismissal of the suit. 2 CHAPTER IX. ADMINISTRATION. [* § 530, 531. Administration of the estates of deceased persons. § 532, 543 a, 578. The grounds of equity jurisdiction in such matters. § 544, 545. The executor or administrator may bring creditors into equity. § 546. One creditor may maintain a bill in equity. § 547, 548. It may be on behalf of himself, and all others. § 548 a. If assets are admitted, a decree passes for plaintiff. § 549. After judgment to account, creditors will be enjoined. § 550. Special reasons for the interference of courts of equity. § 551. Legal assets, such as may be reached f at law. § 552. Equitable assets, such as are reached only in equity. § 552 a, 552 6. Such as can only be reached by direction of the testator. § 553. Equity follows the rules of law in distributing legal assets. § 554. But in regard to equitable assets the rule of equality. § 555. Debts have priority of legacies charged on the same estate. § 556, 573. This is presumed to be the intention of the testator. § 557. Equity will so apply equitable assets as to countervail legal preferences. § 558. Marshalling assets to prevent injustice. § 559. So also in all cases of double security. , § 560. Seldom applied to estates of living persons. Peters, 44 ; Miller v. Mclntire, 6 Peters, comprehensive, and characterized by his 61, 66 ; 1 Eonbl. Eq. B. 1, ch. 4, § 27, usual acuteness and strong sense. 1 and notes ; Brownell v. Brownell, 2 Bro. Fonbl. Eq. B. 1, ch. 4, § 27, and notes. Ch. 62. Mr. Jeremy, also upon this subject, has 1 1 Fonbl. Eq. B. 1, ch. 4, § 27, and given us a very ample and discriminating notes ; Jeremy on Eq. Jurisd. B. 3, Pt. 2, collection of authorities. Jeremy on Eq. ch. 5, p. 549, 550; 1 Mad. Pr. Ch. 79, 80; Jurisd. B. 3, Pt. 2, ch. 5, p. 549, 550. [See Holtscomb v. Bivers, 1 Ch. Cas. 127 ; Badger v. Badger, 2 Cliff. C. C. R. 137.] Jasan v. Toulmin, 9 Ala. 662. Mr. Fon- 2 Lopdell v. Creagh, 1 Bligh (n. s.), blanque's collection of principles and au- 255. thorities to illustrate this doctrine is very § 529-531.] ADMINISTRATION. 525 § 561, 562. The rule of courts of equity is to pay all, but circumstances often hin- der its application. § 563. One, whose security is exhausted by another, put in his place. § 564, 564 a. Simple contract creditors put in place of mortgagee. § 565. Legatees may stand in place of mortgagee, but not of specialty creditors. § 566. Legatees may claim substitution in place of those who have exhausted their means of payment. § 566 a. Specific legatee may claim redemption of the legacy. § 566 b, 566 c. Legacy when a charge on land. § 567. This rule of substitution derived from the civil law. § 568. Equity will protect the widow's paraphernalia. § 569. Equity does not interfere in behalf of legacies for charity. § 570. But heirs and devisees may claim such interference. § 571. Priorities stated among different claimants. § 572. What creates an exemption of personal estate. § 574-576. But where the personal estate stands in the place of security it may claim the equity of its position. § 579. How far creditors have a lien on personal assets. § 679 a. Bight of the executor to retain in payment of his own debt. § 580, 581. How far the purchaser of personal assets is liable as trustee. § 582. Where husband, during coverture, converts the assets of wife as executrix. § 583-589. How far courts of equity will interfere, where there are administra- tions in different countries. § 589 a, 589 6. Subject further illustrated.] t '§ 530. Having thus gone over some of the more important cases, in which matters of account are involved, as the principal, and sometimes, as the exclusive ground of jurisdiction, we shall now take leave of this part of the subject, and proceed to the con- sideration of other branches of concurrent jurisdiction in equity ; in which, although accounts are sometimes involved, yet the juris- diction is derived from, or essentially connected with, other sources of jurisdiction ; and accounts, whenever taken, are mere incidents to other relief. § 531. And, in the first place, the jurisdiction of courts of equity in the administration of the assets of deceased persons. 1 The word assets is derived from the French word assez, which means sufficient, or enough ; that is, sufficient, or enough, in the hands 1 [Courts of equity, when they assume tration of the estate of persons deceased jurisdiction of the administration of the or of allowing wills. Courts in equity estate of a deceased person, confine them- can neither grant administration nor selves to questions arising in the course of allow a will, nor will they interfere with the administration between parties inter- the judgment of the proper courts in ested in the estate, and they do not at- granting administrations or allowing tempt to set up an administration of wills. Broderick's Will, 21 Wall. 504; themselves. Courts of probate have ex- 1 Perry on Trusts, §§ 182, 183, 184, and elusive jurisdiction of granting adminis- cases cited. Courts in equity cannot set 52b EQUITY JURISPRUDENCE. [CH. IX. of the executor or administrator, to make him chargeable to the creditors, legatees, and distributees of the deceased, so far as the personal property of the deceased extends, which comes to the hands of the executor or administrator, for administration. In an accurate and legal sense, all the personal property of the deceased, which is of a salable nature, and may be converted into ready money, is deemed assets. 1 But the word is not confined to such property ; for all other property of the deceased, which is charge- able -with his debts or legacies, and is applicable to that purpose, is in a large sense assets. 2 § 532. It has been said, that the whole jurisdiction of courts of equity, in the administration of assets, is founded on the principle, that it is the duty of the court to enforce the execution of trusts ; and that the executor or administrator, who has the property in his hands, is bound to apply that property to the payment of debts and legacies ; and to apply the surplus according to the will of the testator, or, in case of intestacy, according to the statute of dis- tributions. So that the sole ground, on which courts of equity proceed, in cases of this kind, is to be deemed the execution of a trust. 3 § 533. This is certainly a very satisfactory foundation on which to rest the jurisdiction in many cases; for, under many circum- stances, as an execution of a trust, the subject would be properly cognizable in equity, and especially if the party would not be chargeable at law, since it is the ordinary reason for a court of equity to grant relief, that the party is remediless at law. It has also been truly said, that the only thing inquired of in a court of equity is, whether the property bound by a trust, has come into aside wills procured by fraud, nor the pro- 1 2 Black. Comm. 610 ; Toller on Ex- bate of wills so procured. Ibid. The only ecutors, B. 2, ch. 1, p. 137. remedy is in those courts that hare ex- 2 2 Black. Comm. 244, 340 ; Toller on elusive jurisdiction over the probate of Executors, B. 3, ch. 8, p. 409. wills. If fraud is practised in those 3 Adair v. Shaw, 1 Sch. & Lefr. 262. courts, an appeal to the proper court or See also Farrington v. Knightly, 1 P. a motion for a new trial can set the mat- Will. 548, 649 ; Rachfield v. Careless, 2 ter aright So courts of equity have no P. Will. 161 ; Duke of Butland v. Duch- jurisdiction to remove executors or ad- ess of Butland, 2 P. Will. 210, 211 ; El- ministrators. Campbell v. Bank of liott v. Collier, 1 VeB. 16; Anon., 1 Atk. Charleston, 3 S. C. 384. Generally all er- 491; Wind v. Jekyll, 2 P. Will. 675; rors in the proceedings in the settlement Nicholson v. Sherman, 1 Ch. CaB. 57 ; Bae. of estates, in surrogate or probate courts, Abridg. Legacy, M. ; 1 Mad. Pr. Ch. 466, can be corrected on appeal ; and appeal is 467. the proper remedy. Blake v. Butler, 10 E. I. 133.] § 531-534.J ADMINISTRATION. • 527 the hands of persons who are either bound to execute the trust, or to preserve the property for the persons entitled to it. If we advert to the cases on the subject, we shall r^d^that trusts are enforced not only against those persons who are rightfully pos- sessed of trust property, as trustees, buj; also against all persons who come into possession of the property bound by the trust, with notice of the trust. And whosoever so comes into possession, is considered as bound, with respect to that special property, to the execution of the trust. 1 § 534. Certainly to no persons can these considerations more appropriately apply than to executors and administrators, and those claiming under them, with notice of the administration and assets. But, if it were the sole ground of sustaining the jurisdic- tion, that it is the case of a trust cognizable in equity alone, it would follow, that, instead of being a matter of concurrent juris- diction, it would be a matter belonging to the exclusive jurisdiction of equity. For, although equity does not purport to entertain jurisdiction of all trusts ; some of them, such as cases of bail- ments, being ordinarily cognizable at law ; 2 yet, of such trusts, as are peculiar to courts of equity, the jurisdiction is exclusive in such courts. Now, we all know, that both the courts of common law and the ecclesiastical courts have cognizance of administra- tions ; and many suits respecting the administration of assets are daily entertained therein. Courts of equity, therefore, in assuming general jurisdiction over cases of administration, do, indeed, in some measure, found themselves upon the notion of a constructive trust in the executors or administrators. 3 But the fact of there being a constructive trust is not the sole ground of jurisdiction. Other auxiliary grounds also exist ; such as the necessity of tak- ing accounts, and compelling a discovery ; 4 and the considera- tion, that the remedy at law, when it exists, is not plain, adequate, and complete. The jurisdiction, therefore, now assumed by courts 1 Ibid. [* See also Thorndike v. Hunt, 8 Bac. Abridg. Legacy, M. 3De G. & J. 663; Hopper ». Conyers, 12 * Com. Dig. Chancery, 2 A. 1; 3 Jur. n. s. 328 ; Sheriff v. Butler, id. 239. Black. Comm. 98. [Chancery has juris- A stranger who has received assets from diction where, upon decease of the ward, an executor de son tort cannot be called to a guardian is appointed administrator, to account as executor de son tort, though call him to account in both capacities, the assets can be followed in equity in and compel settlement. Carswell v. Spen- his hands. Hill v. Curtis, L. E. 1 Eq. 90. cer, 44 Ala. 204. Equity in North Caro- See Rayner v. Koehler, L. R. 14 Eq. 262.] lina may compel an administrator to ac- 2 Black. Comm. 431, 432 ; 1 Woodde- count, and may incidentally grant an eon, Lect. vii. p. 208, 209. injunction against sale for payment of 528 EQUITY JURISPRUDENCE. [CH. IX. of equity to so wide an extent, over all administrations and the settlement of estates, in eases of testacy and intestacy, is not (as it should seem) exclusively referable to the mere existence of a constructive trust which is often sufficiently remediable at law ; but it is referable to the mixed considerations already adverted to, each of which has a large operation in equity. 1 § 535. A little attention to the nature of the jurisdiction exer- cised in the courts of common law and the ecclesiastical courts in cases of administrations will abundantly show the necessity of the interposition of courts of equity. In the first place, in suits at common law, nothing more can be done than to establish the debt of the creditor ; and if there is any controversy as to the existence of the assets, and a discovery is wanted; or, if the assets are not of a legal nature ; or, if a marshalling of the assets is indis- pensable to a due payment of the creditor's claim ; it is obvious, that the remedy at law cannot be effectual. But there may be other interests injuriously affected by the judgment of a court of common law, in a suit by a creditor, which injury that court could not redress or prevent ; but which courts of equity could com- pletely redress or prevent. § 536. In the next place, as to the ecclesiastical courts. They have, it is true, an ancient jurisdiction over the probate of wills, and the granting of administrations; and, as, incident thereto, an authority to enforce the payment of legacies of personal property. 2 But, by the common law, although an executor was compellable to account before the Ordinary or Ecclesiastical Judge, and so was an administrator ; yet the Ordinary was to take the account as given in by the executor or administrator, and could not oblige him to prove the items of it, or to swear to the truth of it. 3 § 537. The statute of 31st of Edward III. ch. 11, put executors and administrators upon the same footing, as to accounting for debts, under order of county court. Fin- is necessary before bringing bill to hare ger v. Finger, 64 N. C. 183. That equity equitable assets applied. Harrison v. Hal- may, in cases of fraud or waste, inter- lum, 6 Cold. (Tenn.) 525. But see Steere pose in cases of administration in Pro- v. Hoagland, 39 111. 264; Bagsdale v. bate Court, see Freeman v. Reagan, 26 Holmes, 1 So. Car. 91.] Ark. 373. So where executor has com- 2 2 Black. Comm. 494 ; 3 Black. mitted a devastavit, or is insolvent. Bags- Comm. 98 ; Bac. Abridg. Legacies, M. ; dale v. Holmes, 1 So. Car. 91. And see as 2 Fonbl. Eq. B. 4, ch. 1, § 1, and notes • to the jurisdiction in Chancery, Mallory's Marriott v. Marriott, 1 Str. 666. Adm'r v. Craige, 2 McCart. (N. J.) 72.] 3 2 Fonbl. Eq. B. 4, ch. 3, § 2, and i See Mitford, Eq. PI. by Jeremy, note (d) ; Archbishop of Canterbury v. p. 125, 126, 136. [A judgment at law Wills, 1 Salk. 315. § 534-539.] ADMINISTRATION. 529 assets; but it in no manner whatsoever changed the mode of accounting by either of them. 1 A legatee might falsify the account of an executor or administrator in the spiritual court, as may, also, the next of kin, since the statute of distributions of 22d and 23d of Car. II. ch. 10. But a creditor of the estate could not falsify the account in the ecclesiastical court, for his proper remedy was held to be at the common law. 2 By the statute of 21st of Henry VIII. ch. 5, § 4, executors and administrators were bound to deliver an inventory of the effects of the deceased, upon oath to the Ordi- nary. But the inventory could not be controverted in the eccle- siastical courts by a creditor ; but only by a legatee. 3 Even an administration bond will not be broken by an omission to pay a creditor's debt ; but it is a security merely for those who are inter- ested in the estate. 4 Indeed, before the statute of distributions, it was a matter greatly debated, whether an administrator could be compelled to make any distribution of an intestate's estate ; and, for a great length of time, it was held, that an executor was in all cases entitled to the personal estate of his testator, not disposed of by his will. 5 § 538. The jurisdiction of the ecclesiastical courts being so manifestly defective in the case of creditors, resort was almost necessarily had to courts of equity, to compel a discovery of assets and an account. And where a creditor did not seek a general settlement of the estate by a suit in behalf of himself and all other creditors, still, he was entitled to a discovery in courts of equity, to enable him to recover his own debt in an action at law. 6 § 539. In regard to legatees, also, the remedy was in many cases quite as defective. No remedy lies at the common law, in 1 Ibid. ; 2 Black. Comm. 496 ; 4 Burns, authorities cited by him show, that it Eccles. Law, .Wills, Distribution, Account, could be by a legatee, but not by a viii. p. 368 ; 2 Fonbl. Eq. B. 4, Pt. 2, ch. 3, creditor. 2 Fonbl. Eq. B. 4, Pt. 2, ch..3, § 2, note ((/). § 2. 2 2 Fonbl. Eq. B. 4, Pt. 2, ch. 3, § 2, ■> Archbishop of Canterbury v. Wills, note (d) ; Hinton v. Parker, 8 Mod. 168 ; 1 Salk. 315 ; Greenside v. Benson, 3 Atk. Catchside «. Ovington, 3 Burr. 1922; 248,252; Ashley v. Baillie, 2 Ves. 368; Archbishop of Canterbury v. Wills, 1 Wallis v. Pipon, Ambler, 183; Arch- Salk. 315. bishop of Canterbury v. House, Cowp. 8 Hinton v. Parker, 8 Mod. 168; 140; Thomas v. Archbishop of Canter- Catchside v. Ovington, 3 Burr. 1922 ; 2 bury, 1 Cox, 399. Fonbl. Eq. B. 4, Pt. 2, ch. 3, § 2. Mr. 6 2 Black. Comm. 514, 515 ; Toller on Fonblanque is in an error, when he says, Executors, B. 3, ch. 6, p. 369. " The inventory could not be contro- 6 Com. Dig. Chancery, 2 C. 3 ; id. 3, verted in the spiritual court." The B. 1, 2. eq. jub. — vol. i. 34 530 EQUITY JURISPRUDENCE. [CH. IX. cases of pecuniary legacies ; J and although (as has heen stated) a remedy does lie in the spiritual courts ; yet, in a great variety of cases, that remedy is insufficient and imperfect. Thus, if pay- ment of a legacy should be pleaded to a suit in the ecclesiastical courts, and there is but one witness of the fact (which the ecclesi- astical courts will not admit as sufficient proof, for their law requires two), there the temporal courts will grant a prohibition to further proceedings. 2 So, if a husband should sue for a legacy in the ecclesiastical courts, the Court of Chancery will prohibit him ; because the ecclesiastical courts cannot compel him to make any settlement on his wife in consideration of the legacy. 3 So, if a legacy is due to an infant, the Court of Chancery will interfere, at the instance of the executor, and prevent the spiritual courts from proceeding, because the executor may be entitled to a bond to indemnify him, and to refund in case of a deficiency of assets. 4 Many other cases might be put of a like nature. § 540. But a stronger instance may be stated. If the testator does not dispose of the residue of his estate ; and yet, from the circumstances of the will, the executor is plainly not entitled to the residue there, he will be held liable to distribute it, as a trustee for the next of kin. But the spiritual courts have no jurisdiction whatsoever in such a case to enforce a distribution ; for trusts are not cognizable in those courts, and cannot be enforced by them. 5 Even in the common case of a legacy of personal estate, the leg- acy does not vest in the legatee, until the executor assents to it ; and until he assents, it would seem not to be suable in the spiritual courts. But courts of equity consider the executor to be a trustee of the legatee, and will compel him to assent to and pay the legacy as a matter of trust. 6 And, if there are no legal assets to pay a legacy, although there are ample equitable assets, the spiritual courts cannot enforce payment of the legacy; for they have no jurisdiction over equitable assets. 7 1 Decks v. Strutt, 5 Terra. 690; 2 » Ibid. ; 2 Fonbl. Eq. B. 4, Pt. 1, ch. 1, Fonbl. Eq. B. 4, Pt. 1, ch. 1, § 2. § 2, and note (rf). 2 Bacon, Abridg. Legacy, M. ; 3 Black. * Horrell v. Waldron, 1 Vern. 26 ; Noil Comm. 112. [So where a widow sued in v. Robinson, 1 Vern. 91. But see Anon., Probate Court for a legacy, and in equity 1 Atk. 491 ; Hawkins v. Day, Ambler, for a sum due under her marriage con- 162 ; 2 Fonbl. Eq. B. 4, Pt. 1, ch. 1, § 2. tract, the question being whether the 6 Farrington v. Knightley, 1 P. Will. legacy was not given in satisfaction of 545, 548. the contract, equity enjoined proceedings 6 Wind v. Jekyll, 1 P. Will. 575. in the Probate Court. Gilliam v. Chan- ' Barker v. May, 9 B. & Cressw. 489. cellor, 43 Miss. 437.] See also Paschall u. Ketterich, Dyer, 151 § 539-542.] ADMINISTRATION. 531 § 541.- In cases of distribution of the residue of estates, the remedy in the spiritual courts is also, on other accounts, exceed- ingly defective: for those courts do not possess any adequate means for a perfect ascertainment of all the debts ; or to compel a payment of them, when ascertained, so as to fix the precise residuum ; or to protect the executor or administrator in his admin- istration, according to their decree. 1 Besides, the interposition of a court of equity may be required for many other purposes, before a final settlement and distribution of the estate ; as, for instance, to compel an executor to bring the funds into court, or to give security for the payment of debts, legacies, and distributive shares, where there is danger of insolvency, or he is wasting the assets, or where the debts, legacies, and distributive shares are not presently payable, or payment cannot be presently enforced. 2 § 542. The jurisdiction of courts of equity to superintend the administration of assets, and decree a distribution of the residue, after payment of all debts and charges among the parties entitled either as legatees or as distributees, does not seem to have been thoroughly established until near the close of the reign of Charles II. The objection was then made that the spiritual courts had full authority, under the statute of distributions, to decree a dis- tribution of the residue. But upon a demurrer filed to a bill for a distribution, it was held, by the Lord Chancellor, that, there being no negative words in the Act of Parliament (the statute of distributions), the jurisdiction of the Court of Chancery was not taken away ; for the remedy in chancery was more complete and effectual than that in the spiritual courts ; or, to use the language of the court upon that occasion, the spiritual court in that case had bilt a lame jurisdiction. 3 And, although, ordinarily, in cases of concurrent jurisdiction, the decree of the court first having posses- sion of the cause is held conclusive ; yet courts of chancery have not held themselves bound by decrees of the spiritual courts in i; Edwards v. Graves, Hob. 265; Bac. 8 Matthews v. Newby, 1 Vem. 133; Abridg. Legacy, M. Howard ». Howard, 1 Vem. 134 ; Buccle 1 See 2 Fonbl. Eq. B. 4, Pt. 2, ch. 3, v. Atieo, 2 Vera. 37 ; Gibbons v. Dawley, § 2, note {d) ; id. B. 4, Pt. 1, ch. 1, § 2, 2 Ch. Cas. 198 ; Pamplin v. Green, 2 Ch. and note (d). Cas. 95; Lord Winchelsea v. Duke of 2 See 2 Fonbl. Eq. B. 4, Pt. 1, ch. 1, Norfolk, 2 Ch. 367; 2 Fonbl. Eq. B. 4, § 2, note (d) ; Duncumban v. Stint, 1 Ch. ch. 1, § 2 ; Digby v. Cornwallis, 3 Ch. 72 ; Cas. 121 ; Strange v. Harris, 3 Bro. Ch. Petit v. Smith, 1 P. Will. 7 ; 1 Mad. Pr. 865 ; Blake v. Blake, 2 Sch. & Lefr. 26. Ch. 467. 532 EQUITY JURISPRUDENCE. [CH. IX. cases of distribution, from their supposed inability to do entire justice. 1 § 543. For a great length, of time, the usual resort has been to the Court of Chancery, to settle the administration of estates ; s'o that, practically speaking, in cases of any complication or difficulty, it has acquired almost an exclusive jurisdiction. In many cases, indeed, besides those which have been already mentioned, it is impossible for any other court than a court of equity to administer full and satisfactory justice among all the parties in interest ; and especially, where equitable assets are to be administered, or the assets are to be marshalled; as we shall abundantly see in the further progress of these Commentaries. [* § 543 a. Much which is said, in the preceding seetions, in regard to the extent and the foundation of equity jurisdiction in England, in matters affecting the settlement of estates, has no application to many of the American States. The courts of pro- bate in this country (and it is more so now in England than formerly 2 ) have ample powers, both in the extent of their juris- diction and their mode of procedure, for the accomplishment of the principal objects, upon the attainment of which the English equity jurisdiction, in such matters, is founded. Hence, in this country, courts of equity do not, ordinarily, interfere in the administration of estates, and then only in aid of the courts of probate, and for the accomplishment of some specific end, not readily attainable in the courts of probate, after which the cause is remanded to the probate court, with the decree of the Court of Equity, and becomes a part of the proceedings there, that the final settlement of the estate may remain in that court. But in England, when a matter of administration of an estate once comes into the courts of equity, it draws the whole administration into that court, and the final settlement is made there. 3 And although a legatee, or next of kin, cannot, even in equity, go directly against the debtors of the estate, 1 See Bissell v. Axtell, 2 Vera. 47, and s [* Heirs of Adams v. Adams, 22 Mr. Raithby's note ; 1 Eq. Abridg. E. p. Ver. 50 ; post, § 546 ; Stewart v. Stewart, 136, PI. 2, 3, 4. [The heir at law may 31 Alabama, 207. In some of the Ameri- eome into equity to have the estate ad- can States it seems to be supposed that ministered, and a contract made by intes- courts of equity have a concurrent juris- tate for purchase of realty carried out diction with the courts of probate, in for his benefit. Harding v. Harding, many matters connected with the settle- L. R. 13 Eq. 493. ment of estates. Seymour v. Seymour, 2 See as to relations of Chancery with 4 Johns. Ch. 409 ; Van Mater v. Sickler, the Probate Courts, Tichborne v. Tich- 1 Stockton, 483 ; Clarke o. Johnston, 2 borne, L. R. 2 P. & M. 41.] id. 287. § 542-544.] ADMINISTRATION. 533 there being no legal privity ; yet, if there is collusion between such debtors and the administrator, they may both be called into a court of equity, for an account. 1 And an executor, who has become domiciled in another State, may be called to an account, in the courts of equity there, by an unpaid legatee. 2 ] § 544. The application for aid and relief in the administration of estates is sometimes made by the executor or administrator him- self, when he finds the affairs of his testator or intestate so much involved, that he cannot safely 'administer the estate, except under the direction of a court of equity. In such a case, it is competent for him to institute a suit against the creditors generally, for the purpose of having all their claims adjusted, and a final decree, settling the order and payment of the assets. 3 These are some- times called bills of conformity (probably because the executor or administrator in such case undertakes to conform to the decree, or the creditors are compelled by the decree to conform thereto) ; and they are not encouraged, because they have a tendency to take away the preference which one creditor may gain over another by his legal diligence. Besides, it has been said, that these bills may be made use of by executors and administrators, to keep creditors out of their money longer than they otherwise would be. 4 However correct these reasons may be for a refusal to interfere in ordinary cases, involving no difficulty, they are' not sufficient to show, that the court ought not to interfere in behalf of an executor or administrator under special circumstances, where injustice to himself, or injury to the estate, may otherwise 1 Fleming v. McKesson, 3 Jones, Eq. 4 Ves. Jr. 638, 643 ; Jackson v. Leap, 1 316. Where administratrix is dead or Jac. & Walk. 231 ; 2 Fonbl. Eq. B. 4, Pt. insolvent, it has been held that a creditor 2, ch. 4, § 4, note (u). [It is not sufficient who has made advances or performed that there are numerous claims, or that services at her request for the estate, estate is insolvent, there must be claims which she would be entitled to charge in of doubtful right or other complications, her account, if paid by her, may proceed from which serious injustice may arise, directly against the distributees without and which a court of law is incompetent to new administration. Cannon v. Cope- adequately deal with. Bryan v. Hickson, land, 43 Ala. 259. 40 Ga. 405. See Irvin v. Creditors of Bond, 2 Colbert v. Daniel, 32 Alabama, 329. 41 Ga. 630 ; Jeter v. Barnard, 42 Ga. 43.1 In Illinois it seems that a bill in equity 4 Morrice v. Bank of England, Co. is the appropriate remedy for distributees temp. Talb. 224 ; Backwell's case, 1 Vern. who are dissatisfied with the accounts of 153, 155 ; 1 Fonbl. Eq. B. 4, Pt. 2, ch. 2, administrators as rendered. Heward v. § 3, note («). Slagle, 52 111. 336.] 5 Com. Dig. Chancery, 3 G. 6. [An 8 Com. Dig. Chancery, 3 G. 6 ; Buccle administrator may go to a court of equity v. Atleo, 2 Vern. 37. See Bush v. Higgs, for instructions and protection. Stevens 534 EQUITY JURISPRUDENCE. [CH. IX. § 545. A doubt has, indeed, been suggested, whether a bill can be maintained against all the creditors. 1 But, if the bill is brought against certain known creditors, who are proceeding at law, it may be asked, What is the difficulty of proceeding in the same way as is done as to all creditors, upon a bill brought by one or more creditors in behalf of themselves and all other creditors ? Upon a decree for the executor or administrator to account, all the credit- ors are or may be required to present and prove their debts before the Master in the first case, as they are now required to do in the last case. But, upon such a bill, brought by an executor or administrator, the court will not interpose by way of injunction, to prohibit creditors proceeding at law, until there has been a decree against the executor or administrator to account in that suit ; for, otherwise, the latter might without reason make it a ground of undue delay of the creditors. 2 § 546. But the more ordinary case of relief, sought in equity in cases of administration, is by creditors. A creditor may file his bill for payment of his own debt, and seek a discovery of assets for this purpose only. 3 If he does so, and the bill is sustained, and an account is decreed to be taken, the court will, upon the footing of such an account, proceed to make a final decree in favor of the creditor, without sending him back to law for the recovery of his debt ; for this is one of the cases in which a court of equity, being once in rightful possession of a cause for a discovery and account, will proceed to a final decree upon all the merits.* Upon a bill thus brought by a single creditor for his own debt only, no general account of debts is usually directed to be taken ; but the common course is, to direct an account of the personal estate, and of that particular debt, which is ordered to be paid in the due course of administration. 6 v. Warren, 101 Mass. 564; Bailey v. 5 Attorney-General v. Cornthwaite, 2 Briggs, 56 N. Y. 407.] Cox, 44 ; Morrice v. Bank of England, i Rush v. Higgs, 4 Ves. Jr. 638, 643. Cas. temp. Talb. 217 ; Anon., 3 Atk. 572 ; 2 Ibid. Perry v. Phelips, 10 Ves. 38. Although 3 [Such a bill seems not to be maintain- this is the usual course, in the case of a able in North Carolina. Wilkins v. Finch, creditor seeking an account and payment Phill. (N.C.)Eq. 355. Otherwise in II- of his own debt only ; it is not, therefore, linois. Clark v. Hogle, 52 111. 427.] to be considered that the court itself is 4 Attorney-General v. Cornthwaite, 2 absolutely incompetent, upon such a bill, Cox, 44. See McKay v. Green, 3 Johns, to make a more general decree in the Ch. 58 ; Thompson v. Brown, 4 Johns. Ch. form of a decree upon a general creditor's 619, 630 to 643 ; Morrice v. Bank of Eng- bill. On the contrary, a case may be land, Cas. temp. Talb. 220. made out upon the answer and proofs, § 545-548.] ADMINISTRATION. 535 § 547. The more usual course, however, pursued in the case of creditors, is for one or more creditors to file a bill (commonly called a creditor's bill) by and in behalf of him, or themselves, and all other creditors who shall come under the decree, for an account of the assets, and a due settlement of the estate. 1 And this applies as well when the party suing is a creditor whose debt is payable in presenti, as when his debt is due in futuro, if it be debitum in presenti solvendum in futuro ; 2 and whether he has a mortgage or not. 3 Bills of this sort have been allowed upon the mere principle that, as executors and administrators have vast powers of preference at law, courts of equity ought, upon the principle that equality is equity, to interpose upon the application of any creditor by such a bill, to secure a distribution of the assets, without preference to any one or more creditors. 4 And, as a de- cree in equity is held of equal dignity and importance with a judgment at law, a decree upon a bill of this sort, being for the benefit of all creditors, makes them all creditors by decree upon an equality with creditors by judgment, so as to exclude, from the time of such decree, all preferences in favor of the latter. 5 § 548. The usual decree, in the case of creditors' bills against the executor or administrator, is (as it is commonly phrased) quod computet, that is to say, it directs the Master to take the accounts between the deceased and all his creditors ; and to cause the cred- itors, upon due public notice, to come before him to prove their which might render it, if not indispen- x See the case of the Creditors of Sir sable, at least highly expedient, for the Charles Cox, 3 P. Will. 343. purposes of justice to adopt the latter 2 Whitmore v. Oxborn, 2 Younge & course. See Earn on Assets, &c, ch. 24, Coll. N. B. 13, 17. §2; Martin v. Martin, 1 Ves. 213, 214; 8 Greenwood v. Firth, 2 Hare, 241, Sheppard «. Kent, Prec. Ch. 190, 193 ; s. c. note ; Aldridge v. Westbrook, 5 Beav. 2 Vern. 435 ; Anon., 3 Atk. 572 ; Perry v. 138 ; Shey v. Bennet, 2 Younge & Coll. Phelips, 10 Ves. 38,40,41; Bushy. Higgs, N. B. 405 ; White v. Hillacre, 3 Younge . 4 Ves. 638; Thompson v. Brown, 4 Johns. & Coll. 597, 609, 610; Story, Eq. PI. ' Ch. 610, 630, 643, 646. [And where the § 101, 158. personalty is insufficient, sale of the real 4 Bush v. Higgs, 4 Ves. Jr. 638, 643 ; estate will be ordered. Clark v. Hogle, 52 Gilpin v. Lady Southampton, 18 Ves. 111.427. But see Eno v. Calder, 14 Eich. 469; Martin v. Martin, 1 Ves. 210; (S. C.) Eq. 154; Wads worth v. Davis, 63 Thompson v. Brown, 4 Johns. Ch. 619, N. C. 251. For a case where a suit in 630, 643. equity, in nature of a creditor's bill, was 5 Brid. ; Morrice v. Bank of England, maintained, under the Massachusetts Cas. temp. Talb. 217 ; Perry v. Phelips, statute, against executor and devisees 10 Ves. 38, 39, 40 ; Brooks v. Eeynolds, (subject to debts), the period .of limita- 1 Bro. Ch. 183; Paxton v. Douglas, 8 tions for proof of debts having expired, Ves. 520 ; Thompson v. Brown, 4 Johns. see Fairfield v. Fairfield, 15 Gray, 596.] Ch. 619. 536 EQUITY JURISPRUDENCE. [CH. IX. debts, at a certain place, and within a limited period ; and it also directs the Master to take an account of all the personal estate of the deceased in the hands of the executor or administrator, and the same to be applied in payment of the debts and other charges, in a due course of administration. 1 In all cases of this sort, each creditor is entitled to appear before the Master, and may there, if he chooses, contest the claim of any other creditor, in the same manner as if it were an adversary suit. 2 [* § 548 a. But although the usual decree is as above stated upon a bill by a creditor, in behalf of himself and all other credit- ors ; this decree is not applicable (as it seems) to cases where the executor or administrator admits assets ; for he thereby admits himself liable for the payment of the debt ; and, in such a case, the plaintiff may have a decree for the payment of his own debt only, without any decree for a general account ; for the other creditors are not prejudiced by such a decree for the payment of the plain- tiff's debt, under such circumstances. 3 ] § 549. As soon as the decree to account is made in such a suit, brought in behalf of all the creditors, and not before, the exec- utor or administrator is entitled to an injunction out of chancery, to prevent any of the creditors from suing him at law, or proceed- ing in any suits already commenced, except under the direction and 1 Van Heythuysen, Eq. Draft, title entertained no doubt upon this point, nor Decrees, p. 647 ; The Creditors of Sir can I, upon inquiry, find that it was ever Charles Cox, 3 P. Will. 343 ; Sheppard v. doubted in the other branches of the Kent, Prec. Ch. 190; s. c. 2 Vern. 435; court. In effect, the rule is proved by Kenyon v. Worthington, 2 Dick. 668 ; the fact that the creditor and defendant, Thompson v. Brown, 4 Johns. Ch. 619. the executor, may settle the matter 2 Owens v. Dickenson, 1 Craig & pending the suit, by the latter payhig Phill. 48, 56. See as to the form of a the debt and costs of the suit. And it decree in an administration suit, in case has twice been decided at the rolls, that all the parties interested should not be the court will order the same thing to be parties at the hearing, Fisk v. Norton, 2 done, even when the suit had proceeded Hare, 381. to a considerable extent. If, then, the 8 Woodgate v. Field, 2 Hare, 211, 212. court would compel a creditor to accept Mr. Vice-Chancellor Wigram, on that payment of his debt when the executor occasion, said : " The reason for and the offers to pay it, with the costs of suit, principle of the usual form of decree, where is the line to be drawn beyond are stated in Owens v. Dickenson (Cr. & which the plaintiff cannot be allowed to Ph. 48), but that reasoning has no appli- have the exclusive benefit of his own suit? cation where assets are admitted, for the I am satisfied that in this case there executor thereby makes himself liable to ought to be a decree for immediate pay- the payment of the debt. In such a case, ment. It was objected, however, that the other creditors cannot be prejudiced in Sterndale v. Hankinson, Sir A. Hart by a decree for payment of the plaintiff's said that, on the filing of a creditor's bill, debt ; and the object of the special form every creditor has an inchoate right in of the decree in a creditor's suit fails. I the suit ; the meaning of that expression §548-549.] ADMINISTRATION. o37 control of the court of equity, where the decree is passed. 1 The object of the court, under such circumstances, is to compel all the creditors to come in and prove their debts before the Master ; and to have the proper payments and discharges made under the authority of the court ; so that the executor or administrator may not be harassed by multiplicity of suits, or a race of diligence be encouraged between different creditors, each striving for an undue mastery and preference. 2 And this action of the court presup- poses, that all the legal rights of every creditor, and the validity of his debt, may be, and, indeed, must be, determined in equity, upon the same principles as it would be at law. 3 But, in order to is, that a right then commences which may indeed fail, but may also be per- fected by decree; and it is not inaccu- rately called an inchoate right. After the decree every creditor has an interest in the suit; but the question is, whether the plaintiff, until decree, is not dominus litis, so that he may deal with the suit as he pleases. There is nothing to prevent other creditors from filing bills for a like purpose ; and there is nothing more com- mon than for several suits to exist to- gether, and the court permits them to go on together until a decree in one of them is obtained, because it is possible, before the decree, that the litigating creditor may stop his suit. 1 Morriee v. Bank of England, Cas. xtemp. Talb. 217; Martin v. Martin, 1 Ves. 211, 212 ; Perry v. Phelips, 10 Ves. 38, 39 ; Brooks v. Reynolds, 1 Bro. Ch. 183, and Mr. Belt's note ; Douglas v. Clay, 1 Dick. 393 ; Kenyon v. Worthington, 2 Dick. 668; Paxton v. Douglas, 8 Ves. 520; Jackson v. Leap, 1 Jac. & Walk. 231, and note ; McKay v. Green, 3 Johns. Ch. 58; Buries v. Popplewell, 10 Sim. 383. See Underwood v. Hatton, 5 Beav. 31 ; [Wadsworth v. Davis, 63 N. C. 251]. 2 Jeremy on Eq. Jurisd. B. 3, Pt. 2, ch. 5, p. 538 to 543. » Whitaker v. Wright, 2 Hare, 310. On this occasion, Mr. Vice-Chancellor Wigram said : " With respect to the form of a decree in a creditor's suit, the court does not treat the decree as conclusive proof of the debt. It is clear, that it is not so treated for all purposes ; for any other creditor may challenge the debt; Owens v. Dickenson (1 Cr. & Ph. 48) ; and it is equally clear that in practice, the executor himself is allowed to im- peach it. If, in a case where the plaintiff sues on behalf of himself and all the other creditors, and the defendants, who represent the estate, do not admit assets (see Woodgate v. Field), it is objected at the hearing, that the debt is not well proved, — the court tries the question only whether there is sufficient proof upon which to found a decree ; and however clearly the debt may be proved in the cause, the decree decides nothing more than that the debt is sufficiently proved to entitle the plaintiff to go into the Master's office ; and a new case may be made in the Master's office, and new evi- dence may be there tendered. The real question is, in what way the new case is to be tried, or what is the course to be pursued in the Master's office ? The plaintiff says that the course should be the same as at law, and that he brings his legal rights with him into equity; and, subject to some qualification, I can- not refuse my assent to the plaintiff's proposition. When a decree is made in a creditor's suit, under which all the creditors may come in, this court will not permit the estate to be embarrassed by proceedings which might conflict with each other, to the prejudice of the ex- ecutor or administrator, Perry v. Phelips (10 Ves. 34) ; but nothing would be more unjust than that the court should restrain the creditor from proceeding to enforce his rights at law, except upon the prin- ciple of allowing him to bring his legal rights with him into the office of the court, which it substitutes for the pro- 538 EQUITY JURISPRUDENCE. [CH. IX. prevent any abuse of such bills, by connivance between an execu- tor or administrator and a creditor, it is now a common practice to grant an injunction only, when the answer or affidavit of the executor or administrator states the amount of the assets, and upon the terms of his bringing the assets into court, or obeying such other order of the court, as the circumstances of the case may require. 1 The same remedial justice is applied, where the application, instead of being made by creditors, is made by legatees or trustees. 2 ceedings at law, Dornford v. Dornford (12 Ves. 127) ; Berrington v. Evans (1 You. 276) ; and the circumstance, that the creditor is also the plaintiff in the suit in equity, makes no difference in that respect. The only qualifications which now occur to me of the general rule, that a legal creditor brings all his legal rights with him, are founded, first, upon the cir- cumstance that in certain special cases, a court of equity, in the ordinary course of administering assets, will distinguish a voluntary bond from one given for value, Lady Cox's case (3 P. Wms. 339); Jones v. Powell (Eq. Cas. Abr. 84, pi. 2) ; Gil- ham v. Locke (9 Ves. 612) ; Assignees of Gardiner a. Shannon (2 Sen. & Lefr. 228) ; and, secondly, that in all cases, this court requires an affidavit of the truth of the debt from the creditor, which at law is not required. This affidavit is required to extend to the consideration of a simple contract debt, — but not to the consider- ation of bond or other specialty debts. The third qualification — if, indeed, there be any other than those which I have mentioned — is that which is said to be introduced by the case of Eundell v. Lord Elvers (Phillips, 88)." 1 Gilpin v. Lady Southampton, 18 Ves. 469; Clarke v. Ormonde. Jac. 122, 123, 124, 125 ; Mitf ord, Eq. PL by Jeremy, p. 311. In Lee v. Park, 1 Keen, 714, 719 to 724, Lord Langdale (Master of the Rolls) went into an elaborate exami- nation of the doctrine on this subject, and refused to stay the execution of a creditor, who had obtained a judgment before the decree to account in chancery. Although it is long, yet it gives so full an account of the history, progress, and present state of the jurisdiction, that it seems proper to be here given at large. "It has been argued," says he, "that, in cases of this nature, the court pays no regard to the question, whether the decree or judgment has priority in time, but considers only the quality of the judgment, and that tbe judgment in this case, being a judgment to recover de bonis testatoris, the executors are, as of course, entitled to restrain the judgment creditors from issuing execution. I do not accede to that argument. The juris- diction, in these cases, was first estab- lished upon questions which arose between judgments at law and decrees in equity, for payment of ascertained debts out of the assets. It was determined, that such decrees and such judgments were, in the administration of legal assets, to be con- sidered of equal value, and that the one which was prior in time (whether decree' or judgment) should be first satisfied out of the assets, Morrice v. The Bank of England, Cas. temp. Talb. 217; s. c. more fully, 3 Swanst. 575, and 2 Bro. P. C. 465, edit. Toml.; Martin v. Martin, 1 Ves. Sen. 211. In the beginning, a judgment, obtained after a decree quod computet (not being a decree for payment of an ascertained sum out of the assets), was preferred. Ferrers v. Shirley, cited 10 Ves. 39. But, subsequently, Lord Thurlow put the jurisdiction on this: — that the court, having decreed an ac- count of debts and assets, and ordered payment in a due course of administra- tion, must be considered to have taken the fund into its own hands, and could 2 Perry v. Phelips, 10 Ves. 38 ; Brooks son v. Leap, 1 Jack. & Walker, 231, and r. Beynolds, 1 Bro. Ch. 183; Jack- note. § 549, 550.] ADMINISTRATION. 539 § 550. The considerations already mentioned apply to cases where the assets are purely of a legal nature; and no peculiar not suffer its decree to be rendered nugatory by altering the course of ad- ministration, but ought to protect the executor in obeying its decrees. And he therefore granted injunctions to restrain proceedings at law, after a decree quod computet. Kenyon v. Worthington, 2 Dick. 668. And, as it was the practice in cred- itors' suits, for the plaintiff, suing for himself and others, to prove his own debt prior to the hearing, there was, per- haps, not much difficulty in considering a decree for the administration of assets in such a suit, as in the nature of a judg- ment for all the creditors. But Lord Thurlow, acting on the principle to which he attributed the jurisdiction, gave the like authority to a decree quod computet, which was obtained in a suit, instituted by the trustees under a testator's will, and to which no creditor was a party. Brooks v. Reynolds, 1 Bro. C. C. 183. It was, however, contended that the creditor was not to be deprived of the benefit of a judgment, which he had obtained prior to the decree. Goate v. Fryer, 2 Cox, 201 ; Largan v. Bowen, 1 Sch. & Lefr. 296. In the case of Paxton v. Douglas (8 Ves. 520), the creditor had obtained an interlocutory judgment prior to the appli- cation for an injunction. What was the state of the proceeding at law, at the date of the decree, is not stated ; and no ques- tion on the subject appears to have been raised. In some subsequent cases, where the decree had priority in point of time, a question was raised, whether the exec- utor, by improper pleading, or by confess- ing judgment, did not lose his right to be protected by an injunction ; and, upon these cases, it has been considered, that, if the executors so pleaded as to entitle the creditor, plaintiff at law, to a judg- ment, to recover his demand de bonis pro- priis, this court could not restrain the ex- ecution. Brook v. Skinner, 2 Mer. 481, n. ; Terrewest v. Featherby, 2 Mer. 480; Drewry v. Thacker, 3 Swanst. 529; Clarke v. Lord Ormonde, Jac. 108 ; Lord v. Wormleighton, Jac. 148. In the cases of Price v. Evans (4 Sim. 514), and Kent v. Pickering (5 Sim. 569), the Vice-Chan- cellor granted injunctions which only re- strained the creditor from taking out execution against the assets of the intes- tate or testator. But it has been held, that suffering judgment to go by default, or putting in pleas considered false, if done merely for the purpose of gaining time to apply to this court, did not de- prive the executor of his right to protec- tion. Dyer v. Kearsley, 2 Mer. 482, n. ; Fielden v. Fielden, 1 Sim. & Stu. 255. In a, useful work on the Law of Execu- tors (Williams's Law of Executors, 1181), it has been observed, that, in the consider- ation of some of these cases, some mis- conception seems to have prevailed respecting the effect of the executor's pleas, and of the judgment against him ; and considering what, in the argument of this case, has been called the quality of the judgment, it seems proper to notice, that a judgment against an executor, whether by, default or on demurrer, or upon verdict on any plea pleaded, except a general or special plene administravit, is conclusive upon him, that he has assets to answer the demand. Leonard v. Simpson, 2 Bing. N. C. 176 ; Palmer o. Waller, I Mees. & Wei. 689. If the action can only be supported against him in his character of executor, and he pleads any plea which admits that he has acted as such (except a release to himself), the judgment against him is that the plaintiff do recover the debt and costs, to be levied out of the assets of the testator, if the defendant have so much ; but if not, then the costs out of the defendant's own goods. Such is the form of the judg- ment, where the defendant has pleaded won est factum testatoris, non assumpsit, or release to the testator, although all of these pleas are held to admit assets. But upon a subsequent deficiency of assets, the executor has to pay out of his own goods, because, in law, the judgment is held to be a proof that he had assets to satisfy it. Upon the sheriff's return of nulla bona, the plaintiff may issue a scire facias, or bring an action of debt on the judgment, suggesting a devastavit. In the proceedings on the scire facias, the plain- tiff has not to prove that the executor has property of the testator in his hands ; and, 540 EQUITY JURISPRUDENCE. [CH. IX. circumstances require the interposition of courts of equity, except those appertaining to the necessity of taking an account, and having a discovery, and decreeing a final settlement of the estate. But in a great variety of cases, the jurisdiction of courts of equity becomes indispensable, from the fact, that no other courts possess any adequate jurisdiction to reach the entire merits, or dispose of the entire merits. This must necessarily be the case where there are equitable assets as well as legal assets, and, also, where the in the action, the executor cannot plead plene administravit, but only deny the devas- tavit; and of that, the judgment against him and the sheriff's return of nulla bona are evidence ; and, in his action, the creditor obtains judgment to recover his demand de bonis propriis. The case of Drewry v. Thacker (3 Swanst. 529) is, as far as I am aware, the only case in which the executor has been in any degree protected against execution upon a judgment obtained prior to the decree. The administratrix, in that case, had given cognovits to Stanley and Lu- cas, two bond-creditors, with stay of execu- tion, if payment was made by instalments at certain times. After default had been made, a decree for administration was obtained, and, after the plaintiff at law had notice of the decree, the sheriff took the intestate's goods, in the hands of the administratrix, in execution. The Vice- Chancellor, Sir John Leach, ordered the sheriff to restore the goods, on payment of costs ; and, further, that if, upon the administration of the estate by the court, there should be a deficiency of assets to pay Stanley and Lucas in full, they were to be at liberty to proceed at law against the administratrix, as if the sheriff had returned nulla bona praster the sum re- ceived by Stanley and Lucas upon the administration of the assets in this case, she, by her counsel, undertaking not to dispute the suggestion of such return in the writ at law. Now, Lord Eldon, very recently before the date of this order, in the case of Terrewest o. Featherby, had observed, ' That the creditor's judgment would be of no service to him, if he were delayed here until it could be ascertained whether there were assets of the testator to answer his demand, which might not be till after all chance of recovering against the executor de bonis propriis was entirely gone.' The order of the Vice-Chancellor, in Drewry v. Thacker, did, however, so delay the creditor, and on a motion be- fore Lord Eldon to discharge the order he seems to have found considerable diffi- culty in dealing with it. He clearly con- sidered that if the administratrix was liable at law, she was liable to a greater extent than she was left by the Vice-Chan- cellor's order ; and that there had been no instance, where the proceedings at law had been restrained after judgment de bonis testatoris and si non de bonis propriis of an executor, and execution issued, on a decree subsequently obtained for an administration of the assets ; and he said, that his memory furnished him with the recollection of no case, in which the court had interposed, as in the Vice-Chan- cellor's order, namely, by restraining the proceedings at law for a time, but con- sidering those proceedings effectual for some purposes, to be carried into exe- cution at a future time, when the fruits to be collected from them had been ascertained by the result of certain pro- ceedings in equity. In the result he made no order upon the motion before him ; so that the order of the Vice-Chancellor was, in effect, left undisturbed, but under circumstances which prevent it from being regarded as an authority. In the sub- sequent case of Clarke v. Lord Ormonde (Jac. 108), in which the point was not raised, Lord Eldon is reported to have said, that, even if a creditor has got a judgment before a decree, though he may come in and prove as such, he must not take out execution ; and, in reference to the conduct of the parties, and per- haps to the nature of the claim, there may be such cases ; but such is not the ordinary rule." See also Ranken v. Harwood, 6 Hare, 216. § 550-552.] ADMINISTRATION. 541 assets are required to be marshalled, in order to a full and perfect administration of the estate, and to prevent any creditor, legatee, or distributee from being deprived of its own proper benefit, by reason of any prior claims which obstruct it. § 551. And, first, in relation to equitable assets. That portion only of the assets of the deceased party are deemed legal assets, which by law are directly liable, in the hands of his executor or administrator, to the payment of debts and legacies. 1 It is not within the design of these commentaries to enter into a minute examination of what are deemed legal assets. But, generally speaking, they are such as can be reached in the hands of an executor or administrator by a suit at law against him, either by a common judgment, or by a judgment upon a devastavit against him personally. 2 But it is, perhaps, more accurate to say, that legal assets are such as come into the hands and power of an executor or administrator, or such as he is intrusted with by law, virtute officii, to dispose of in the course of administration. 3 In other words, whatever an executor or administrator takes qua executor or administrator, or in respect to his office, is to be con- sidered as, legal assets. 4 § 552. Equitable assets are, on the other hand, all assets which are chargeable with the payment of debts or legacies in equity ; and which do not fall under the description of legal assets. They 1 Mad. Pr. Ch. 473 ; Ram on Assets, Creditors, 2 P. Will. 342, 343 ; 2 Fonbl. ch. 8, p. 143 ; id. ch. 27, p. 317 ; 3 Woodde- Eq. B. 4, Pt. 2, ch. 2, § 1, note (/). So eon, Lect. 59, p. 482 to 488. See, in the a term of years, taken in the name of A., English Law Mag. for Feb., 1844, p. 27, a in trust for B., is legal assets, although dissertation on what constitutes the true recoverable in equity only. Ibid. ; 3 P. distinction and test between legal and Will. 342, 343, and Mr. Cox's note (2) ; equitable assets. See 2 White & Tudor's Hartwell v. Chittars, Ambler, 308, and Eq. Lead. Cases, p. 72, and note. Mr. Blunt's note. By the statute of 2 See Farr v. Newman, 4 T. R. 621 ; Charles II. ch. 3, the trusts of an inheri- Whale v. Booth, 4 T. R. 625, note ; s. c. tance in land are liable for the payment 4 Doug. 36. In some cases it is neces- of bond-debts, which make such trust sary to go into a court of equity, to en- estates legal assets, although they can be force payment out of what are properly enforced only in equity. See 2 Freeman, legal assets. Thus, for instance, if there 150, C. 130 ; 2 Fonbl. Eq. B. 4, Pt. 2, ch. should be a lease for years, or a bond- 2, § 1, note (/) ; Moses v. Murgatroyd, 1 debt, or an annuity in a trustee's name, Johns. Ch. 119, 130. belonging to the deceased, there, although 8 2 Fonbl. Eq. B. 4, Pt. 2, ch. 2, § 1 ; a creditor could not come at it without Bac. Abridg. Executors and Administrators, the aid of a court of equity, yet the as- H. ; 3 Wooddes. Lect. 59, p. 484 to 488. sets would be treated as legal assets, and 4 2 Fonbl. Eq. B. 4, Pt. 2, ch. 2, § 1, should be applied in the course of admin- and notes (e) ; Deg v. Deg, 2 P. Will. 416, istration as such. Wilson v. Fielding, 2 and Mr. Cox's note. Vern. 763; The case of Sir Charles Cox'a 542 EQUITY JURISPRUDENCE. [CH. IX. are called equitable assets, because, in obtaining payment out of them, they can be reached only by the aid and instrumentality of a court of equity. 1 They are also called equitable for another reason ; and that is, that the rules of distribution by which they are governed, are different from those of the distribution of legal assets. In general, it may be said, that equitable assets are of two kinds : the first is, where assets are created such by the intent of the party ; the second is, where they result from the nature of the estate made chargeable. Thus, for instance, if a testator devises land to trustees, to sell for the payment of debts, the assets resulting from the execution of the trust, are equitable assets upon the plain intent of the testator, notwithstanding the trustees are also made his executors, for, by directing the sale to be for the payment of debts generally, he excludes all preferences, and the property would not otherwise be liable to the payment of simple contract debts. 2 The same principle applies, if the tes- tator merely charges his lands with the payment of his debts. 3 On the other hand, if the estate be of an equitable nature, and be chargeable with debts, the fund is to be deemed equitable assets, unless by some statute it is expressly made legal assets ; for it cannot be reached except through the instrumentality of a court of equity. 4 And it may be laid down as a general principle, that every thing is considered as equitable assets, which the debtor has made subject to his debts generally, and which, without his act, would not have been subject to the payment of his debts generally. 3 1 2 Fonbl. Eq. B. 4, Pt. 2, ch. 2, § 1, Lord Camden took notice of the early and notes (c), (/), (g) ; Wilson v. Field- cases, which had decided, that where ing, 2 Vern. 763 ; Gott v. Atkinson, Willes, land is devised to be sold by executors, 623, 524 ; 1 Mad. Pr. Ch. 473 ; Ram on qua executors, or devised to executors, Assets, ch. 27, p. 317 ; 3 Wooddes. Lect. qua executors, to be sold for payment of 59, p. 486, 487. debts, the assets were purely legal (Co. 2 Lewin v. Okeley, 2 Atk. 50 ; Newton Litt. 112 6, 113 a); and he added, " I can v. Bennet, 1 Bro. Ch. 135 ; Silk v. Prime, hardly now suggest a case where the as- 1 Bro. Ch. 138, note ; Bailey v. Ekins, 7 sets would be legal, but where the exec- Ves. 319 ; Shiphard v. Lutwidge, 8 Ves. utor has a naked power to sell, qua exec- 26, 30 ; Benson v. Leroy, 4 Johns. Ch. utor." See also Girling v. Lee, 1 Vern. 651 ; Clay v. Willis, 1 B. & Cress w. 364; 63, and Eaithby's notes. It is question- Barker v. May, 9 B. & Cressw. 489 ; [Bain able, whether, even in this latter case, i'. Sadler, L. R, 12 Eq. 570]. the assets would now be held to be legal. 8 Ibid. See Barker v. May, 9 B. & Cressw. 489, * 2 Fonbl. Eq. B. 4, Pt. 2, ch. 2, § 1, 493 ; Paschall v. Ketterich, Dyer, 151 b; note {g). Anon., Dyer, 264 6; Bac. Abridg. Legacy, 6 2 Fonbl. Eq. B. 4, Pt. 2, ch. 2, § 1, M. ; 2 Fonbl. Eq. B. 4, Pt. 2, ch. 2, § 1, note (c) ; Ram on Assets, ch. 17, p. 317. note (e) ; Deg v. Deg, 2 P. Will. 416, In Silk v. Prime, 1 Bro. Ch. 138, note, Cox's note. §552-554.] ADMINISTRATION. 543 § 552 a. Wherever real estate is by statute made liable for the payment of the debts of the deceased, there it constitutes legal assets. 1 But, notwithstanding such provision, if the testator should by his will charge his real estate with his debt, there the real estate so charged would be equitable assets. 2 [* § 552 b. This question came before the House of Lords, dur- ing the present year 3 (I860), when it was declared by Lord Cran- worth, that any thing which an administrator is entitled to receive, as such, virtute officii, can never be equitable assets ; and in con- sidering whether assets are legal or equitable, the question is not, whether the estate is recoverable through the agency of the courts of law, or of equity, but whether it is money which the personal representative is entitled to recover, independently of any direo tions of the testator.] § 553. In the course of the administration of assets, courts of equity follow the same rules in regard to legal assets, which are , adopted by courts of law; and give the same priority to the differ- ent classes of creditors, which is enjoyed at law ; thus maintaining a practical exposition of the maxim, ^fflquitas sequitur legem.* In .the like manner, courts of equity recognize and enforce all antece- dent liens, claims, and charges irPrem, existing upon the property according to their priorities ; whether these charges are of a legal or of an equitable nature, and whether the assets are legal or equitable. 5 § 554. But in regard to equitable assets (subject to the excep- tion already stated), courts of equity, in the actual administration of them, adopt very different rules from those adopted in courts of law in the administration of legal assets. Thus, in equity, it is a general rule that equitable assets shall be distributed equally, and pari passu, among all the creditors, without any reference to the priority or dignity of the debts ; for courts of equity regard all debts in conscience as equal jure naturali, and equally entitled 1 Goodchild ». Ferret, 5 Beav. 398. Will. 277, 278 ; Burgh v. Francis, 1 Eq 2 Charlton v. "Wright, 12 Simons, 274. Abridg. 320, PI. 1 ; Girling u. Lee, 1 8 [* Attorney-General v. Brunning, 6 Vem. 63, and Kaithby's notes ; Plunket Jur. n. s. 1083.] v. Penson, 2 Atk. 290; Pope v. Gwinn, 8 * See 2 Fonbl. Eq. B. 4, Pt. 2, ch. 2, Ves. 28, note ; Morgan v. Sherrard, 1 § 1, 2; Wride v. Clarke, 1 Dick. 382; Vern. 293; Cole v. Warden, 1 Vera. 410, Averell u. Loucks, 6 Barbour, S. C. 478 ; and note ; Wilson v. Fielding, 2 Vern. Morrice v. Bank of England, Cas. temp. 763, 764 ; Foly's case, 2 Freem. 49 ; Talb. 220, 221. Wride v. Clarke, 1 Dick. 382 ; Sharpe v. 6 Freemanult v. Dedire, 1 P. Will. Earl of Scarborough, 4 Ves. 538. 429; Finch v. Earl of Winchelsea, 1 P. 544 EQUITY JURISPRUDENCE. [CH. IX. to be paid ; and here they follow their own favorite maxim that equality is equity ; dEquitas est quasi cequalitas. 1 And if the fund falls short, all the creditors are required to abate in proportion. 2 [* § 554 a. The priority of claimants upon equitable assets in this country is not affected by the law of the place of contract. Where, therefore, an Englishman, in Venezuela, entered into a contract in such a form as gave the creditor priority over the other creditors, it was held that a fund in England constituting equitable assets of the debtor must be divided among the creditors without regard to any such priority. 3 ] § 555. It frequently happens, also, that lands and other prop- erty, not strictly legal assets, are charged not only with the pay- ment of debts, but also with the payment of legacies. In that case, all the legatees take pari passu ; and if the equitable assets (after payment of the debts) are not sufficient to pay all the lega- cies, the legatees are all required to abate in proportion, unless some priority is specially given by the testator to particular legatees ; for, primd facie, the testator must be presumed to intend that all his legacies shall be equally paid. 4 But suppose the case to be, that the equitable assets are sufficient to pay all the debts ; but, after such payment, not sufficient to pay any of the lega- cies ; and the property is charged with the payment of both 1 Co. Litt. 24 ; Hixon v. Wytham, 1 rank after the privileged creditors ac- Ch. Cas. 248 ; Gott v. Atkinson, Willes, cording to the dates of their respective 621 ; Turner v. Turner, 1 Jac. & "Walk, mortgages. (3.) Those who are cred- 45 ; Creditors of Sir Charles Cox, 3 P. itors by bonds, or others who have only Will. 343, 344 ; Deg v. Deg, 2 P. Will, personal actions (the first two have liens 412, 416 ; Wride v. Clarke, 1 Dick. 382 ; or privileges in rem), and who come in, Morrice v. Bank of England, Cas. temp, therefore, together, and share equally in Talb. 220 ; Wilson v. Paul, 8 Sim. 63. proportion to their debts. 1 Domat, B. 3, 2 Hickson v. Witham, 1 Freem. 301 ; tit. 1, § 5, and especially art. 34. [So an B. c. 1 Ch. Cas. 248 ; Deg v. Deg, 2 P. executor who is also trustee to sell realty Will. 412 ; Wride v. Clarke, 1 Dick. 382 ; for payment of debts has no right of re- Foly's case, 2 Freem. 49 ; Woolstonecroft tainer out of the proceeds of the sale, v. Long, 2 Freem. 175; s. c. 2 Eq. Abridg. but they are to be distributed in such 469; 1 Ch. Cas. 32 ; 3 Ch. 12. The civil manner as to put him in his character as law, like the common law, had different creditor upon same footing as other cred- classes of debts, to which it annexed dif- itors. Bain v. Sadler, L. R. 12 Eq. 570. ferent privileges, or priorities, founded, So if he has retained part of his debt out indeed, upon principles more general and of the legal assets, the equitable assets more sound than those of the common are to be divided to the other creditors law, in its classification. There were in till equal with him, and after that rata- the civil law three orders of creditors, bly. Ibid.] (1.) Those who go before all others, and s [*p ar do v. Bingham, Law Rep. 6 take priority among themselves accord- Eq. 485.] ing to the distinctions of their privileges. * Brown v. Brown, 1 Keen, 275. (2.) Those who have mortgages, and § 554-556 a.] administration. 545 debts and legacies. In such a conflict of rights, the question must arise, whether the creditors and legatees are to share in pro- portion, pari passu; or the creditors are to enjoy a priority of satisfaction out of the equitable assets. This was formerly a matter of no inconsiderable doubt; and it was contended with much apparent strength of reasoning that, as both creditors and legatees, in such a case, take out of the fund by the bounty of the testator, and not of strict right, they ought to share in proportion, pari passu. After some struggle in the courts of equity upon this point, 1 it is at length settled that, although as between themselves, in regard to equitable assets, the creditors are all equal, and are to share in proportion, pari passu ; yet, as between them and lega- tees, the creditors are entitled to a priority and preference ; and that legatees are to take nothing until the debts are all paid. § 556. The ground of this decision is, that it is the duty of every man to be just before he is generous ; and no one can well doubt the moral obligation of any man to provide for the payment of all his debts. The presumption, therefore, in the absence of all other words, showing a different intent (which intent would, in such a case, still prevail), is, that a testator means to provide first, for the discharge of his moral duties, and next, for the objects of his bounty, and not to confound the one with the other. For, other- wise, the testator would, in truth, and in foro conscientice, be dis- posing of another's debt, and not making gifts ultra ces alienum? The good sense of this latter reasoning can scarcely escape obser- vation. It proceeds upon the just and benignant interpretation of the intention of the party to fulfil his moral obligations in the just order, which natural law would ^assign to them. [* § 556 a. The personalty being the primary fund for the pay- ment, both of debts and legacies, where a legacy was specially charged upon land, there being sufficient personal estate in the hands of the executor to pay the legacy, after meeting all other charges, and he having squandered the same, it was held that the legatee could not resort to the land for payment ; neither could he compel other legatees, who had obtained payment, to refund, in 1 See Anon., 2 Vern. 133; Hixam v. P. Will. 551, 552; s. c. Moseley, 204; Witham, 1 Ch. Cas. 248 ; s. c. 1 Freem. Petre v. Bruen, cited ibid. ; Greaves v. 305; Anon., 2 Vern. 405 ; Walker v. Mea- Powell, 2 Vern. 248, and Mr. Raithby's ger, 2 P. Will. 550. note (2) ; 1 Eq. Abridg. 141, PI. 3; Kid- 2 Hixam a. Witham, 1 Ch. Cas. 258 ; ney v. Coussmaker, 12 Ves. 154. s. o. 1 Preem. 305 ; Walker v. Meager, 2 EQ. JDK. — vol. l. 35 546 EQUITY JURISPRUDENCE. [CH. IX. order to meet his deficiency, they being entitled to retain the advantage of their greater diligence. 1 Property undisposed of by the will always forms the primary fund for the payment of debts and other expenses incident to administration. 2 ] § 557. In cases where the assets are partly legal, and partly equitable, courts of equity will not interfere to take away the legal preference of any creditors to the legal assets. But, if any creditor has been partly paid out of the legal assets by insisting on his preference, and he seeks satisfaction of the residue of his debt out of the equitable assets, he will be postponed, till all the other creditors, not possessing such a preference, have received out of such equitable assets an equal proportion of their respective debts. 3 This doctrine is founded upon and flows from that which we have been already considering, that in natural justice and conscience all debts are equal ; that the debtor himself is equally bound to satisfy them all; 4 and that equality is equity. When, therefore, a court of equity is called upon to assist a creditor, it has a right to insist, before relief is granted, that he who seeks equity shall do equity ; that he shall not make use of the law in his own favor to exclude equity, and at the same time insist that equity shall aid the defects of the law, to the injury of equally meritorious claimants. The usual decree in cases of this sort is, that " if any of the creditors by specialty have exhausted (or shall exhaust) any part of the testator's personal estate in satisfaction of their debts, then they are not to eome upon or receive any further satisfaction out of the testator's real estate (or other equitable assets) until the other creditors shall thereout be made up equal with them." 5 This is sometimes called marshalling the assets. 6 But that appellation more appropriately belongs (as we shall immediately see) to an- i [* Sims v. Sims, 2 Stockton, Ch. 158. » Sheppard v. Kent, 2 Vern. 435 ; Deg But this seems to be carrying the advan- v. Deg, 3 P. Will. 417 ; Haslewood v. tage of diligence to the very extreme. Pope, 3 P. Will. 323 ; Morrice v. Bank of See Terhune v. Colton, 2 Stock. 21. England, Cas. temp. Talb. 220 ; 2 Fonbl, Where a legacy to an infant, with inter- Eq. B. 4, Pt. 2, ch. 2, § 1 ; [Bain o. Sad- est for maintenance till twenty -one, was ler, L. B. 12 Eq. 570]. charged upon land in case of a deficiency 4 Morrice v. Bank of England, Cas, of assets, and at death there was no defi- temp. Talb. 219, 220, 221 ; 2 Eonbl. Eq, ciency, but executor squandered the as- B. 4, Pt. 2, ch. 2, § 1. sets : Held, that the legacy could not, on 6 Plunket v. Penson, 2 Atk. 294; infant's attaining majority, be charged Wride v. Clarke, 1 Dick. 382. on the real estate. Eichardson v. Mor- 6 See Aldrich v. Cooper, 8 Ves. 388, ton, L. R. 13 Eq. 123. 394. 2 Elliot v. Posten, 4 Jones, Eq. 433; Freeman v. Okey, 3 Jones, Eq. 473.] § 556 0-558.] ADMINISTRATION. 547 other mode of equitable interference. The present is rather an exercise of equitable jurisdiction in refusing relief, unless upon the terms of doing equity. § 558. In the next place, as to marshalling assets (strictly so called), in the course of the administration. 1 In the sense of the lexicographers, to marshal, is to arrange or rank in order ; and in this sense, the marshalling of assets would be, to arrange or rank assets in the due order of administration. This primary sense of the language has been transferred into the vocabulary of courts of equity ; and has there received a somewhat peculiar and technical sense, although still germane to its original signification. In the sense of the courts of equity, the marshalling of assets is such an arrangement of the different funds under administration as shall enable all the parties, having equities thereon, to receive their due proportions, notwithstanding any intervening interests, liens, or other claims of particular persons to prior satisfaction, out of a portion of these funds. 2 Thus, where there exist two or more funds, and there are several claimants against them, and at law one of the parties may resort to either fund for satisfaction, but the others can come upon one only ; there, courts of equity exer- cise the authority to marshal (as it is called) the funds, and by this means enable the parties whose remedy at law is confined to one fund only, to receive due satisfaction. 3 The general principle upon which courts of equity interfere in these cases is, that, with- out such interference, he who has a title to the double fund would possess an unreasonable power of defeating the claimants upon either fund, by taking his satisfaction out of the other, to the ex- clusion of them. So that, in fact, it would be entirely in his election, whether they should receive any satisfaction or not. Now, courts of equity treat such an exercise of power as wholly unjust and unconscientious ; and therefore will interfere, not, in- deed, to modify or absolutely to destroy the power, but to prevent it from being made an instrument of caprice, injustice, or imposi- tion. Equity, in affording redress in such cases, does little more 1 See Aldrich v. Cooper, 8 Ves. 388, 2 Atk. 446 ; In re Cornwall, 2 C. & L. 394 ; post, § 633 to 643. 131 ; s. c. 3 Dm. & War. 173 ; Attorney- 2 See 3 Wooddes. Lect. 59, p. 488, 489 ; General v. Tyndall, Ambl. 614 ; 2 Fonbl. post, § 633 to 642. Eq. B. 3, ch. 2, § 6; Selby v. Selby, 4 » 1 Mad. Pr. Ch. 499; Ram on Assets, Russ. 336, 341. See the Reporter's Note ch. 28, § 1, p. 329; Aldrich v. Cooper, 8 to Phillips v. Parker, 1 Tamlyn, 136, 143. Ves. 388, 398 ; Lanoy v. Duke of Athol, 548 EQUITY JURISPRUDENCE. [CH. IX. than apply the maxim, Nemo ex alterius detrimento fieri debet locupletior. 1 § 559. And this principle is by no means confined to the ad- ministration of assets ; 'but it is applied to a vast variety of other cases (as we shall hereafter see) ; as, for instance, to cases of two mortgages where one covers two estates, and the other but one ; to cases of extents by the Crown ; and, indeed, to cases of double securities generally. 2 It may be laid down as the general rule of the courts of equity in cases of this sort, that, if a creditor has two funds, he shall take his satisfaction (if he may) out of that fund, upon which another creditor has no lien ; and the like rule is applied to other persons standing in a similar pre- dicament. 3 § 560. But, although the rule is so general, yet it is not to be understood without some qualifications. It is never applied except where it can be done without injustice to the creditor, or other party in interest, having a title to the double fund, and also with- out injustice to the common debtor. 4 Nor is it applied in favor of persons who are not common creditors of the same common debtor, except upon some special equity. Thus, a creditor of A. has no right, unless some peculiar equity intervenes, to insist that a credi- tor of A. and B. shall proceed against B.'s estate alone for the satisfaction of this debt, so that he may thereby receive a greater dividend from A.'s estate. 5 So where a creditor is a creditor upon two estates for the same debt, he will be entitled to receive divi- dends to the full amount from both estates, until he has been fully satisfied for his debt ; for his title in such a case is not to be made to yield in favor of either estate, or the creditors of either to his own prejudice. 6 It has, indeed, been said by Lord Hardwicke, 1 2 Eonbl. Eq. B. 3, ch. 2, § 6, and 388, 395 ; Trimmer v. Bayne, 9 Ves. 210, note(i). See Mills v. Eden, 10 Mod. 499; 211; Rumbold v. Rumbold, 3 Ves. 64; ante, § 327, 499 ; post, § 633 to 642. Dorr v. Shaw, 4 Johns. Ch. 17 ; Cheese- 2 1 Mad. Pr. Ch. 202, 203 ; Lanoy v. borough v. Millard, 1 Johns. Ch. 412 ; Duke of Athol, 2 Atk. 446 ; Aldrich v. Greenwood v. Taylor, 1 Russell & Mylne, Cooper, 8 Ves. 382, 388; Cornwall, in re, 185; Gwynne v. Edwards, 2 Kuss. 289 n.; 2 C. & L. 131; 3 Dru. & War. 173; Bute v. Cunynghame, 2 Russ. 275 ; Boaz- Kempe v. Antill, 2 Bro. Ch. 11 ; Wright man v. Johnston, 3 Sun. 377 ; ante, § 327, v. Simpson, 6 Ves. 714; 2 Eonbl. Eq. B. 499; post, § 633, 638, 642. 3, ch. 2, § 6; ante, § 327, 499; post, § 633, * See Earl of Clarendon v. Barham, 1 638, 642. Younge & Coll. 688, 709. 8 Lanoy v. Athol, 2 Atk. 446 ; Colches- 5 Ex parte Kendall, 17 Ves. 514, 520; ter v. Stamford, 2 Freem. 124 ; Lacara v. post, § 642 to 645. Mertins, 1 Ves. 312; Ex parte Kendall, 17 6 Beane v. Cox, 6 Beav. 84. Ves. 514, 520; Aldrich v. Cooper, 8 Ves. § 558-562.] ADMINISTRATION.: 549 that courts of equity have no right to marshal the assets of a per- son who is alive ; but only the real and personal assets of a person deceased; for the assets are not subject to the jurisdiction of equity until his death. 1 But this language is to be understood with reference to the case in which it was spoken ; for there is no doubt, that there may be a marshalling of the real and personal assets of living persons under particular circumstances, where pecu- liar equities attach upon the one or the other ; although such cases are very rare. 2 § 561. The rule of courts of equity, in marshalling assets in the course of administration, is, that every claimant upon the assets of a deceased person shall be satisfied, as far as such assets can, by any arrangement consistent with the nature of their respective claims, be applied in satisfaction thereof. 3 The rule must neces- sarily,, in its application to the actual circumstances of different cases, admit, nay, must require, very different modifications of relief. It may be illustrated by the suggestion of a few cases, which present its application in a clear view, and show the limita- tions belonging to it. § 562. In the first place, if a specialty creditor, whose debt is a lien on the real estate, receive satisfaction out of the personal assets of the deceased, a simple contract creditor (who has no claim except upon those personal assets) shall in equity stand in the place of the specialty creditor against the real assets, so far as the latter shall have exhausted the personal assets in payment of his debts, and no further. 4 But the court will not, in cases of this sort, extend the relief to creditors further than the nature of the contract will justify it. Therefore it must be a specialty creditor of the person whose assets are in question ; such a one as might have a remedy against both the real and personal estate of the deceased debtor, or against either of them. For it is not every specialty creditor in whose place the simple contract creditors can come to affect the real assets. If the specialty creditor himself cannot affect the real estate, as, if the heirs are not bound by the 1 La earn v. Mertins, 1 Ves. 312. I have freely drawn ; 2 Eonbl. Eq. B. 3, 2 See Ex parte Kendall, 17 Ves. 514; ch. 2, § 6 ; post, § 633, note. Aldrich v. Cooper, 8 Ves. 388, 389, 394; * Anon., 2 Ch. Cas. i; Sagittary o. Dorr v. Shaw, 4 Johns. Ch. 17 ; Sneed v. Hyde, 1 Vern. 455 ; Neaye v. Alderton, 1 Lord Culpepper, 2 Eq. Abridg. 255, 260. Eq. Abridg. 144 ; Galton v. Hancock, 2 8 See Clifton v. Burt, 1 P. Will. 679, Atk. 436 ; Clifton v. Burt, 1 P. "Will. 679, Mr. Cox's valuable note (1), from which Cox's note (1) ; Cheeseborough v. Mil- lard, 1 Johns. Ch. 413. 550 EQUITY JURISPRUDENCE. [CH. IX. specialty ; or if there is no personal covenant binding the party to pay ; or if the creditors are not creditors of the same person, and have not any demand against both funds, as being, the prop- erty of the same person ; in these and the like cases, there is no ground for the interposition of courts of equity. 1 § 563. On the other hand, if a specialty creditor, having a right to resort to two funds, has not as yet received satisfaction out of either, a court of equity will interfere, and either throw him for satisfaction upon the fund which can be affected by him only, to the intent that the other fund shall be clear for him who can have access to the latter only ; 2 or it will put the creditor to his election between the one fund and the other. And, if the creditor resorts to the fund, upon which alone the other party has any security, it will decree satisfaction pro tanto to the latter out of the other fund. 3 The usual decree in such cases is, that "in case any of the specialty creditors shall exhaust any part of the personal estate, then the simple contract creditors are to stand in their place, and receive a satisfaction pro tanto out of" the real assets. 4 § 564. The same principle applies to the case of a mortgagee, who exhausts the personal estate in the payment of his debt. In such a case the simple contract creditors will be allowed to stand in the place of the mortgagee, in regard to the real estate bound by the mortgage. 5 And, where the personal assets have been so applied in discharge of a mortgage, the simple contract creditors may, in furtherance of the same principle, compel the heir to refund so much of the personal assets as have been applied to pay off the mortgage. 6 § 564 a. It was formerly doubted whether the same principle applied to the case of a vendor of an estate, whose unpaid pur- chase-money was, after the death of the purchaser, paid out of his personal estate. But it is now settled that, in such a case, the 1 Lacam v. Mertins, 1 Ves. 312, 313 ; * Westfaling v. "Westf aling, 3 Atk. Aldrieh a. Cooper, 8 Ves. 388, 389, 390, 467 ; Daries o. Topp, 1 Bro. Ch. 526 ; ante, 394 ; Ex parte Kendall, 17 Ves. 520. § 557. 2 Sagittary v. Hyde, 1 Vern. 455 ; La- 5 Aldrieh v. Cooper, 8 Ves. 388, 395, noy v. Duke of Athol, 2 Atk. 446 ; Pollex- 396 ; Lutkins v. Leigh, Cas. temp. Talb. fen v. Moore, 3 Atk. 272 ; Attorney-Gen- 63 ; Wilson v. Fielding, 2 Vera. 763 ; eral v. Tyndall, Ambler, 615. See Sproule Selby v. Selby, 4 Euss. 336, 341. v. Prior, 8 Sim. 189. 6 Wilson v. Fielding, 2 Vern. 763. * Aldrieh v. Cooper, 8 Ves. 389, 394, 395; Trimmer v. Bayne, 9 Ves. 210, 211. § 562-564 J.] ADMINISTRATION. 551 simple contract creditors of the purchaser shall stand in the place of the vendor, with respect to his lien on the estate so sold, against the devisee, as well as against the heir of the same estate. For the established rule being that simple contract creditors are, as against a devisee, to stand in the place of specialty creditors, who have exhausted the personal assets, because the specialty creditor had the two funds of real and personal estate to resort to ; by analogy, the simple contract creditors ought to be entitled to stand in the place of the vendor against the devisees, because the vendor has equally a charge upon the double fund of real and personal estate. Indeed, if the charge or hen of the vendor is to be con- sidered in the. same manner as if it were secured by mortgage, or in the nature of a mortgage (as it well may be), the principle above stated would clearly apply in favor of the simple contract creditors. 1 [* § 564 b. It has sometimes been made a question how far the mortgagee could go in, for a dividend upon his whole debt, in case of a deficiency of assets, without releasing his security. The rule in bankruptcy is, that the mortgagee can only prove his debt, for the deficiency, after deducting the amount of the mortgage secu- rity. And this rule has been sometimes enforced by courts of equity in the settlement of estates. 2 But it has been questioned by high authority, in Mason v. Bogg, 3 where Lord Cottenham, Chancellor, said : " If there were such a rule of equity as that which Sir John Leach propounds" [in Greenwood v. Taylor], "it would be found in some text-book or decided case. . . . With respect to the principle of that case, it is to be observed, that a mortgagee has a double security ; he has a right . to proceed against both, and to make the best he can of both." The general practice, in the settlement of insolvent estates, is, to allow the 1 Selby v. Selby, 4 Russ. 336, 340, 341 ; remedy against the real estate conveyed Trimmer v. Bayne, 9 Ves. 209. But see by them. Barker v. Barker, L. B. 10 Eq. Pollexfen v. Moore, 3 Atk. 272, which is 438. An heir-at-law may compel pur- said in Sproule v. Prior, 8 Sim. 189, to be chase of land by ancestor to be carried overruled. The same rule is now applied out and payment made out of assets for in favor of legatees. Sproule v. Prior, 8 his benefit. Harding v. Harding, L. R. 13 Sim. 189 ; Lord Lilford v. Keck, L. R. 1 Eq. 493. And where vendor rescinded Eq. 347. [Where a legacy was given the contract, heir-at-law was held entitled daughters of testator on condition of to price out of assets. Hudson v. Cook, their conveying certain real estate to his L. R. 13 Eq. 417.] sons, otherwise the legacy to fall into resi- 2 [* Greenwood v. Taylor, 1 Russ. & due which went to sons, and the daugh- My. 185 ; Bell v. Fleming, 1 Beasley, 13. ters conveyed the real estate, but failed s 2 My. & Cr. 443, 446. to get their legacies : Held, they had no 552 EQUITY JURISPRUDENCE. [CH. IX. creditor to prove his whole debt, without regard to any collateral security he may hold. If the dividend so reduces the debt that the collateral security will more than pay it, the personal represen- tative is bound to redeem for the benefit of the general creditors. 1 § 564 c. And it is apprehended the doctrine of marshalling assets is stated too broadly, when it is said that the mortgagee of two estates may be compelled to look exclusively to one, where another holds a mortgage upon the other only. Where the course of prac- tice in foreclosure is to sell the estate, this is practically the result, provided the first estate will produce enough to pay the mortgage resting upon both. But where the practice is to foreclose the title of the mortgagor, the most which the subsequent mortgagee can claim is to redeem both estates, by the payment of the first debt, upon the failure of the mortgagor to redeem, and thus stand in the place of the first mortgagee. 2 But if the mortgagee release a portion of the land included in his mortgage, after he has either express or constructive notice of the existence of a subsequent mortgage, covering part of the estate, he thereby loses his security to the extent of the value of the portion released. 3 But a prior encumbrancer cannot be confined to one particular security, where it will prejudice him as to other liens upon the same. 4 But where the first fund is susceptible of reduction to money, there is a duty upon the one holding security upon that and another fund, which a subsequent encumbrancer cannot reach, to first exhaust the fund upon which he alone has a lien. 5 ] § 565. In general, legatees are entitled to the same equities where the personal estate is exhausted by specialty creditors ; for they would otherwise be without any means of receiving the bounty of the testator. 6 So they are permitted, in like manner, to stand in the place of the specialty creditors, against- the real assets descended to the heir. 7 So they are permitted, in like manner, to 1 Duncan v. Fish, Adni'r, 1 Aiken, 231 ; 1 Heme v. Meyrick, 1 P. Will. 201, Walker, Smith, & Co. v. Barker, 26 Vt. 202 ; Culpepper v. Aston, 2 Ch. Cas. 117 ; 710 ; Putnam v. Russell, 17 Vt. 54. But Bowaman v. Reeve, Pree. Ch. 578 ; Tip- see Amory v. Francis, 16 Mass. 308. ping o. Tipping, 1 P. Will. 729, 730 ; Clif- 2 Post, § 633, and notes. ton v. Burt, 1 P. Will. 679, Cox's note ; 8 Reiley v. Mayer, Beasley, Ch. 55; Fenhoulhet v. Passavant, 1 Dick. 253; Lyman, Adm'r v. Lyman, 32 Vt. 79. Pollexfen v. Moore, 3 Atk. 272 ; Wythe v. * Van Mater v. Ely, Beasley, 271. Henniker, 2 Mylne & Keen, 645, 646; 5 Warren v. Warren, 30 Vt. 530 ; Selby v. Selby, 4 Russ. 336, 341 ; Lomas Lloyd v. Galbraith, 32 Penn. St. 103.] v . Wright, 2 Mylne & Keen, 769. But see 6 Arnold v. Chapman, 1 Ves. 110 ; Young u. Hassard, 1 Jones & L. R. 466 ; Mogg v. Hodges, 2 Ves. 51 ; Aldrich «. Tombs v. Roch, 2 Collyer, 490; Gervis v. Cooper, 8 Ves. 396 ; Lomas v. Wright, 2 Gervis, 14 Sim. 654. Mylne & Keen, 769, 775. § 564 6-565.] ADMINISTRATION. 553 stand in the place of a mortgagee, who has exhausted the personal estate in paying his mortgage. 1 And their equity will prevail, not only in case where the mortgaged premises have descended to the heir-at-law ; but also where they have been devised to a devisee, who is to take subject to the mortgage. 2 But their equity will not generally prevail against a devisee of the real estate not mortgaged, whether he be a specific or a residuary devisee ; for he also takes by the bounty of the testator ; and between persons, equally taking by the bounty of the testator, equity will not inter- fere, unless the testator has clearly shown some ground of prefer- ence or priority of the one over the other. 3 So that there is a distinction between the case where the estate is devised, and there are specialty creditors, and the case where it is devised, and there is a mortgage on it. In the latter case, the legatees stand in the place of the mortgagee, if he exhausts the personal assets ; in the former case, they do not stand in the place of the specialty cred- itors. The reason assigned is, that a specialty debt is no lien on 1 Lutkins v. Leigh, Cas. temp. Talb. 53 ; Forrester v. Leigh, Ambl. 171 ; Selby v. Selby, 4 Russ. 336, 341; Sproule v. Prior, 8 Sim. 189. 2 Lutkins v. Leigh, Cas. temp. Talb. 63, 54 ; Forrester v. Leigh, Ambl. 171 ; Norris u. Norris, 2 Dick.,542 ; Wythe v. Henniker, 2 Mylne & Keen, 644 ; Selby v. Selby, 4 Russ. 336, 340, 341. 8 Clifton v. Burt, 1 P. Will. 679, 680, and Cox's note ; Haslewood v. Pope, 3 P. Will. 322, 324 ; Scott v. Scott, Ambl. 383 ; 6. o. 1 Eden, 458 ; Forrester v. Leigh, Ambler, 171 ; Aldrich v. Cooper, 8 Ves. 396, 397. [That a pecuniary legatee and a residuary devisee are to contribute ratably to pay debts, where personal estate is insufficient to pay debts and leg- acies, see Hensman v. Fryer, L. R. 3 Ch App. 420. But see Dugdale v. Dugdale, L. R. 14 Eq. 234 ; Collins v. Lewis, L. R. 8 Eq. 708, where Hensman v. Fryer was commented on, and not followed.] Such preference or priority may be shown in various ways. Thus, if real estate is de- vised for, or subject to the payment of debts, if the personal estate is exhausted in payment of debts, the legatees will stand in the place of creditors on the rea assets. 2 Fonbl. Eq. B. 3, ch. 2, § 7, note (k) ; Foster v. Cook, 3 Bro. Ch. 347 ; Hasle wood v. Pope, 3 P. Will. 323 ; Aldrich v. Cooper, 8 Ves. 396, 397. Such prefer- ence or priority may also be rebutted by circumstances. Thus, it has been said that there is no rule, that, where real and personal estate is charged with the pay- ment of debts, and the residue is given to a legatee or children, the court would, in such case, turn the' charge on the real estate, to give the whole personal estate to the legatee. Arnold v. Chapman, 1 Ves. 110. See also Wythe v. Henniker, 2 Mylne & Keen, 635, 644, 645 ; Lomas v. Wright, 2 Mylne & Keen, 769. In thi3 last case it was held, that creditors by specialty, who are mere volunteers, are not entitled to compete with creditors on simple contracts for a valuable considera- tion. But, as against the devisees, they have a right to stand in the place of the mortgagees, who have exhausted the fund provided by the testator for the payment of debts. [Wythe v. Henniker was not followed in Lord Lilford v. Powys-Keek, L. R. 1 Eq. 347, and it was held that a pecuniary legatee could stand in place of vendor, with a lien for unpaid purchase-money, where realty contracted for by testator had been paid for out of assets. [A residuary devise remains specific, even since the Wills Act. See Gibbens o. Eyden, L. R. 7 Eq. 371; Hensman v. Fryer, L. R. 3 Ch. App. 420.] 554 EQUITY JURISPRUDENCE. [CH. IX. land in the hands of the obligor, or his heir or devisee. But a mortgage is a lien, and an estate in the land. By a devise of land mortgaged, nothing passes but the equity of redemption, if it is a mortgage in fee ; if it is for years, the reversion and equity of redemption pass. 1 § 566. In like manner, where lands are subjected to the pay- ment of all debts, legatees are permitted to stand, in regard to such lands, in the- place of simple contract creditors, who have come upon the personal estate, and exhausted it so far as to pre- vent a satisfaction of their legacies. 2 So, where legacies given by a will are charged on real estate, but legacies by a codicil are not ; the former legatees will be compelled to resort to the real assets, if there is a deficiency of the personal assets to satisfy both. 3 § 566 a. Upon analogous grounds, if a specific legacy is pledged by the testator, the specific legatee is entitled to have his specific legacy redeemed ; and if the executor fail to perform that duty, the specific legatee is entitled to compensation, to the amount of the legacy, out of the general assets of the testator. So if a specific legacy is encumbered with a mortgage, or other charge, the specific legatee is entitled to have it paid off by the executor, out of the general assets of the testator ; and, if that be not done, he is entitled to stand in the same situation as if the duty of the executor had been faithfully performed. Indeed, the same prin- ciple applies to specific legatees as to devisees, in respect to the redemption of the subject-matter of the gift out of the general assets of the testator. 4 1 Forrester v. Leigh, Ambl. 171, 174. Burt, 1 P. Will. 679, Cox's note ; Nor- See also Lutkins v. Leigh, Cas. temp, man v. Morrill, 4 Ves. 769. [So where an Talb. 53 ; 2 Fonbl. Eq. B. 3, ch. 2, § 7, annuity is charged on real and personal and note (k) ; Aldrich v. Cooper, 8 Ves. estate, and other legacies are not, the 396, 397. This distinction between the legatees may require the annuity to be heir and the devisee makes it very im- paid from the real estate descended, if portant, in many cases, to ascertain personal property is insufficient to pay whether, under a will, an heir takes by them and the annuitant too. Allen v. descent or by purchase. See Heme v. Allen, 3 Wall. Jr. 289.] Meyrick, 1 P. Will. 201 ; Scott v. Scott, * Knight v. Davis, 3 Mylne & K. 358, 1 Eden, 458 ; s. c. Ambl. 383 ; Clifton 361. [See Lewis v. Lewis, L. E. 13 Eq. v. Burt, 1 P. Will. 678, 679, Cox's 218. But that where property bequeathed note (1). specifically to several is subject to an en- 2 Clifton v. Burt, 1 P. Will. 678, 679, cumbrance paramount to testator's title, and Cox's note ; Haslewood v. Pope, 3 P. and the share of one is seized, the doc- Will. 323. trine of marshalling does not apply, see s Hyde v. Hyde, 3 Ch. 155 ; Masters Peeples ». Horton, 39 Miss. 406. Where v. Masters, 1 P. Will. 422 ; Bligh v. Earl one partner bequeathed to his copartner of Darnley, 2 P. Will. 620; Clifton v. " all " his " share " of certain partnership § 565-566 c] ADMINISTRATION. 555 [* 566 b. If there be a general gift of legacies in a will, fol- lowed by a gift of the " residue," or " rest," or " remainder," and especially where all these terms are used with reference both to real and personal estate, the legacies will be regarded as a charge upon the realty. And if the residuary devisee mortgage the real estate, the mortgagee will hold subject to the legacies. 1 § 566 c. So where legacies are directed to be paid out of the estate of the testator, the real estate is sufficiently charged. 2 So, also, where the lands are devised to the executors, who are directed to pay the legacies. 3 ] leasehold, and the assets of the firm were not sufficient to pay dehts, hut both part- ners were amply solvent : Held, that .the legatee was not entitled to hare the moiety of leasehold exonerated from the firm debts, and that the bequest was only of what might remain after payment of such debts. Earquhar v. Hadden, L. R. 7 Ch. App. 1.] 1 [*Greville v. Browne, 5 Jur. n. s. 849; Dey v. Dey, 4 C. E. Green, 137. But see Laurens v. Bead, 14 Rich. (S. C.) Eq. 245; Myers v. Eddy, 47 Barb. (N. Y.) 263. Where the devise of the residue is "subject" to payment of an annuity, that is a charge. Healey v. Toppan, 45 N. H. 243. And that simple residuary devise after giving legacies im- plies a charge, see Becker v. Kehr, 49 Penn. St. 223. 2 Cox v. Corkendall, 2 Beasley, 138. 8 Boid. Where a testator has shown an intention to create a mixed fund, out of which legacies are to be paid, they will be payable pro rata out of real and per- sonal estate. So where discretionary power to sell real and personal estate was given to executors, and they were directed to pay certain legacies out of residuary real and personal estate, and the moneys arising from sale thereof : Held, that the legacies were payable pro rata out of realty and personalty. Allan v. Gott, L. R. 7 Ch. App. 439. And where a legacy is treated as a debt by testator, and is charged together with debts upon all the estate, even lands afterwards specifically devised are charged. Mannox v. Greener, L. R. 14 Eq. 456. And see Brant's Will, 40 Miss. 266, where testator directed his debts to be paid generally, without charging any particular fund, and then disposed by specific bequest and specific devise of his whole estate, and it was held that the realty and personalty must contribute ratably. And where all the property is given to the executors for purposes of the will, they being directed first to pay debts, and the personalty is insufficient, the real estate specifically devised must contribute ratably with that descended to the heir. Stead v. Hardaker, L. R. 15 Eq. 175. Where the personal estate is all disposed of by will, and a legacy is made a charge on real estate devised, the personal estate is exonerated as to such legacy. Larkin v. Mann, 53 Barb. (N. Y.) 267. In Massachusetts pecuniary legacies are a charge upon the residuary real estate, when there is a deficiency of personal assets, though by the will directed to be paid out of personal es- tate. Wilcox !>. Wilcox, 13 Allen, 252. But the intent to charge the realty must be shown by mingling real and personal estate in a, residuary clause or in some other way. See Gerken's estate, 1 Tucker (N. Y. Surr.), 49; Roman Catholic, &c, Church v. Wachter, 42 Barb. (N. Y.) 43; Okeson's Appeal, 59 Penn. St. 99 ; Mellon's Appeal, 46 Penn. St. 165 ; Gallagher's Appeal, 48 Penn. St. 121. And as to what is evidence of intent, see Leigh v. Savidge, 1 McCar. 124. In order to charge real estate specifically devised with a legacy of money, in case of deficiency of assets, the intent must be clear. Glass v. Dunn, 17 Ohio (n. s.), 413 ; Geiger v. Worth, ib. 564. Okeson's Appeal, 59 Penn. St. 99.] 556 EQUITY JURISPRUDENCE. [CH. IX. § 567. The doctrine adopted in all these cases, of allowing one creditor to stand in the place of another, having two funds to resort to, and electing to take satisfaction out of one, to which alone an- other creditor can resort, was probably transferred from the civil law into equity jurisprudence. It is certainly founded in principles of natural justice ; and it early worked its way, under the title of substitution, into the civil law, where it was applied in a very large and liberal manner. But upon this subject we shall have occasion to speak hereafter in another place. 1 § 568. There are other cases in which the marshalling of assets is in like manner enforced in courts of equity ; as, for instance, in favor of the widow of a person deceased. After the death of the husband, his creditors cannot take his widow's necessary ap- parel in satisfaction of their debts. 2 With this exception, a widow's paraphernalia are generally subject to the payment of the debts of her husband. 3 But, in favor of the widow, and to preserve her paraphernalia, courts of equity will interfere, by turning creditors entitled to proceed against real assets or funds, over to these assets and funds for satisfaction. And if the para- phernalia have been actually taken by creditors in satisfaction of their debts, the widow will be allowed to stand in their place, and the assets will be marshalled so as to give her a compensation pro tanto.* § 569. In speaking of the marshalling of assets in cases of lega- cies, whether specific, or residuary (when the latter are entitled to the benefit), it must be understood, that the legacies are to private persons, taking for their own benefit ; and not legacies for charity, either directly, or through the instrumentality of a trustee or lega- tee. In general, legacies of personal property to charitable uses are valid in point of law. But since the statute of 9th George II. ch. 36, in England, legacies or bequests by will to charitable uses, payable out of real estate, or charged on real estate, or to arise from the sale of real estate, are utterly void. And courts of equity following out the intent and object of the statute, have refused to 1 See Cheeseborough v. Millard, 1 s Ram on Assets, ch. 10, § 1 ; 2 Black. Johns. Ch. 412, 413, and ante, § 494, on Comm. 436 ; Toller on Executors, B. 3, the subject of contribution between sure- ch. 8, p. 421, 422, 423. ties. Post, § 635, 636, 637. * Earn on Assets, ch. 18, p. 353, 354, 2 2 Black. Comm. 436 ; Noy*s Maxims, and the cases there cited ; Aldrich v. ch. 49 ; Townshend v. Windham, 2 Ves. Cooper, 8 Ves. 397 ; Incledon v. North- 7. cote, 3 Atk. 438. § 567-571.] ADMINISTRATION. 557 interfere in favor of legatees of personal property for charity, by marshalling assets for this purpose in any case whatever ; as, by throwing the debts or legacies on real assets for payment; or, by allowing the charity legatees to stand in the place of any cred- itor or legatee who has exhausted the personal estate, against the real assets. 1 § 570. Hitherto we have been speaking of marshalling assets in favor of creditors, legatees, or widows. But it is not to be under- stood, that these are the only persons entitled to the benefit of this wholesome doctrine of courts of equity. Heirs-at-law and devisees are, in a great variety of cases, entitled to the protection [* result- ing from the just application of this equitable remedy] . Thus, for instance, if an heir or devisee of real estate is sued by a bond- creditor, he may, in many cases, be entitled to stand in the place of such specialty creditor against the personal estate of the deceased testator or intestate. 2 § 571. In order more fully to comprehend the nature and limi- tations of this doctrine, it is necessary to state, that, in the view of courts of equity, the personal estate of the deceased constitutes the primary and natural fund for the payment of his debts ; and they will direct it to be applied in the first instance to that purpose, unless from the will of the deceased or from some other controlling equities, it is clear that it ought not to be so applied. 3 But, in the order of satisfaction out of the personal estate of the deceased, if it is not sufficient for all purposes, creditors are preferred to lega- tees ; specific legatees are preferred to the heir and devisee of the real estate, charged with specialties, or with the payment of debts ; 4 and specific legacies are liable to be applied in payment of specialty debts in priority to real estate devised ; 5 the devisee of mortgaged 1 Earn on Assets, ch. 18, § 3, p. 346 it. And see Gaskins v. Rogers, L. B. 2 to 353 ; Mogg v. Hodges, 2 Ves. 52 ; Eq. 284 ; Macdonald v. Macdonald, L. E. Attorney-General a. Tyndall, Ambl. 614 ; 14 Eq. 60.] B. o. 2 Eden, 207 ; Clifton v. Burt, 1 P. 2 Mogg o. Hodges, 2 Ves. 52 ; Galton Will. 670, Cox's note ; Eidges v. Morri- v. Hancock, 2 Atk. 424, 425. son, 1 Cox, 189 ; Toller on Executors, 8 See Co. Litt. 208 6, Butler's note, 106. B. 3, ch. 8, p. 423 ; Attorney-General v. * 2 Eonbl. Eq. B. 3, ch. 2, § 3, 4, 5, and Winchelsea, 3 Bro. Ch. 380, and Belt's notes (e), (/), (g), (A); Cope o. Cope, 2 note (3) ; Attorney-General v. Hurst, 2 Salk. 449. Cox, 364 ; post, 2 Eq. Jurisp. § 1180. 5 Cornwall *. Cornwall, 12 Sim. 298. [But see Wlgg v. Nieholl, L. E. 14 Eq. [But see Tombs v. Eoch, 2 Collyer, 490, 92, where assets were marshalled accord- where it was held that the amount neces- ing to direction of testator, so as to give sary to complete the payment of the spe- the impure personalty to such of several cialty debts must be contributed ratably charities named as legatees as could take by the specific legatees and devisees. See 558 EQUITY JURISPRUDENCE. [CH. IX. premises is preferred to the heir-at-law of descended estates ; 1 and a fortiori the devisee of premises not mortgaged is preferred to the heir-at-law. 2 In case unencumbered lands and mortgaged lands are both specifically devised, but expressly after the payment of all debts, they are to contribute proportionally in discharge of the mortgage. 3 Where the equities of the legatees and devisees are equal, which (as we' have seen) is sometimes the case, courts of equity remain neutral, and silently suffer the law to prevail. 4 But, where the personal assets are sufficient to pay all the debts and legacies and other charges, there the heir or devisee, who has been compelled to pay any debt or encumbrance of his ancestor or testator, binding upon him, is entitled (unless there be some other equity, which repels the claim) to have the debt paid out of the personal assets, in preference to the residuary legatees or dis- tributees. Thus, for instance, if a specialty debt or mortgage of an ancestor or testator is paid by the heir or devisee, he is entitled to have it paid out of the personal assets in the hands of the ex- ecutor, unless the testator, by express words or other manifest intention, has clearly exempted the personal assets from the payment. 5 And the personal assets are liable, in such cases of also Gervis v. Gervis, 14 Sim. 654, where Slater, 8 Ves. 294, 303; and in Mr. Cox's Cornwall v. Cornwall was overruled, note to Howell v. Price, 1 P. Will. 294; Tombs v. Roch was followed in Hensman and Evelyn v. Evelyn, 2 P. Will. 664 ; v. Eryer, L. R. 3 Ch. 420. But see Dug- Bootle v. Blundell, 1 Meriv. 215 to 238; dale v. Dugdale, L. R. 14 Eq. 234 ; Collins Ram on Assets, ch. 28, § 1 to 4, ch. 29, v. Lewis, L. R. 8 Eq. 708.] § 1 to 4. See the Reporter's note to Phil- 1 Toller on Executors, B. 3, ch. 8, lips v. Parker, 1 Tamlyn, 136, 143. p. 418 ; Howell v. Price, 1 P. Will. 294, 5 2 Fonbl. Eq. B. 3, ch. 2, § 1, and Mr. Cox's note ; Cope v. Cope, 2 Salk. note (a) ; 1 Mad. Pr. Ch. 474, 475 ; Toller 449, Mr. Evans's note. Lord Hardwicke on Executors, B. 3, ch. 8, p. 418 ; Howell at first decided otherwise in Galton v. Han- v. Price, 1 P. Will. 291, 294, and Cox's cock, 2 Atk. 424, but afterwards altered note (1); Cope . Lipscomb, L. R. 7 Eq. 501.] 101 ; Walker v. Jackson, 2 Atk. 624, 625 ; 2 Bartholomew v. May, 1 Atk. 487 ; Gray v. Minnethorp, 3 Ves. 103 ; Bootle Tweedale v. Coventry, 1 Bro. Ch. 240; v. Blundell, 1 Meriv. 194, 210, 224 ; Milnes Howell a. Price, 1 P. Will. 294, Cox's v. Slater, 8 Ves. 293, 303. [A direction note; Serle v. St. Eloy, 2 P. Will. 386. that debts shall be paid exclusively out [Under Locke King's Act and Amend- of real estate exonerates the personal ment Act (17 & 18 Vict. c. 113, and 30 & estate. See Forrest v. Prescott, L. R. 10 31 Vict. c. 69), the person taking an Eq. 545. And see Beaumont v. Oliveira, " interest in land " takes it cam onere, un- L. R. 6 Eq. 534. Proceeds of foreign less a " contrary intent " is shown, and a realty sold under order of court are pure direction for payment of debts generally personalty. Ibid.] 560 EQUITY JURISPRUDENCE. [CH. IX. fore, of courts of equity, although sometimes delivered in one form, and sometimes in another, is (as Lord Hardwicke has expressed it) that the personal estate shall be first applied to the payment of debts, unless there be express words, or a plain intention of the testator to exempt his personal estate, or to give his personal estate as a specific legacy ; for he may do this, as well as give the bulk of his real estate by way of specific legacy. 1 § 574. But, although the personal estate is thus decreed the general and primary fund for the payment of debts, and still remains so, notwithstanding the real estate is also collaterally chargeable ; yet the rule is otherwise, or rather is differently ap- plied, where the charge of the debt is principally and primarily upon the real estate, and the personal security of covenant is only col- lateral ; for the primary fund ought in conscience, in all cases, to exonerate the auxiliary fund. 2 The debt or encumbrance may be in its nature real, or it may become so by the act of the person who has the power of charging both the real and the personal funds ; or the land, although it be auxiliary only to the personal estate of the original contractor of the debt or encumbrance, may yet become the primary fund, as between itself and the personal estate of another person, who may take the land, either by descent or pur- chase, subject to the charge. In both these cases the personal estate is charged (if at all) only as a security for the land ; and it ought to have the same measure of equity as the land is entitled to, when it is pledged as a security for a personal debt. 3 § 575. The first class of cases may be illustrated by the case of a jointure or portion, to be raised out of lands by the execution of a power. In such a case, notwithstanding there may be a personal covenant or agreement to raise the jointure or portion to the stipu- lated amount ; yet the charge, when raised, is to be deemed a pri- mary charge on the lands, and the personal estate of the covenantor only security therefor. In other words, although the covenantor is the original contractor, yet the charge, being in its nature real, and the covenant only an additional security, the land will be 1 Walker v. Jackson, 2 Atk. 625 ; ante, where Scott v. Beecher, 5 Mad. 96, and § 556 ; [Powell c. Riley, L. E. 12 Eq. Lord Ilcheater v. Carnarvon, 1 Beav. 209, 175]. are remarked on. I borrow this lan- 2 See Co. Litt. 208 b, Butler's note, guage and the cases which illustrate it, 106 ; Lechmere v. Charlton, 15 Ves. 197, from the valuable note of Mr. Cox to 198. Evelyn v. Evelyn, 5 P. Will. 664, note 3 See Earl of Clarendon v. Barham, 1 (1). See also Mr. Cox's note to Howell Younge & Coll. N. R. 688, 711, 712, v. Price, 1 P. Will. 294, note (1). § 573-576.] ADMINISTRATION. 561 decreed to bear the burden, in exoneration of tbe personal estate. 1 The same principle will apply to pecuniary portions, to be raised in favor of daughters, in a marriage settlement, out of lands placed in the hands of trustees for this purpose, although there be a personal covenant, also, of the settlor to have the portion thus raised. 2 § 576. The second class of cases may be illustrated by the com- mon case of a mortgage created by an ancestor, and the mortgaged estate descending from his heir. There, although the heir should become personally bound to pay the mortgage, yet his personal estate would not be liable to be charged in favor of any person who should derive title by descent under him to the mortgaged premises, subject to the mortgage. For the debt was not originally contracted by him ; and it was, as to him, primarily chargeable on the land ; and even his covenant to pay the mortgage would only be considered as a security for the debt. 3 Therefore, where 1 Coventry v. Coventry, 9 Mod. 13; s. c. 2 P. Will. 222; 2 Fonbl. Eq.. B. 3, ch. 2, § 2, note (6). 2 Edwards v. Freeman, 2 P. Will. 435 ; Evelyn u. Evelyn, 2 P. Will. 664; Mr. Cox's note ( 1 ) ; Ward v. Dudley & Ward, 2 Bro. Ch. 316; s. o. 1 Cox, 438; Wilson v. Darlington, 1 Cox, 172 ; Duke of An- caster v: Mayor, 1 Bro. Ch. 454, 464, and Belt's note (2) ; Bassett v. Percival, 1 Cox, 268 ; 2 Fonbl. Eq. B. 3, ch. 2, § 2, note (6). See Lechmere v. Charlton, 15 Ves. 197, 198. 8 Cope v. Cope, 2 Salk. 449 ; Evelyn v. Evelyn, 2 P. Will. 664, and Mr. Cox's note (1), and also his note (1) to Howard v. Price, 1 P. Will. 294 ; Leraan v. Newn- ham, 1 Ves. 51 ; Lacam v. Mertins, 1 Ves. 312 ; Ancaster v. Mayor, 1 Bro. Ch. 454, 464, and Belt's note (2) ; Lawson v. Hud- son, 1 Bro. Ch. 58, and Mr. Belt's note. Earl of Clarendon i\ Barham, 1 Younge & Coll. N. R. 688, 711, 712. In this case Mr. Vice-Chancellor Bruce said : " I have, I think, only further to consider whether the Island estate, as it now stands, is the prior or the secondary fund for the pay- ment of the Island mortgage debt. To the discharge of an ordinary debt due from Mr. Joseph Foster Barham, his per- sonal estate ought, 'I apprehend, in the ordinary course, to be first applied. It has been contended, however, by the eq. jue. — vol. i. 36 plaintiffs, that with regard to the sum secured on the Island estate, this cannot be, and that to the payment of that sum the Island estate must primarily be ap- plied. The first reason assigned for this is, that there is evidence in the cause showing (as the plaintiffs insist) that, in point of fact, Mr. John Barham intended that, as between the personalty and the mortgaged realty liable to this debt, the latter should be the prior fund to be ap- plied. I am unable, however, to discover any such evidence. It is true, that in my opinion, there was an absence of intention on his part, that any part of the capital of his mother's fortune should be consid- ered as either satisfied or extinguished. But this does not appear to me to amount to any thing for the present purpose. He could not as to the other persons in- terested in Lady Caroline's fortune, with- out their consent (a consent neither asked nor obtained, nor probably thought of), relieve any portion of his father's assets from the liability under which the whole of those assets was to make good that fortune ; and I do not see any ground whatever for saying that he ever in fact indicated any wish or design, that any one part should wholly or partially in demnify any other part of the assets in respect of it. The other assigned reason is, that, independently of any proof of 562 EQUITY JURISPRUDENCE. [CH. IX. land descended to the wife, subject to a mortgage made by her father, and on an assignment of the mortgage, the husband cove- actual intention, the united characters of acting executor and sole residuary lega- tee, as well as heir and devisee of his father, having rendered Mr. John Barham solely and equally interested in the whole of the funds from which the fortune was due, it is a necessary consequence that the portion of those funds specifically pledged, though not exclusively liable for its payment, must bear the burden of the pledge without indemnity or contribution. The necessity of such a consequence is not obvious to my apprehension. The general rule is, that <: pledge or security for a debt, though having its full opera- tion in favor of the creditor, does not take away the character, of debt, and neither excludes him from any other remedy, nor changes or affects the mode in which as between those who take the debtor's property, subject to his debts, that property is to be applied. [Mc- Lenahan u. McLenahan, 3 C. E. Green, 101.] Generally, with regard to such a question, the case is dealt with as if the pledge or security did not exist. I do not forget. the distinctions or exceptions estab- lished or recognized in Lutkins v. Leigh (Cas. temp. Talb. 53), Halliwell v. Tan- ner (1 Russ. & M. 633), Wythe v. Henni- ker (2 Myl. & C. 635), and the authorities to which reference is there made, dis- tinctions or exceptions proving the rule, but otherwise seeming to me to have no place in the present case. If the mere fact of the union of interests were mate- rial, it would have had its operation and effect, though Mr. John Barham had died within an hour of his father's death ignorant of it. In that case there might have arisen, and as matters are there may arise, an absolute necessity for deciding which is the first fund for paying an unsecured specialty debt due from Mr. Joseph Poster Barham. Suppose such a creditor in existence ; it would be contra- ry to all principle to hold that his caprice or election should decide between real estate now belonging to one person, and personal estate now belonging to another, which of the two is finally to bear the burden. The court must decide in such a case. And on what ground could it be held, that the personal estate ought not, as between that and the real estate, to be first applied 1 What could have taken place in the event that I have sup- posed, — what has, in fact, taken place to change the ordinary course as to such an unsecured debt? In my opinion, nothing. If so, in the absence of proof of actual intention, why should the mort- gage or pledge make any difference? Yet, if the plaintiffs' contention is right, they would, in the event of the mortgagee's recovering, as it is admitted that they are entitled to recover their debt against the general personal estate of Joseph Foster Barham, be entitled to stand in the mort- gagee's place against, or be indemnified by the Island estate. The foundation of such a state of things in principle I am unable to see. Agreeing entirely with the doctrine laid down in Bagot v. Oughton (1 P. Will. 347), and Evelyn v. Evelyn (2 P. W. 659), which has been recognized in many other cases (par- ticularly one in this family, Barham o. Lord Thanet, 3 M. & K. 607), I do not see any clear and irresistible reason for not holding that an executor, who, being also sole residuary legatee, has received more personal estate than enough to pay all the funeral and testamentary ex- penses, and debts and liabilities of every description, as well as legacies, becomes himself substantially debtor to the cred- itors of the testator. And whether such an executor is sole executor or survived by a co-executor, I apprehend that the doctrine of Lord Chief Baron Gilbert, Lex Prat. 315, equally applies in princi- ple. The case also of Lord Belvidere v. Rochfort (5 Bro. P. C. 299), in the House of Lords (though I am aware of what Lord Thurlow has in Tweddell K.Tweddell (2 Bro. C. C. 101), and Lord Alvan- ley in Woods v. Huntingford (3 Ves. 130), said of that case), may be thought to have at least a considerable bearing the same way and consequently against the plaintiffs. Lord Thurlow, who, as lead- ing counsel, signed the case for the suc- cessful party, the respondent in Lord Belvidere v. Rochfort, appears to have considered that the House of Lords held, § 576.] ADMINISTRATION. 563 nan ted to pay the money to the assignee ; it was decreed that the husband's personal estate should not exonerate the mortgaged prem- ises ; for the debt was originally the father's ; and the husband's covenant was only collateral security therefor. 1 So, where a mort- but ought not to have held, that the mortgage debt in question there had been made the debt of Kobert Rochfort, the grandfather, as between his real and his personal estate; and he is reported to have said, "In that case George had a fee-simple in the estate ; he was capable of giving it after the charges were ex- tinguished.' But J am not at all per- suaded that he dissented from the doctrine to be found in Gilbert, and upon which doc- trine the printed cases in Lord Belvidere v. Kochfort, and the statements of Lord Thurlow and Lord Alvanley, in Tweddell v. Tweddell, and Woods v. Huntingford, show, if not the certainty, at least a very high degree of probability, that in Lord Belvidere's case, both Lord LifEord and the House of Lords meant to act and did act independently of Lord Jocelyn's de- cree, and not by reason or in consequence of what Lord Jocelyn had done. Nor can I see that Perkyns v. Bayntum (2 P. Will. 564, n.), as to which I have exam- ined the Registrar's book, is at variance with this doctrine. In Perkyns v. Bayn- tum, no account was sought of the per- sonal estate of Sir William Osbaldistone, who had died a quarter of a century be- fore the suit. What was its amount, whether it was considerable or inconsid- erable, whether as to his personal estate, in fact, he died solvent or insolvent, was not stated, and does not appear. The point in Gilbert seems not to have been raised or touched in that case. Upon the whole, thinking the opinion of Lord Chief Baron Gilbert well founded in principle, and corroborated, if touched, by Lord Belvidere's case, I should, had the cases of Scott v. Beecher (5 Mad. 96), Evans v. Smithson (not reported), and Lord Ilches- ter v. Lord Carnarvon (1 Beav. 269), not existed, have held and decided that the personal estate of Joseph Foster Barham, and therefore in substance the personal estate of John Barham, is the first fund for the payment of the mortgage on the Island estate. Consistently, however, with the opinions which appear to have been expressed judicially by Sir John Leach, Lord Lyndhurst, and Lord Langdale, in these three cases, I apprehend that I can- not so decide. Feeling the respect due from me to these authorities, independ- ently of Lord Lyndhurst's present posi- tion, deferring to them, and not upon this point acting in accordance with my own opinion, I direct the insertion in the de- cree of a declaration, that the Island estate is the first fund for the payment of the Island mortgage. The property which I have called the Island estate, subjected to this mortgage for 10.773Z. 6s. 2d., may possibly not be wholly real estate. It may include some personalty, — a remark which I do not mean as ex- tending to the Island and compensation money, which, as I have said, I cannot hold to have been or to be ascribed, or applied, or applicable, otherwise than merely as part of the general mass of the general assets of Joseph Foster Bar- ham, or general personal estate of John Barham, this being, as it seems to me, a consequence of the manner in which, and expressed title under which, he received it, and of his conduct in all respects. His father had nothing more than a life-inter- est in the benefit of the Island mortgage. Before concluding, I may observe, that the reference which I have made to Evans v. Smithson has been occasioned by my entire reliance upon the authen- ticity of the information from which Mr. Tinney's statement of that case was made, and my supposition that Lord Lyndhurst's view of the law as to a vendor's lien agreed with that of Sir W. Grant, in Trimmer v. Bayne (9 Ves. 209), and of Sir L. Shadwell in Sproule v. Prior (8 Sim. 189). It seems that the passage in Gilbert was brought under his lordship's notice, but not Lord Belvidere's case, and that neither was cited before Sir J. Leach or the present Master of the Rolls." 1 Ibid. ; Bagot v. Oughton, 1 P. Will. 347. See Gooch v. Gooch, 8 Eng. Law & Eq. 141. 564 EQUITY JURISPRUDENCE. [CH. IX. gaged estate is purchased by an ancestor, subject to the mortgage, and of course so much less is paid for it, as the mortgage amounts to ; there upon a descent cast, if it be a fee, "or upon devolution upon executors or legatees, if it be a leasehold estate, the personal estate of the purchaser will not be held bound to exonerate the mortgaged premises from the mortgage ; for it is not the personal debt of the purchaser. 1 § 577. These illustrations may suffice to explain some of the more important doctrines of courts of equity upon this complicated subject of the marshalling of assets (for, in a work like the present, it is impossible to examine all of them minutely) 2 , and to show upon what nice presumptions and curious analogies they sometimes pro- ceed, some of which (to say the least of them) are sufficiently arti- ficial, and elaborate, and subtile. The manner in which assets are now generally marshalled in the payment of debts may be arranged in the following order. First, the general personal estate is applied to the payment of debts, unless exempted expressly, or by plain implication. Secondly, any estate particularly devised for the payment of debts, and only for that purpose. Thirdly, estates descended to the heir. Fourthly, estates specifically devised to particular devisees, although charged with the payment of debts. 3 § 578. This review of the jurisdiction of courts of equity over the administration of assets, however imperfect and brief, is quite sufficient to establish the truth of the remarks already stated, that the jurisdiction is not wholly and solely dependent upon the mere fact that there exists a constructive trust of the funds in the hands of the personal representative, requiring them to be properly applied and distributed. But there are other and numerous sources of jurisdiction collaterally connected with it ; such as the necessity 1 Ancaster v. Mayor, 1 Bro. Ch. 454, s Davies v. Topp, 1 Bro. Ch. 526 ; and Mr. Belt's note (2); Tweddell v. Donne v. Lewis, 2 Bro. Ch. 263; Har- Tweddell, 2 Bro. Ch. 101, and Mr. Belt's wood v. Oglander, 8 Ves. 106, 124 ; Milne note; Butler *. Butler, 5 Ves. 534,538; v. Slater, 8 Ves. 293,303; Livingstone Cumberland v. Codrington, 3 Johns. Ch. Newkirk, 3 Johns. Ch. 319; 4 Kent, Comm. 229; Mr. Cox's note to Howell v. Price, 1 Lect. 65, p. 420, 421 (4th edit.) ; 1 Mad. P. Will. 294, and his note to Evelyn v. Pr. Ch. 474 ; Earn on Assets, ch. 30, p. Evelyn, 2 P. Will. 664 ; 2 Fonbl. Eq. B. 374 ; Jeremy on Eq. Jurisd. B. 3, Pt. 2, 3, ch. 2, § 2, note (6) ; 4 Kent, Comm. ch. 5, p. 524, 537 to 643. See ante, § 566 Lect. 65, p. 420, 421 (4th edition). c, note (3). [See Gully v. Holloway, 63 2 See other cases, 2 Fonbl. Eq. B. 3, N. C. 84 ; Verdier u. Verdier, 12 Bich. ch. 2, § 1, 2, 3, and notes; Harwood v. (S. C.) Eq. 138; Mitchell v. Mitchell, 21 Oglander, 8 Ves. 106, 124 ; Milnes o. Md. 244. See § 566 c, note (3).] Slater, 8 Ves. 293, 303. § 576-579.] ADMINISTRATION. 565 of a discovery, and taking accounts, and cross equities by substi- tution and otherwise, existing in a great variety of cases, in very complicated forms, all of which are, or may be, necessary to be examined, in order to a full and due administration of the estate. 1 Indeed, the whole topic of marshalling assets seems properly to belong rather to the peculiar doctrines of courts of equity in regard to conflicting rights and equities, than to any notion of trust in the parties. § 579. Before quitting this subject, it may be useful to take notice of the interposition of courts of equity, in regard to the administration of assets, in cases where there is any alienation or waste of them on the part of the personal representative of the deceased. At common law, the executor or administrator is treated, for many purposes, as the owner of the assets, and has a power to dispose of and aliene them. 2 There is no such thing known as the assets in the hands of an executor being the debtor, or as a credi- tor's having a lien on them ; but the person of the executor, in respect to the assets which he has in his hands, is treated as the debtor. 3 At law, the assets of the testator may, perhaps, at least under special circumstances, be taken in execution for the personal debt of the executor, unless, indeed, there be some fraud or collu- sion between the execution creditor and the executor ; 4 as they cer- tainly may also be taken in execution for the debts of the testator. 5 But in courts of equity, the assets are treated as the debtor, or, in other words, as a trust fund, to be administered by the execu- tor for the benefit of all persons who are interested in it, whether they are creditors or legatees, or distributees, or otherwise inter- ested according to their relative priorities, privileges, and equi- ties. 6 1 Ante, § 542-543 a. [If by any acci- 152 ; McLeod v. Drummond, 14 Ves. 361 ; dent or mistake or misrepresentation of s. c. 17 Ves. 154, 168. the administrator, a creditor of an es- 4 Whale v. Booth, 4 T. R. 623, note ; tate has lost his remedy, he may have s. c. 4 Doug. 36 ; Farr v. Newnham, 4 relief in equity. Baldwin v. Dougherty, T. R. 621 ; McLeod v. Drummond, 17 39 la. 50 ; Burroughs o. McLain, 37 la. Ves. 154 ; Ray v. Ray, Cooper, 264. 189.J 6 Ibid. ; contra, McLeod v. Drummond, 2 Hill v. Simpson, 7 Ves. 166 ; Me- 17 Ves. 154, 168. Leod v. Drummond, 14 Ves. 353; s. c. 17 6 Farr v. Newnham, 4 T. R. 636, per Ves. 154, 168. Buller, J. ; Whale ». Booth, 4 T. R. 625, 8 Farr v. Newnham, 4 T. R. 621, 634 ; note ; s. c. 4 Doug. 36. [But where, un- Whale v. Booth, 4 T. R. 625, note ; s. c. der power in the will, the executors em- 4 Doug. 36 ; Nugent v. Gifford, 1 West, ploy the assets in trade, one to whom they 496, 497 ; s. c. 1 Atk. 463 ; s. c. 2 Ves. in course of such trade contract a debt 269. But see Hill v. SimpBon, 7 Ves. cannot bring a bill for administration of 566 EQUITY JURISPRUDENCE. [CH. IX. [* § 579 a. The executor, being a creditor of the estate, thereby comes, to sustain, virtually, the double relation of debtor and creditor. Hence the legal remedy is suspended, and equity will compel the other creditors to allow the executor to retain the sum due him, upon an equitable distribution of assets, according to his order of priority ; and will liquidate the claim, and determine all questions respecting it before the Master. 1 The executor will be allowed to retain the amount of a debt barred by the Statute of Limitations. 2 ] § 580. Still, however, courts of equity do not supersede the prin- ciples of law -upon the same subject. And, therefore, a sale made bond fide by the executor, for a valuable consideration, even with notice of there being assets, will be held valid, so that they cannot be followed by creditors or others, into the hands of the purchaser. 3 In this respect there is a manifest difference between the case of an ordinary trust, where notice takes away the protection of a bond fide purchase from the party, and this peculiar sort of trust, mixed up in some measure with general ownership. 4 To affect a sale or other transaction of an executor, attempting to bind the assets, so as to let in the claim of creditors and others, who are principally interested, there must be some fraud, or collusion, or misconduct, between the parties. 5 A mere secret intention of the executor to misapply the funds, unknown to the other party dealing with him, or a subsequent unconnected misapplication of them, will not affect the purchaser. He must be conusant of such intention, and design- edly aid or assist in its execution. 6 But in the view of courts of the estate, there being no suggestion of testator, see Ferguson v. Gibson, 14 Eq. insolvency ; his remedy is at law against 379.] the executors. Owen v. Delaraere, L. B. 8 Ibid. ; McLeod v. Drummond, 17 15 Eq.134.] Ves. 154, 155, 168; Keane v. Roberts, 4 1 [* Adams v. Adams, 22 Verm. 50. Mad. 357. a Hill u. Walker, 4 Kay & Johnson, * Mead v. Lord Orrery, 3 Atk. 238, 239, 166. The dictum of Bayley, J., in Mc- 240. Culloch v. Dawes, 9 Dow. & E. 43, that an 6 Hill v. Simpson, 7 Ves. 152 ; Nugent executor by paying a debt barred by the v. Gifford, 1 Atk. 463, cited 4 Bro. Ch. Statute of Limitations makes himself 136, and 17 Ves. 160, 163; Andrews v. liable to those interested in the estate is Wrigley, 4 Bro. Ch. 125 ; Mead v. Lord here disapproved. But this, it would Orrery, 3 Atk. 235, 238, 239 ; McLeod v. seem upon principle, must depend upon Drummond, 14 Ves. 355 ; 17 Ves. 154, circumstances, to be judged of by the 168, 169, 170, 171. courts of equity. Hill •:. Walker, supra. « McLeod v. Drummond, 14 Ves. 355 ; But there is no right of retainer out s. c. 17 Ves. 154, 158, 169, 170, 171 ; An- of equitable assets. Bain u. Sadler, drews v. Wrigley, 4 Bro. Ch. 125 ; Scott L. R. 12 Eq. 570. And as to retainer, v. Tyler, 2 Bro. Ch. 431; 2 Dick. 724 j where executrix is surety for debt of Keane v. Roberts, i Mad. 357. § 579 0-581.J ADMINISTRATION. 567 equity, there is a broad distinction between cases of a sale or pledge of the testator's assets for a present advance, and cases of such a sale or pledge for an antecedent debt of the executor ; 1 for, in the latter case, the parties must be generally understood to co-operate in a misapplication of the assets from their proper purpose, unless that inference is repelled by the circumstances. 2 § 581. The general doctrine now maintained by courts of equity, upon this subject, cannot be better summed up than it is by a learned judge (Sir John Leach) in an important case. 3 " Every person " (said he) " who acquires personal assets by a breach of trust or a devastavit by the executor, is responsible to those who are entitled under the will, if he is a party to the breach of trust. Generally speaking, he does not become a party to the breach of trust by buying or receiving as a pledge for money advanced to the executor at the time, any part of the personal assets, whether specifically given by the will or otherwise; because this sale or pledge is held to be primd facie consistent with the duties of an executor. Generally speaking, he does become a party to the breach of trust, by buying or receiving in pledge any part of the personal assets, not for money advanced at the time, but in satis- faction of his private debt ; because this sale or pledge is primd facie inconsistent with the duty of an executor. I preface both of these propositions with the term ' generally speaking,' because they both seem to admit of exceptions." And it may be added, that, whenever there is a misapplication of the personal assets, and the assets or their proceeds can be traced into the hands of any per- sons affected with notice of such misapplication, there the trust will attach upon the property or proceeds in the hands of such per- sons, whatever may have been the extent of such misapplication oi conversion. 1 McLeod v. Drummond, 14 "Ves. 361, excess advanced above the value of the 362; s. c. 17 Ves. 154, 155, 158 to 171; pledge. Parhall o. Farhall, L. R. 7 Ch. Hill v. Simpson, 7 Ves. 152. App. 123. The money borrowed had been 2 Ibid. See also Mr. Roscoe's learned mostly misapplied, but lender had no note to Whale v. Booth, 4 Doug. 47, note, notice.] (66). * See Ram on Assets, ch. 37, § 4, p. 491, 8 Keane v. Roberts, 4 Mad. 357, 358. 492 ; Adair ,,. Shaw, 1 Seh. & Lei r. 261, See also Ram on Assets, ch. 37, § 4, p. 484 ; 262. The same principle may be further 2 Fonbl. Eq. B. 2, ch. 6, § 2, note (/) ; illustrated by the cases already men- Watkins. o. Cheek, 2 Sim. & Stu. 205. tioned, where creditors and others are [Though an executor has power to pledge permitted to sue the debtors of the de- assets for advances, it seems he cannot ceased, when they collude with the exec- create a debt against the estate for any utor or administrator, although they are EQUITY JURISPRUDENCE. [CH. IX. § 582. In cases where, during coverture, the assets of a feme covert executrix are wasted by the husband, and he then dies, no action at law lies by the creditors against the assets of the husband. But courts of equity will, in such a case, interfere, and relieve the creditors, upon the ground of the breach of trust in the husband, and his conversion of the assets of the wife's testator into funds in aid of his own assets. 1 § 583. And here we might treat of the nature and extent of the jurisdiction which courts of equity will exercise in regard to the assets of foreigners, collected under what is called an ancillary administration (because it is subordinate to the original adminis- tration), taken out in the country where the assets are locally sit- uate. This subject, however, has been largely discussed in another place, in considering the conflict of the laws of different countries upon the subject of administrations of property situate therein, and, therefore, it will be but very briefly taken notice of here. 2 In gen- eral, it may be said that, where a domestic executor or adminis- trator collects assets of the deceased in a foreign country, without any letters of administration taken out, or any actual administration accounted for in such foreign country, and brings them home, they will be treated as personal assets of the deceased, to be adminis- tered here under the domestic administration. 3 But where such assets have been collected abroad, under a foreign administration, not suable except by the executor or ad- him and his affairs during his lifetime, ministrator. Lord Brougham, in Holland or to hare aided his representative after v. Prior, 7 Mylne & Keen, 240, said : his decease, in withdrawing his estate " Although the general principle of the from his creditors, or to have undertaken court, for preventing multiplicity of suits, more directly, quasi representative of and avoiding circuity of proceeding, is to him." Ante, § 422 to 424 ; Story on Eq. bring all the parties concerned in the sub- Pleadings, § 178, 514 ; Newland v. Cham- ject-matter before it, and to adjudicate pion, 1 Ves. 106; Doran a. Simpson, 4 once for all among them ; and, although Ves. 651 ; Alsager v. Rowley, 6 Ves. 748; this would lead, in administering the as- Beckley v. Dorington, West, 169 ; White sets of deceased persons, to go beyond v. Parnther, 1 Knapp, 179, 226 ; Trough- the personal representatives, following ton v. Binkes, 6 Ves. 572. | So as to real the estate of the deceased, and taking estate subject to a charge. See Burwell note of his credits, and consequently v. Fauber, 21 Grat. (Va.) 446.] bringing forward his debtors ; yet the x Adair u. Shaw, 1 Sch. & Lefr. 261, practice of the court has prescribed 262, 263. bounds to the inquiry ; and accordingly, 2 See Story, Comm. on Conflict of the rule is, to stop short at the personal Laws, ch. 13, § 492 to 530. representatives, unless where there is in- 3 Dowdale's case, 6 Co. 47, 48 ; a. c. solvency, or where other parties stand in Cro. Jac. 55 ; Attorney-General y. Dia- such relation to the deceased, or his es- mond, 1 Cromp. & Jervis, 370 ; Erving's tate, or his representative, that they may case, 1 Cromp. & Jerv. 151 ; s. c. 1 Tyrw. be said either to have been mixed with 91. § 582-585.] ADMINISTRATION. 569 and such administration is still open, there seems much difficulty in holding, that the executor or administrator can be called upon to account for such assets under the domestic administration, un- less, perhaps, under very peculiar circumstances ; since it would constitute no just bar to proceedings under the foreign adminis- tration in the courts of the foreign country. 1 And, indeed, probates of wills and letters of administration are not granted in any country in respect to assets generally, but only in respect to such assets as are within the jurisdiction of the country by which the probate is established or the administration granted. 2 § 584. Where there are different administrations 3 granted in different countries, those which are in their nature ancillary are, as we have seen, generally held subordinate to the original admin- istration. But each administration is deemed so far independent of the other, that property received under one cannot be sued for under another, although it may, at the moment, be locally situate within the jurisdiction of the latter. Thus, if property is received by a foreign executor or administrator abroad, and afterwards remitted here, an executor or administrator appointed here could not assert a claim to it here, either against the person in whose hands it might happen to be, or against the foreign executor or administrator. The only mode of reaching it, if necessary for the purposes of due administration here, would be to require its trans- mission or distribution, after all claims against the foreign admin- istration, had been ascertained and settled abroad. 4 § 585. In relation to the mode of administering assets by executors and administrators, there are in different countries very different -regulations. The priority of debts, the order of pay- ments, the marshalling of assets for this purpose, and, in cases of insolvency, the modes of proof, as well as of distribution, differ in different countries. In some countries, all debts stand in an equal rank ; and in cases of insolvency, the creditors are to be paid pari passu. In others, there are certain classes of debts entitled to a priority of payment, and, therefore, deemed privileged debts. Thus, in England, bond-debts and judgment debts possess this 1 See Story, Comm. on Conflict of s This and the three following sec- Laws, eh. 13, § 512 to 519. But see Attor- tions are taken almost verbatim from ney-General v. Diamond, 1 Cromp. & Jerv. Story's Conflict of Laws, § 518, 524, 525, 370 ; Erving's ease, 1 Cromp. & Jerv. 151 ; 528. 1 Tyrw. 191. 4 Story's Conflict of Laws, § 518. 2 Ibid. 570 EQUITY JURISPRUDENCE. [CH. IX. privilege; and the like law exists in some of the States of this Union. Similar provisions may be found in the law of France, in favor of particular classes of creditors. On the other hand, in Massachusetts, and in many other States of the Union, all debts, except those due to the government, possess an equal rank and are payable pari passu. Let us suppose, then, that a debtor dies domiciled in a country where such priority of right and privilege exists, and that he has assets situate in a State where all debts stand in an equal rank, and administration is duly taken out in the place of his domicile, and also in the place of the situs of the assets. What rule is to govern in the marshalling of the assets ? The law of the domicile or the law of the situs ? The established rule now is, that, in regard to creditors, the administration of the assets of deceased persons is to be governed altogether by the law of the country where the executor or administrator acts, and from which he derives his authority to collect them ; and not by that of the domicile of the deceased. The rule has been laid down with great clearness and force on many occasions. 1 § 586. The ground upon which this doctrine has been estab- lished seems entirely satisfactory. Every nation, having a right to dispose of all the property actually situate within it, has (as has often been said) a right to protect itself and its citizens against the inequalities of foreign laws, which are injurious to their inter- ests. The rule of a preference, or of an equality, in the payment of debts, whether the one or the other course is adopted, is purely local in its nature, and can have no just claim to be admitted by any other nation which, in its domestic arrangements, pursues an opposite policy. And, in a conflict between our own and foreign laws, the doctrine avowed by Huberus is highly reasonable, that we should prefer our own. "In tali conflictu magis est ut jus nostrum, quam jus alienum, servemus." 2 § 587. In the course of administrations, also, in different coun- tries, questions often arise as to particular debts, whether they are properly and ultimately payable out of the personal estate, or whether they are chargeable upon the real estate of the deceased. In all such cases, the settled rule now is, that the law of the dom- icile of the deceased will govern in cases of intestacy ; and, in cases 1 Story's Conflict of Laws, § 524. 12.] See Pardo i\ Bingham, L. R. 6 Eq. |* See also Tucker v. Condy, 10 Kich. Eq. 485. 2 Story's Conflict of Laws, § 525. § 585-588.] ADMINISTRATION. 571 of testacy, the intention of the testator. 1 A case, illustrating this doctrine, occurred in England many years ago. A testator, who lived in Holland, and was seised of real estate there, and of con- siderable personal estate in England, devised all his real estate to one person, and all his personal estate to another, whom he made his executor. At the time of his death, he owed some debts by specialty, and some by simple contract, in Holland, and had no assets there to satisfy those debts ; but his real estate was, by the laws of Holland, made liable for the payment of simple contract debts, as well as specialty debts, if there was not personal assets to answer the same. The creditors in Holland sued the devisee, and obtained a decree for the sale of the lands devised for the payment of their debts. And then, the devisee brought a suit in England against the executor (the legatee of the personalty) for reimburse- ment out of the personal estate. The court decided in his favor, upon the ground, that in Holland, as in England, the personal estate was the primary fund for the payment of debts, and should come in aid of the real estate, and be charged in the first place. 2 § 588. Every ancillary administration is, upon principles of inter- national law, made subservient to the rights of creditors, legatees, and distributees, in the country where such administration is taken out, although the distribution, as to legatees and distributees or heirs, is governed by the law of the place of the testator or intes- tate's domicile. But a most important question often arises: What is to be done as to the residue of the assets, after discharg- ing all the debts and other claims of the deceased, due to persons resident in the country where the ancillary administration is taken out ? Is it to be remitted to forum of the testator's or intestate's domicile, to be there finally settled, adjusted, and distributed 1 [Where a domiciled Scotchman made realty : Held, that the legacy was payable a will directing his executors in India to in full. Macdonald v. Macdonald, L. R. pay £10,000 to his executors in Scotland 14 Eq. 60; and that law of domicile gov- for a hospital, charging his Indian real ems as to succession to personalty, see and personal estate therefor, and by the Lynch v. Provisional Government of law of India he had no right to make a Paraguay, L. R. 2 P. & M. 268. But bequest in charity, but by the same law where the question was as to marshalling the disposition of personal property was in favor of pecuniary legatees of one who to be according to law of domicile, and died domiciled in England, as against the the law of Scotland permitted gift of heir of his descended real estate in Scot- realty and personalty in charity, and had land, it was held that the law of Scotland no doctrine against marshalling in favor must govern. Harrison v. Harrison, L. R. of charity, and the Indian personalty 8 Ch. App. 342. amounted to £10,000, as did also the 2 Story's Conflict of Laws, § 528. 572 EQUITY JURISPRUDENCE. [CH. IX. among all the claimants, according to the law of the country of the domicile of the testator or intestate ? Or may creditors, leg- atees, and distributees of any foreign country come into the courts of equity, or other courts of the country, granting such ancillary administration, and there have all their respective claims adjusted and satisfied, according to the law of the testator's or intestate's domicile, or to any other law? And in cases of insolvency, or other deficiency of assets, what rules are to govern in regard to the rights, preferences, and priorities of different classes of claim- ants under the laws of different countries, seeking such distribution of the residue ? § 589. These are questions which have given rise to very ample discussions in various courts in the present age, and they have been thought to be not unattended with difficulty. It seems now, however, to be understood, as the general result of the authorities, that courts of equity of the country where the ancillary adminis- tration is granted (and other courts, exercising a like jurisdiction in cases of administrations), are not incompetent to act upon such matters, and to decree a final distribution of the assets to and among the various claimants having equities or rights in the funds, whatever may be their domicile, whether it be that of the testa- tor or intestate, or be in some other foreign country. The ques- tion, whether the court, entertaining the suit for such a purpose, ought to decree such a distribution, or to remit the property to the forum of the domicile of the party deceased, is treated, not so much as a matter of jurisdiction, as of judicial discretion, depend- ent upon the particular circumstances of each case. There can be, and ought to be, no universal rule on the subject. But every nation is bound to lend the aid of its own judicial tribunals, for the purpose of enforcing the rights of all persons having a title to the fund, when such interference will not be productive of injus- tice, or inconvenience, or conflicting equities, which may call upon such tribunals for abstinence in the exercise of the jurisdiction. 1 [* § 589 a. In a very late English case, 2 at the Rolls, where an 1 Harvey i». Richards, 1 Mason, 381 ; sable to restrain parties here from so Dawes u. Head, 3 Pick. 128 ; Story's dealing with the subject-matter of contro- Conflict of Laws, ch. 13, § 513, and the versy as to defeat the jurisdiction of the cases in note (2), ibid. [* It has been foreign court, that court having the ap- held, in some cases, that courts of equity propriate control of the matter in contro- will not entertain a bill in aid of the pro- versy. The Transatlantic Company v. ceedings in a foreign tribunal. Bent v. Pietroni, 6 Jur. x. ». 532. Young, 9 Sim. 180. But this rule is 2 Re Blithman, 12 Jur. u. s. 84; s. o. departed from when it seems indispen- Law Bep. 2 Eq. 23. § 588-5S9 c] ADMINISTRATION. 573 insolvent in Australia became entitled to a fund in court, and then died, it was held, that if his domicile were Australian, the Austra- lian assignees would be entitled to the fund ; but if English, his legal personal representatives would be entitled to it. Held also that, assuming the domicile to be English, notwithstanding the comity of nations, the fund should be paid to the legal personal representatives, against whom the Australian assignees might take such steps as they should be advised. § 589 b. And in general the English courts of equity will restrain the representatives and legatees of an estate, where the testator died domiciled in England, from taking proceedings in a foreign court to administer the personalty ; and they will not be allowed to take proceedings abroad, in regard to the administration of realty there located, if by so doing the administration to the personalty, in the domestic forum, will be embarrassed. 1 § 589 c. The courts of equity maintain bills to compel the re- funding of legacies paid where there arises a deficiency in the gen- eral personalty for the payment of debts. 2 And the courts of equity, in administration suits, will compel the residuary legatee to refund for the purpose of meeting unpaid legacies, even where the legatees are not parties to the suit, they having petitioned to come in before the master or chief clerk. 3 But where the funds were paid to the residuary legatee, while there remained in the hands of the executor ample funds to meet all prior claims, but which were subsequently wasted, it was held no decree could be made against the residuary legatee. But if the goods had been wasted before the payment made to the residuary legatee, he will be compelled to refund, and in such cases the burden of proof is upon those who call upon the residuary legatee or next of kin to refund money paid to them, to show that the deficiency existed at the time the payment was made to them. 4 ] 1 Hope v. Carnegie, 12 Jur. n. s. 284 ; (bill by general guardian of non-compos s. c. Law Rep. 1 Ch. App. 320. against special guardian, alleging mis- 2 But it seems the debts must have behavior, and praying receiver and been unknown to the executor or admin- account — jurisdiction maintained) ;Eree- istrator at the time of distribution, in land v. Dazey, 25 111. 294 (bill to admin- order to entitle him to relief. Moore v. ister estate — jurisdiction denied, except LeSuer, 33 Ala. 237. in special cases) ; Townsend b. Towns- 8 Prowse v. Spurgin, Law Hep. 5 Eq. end. 4 Cold. (Tenn.) 70 (bill to set up a 99. will — jurisdiction denied) ; Batchelder 4 Peterson v. Peterson, Law Rep. 3 v. Batchelder, 20 Wise. 452 (bill to en- Eq. 111. For cases where the jurisdiction force a trust under a will — jurisdiction of equity in matters of probate and ad- denied, on ground that adequate relief ministration was considered, see People might be had in the Probate Court).] I.-. Wayne Circuit Court, 11 Mich. 393 574 EQUITY JURISPRUDENCE. [CH. X. CHAPTER X. LEGACIES. I* § 590-592. Legacies not recoverable at common law. § 593. Gro,unds of equity jurisdiction. § 594. Not fully established until Lord Nottingham's time. § 595. Equity has exclusive jurisdiction where a trust is involved. § 596, 697. As where no disposition is made of personal estate, or in case of legacies. § 598, 599. As in case of married women, where security for support is required. § 600. So also in case of infants, to protect the fund. § 601. And where discovery for account is required. § 602. Or where legacies are charged on lands. § 603. May require the executor to give security, or pay money into court. § 604, 604 a. Security for legacies depending upon an intervening estate. § 606. Donatio mortis causa defined. § 606 a. Wherein it differs from a legacy and from a gift inter vivos. § 607. Derived from the civil law. § 607 a-607 d. What is the subject of such gifts. § 607 e, 608. Such gifts maybe made subject to a trust.] § 590. Another head of concurrent jurisdiction in equity is in regard to legacies. This subject has been, in part, incidentally treated before ; but it is proper to bring the subject more fully under review. It seems that, originally, the jurisdiction over per- sonal legacies was claimed and exercised in the temporal courts of common law ; or, at least, that it was a jurisdiction mixti fori, claimed and exercised in the county court, where the bishop and sheriff sat together. 1 Afterwards (at least from the reign of Henry III.), the spiritual or ecclesiastical courts obtained exclu- sive jurisdiction over the probate of wills of personal property ; and, as incident thereto, they acquired jurisdiction (though not exclusive) over legacies. 2 This latter jurisdiction still continues in the eeclesiastical courts ; though it is at present rarely exer- cised ; a more efficient and complete jurisdiction being, as we shall presently see, exercised by courts of equity. 3 i Swinb. on Wills, Pt. 6, § 11, p. 430, 2 Ibid. ; 3 Black. Comm. 98 ; Com. 431, 432 ; 2 Eonbl. Eq. B. 4, Pt. 1, ch. 1, Dig. Prohibition, G. 17 ; Bac. Abridg. § 1, and notes (a) and (b) ; 2 Black. Legacies, M. ; Atkins v. Hill, Cowp. 287. Comm. 491, 492 ; 3 Black. Comm. 61, 95, » Bac. Abridg. Legacies, M. ; 2 Roper 96 ; Marriott v. Marriott, 1 Str. 667, on Legacies, by White, ch. 25, § 2, p. 669, 670 ; 2 Roper on Legacies, by White, 693 ; 5 Mad. 357. ch. 25, p. 685; 1 Reeves, Hist, of the Law, 92, 308. § 590-592.] legacies. 575 § 591. In regard to legacies, whether pecuniary or specific, it is very clear, that no suit will lie at the common law to recover them, unless the executor has assented thereto. 1 If no such assent has been given, the remedy is exclusively in the ecclesiastical courts, or in the courts of equity. But in cases of specific legacies of goods and chattels, after the executor has assented thereto, the property vests immediately in the legatee, who may maintain an action at law for the recovery thereof. 2 The same rule has been attempted to be applied at law to cases of pecuniary legacies, where the executor had expressly assented thereto ; for it is agreed on all sides, that the mere possession of assets, without such assent, will not support an action. 3 There are certainly decisions which establish, that in the case of an express promise to pay a pecu- niary legacy in consideration of assets, an action will lie at law for the recovery thereof. 4 But these cases seem not to have been decided upon satisfactory principles; and, though they have not been directly overturned in England, they have been doubted and disapproved by judges, as well as by elementary writers. 5 § 592. The ground upon which these decisions have been doubted or denied is, the pernicious consequences which would follow from allowing such an action at law ; for courts of law, if compellable to entertain the jurisdiction, cannot impose any terms upon the parties. Thus, for instance, a suit might be maintained by a hus- band for a legacy given to his wife, without making any provision for her, or for her family ; whereas, a court of equity would require such a provision to be made. 6 1 Deeks v. Strutt, 5 T. R. 690. [*Nor .697 ; Bao. Abridg. Legacies, M. Gwillim's will an action lie in the common-law note. See also 3 Dyer, 264 b ; Beecker courts, to recover a distributive share in v. Beecker, 7 Johns. 99 ; Farish v. Wilson, an estate, after the decree of the Probate Peake, 73 ; Mayor of Southampton v. Court, unless it be upon the administra- Greaves, 8 T. K. 583 ; 2 Mad. Pr. Ch. 1, tor's bond. Howard & Wife v. Brown, 11 2, 3. Vt. 361.] 6 Deeks v. Strutt, 5 T. R. 692. An 2 Doe o. Gay, 3 East, 120 ; Paramore action at law for a pecuniary legacy has v. Yardley, Plowd. 539 ; Young v. Holmes, been maintained against an executor 1 Str. 70 ; 4 Co. 28 b. after his assent to the legacy, in some 8 Deeks v. Strutt, 5 T. R. 690 ; Doe v. of the courts of America. In some of Gay, 3 East, 120. the States, an action at law is ex- 4 Atkins v. Hill, Cowp. 284 ; Hawkes pressly given by statute. See Dewitt v. v. Saunders, Cowp. 289. Schoonmaker, 2 Johns. 243 ; Beecker v. 5 See Deeks v. Strutt, 5 T. R. 690; Beecker, 7 Johns. 99; Farwell v. Jacobs, Doe v. Gay, 3 East, 120; 2 Roper on 4 Mass. 634; Bigelow's Digest, Legacy, Legacies, by White, ch. 25, § 2, p. 696, C. 576 EQUITY JURISPRUDENCE. [CH. X. § 593. But, whether a pecuniary legacy is recoverable at law or not, after an assent thereto by an executor, it is very certain, that courts of equity now exercise a concurrent jurisdiction with all other courts in cases of legacies, whether the executor has assented thereto or not. 1 The grounds of this jurisdiction are various. In the first place, the executor is treated as a trustee for the benefit of the legatees ; and, therefore, as a matter of trust, legacies are within the cognizance of courts of equity, whether the executor has assented thereto or not. This seems a universal ground for the jurisdiction. 2 In the next place, the jurisdiction is maintain- able in all cases where an account or discovery or distribution of the assets is sought upon general principles. Indeed, Lord Mans- field seems to have thought that the jurisdiction arose as an inci- dent to discovery and account. 3 In the next place, there is, in many cases, the want of any adequate or complete remedy in any other court. 4 § 594. Obvious as some of these grounds are to found a general jurisdiction in equity in cases of legacies, it does not appear that the jurisdiction was familiarly exercised until a comparatively recent period. Lord Kenyon indeed has said, the jurisdiction over questions of legacies was not exercised in equity until the time of Lord-Chancellor Nottingham. 5 In this remark, Lord Kenyon was probably under some slight mistake ; for traces are found of an exercise of the jurisdiction as early as the time of Lord-Chan- cellor Ellesmere, in cases where the defendant answered the bill, and took no exceptions ; although he appears to have entertained the opinion that the ecclesiastical courts were more proper to give relief in cases of legacies. 6 But it is highly probable that the jurisdiction was not firmly established beyond controversy until Lord Nottingham's time. § 595. Indeed, in many cases, courts of equity exercise an ex- clusive jurisdiction in regard to legacies ; as, for instance, where the bequest of the legacy involves the execution of trusts, either express or implied ; or where the trusts, ingrafted on the bequest, are themselves to be pointed out by the court ; for (as we have 1 Franco v. Alvares, 3 Atk. 346. » Atkins v. Hill, Cowper, 287 ; 2 Mad. 2 2 Roper on Legacies by White, Pr. Ch. 1, 2. ch. 25, p. 685 ; Jeremy on Eq. Jurisd. B. 1, * 2 Mad. Pr. Ch. 1, 2, 3 ; Franco v. ch. 1, § 2, p. 104 ; Farrington v. Knightly, Alvares, 3 Atk. 346. 1 P. Will. 549, 554; Wind v. Jekyl, 1 P. 5 rjeeks v. Strutt, 5 T. R. 692. Will. 575 ; Hurst v. Beach, 5 Mad. 360 ; 6 2 Mad. Pr. Ch. 1, 2. 2 Mad. Pr. Ch. 1, 2. § 593-597.] LEGACIES. 577 seen) the spiritual courts cannot, any more than the temporal com- mon-law courts, enforce the execution of trusts. 1 § 596. It is upon this account, that where a testator, by hia will, has not disposed of the surplus of his personal estate, the spiritual courts have no authority to decree distribution of it ; for in such a case, the executor is at law entitled to it ; although, under circumstances, he may in equity be held to be a trustee for the next of kin. 2 And therefore it is, that if the spiritual courts attempt to enforce the payment of a legacy, which involves a trust, a court of equity will award an injunction in order to protect its own exclusive jurisdiction. 3 § 597. So, where the jurisdiction in the spiritual courts cannot be exercised in a manner adequate to protect the just rights of all the parties concerned in the case of a legacy, courts of equity will assume an exclusive jurisdiction, and grant an injunction to stay proceedings of the spiritual courts for such legacy. It was upon this account that injunctions were formerly granted by courts of equity to proceedings in the spiritual courts for a legacy, where 1 2 Roper on Legacies, by White, ch. 25, § 2, p. 693; Farrington v. Knightly, 1 P. Will. 549 ; Anon., 1 Atk. 491 ; Hill v. Turner, 1 Atk. 516 ; Attorney- General v. Pyle, 1 Atk. 435. [See Prescott v. More, 62 Me. 447, as to when assumpsit will lie and when a bill in equity.] 2 2 Mad. Pr. Ch. 1, 2, 3; Farrington v. Knightly, 1 P. Will. 549, 550, 553, 554, and Mr. Cox's note (1) ; id. 550; Petit v. Smith, 1 P. Will. 7 ; Hatton v. Hatton, 2 Str. 865 ; ante, § 536, 537. At law, the appointment of an executor is deemed to be a virtual gift to him of all the surplus of the personal estate, after the payment of all debts and legacies. But in equity he is considered a mere trustee of such surplus, for the benefit of the next of kin, if, from the nature and circum- stances of the will, a presumption arises that the testator did not intend that the executor should take such surplus to his own use. The effect of the doctrine, therefore, is, that the legal right of the executor will prevail, unless there are circumstances which repel that conclu- sion. Wilson v. Ivat, 2 Ves. 165; Ben- nett v. Bachelor, 1 Ves. Jr. 67 ; Dawson v. Clarke, 18 Ves. 254; Haynes v. Little- fear, 1 Sim. & Stu. 496. What circum- EQ. JUB. — VOL. I. 37 stances will be sufficient to turn the legal estate of the executor into a trust is a matter which would require a very large discussion, in order to bring before the reader all the appropriate learning. It is, in truth, rather a matter of presump- tive evidence than of equity jurisdiction. The subject is amply treated in Jeremy on Eq. Jurisd. B. 1, ch. 1, § 2, p. 122 to 135; and in 2 Roper on Legacies, by White, ch. 24, p. 579 ; id. 590 to 640. It may, however, be generally stated, that where there arises upon the face of the will a presumption that the executor is not to take the surplus for his own use, there parol evidence may be admitted, on his part, to repel the presumption ; or, on the part of the next of kin, to confirm it. But if no such presumption arises on the face of the will, parol evidence is not ad- missible, on the part of the next of kin, to show that the executor was not in- tended to take beneficially. Ibid.; 1 Roper on Legacies, by White, ch. 6, § 2, p. 337, 338; White v. Williams, 3 Ves. & B. 72, 73; Langham v. Sandford, 2 Meriv. 17, 18 ; Hurst v. Beach, 6 Mad. 360. 8 Roper on Legacies, by White, ch. 25, § 2, p. 693 ; Anon., 1 Atk. 591. 578 EQUITY JURISPRUDENCE. [CH. X, there was no offer or requirement of security to refund it (which such courts might insist on or not), 1 in case of a deficiency of assets. For it was said that there is a difference between a suit for a legacy in a court of equity, and a suit for a legacy in the spiritual courts. If, in the spiritual courts, they would compel an executor to pay a legacy without security to refund, there a prohibition should go. But, in a court of equity, though there be no provi- sion made for refunding (which was formerly a usual provision, but is now discontinued), yet the common justice of the court would compel a legatee to refund. 2 § 598. But there are other instances illustrative of the same principle of exclusive jurisdiction, of a more general character, and dependent upon the state of the legatee. Thus, if a legacy is given to a married woman, and her husband sues therefor in the Spiritual Court, a court of equity will grant an injunction ; for the Spiritual Court has no authority (as we have seen) to require him to make a suitable settlement on her and her family, as a court of equity has ; and, therefore, to allow the suit in the Spiritual Court to proceed, would enable the husband to do injustice to her rights, and to defeat her equity to a settlement. 3 § 599. In general, it is true, that, in cases of concurrent juris- diction (as of legacies), that court, which is first in possession of the cause, is entitled to go on with it ; and no other court ought to intermeddle with it. But this rule is applicable only to cases where the same remedial justice can be administered in each court, and the same protection furnished by each to the rights of the parties. 4 In cases of married women, it is obvious, from what has been above stated, that the same remedial justice cannot be admin- istered in each court ; and, therefore, courts of equity will insist upon making it exclusive. 1 Nicholas v. Nicholas, Prec. Ch. 646, kins v. Day, Ambler, 162, Lord Hard- 647 ; 2 Fonbl. Eq. B. 4, Pt. 1, ch. 1, § 2 ; wieke said : " The rule of this court to Horrell v. "Waldron, 1 Vern. 26, 27 ; Mr. grant prohibitions, in case legatees sue in Cox's note B. to Slanning v. Style, 3 P. the Spiritual Court, and refuse to give Will. 337. security, is out of use now. But this 2 Noel v. Robinson, 1 Vern. 93, 94 ; court will decree a legatee to refund." Anon., 1 Atk. 491 ; Hawkins v. Day, Am- * Meals v. Meals, 1 Dick. 373; Anon., bier, 161, 162 ; 2 Fonbl. Eq. B. 4, Pt. 1, 1 Atk. 491 ; Hill v. Turner, 1 Atk. 516 ; ch. 1, § 2, note {d). In Anon., 1 Atk. 491, Jewson o. Moulson, 2 Atk. 419, 420; Lord Hardwicke said, that the rule of Prec. Ch. 648 ; 2 Fonbl. Eq. B. 4, Pt. 1, the court was varied since the case in 1 ch. 1, § 2, note (d) ; 2 Mad. Pr. Ch. 2; Vern. 93 ; for legatees are not obliged to ante, § 539, 692. give security to refund upon a deficiency * Nicholas v. Nicholas, Prec. Ch. 646, of assets. See ante, § 537, 638. In Haw- 647. § 597-603.] legacies. 579 § 600. In like manner, in the case of infants, to whom legacies are given, courts of equity will interfere, and exercise an exclusive jurisdiction, and prevent proceedings in the Spiritual Court by an injunction; for courts of equity can give proper directions for securing and improving the fund, which the Spiritual Court can- not do. And, indeed, it would be proper for the executor to resort to a court of equity in order to procure suitable indemnity for the payment of the legacy, and security to refund in case of a deficiency of assets. 1 § 601. In cases where a discovery of assets is required, or the due administration and settlement of the estate is indispensable to the rights of the legatees, as in the case of residuary legatees, it follows, of course, that courts of equity should entertain the exclu- sive jurisdiction, since they alone are competent to such an inves- tigation. But this subject has been already sufficiently examined under the preceding head of the jurisdiction of courts of equity in cases of administrations. 2 § 602. In regard to legacies charged on land, courts of equity, for the reasons already stated, also exercise an exclusive jurisdic- tion, for the spiritual courts have no cognizance of legacies charge- able on lands, but only of purely personal legacies. 3 In deciding upon the validity and interpretation of purely personal legacies, courts of equity implicitly follow the rules of the civil law, as rec- ognized and acted on in the spiritual courts. 4 But in legacies chargeable on land, they follow the rules of the common law, as to the validity and interpretation thereof. 5 § 603. But the beneficial operations of the jurisdiction of courts of equity, in cases of legacies, is even more apparent in some other cases, where the remedies are peculiar to such courts, and are pro- tective of the rights and interests of legatees. Thus, for instance, in cases of pecuniary legacies, due and payable at a future day (whether contingent or otherwise), 6 courts of equity will compel 1 Horrell v. Waldron, 1 Vern. 26 ; Nich- * Eeynish v. Martin, 3 Atk. 333, 334; olas v. Nicholas, Prec. Ch. 546, 547; 2 Paschall v. Keterish, Dyer, 151 (6), (5). Roper on Legacies, by White, ch. 25, § 2, But see Dyer, 264 b. p. 694 ; ante, § 539, 597. 6 Formerly, a distinction was taken 2 Ante, § 534. between cases of contingent and cases of 8 Eeynish v. Martin, 3 Atk. 333. [See absolute legacies, payable in futuro ; the Sherman v. Sherman, 4 Allen, 392.] latter were entitled to be made secure in 4 Ibid ; Franco v. Alvares, 3 Atk. 246 ; equity ; the former were not. See Palmer Hurst ii. Beach, 5 Mad. 360;2Fonbl. Eq. v. Mason, 1 Atk. 505; Heath v. Perry, B. 4, Pt. 1, ch. 1, § 4, and note (A). But 3 Atk. 101, 105. But that distinction is see Cray v. Willis, 2 P. Will. 530. now overruled. See Mr. Saunders's note 580 EQUITY JURISPRUDENCE. [CH. X. the executor to give security for the due payment thereof ; * or, what is the modern and perhaps, generally, the more approved practice, will order the fund to be paid into court, even if there he not any actual waste, or danger of waste, of the estate. 2 § 604. Another class of cases of the same nature is, where a specific legacy is given to one for life,' and after his death to another ; there the legatee in remainder was formerly entitled, in all cases, to come into a court of equity, and to have a decree for security from the tenant for life, for the due delivery over of the legacy to the remainder-man. But the modern rule is, not to entertain such a bill, unless there be some allegation and proof of waste ; or of danger of waste of the property. Without such in- gredients, the remainder-man is only entitled to have an inventory of the property bequeathed to him, so that he may be enabled to identify it ; and, when his absolute right accrues, to enforce a due delivery of it. 3 to Heath v. Perry, 3 Atk. 105, note (1) ; Mr. Blunt's note to Ferrand v. Prentice, Ambler, 273, note (1) ; Johnson v. De la Creuze, cited 1 Bro. Ch. 105 ; Green v. Pigott, 1 Bro. Ch. 103, 105; Flight v. Cook, 2 Ves. 619 ; Gawler v. Standerwick, 2 Cox, 15, 18 ; Carey v. Askew, 2 Bro. Ch. 55 ; Jeremy on Eq. Jurisd. B. 3, ch. 2, § 2, p. 351, 352 ; Studholme v. Hodgson, 3 P. Will. 300, 303, 304 ; Johnson v. Mills, 1 Ves. 282, 283 ; 1 Mad. Pr. Ch. 180, 181 ; post, § 844, 848. 1 2 Fonbl. Eq. B. 4, Pt. 1, ch. 1, § 2, note (d) ; Eous v. Noble, 2 Vera. 249 ; s. u. 1 Eq. Abridg. 238, PI. 22 ; Duncum- ban v. Stint, 1 Ch. Cas. 121. 2 Johnson v. Mills, 1 Ves. 282 ; Fer- rand o. Prentice, Ambler, 273; s. c. 2 Dick. 569 ; Phipps i>. Annesley, 2 Atk. 58 ; Green v. Pigott, 1 Bro. Ch. 104 ; Web- ber o. Webber, 1 Sim. & Stu. 311 ; John- son v. De la Creuze, 1 Bro. Ch. 105 ; Strange v. Harris, 3 Bro. Ch. 365 ; Yare v. Harrison, 2 Cox, 377 ; Slanning v. Style, 3 P. Will. 336 ; Batten v. Earnley, 2 P. Will. 163 ; Jeremy on Eq. Jurisd. B. 3, ch. 2, § 2, p. 351, 352 ; Blake v. Blake, 2 Sch. & Lefr. 26. In Slanning v. Style, 3 P. Will. 336, it was said by Lord Talbot : " Generally speaking, where the testator thinks fit to repose a trust, in such a case, until some breach of that trust be shown, or at least a .tendency thereto, the court will continue to intrust the same hand without calling for any other security than what the testator has required." Yet in that very case, where an annuity was charged on the residue of the per- sonal estate of the testator, he ordered assets to the amount necessary to secure it, to be brought into court. But where there is any danger of loss or deteriora- tion of the fund, courts of equity, in all cases, used to require security. Rous v. Noble, 2 Vern. 249 ; s. c. 1 Eq. Abridg. 238, PI. 22. But the modern practice seems to be (as stated in the text) to hare the money paid into court ; though it is certainly competent for the court to adopt either course. 8 1 Mad. Pr. Ch. 178, 179 ; Bracken v. Bentley, 1 Ch. 110; Anon., 2 Freem. 206 ; Foley v. Burnell, 1 Bro. Ch. 279 ; Slan- ning v. Style, 3 P. Will. 335, 336 ; Hyde v. Parrat, 1 P. Will. 1 ; Batten v. Earnley, 2 P. Will. 163 ; Leeke v. Bennett, 1 Atk. 471 ; Bill v. Kinaston, 2 Atk. 82 ; Hender- son v. Vaulx, 10 Yerger, 30 ; Covenhoven v. Shuler, 2 Paige, 122, 132. This last case involved the question, what was to be done, in case of a bill bequeathing to a wife the one-third of the residue of the personal estate of the testator, and also the use of the residue during her widow- hood ; and it was held by Mr. Chancellor Walworth that the widow was bound to § 603-604 a.] LEGACIES. 581 [* § 604 a. The question how far a legacy, depending upon inter- vening estates in the same property, is to be regarded as vested, account for the whole personal estate ; and that the two-thirds of the residue of the personal estate, which was bequeathed over after the death of the wife, ought to be invested in permanent securities, and the income thereof paid to the wife dur- ing her widowhood ; and, after her death or marriage, to the legatees in remainder. The learned Chancellor, on that occasion, said : " The modern practice in such cases is, only to require an inventory of the articles, specifying that they belong to the first taker, for the particular period only, and afterwards to the person in re- mainder; and security is not required, unless there is danger that the articles may be wasted, or otherwise lost to the remainder-man. Foley v. Burnell, 1 Bro. Ch. Cas. 279 ; Slanning v. Style, 3 P. Will. 336. Whether a gift for life, of specific articles, as of hay, grain, &c, which must necessarily be consumed in the using, is . to be considered an absolute gift of the property, or whether they must be sold, and the interest or income only of the money applied to the use of the tenant for life, appears to be a question still un- settled in England. 3 Ves. 314 ; 3 Mer. 194. But none of these principles, in re- lation to specific bequests of particular articles, whether capable of a separate use for life, or otherwise, are applicable to this case. Where there is a general bequest of a residue for life, with a re- mainder over, although it includes arti- cles of both descriptions, as well as other property, the whole must be sold and con- verted into money by the executor, and the proceeds must be invested in perma- nent securities, and the interest or income only is to be paid to the legatee for life. This distinction is recognized by the Master of the Rolls, in Randall v. Rus- sell, 3 Mer. 193. He says, if such articles are included in a residuary bequest for life, then they are to be sold, and the interest enjoyed by the tenant for life. This is also recognized by Roper and Preston, as a settled principle of law in England. Prest. on Leg. 96; Roper on Leg. 209. See also Howe v. Earl of Dartmouth, 7 Ves. 137, and cases in the notes ; [Mills v. Mills, 7 Sim. 501 ; Fryer v. Butler, 8 Sim. 442 ; Benn i>. Dixon, 10 Sim. 636 ; Cope v. Bent, 5 Hare, 36 ; Hunt v. Scott, 1 De Gex & Sm. 212 ; Home v. Home, 14 Jurist, 359; Neville v. Fortes- cue, 16 Sim. 333 ; Morgan v. Morgan, 7 Eng. Law & Eq. 216. But a gift of the interest of £1,000 has been lately held a bequest of the absolute property. Hum- phrey v. Humphrey, 6 Eng. Law & Eq. 113.] The ease of Dewitt v. Schoon- maker (2 Johns. 243) seems to be in collision with this principle. But Mr. Justice Tompkins, who delivered the opinion of the court there, does not ap- pear to have noticed the distinction be- tween the bequest of a general residue and the bequest of specific articles. He says, however, it was the duty of the ex- ecutors, on the death of the widow, to have paid and delivered the personal es- tate to the residuary legatee. If such was their duty, they were not bound to deliver the principal of the estate into her hands, without requiring security that it should be preserved and paid over to the residuary legatee after her death. That case was correctly decided ; for it was manifestly the intention of the testa- tor, that the property should be delivered over to the son after the death of the widow, and that he should pay the legacy to his sister. This court presumed he had received the property agreeably to the directions of the will, and the executors were held not to be liable to the legatee in a court of law. In the case before me, the widow was not entitled to the use or possession of any specific article of the personal estate ; but only to one-third of the principal, and the interest or income of two-thirds of the remainder of the gen- eral residue, after the debts of the testa- tor and the legacy to Mrs. Cady were paid or satisfied. The complainants are, therefore, entitled to an account of all the personal estate of the testator in value, as it existed at the death of their father ; and, after deducting the legacy to Mrs. Cady, and the funeral charges and the expenses of administration, their share of the balance must be invested in perma- nent securities, and the income thereof paid to Lena Shuler during her life or 582 EQUITY JURISPRUDENCE. [CH. X. and when it is to be treated as a mere expectancy, or contingent interest, is one of frequent occurrence in the courts of equity, and one not free from difficulty. 1 A marked distinction obtains between a legacy to one for life, and then to such of the children of the cestui que vie as shall attain a certain age ; and a gift over to the children generally. In the former case, the class is to be deter- mined only when the contingency happens ; and in the latter it must be determined at the death of the testator, from which date the will speaks. And all the children then living take a vested interest, not liable to be defeated, even by the death of the child, during the continuance of the intervening estate. 2 And where the actual division is postponed till the termination of the life-estate, for the convenience of the estate, and not to determine who shall be entitled ; it does not hinder the estate, given over, from vesting in those entitled, at the death of the testator. 3 The case of Beck v. Burn, 4 which seems to hold a contrary rule, is here doubted, or denied to be law. ' But it has been held that, where a sum of money is given, to be divided among a class, when, the eldest attains twenty-one, whether the gift be vested or contingent, all the children who are born before the period of division are entitled to shares. 5 The construction is generally in favor of vesting. 8 widowhood ; and the principal, after her 704. See Pinder v. Pinder, 6 Jur. s. s. death or marriage, must go to the com- 489 ; Chalmers v. North, id. 490 ; Lees v. plainants." Massey, id. 2. The general rule is, that, 1 [* Smith v. Colman, 25 Beavan, 216 ; when a fund is given to a class, all who Edwards v. Edwards, 15 Beavan, 357; answer the description when it is to be Home v. Pillans, 2 My. & K. 15. The paid are entitled to participate in it. subject is very elaborately considered in Hawkins v. Everett, 5 Jones, Eq. 42 ; the two last cases, and most of the cases Simpson v. Spence, id. 208. But see upon the question reviewed. Eaubault v. Taylor, id. 219 ; Gay v. 2 Adams v. Robarts, 25 Beavan, 658. Baker, id. 344 ; Whitehead v. Lassiter, In the case of Remnant v. Hood, 6 Jur. 4 id. 79 ; Wessenger v. Hunt, 9 Rich. Eq. s. s. 1173, it was held by the Court of 459. Appeal, affirming the decision of the 8 Leerning v. Sherratt, 2 Hare, 14; Master of the Rolls, that the general Leake v. Robinson, 2 Meriv. 363 ; Pack- rule, where legacies or portions are ham v. Gregory, 4 Hare, 396; Neather- charged on real estate, and payable at way v. Fry, Kay, 172 ; Hearn e. Baker, 2 a future time, is, that they do not vest K. & J. 383. until the time appointed for payment ; * 7 Beavan, 492. but a portion for younger children, so 6 M ann „. Thompson, Kay, 638. secured, may be held to vest when the « Day v. Day, Kay, 703. But see, child comes of age, although he die be- upon this subject, Lloyd v. Lloyd, 3 Kay fore the settler. See White v. Baker, 6 & J. 20 ; Gilman v. Daunt, id. 48 ; Ben- Jur. n. s. 591. It is here said, that the nett's Will, 3 Kay & J. 280 ; Wharton v. case of Seurfield v. Howes, 3 Br. C. C. Barker, 4 Kay & J. 483 ; Madison v. Chap- 90, is not at variance with the other au- man, id. 709 ; Devane v. Larkins, 3 Jones, thorities, as suggested. 1 Jarman on Wills, Eq. 377. § 604 a, 605.] legacies. 583 It is held, also, that if a bequest be made to one, or his heirs, and he die before the testator, the legacy will not lapse, but go to the heir. 1 But if it be to one, or his personal representative, the legacy will lapse, if he die before the testator. A gift over is allowed to operate notwithstanding the intervening estate may fail, for a reason not named in the will, or probably in the con- templation of the testator. 2 The subject is discussed in an im- portant case 3 before the House of Lords, upon appeal from the Lord Chancellor, 4 and the Vice Chancellor, 5 and the gift over held operative as to real estate, but that the personalty vested absolutely in the first donee, he being of the age named, for his interest to take effect, at the decease of the testator, and the gift over, being of the "residue," after the decease of the first donee, without heirs. The rule in Wild's case, 6 as to what words create an estate tail in realty, is not applicable to personalty. In general, words which as to realty will create an estate tail, will give an absolute estate in personalty. 7 Where the testator gave the remainder of his estate to his nephews and nieces, but provided that in case of the death of any of them before receiving his or her share, that the same should be paid to the survivors, it was held that those living at the death of the testator took vested interests, subject to be divested by decease before the time of payment, which, in case of legacies, is one year from the death of testator. 8 ] § 605. This may suffice, in this place, on the subject of the peculiar jurisdiction of courts of equity in cases of legacies, when the relief sought and given is of a precautionary and protective nature. The subject will again come under review in the consid- eration of bills quia timet. 9 1 Porter's Trust, in re, 4 Kay & J. 188 ; 8 Arrowsmith, in re, 6 Jur. n. s. 1231. Wildman's Trust, in re, 7 Jur. n. 8. 121. See also McLachlan v. Tait, 6 Jur. n. s. 2 Warren v. Rudall, 4 Kay & J. 603. 1269 ; Whyte v. Collins, 6 Jur. n. s. 1281. The cases upon the subject, and espe- The decree in the case of Arrowsmith, daily Attorney-General v. Hodgson, 15 in re, was affirmed in the Court of Appeal, Simons, 146, and Melpott v. St. George's except as to the question of divesting by Hospital, 21 Beavan, 134, are thoroughly decease before payment of the legacies, reviewed. See also Corbett's Trusts, upon which their lordships expressed no Johns. 591 ; Penny v. Clarke, id. 619. opinion. 7 Jur. n. s. 9. Where the tes- 8 Randfield v. Kandfield, 6 Jur. n. s. tator gave the residue of his estate to the 901, May, 1860. child or children of A., deceased, and B. 4 s. c. 4 De Gex & Jones, 57. in equal shares, it was held to be a gift to 6 s. o. 4 Drew. 147. the children of A. and of B. in esse at the 6 6 Rep. 17. , testator's death, per capita. In re Davie's ' Audsley v. Horn, 6 Jur. n. s. 205; Will. 7 Jur. sr. s. 118.] Webster v. Parr, 26 Beavan, 236. 9 Post, § 844, 845, 846. 584 EQUITY JURISPRUDENCE. [CH. X. § 606. In regard to a donation mortis causd, which is a sort of amphibious gift between a gift inter vivos, and a legacy, it is not properly cognizable by the ecclesiastical courts ; neither does it fall regularly within an administration ; nor does it require any act of the executor to constitute a title in the donee. 1 It is, prop- erly, a gift of personal property, 2 by a party who is in peril of death, upon condition, that it shall presently belong to the donee, in case the donor shall die, 3 but not otherwise. 4 To give it effect, there must be a delivery of it by the donor ; and it is subject to be defeated, by his subsequent personal revocation, 5 or by his recovery or escape from the impending peril of death/' If no event happens which revokes it, the title of the donee is deemed to be directly derived from the donor in his lifetime ; and, therefore, in no sense is it a testamentary act. 7 And this is the reason why the eccle- siastical courts have no jurisdiction, as they can interpose only in testamentary matters. Courts of equity, however, maintain a con- current jurisdiction in all cases of such donations, where the remedy at law is not adequate or complete. But, in such cases, the jurisdiction stands upon general grounds, and not upon any notion that a donation mortis causd is, from its own nature, properly cog- nizable therein. 1 1 Roper Leg. by White, ch. 1, § 2, 6 Parker v. Marston, 27 Maine, 196 ; p. 2 ; Thompson v. Hodgson, 2 Str. 777 ; [Ellis v. Secor, 31 Mich. 185 ; Stevens o. Ward v. Turner, 2 Ves. 431 ; Miller o. Stevens, 5 Thomp. & C. 87]. Miller, 3 P. Will. 356 ; 3 Wooddeson, Lect. 6 n^. . j Williams on Executors and 60, p. 513 ; Hedges v. Hedges, Prec. Ch. Administrators, Pt. 2, B. 2, ch. 2, § 4, 269 ; Gilb. Eq. 12 ; 2 Vern. 615. p. 544, 545, 546, 547 ; Ward v. Turner, 2 2 [And cannot apply to real estate. Ves. 431 ; Jones v. Selby, Prec. Ch. 300 ; Meach v. Meach, 24 Verm. 591. The in- Grattan v. Appleton, 3 Story, 755. tention to give must be clearly shown. 7 Ibid. Mr. Williams, in his excellent See First National Bank v. Balcom, 35 work on the Law of Executors and Ad- Conn. 351 ; Prickett v. Prickett, 5 C. E. ministrators, says : " That, to constitute Green, 478.] a donatio mortis causa, there must be two 8 See the late case of Staniland v. Will- attributes. (1.) The gift must be with a nott, 3 Mac. & Gord. 664; Hebb «. Hebb, view to the donor's death. (2.) It must 5 Gill, 507. be conditioned to take effect only on the 4 K>id. ; Wells v. Tucker, 3 Binn. 366, death of the donor by the existing disor- 370 ; Edwards v. Jones, 1 Mylne & Craig, der. A third essential quality is required 226; s. c. 7 Sim. 325; 1 Williams on Ex- by our law, which, according to some ecutors, Pt. 2, B. 2, ch. 2, § 4, p. 544 to authorities, was not necessary according 554 (edit. 1838); Duffleld v. Elwes, 1 to the Roman and civil law; namely, (3.) Bligh, H. s. 530 ; Lawson v. Lawson, 1 P. There must be a delivery of the subject Will. 441 ; Hedges v. Hedges, Prec. Ch. of the donation." 1 Williams on Ex- 269 ; Gilb. Eq. 12 ; 2 Vern. 615 ; Tate v. ecutors and Administrators, Pt. 2, B. 2, ch. Hubert, 2 Ves. Jr. 121 ; s. c. 4 Bro. Ch. 2, § 4, p. 544 (edit, 1838). See the 290 ; Miller v. Miller, 3 P. Will. 357 ; remarks on this last point by Lord Hard- Irons v. Smallpiece, 2 Barn. & Aid. 552, wicke, in Ward v. Turner, 1 Ves. 439, 653 ; Earquharson v. Cave, 2 Collyer, 356. 440, 441 ; Voet, ad Pand. Lib. 39, tit. 6, § 606-607.] legacies. 585 § 606 a. We have had occasion to say, that a donatio mortis causd 1 is of an amphibious nature, — partaking of the character of a gift inter vivos, and of a legacy. It differs from a legacy in these respects : (1.) It need not be proved, nay, it cannot be proved, as a testamentary act, in the ecclesiastical courts ; for it takes effect as a gift from the delivery by the donor to the donee in his life- time. (2.) It requires no assent, or other act, on the part of the executor or administrator, to perfect the title of the donee. The claim is not from the executor or administrator, but against him. It differs from a gift inter vivos, in several respects, in which it resembles a legacy. (1.) It is ambulatory, incomplete, and revo- cable, during the donor's lifetime. (2.) It may be made to the wife of the donor. (3.) It is liable to the debts of the donor upon a deficiency of assets. 2 § 607. The notion of a donation mortis causd was originally derived into the English law from the civil law. In that law it was thus defined : " Mortis causa Donatio est, quae propter mortis fit suspicionem ; cum quis ita donat, ut, si quid humanitus ei conti- gisset, haberet is, qui accepit. Sin autem supervixisset is, qui donavit, reciperit ; vel si eum donationis paenituisset, aut prior decesserit is, cui donatum sit." 3 It was a long time a question among the Roman lawyers, whether a donation mortis causd ought to be reputed a gift or a legacy, inasmuch as it partakes of the nature of both (et utriusque causce quosdam habebat insignia?) ; and Justinian finally settled, that it should be deemed of the nature of legacies : " Has mortis causa Donationes ad exemptum legatorum redactae sunt per omnia." 4 § 6; Tate v. Hilbert, 2 Ves. Jr. Ill, 112. * [See an accurate exposition of the [A mere delivery to an agent, in the nature of this gift in Nicholas v. Adams, character of agent for the giver, would 2 Wharton, 17 ; Raymond a. Sellick, 10 amount to nothing ; it must be a delivery Conn. 480 ; Harris v. Clark, 2 Barbour, to the legatee) or some one for the legatee. S. C. 94; Parish v. Stone, 14 Pick. 198; Earquharson v. Cave, 2 Collyer, 356. See Miller v. Jeffries, 4 Grattan, 472 ; Sims v. Moore v. Darton, 7 Eng. Law & Eq. 134 Wells v. Tucker, 3 Binney, 366, 370 McGillycuddy v. Cook, 5 Blackf. 179, 180 15 Maine, 429 ; 18 id. 225 ; 21 id. 185 Walker, 8 Humph. 503 ; Brinckerhoff v. Lawrence, 2 Sandford, 401 ; Meach v. Meach, 24 Verm. 591 ; Dole v. Lincoln, 31 Maine, 422.] Sessions v. Moseley, 4 Cush. 87. But that 2 1 Williams on Executors and Admin- delivery to third party in trust for donee istrators, Pt. 2, B. 2, ch. 2, § 4, p. 552 is sufficient, see Kemper v. Kemper's (edit. 1838) ; 1 Roper on Legacies, by Adm'r, 1 Duv. (Ky.) 401 ; Baker v. Wil- White, ch. 1, § 2, p. 2, 3 (3d edit.) ; Bor- liams, 34 Ind. 547. So the proof bearing nemans v. Sidlinger, 15 Maine, 429. upon capacity to make such gift, is not 8 Inst. Lib. 2, tit. 7, § 1. the same as that bearing upon the ques- 4 B>id. ; Tate v. Hilbert, 2 Ves. Jr. 118, tion of testamentary capacity. Crum v. 119. Thomley, 47 111. 192.] 586 EQUITY JURISPRUDENCE. [CH. X. § 607 a. "We have already seen that by our law there can be no valid donation mortis causd ; (1.) unless the gift be with a view to the donor's death ; (2.) unless it be conditioned to take effect only on the donor's death by his existing disorder, or in his existing illness ; and (3.) unless there be an actual delivery of the sub- ject of the donation. 1 This last requisite has been thought, by some learned judges, to belong exclusively to our law, and not to have existed in the Roman law. 2 But a more important practical ques- tion is, what may be the subject of a donatio mortis causd. There is no doubt that there may be a good donation of any thing which has a physical existence, and admits of a corporal delivery; as, for example, of jewels, gems, a bag of money, a trunk of goods ; and even of things of bulk, which are capable of possession by a sym- bolical delivery ; such as goods in a warehouse, by a delivery of the key of the warehouse. 3 [* But where the deceased, immediately before her death, told one to take the key of a dressing-case and box, containing a watch and trinkets, and immediately upon her death to deliver them to the plaintiff, it was held, this did not con- stitute a valid gift causd mortis, there being, during the life of the donor, no delivery to, or for, the donee. 4 ] But the question was formerly mooted whether choses in action, bonds, and other incor- poreal rights, could pass by a donation mortis causd. The doctrine now established is, that not only negotiable notes and bills of exchange, 5 payable to bearer, or indorsed in blank, exchequer 1 See Huntington v. Gilmore, 14 Barb. 7 Taunt. 224; Walsh v. Studdart, 5 D. & 243; Hitch v. Davis, 3 Md. Ch. Dec. 266; W. 159, 285; 2 Colly, 356.] Jones v. Deyer, 16 Ala. 221; [*Tate s See Ward v. Turner, 2 Ves. 443; v. Leithead, Kay, 658. This condition 1 Williams on Executors and Administra- may he implied from circumstances, tors, Pt. 2, B. 2, ch. 2, § 4, p. 547, 548, Rhodes v. Childs, 64 Penn. St. 18. That 549; Bunn v. Markham, 7 Taunt. 224; a gift conditioned on death in war, for Miller v. Miller, 3 P. Will. 356. See also which one has enlisted, is not a valid Eankin v. Wagnelin, at the Bolls, 14 donatio mortis causd, see Irish v. Nutting, June, 1832, cited in Chitty on Bills, Ad- 47 Barb. (N. Y.) 370; Gourley v. Linsin- denda, p. 791, 8th edit. 1833; id. p. 2, bigler, 51 Penn. St. 345 ; Dexheimer u. note (a), 9th edit. Gautier, 5 Bob. (N. Y.) 216 ; per con., see i [* Powell v. HeUicar, 29 Beav. 261. Gass u. Simpson, 4 Cold. (Tenn.) 288; That delivery of key to trunk contain- Baker v. Williams, 34 Ind. 547. The ing stocks and bonds is not enough, see donatio may be in trust. Clough o. Hatch v. Atkinson, 56 Me. 324.] Clough, 117 Mass. 83. And the husband 6 [The note of a third party may be may make it to his wife. Whitney v. subject of a valid donatio causa mortis. Wheeler, 116 Mass. 490. A written in- Bedell v. Carll, 33 N. Y. 581 ; Gourley strument intended as a will cannot be con- v. Linsinbigler, 51 Penn. St. 345 ; Ash- strued into a donatio causd. mortis, failing brook v. Byon's Adm'r, 2 Bush (Ky.), as a will. McGrath v. Reynolds, 116 228; House u. Grant, 4 Bans. (N. Y.) Mass. 566.] 296.] 2 Bad. [See also Bunn v. Markham, § 607 a,] LEGACIES. 587 notes [bank checks], 1 and bank-notes may be the subjects of a donatio mortis causd, because they may, and do, in the ordinary course of business, pass by delivery ; but that bonds and mortgages may also be the subjects of a donatio mortis causd, and pass by the delivery of the deeds and instruments, by which they are created. 2 Bonds have been so held, upon the ground that a bond could not be sued for at law without a profert ; and that a court of equity would not, after a donatio mortis causd, accompanied with a delivery of the bond to the donee, direct the latter to give it up to the per- sonal representative of the donor, but would hold the title of the donee to it good. 3 And mortgaged deeds, when delivered, are 1 Boutts v. Ellis, 21 Eng. Law & Eq. 337. [Thegif t of donor's check not pre- sented before his death does not make a valid donatio mortis causa. Hewitt v. Kaye, L. R. 6 Eq. 198 ; Second Natl. Bank, &c. v. Williams, 13 Mich. 282 ; and it makes no difference that the pass-book is delivered with the check, In re Beak's Estate, L. R. 13 Eq. 489 ; and that gift of pass-book does not make a valid gift causd mortis of the moneys on deposit, see Ashbrook v. 'Ry- an's Adm'r, 2 Bush (Ky.), 228; Carr v. Silloway, 111 Mass. 241. But the delivery of a Savings Bank book was held a valid gift causa mortis in Tillinghast v. Wheaton, 8 R. I. 536; and gift of a certificate of deposit is good, Westerlo v. De "Witt, 36 ' N. Y. 340. See McGrath v. Reynolds, 116 Mass. 566. The note of donor, like a check, is not the subject of a dona- tio causd mortis, Brown v. Moore, 3 Head (Tenn.), 671; Eiero v. Eiero, 5 Thomp. & C. 151 ; Johnson v. Spies, 5 Hun, 468 ; Kenestons v. Sceva, 54 Md. 24 ; Case v. Dennison, 9 R. I. 88 ; Grynne v. Hone, 49 N. Y. 17.] 2 Ibid.; Drury v. Smith,. 1 P. "Will. 405; Miller v. Miller, 3 P. Will. 356. See also Pennington v. Gittings, 2 Gill & Johns. 208; Bradley v. Hunt, 5 Gill & Johns. 54; Hill v. Chapman, 2 Bro. Ch. 612; Jones v. Selby, Prec. Ch. 300; 1 Roper on Legacies, by White, ch. 1, § 2, p. 13, 14, 15, 16 (3d edit.) ; Ward v. Tur- ner, 1 Ves. 441, 442; Lee v. Boak, 11 Gratt. 182 ; Sessions o. Moseley, 4 Cush. 87. 3 Ibid.; Gardner v. Parker, 3 Mad. 184; Snelgrove v. Bai].ey, 3 Atk. 214; Duffield v. Elwes, 1 Bligh, n. s. 642 ; Stanilandv. Willott, 3 Mac. & Gord. 676; Ward v. Turner, 2 Ves. 441, 442. In this last case, Lord Hardwicke said: "In Bailey v. Snelgrove, determined by me, 11th March, 1774, it was urged, where a bond was given in prospect of death, the manner of gift was admitted, the bond was delivered, and I held it a good do- nation mortis causd. It was argued that there was a want of actual delivery there, or possession, the bond being but a chose in action, and, therefore, there was no delivery but of the paper. If I went too far in that case, it is not a reason I should go farther ; and I choose to stop here. But I am of opinion that decree was right, and differs from this case ; for, though it is true, that a bond, which is specialty, is a chose in action, and its principal value consists in the thing in action, yet some property is conveyed by the delivery ; for the property is vested ; and to this degree, that the law-books say, the person to whom this specialty is given, may cancel, burn, and destroy it. The consequence of which is, that it puts it in his power to destroy the obligee's power of bringing an action, because no one can bring an action on a bond with- out a profert in curia. Another thing made it amount to a delivery ; that the law allows it a locality; and, therefore, a bond is bona notabilia, so as to require a prerogative administration, where a bond is in one diocese, and goods in another. Not that this is conclusive. This reason- ing I have gone upon, is agreeable to Jenk. Cent. 109, case 9, relating to deliv- ery to effectuate gifts. How Jenkins applied that rule of law he mentions 588 EQUITY JURISPRUDENCE. [CH. X. treated but as securities for debts, and would, in the hands of the donee, be governed by the same rules. The delivery, in the case of a mortgage, is therefore treated, not as a complete act, passing the property, but as creating a trust, by operation of law, in favor of the donee, which a court of equity will enforce, in the same manner as it would the right of the donee to a bond. 1 In short, in all cases in which a donatio mortis causd is carried into effect by a court of equity, the court has not considered the interest as completely vested by the gift ; but that it is so vested in the donee, that the donee has a right to call on a court of equity for its aid ; and, in case of personal estate, to compel the executor or adminis- trator of the donor to carry into effect the intention manifested by the person whom he represents ; as, for example, if the donation be a bond, to compel the executor or administrator to allow the donee to use his name in suing the bond, upon being indemnified ; because it is a trust for the donee. 2 there, I know not ; but rather apprehend, he applied it to a donation mortis causd ; for, if to a donation inter vivos, I doubt he went too far." See also Wells v. Tucker, 3 Binn. 366 ; Bradley o. Hunt, 5 Gill & Johns. 54; [Grover v. Grover, 21 Pick. 264]. i Duffield v. Elwes, 1 Bligh, K. s. 497, 530, 634, 535, 536, 541, 542, which over- rules the decision of the Vice-Chancellor in the same case. 1 Sim. & Stu. 243. 2 Duffield o. Elwes, 1 Bligh, u. s. 497, 530, 534; Staniland v. Willott, 3 Mac. & Gord. 676 ; Gardner v. Parker, 3 Mad. 184. We have already extracted, in another place (ante, § 433, note), a part of the opinion of Lord Eldon on this subject, which it may, perhaps, be useful here to repeat : " The question " (said he) " is this, Whether the act of the donor, being, as far as the act of the donor itself is to be viewed, complete, the persons who represent that donor — in respect of per- sonalty, the executor, and in respect of realty, the heir-at-law — are not bound to complete that which, as far as the act of the donor is concerned in the question, was incomplete ; in other words, where it is the gift of a personal chattel, or the gift of a deed, which is the subject of the donatio mortis causa, whether, after the death of the individual who made that gift, the executor is not to be considered a trustee for the donee ; and whether, on the other hand, if it be a gift affecting the real interest, — and I distinguish now between a security upon land and the land itself, — whether, if it be a gift of such an interest in law, the heir-at-law of the testator is not, by virtue of the opera- tion of the trust, which is created, not by indenture but a bequest arising from operation of law, a trustee for that donee." His lordship afterwards, in discussing the point, whether a mortgage would pass by a delivery of it as a donation mortis causd, said : " Lord Hardwicke, with respect to the bond (and it is necessary that I should take some notice of this, because there has been a change in the law, which that great judge did not foresee, but which in later times, and in my own time, has become very familiar in the courts of law), — Lord Hardwicke states, as one ground of his opinion, in the case of the bond, that it is a good gift causd mortis, because, he says, he who has got the bond may do what he pleases with it. He cer- tainly disables the person who has not got the bond from bringing an action upon it ; for, says Lord Hardwicke, no man ever heard (and I have seen in the manu- script of the same Lord Hardwicke, that he said no man will ever hear) that a person shall bring an action upon a bond without the profert of that bond. But we § 607 a-607 c.J legacies. 589 § 607 b. The same doctrine is applicable to the case of a donatio mortis causd of a bond and mortgage by the mortgagee to the mortgagor, consummated by the delivery of the bond and mortgage to him. 1 In such a case, it will operate as a release or discharge of the debt, if the donor should die of his existing illness. For (it has been said) if it was a gift inter vivos, the mortgagee could not get back the deeds from the mortgagor ; but, by operation of law, a trust would be created in the mortgagee, to make good a gift of the deed to the mortgagor, to whom he had delivered the deeds. 2 But, however this may be, it seems clear that in the case of such a donatio mortis causd, the representatives of the donor would never be permitted to enforce the mortgage or bond against the donee. 3 § 607 o. On the other hand, as by our law there must be a delivery of the thing, or of the instrument which represents it, in order to make a good donatio mortis causd, if the thing is inca- pable of delivery it cannot be the subject of such donation ; for it is said, there must be a parting with the legal power and dominion over the thing, which is evidenced only by the delivery. Thus, a mere chose in action, not subsisting in any specific instrument, now hare got into a practice of sliding bond and mortgage are delivered ; in the from courts of equity into courts of law other, the judgment, which is to be con- the doctrine respecting lost instruments ; sidered on the same ground as a specialty, and I take the liberty, most humbly, of is delivered. With that the evidences of saying, that, when that doctrine was so the debts are all delivered. The instru- transplanted, it was transplanted upon ment containing the covenant to pay is the idea that the thing might be as well delivered. They are all delivered in such conducted in a court of law as in a court a way that the donor could never have of equity, — a doctrine which cannot be got the deeds back again. Then the held by any person who knows what the question is, whether, regard being had to doctrine of courts of equity is as to a lost what is the nature of a mortgage, eontra- instrument. Then, if the delivery of a distinguishing it from an estate in land, bond would, as it is admitted (notwith- those circumstances do not as effectually standing any change in the doctrine about give the property in the debt, as if the profert), — if the delivery of a bond would debt was secured by a bond only ? The give the debt in that bond, so as to secure opinion which I have formed is, that this to the donee of that bond the debt so given is a good donatio mortis causd, raising by by the delivery of the bond, the question operation of law a trust ; a trust, which, is, whether the person having got, by the being raised by operation of law, is not delivery of that bond, a right to call upon within the Statute of Frauds, but a trust the executor to make his title by suing, which a court of equity will execute." or giving him authority to sue upon the 1 See Meredith v. Watson, 23 Eng. bond, what are we to do with the other Law & Eq. 250. securities, if they are not given up ? But 2 Richards v. Symes, 2 Atk. 319 ; 2 there is another question to which an Barnard. 90; 2 Eq. Abridg. 647; Duf- answer is to be given : What are we to field v. Elwes, 1 Bligh, s. s. 537, 538, do with respect to the other securities, if 539 ; Hurst v. Beach, 5 Mad. 351. they are delivered ? In the one case, the 8 Ibid. 590 EQUITY JURISPRUDENCE. [CH. X. cannot pass by a donatio mortis causd. So it has been ruled, that a promissory note or bill of exchange, not payable to bearer, or indorsed in blank, cannot so take effect, inasmuch as no property therein can pass by the delivery of the instrument. 1 So, it has been ruled, South Sea Annuity Receipts cannot be the proper subject ■ of a donatio mortis causd ; because the delivery thereof does not pass the property in the annuities ; and stocks and annuities are, by act of Parliament, made capable of a transfer of the legal prop- erty. 2 But it may admit of doubt, whether the doctrine of these i Miller v. Miller, 3 P. Will. 356, 358; Warda. Turner, 2 Ves. 442, 443; Pen- nington v. Gittings, 2 Gill & Johns. 208 ; Bradley v. Hunt, 5 Gill & Johns. 54; [contra, Grover v. Grover, 24 Pick. 261 ; Brown v. Brown, 18 Conn. 410]. See § 607 a, note (a). [Where money is already deposited in hands of donee, a gift of the receipt will, it seems, con- stitute a valid donatio mortis causa. Champney v. Blanchard, 39 N. Y. 111. So where a promissory note is in posses- sion of donee, no further delivery is necessary. Wing v. Merchant, 57 Me. 383. So where a promissory note is in the possession of a third party as trustee, the cestui que trust may donate it mortis causa without actual delivery. Suther- land v. Sutherland, 5 Bush (Ky.), 591.] 2 Ward v. Turner, 2 Ves. Sen. 431, 442, 443. Lord Hardwicke, on this occa- sion, said : " Therefore, from the au- thority of Swinburne, and all these cases, the consequence is, that by the civil law, as received and allowed in England, and consequently by the law of England, tradition or delivery is necessary to make a good donation mortis causd ; which brings it to the question, whether delivery of the three receipts was a sufficient de- livery of the thing given to effectuate the gift. I am of opinion it was not. It is argued, that though some delivery is necessary, yet delivery of the thing is not necessary, but delivery of any thing by way of symbol is sufficient. But I can- not agree to that. Nor do I find any au- thority for that in the civil law, which required delivery to some gifts, or in the law of England, which required delivery throughout. Where the civil law re- quires it, they require actual tradition, delivery over of the thing. So in all cases in this court ; delivery of the thing given is relied on, and not in the name of the thing ; as in the delivery of sixpence, in Shargold v. Shargold ; if it was allowed any effect, that would have been a gift mortis causd, not as a will ; but that was allowed as testamentary, proved as a will, and stood. The only ease wherein such a symbol seems to be held good, is Jones v. Selby. But I am of opinion, that amounted to the same thing as de- livery of possession of the tally, provided it was in the trunk at the time. There- fore it was rightly compared to the cases upon 21 J. 1, Ryal «. Rowles, and others. It never was imagined on that statute, that delivery of a mere symbol, in name of the thing, would be sufficient to take it out of that statute ; yet, notwithstand- ing, delivery of the key of bulky goods, where wines, &c, are, has been allowed as delivery of the possession; because it is the way of coming at the possession, or to make use of the thing ; and, there- fore, the key is not a symbol, which would not do. If so, then delivery of these receipts amounts to so much waste paper ; for, if one purchases stock or an- nuities, what avail are they after accept- ance of the stock ? It is true, they are of some avail, as to the identity of the person coming to receive ; but after that is over, they are nothing but waste paper, and are seldom taken care of afterwards. Suppose Fly, instead of de- livering over these receipts to Mosely, had delivered over the broker's note, whom he had employed, that had not been a good delivery of the possession. There is no color for it ; it is no evidence of the thing, or part of the title to it. For, suppose it had been a mortgage in question, and a separate receipt had been § 607 c] LEGACIES. 591 last cases can now upon principle, be supported ; for the ground, upon which courts of equity now support donations mortis causd, is not that a complete property in the thing must pass by the delivery ; but that it must so far pass, by the delivery of the instru- ment, as to give a title to the donee to the assistance of a court of equity to make the donation complete. 1 The doctrine no longer prevails, that where a delivery will not execute a complete gift inter vivos, it cannot create a donatio mortis causd, because it would not prevent the property from vesting in the executor, and^ as a court of equity will not inter vivos compel a party to complete his gift, so it will not compel the executor to complete the gift of his testator. 2 On the contrary, the doctrine now established by the highest authority is (as we have seen) that courts of equity do not consider the interest as completely vested in the donee, but treat the delivery of the instrument as creating a trust for the donee, to be enforced in equity. 3 taken for the mortgage money, not on the back of the deed (which was a very common way formerly, and is frequently seen in the evidence of ancient titles), and the mortgagee had delivered over this separate receipt for the considera- tion-money, that would not have been a good delivery of the possession, nor given the mortgage mortis causd by force of that act. Nor does it appear to me by proof, that possession of these three receipts continued with Mosely from the time they were given, in February, to the time of Fly's death ; for there is a witness, who speaks, that in some short time be- fore his death, Fly showed him these receipts, and said he intended them for his uncle Mosely. Therefore, I am of opinion, it would be most dangerous to allow this donation mortis causa, from parol proof of delivery of such receipts, which are not regarded or taken care of after acceptance. And if these annuities are called choses in action, there is less reason to allow of it in this case, than in any other chose in action; because stocks and annuities are capable of a transfer of the legal property by act of Parliament, which might be done easily ; and if the intestate had such an aversion to make a will, as supposed, he might have transferred to Mosely; consequently, this is merely legatary, and amounts to a nuncupative will, and contrary to the Statute of Frauds, and would introduce a greater breach on that law than ever was yet made ; for, if you take away the necessity of delivery of the thing given, it remains merely nuncupative." The decision of Lord Eldon in Duffield v. Elwes, 1 Bligh, n. s. 498, very much shakes the reasoning of Lord Hardwicke on this particular point. 1 Grover v. Grover, 24 Pick. 261 ; Brown i\ Brown, 18 Conn. 410. 2 Duffield v. Elwes, 1 Sim. & Stu. 239, overturned on appeal in 1 Bligh, n. s. 498. ' Duffield v. Elwes, 1 Bligh, jr. s. 497, 630, 534; Staniland v. "Willott, 3 Mac. & Gord. 676. In Pennington v. Gittings, 2 Gill & Johns. 208, the Court of Appeals of Maryland held, that » delivery of a certificate of bank-stock, transferable at the bank only, personally or by attorney, indorsed in blank by the donor and deliv- ered to the donee, could not pass- as a donatio mortis causd. In Bradley v. Hunt, 6 Gill & Johns. 64, the same learned court decided that a promissory note, or certificate of the profit, payable to the order of the donor, and delivered to the donee, was not a good donatio mortis causd. In each of these eases the court proceeded upon the same general ground, that, to constitute a donatio mortis causd, the gift should be full and complete at 592 EQUITY JURISPRUDENCE. [CH. X. [* § 607 d. Within a short time, the question how far an unin- dorsed promissory note, payable to the donor or order, may be the subject of a gift causd mortis, came before the Master of the Rolls, Sir John Romilly ; and that learned judge held that, according to the latest determinations of the English courts, such a gift was valid. 1 ] § 607 e. According to the civil law, a donation mortis causd may be made subject to a trust or condition. " Eorum, quibus mortis causS, donatum est, fidei committi quoquo tempore potest; quod fidei commissum, heeredes, salva Falcidise ratione, quam in his quo- que donationibus exemplo legatorum, locum habere placuit, preesta- bunt. Si pars donationis fidei commisso teneatur, fidei commissum quoque munere Falcidiae fungetur. Si tamen alimenta prsestari voluit, collationis totum onus in residuo donationis esse responden- dum erit ex defuncti voluntate, qui de majore pecunia prsestari non dubie voluit, integra. 2 Ab eo, qui neque legatum neque fidei com- missum, neque heereditatem vel mortis causa donationem accepit the time, passing from the donor the legal power and dominion over the thing in- tended to be given, and leaving nothing to be done by him or his executor to per- fect it ; and that, in these cases, the thing was not susceptible of such delivery, and the delivery of the instrument did not con- vey a perfect title to the thing. The court relied upon the cases of Miller v. Miller, 3 P. Will. 356, 358 ; Ward v. Turner, 2 Ves. '431 ; Tate v. Hilbert, 2 Ves. Jr. 112, and Duffield v. Elwes, 1 Sim. & Stu. 239, as in point. But since the decision in 1 Bligh, n. a. 497, these cases can no longer be deemed satisfactory authorities. On the other hand, in Wright v. Wright, 1 Cowen, 598, the Supreme Court of New York held that a promissory note of the donor himself, executed in his last illness, and delivered by the maker to the donee (the payee) in contemplation of death, was a good donatio mortis causa, although no consideration passed. [But this case has been distinctly overruled in the same court. Harris v. Clark, 2 Barbour S. C, 94; s. c. 3 Comst. 93. See Halley v. Adams, 16 Verm. 206 ; Parish v. Stone, 14 Pick. 198 ; Copp v. Sawyer, 6 N. H. 386 ; Smith v. Kittridge, 21 Verm. 238 ; Ray- mond v. Sellick, 10 Conn. 480; Holliday v. Atkinson, 5 B. & C. 501 ; Craig v. Craig, 3 Barb. Ch. 77. So, an indorsement by the donor of a note running to him as payee, given causd mortis, creates no lia- bility against his estate. Weston v. Hight, 17 Maine, 287. Neither does his draft unaccepted by the drawee. Harris v. Clark, supra. But the gift of the prom- issory note of a third person, not the donor unindorsed, is valid. Grover v. Grover, 24 Pick. 261 ; Sessions v. Mosely, 4 Cush. 87.] And in Coutant v. Schuyler, 1 Paige, 316, Mr. Chancellor Walworth held that a promissory note of h third person was a proper subject of a donatio mortis causd, and might be delivered to a third person for the benefit of the donee. The court said that there was no real difference be- tween the delivery of a bond and the delivery of a note, as a donatio mortis causa. Bach is valid. See also Wells v. Tucker, 3 Binn. 366. 1 [* Veal v. Veal, 6 Jur. n. s. 527 ; s. p. Bates v. Kempton, 7 Gray, 382. And in such case the donee may maintain an ac- tion in the name of the administrator of the donor (notwithstanding his dissent) to recover the amount due on the note. Ibid. And the same principle is again recognized in Chase v. Bedding, 13 Gray, 418, 420.] 2 Dig. Lib. 31, tit. 1, 1. 77, § 1, cited in Hambrooke v. Simmons, i Buss. 27. § 607 <2-608.] confusion of boundaries. 593 nihil per fidei commissum relinqui potest." 1 The point does not seem to have been directly established in modern equity jurispru- dence ; but the manifest inclination of the courts is, to sustain such a donation, although it is coupled with a trust or condition. 2 § 608. It has been already stated, that in the interpretation of purely personal legacies courts of equity follow the rules of the spiritual courts ; and in those, which are charged on lands, the rules of the common law. 3 But, although this is generally true, it is not to be taken for granted, that courts of equity do, in all cases, follow the rules of courts of common law, in decid- ing upon the nature, extent, interpretation, and effect of lega- cies. There are some cases, in which courts of equity act upon principles peculiar to themselves in relation to legacies. 4 But any attempt to point them out in a satisfactory manner would require a general review of the whole doctrine of legacies, a task which is incompatible with the objects of the present com- mentaries. 6 CHAPTER XL CONFUSION OF BOUNDABIES. [* § 609-613. Ground of jurisdiction in regard to confusion of boundaries. § 614. The civil law held that the proprietors impliedly hound themselves to main- tain their boundaries. § 615. There must be some special ground of equitable interference. 1 Cod. Lib. 6, tit. 42, 1. 9, cited 4 Euss. very amply discussed in Mr. Roper's 27. Treatise on Legacies, as newly edited by 2 See Drury v. Smith, 1 P. Will. 404; Mr. White ; in 2 Fonbl. Eq. B. 4, Pt. 1, Blount v. Burrow, 4 Bro. Ch. 75 ; Ham- ch. 1, 2 ; in Jeremy on Eq. Jurisd. B. 1, brooke v. Simmons, 4 Buss. 25 ; Hill v. ch. 1, § 2, p. 104 to 135, and in Woodde- Hill, 8 Mees. & Welsh. 401 ; 1 Williams son, Lect. 60, p. 509, &c. The most im- on Executors and Administrators, Pt. 2, portant topics are the description of the B. 2, ch. 2, § 4, p. 548, note (v) (edit, persons who are to take; when legacies 1838). are specific ornot; when they are cum- 3 Ante, § 602 ; Beily v. Monck, 3 ulative or not ; when they lapse, or Bidgew. Pari. Cas. 243. merge ; when there is an ademption of 4 See 2 Fonbl. Eq. B. 4, Pt. 1, ch. 1, them ; when an abatement of them ; § 4, 5, and notes (t) and [I) ; 3 Wooddes. when conditional ; when personal, or Lect. 59, p. 479, 480, 481 ; id. 494 ; Jeremy chargeable on land ; when they vest ; on Eq. Jurisd. B. 1, ch. 1, § 2, p. 106 ; when interest is allowed ; and, lastly, the Arnald v. Arnald, 1 Bro. Ch. 403. marshalling of assets in favor of them. 6 The whole subject of legacies is KQ. jur.— vol. I. 38 594 EQUITY JURISPRUDENCE. [CH. XI. § 616. Lord Northington's definition. § 617. Lord Thurlow's ground of denying the jurisdiction. § 618. Not allowable, to determine right to tithes. § 619. Fraud a special ground of equitable interference. § 620. So where the confusion resulted from breach of confidence. § 621. So also to prevent multiplicity of suits. § 622. Where otherwise rents cannot be enforced by distress. § 623. Where an agent has fraudulently mingled his goods with those of the prin- cipal, equity treats them as belonging to the principal.] § 609. Having disposed of the subject of administration and LEGACIES, we shall next proceed to the consideration of another head of concurrent jurisdiction, arising from the confusion of the boundaries of land, and the confusion or entanglement, of other rights and claims of an analogous nature, calling for the interposi- tion of courts of equity, in order to restore, and ascertain, and fix them. § 610. In the first place, in regard, to confusion op boun- daries. The issuing of commissions to ascertain boundaries is certainly a very ancient branch of equity jurisdiction. 1 A num- ber of cases of this sort will be found in the earliest of the chancery reports. Thus, in Mullineux v. Mullineux, in 14th Jac. I., a commission was awarded, " to set out lands, that lye promiscuously, to be liable for the payment of debts." In Peck- ering v. Kimpton, 5 Car. I., 2 a commission was awarded, "to set out copyhold lands free from lands which lye obscured ; if the commissioners cannot sever it, then to set out so much in lieu thereof." § 611. It is not very easy to ascertain with exactness the origin of this jurisdiction. 3 It has been supposed by Lord Northington and. Lord Thurlow, that . consent was the ground upon which it was originally exercised. 4 There are two writs in the register, concerning the adjustment of controverted boundaries, from one of which (in the opinion of Sir William Grant) it is probable that the exercise of this jurisdiction in the Court of Chancery took its commencement. 5 The one is the writ De Rationahilibus divisis, which properly lies, where two men have lands in divers 1 Jeremy on Eq. Jurisd. B. 3, ch. 1, Glamorganshire Co., 1 Phillips, Ch. 681. § 3, n. 1, p. 301, 302. See Co. Litt. 169 a; Hargrave's note 2 Tothill, 39 (edit. 1649). See also 23, vii. Wake v. Conyers, 1 Eden, 337, note ; 2 » Ibid. White & Tudor's Eq. Lead. Cases, 318, * Speer v. Crawter, 2 Meriv. 417. and notes ; Marquis of Bute v. The 6 Ibid. ; Eegist. Breyium, 167 6. § 609-613.] confusion op boundaries. 595 towns or hamlets, so that one is seised of the land in one town or hamlet, and the other of the land in the other town or hamlet by himself ; and they do not know the boundaries of the towns or hamlets, whereby to ascertain which is the land of one, and which is the land of the other. In such a case, to set the bounds cer- tain, this writ lies for the one against the other. 1 The other writ is Be Peramhdatione facienda. This writ is sued out with the assent of both parties, where they are in doubt of the bounds of their lordships or manors, or of their towns. And upon such assent, the writ issues to the sheriff to make the perambulation, and to set out the bounds and limits between them in certainty. 2 And it is added, in Fitzherbert (in which he follows the rule of the Registnim Brevium), that the perambulation may be made for divers towns, and in divers counties; and the parties ought to come into the chancery, and there acknowledge and grant that a perambulation be made betwixt them ; and the acknowledgment shall be enrolled in the chancery, and thereupon a commission or writ shall issue forth. 3 § 612. Sir William Grant further supposes, that the jurisdic- tion having thus originated in consent, the next step would prob- ably be, to grant the commission on the application of one party, who showed an equitable ground for obtaining it, such as that a tenant or copyholder had destroyed, or not preserved, the boundaries between his own property and that of his lessor or lord. And to its exercise, on such an equitable ground, no objec- tion has ever been made, 4 and, it may be added, no just objection can be made. § 613. This account of the origin of the chancery jurisdiction seems highly probable in itself ; but however satisfactory it may seem, it can scarcely be said to afford more than a reasonable con- jecture, and is not a conclusive proof that such was the actual origin. In truth, the recent discoveries made of the actual exer- cise of chancery jurisdiction in early times, as disclosed in the Keport of the Parliamentary Commissioners, already referred to in a former part of these Commentaries, are sufficient to teach us to rely with a subdued confidence upon all such conjectural sources of jurisdiction. 6 It is very certain, that in some cases 1 Fitzherb. Nat Brev. 300 [128]. * Speer v. Crawter, 2 Meriv. 417. 2 Fitzherb. Nat. Brev. 309 [188]. 6 Ante, § 47, 48, and notes ; ibid. § 44, 8 Ibid. ; Regis. Brev. 157, and Eegula, and notes. ibid. 596 EQUITY JURISPRUDENCE. [CH. XI. the court of chancery has granted commissions, or directed issues, on no other apparent ground, than that the boundaries of manors were in controversy. 1 And Lord Northington seems to have assigned a different origin to the jurisdiction from that already suggested, upon one important occasion, at least ; namely, that parties originally came into the court for relief, in cases of con- fusion of boundaries, under the equity of preventing multiplicity of suits. 2 § 614. The civil law was far more provident than ours upon the subject of boundaries. It considered, that there was a tacit agreement, or duty, between adjacent proprietors, to keep up and preserve the boundaries between their respective estates ; and it enabled all persons having an interest to bring a suit to have the boundaries between them settled ; and this, whether they were tenants for years, usufructuaries, mortgagees, or other proprietors. The action was called actio finium regendorum ; and if the pos- session was also in dispute, that might be ascertained and fixed in the same suit, and, indeed, was incident to it. 3 Perhaps it might not have been originally unfit for courts of equity to have enter- taineid the same general jurisdiction, in cases of confusion of boundaries, upon the ground of enforcing a specific, performance of the implied engagement or duty of the civil law. Such a broad origin or exercise of the jurisdiction has, however, never been claimed or exercised. § 615. But, whatever may have been the Origin of this branch of jurisdiction, it is one which has been watched with a good deal of jealousy by courts of equity of late years ; and there seems no inclination to favor it, unless special grounds are laid to sustain it. The general rule now adopted is, not to entertain jurisdic- tion, in cases of confusion of boundaries, upon the ground, that the boundaries are in controversy ; 4 but to require that there should be some equity superinduced by the act of the parties; such as some particular circumstances of fraud ; or some con- fusion, where one person has ploughed too near another ; or some ' Ibid. See Lethulier v. Castlemain, note 23 ; Dig. Lib. 10, tit. 1, 1. 1, per I Dick. 46 ; b. c. 2 Eq. Abridg. 161 ; Sel. tot. Cas. Ch. 60; Metcalf v. Beckwith, 2 P. * Haskell v. Allen, 23 Maine, 448; Will. 376. Stewart v. Coulter, 4 Eand. 74 ; Hale v. 2 Wake v. Conyers, 1 Eden, 334 ; 8. c. Darter, 6 Humph. 79 ; Topp v. Williams, 1 Cox, 360. 1 Humph. 569. But see Lethulier v. » See 1 Domat, B. 2, tit. 6, § 1, 2, Castlemain, 1 Dick. 46 ; s. o. 2 Eq. p. 308, 309; Co. Litt. 169 a, Hargrave's Abridg. 161; Sel. Cas. in Ch. 60. § 613-617.] CONFUSION OP BOUNDARIES. 597 gross negligence, omission, or misconduct, on the part of per- sons whose special duty it is to preserve or perpetuate the bound- aries. 1 § 616. Where there is an ordinary legal remedy, there is cer- tainly no ground for the interference of courts of' equity, unless some peculiar equity supervenes, which a court of common law cannot take notice of or protect. It has been said by Lord North- ington, that where there is no legal remedy, it does not therefore follow, that there must be an equitable remedy, unless there is also an equitable right. Where there is a legal right, there must be a legal remedy ; and if there is no legal right, in many cases there can be no equitable one. 2 On this account he dismissed a bill to settle the boundaries between manors, it appearing, that there was no dispute as to the right of soil and freehold, on both sides the boundary marks (which right was admitted by the bill to be in the defendant), and that the right of seigniory alone (an incorporeal hereditament), and not that of the soil, was in dispute. And his lordship on this occasion remarked, that " all the cases where the court has entertained bills for establishing boundaries have been where the soil itself was in question, or where there might have been a multiplicity of suits." 3 § 617. So in a case, where a bill was brought by one parish against another to ascertain the boundaries of the two parishes in making their rates ; and a number of houses had been built upon land formerly waste ; and it was doubtful to which parish each part of the waste belonged ; Lord Thurlow refused to interfere, and observed that the greatest inconvenience might arise from doing so. For, if a commission were granted, and .the bounds set 1 Wake v. Conyers, 1 Eden, 331 ; s. c. of suits, and to see whether an injunction 1 Cox, 360. See Miller v. Warmington, shall be made perpetual. DeVeney v. 1 Jac. & Walk. 473 ; Eden on Injunc- Gallagher, 5 C. E. Green, 33. It seems tions, ch. 16, p. 361, 362. [Equity has no equity may enforce an oral agreement jurisdiction to fix the boundaries of legal to fix a boundary. Jamison o. Petit, 6 estates in the absence of other ground for Bush (Ky.), 669. Boundaries may be equitable relief. Wetherbee v. Dunn, 36 fixed by commission in Illinois. Town- Cal. 249; Norris' Appeal, 64 Penn. St. send v. Eadcliffe, 66 111. 9. As to lost 275. To give jurisdiction as to bound- boundaries, see Thomas v. Sayles, 66 ariiis there must be some equity superin- 111. 363. duced by the acts of the parties. Tillmes 2 Ibid. v. Marsh, 67 Penn. 507. And see Perry 8 Wake v. Conyers, 1 Eden, 331 ; a. c. v. Pratt, 31 Conn. 433. Where there is 1 Cox, 360. See Miller v. Warmington, confusion of boundaries and such injury is 1 Jac. & Walk. 473 ; Eden on Injunctions, threatened as equity will restrain, it will ch. 16, p. 361, 362. take jurisdiction to prevent multiplicity 598 EQUITY JURISPRUDENCE. [CH. XL out by commissioners, any other parties, on a different ground of dispute, might equally claim another commission. These other commissioners might make a different return, and so, in place of settling differences, endless confusion would be created. 1 In another report of the same case, he is reported to have said, If he should entertain the bill, and direct an issue in such a case as that, he did not see what case would be peculiar to the courts of law, and he did not know how to extract a rule from the Mayor of York v. Pilkington. 2 Where there was a common right to be tried, such a proceeding was to be understood. That boundary between the two jurisdictions was apparent. This is the case, where the tenants of a manor claim a right of common by custom, because the right of all the tenants of the manor is tried by trying the right of one. But in the case before him, he saw no common right, which the parishioners had in the boundaries of the parish. It would be to try the boundaries of all the parishes in the kingdom on account of the poor-laws. 3 The ground of dismissing the bill seems, from these very imperfect statements of the case, to have been, first, that the proper remedy was at law ; and, secondly, that no equity was superinduced, for it would not even suppress multi- plicity of suits. § 618. In Atkins v. Hatton, 4 the court refused to entertain a bill brought by the rector of a parish principally for an account of tithes, and to have a commission to settle the boundaries of the parish and the glebe. The court said, " The plaintiff here calls upon the court to grant a commission to ascertain the boundaries of the parish, upon the presumption that all the lands which shall be found within those boundaries would be tithable to him. That is, indeed, a primd facie inference ; but by no means conclusive. 1 St. Luke's v. St. Leonard's Parish, or and also for a discovery arid account of Warring v. Hotham, cited by Chief Baron the fish taken. The defendants demurred McDonald, in Atkins v. Hatton, 2 Anstr. to the bill as being matter cognizable at 395 ; s. c. 2 Dick. 550. law only. Lord Hardwicke at first sus- 2 1 Atk. 282 ; Warring v. Hotham, 1 tained the demurrer, but afterwards over- Bro. Ch. 40, and Mr. Belt's note (2.) The ruled it. Lord Thurlow disapproved of case of the Mayor of York v. Pilkington, this final decision ; and to this a part of 1 Atk. 282, was a bill brought to quiet his reasoning, in 1 Bro. Ch. 40, is ad- the plaintiffs in a right of fishery in the dressed. river Ouse, of which they claimed the 8 Warring v. Hotham, or St. Luke's v. sole fishery against the defendants, who St. Leonard's Parish, 1 Bro. Ch. 40; s. o. (as was suggested in the bill) claimed 2 Dick. 250. See Metcalf v. Beckwith, 2 several rights, either as lords of manors, P. Will. 376. or as occupiers of the adjacent lands ; 4 2 Anstr. 386. § 617-620.] confusion op boundaries. 599 And there is no instance of the court ever granting a commission, in order to attain a remote consequential advantage. It is a juris- diction which courts of equity have always been very cautious of exercising." It is observable, that no special equity was here set up. But the party desired the commission solely upon the ground of founding a possible right against some persons for tithes, upon the ground, that the land which they occupied was intraparochial and tithable. This was properly a matter at law to be ascertained by a special suit against every owner or occupant of land severally, and not against them jointly, in a bill to ascertain boundaries. § 619. These cases are sufficient to show, that the existence of a controverted boundary by no means constitutes a sufficient ground for the interposition of courts of equity, to ascertain and fix that boundary. Between independent proprietors such cases would be left to the proper redress at law. 1 It is, therefore, necessary to maintain such a bill (as has been already stated), that some pecu- liar equity should be superinduced. 2 In other words, there must be some equitable ground attaching itself to the controversy. And we may, therefore, inquire, what will constitute such a ground? This has been in part already suggested. In the first place, it may be stated, that if the confusion of boundaries has been occasioned by fraud, that alone will constitute a sufficient ground for the interference of the court. 3 And if the fraud is established, the court will by commission ascertain the boundaries, if practicable ; and, if not practicable, will do justice between the parties by assigning reasonable boundaries, or setting out lands of equal value. 4 § 620. In the next place, it will be a sufficient ground for the exercise of jurisdiction, that there is a relation between the parties, which makes it the duty of one of them to preserve and protect the boundaries ; and that by his negligence or misconduct, the 1 Speer v. Crawter, 2 Meriv. 410, 417 ; the same cause. See Atkins v. Hatton, 2 Miller v. Warmington, 1 Jac. & Walk. Anstruth. 396. 484; Locker v. Kolle, 3 Ves. 4. [* See 4 Speer v. Crawter, 2 Meriv. 418; Wolcott v. Bobbins, 26 Conn. 236.] Duke of Leeds v. Earl of Strafford, 4 2 Wake v. Conyers, 1 Eden, 331 ; s. c. Ves. 181 ; Grierson v. Eyre, 9 Ves. 345 ; 1 Cox, 360 ; Speer v. Crawter, 2 Meriv. Attorney-General v. Eullerton, 2 Ves. & 417, 418. Beam. 263 ; Willis v. Parkinson, 2 Meriv. 8 This is understood to have been the 507. The common form of a decree for ground of the decision of the House of a commission, in a case of this nature, Lords in Rouse v. Barker, 3 Bro. Ch. 180, will be found in Willis v. Parkinson, 2 reversing the decree of the Exchequer in Meriv. 506, 509 ; Duke of Leeds v. Straf- ford, 4 Ves. 186. 600 EQUITY JURISPRUDENCE. [CH. XI. confusion of boundaries has arisen. Thus, if, through the default of a tenant, or a copyholder (who is under an implied obligation to preserve them), there arises a confusion of boundaries, the court will interfere, as against such tenant or copyholder, to ascer- tain and fix the boundaries. 1 But, even in such cases, it is further indispensable to aver, and to establish by suitable proof, that the boundaries, without such assistance, cannot be found. 2 And the relation of the parties, entitling them to the redress, must also be clearly stated ; for where the parties claim by adverse titles, with- out any superinduced equity, we have already seen, that the remedy is purely at law. 3 § 621. In the next place, a bill in equity will lie to ascertain and fix boundaries, when it will prevent a multiplicity of suits. This is an old head of equity jurisdiction ; and it has been very properly applied to cases of boundaries. 4 Indeed, in many cases of this nature, as, for instance, where the right affects a large number of persons, such as a common right in lands, or in a waste claimed by parishioners, commoners, and others, where the boundaries have become confused by lapse of time, accident, or mistake, the appropriate remedy to adjust such conflicting claims, and to prevent expensive and interminable litigation, seems properly to be in equity. 5 And it will not constitute any objection to a bill to settle the boundaries between two estates, that they are situate in a foreign country, if, in other respects, the bill is, from its frame, properly maintainable. 6 § 622. There are cases of an analogous nature (which constitute the second class of cases, arising from confusion or entanglement of other rights and claims than to lands), where a mischief, other- wise irremediable, arising from confusion of boundaries, has been 1 Ibid. ; Ashton w. Lord Exeter, 6 Yes. See Whaley v. Dawson, 2 Sch. & Lefr. 293; Miller v. "Warmington, 1 Jac. & 370,371. Walk. 472 ; Attorney-General a. Fuller- 5 See ibid. ; Marquis of Bute o. The ton, 2 Ves. & Beam. 263; Speer v. Craw- Glamorganshire Co., 1 Phillips, Ch. 681. ter, 17 Ves. 216. « Penn v. Lord Baltimore, 1 Ves. 444; 2 Miller v. Warmington, 1 Jac. & Walk. Pike v. Hoare, 2 Eden, 182 ; Bayley v. 472. Edwards, 3 Swanst. 703 ; Tulloch v. Hart- 8 Boid. ley, 1 Younge & Coll. New Cas. in Chan. 4 Wake v. Conyers, 1 Eden, 331 ; s. c. 114. [* We trust it will not be inferred 1 Cox, 360 ; Warring v. Hotham, 1 Bro. from what is said in the text, that courts Ch. 40 ; s. c. cited 2 Anstruth. 395 ; Bou- of equity will entertain a bill to settle verie a. Prentice, 1 Bro. Ch. 200 ; Mayor boundaries, in a strictly foreign country, of York v. Pilkington, 1 Atk. 282, 284. having no dependence upon the State where the court exists.] § 620-624.J dower. 601 redressed in courts of equity. Thus, where a rent is chargeable on lands, and the remedy by distress is, by confusion of boundaries or otherwise, become impracticable, the jurisdiction of equity has been most beneficially exerted to adjust the rights and settle the claims of the parties. 1 § 623. Other illustrations will present themselves more appro- priately under other heads, in the course of these Commentaries. One instance, however, may be mentioned, in which courts of equity administer the most wholesome moral justice, following out the principles of law, and that is, where an agent, by fraud or gross negligence, 2 has confounded his own property with that of his principal, so that they are not distinguishable. In such a case, the whole will be treated in equity as belonging to the principal, so far as it is incapable of being distinguished. 3 CHAPTER XII. DOWBK. [* § 624-631. In England, courts of equity seem to possess an independent con- current jurisdiction in matters of dower. And although most of the cases may be justified upon special grounds for resort to equity, such as the necessity for discovery, or the removal of intervening titles, and the like, yet they are not decided, mainly, upon any such grounds. § 632. In America, the resort to courts of equity, in matters of dower, is much less frequent, and generally for some special reason. § 632 a, 632 6. How far settlements bar claim of dower.] § 624. Another head of concurrent equitable jurisdiction is in matters of dowee. As dower is a strictly legal right, it might seem, at first view, that the proper remedy belonged to courts of 1 Bowman v. Yeat, cited 1 Ch. Cas. will forfeit his property in his portion. 145, 146 ; Duke of Leeds v. Powell, 1 See Pratt v. Bryant, 20 Verm. 333.] Ves. 171, and Belt's Supp. 98 ; Bouverie 8 Lupton v. White, 16 Ves. 432 ; Pan- v. Prentice, 1 Bro. Ch. 200 ; North v. Earl ton v. Panton, cited ibid. ; Chedworth v. of Strafford, 3 P. Will. 148, 149 ; Duke Edwards, 8 Ves. 46 ; Hart v. Ten Eyck, 2 of Leeds v. New Radnor, 2 Bro. Ch. 338, Johns. Ch. 108; 2 Black. Comm. 405; 518 ; Attorney-General v. Stephens, 35 Story on Bailm. § 40 ; ante, § 468 ; Bryant Eng. Law & Eq. 390 ; Mitf . Eq. PI. by v. Ware, 30 Maine, 237, 295, 370 ; 2 Black. Jeremy, 117 ; 1 Fonbl. Eq. B. 1, ch. 3, § 3, Comm. 405 ; 4 Burr. 2349 ; Colburn v. and note (g). Post, § 689. Simms, 2 Hare, 554, cited at large, post, 2 [Qtuisre, whether negligence merely, § 933, note, of the agent, in permitting the confusion, 602 EQUITY JURISPRUDENCE. [CH. XII. common law. The jurisdiction of courts of equity, in matters of dower for the purpose of assisting the widow by a discovery of lands or title-deeds, or for the removing of impediments to her rendering her legal title available at law, has never been doubted. 1 And indeed, it is extremely difficult to perceive any just ground upon which to rest an objection to it, which would not apply with equal force to the remedial justice of courts of equity, in all other cases of legal rights in a similar predicament. But the question has been made, how far courts of equity should entertain general jurisdiction to give general relief in those cases where there ap- pears to be no obstacle to her legal remedy. 2 Upon this question there has, in former times, been no inconsiderable discussion, and some diversity of judgment. But the result of the various deci- sions upon this subject is, that courts of equity will now entertain a general concurrent jurisdiction with courts of law in the assign- ment of dower in all cases. 3 The ground most commonly sug- gested for this result is, that the widow is often much embarrassed, in proceedings upon a writ of dower at the common law, to discover the titles of her deceased husband to the estates out of which she claims her dower (the title-deeds being in the hands of heirs, devi- sees, or trustees) ; to ascertain the comparative value of different estates ; and to obtain a fair assignment of her third part. 4 In i 1 Fonbl. Eq.B. l,ch. 1, §3,note(/). v. Casperson, 2 C. E. Green, 204. It 2 1 Fonbl. Eq.B. l,ch. 1, § 3, note (/) ; seems equity cannot, in the exercise of Huddlestone v. Huddlestone, 1 Ch. 38 ; its general jurisdiction, order a sale of Park on Dower, ch. 15, p. 317. the property and money compensation 8 Curtis v. Curtis, 2 Bro. Ch. 620 ; for dower against the will of the widow Mundy v. Mundy, 2 Ves. Jr. 122 ; s. c. 4 unless it is impossible to set out dower. Bro. Ch. 294 ; Blain v. Harrison, 11 111. See White «. White, 16 Gratt. 264. See 388. I am aware that Mr. Park, in his Cronkright v. Haulenbeck, 25 N. J. Eq. excellent Treatise on Dower, doubts if 513 ; 23 N. J. Eq. 407. When the land the doctrine is maintainable to this full has been taken under right of eminent extent. But, notwithstanding his doubts, domain, or sold under power in a will, it appears to me the just result of the whether a gross sum can be given in lieu authorities, and maintainable upon prin- of dower without consent of widow, ciple. Indeed, Mr. Park seems to admit qucere. See Bonner v. Peterson, 44 111. that where a discovery or account is 253; Cook v. Cook, 5 C.E.Green, 375; wanted, there seems no just objection to Summers v. Donnell, 7 Heisk. 565. It the jurisdiction. Park on Dower, ch. 15, has been held that where vendee dies p. 317, 320, 325, 326, 329, 330 ; Strickland after having paid purchase-money, the v. Strickland, 6 Beav. 77, 81. [Brooks widow may bring her bill against the v. Woods, 40 Ala. 638. But equity will vendor and the heirs of the vendee to not decide whether the widow is legally compel a conveyance to heirs and an as- entitled to dower, and if the legal right signment of dower. Smith v. Smith, 1 is questioned it is within the discretion of Wins. (N. C.) No. 2, Eq. 30.] the court to retain the bill to give oppor- * Mitf . Eq. PI. 121, 122, 123, by Jeremy, tunity for suit, or direct an issue, or dis- and note (a) ; Jeremy on Eq. Jurisd. B. 3, miss the bill without prejudice. Palmer Pt. 2, ch. 508, 590. § 624-626.] dower. 603 such cases, where the title of the widow to her dower is not dis- puted, the court proceeds directly to the assignment of dower ; but, if the title is disputed, it is first required to be established by an issue at law, or otherwise. 1 § 625. There are some cases, in which the remedy for dower in equity seems indispensable. 2 At law, if the tenant dies after judg- ment, and before damages are assessed, the widow loses her dam- ages. And so, if the widow herself dies before the damages are assessed, her personal representative cannot claim any. But a court of equity will, in such cases, entertain a bill for relief ; and decree an account of rents and profits, against the respective rep- resentatives of the several persons who may have been in posses- sion of the estate since the death of the husband ; provided, at the time of filing the bill, the legal right to damages is not gone. 3 § 626. Upon principle, there would not seem to be any real difficulty in maintaining the concurrent jurisdiction in courts of equity in all cases of dower ; for a case can scarcely be supposed in which the widow may not want either a discovery of the title- deeds, or of dowable lands ; or some impediment to her recovery at law removed ; or an account of mesne profits before the assign- ment of dower ; or a more full ascertainment of the relative values of the dowable lands ; and for any of these purposes (independent of cases of accident, mistake, or fraud, or other occasional equi- ties), there seems to be a positive necessity for the assistance of a court of equity. 4 And, if a court of equity has once a just possession of the cause in point of jurisdiction, there seems to be no reason why it should stop short of giving full relief, instead of turning the dowress round to her ultimate remedy at law, which is often dilatory, and always expensive. 5 Dower is favored, as well 1 Ibid. ; Park on Dower, ch. 15, p. 329. p. 7, 1830), say : *The necessity for a 2 [So where widow claimed an undi- discovery to ascertain the state of the vided half as heir and dower in the rest, legal title before a widow can safely re- Ringhouse v. Keever, 49 111. 470.] solve to commence an action against any 8 Park on Dower, ch. 15, p. 330 ; id. person as tenant of the freehold, and the 309 ; Curtis v Curtis, 2 Bro. Ch. 632 ; convenience of a commission for setting Dormer v. Fortescue, 3 Atk. 130 ; Mor- out her dower under the authority of a daunt a. Thorold, 3 Lev. 275 ; 1 Salk. court of equity, generally make it expe- 252. dient that a suit in equity should be 4 The action of dower is now, in con- instituted." [See McAllister's Ex'or v. sequence of the jurisdiction in equity McAllister, 37 Ala. 484 ; Boyd v. Hunter, being established, less frequently re- 44 Ala. 705 ; Irvine Adm'r v. Armistead, sorted to at law than in former times. 46 Ala. 363 ; Donoghue v. Chicago, 57 111. And the parliamentary commissioners in 235.] their report (2 Report of Common Law, 5 g ee Park on Dower, ch. 15, p. 318. 604 EQUITY JURISPRUDENCE. [CH. XII. in law as in equity. 1 And the mere circumstance, that a discovery of any sort may be wanted to enforce the claim, would, under such circumstances, seem to furnish a sufficient reason why the juris- diction for discovery should carry the jurisdiction for relief. 2 § 627. Lord Eldon has put this matter in a strong light. After having remarked, that he did not know any case, in which an heir had claimed, merely as heir, an account (of mesne profits), without stating some impediment to his recovery at law ; as, that the defendant has the title-deeds necessary to maintain his title ; that terms are in the way of his recovery at law ; or other legal impediments, which do, or may probably, prevent it ; upon which probability, or upon the fact, the court might found its jurisdic- tion ; he proceeded to say : " The case of the dowress is upon a principle' somewhat, and not entirely, analogous to that of the heir. An indulgence has been allowed to her case, upon the great difficulty of determining d priori, whether she could recover at law, ignorant of all the circumstances ; and the person, against whom she seeks relief, &c, having in his possession all the infor- mation necessary to establish her rights. Therefore it is consid- ered unconscientious in him to expose her to all that difficulty, to which, if that information was fairly imparted, as conscience and justice require, she could not possibly be exposed." 3 § 628. But the propriety of maintaining a general jurisdiction in equity, in matters of dower, is still more fully vindicated in a most elaborate opinion of Lord Al van ley, when Master of the Rolls, in a case which now constitutes the polar star of the doc- 1 Com. Dig. Chancery, 3 E. 1, 2. See the power of the defendant to raise Blain v. Harrison, 11 111. 388. those difficulties, this court will not only 2 See Dormer v. Fortescue, 3 Atk. 130, restrain the defendant from raising the 131 ; Moor v. Black, Cas. temp. Talb. difficulties, but will assume the whole 126 ; Herbert v. Wren, 7 Cranch, 370, jurisdiction over the case ; and if this 376 ; Curtis v. Curtis, 2 Bro.' Ch. 620 ; were so, the plaintiff might be entitled to Mundy v. Mundy, 2 Ves. Jr. 122 ; s. c. 4 relief on this bill. But there is no such Bro. Ch. 294 ; Graham v. Graham, 1 Ves. general rule ; there are, indeed, some 262 ; D'Arcy v. Blake, 2 Sch. & Lefr. 389, particular cases of legal right, such as 390 ; Powell v. The Monson Manuf. Co., dower and partition, in which the court 3 Mason, 347. has assumed a general jurisdiction, prob- 8 Pulteney v. Warren, 6 Ves. 89. See ably in consequence of the difficulties to Co. Litt. 208, Butler's note (105), as to which the plaintiff would be subjected dower in the case of a mortgage for a in seeking to obtain complete justice at term of years. Strickland v. Strickland, law ; but, in other cases, the plaintiff is 6 Beav. 77, 80. In this case Lord Lang- to show what the difficulties are, and how dale said : " It was argued that if diffi- they impede him in a manner contrary to culties are shown to exist, and if, from equity, and his bill ought to pray to be the nature of the case it appears to be in relieved from them." § 626-628.] doweb. 605 trine. After adverting to the fact, that dower is a mere legal demand, and the widow's remedy is at law, he said : " But then, the question comes whether the widow cannot come, either for a 'discovery of those facts, which may enable her to proceed at law ; and on an allegation of impediments thrown in her way in her proceedings at law, this court has not a right to assume a jurisdic- tion to the extent of giving her relief for her dower ; and, if the alleged facts are not positively denied, to give her the full assist- ance of the court, she being, in conscience as well as at law, entitled to her dower." He then proceeded to state the reasons why the widow should have the assistance of the court by relief, as well as by discovery ; insisting that the case of the widow is not distinguishable from that of an infant, where the relief would be clearly granted ; and that it would be unconscientious to turn her round to a suit at law, for the recovery of her dower, which must he supposed to be necessary for her to live upon, when she has been compelled to resort to equity for a discovery. And he finally concluded by saying, that the widow labors under so many disad- vantages at law that she is fully entitled to every assistance that this court can give her, not only in paving the way for her to establish heu right at law, but also by giving complete relief when the right is ascertained. 1 1 Curtis v. Curtis, 2 Bro. Ch. 620, 630 for the widow, by giving her damages. If to 634. The judgment of the Master the widow was disturbed in her quaran- of the Rolls contains so masterly a view tine, she had a particular writ penned for of the doctrine, that I venture to tran- her relief. As to dower, the widow, at scribe the material passages, as they can- first, was only entitled to have an assign- not be abridged without injury to their ment of the land by metes and bounds, force. " Dower, therefore, is a mere Then came the statute of Merton, which legal demand, and the widow's remedy is showed particular anxiety for the relief prima fade at law. But, then, the ques- of widows. And it is curious to see that tion comes, whether the widow cannot the attempt now is to drive the widow to come either, for a discovery of those that remedy, as the least advantageous, facts which may enable her to proceed though it is very evident the statute was at law ; and, on an allegation of inrpedi- meant to give her an additional remedy, ments thrown in her way in her proceed- The deforcers of dower are (by that ings at law, this court has not a right to statute) to be in mercy, or fined at the assume a jurisdiction, to the extent of giv- pleasure of the king, which, in those ing her relief for her dower, and, if the days, was a very serious thing, and was alleged facts are not positively denied, to meant as a real punishment to deforcers. give her the full assistance of this court, I own, I think it an odd construction she being, in conscience as well as at law, of this statute, that the damages given entitled to her dower. Her remedy at by it are to be considered strictly as law is a writ of dower. Generally, there damages, that is, as vindictive damages are no damages in real action ; but so in the breast of a jury, and not capable favorable was the law to this particular of ascertainment by the court, and that, action, that it provided a special relief therefore, they are to die with the person. 606 EQUITY JURISPKUDBNCE. [CH. XII. § 629. Dower, as has been already suggested, is highly favored in equity. And, as was said by the Master of the Rolls (Sir However, so it has been determined. As to what is said in Saver's Law of Dam- ages, that a widow shall have no dam- ages, when her dower is assigned to her in chancery, it certainly is a mistake of the meaning of Co. Litt. 33 a ; for Coke is there speaking of the writ de Dote as- tignanda issued by the Court of Chancery, and not a decree of a court of equity. Li Pitzherbert's Natura Brevium, the nature of the writ de Dote assignanda appears very clear ; and on this there are no dam- ages, because there is no deforcement of the widow, who is put to no trouble, but has a summary remedy provided for her. Now, as to the cases which have been cited, Hutton v. Simpson, 2 Vern. 722, does not seem to bear much upon this case. Tilley v. Bridges, Prec. Ch. 252, is also reported in 2 Vern. 519 ; and I have some doubt about the authority of that case, for it is more particularly stated in Vernon than in Prec. Ch. ; and yet, what is said in Vernon, as to the in- junction not preventing the entry, cer- tainly cannot be right. Duke of Bolton v. Deane, Norton w. Precker, and other cases, have been mentioned, to show that there must be some fraud to give this court a jurisdiction, and that in the sim- ple case of a widow claiming her dower no such jurisdiction exists. Dormer v. Portescue is also brought to show, that there must either be an infant concerned, or some particular circumstances in the case, to entitle this court to proceed. Now, it seems difficult to distinguish the two cases of the infant and the widow. The principle in the case of the infant is, that he is thought not conusant of his rights at law sufficiently to enable him to proceed there; and therefore the Court of Equity will give him all the relief he could have at law, and something more ; for, on a bill by an infant for an account, he will get the mesne profits, which would certainly be gone at law by the death of the party. I argue in the same manner for the widow. She comes here and says, ' The law gives me dower out of the es- tates of my husband and the mesne profits from his death ; I do not know how to proceed ; for if there should turn out to be any mortage or term of years, in my way, then I must pay the costs. The de- fendant has all the title-deeds in his hands, and knows what the estates are ; his conscience is affected; and yet, in- stead of putting me in possession of my rights, he turns me out of doors and keeps all the title-deeds.' Now, I think this argument is a strong one, on the sub- ject of fraud and concealment on the part of the heir, in not informing the widow of all that is necessary to enable her to proceed safely at law. H, then, she comes here for a discovery of these matters, which the heir withholds from her, she shall have her complete relief in this court. If you deny her right to dower, the question must be tried at law ; but, when the fact is ascertained, she shall have her relief here. It must be supposed the dowress has nothing to live upon but her dower, and the mesne prof- its are her subsistence from the time of her husband's death ; and the course of this court seems, therefore, to have been to assign her dower, and universally to give her an account from the death of her husband. I admit she has no costs, where the heir has thrown no difficulties in her way ; and, if the heir admits the widow's case, he is safe. I wished to find, if I could, any instance of the wid- ow's being turned round on such a case as this ; but, verily, I believe there is no such instance. And, indeed, the case of Moor v. Black (Cas. temp. Talb. 126) is pretty clear to show, that Lord Talbot thought the widow's claim to be rightly made here ; for he overruled the demur- rer in that case on both points. It shows that the difficulty, under which a widow labors, is a reason for her coming here. Delver v. Hunter does not govern this case ; for there the widow had recovered possession. Lucas v. Calcraft has also been mentioned, as showing that this court would give no other relief as to dower than such as the law would give the widow ; and that the Lord Chancellor had refused to give costs in that case, because no costs were given at law. But, in that case, the heir had thrown no im- pediment in the widow's way, and, there- § 629.] DOWER. 607 Thomas Trever), on one occasion, the right that a dowress has to her dower, is not only a legal right, and so adjudged at law ; but fore, there were no costs on either side. Now, taking it for granted, that the widow, coming after the death of the heir, would not be entitled to her mesne profits, it by no means follows, that when the widow is right in this court, but the heir happens to die before she has fully established her right, she is not entitled to her mesne profits ; for unquestionably, if the heir, instead of contesting the wid- ow's right, had admitted it, she would hare been entitled to her decree for mesne profits, and his having thrown an impediment in her way shall not make the difference. At the same time, I must again admit that the widow's right at law is gone by the death of the party. Mor- daunt v. Thorold is principally relied upon as to this point. It has been cited from Salkeld, tit. Dower; but it is also reported in 3 Lev. 275, and the result is stated differently in the latter book, though the state of the case seems copied from the other ; for in Levinz it is said the court inclined to that opinion, but it being a new case, they would advise, and no deci- sion was given ; and it is to be observed that Levinz was himself counsel in that case. Aleworth v. Roberts, 1 Lev. 38, is mentioned in the former case ; there the action was against the heir of the heir and the alienee of the heir, and not against the heir's executor ; and the ground of that case was, that neither the heir nor the alienee were deforcers, and the damages were not a lien upon the land; and then the distinction is taken between the cases of tithes and dowers, — that, in the first case, the damages were certain ; in dower, uncertain. But surely, in common sense, they are equally cer- tain. If it were not for the case of Mor- daunt v. Thorold, I really should have doubted much the construction of this statute. I should have thought that the damages given by the statute were cer- tain, and were not arbitrary, uncertain damages, to be ascertained by the discre- tion of a jury. However, it does seem a settled point at law, and that at law the widow could not have recovered against the executor of Thomas Curtis. This being so, it is insisted, on the part of the widow, that still she has a right to come here for full relief, and that she ought to be in the same situation as if the heir had admitted her claim at first (and, to be sure, in this case, the heir has given every opposition to her claim that he possibly could) ; and that, in this and many other cases, this court gives a further remedy than the law will do. It is true, where the law gives neither right nor remedy, however hard it may be, equity cannot assist. So in the case of damages for a personal injury, which arises ex de- licto, and not ex contractu, they are gone with the person. But it is not so clear in the case of a demand, the recovery of which has been pre- vented by a difficulty, unconscientiously thrown m the way of another person. There, equity will give relief, and the relief it gives is beyond that which the party could obtain at law. It is the prac- tice in equity, that bond- creditors, com- ing for a distribution of assets, shall have an account of rents and profits which they could not have at law. And yet the same argument might be used against that additional relief, as has been used in this case. The law gives the creditor only the land to hold, until he is satisfied. Equity goes further and says, if the reme- dy at law is not sufficient, we will sell the inheritance of the estate, and, if that will not do, we will direct an account of rents and profits against the heir. Dor- mer v. Fortescue certainly supports these ideas very strongly, though, I am sure, Lord Hardwicke's words must have been misconceived by Mr. Atkyns, as to what he was supposed to have said in respect of the time from which the statute of 9 Henry III. gives the widow damages. But as far as one can collect Lord Hard- wicke's sentiments from that case, he thought this court would expect the widow to establish her title at law ; but, she having so done, would give her relief here as to the mesne profits. That is saying, let the widow bring her action at law, out of form, for the purpose of de- termining her title to dower, and, when she has done that, we will give her an adequate remedy. Here, I confess, I 608 EQUITY JURISPRUDENCE. [CH. 301. it is also a moral right to be provided for, and have a maintenance and sustenance out of her husband's estate to live upon. She is, therefore, in the care of the law, and a favorite of the law. And upon this moral law is the law of England founded, as to the right of dower. 1 So much is this the case, that the widow will be aided in equity for her dower against a term of years, which attends the inheritance, if it is not the case of a purchaser against whom she claims. 2 And if she has recovered her dower against an heir, who is an infant, and there is a term to protect the inheritance, which, by the neglect of his guardian, is not pleaded, the term will not be allowed in equity to be set up against her. 3 § 630. Indeed, so highly favored is dower, that a bill for a dis- covery and relief has been maintained, even against a purchaser, for a valuable consideration. without notice, who is, perhaps, gen- erally as much favored as any one in courts of equity. 4 The ground of maintaining the bill, in such a case, is, that the suit for dower is upon a legal title, and not upon a mere equitable claim, to which only the plea of a purchase for a valuable consid- eration has been supposed properly to apply. 5 This decision has been often found fault with, and, in some cases, the doctrine of it denied. It has, however, been vindicated, with great apparent force, upon the following reasoning. It is admitted, that dower agree most . fully in thinking, that the 3 Com. Dig. Chancery, 3 E. 1 ; Wray widow labors under so many disadvan- v. Williams, Pree. Ch. 151 ; s. c. 1 Eq. tages at law, from the embarrassments of Abridg. 219 ; 1 P. Will. 137 ; 2 Vern. trust terms, &c., that she is fully entitled 378, and Mr. Cox's note; Dudley & Ward to every assistance that this court can v. Dudley, Prec. Ch. 241 ; Banks v. Sut- give her, not only in paving the way for ton, 2 P. Will. 706, 707, 708 ; D'Arcy v. her to establish her right at law, but also Blake, 2 Sch. &Lefr. 389, 390; Swannock by giving complete relief, when the right v. Lyford, Ambl. 6, 7 ; Hitcbins v. Hitch- is ascertained." Curtis v. Curtis, 2 Bro. ins, 2 Freem. 242. Ch. 630 to 634; Strickland v. Strickland, * Ante, § 64 e, 108, 139, 163, 381, 409, 6 Beav. 77. 434, 436. 1 Dudley & Ward v. Dudley, Prec. Ch. 6 Williams v. Lambe, 3 Bro. Ch. 264. 244 ; Banks v. Sutton, 2 P. Will. 703, In Collins v. Archer, 1 Russ. & Mylne, 704. See Co. Litt. 208, Butler's note 284, Sir John Leach, following the case (105), when the widow is entitled to of Williams v. Lambe, held, that a pur- dower in case of a mortgage of the estate chaser for a valuable consideration with- for years. out notice had no defence in equity 2 Com. Dig. Chancery, 3 E. 1 ; Radnor against a plaintiff relying upon a legal v. Vandebendy, 1 Vern. 356; s. c. 2 Ch. title. But in Payne v. Compton, 2 Younge Cas. 172 ; Prec. Ch. 65 ; 1 Eq. Abridg. & Coll. 457, 461, Lord Abinger seems to 219; Dudley u. Dudley, lEq. Abridg. 219; have thought that such a purchaser D'Arcy v. Blake, 2 Sch. & Lefr. 389, 390 ; would be protected in equity against any Mole v. Smith, 1 Jac. 496, 497. [See An- claim by the owner of the legal estate, derson v. Pignet, L. R. 8 Ch. App. 180; Neither of these cases was a claim of 8. c. 11 Eq. 329.] dower by the plaintiff. § 629-631.J doweb. 609 is a mere legal right ; and that a court of equity, in assuming a concurrent jurisdiction with courts of law upon the subject, pro- fessedly acts upon the legal right ; 1 for dower does not attach upon an equitable estate. In so acting, the court should proceed in analogy to the law, where such a plea, of a purchase for a valuable consideration without notice, would not be looked at ; and, there- fore, as an equitable plea, it should also be inadmissible. But this analogy will not hold, where the widow applies for equitable re- lief, as, for the removal of terms out of her way, or for a discovery. In the latter cases, the equitable plea, of a purchase for a valuable consideration without notice, cannot be resisted. In the former case, the widow, proceeding upon the concurrent jurisdiction of the court, merely enforces a right, which the defendant cannot at law resist by such a mode of defence. In the latter case, she applies to the equity of the court to take away from him a defence, which, at law, would protect him against her demand. 2 § 631. Other learned minds have, however, arrived at a different conclusion ; and have insisted, that, upon principle, the plea of a purchase for a valuable consideration without notice, is a good plea in all cases against a legal, as well as against an equitable claim ; and that dower constitutes no just exception from the doctrine. They put themselves upon the general principle of conscience and equity, upon which such a plea must always stand ; that such a purchaser has an equal right to protection and support as any other claimant ; and that he has a right to say, that, having bond fide and honestly paid his money, no person has a right to require him to discover any facts which shall show any infirmity in his title. The general correctness of the argument cannot be doubted ; and the only recognized exception seems to be that of dower, if that can be deemed a fixed exception. 3 1 See Blain o. Harrison, 11 Illinois, Against it is the decision in Burlaee ». 388. Cooke, 2 Freeman, 24; Parker v. Blyth- 2 1 Roper on Husband and Wife, 446, more, 2 Eq. Abridg. 79, PI. 1 ; Jerrard v. 447 ; ante, § 57 a, 410, note, § 434, 436 ; Saunders, 2 Ves. Jr. 454 ; and Payne v. Williams v. Lambe, 3 Bro. Ch. 264; Col- Compton, 2 Younge & Coll. 457, 461; lins ». Archer, 1 Russ. & Mylne, 284. Blain v. Harrison, 11 Illinois, 384; ante, 8 The authorities are both ways. The § 630, note (5). Mr. Sugden, in a very case of Williams v. Lambe, 3 Bro. Ch. late edition of his work on Vendors and 264 ; Collins v. Archer, 1 Russ. & Mylne, Purchasers, ch. 18, p. 762, 763 (1826), 284 ; and Rogers v. Scale, 2 Freem. 84, maintains, that the authorities in favor of are in favor of the doctrine, that the plea the sufficiency of the plea against a legal is not good against a legal title. And see title preponderate ; and that, therefore, Phillips v. Phillips, 4 De G., F. & J. 208. we may venture to assert, that it will pro- eid. ; ante, § 499, 558, 559, 560 ; Stephenson, De Gex, 586. So where Barnes v. Raekster, 1 Younge & Coll. a pledge covered property of pledgor and New R. 401 ; The York and Jersey Steam, property of his consignor. Broadbent &c., Company v. Associates of the Jersey v. Barlow, 3 De G., F. & J. 670; Ex § 633.] MARSHALLING OP SECURITIES. 613 by compelling A., under such circumstances, to take satisfaction out of one of the funds, no injustice is done to him in point of security or payment. But it is the only way by which B. can receive payment. And natural justice requires, that one man should not be permitted, from wantonness, or caprice, or rashness, to do an injury to another. 1 In short, we may here apply the com- parts Alston, L. R. 4 Ch. App. 168. The rule applies in favor of a mechan- ic's lien. Hamilton v. Schwehr, 34 Md. 107. And where one creditor has a general security on several funds, on which different creditors have security, he must satisfy his claim pro rata out of all the funds. Semmes i>. Boykin, 27 Geo. 47. And where the creditor, having security on two funds, releases one of them sufficient to have paid him, and to which the other creditor cannot resort, he can only have recourse to the surplus of the other fund. Ingalls v. Morgan, 10 N. T. 178; Glass v. Pullen, 6 Bush (Ky.), 346. But the creditor having only one fund, must, it seems, notify the other seasonably of his claim. Clarke v. Ban- croft, 13 la. 320. The donee under a voluntary settlement with covenant against encumbrances or for quiet en- joyment may compel a subsequent mort- gagee of the settled and other estates to marshal the securities. Hales v. Cox, 32 Beav. 118. And see Keaton v. Miller, 38 Miss. 630. But see Stronge v. Hawkes, 4 De G. & J. 632 ; In re Lawder's Estate, 11 Ir. Ch. R. 346 ; In re Rorke's Estate, 15 Ir. Ch. R. 316. But where one estate was settled in his lifetime by testator with covenant for further assurance, and another estate was devised, and both estates were originally subject to a charge, it was held the settled estate must contribute. Ker r. Ker, Ir. Rep. 4 Eq. 15. Where a judgment debtor owned two tracts, subject to the lien of the judgment, and sold one tract, the vendee had a right to have the other tract first applied to the judgment, and this right is paramount to that of subsequent cred- itors having a lien only on the unsold property, to have the prior creditor, who had a lien on both, satisfy himself from the estate which had been sold. McCor- mick's Appeal, 57 Penn. St. 54. And that bond fide purchasers from judgment debtor have a right to have the debt sat- isfied from the unsold estate, or that last sold, see Marshall v. Moore, 36 111. 321 ; Hurd v. Eaton, 28 111. 122 ; Jones v. Jones, 13 la. 276. Per con., that where debtor has no property of his own left, the cred- itor need not regard the equities of ven- dees, see Barden •». Grady, 37 Geo. 660. And that doctrine of marshalling will not be applied to attaching creditors, see Shedd v. Bank of Brattleboro, 32 Vt. 709. The principle of marshalling is confined to cases where there are two or more suc- cessive creditors of the same debtor, and has no application to a mortgagee and a subsequent purchaser of the equity of re- demption. Stevens v. Church, 41 Conn. 369 ; Rogers y. Meyers, 68 111. 92.] 1 Lord-Chancellor Sugden, in Averall v. Wade (Lloyd & Goold, 255), expressed an opinion which may be thought to imply a doubt, whether the doctrine did apply to the case of two mortgages. His language was : " The general doc- trine is this. Where one creditor has a demand against two estates, and another a ' demand against one only, the latter is entitled to throw the former on the fund that is not common to both. This is a narrow doctrine, and cannot gen- erally be enforced against an encum- brancer, who is a mortgagee. Whatever may be the equity of the creditor with only one security, the mortgagee of both estates has a right to compel the debtor to redeem, or he may foreclose." On the other hand, Lord Hardwicke, in La- noy v. The Duke of Athol, 2 Atk. 446, said : " Suppose a person, who has two real estates, mortgages both to one per- sonj and afterwards only one estate to a second mortgagee, who had no notice of the first ; the court, in order, to relieve the second mortgagee, have directed the first to take his satisfaction out of that es- tate only which is not in mortgage to the second mortgagee, if that is sufficient tc 614 EQUITY JURISPRUDENCE. [CH. XIII. mon civil maxim, " Sic utero tuo, ut alienum non lsedas ; " and still more emphatically, the Christian maxim, " Do unto others as you would they should do unto you." 1 satisfy the first mortgage, in order to make room for the second mortgagee, even though the estates descended to two different persons." See also In re Corn- wall, 2 C. & L. 131 ; s. c. 3 Dm. & War. 173. Lord Eldon, in Aldrich v. Cooper, 8 Ves. 388, used language leading to the same conclusion as that of Lord Hard- wicke. He said : " Suppose there was no freehold estate, but there was a copy- hold estate ; which the owner had sub- jected to a mortgage, and died. It is clear, the mortgagee having two funds might, if he pleased, resort to the copy- hold estate. But would this court compel him to resort to it ? If so, the court mar- shals by the necessary consequence of its act. If the court would not compel him, is it not clear that it is purely matter of his will, whether the simple contract creditors shall be paid or not '? That, at least, contradicts all the authorities, that, if a party has two funds (.not applying now to assets particularly), a person hav- ing an interest in one only has a right in equity to compel the former to resort to the other, if that is necessary for the satisfaction of both. I never understood, that, if A. has two mortgages, and B. has one, the right of B. to throw A. upon the security which B. cannot touch, depends upon the circumstance, whether it is a freehold or a copyhold mortgage. It does not depend upon assets only ; a species of marshalling being applied in other eases ; though, technically, we do not apply that term except to assets. So, where in bankruptcy, the Crown by ex- tent laying hold of all the property, even against creditors, the Crown has been confined to such property as would leave the securities of encumbrances effectual. So, in the case of the surety, it is hot by the force of the contract ; but that equity, upon which it is considered against conscience, that the holder of the securi- ties should use them to the prejudice of the surety ; and therefore there is noth- ing hard in the act of the court placing the surety exactly in the situation of the creditor. So, a surety may have the benefit of a mortgage of a copyhold es- tate, exactly as of freehold. It is very difficult to reconcile this with the prin- ciple of all those cases between living per- sons." And again : " Suppose another case : Two estates mortgaged to A., and one of them mortgaged to B. He has no claim under the deed, upon the other estate. It may be so constructed, that he could not affect that estate after the death of the mortgagor. But it is the ordinary case to say, a person, having two funds, shall not by his election disap- point the party having only one fund; and equity, to satisfy both, will throw him who has two funds upon that which can be affected by him only to the intent that the only fund to which the other has access may remain clear to him. This has been carried to a great extent in bankruptcy ; for a mortgagee whose in- terest in the estate was affected by an extent of the Crown, has found his way, even in a question with the general cred- itors to his relief ; that he was held en- titled to stand in the place of the Crown as to those securities, which he could not affect per directum, because the Crown affected those in pledge to him. An- other case may be put ; that a man died, having no fund but a freehold and a copyhold estate ; that they were both comprehended in a mortgage to A. ; and the freehold estate only was mortgaged to B. ; and that B. was not only a mort- gagee of the freehold estate, but also a special creditor by a covenant or a bond. In that case as well as in this, it might be said, the mortgagee of both estates might, if he thought proper, apply to the freehold estate, and exhaust the whole value of it. The other would then stand as a naked specialty creditor ; the fund being taken out of his reach ; and there is no doubt, that, being both a specialty 1 See Cheeseborough o. Millard, 1 Johns. Ch. 413; Evcrtson v. Booth, 19 Johns. 486 ; Hays v. Ward, 4 Johns. Ch. 123 ; Wiggin v. Dorr, 3 Sumner, 410. § 633, 634.] MARSHALLING OP SECURITIES. 615 § 634. The same principle applies to one judgment creditor, who has a right to go upon two funds, and another judgment ereditor and a mortgagee of the freehold estate, hut not having any claim as a mortgagee upon the copyhold estate, the same arrangement would take place, that he in equity shall throw the prior encum- brancer upon the estate to which the other has no resort." Mr. Powell, in his Trea- tise on Mortgages (] Powell on Mortg. 343, aad Coventry & Rand's notes, id. 1014), and Mr. Fonblanque (2 Fonbl. Eq. B. 3, ch. 2, § 6, note i), seem to have taken the same view. It may, perhaps, be true, that the doctrine propounded by Lord Chan- cellor Sugden was intended to be applied only to cases where there could he a sale of the mortgaged property, either by the original contract, or by a decree of a court of equity, in the exercise of its appropriate jurisdiction; and not to reach cases.where, as in England, the mortgagee had a right to, and might insist upon a foreclosure (post, 2 Story, Eq. Jurisp. § 1026). But such a qualification of the doctrine is not intimated, as far as I have seen, except in the case before Lord Chancellor Sugden. In the late case of Barnes i>. Kaekster (1 Younge & Coll. New B. 401, 403), Mr. Vice-Chancellor Bruce seems to have thought the doctrine of Mr. Sugden to be applicable to the case, where, after the first mortgage of two estates, there are distinct mortgages to different persons of each estate mortgaged to the first mortgagee ; and that as • between these last conflicting encumbrancers, courts of equity will not marshal the estates, but merely apportion the first charge between the two estates. It may be thought that a court of equity would be going too far by interfering with the creditor's right of foreclosure ; and that it would be suffi- cient to give the second mortgagee a right to redeem the first mortgage. In America, there has hitherto been no diffi- culty on the part of our courts of equity to give full effect to the doctrine of Lord Hardwicko, in the case of two funds, and two successive mortgages. Instead of a foreclosure, the usual course is to decree a sale as it is in Ireland; so that the main difficulty, in narrowing the rights of the first mortgagee, is avoided. See Cheeseborough o. Millard, 1 Johns. Ch. 413; Stevens v. Cooper, 1 Johns. Ch. 425; Evartson o. Booth, 19 Johns. 486; Hayes v. Ward, 4 Johns. Ch. 123 ; Camp- bell v. Macomb, 4 Johns. Ch. 534 ; Conrad v. Harrison, 3 Leigh, 532; 1 Powell on Mortg. 343, and notes by Coventry & Rand. But, at all events, it is very cer- tain, that wherever a creditor, by his election to take one of two funds, to which alone another creditor has the right to resort, deprives the latter of his claim to that fund, he will be permitted in equity to stand in the place of that creditor in regard to the other fund. In Aldrich v. Cooper, 8 Ves. 396, Lord Eldon referred to many cases of this sort, and, among other things, said: "The cases with respect to creditors and other classes of claimants, go exactly the same length. In the cases of legatees against assets descended, a legatee has not so strong a claim to this species of equity as a cred- itor. But the mere bounty of the testator enables the legatee to call for this species of marshalling ; that, if those creditors, having a right to go to the real estate descended, will go to the personal estate, the choice of the creditors shall not de- termine whether the legatees shall be paid or not. That, in some measure, is upon the doctrine of assets ; but with relation to the fact of a double fund. Both are in law liable to the creditors; and therefore, by making the option to go against the one, they shall not disap- point another person, who the testator intended should be satisfied. That is not so strong as where it is not bounty, but the party has by his own act, in his life, made liable to the whole of the debt a copyhold estate, not in law liable ; and who, having also a freehold estate, must be understood to mean, that the freehold estate shall be liable according to law, to his specialty debts. The case is exactly the same with reference to the distinction taken, that where lands are specifically devised, the legatees shall not stand in the place of the creditors against the devisees ; for that is upon the supposi- tion, that there is in the will as strong an inclination of the testator in favor of a specific devisee as a pecuniary legatee; 616 EQUITY JURISPRUDENCE. [CH. XIII. creditor, who has a right upon one only of them, both belonging to the same debtor. The former may be compelled to apply first to the fund which cannot be reached by the second judgment ; so that both judgments may be satisfied. 1 But if the first creditor has a judgment against A. and B., and the second against B. only; and it does not appear whether A. or B. ought to pay the debt due to the first creditor ; nor whether any equitable right exists in B. to have the debt charged on A. alone ; in such a case, equity will not compel the creditor first to take the land of A. in satisfaction ; for it is not (as we shall presently and more fully see) a case of differ- ent debts and securities against one common debtor. 2 § 634 a. Another case may easily be put, to illustrate the gen- eral doctrine, and the exceptions to it. Suppose the mortgagor to mortgage two estates to the mortgagee, and afterwards he should mortgage one of the estates to B. and the other to C, by distinct mortgages, and B. and C. should each have knowledge of the first mortgage, and C. should also have notice of B.'s mortgage at the time of taking his own ; and the mortgaged estates should finally and, therefore, there shall be no marshal- ling. But if, though specifically devised, the land is made subject to all debts, that distinguishes the case ; for there is a double fund ; and as, by that denota- tion of intention, the creditor has a double fund, the land devised and the personal estate, he shall not disappoint the legatee. The case is also the same where, instead of the case of a mere specialty creditor, the land specifically devised is subject to a mortgage by the testator ; as in Lutkins v. Leigh ; there he shall not disappoint the legatee. So the case of paraphernalia is very strong for this proposition ; that wherever there is a double fund, though this court will not restrain the party, yet he shall not so operate his payment as to disappoint another claim, whether arising by the law, or by the act of the testator." Ante, § 558, 559, 560 to 578. See also the Eeporter's note to Averall v. Wade, Lloyd & Goold, 264, and especially p. 268, where they say : " The general principle of mar- shalling is, that where one claimant has two funds to resort to, and another only one, the court will either compelthe per- son having the double security, to resort to that fund not liable to the demand of the other (citing 2 Atk. 446, 8 Ves. 391, 395, and 1 Buss. & Mylne, 187) ; or, if satisfaction has been already obtained by him who has the double security, out of the fund to which alone the other can resort, the court will allow the latter claimant to stand in the place of the for- mer pro tanto." See the note to Clifton v. Burt (by Cox), 1 P. Will. 679, where the principal authorities are collected. Ante, § 561, note. 1 Dorr v. Shaw, 4 Johns. Ch. 17; Averall v. Wade, Lloyd & Goold, 252. In this last case, Lord Chancellor Sugden decided, that where a party seised of several estates, and indebted by judg- ment, settled one of the estates for a valuable consideration, with a covenant against encumbrances, and subsequently acknowledged other judgments, the prior judgments should be thrown altogether upon the unsettled estates, and that the subsequent judgment creditors had no right to make the settled estate contrib- ute. [See Shedd v. Bank of Brattleboro, 32 Vt. 709, that equity will not marshal as between two attaching creditors.] 2 Dorr v. Shaw, 4 Johns. Ch. 17 ; post, § 642, 643. See Ayers v. Husted, 15 Conn. 504 ; King v. McVicker, 3 Sandf . Ch. 192 ; Wise v. Shepherd", 13 Illinois, 41. § 634— 635.J MARSHALLING OF SECURITIES. 617 turn out not to be sufficient to pay all the three mortgages ; in such a case, it would seem, that B. would not have any right to have the estates marshalled, so as to throw the whole charge upon the estate mortgaged to B., for he has no superior equity to C, and, therefore, the charge of the first mortgage ought to be ratably apportioned between B. and C. 1 But this must be propounded as open to some doubt, as there is a conflict in the authorities. 2 § 635. It is not improbable, that this doctrine of marshalling securities or funds, which, under another form, had its existence in the Roman law, and was therein called subrogation or substitu- tion, was derived into the jurisprudence of equity from that source, as it might well be, since it is a doctrine belonging to an age of enlightened policy, and refined, although natural, justice. In the Roman law (as we have already seen), a surety upon a bond or security, paying it to the creditor, was entitled to a cession of the debt and a subrogation or substitution to all the rights and actions of the creditor against the debtor ; and the security was treated, as between the surety and the debtor, as still subsisting and un- extinguished. 3 And where one creditor had any hypothecation or privilege upon property, as security for a debt, and another creditor had a like subsequent security upon the same property for another debt ; there, the latter, upon payment of the prior debt to the prior creditor, was entitled to a cession of the property, and to a subro- gation to all the rights and actions of the same creditor for that debt. So the doctrine is laid down in the Digest. " Plane, cum tertius creditor primum de sua pecunia dimisit, in locum ejus substituitur. in ea quantitate, quam superiori exsolvit." 4 1 Barnes v. Rackster, 1 Younge & 2 Post, § 1233 a ; Barnes v. Rackster, Coll. New R. 401. [See Bugden v. Big- 1 Younge & Coll. New B. 401 ; Governeur nold, 2 Younge & Coll. C. C. 377 ; Bow- v. Lynch, 2 Paige, 300 ; Skeel v. Spraker, ker i). Bull, 1 Eng. Law & Eq. 126. In 8 Paige, 182 ; Patty v. Pease, 8 Paige, the last case a principal and surety 277 ; Schryver v. Teller, 9 Paige, 173. having joined in a mortgage of land and 8 Ante, § 494, 499, 500, 501 ; Pothier, bonds, containing powers of sale, and a on Oblig. by Evans, n. 275, 280, 281 ; id. proviso, that between the principal and n. 428, 429, 430 ; id. n. 556, 557, 558, 559 surety, the principal and the land should (n. 591, 592, 593, 594, of the French edi- be primarily liable for the debt, the prin- tions) ; 1 Domat, Civ. Law, B. 3, tit. 1, cipal afterwards again mortgaged the § 6, per tot. p. 377, 378, 379 ; 2 Voet, ad same land and bonds, without the surety's Pand. Lib. 46, tit. 1, § 27, 28, 29, 30 ; ante, knowledge, to secure a further advance. § 494, 499, 500. The surety was allowed to redeem on * Dig. Lib. 20, tit. 4, 1. 16, 17, 1. 11, § 4, payment of only the first sum. See also 1. 12, § 9. See also 1 Domat, B. 3, tit. 1, Higgins v. Frankis, 10 Jur. 328.] § 6, art. 2, 3, 4, 6, 7, 8. 618 EQUITY JURISPRUDENCE. [CH. XIII. § 636. We here see the original elements from which our present system of equitable relief is, or at least might have been, derived. The principal difference between the Roman system and ours is, that our courts of equity arrive directly at the same result, by compelling the first creditor to resort to the fund, over which he has a complete control, for satisfaction of his debt ; and the Roman system substituted the second creditor to the rights of the first, by a cession thereof upon his payment of the debt. It is true, that the case of a double fund is not put in the text of the civil law; but it is an irresistible inference from the principles upon which it is founded. 1 § 637. Lord Karnes has put the very case, as founded in a clear and indisputable principle of natural equity. After having adverted to the cases of sureties ( fidejussor es), and correi debendi (debtors bound jointly and severally to the same creditor), 2 he proceeds to state : " Another connection, of the same nature with the former, is that between one creditor, who is infeft in two different tenements for his security, and another creditor who hath an infeftment on one of the tenements of a later date. Here the two creditors are connected, by having the same debtor, and a security upon the same subject. Hence it follows, as in the former case, that if it be 1 See Pothier on Oblig. by Evans, n. creditori offerenti pecuniam potestas est 620, 521, 522 (n. 555, 556, 557, of the French ut succedas etiam in jus Reipublicse. editions), B. ; Hayes v. Ward, 4 Johns. Cod. Lib. 8, tit. 19, 1. 1, 3, 4. Pothier Ch. 130 to 132; Cheeseborough u. Mil- has expounded the sense of these pas- lard, 1 Johns. Ch. 414. There are three sages with admirable clearness. Pothier texts of the civil law pointing to cases of on Oblig. by Evans, n. 521, B. (3) (n. 556 hypothecations or mortgages, which bear of the French editions). Domat, B. 3, upon the subject. In the Code it is said : tit. 1, § 3, art. 6, says : " Although the Non omnino succedunt in locum hypothe- creditor who has a mortgage, whether carii creditoris hi, quorum pecunia ad general or special, may exercise his right creditorem transit. Hoc enim tunc ob- on all lands and tenements that are sub- servatur ; cum is, qui pecuniam postea ject to the mortgage, and even on those dat, sub hoc pacto credat, ut idem pignus which are in possession of third persons ; ei obligetur, et in locum ejus succedat. yet it seems agreeable to equity, that if Quod Cum in persona tua factum non sit he can hope to recover payment of his (judicatum est enim te pignora non ac- debt out of the other effects, which re- cepisse), frustra putas tibi auxilio opus main of the debtor, he should not begin esse Constitutionis nostra; ad earn rem per- with troubling the third possessor, even tinentis. And again: Si potiores credi- although his mortgage was special; but tores pecunia tua dimissi sunt, quibus that, before he molests the third posses- obligata fuit possessio, quam emisse te sor, and gives occasion to the conse- dicis, ita ut pretium per veniret ad eosdem quences of having recourse against the priores creditores, in jus eorum succes- debtor, he ought to discuss the other sisti ; et contra eos, qui inferiores illis fue- effects remaining in the debtor's posses- runt, justa defensionete tueri potes. And sion." See also Domat's note, ibid., and again : Si prior Respublica contraxit, Cod. Lib. 8, tit. 14, 1. 2 ; ante, § 494, notes, fundusque ei est obligatus, tibi secundo 2 Ersk. Inst. B. 3, tit. 3, § 74. § 636-638 a.] marshalling op securities. 619 the will of the preferable creditor to draw his whole payment out of that subject, in which the other creditor is infeft, the latter, for his relief, is entitled to have the preferable security assigned to him ; which can be done upon the construction above mentioned. For the sum recovered by the preferable creditor out of the subject on which the other creditor is also infeft is justly understood to be advanced by the latter, being a sum which he was entitled to, and must have drawn, had not the preferable creditor intervened ; and this sum is held to be purchase-money of the conveyance. This construction, preserving the preferable debt entire in the person of the second creditor, entitles him to draw payment of that debt out of the other tenement. By this equitable construction, matters are restored to the same state as if the first creditor had drawn his payment out of the separate subject, leaving the other entire, for payment of the second creditor. Utility, also, concurs to sup- port this equitable claim." 1 § 638. But the interposition of courts of equity is not confined to cases strictly of two funds, and of different mortgages ; for it will be applied (as we have seen) in favor of sureties, where the creditor has collateral securities or pledges for his debt. 2 In such cases, the court will place the surety exactly in the situation of the creditor, as to such securities or pledges, whenever he is called upon to pay the debt ; for it would be against conscience, that the creditor should use the securities or pledges to the preju- dice of the sureties, or refuse to them the benefit thereof, in aid of their own responsibility. 3 And, on the other hand, if a principal has given any securities or other pledges to his surety, the creditor is .entitled to all the benefit of such securities or pledges in the hands of the surety, to be applied in payment of his debt. 4 [§ 638 a. And even where the surety had effected an insur- ance upon the life of 'the principal, with his consent, and the prin- cipal had deceased, making the surety his executor, who had 1 1 Kames, Equity, B. 1, Pt. 1, ch. 3, 431 ; Kobineon v. Wilson, 2 Mad. Ch. § 1, p. 122, 123. " 569; Ex parte Rushforth, 10 Ves. 410, 2 Com. Dig. Chancery, 4 D. 6; Stir- 414; Wright v. Morley, 11 Ves. 23; Par- ling v. Forrester, 3 Bligh, 590, 591 ; ante, sons v. Ruddock, 2 Vera. 608 ; Ex parte §327,499,502. Kendall, 17 Ves. 520; Wright ... Simp- 8 Aldrich v. Cooper, 8 Ves. 388, 389. son, 6 Ves. 734; 2 Eonbl. Eq. B. 3, ch. 2, See Gammon v. Stone, 1 Ves. 339 ; § 6, note (i) ; Stirling v. Forrester, 3 Cheeseborough v. Millard, 1 Johns. Ch. Bligh, 590, 591 ; ante, § 324, 326. 413; Hayes v. Ward, 4 Johns. Ch. 130, 4 Wright v. Morley, 11 Ves. 22; ante, 131, 132 ; Clasen v. Morris, 10 Johns. 524, § 327, 499, 558. 639 ; Stevens v. Cooper, 1 Johns. Ch. 430, 620 EQUITY JURISPRUDENCE. [CH. XIII. received the money upon the policy, to the full amount of the debt ; it was held, that so far as it was not required to indemnify the surety, it ought to be applied in payment of the debt. 1 ] § 639. Courts of equity do not stop here. If the debt is due and the creditor does not choose to call upon the debtor for payment, the surety may come into equity by a bill against the creditor and the debtor, and compel the latter to make payment of the debt, so as to exonerate the surety from his responsibility ; for it is unreasonable that a man should always have such a cloud hang over him. 2 In cases of this sort, there is not, however (as has been already stated), any duty of active diligence incumbent upon the creditor. It is for the surety to move in the matter. But if the surety requires the exercise of such diligence, and there is no risk, delay, or expense to the creditor, or a suitable indemnity is offered against the consequences of risk, delay, and expense, it seems that the surety has a right to call upon the creditor to do the most he can for his benefit ; and, if he will not, a court of equity will compel him. 3 § 640. But, as between the debtor himself and the creditor, where the latter has a formal obligation of the debtor, and also a security or a fund, to which he may resort for payment, there seems to be no ground to say (at least, unless some other equity intervenes), that a court of equity ought to compel the creditor to resort to such fund, before he asserts his claim by a personal suit against his debtor. Why, in such a case, should a court of equity interfere to stop the election of the creditor, as to any of the remedies which he possesses in virtue of, or under, his con- tract? There is nothing in natural or conventional justice which requires it. It is true that a different doctrine has been strenu- ously maintained by very learned judges, in a most elaborate manner. 4 But their opinions, however able, 'have been met by a i [*Lea i>. Hinton, 5 De G., M. & G. Mosely, 318. [*But see Cottin v. Blane, 823. See also Drysdale v. Piggott, 22 2 Anstr. 544; Eden onlnj. 64; Ferrer r. Beavan, 238 ; Shinn v. Budd, 1 McCarter, Barrett, 4 Jones, Eq. 455 ; Irick i . 234.1 Black . 2 C. E. Green, 189.J 2 Ante, §327, 494, 499 d; Ranelagh v. » Wright v. Simpson, 6 Ves. 734; Hayes, 1 Vern. 189, 190 ; 1 Eq. Abridg. Nisbet v. Smith, 2 Bro. Ch. 579 ; Cottin 17, PI. 6; id. 79, PI. 5; Wright v. Simp- v. Blane, 2 Anstr. 544; Eden on Inj. ch. son, 6 Ves. 734 ; Antrobus v. Davidson, 3 2, p. 38, 39, 40 ; Kingw. Baldwin, 2 Johns. Meriv. 579; King v. Baldwin, 2 Johns. Ch. 561, 563; s. c. 17 Johns. 384; Hayes Ch. 501, 562, 563; s. c. 17 Johns. 384; v. Ward, 4 Johns. Ch. 123; ante, § 327, Hayes v. Ward, 4 Johns. Ch. 432 ; Nisbet 499 d. v. Smith, 2 Bro. Ch. 579 ; Lee v. Book, * See Lord Thurlow's opinion in § 638 a— 641.J marshalling of securities. 621 reasoning exceedingly cogent, if not absolutely conclusive, on the other side. And, at all events, the settled doctrine now seems to be, in conformity to the early, as well as the latest, decisions, that the debtor himself has no right to insist that the creditor, in such a case, should pretermit any of his remedies, or elect between them, unless some peculiar equity springs up from other circum- stances. 1 § 641. The civil law, as we have seen, in the case of sureties, required the creditor, in the first instance, to pursue his remedy against the debtor. But, if the surety thought himself in peril of loss by the delay of the creditor, he might compel the latter to sue the debtor ; and thus obtain his indemnity. " Fidejussor " (says the Digest) 2 " an, et prius quam solvat, agere possit, ut libere- tur ? Nee tamen semper expectandum est, ut solvat, aut judicio accepto condemnetur ; si diu in solutione reus cessabit, aut certe bona sua dissipabit ; preesertim, si domi pecuniam fidejussor non habebit, qua numerata creditor!, mandati actione conveniat." This is a very wholesome and just principle. 3 Wright v. Nutt, 1 H. Bl. 136, 150, and Lord Loughborough in Folliot y."Ogden, 1 H. Bl. 124. See also Averal v. Wade, Lloyd & Goold, 255. 1 Holditch v. Mist, 1 P. Will. 695; Wright v. Simpson, 6 Ves. 713, 726, 728 to 738, Lord Eldon's opinion. See Hayes v. Ward, 4 Johns. Ch. 132, 133 ; Eden on Inj. ch. 2, p. 38, 39, 40 ; In re Babcock, 3 Story, 393. [So where a mortgage covers a homestead and other estate, and there are judgment liens upon such other estate, the debtor cannot compel mortgagee to exhaust first the property subject to the liens, so as to save his homestead. White v. Polleys, 20 Wise. 503.] 2 Dig. Lib. 17, tit. 1, 1. 38 ; King v. Baldwin, 2 Johns. Ch. 562 ; Hayes v. Ward, 4 Johns. Ch. 132, 133 ; ante, § 327, 494. 8 Mr. Chancellor Kent, in his learned opinion in Campbell v. Macomb, 4 Johns. Ch. 538, speaking upon this subject, says : " The question on this subject, so often raised in the civil law, assumed the fact, that the principal debtor was in default ; Si diu in solutione reus cessabit ; and when it is added, aut certe bona sua dissipabit, the reference was still to the case, in which the debtor had failed to pay, and was also wasting his goods. I apprehend this must be the true construction; for the only question raised by Marcellus in the text referred to (Dig. Lib. 17, 1, 38, 1), was, whether the surety could seek indemnity, before he had himself paid, Fidejussor an, et prius quam solvat, agere possit, ut liberetur ? It was a very equitable provision in the • civil law to afford a remedy to the surety when the debtor neglected to pay, though the creditor had not required payment, and though the surety had not actually advanced the debt. But it would not have been very just to have given the surety an action for indemnity against the debtor, before the latter was in de- fault, and when such a previous claim made no part of the original contract. The debtor, as the civil law truly observes in another place (Dig. Lib. 17, 1, 22, 1), has an interest not to be compelled to pay before the day ; and yet I perceive that several writers on the civil law (Domat, Part I. B. 3, tit. 4, § 3, art. 3 ; Wood's Institutes of the Civil Law, p. 227 ; Brown's Lectures on the Civil Law, Vol. 1, 362) refer to this very text to prove, that if the surety be in peril, he may sue before the time of payment, to be indem- nified or discharged. It may be so ; but these writers refer to no other text but 622 EQUITY JURISPRUDENCE. [CH. XIII. § 642. But although courts of equity will thus administer relief to both parties in cases of double funds, which are subject to the same debt ; and will, in favor of sureties, marshal the securities for their benefit ; yet this will be so done in cases where no injus- tice is done to the common debtor ; for then other equities may intervene. And the interposition always supposes, that the par- ties seeking aid are creditors of the same common debtor ; for if they are not, they are not entitled to have the funds mar- shalled, in order to leave a larger dividend out of one fund, for those who can claim only against that. The principle may be easily illustrated, by supposing the case of a joint debt due to one that already cited, and that certainly does not, by any necessary interpretation, war- rant the doctrine. Indeed, it seems to preclude it ; because the remedy was intended or proyided ,(and so it is ex- pressed) especially for the case of a surety, who could not conveniently dis- charge the debt himself, and have his regular recourse over, at once, by the action mandatum. It was a benevolent provision in that view, and just in no other. In other parts of the Pandects (Dig. Lib. 17, 1,22, 1, and Lib. 46, 1, 31), Paul and Ulpian lay down a rule in re- spect to sureties, in perfect accordance with the construction I have ventured to adopt ; for they say, that if the surety pays before the day, he cannot have re- course over to the debtor, until the day of payment has arrived. A number of civilians, who have very fully discussed the rights and remedies of sureties under the civil law, and always with this text of Marcellus in view, give us no intima- tion of such a doctrine. The general rule of the civil law was, that the action by the surety against his principal depended upon his having paid the creditor. [Inst. Lib. 3, 21, 6, and Ferriere's Inst. h. t.] And the cases, in which he might have recourse over, before payment, were all special cases ; as, where judgment had already passed against the surety, or the debtor was in failing circumstances, or such a recourse over was part of the original contract, or the debtor had neg- lected a long time, as from three to ten years, to pay, or the creditor to demand. In all these excepted cases, the surety might sue the debtor, for his indemnity or discharge. But when might he sue him ? Not before the debt was due and payable to the creditor, but before the surety had paid the creditor. The au- thorities to which I now refer (Hub. Prselect. Lib. 3, tit. 21, De Fide Jussoribus, 11; Voet, ad Pand. Lib. 46, tit. 1, 34; Pothier, Traite" des Oblig. n. 441 ; Ersk. Inst. B. 3, c. 65) all consider these excep- tions as only providing for the relief of the surety, ante soltctionem. He may sue the principal debtor before he has act- ually paid the debt ; and the exceptions were to relieve him from that burden; for, without one of these special causes, says the Code, there would be no founda- tion, before payment, for the action of mandatum. [Nulla juris ratione, antequam satis creditori pro ea feceris, earn ad solu- tionem urgeri cerium est. Code 4, 35, 10.] This plain and equitable principle, that, until the debtor is in default, either in his contract with the creditor, or in his contract with the surety, he is not bound to pay or indemnify, seems to pervade equally every part of the civil law. Pothier says (ubi sup. n. 442), that if the obligation, to which the surety has ac- ceded, must, from its nature, exist a long time, as, if he was surety for the due ex- ecution of a trust, he cannot, within the time, sue the principal debtor or trustee for his discharge, for he knew, or ought to have known, the nature of the obligation he contracted. Though, where he is surety indefinitely, as, for payment of an annu- ity, he may, after a long time, as, say ten years, demand that the principal debtor liberate him, by redeeming the annu- ity." § 642-644.] MARSHALLING OP SECURITIES. 623 creditor by two persons, and a several debt due by one of them to another creditor. In such a case, if the joint creditor obtains a judgment against the joint debtors, and the several creditor obtains a subsequent judgment against his own several debtor ; a court of equity will not compel the joint creditor to resort to the funds of one of the joint debtors, so as to leave the second judg- ment in full force against the funds of the other several debtor. At least, it will not do so, unless it should appear that the debt, though joint in form, ought to be paid by one of the debtors only ; or there should be some other supervening equity. 1 § 643. Another case has been put, of a similar nature, by Lord Eldon. " "We have gone this length " (said he) : " If A. has a right to go upon two funds, and B. upon one, having both the same debtor, A. shall take payment from that fund, to which he can resort exclusively, that, by those means of distribution, both may be paid. That takes place, where both are creditors of the same person, and have demands against funds, the property of the same person. But it was never said, that, if I have a demand against A. and B., a creditor of B. shall compel me to go against A., without more ; as if B. himself could insist, that A. ought to pay, in the first instance, as in the ordinary case of drawer and acceptor, or principal and surety, to the intent, that all obliga- tions arising out of these complicated relations may be satisfied. But if I have a demand against both, the creditors of B. have no right to compel me to seek payment from A., if not founded in some equity, giving B. the right for his own sake, to compel me to seek payment from A." 2 § 644. Upon this ground, where there was a partnership of five persons, one of whom died, and the other four partners continued the partnership, and afterwards became bankrupt; and the cred- itors of the four surviving partners sought to have the debts of the 1 Dorr v. Shaw, 4 Johns. Ch. 17,20. clause protecting the mortgagee's interest, See Ayres v. Husted, 15 Conn. 504 ; King the policy would have been avoided by v. McVieker, 3 Sandf. Ch. 192 ; Newsom suicide of the assured : Held, that the v. McLendon, 6 Georgia, 392 ; [House v. insurance company had no right to throw Thompson, 3 Head (Tenn.), 512; ante,/ the debt upon the real estate. Solicitors, § 633.] &c. Ins. Co. v. Lamb, 2 De G., J. & Sm. 2 Ex parte Kendall, 17 Ves. 520. See 251. The funds must be both in exist- NefE a. Miller, 8 Barr, 347 ; Stirling v. ence. A call will not be compelled to be Brightbill, 5 Watts, 229 ; Ebenhart's made in order to create one of the funds. Appeal, 8 Watts & Serg. 327. [Where In re Professional L. Ins. Co., L. E. 3 Eq. a mortgage covered policies of life insur- 668. See In re State F. Ins. Co., 1 De G., ance, and also real estate, and but for a J. & Sm. 634.] 624 EQUITY JURISPRUDENCE. [CH. XIII. five paid out of the assets of the deceased partner, so that the divi- dend of the estate of the four bankrupts might be thereby increased in favor of their exclusive creditors; without showing, that the assets of the deceased partner ought, as between the partners, to pay those debts, or that there was any other equity to justify the claim ; the court refused the relief. On that occasion, the Lord Chancellor said : That, even if it was clear that the creditors of the five partners could go against the separate assets of the de- ceased partner, (which, of course, depended upon equitable circum- stances, as the legal remedy was against the survivors only) ; yet, if it was not clear that the survivors had a right to turn the creditors of the five against those assets, it did not advance the claim, that, without such arrangement, the creditors of the four would get less. Unless the latter could establish, that it is just and equitable, that the estate of the deceased partner should pay in the first instance, they had no right to compel a creditor to go against that estate, who had a right to resort to both funds. 1 In- deed, there might exist an opposite equity ; that of compelling the creditor to go first against the property of the survivors, before resorting to the estate of the deceased partner. 2 § 645. The ground of all these decisions is the same general doctrine already suggested, though the application of that doc- trine is necessarily varied by the circumstances. Where a cred- itor has a right to resort to two persons, who are his joint and several debtors, he is not compellable to yield up his remedy against either ; since he has a right to stand upon the letter and spirit of his contract, unless some supervening equity changes or modifies his rights. 3 If each debtor is equally bound in equity 1 Lord Eldon, in Ex parte Kendall, 17 Nor to the injury of third parties having Ves. 520. equal equities. See Dolphin v. Aylward, 2 Lord Eldon, in Ex parte Kendall, 17 L. K. 4 H. of L. 486 ; In re Mower's Ves. 520. See Newsom v. McLendon, Trusts, L. R. 8 Eq. 110 ; Reilly v. Mayer, 6 Georgia, 392. 1 Beas. (N. J.) 55. And see Mechanics', 8 [The rule as to marshalling will not &c. Assn. ;;. Conorer, 1 McCarter (N. J.), be applied to the injury of the prior 219 ; Herbert v. Mechanics', &c. Assn., 2 creditor, e. g., where the fund is dubi- C. E. Green, 497 ; McCormick's Appeal, ous, or only to be reached by litigation. 57 Penn. St. 54. See Sibley v. Baker, 28 Walker v. Corar, 2 So. Car. 16 ; Kidder Mich. 312. Where one of the funds is a v. Page, 48 N. H. 380 ; Emmons v. Brad- homestead, or property exempt by stat- ley, 56 Me. 333 ; Herriman v. Skillman, ute, it seems the rule still applies. Pitt- 33 Barb. (N. Y.) 378; Dodds v. Snyder, man's Appeal, 48 Penn. St. 315. But see 44 111. 53; Wolf v. Smith, 36 la. 454. Dodds v. Snyder, 44 III. 53; Dickson v. So where one fund is in another jurisdic- Choru, 6 Clarke (la.) 19. See White v. tion. Denham v. Williams, 39 Geo. 312. Polleys, 20 Wise. 503. The rule is not to § 644-645 a.] marshalling of securities. 625 and justice for the debt, as in the case of joint debtors or partners, where both have had the full benefit of the debt, the interference of a court of equity, to change the responsibility from both debtors or partners to one, would seem to be utterly without any principle to support it, unless there was a duty in one of the debtors or partners, to pay the debt in discharge of the other. And, if this be so, a fortiori, the creditors of one of the debtors, or partners, cannot be entitled to such interference for their own benefit ; for they can, in no just sense, in such a case, work out any right, except through the equity of the debtor, or partner under whom their title is derived. [* § 645 a. The question of the right of partnership creditors, both in regard to partnership and individual property of the part- ners, as to their priority of right over private creditors as to the former, and equality of right as to the latter, arose in two impor- tant cases in Vermont. 1 It was there considered, upon review of the earlier cases, both English and American, that in equity, the creditors of an insolvent partnership are entitled to have the partnership assets applied in satisfaction of their debts, in prefer- ence to the creditors of the individual partners, notwithstanding the separate creditors may have first attached those assets. And, as the partnership creditors have this prior lien upon partnership effects, the private creditors may in equity compel them to first exhaust the partnership effects. For any balance remaining un- paid thereafter, both partnership and private creditors stand upon an equal footing as to the private estate of the individual credit- ors ; and the party effecting a prior lien, either by contract or be so applied as to prevent prior creditor right to the cost of his defence, which, as from realizing his whole debt. So where against the principal debtor, he would have the estate of deceased debtor is insolvent, had the right to tack to his mortgage. In a mortgagee may prove for whole debt, England, equity in marshalling assets of and realize his security for the difference, a decedent will not order sale of an estate, Tuckley U.Thompson, 1 J. & H. 126. So subject to mortgage, free of the mort- in winding up. Kellock's case, L. E. 3 gage, without the consent of the mort- Ch. App. 769. See In re Oriental Coml. gagee. Wickenden v Rayson, 6 De G., Bank, L. R. 6 Eq. 582. But the rule M. & G. 210. But in theUnited'Statesit is otherwise in bankruptcy, and so it seems it may be done in cases of insol- seems under assignments for creditors, vency, the lien being shifted to the See Wartz v. Hart, 13 la. 515. But see proceeds. Foster v. Ames, 1 Lowell's Jervis v. Smith, 7 Abb. Pr. K. (N. Y.) Decisions, 313.] u. s. 217. In South v. Bloxam, 2 H. & M. 1 [* Washburn v. Bank of Bellows 457, securities were marshalled against a Falls, 19 Vt. 278 ; Bardwell v. Perry, id. surety in favor of a second mortgagee, in 292. See also Tiffany v. Crawford, 1 such manner as to deprive the surety of his McCarter, 278. EQ. JUB. — VOL. I. 40 626 EQUITY JURISPRUDENCE. [CH. XIII. process of law, will be allowed to maintain such priority ; and in the absence of any such lien, equity will decree an equal distribu- tion, wherever any equitable jurisdiction attaches. § 645 b. A nice question often arises in administration suits in equity, in regard to the right of a pecuniary legatee to marshal the assets in such a manner as to compel the residuary devisee of lands to contribute to the payment of debts which the general personalty was inadequate to meet. There is a recent case in the Court of Chancery Appeal, 1 where the Lord Chancellor, Chelms- ford, examined the question and the cases with care. The impres- sion of some of the English equity judges seems to have been since the Wills Act, making wills embrace all the testator's lands at the time of his decease, whether acquired before or after the date of the will ; that a residuary clause embracing lands was no more to be regarded as a specific devise of real estate embraced in it, than it was of personalty. 2 But the argument of the Lord Chancellor, in this case, shows very conclusively that, as to all lands owned by the testator at the date of the will, its operation upon them by means of the residuary clause was just as specific as under the former law, when no subsequently acquired lands could pass by the will. His Lordship, after discussing the views expressed by Lord Cottenham, 3 and quoting with approbation those of Vice- Chancellor Knight Bruce, 4 declared that the pecuniary legatee and the residuary devisee of land must contribute ratably to the pay- ment of debts which the general personalty proved inadequate to meet. 5 § 645 c. Assets in the course of the settlement of estates will be so marshalled that the direction of the testator will be followed as far as that is practicable, without denying the legal priorities of those interested in the estate. Thus, where the testator gave charitable legacies to certain scientific societies, and. directed that such legacies should be paid out of his pure personalty, it was held to give the legatees a priority of right upon this particular fund for the full payment of such legacies, and that until after such payment the pure personalty was not applicable to the payment of the administration or personal expenses, or of the debts or 1 Henman v. Fryer, Law Rep. 3 Ch. s Mirehouse u. Scaife, 2 My. & Cr. App. 420; s. c. Law Rep. 2 Eq. 627. 706. 2 This is the law in Massachusetts. * Tombs v. Roch, 2 Coll. C. C. 502. Blaney v. Blaney, 1 Cush. 107. 6 But see Dugdale a. Dugdale, L. R. 14 Eq. 234. § 645 a-646.] partition. 627 other legacies; and the testator having lands in one of the colonies, which were directed in the will to be converted into money, they were treated in the course of administration as pure personalty. 1 ] CHAPTER XIV. PARTITION. § 646-648. Equity jurisdiction in partition rests on defect of legal remedy. § 649. It may also be convenient for special reasons. § 650. Lord Redesdale's exposition of its foundation. § 651. Equity grants more perfect relief, by discovery and removing obstructions. § 652. Equity makes partition by means of decreeing conveyances, by parties swt juris. § 653. Remedy in equity to some extent discretionary. § 654, 655. Courts of equity can make compensation to some parties. § 656-656 c. Other grounds of preferring equitable relief. § 657. May assign different parcels to different parties. § 658. Recapitulation. § 658,a. Rule as to costs in partition. § 646. Another head of concurrent jurisdiction is that of Par- tition in cases of real estate, held by joint-tenants, tenants in common, and coparceners. It is not easy, as has been well ob- served by Mr. Fonblanque, to trace back or establish the origin of any branch of equitable jurisdiction. 2 But the jurisdiction of courts of equity in cases of partition is, beyond question, very ancient. 8 It is curious enough to observe the terms of apparent indignation with which Mr._Hargrave has spoken of this jurisdic- tion, as if it were not only new, but a clear usurpation. Yet he admits its existence and practical exercise, as early as the reign of 1 Beaumont v. Oliveira, Law Rep. 6 Jope v. Morshead, 6 Beavan, 217 ; Burrell Eq. 534.] „. Dodd, 3 B. & P. 378 ; although they 2 lEonbl. Eq. B. 1, ch. 1, § 3, note (/) ; might decree specific performance of an Miller v. Warmington, 1 Jac. & Walk, agreement to divide copyholds. Bolton v. 484. Ward, 4 Hare, 350. And a partition of a 8 [The jurisdiction of courts of equity, manor is within the power of a court of however, did not extend to all real estates, equity. Hanbury v. Hussey, 14 Beavan, They had no power, previous to stat. 4 & 152 ; 5 Eng. Law & Eq. 81. The writ of 5 Vict. ch. 35, § 85, to direct the partition partition at law, being abolished in Eng- of copyholds, nor of customary freeholds, land by stat. 3 & 4 Will. IV. ch. 27, § 36, Horncastle v. Charlesworth, 11 Sim. 315 ; equity now has exclusive jurisdiction.] 628 EQUITY JURISPRUDENCE. [CH. XIV. Queen Elizabeth, 1 — a period so remote, that at least one-half of the law, which is at present, by way of distinction, called the common law, and regulates the rights of property, and the opera- tion of contracts, and especially of commercial contracts, has had its origin since that time. " A new and compulsory mode of par- tition (says Mr. Hargrave) has sprung up, and is now fully estab- lished : namely, by decree of chancery, exercising its equitable jurisdiction on a bill filed, praying for a partition ; in which it is usual for the court to issue a commission for the purpose to various persons, who proceed without a jury. How far this branch of equitable jurisdiction, so trenching upon the writ of partition, and wresting from a court of common law its ancient exclusive juris- diction of this subject, might be traced by examining the records of chancery, I know not. But the earliest instance of a bill of partition, I observe, to be noticed in the printed books, is a case of the 48th Elizabeth, in Tothill's Transactions of Chancery, title ' Partition.' 2 According to this short report of the case, the court interfered from necessity, in respect of the minority of one of the parties, the book expressing that, on that account, he could not be made a party to a writ of partition ; which reason seems very inaccurate ; for, if Lord Coke is right, that writ doth lie against an infant, and he shall not have his age in it, and after judgment he is bound by the partition. 3 But probably, in Lord Coke's time, this was a rare, and rather unsettled, mode of compelling partition ; for, I observe, in a case in chancery, of the 6th Car. I., which was referred to the judges on a point of law between two coparceners, that the judges certified for issuing a writ of partition between them, and that the court ordered one accordingly; which I pre- sume would scarcely have been done, if the decree for partition, and a commission to make it, had then been a current and familiar proceeding with chancery. 4 However, it appears by the language of the court, in a very important cause, in which the grand ques- tion was, whether the Lord Chancellor here could hold plea of a trust of lands in Ireland, that in the reign of James II., bills of partition were become common." B § 647. These remarks of the learned author are open to much 1 See Mr. Fonhlanque's remarks on the 8 Co. Litt. 171 b. passage, 1 Fonbl. Eq. B. 1, ch. 1, § 3, note « Chan. 49. (/). 6 Hargrave's note (2) to Co. Litt. 169 2 Speke v. Walrond, &c. (a), Tothill's d. Trans. 155 (edit. 1649). § 646, 647.] partition. 629 criticism, if it were the object of these commentaries to indulge in such a course of discussion. It cannot, however, escape notice that, when the learned author speaks of this branch of equitable jurisdiction as trenching upon the writ of partition, and wresting from the courts of common law their ancient exclusive jurisdiction over the subject, he assumes the very matter in controversy. That the writ of partition is a very ancient course of proceeding at the common law is not doubted. But it by no means follows, that the courts of common law had an exclusive jurisdiction over the subject of partition. The contrary may fairly be deemed to have been the case, from the notorious inadequacy of that writ to attain, in many cases, the purposes of justice. Thus, for instance, we know that until the reign of Henry VIII. no writ of partition lay, except in the case of parceners. Littleton (§ 264) expressly says, " For, such a writ lyeth by parceners only." And to show how narrowly the whole remedial justice of this writ was construed, it was the known settled doctrine, that, if two coparceners be, and one should aliene, in fee, the remainder parcener might bring a writ of partition against the alienee ; but the alienee could not have such a writ against the parcener. And the like diversity existed in cases of a writ of partition by or against a tenant by the curtesy. 1 Now, such a case would, upon the very face of it, con- stitute a clear case for the interposition of a court of chancery ; upon the ground of the total defect of any remedy at law, and yet of an unquestionable equitable right to partition. Cases of joint tenancy and tenancy in common afford equally striking illustra- tions. Until the statute of 31st Henry VIII. ch. 1, and 32d Henry VIII. ch. 32, no writ of partition lay at law for a joint-tenant or tenant in common. 2 And yet the grossest injustice might have arisen, if a court of chancery could not in such a case have inter- posed and granted relief, upon the analogy to the legal remedy. The reason given at the common law against partition in such cases was more specious than solid. It was, that a joint tenancy being an estate originally created by the act or agreement of the parties, the law would not permit any one or more of the tenants to destroy the united possession without a similar universal con- sent. The good sense of the doctrine would rather seem to be, 1 Co. Litt. 175 o. Warmington, 1 Jac. & Walk. 473; 2 Co. Litt. 175a; 2 Black. Coram. 185 ; Baring v. Nash, 1 Ves. & B. 555. Com. Dig. Parcener, C. 6; Miller v. 6o0 EQUITY JURISPRUDENCE. [CH. XIV. that the joint tenancy being created by the act or agreement of the parties, in a case capable of a severance of interest, the joint interest should continue (exactly as in cases of partnership) so long as, and no longer than, both parties should consent to its continuance. § 648. Mr. Justice Blackstone has cited the civil law, as con- firmatory of the reasoning of the common law : " Nemo enim invisus compellitur ad communionem." 1 But that law deemed it against good morals to compel joint owners to hold a thing in common ; since it could not fail to occasion strife and disagree- ment among them. Hence, the acknowledged rule was, " In com- munione vel societate nemo compellitur invitus detineri." 2 And, therefore, a decree of partition might always be insisted on, even when some of the part-owners did not desire it. " Communi dividendo judicium ideo necessarium fuit, quod pro socio actio magis ad personales invicem prsestationes pertinet, quam ad com- munem rerum divisionem. 3 Etsi non omnes, qui rem communem habent, sed certi ex his dividere desiderant, hoc judicium inter eos accipi potest." 4 § 649. But, independently of considerations of this sort, which might have brought many cases of partition into the court of chancery, in very early times, from the manifest defect of any remedy at law, there must have been many cases, where bills for partition were properly entertainable upon the ordinary ground of a discovery wanted, or of other equities, intervening between the parties. 5 Lord Loughborough, upon one occasion, said that there is no original jurisdiction in chancery in partition, which is a pro- ceeding at the common law. 6 This may be true sub modo, where the party is completely remediable at law ; but not otherwise. On another occasion his lordship said : "A party, choosing to have a partition, has the law open to him ; there is no equity for it. But the jurisdiction of this court obtained upon a principle of con- venience. It is not for the court to say, one party shall not hold his. estate, as he pleases ; but another person has also the same • Dig. Lib. 12, tit. 6, 1. 26, § 4 ; 2 Black. 306 ; id. B. 1, tit. 4, § 1, p. 632, 633 ; Ful- Comm. 185, note (c). • beck's Parallel, B. 2, p. 57, 58 ; Ersk. 2 Cod. Lib. 3, tit. 37, 1. 5 ult. Inst. B. 3, tit. 3, § 56; 1 Stair's Inst. 48. 8 Dig. Lib. 10, tit. 3, 1. 1 ; 1 Domat, 6 See Watson v. Duke of Northumber- Civ. Law, B. 2, tit. 5, § 2, art. 11. land, 11 Ves. 155, arguendo. * Dig. Lib. 10 tit. 3, 1. 8 ; 1 Domat, « Mundy v. Mundy, 2 Ves. Jr. 124. Civ. Law, B. 2, tit. 5, § 2, art. 11, p. 303, § 647-650.] partition. 631 right to enjoy his part, as he' pleases; and, therefore, to have the estate divided. The law has provided, that one shall not defeat the right of the other to the divided estate. Then the only ques- tion is, Whether the legal mode of proceeding is so convenient, as the means this court affords, to settle the interests between them with perfect fairness and equality? It is evident that the com- mission is much more convenient than the writ ; the valuation of these proportions is much more considered ; the interests of all parties are -much better attended to; and it is a work carried on for the common benefit of both." 1 § 650. This language (it must certainly be admitted) is suffi- ciently loose and general. But it appears to be by no means a just description of the true nature and reason of the jurisdiction of courts of equity in cases of partition. It is not a jurisdiction founded at all in mere convenience ; but in the judicial incom- petency of the courts of common law, to furnish a plain, complete and adequate remedy for such cases. 2 The true ground is far more correctly stated by Lord Redesdale, in his admirable Treatise on Pleadings in Equity. " In cases of partition of an estate," says he, " if the titles of the parties are in any degree complicated, the difficulties which have occurred in proceeding at the common law have led to applications to courts of equity for partitions, which are effected by first ascertaining the rights of the several persons interested ; and then issuing a commission to make the partition required ; and, upon the return of the commissioners, and con- firmation of that return by the court, the partition is finally com- pleted by mutual conveyances of the allotments made to the several parties." 3 1 Calmady v. Calmady, 2 Ves. Jr. 570. is referred. Id. See also Phelps v. Green, See also Baring v. Nash, 1 Ves. & Beam. 3 Johns. Ch. 304, 3Q5; Burham u. Bur- 555. ham, 2 Barb. Ch. 404. But the court 2 Mitford, Eq. PI. by Jeremy, 120 ; will, generally, where the title is denied, Strickland v. Strickland, 6 Beav. 77, 31 ; and has not been established at law, re- ante, § 627, note. quire it to be first established at law ; and 8 Mitford, Eq. PI. by Jeremy, 120; 1 will retain the bill to await the decision. Fonbl. Eq. B. 1, ch. 1, § 3, note (/), p. Wilkin u. Wilkin, 1 Johns. Cli. 117; 120, 121. The commissioners do not Parker v. Gerard, Ambler, 236 ; Phelps v. ascertain the interests of the respective Green, 3 Johns. Ch. 305; Cox v. Smith, 4 parties ; but the court first ascertains the Johns. Ch. 271, 276. [Manners v. Manners, interest and the proportion of each party 1 Green, Ch. 384. For unless the title of in the land; and then the commissioners both parties is clear, equity cannot decree make the allotments accordingly. Agar a partition. Garret v. White, 3 Iredell, Eq. v. Fairfax, -17 Ves. 543. The mode of 13. So the plaintiff must show that he is ascertainment is through the instrumen- entitled to a partition against the defend- tality of a Master, to whom the subject ant. Kamsay v. Bell, 3 Iredell, Eq. 209.] 632 EQUITY JUEISPRUDENCE. [CH. XIV. § 651. The ground, here stated, is of a complication of titles, as the true foundation of the jurisdiction. But it is not even here expressed with entire legal precision. However complicated the titles of the parties might be, still, if they could be thoroughly investigated at law, in the usual course of proceedings in the common-law courts, there would seem to be no sufficient reason for transferring the jurisdiction of such cases to the courts of equity. The true expression of the doctrine should have been, that courts of equity interfere in cases of such a complication of titles, because the remedy at law is inadequate and imperfect, without the aid of a court of equity to promote a discovery, or to remove obstructions to the right, or to grant some other equitable redress. 1 - Besides ; the remedy in courts of equity, even in such cases, is more perfect and extensive than at law ; for, in equity, conveyances are directed to be made by the parties in pursuance of the allotments of the commissioners, which is a mode of redress of great importance, as a permanent muniment of title, and of which a court of law is, by its own structure, incapable. § 652. This is very clearly, but briefly stated, in a judgment of Lord Redesdale. " Partition at law " (said that learned judge), " and in equity, are different things. The first operates by the judgment of a court of law, and delivering up possession in pursu- ance of it ; which concludes all the parties to it. Partition in equity proceeds upon conveyances to be executed by the parties ; and, if the parties be not competent to execute the conveyances, the partition cannot be effectually had." 2 Hence, if the infancy of the parties, or other circumstances, prevent such mutual con- 1 See Manaton v. Squire, 2 Freem. Agar v. Fairfax, 17 Ves. 551 ; Watson v Duke of Northumberland, 11 Ves. 153 Mitford, Eq. PI. by Jeremy, 120 ; 1 Fonbl is attended with so much difficulty, that, by analogy to the jurisdiction of a court of equity in the case of Dower, a par- tition may be obtained by bill. The plain- Eq. B. 1, ch. 1, § 3, note (/), p. 20, 21 ; tiff must, however, state upon the record Jeremy on Equity Jurisd. B. 3, ch. 1, § 1, his own title, and the titles of the defend- p. 303, 304. This is the ground of the ants ; and, with a view to enable the jurisdiction, as stated by Lord Eldon, in plaintiff to obtain a judgment for par- Agar v. Fairfax (17 Ves. 551). "This tition, the court will direct inquiries to court" (said he) " issues the commission, ascertain who are together with him en- not under the authority of any act of titled to the whole subject." The in- parliament, but on account of the ex- quiries are (as we have seen), by a treme difficulty attending the process of reference to a Master. See the form of partition at law ; where the plaintiff a Decree in Partition, in 17 Ves. 545, 553, must prove his title, as he declares, and 554 ; Strickland v. Strickland, 6 Beav. 77, also the titles of the defendants ; and 80, 81 ; ante, § 627, note, judgment is given for partition according 2 Whaley v. Dawson, 2 Sch. & Lefr. to the respective titles so proved. This 371, 372. § 651-653.] partition. 633 veyances, the decree can only extend to make the partition, give possession, and order enjoyment accordingly, until effectual con- veyances can be made. If the defect. arise from infancy, 1 the infant must have a day after attaining twenty-one years to show cause against the decree. 2 If a contingent remainder, not barable or extinguishable, is limited to a person not in existence, the con- veyance cannot be made until he comes into being, and is capable, or until the contingency is determined. An executory devise may occasion a similar embarrassment. And, in either of these cases, a supplemental bill will be necessary to carry the original decree into execution. 3 § 653. It is upon this account, that Lord Hardwicke has spoken of the remedy by partition in equity, as being discretionary, and not a matter of right in the parties. " Here " (said he) " the reason " (that the plaintiff should show a title in himself, and not allege, generally, that he is in possession of a moiety of the land) "is because conveyances are directed, and not a partition only; which makes it discretionary, in this court, where a plaintiff has a legal title (whether) they (it) will grant a partition or not ; and where there are suspicious circumstances in the plaintiff's title, the court will leave him to law." 4 His lordship was here. Speaking of legal titles ; for, in the same case, he expressly stated, that, where the bill for a partition was founded on an equitable title, a court of equity .might determine it ; or otherwise, it would 1 [In New York, an infant cannot tion by conveyances in English practice, maintain a suit in equity for partition, see Orger v. Spark, 9 W. R. 180 ; Shep- either alone or as a joint party with a herd v. Churchill, 25 Beav. 21 ; where co-tenant of full age. All parties must party is a lunatic, Re Bloomar, 2 De G. & be adults. Postley v. Rain, 4 Sandf. Ch. J. 88 ; Moorehead v. Moorehead, 2 Ir. R. 508.] Eq. 492.] 2 [By stat. 13 & 14 Vict. ch. 60, § 7 * Cartwright v. Pultney, 2 Atk. 380. and 30, an infant no longer has a day in [If the plaintiff does not prove his title, court, according to the old forms of de- the bill will be dismissed. Jope v. Mors- crees, but he is declared a trustee of such head, 6 Beav. 213. A tenant by the cur- portions as are awarded the other par- tesy initiate has sufficient title to suppr rt ties. See Brown v. Wright, 3 Eng. Law a bill for partition. Riker v. Darke, 4 and Eq. 190.] Edw. Ch. 668. A partition suit cannot be 8 Mitford, Eq. PI. by Jeremy, 120, 121 ; made the means of trying a disputed title, Attorney-General v. Hamilton, 1 Mad. but the bill may be retained to give oppor- 214; Wills v. Slade, 6 Ves. 498; Com. tunity to try the title at law. Slade v. Dig. Chancery, 4 E. ; Brook v. Hertford, Barlow, L. R. 7 Eq. 296 ; Bolton <•. Bol- 3T. Will. 518, 519; Tuckfield v. Buller, ton, L. R. 7 Eq. 298 n.; Giffard v. Wil- 1 Dick. 240; Thomas v. Gyles, 2 Vern. liams, L. R. 5 Ch. App. 546, reversing s. c. 232; Gaskell v. Gaskell, 6 Sim. 643. See 8 Eq. 494; Daniel v. Green, 42 111. 471; Maityn v. Perryman, 1 Rep. in Ch. 235; Hoffman v. Beard, 22 Mich. 59 ; De Witt post, § 656 a. [As to carrying out parti- v. Ackerman, 2 C. E. Green, 215; Hay v. 634 ' EQUITY JURISPRUDENCE. [CH. XIV. be without remedy. 1 And, indeed, if there are no suspicious cir- cumstances, but the title is clear at law, the remedy for a partition in equity is as much a matter of right, as at law. 2 [* § 653 a. But it seems to be well settled that in the case of a mere trading partnership, when it is dissolved or terminated, any one of the partners is entitled to have the whole assets disposed of. The court will not, therefore, order a partition of the real estate belonging to the firm, among the different partners. 3 ] § 654. In regard to partitions, there is also another distinct ground upon which the jurisdiction of courts of equity is main- tainable, as it constitutes a part of its appropriate and peculiar remedial justice. It is, that courts of equity are not restrained, as courts of law are, to a mere partition or allotment of the lands and other real estate between the parties, according to their respective interests in the same, and having the regard to the true value thereof. But courts of equity may, with a view to the more convenient and perfect partition or allotment of the premises, decree a pecuniary compensation to one of the parties for owelty or equal- ity of partition, so as to prevent any injustice or unavoidable inequality. 4 This a court of common law is not at liberty to do ; Estell, 3 C. E. Green, 251 ; Hassam v. may be resorted to for that purpose, and Day, 39 Miss. 392. But see Burleson v. will under same bill decree partition. So Burleson, 28 Tex. 383 ; Cuyler !'. Ferrill, it seems where equity is resorted to to re- 1 Abb. U. S. Rep. 109. And see Gourley move cloud. Levertonv. Waters, 7 Coldw. v. Woodbury, 42 Vt. 395; Morenhout v. (Tenn.) 20;. Ross v. Cobb, 48 HI. Ill; Higuera, 32 Cal. 289 ; Campau v. Campau, Carter v. Taylor, 3 Head (Tenn.), 30. 19 Mich. 116 ; Riverview Cemetery Co. And see Williams v. Wiggand, 53 111. 233. v. Turner, 24 N.J. Eq. 18 ; Byers v. Domley, That the rule that equity will not parti- 27 Ark. 77 ; Chaplin v. Holmes, 27 Ark. tion where title is in dispute, does not 414 ; Hardy t». Mills, 35 Wis. 141. Where prevent defendant in partition from set- all adult parties consent, it seems a ques- ting up and having determined an equita- tion of law may be determined. Burt v. ble title or defence, e. g., verbal agreement Hellyar, L. R. 14 Eq. lb'O. Uncertainty to purchase, see Oliver v. Jernigan, 46 of shares is not a fatal objection, as they Ala. 41. One out of possession can have may be made certain by reference to a partition, unless the disseisin amounts to master. Jope v. Morshead, 6 Beav. 213.] an actual ouster. Wommack o. Whit- 1 Ibid. It is essential to a partition in more, 48 Mo. 448 ] equity, that the legal title should be 2 Baring v. Nash, 1 Ves. & B. 555, 556 ; before the court. It would be a decisive Parker v. Gerrard, Ambler, 236, and Mr. answer, that the equitable title only is Blunt's note; Wisely v. Findlay, Rand, before the court; for then, how could the 361, 398 ; Smith v. Smith, 10 Paige, 473; conveyances be made, if any should be post, § 656. [* See Lucas v. King, 2 Stock, necessary % See the opinion of Sir Thom- Ch. 277. as Plumer (Master of the Rolls) in Mil- 8 Wild v. Milne, 26 Beavan, 504; ler o. Warmington, 1 Jac. & Walk. 473. Crawshay v, Maule, 1 Swanst. 495, 518 ; See .Hosford v. Marvin, 5 Barb. 51. Darby v. Darby, 3 Drewry, 495, 501.] [Where the titles are equitable, or there * Co. Litt. 176 a and b ; id. 168 a. See are equities to settle, a court of equity Calmady v. Calmady, 2 Ves. Jr. 570; § 653 T 655.J PARTITION. 635 for when a partition is awarded by such a court, the exigency of the writ is, that the sheriff do cause, by a jury of twelve men, 4 the partition to be made of the premises between the parties, regard being had to the true value thereof ; without any authority to make any compensation for any inequality in any other manner. 1 This is in itself a sufficient ground of equity jurisdiction. § 655. Cases of a different nature, involving equitable compen- sation, to which a court of law is utterly inadequate, may easily be put; such, for. instance, as cases, where one party has laid out large sums in improvements on the estate. For, although, under Earl of Clarendon u. Hornby, 1 P. Will. 446, 447 ; Warner v. Baynes, Ambler, 689; Wilkin v. Wilkin, 1, Johns. Ch.116, 117 ; Phelps v. Green, 3 Johns. Ch. 302, 305 ; Larkin v. Mann, 2 Paige, 27 ; Storey v. Johnson, 1 Younge_ & Coll. 538 ; b. c. 2 Younge & Coll. 586, 610, 611; post, § 657 ; Cole v. Sewell, 15 Sim. 284. [But this power rests only with the court. The commissioners themselves cannot award a sum to be paid for owelty of partition. Mole v. Mansfield, 15 Sim. 41. It seems that in England before the Partition Act, 1868, courts of equity would order a sale in lieu of partition where satisfied it was for the benefit of all parties, although minors or persons out of the realm were interested. Davis v. Turvey, 32 Beav. 554; Hubbard v. Hubbard, 2 H. & M. 38. But not against the will of one of the parties in interest. Griffies v. Grif- fies, 11 W. R. 943. And see Oliver v. Jernigan, 46 Ala. 41. But under the Partition Act, 1868, 31 & 32 Vict. ch. 40, §§ 3, 4, sale may be ordered though not assented to by all parties. See Roebuck . v. Chadebet, L. R. 8 Eq. 127 (partition of part and sale of part) ; Prance v. France, L. R. 13 Eq. 173 (infant) ; Higgs v. Dor- kis, L. R. 13 Eq. 280 (married woman) ; Holland v. Holland, L. R. 13 Eq. 406 (bill should pray for partition as well as sale) ; Pemberton v. Barnes, L. R. 6 Ch. App. 685 (under sect. 4 sale imperative on request of half the owners, unless others will buy shares or court sees good reason against sale). See, as to parties out of jurisdiction, Peters v. Bacon, L. R. 8 Eq. 125; Silver «. Udall, L. R. 9 Eq. 227; Hurry v. Hurry, L. R. 10 Eq. 346 ; Teall v. Watts, L. R. 11 Eq, 213. And in most of the United States there are statutes authorizing sale. Wilson o. Duncan, 44 Miss. 642 ; Hickenbotham v. Blackledge, 54 111. 316; Thruston v. Minke, 32 Md. 571 ; Graham v. Graham, 8 Bush (Ky.), 334; Pockman v. Meatt, 49 Mis. 344 ; Loyd v. Loyd, 23 La. 231 ; Welsh v. Freeman, 21 Ohio (n. s.), 4Q2; McCall's Appeal, 56 Penn. St. 363. As to whether equity has jurisdiction in ab- sence of statute to order sale in case of infants, see Rivers v. Durr, 46 Ala. 418. It seems sale may be ordered discharged of mortgages, &c. ; same to attach on proceeds. See Kilgour v. Crawford, 51 111. 249 ; Garvin v. Garvin, 1 So. Car. 55; Girard Life Ins. Co. v. Farmers, &c. Bank, 57 Penn. St. 388. The partition may be confined to setting off the aliquot part of the plaintiff, if the defendants do not desire partition. Hobson o. Sher- wood, 4 Beav. 184. As to setting off shares of two or more together, see Peers v. Needham, 19 Beav. 316. Where one of four coparceners surrenders her in- terest to another of the four for a sum in gross secured by a bond, this is not owelty of partition, but it is purchase- money, and the vendor's lien will extend only to the one-fourth interest surren- dered. Thomas v. Farmers Bank, 32 Md. 57. And see Cooke v. Moore, 2 So. Car. 52, as to subrogation to lien for owelty by one paying it.] 1 Co. Litt. 167 a ; Com. Dig. Pleader, 3F. 4. Littleton (§ 251) has spoken of a rent-charge in cases of partition for owelty or equality in partition. But this not in a case of compulsive partition by writ; but of a voluntary partition by deed or parol, as the context abundantly shows. Co. Litt. 168 k; Litt. § 250, 252. 636 EQUITY JURISPRUDENCE. [CH. XIV. such circumstances, the money so laid out does not, in strictness, constitute a lien on the estate ; yet, a court of equity will not grant a partition without first directing an account, and compel- ling the party applying for partition to make due compensation. 1 So, where one tenant in common has been in the exclusive percep- tion of the rents and profits, on a bill for a partition and account, the latter will also be decreed. 2 So, where one tenant in common, supposing himself to be legally entitled to the whole premises, has erected valuable buildings thereon, he will be entitled to an equi- table partition of the premises, so as to give him the benefit of his improvements ; or if that cannot be done, he will be entitled to a compensation for those improvements. 3 § 656. Indeed, in a great variety of cases, especially where the property is of a very complicated nature, as to rights, easements, modes of enjoyment, and interfering claims, the interposition of a court seems indispensable for the purposes of justice. For since partition is ordinarily a matter of right, no difficulty in making a partition is allowed to prevail in equity, whatever may be the case at law, as the powers of the court are adequate to a full and just compensatory adjustment. 4 There have been cases disposed of in equity which seemed almost impracticable for allotment at law, as 1 Swan v. Swan, 8 Price, 518 ; Green improved, see Hall v. Piddock, 6 C. E. v. Putnam, 1 Barb. 500 ; Conklin v. Conk- Green, 311. But where in a par- lin, 3 Sandf. Ch. 64. tition there were improvements, but 2 Hill v. Fulbrook, 1 Jac. 574 ; Lori- whether they had been paid for and by mer v. Lorimer, 5 Mad. 363; Storey v. whom, and what were the rights of par- Johnson, 1 Younge & Coll. 538 ; s. c. 2 ties as to same, was very doubtful : Held, Younge & Coll. 586. that partition should be made irrespective 8 Town of Needham, 3 Paige, 546, of them. Campbell v. Campbell, 21 Mich. 655. See also Teal v. Woodworth, 3 438. That if it can be done without in- Paige, 470. [Where the defendant in a justice, the portion improved should be bill for partition claims for improvements set out to the party who made the im- on 1he whole or any part of the estate, he provements ; and if this cannot be must bring his claim before the court by done, there should be compensation, see a cross bill.- Stafford v. Nutt, 39 Ind 93. Kurtz v. Hibner, 55 111. 514; Dean „. Bond v. Hill, 37 Tex. 626. That equity O'Meara, 47 111. 120. But see Scott o. will incidentally settle account between Guernsey, 48 N. Y. 106. As to right of co-tenants, and charge one occupying to a tenant in common to partition where exclusion of others with occupation rent, the land is subject to a charge in favor see Pascoe u. Swan, 27 Beav. 508. And of herself and others, see Otway-Cave r. that one co-tenant will not be allowed for Otway, L. R. 2 Eq. 725. Equity may permanent improvements except as an enjoin waste after decree for partition, offset to occupation rent, see Teasdale v. Bailey v. Hobson, L. R. 5 Ch. App. 180. Sanderson, 33 Beav. 534. That equity And it may stay waste during the suit will interfere with statutory proceedings for partition. Coffin v. Loper, 25 N. J for partition at law where necessary to Eq. 443.] do justice, e. g., where one co-tenant has * Ante, § 653. § 655-656 a.\ partition. 637 in the case of the Cold Bath Fields, in which Lord Hardwicke did not hesitate to act, notwithstanding the admitted difficulties. 1 Nor does it constitute any objection in equity that the partition does not or may not finally conclude the interests of all persons ; as where the partition is asked only by or against a tenant for life, or where there are contingent interests to vest in persons not in esse? For the court will still proceed to make partition' between the parties before the court, who possess competent present inter- ests, such as a tenant for life, or for years. 3 But, under such cir- cumstances, the partition is binding upon those parties only who are before the court, and those whom they virtually represent : i and the interests of third persons are not affected. 5 And it is not an unimportant ingredient in the exercise of equity jurisdiction, in cases of partition, that the parties in interest may be brought before the court, far more extensively than they can be by any processes known to the courts of law, for the purpose of doing complete justice. 6 § 656 a. Doubts were formerly entertained, whether in a suit in equity for a partition, brought only by or against a tenant for life of the estate, where the remainder is to persons not in esse, a decree 'could be made which would be binding upon the persons in re- mainder. That doubt, however, is now removed ; and the decree is held binding upon them, upon the" ground of a virtual repre- sentation of them by the tenant for life in such cases. 7 But, if the partition is made in pursuance of an agreement between the tenant for life and the other party, under such circumstances, the court will direct it to be referred to a master, to inquire and 1 Warner v. Baynes, Ambler, 589 ; 16 Beav. 147. Per con., Boston, &c. Co. Turner v. Morgan, 8 Ves. 143, 144. v. Condit, 4 O. E. Green, 394. 2 Gaskell v. Gaskell, 6 Sim. 643. [But 3 Wills v. Slade, 6 Ves. 498 ; Baring one in remainder or reversion cannot v. Nash, 1 Ves. & B. 555 ; Wotten v. Cope- have partition. Evans v. Bagshaw, L. R. land, 7 Johns. Ch. 140 ; Gaskell v. Gas- 5 Ch. App. 340 ; but see Sullivan v. Sul- kell, 6 Sim. 643 ; Striker v. Mott, 2 Paige, livan, 6 Thomp. &C. 333; 4 Hun, 198. A 387,389; Woodworth v . Campbell, 5 mortgagee of an undivided share may sue Paige, 518 ; [Heaton v. Dearden, 16 Beav. for a receiver, foreclosure, and partition. 147]. Fall v. Elkins, 9 W. R. 861. But owners * Story on Equity Pleadings, § 144 to of the equity in a foreclosure .suit cannot 148 ; Gaskell v. Gaskell, 6 Sim. 643. insist upon partition against the will of 6 Agar v. Fairfax, 17 Ves. 544. the mortgagee. Watkins v. Williams, 3 6 Anon., 3 Swanst. 139, note (5). M.,& G. 622. The vendee of a tenant in 7 Gaskell v. Gaskell, 6 Sim. 643. See common may have partition. Stewart's also Martyn v. Perryman, 1 Ch. 235 ; Appeal, 56 Penn. St. 241. So vendee of Brook v. Hertford, 2 P. Will. 518; ante, right to minerals. Heaton v. Dearden, § 653. 638 EQUITY JURISPRUDENCE. [CH. XIV. state whether it will be for the future benefit of the remainder- men that the agreement should be carried into execution without any variations, or if with variations, what the variations ought to be. 1 § 656 b. In suits in equity, also for partition, various other equitable rights and claims and adjustments will be made, which are beyond the reach of courts of law. Thus, if improvements have been made by one tenant in common, a suitable compensation will (as we have seen) be made him upon the partition, or the property on which the improvements have been made, assigned to him. 2 So courts of equity will not only take care, that the parties have an equal share and just compensation ; but they will assign to the parties respectively such parts of the estate as would best accommodate them, and be of most value to them with reference to their respective situations, in relation to the property before the partition. 3 For in all cases of partition, a court of equity does not act merely in a ministerial character, and in obedience to the call of the parties, who have a right to the par- tition ; but it founds itself upon its general jurisdiction as a court of equity, and administers its relief ex cequo et bono, according to its own notions of general justice and equity between the parties. It will, therefore, by its decree, 4 adjust all the equitable rights of the parties interested in the estate ; and will, if necessary for this purpose, give special instructions to the commissioners, 5 and nomi- nate the commissioners, instead of allowing them to be nominated by the parties. 6 § 656 c. And courts of equity, in making these adjustments, will not confine themselves to the mere legal rights of the original ten- ants in common, but will have regard to the legal and equitable rights of all other parties interested in the estate, which have been 1 Gaskell v. Gaskell, 6 Sim. 643. may be considered and the assets mar- 2 Ante, § 655 ; Bond u. Hill, 37 Tex. shallod for their protection. Gatewood i> 626. Toomer, 14 Rich. (S. C.) Eq. 139.] 3 Storey v. Johnson, 1 Younge & Coll. 6 [The report of the commissioners is 538 ; s. c. 2 Younge & Coll. 586 ; Green regarded in the same light as the verdict !•. Putnam, 1 Barb. S. C. 509; [War- of a jury on a trial at law; and will not field c/. Crane, 4 Abb. N. Y. App. Dec. be set aside except upon grounds similar 525] . to those for which a new trial at law is 4 [Such a decree amounts to no more granted. Livingston «. Clarkson, 4 Edw. than an ordinary conveyance. Anderson Ch. 596.] o. Hughes, 5 Strobh. 74. It has been held ° Ibid. ; Haywood v. Judson, 4 Barb, that in a suit between heirs for partition, 228. the claims of creditors of the ancestor § 656 a-658.J partition. 639 derived from any of the original tenants in common ; and will, if necessary for this purpose, direct a distinct partition of each of several portions of the estate, in which the derivative alienees have a distinct interest, in order to protect that interest. 1 Thus, where A., B., and C. were tenants in common in undivided third parts of an estate, comprising Whiteacre and Blackacre, and C. had conveyed his interest in Blackacre to D., and his interest in Whiteacre to E. ; upon a bill filed by A. and B., for partition of the whole estate, the court directed that Blackacre should be divided into three parts, and one part should be conveyed to A., and B., and D., respectively ; and that Whiteacre should be divided into three parts, and one part should be conveyed to A., and B., and E., respectively. In this way, consistently with the rights of A. and B., the interests of D. and E. were, as in equity they ought to be, fully protected and secured. 2 § 657. In equity, too (and it would seem that the same rule pre- vails at law, though this has sometimes been doubted), 3 where there are divers parcels of lands, messuages, and houses, partition need not be made of each estate separately, so as to give to each party his moiety or other portion in every estate. But the whole of one estate may be allotted to one, and the whole of another estate to the other, provided that his equal share is allotted to each. 4 But it is obvious, that, at law, such a partition can rarely be con- veniently made, because the court cannot decree compensation, so as to make up for any inequality, which must ordinarily occur in the allotment of different estates to each party. In equity it is in the ordinary course. 5 § 658. It is upon some or all of these grounds, the necessity of a discovery of titles, the inadequacy of the remedy at law, the difficulty of making the appropriate and indispensable compensa- tory adjustments, the peculiar remedial processes of courts of equity and their ability to clear away all intermediate obstructions against complete justice, that these courts have assumed a general con- current jurisdiction with courts of law in all cases of partition. 6 1 Haywood v. Judson, 4 Barb. 228. Will. 446, 447 ; [Peers v. Needham, 10 2 Storey v. Johnson, 1 Younge & Coll. Beav. 316]. 538 ; s. c. 2 Younge & Coll. 586. . 6 Ibid. ; ante, § 654. [In New York, 8 See arguendo in Earl of Clarendon v. by statute, a part of the land may be al- Hornby, 1 P. Will. 446, 447 ; Storey v. lotted to one of the parties, and the rest Johnson, 1 Younge & Coll. 538 ; s. c. 2 ordered to be sold and distributed. Hay- Younge & Coll. 586. wood v. Judson, 4 Barb. 228.] 4 Earl of Clarendon v. Hornby, IP. ° Hayward v. Judson, 4 Barb. 229. 640 EQUITY JURISPRUDENCE. [CH. XIV. So that, it is not now deemed necessary to state, in the bill, any peculiar ground of equitable interference. 1 And, unless I am greatly misled in my judgment, this review of the true sources and objects of this concurrent jurisdiction demonstrates, in the most satisfactory manner, how ill-founded the animadversions of Mr. Hargrave (already cited) are, upon the exercise of this juris- diction. 2 But the most conclusive proof in its favor is, that, wher- ever it exists, it has almost entirely superseded any resort to courts of law to obtain a partition.' In making partition, however, courts of equity generally follow the analogies of the law; and will decree it in such cases, as the courts of law recognize as fit for their interference. 3 But courts of equity are not, therefore, to be understood as limiting their jurisdiction in partition to cases cog- nizable or relievable at law ; 4 for there is no doubt, that they may interfere in cases where a partition would not lie at law ; 6 as, for instance, in the case where an equitable title is set up 6 [or where the estate to be divided is incorporeal] . [* § 658 a. The English rule as to costs in partition suits, where there is no controversy in regard to the title of the claimants, is that the parties pay their own costs up to the time of mating the order for partition, and afterwards the costs are borne by the estate. 7 But where the defendants were infants, the court, in making an order for the sale of the estate under the English statutes, 8 ordered the costs of all parties to be paid out of the estate. 9 ] 1 Mitf ord, Eq. Plead, by Jeremy, 120 ; worth v. Campbell, 5 Paige, 518 ; Hay- Jeremy on Eq. Jurisd. B. 3, ch. 1, § 2, wood v. Judson, 4 Barb. 228. p. 304, 305 ; 1 Fonbl. Eq. B. 1, ch. 1, § 3, « Cartwright v. Pultney, 2 Atk. 380 ; note (/), p. 10, 21. [A statutory juris- Cox v. Smith, 4 Johns. Ch. 276. See diction as to partition given to courts of Hosford v. Merwin, 5 Barb. S. C. 51 ; law does not take away the jurisdiction Miller t. Warmington, 1 Jac. & Walk, of equity. Hess v. Voss, 52 111. 472. 473; Com., Dig. Chancery, 4 E. Partition; The opposite doctrine was held in Mas- ante, § 653. sachusetts. Whiting v. Whiting, 15 Gray, i [*Landell v. Baker, Law Bep. 6 Eq. 503.] 268. 2 Ante, § 646. 8 31 & 32 Vict ch. 40. » B>id.; Wilh v. Slade, 6 Ves. 498; 9 Osborn v. Osborn, Law Rep. 6 Eq. Baring v. Nash, 1 Ves. & B. 555. 338. See France o. France, L. E. 13 Eq. 4 See Bailey v. Sisson, 1 Rhode Island, 173. So also in case of adults. Miller 233. v. Marriott, L. R. 7 Eq. 1; Cannon u. 6 Swan v. Swan, 8 Price, 519; Wood- Johnson, L. R. 11 Eq. 90.] § 658-660.] PARTNERSHIP. 641 CHAPTER XV. PARTNERSHIP. [* § 659. In partnership, the aid of courts of equity often required. § 660. Difficulties which occur in proving the partnership. § 661. Legal remedies defective and inadequate. §662. Remedy, by action of account. § 663-665. Inadequacy of the remedy, especially where one partner deceases, or the default complained of is special. § 666. Equity will decree specific performance of contract to enter into partner- ship for a definite term. § 667. And will enforce other stipulations by injunction. § 668, 668 a. Will regulate the dissolution according to equity and justice. § 669. Will restrain the partners from injuring the firm. § 670. Will not interfere, in many cases, especially if agreed to be arbitrated. § 671. Interpose in many cases where courts of law will not. § 672, 672 a. Receiver will be appointed when necessary. § 673, 673 a, 673 6. May dissolve the partnership for misconduct or incapacity of the partners, or where the object has failed. § 674. May treat real estate as part of the effects. § 675. May give joint and separate creditors their precise equities. § 676. May grant relief against the estate of deceased partners. § 676 a, 676 b. Authority of surviving partner, or one buying out concern. § 676 c. Dissolution by death of partner, after notice to dissolve. § 677. May take an account to determine the interest of the vendee on execution. § 678. May restrain such sale by injunction. § 679, 680. Equity gives relief between two firms having some members in com- mon. § 681. Where one partner fraudulently releases debts. § 682. Analogy between equity law and civil law. § 683. Recapitulation. § 683 a. Ground of jurisdiction of matters abroad.] § 659. Another head of concurrent jurisdiction, arising from similar causes, is in relation to Partnership. 1 In cases of this nature, where a remedy at law actually exists, it is often found to be very imperfect, inconvenient, and circuitous. But in a very great variety of cases, there is, in fa.ct, no remedy at all at law, to meet the exigency of the case. We shall, in the first instance, take notice of such remedies as exist at law ; and then proceed to the consideration of others, which are peculiar to courts of equity. § 660. And here, it may be proper to begin by a reference to that, 1 See Com. Dig. Chancery, 3 V. 6. EQ. JUR. — VOL. I. 41 642 EQUITY JURISPRUDENCE. [CH. XV. which is, in its own nature, preliminary to all other, inquiries ; to wit, the actual existence of the partnership itself. Although, in many cases, written articles or instruments of partnership exist, as the foundation of the joint concerns ; yet, in many other cases, the partnership itself exists merely in parol ; and, even in cases of written articles, there are many defects and omissions, which the parties have left unprovided for. Now a controversy may arise in regard to the existence of the partnership between the partners themselves, or between them and third persons. In each case its existence may mainly depend upon the discovery to be obtained through the instrumentality of a court of equity. If written articles exist, they may be suppressed or concealed; if none exist, it may be impracticable to obtain due knowledge of the part- nership by any competent witnesses in the ordinary course of law. But, in by far the most numerous and important class of cases, that of secret and dormant partners, there may not be, and indeed ordinarily will not be, any adequate means at law to get at the names or numbers of the partners. In all such cases, the powers of a court of equity will be found most effective, by means of a bill of discovery, to bring out all the facts, as well in contro- versies between the partners themselves as between them and third persons. § 661. But admitting a partnership to exist, let us now proceed to consider what are the remedies at law which exist between the partners themselves. These, of course, are dependent upon the nature of the partnership, and the grievance for which a remedy is sought. ^If the articles of partnership are under seal, and any violation of any of the stipulations therein contained exists, it may be, and is properly, remediable by an action of covenant. If there are written articles not under seal, or the partnership is by a parol agreement, the proper remedy for any breach of the stipulations, is by an action of assumpsit. But, as we shall presently see, both these remedies are utterly inadequate to provide for many exigen- cies and injuries, which may arise out of the violation of partner- ship rights and duties. § 662. The most extensive, and generally the most operative, remedy at law, between partners, is an action of account. This is the appropriate, and, except under very peculiar circumstances, is the only, remedy, at the common law, for the final adjustment and settlement of partnership transactions. It is a very ancient § 660-664.J PARTNERSHIP. 643 remedy between partners, in which one, naming himself a mer- chant, may sue his partner for a reasonable account, naming him a merchant, and charging him, as the receiver of the moneys of himself, arising from whatever cause or contract, for the common profit of both, according to the law-merchant. 1 § 663. But it is wholly unnecessary to dwell upon the inade- quacy of this remedy in cases of partnership, as all the remarks already made in respect to the dilatory, cumbrous, and inconven- ient proceedings in actions of account, 2 apply, with augmented force, to cases of partnership, where it is absolutely impossible, in many cases, to settle the concerns of the partnership, without the production of books, vouchers, and other documents belonging to the partnership, and the persona] examination of the partners themselves. So intimate is the confidence and so universal the community of interest and operations between partners, that no proceedings, not including a thorough and minute discovery, can enable any court to arrive at the means of doing even reasonable justice between them. And, in addition to the common difficulties in ordinary cases, the death of either partner puts an end, at the common law, to any means of enforcing this remedy by account ; for it being founded in privity between the parties, no suit lay by or against the personal representative of the deceased partner to compel an account. 3 § 664. In a few cases, indeed, where there has been a covenant or promise to account, courts of law have attempted to approxi- mate towards an effectual remedy in the shape of damages for a breach of the obligation. But it is manifest, that, even in these cases, the damages must be wholly uncertain, unless an account can be fully and fairly taken between the parties ; for, otherwise, there will be no rule by which to ascertain the damages. There has, too, been a struggle, in cases where one partner has been com- pelled to advance or pay money on the partnership account out of his own private funds, to give him a remedy at law for a contribu- tion from the other partners. But it is difficult to perceive, how, except under very peculiar circumstances, such a remedy will lie. 4 1 Co. Litt. 172 a; Fitz. F. B. 117, D. dies, in cases of this sort. "Where the 2 Ante, § 442 to 449. partnership has been dissolved, and, upon 8 Ante, § 446. such a dissolution, all the accounts of the * It is no part of the object of these partnership have been adjusted, as be- Commentaries, to show in minute detail tween the partners ; or where one partner the nature and extent of the legal reme- has purchased the property, and agreed 644 EQUITY JUEISPEUDENCE. [CH. XV. For it is impossible, during the continuance of the partnership, without taking a general account, to say, that any one partner, so called upon to advance or to pay money, is, on the whole, a cred- itor of the firm to such an amount. And if he is, how, in point of technical propriety, can he institute a remedy against his other partners alone, as contradistinguished from the partnership ? It is very certain, that, if he should lend the partnership a sum of money, he could not sue for it at law, for he could not sue himself; and it is not very easy to perceive a clear distinction between this and the former case. And if it should turn out, upon taking a general account, that such partner was a debtor to the partnership, it would be unreasonable and useless to allow him to recover the very money which he must refund to the partnership; for the maxim of common sense, as well as of common justice, is Frus- tra petis, quod statim alteri reddere cogeris. 1 § 665. Cases have also occurred, in which suits at law have been maintained for the breach of an agreement to furnish a certain sum or stock for the partnership purposes. In such a case the transaction is not so much a partnership transaction, as an agreement to launch the partnership; and an agreement to pay money or furnish stock, for such a purpose is an individual engagement of each partner to the other. 2 For the breach of such an agreement, there seems no reasonable objection to the mainte- nance of a suit at law. 3 But, what should be the measure of the to pay all the debts ; there, if the other partnership. The learned reader will partner is called upon to pay a partner- find many of the cases collected and ship debt, he may be entitled at law to commented on in Mr. Collyer's valuable contribution. So where, upon a dissolu- work on Partnership, B. 2, ch. 3, § 1, 2, 4, tion of a partnership, all the accounts and in the notes of the able American have been adjusted, and a balance struck, editor, Mr. Phillips, in his edition of that an action at law will lie for such balance, work. Mr. Gow, in his work on the same So, where a sum of money has been re- subject (ch. 2, §3), has discussed the same ceived for one partner's separate account subject at large ; and in his last (the third) by the other partners, he may recover edition, he has corrected some of the inad- the same in an action of assumpsit, as vertencies into which he had fallen on this money had and received for his use. subject, by relying too much upon some But all these, and other cases of the like loose dicta in some of the authorities. See nature, stand upon their own special also Holmes v. Higgins, 1 B. & Cressw. 74 ; circumstances, and steer wide of the gen- Harvey v. Crickett, 5 M. & Selw. 336; eral doctrine. There is no case in the Bovill v. Hammond, 6 B. & Cressw. 149. English courts (although there may be 1 Branch's Maxims, 55. cases in some of the American courts) 2 See Venning v. Leckie, 13 East, 7; where any action at law, except on ac- Gale v. Leckie, 2 Stark. 107 ; Terrill «. count, has been held to lie generally to Richards, 1 Nott & McCord, 20. settle partnership accounts, or for a contri- 8 See Vance o. Blain, 18 Ohio, 532; bution by one partner against the others, Ellison v. Chapman, 7 Blackf . 224. [See for money paid by him for the use of the Ness v. Eisher, 5 Lans. (n. s.) 236.] § 664-666.] partnership. 645 damages, must depend upon the circumstances of each particular case. No general rule can be laid down to govern all cases. If the partnership has no specific term fixed for its continuance, in many cases the damages would be merely nominal. If it has such a specific fixed term, the damages must necessarily be of a very uncertain nature and extent. The whole sum agreed for the partnership stock could not be the true rule ; for that would be in effect to give one partner the whole capital stock. And, on the other hand, the possible profits of the partnership, if carried on, would not furnish a rule, because of the uncertainty of such profits, and their being to arise infuturo, and the injury not being certain at the time of the breach. [* § 665 a. Where it was agreed that each partner should have interest at the rate of five per cent on his share of the capital, and the profits were then to be equally divided between them, and a decree was made for the dissolution of the part- nership and sale of the property, but the business was carried on some time afterwards, until the property was finally sold, it was held that after the dissolution, interest was no longer payable under the agreement ; and that in the division of the proceeds of the sale each partner would take what was found to be his share of capital at the time of the dissolution, with the accumulations thereof, meaning thereby the actual interest or income received upon it, and the residue must be equally divided between them. 1 ] § 666. The remedial justice administered by courts of equity is far more complete, extensive, and various, adapting itself to the particular nature of the grievance, and granting relief in the most 1 [* Watney v. Wells, Law Rep. 2 Ch. Beav. 77 ; Airey v. Borham, 29 Beav. 620; App. 250 ; Dinhara v. Bradford, L. R. Pease v. Hewitt, 31 Bear. 22 ; Bullock v. 5 Ch. App. 519. See also Nowell v. Crockett, 3 GifE. 507 ; Freeland v. Stans- Nowell, 7 Eq.. 538. "Where one of two feld, 2 Sm. & G. 479; Lee v. Page, 30 solicitors in entering into a partnership, L. J. (n. s.) Ch. 857. A joint ownership furnished a premium of £800, on account and management of lands for profits of of haying less skill and experience in all the owners, some of the lands being business, and after two years the other mineral and some agricultural, was held claimed a dissolution on the ground that not to amount to a partnership, and upon the inexperience of the former injured the decease of one of the joint owners, the business, the term agreed being seven his share will go to his heir and not to years, and a dissolution followed ; the the next of kin. Steward v. Blakeway, court held the former entitled to a return Law Rep. 6 Ec[. 479 ; s. c. Law Rep. 4 of a proportion of the premium for the Ch. App. 603. In a suit for the dissolu- unexpired term. Atwood v. Maude, Law tion of a partnership, an order for the Rep. 3 Ch. App. 369. As to return of sale of the business will be made before premium, see Peatherstonhaugh v. Tur-' decree in order to prevent total loss, ner, 25 Beav. 382; Astle v. Wright, 23 Heath v. Fisher, 17 W. R. 69.] 646 EQUITY JURISPRUDENCE. [CH. XV. beneficial and effectual manner, where no redress whatsoever, or very imperfect redress, could be obtained at law. In the first place, they may decree a specific performance of a contract to enter into a partnership for a specific term of time (for it would, ordinarily, be useless to enforce one, which might be dissolved instantly, at the will of either party), 1 and to furnish a share of the capital stock ; which a court of law is incapable of doing. 2 This remedy, however, is rarely sought, for the plain reason, that few partnerships can be hoped to be successful, where they begin in mutual distrust, dissatisfaction, or enmity. [* And a contract to join a firm as a partner, or else to lend the firm £5000 for two years on the acceptance of the firm, was held not to be a contract which could be specifically performed in equity. 3 ] § 667. In like manner, after the commencement, and during the continuance, of the partnership, courts of equity will, in many cases, interpose to decree a specific performance of other agreements in the articles of partnership. If, for instance, there be an agree- ment to insert the name of a partner in the firm name, so as to clothe him publicly with all the rights of acting for the partner- ship ; and there be a studied, intentional, prolonged, and continued inattention to the application of the partner to have his name so used and inserted in the firm name ; courts of equity will grant a specific relief, by an injunction against the use of any other firm name, not including his. But the remedy, in such cases, is strictly confined to cases of studied delay and omission, and relief will not be given for a temporary, accidental, or trivial omission. 4 So, where there is an agreement not to raise money in the name, or on 1 This qualification (ordinarily) is 8 [*Sichel v. Mosenthal, 8 Jur. n. s. necessary ; for a specific performance 275 ; s. c. 30 Beav. 371. See Manning v. may, in some cases, be important to es- Wadsworth, 4 Md. 59 ; England v. Curl- tablish rights under a partnership which ing, 8 Beav. 129 ; Whit worth v. Harris, has no fixed term for its continuance. 40 Miss. 483. Equity will not, it seems, Mr. Swanston, in his excellent note to decree specific performance of a verbal Crawshay v. Maule, 1 Swanst. 511 , 512, contract, to form a partnership to trade 513, has clearly shown the propriety of in land. Meason v. Kaine, 63 Penn. St. the qualification. See also Birchett v. 335. The Courts of Equity in England Boiling, 5 Munf. 442. now decline to enforce contracts for part- 2 Anon., 2 Ves. 629, 630 ; Hercy v. nership. See Stacker v. Wedderburn, 3 Birch, 9 Ves. 357 ; Buxton u> Lister, 3 K. & J. 393 ; Scott a. Bayment, L. B. Atk. 385 ; Hibbert v. Hibbert, cited in 7 Eq. 112.] Collyer" on Partn. B. 2, ch. 2, § 2, p. 197 ; * Marshall v. Colman, 2, Jac. & "Walk. Crawshay v. Maule, 1 Swanst. 511, 512, 266, 269. See Petit u. Chevelier, 2 Beas. Mr. Swanston's note ; Peacock v. Peacock, 181 ; Cof ton v. Horner, 5 Price, 537 ; An- 16 Ves. 49 ; Birchett v. Boiling, 5 Munf. derson v. Anderson, 25 Beav. 190. 442. § 666-668.] partnership. 647 the credit of the firm, for the private use of any one partner ; courts of equity will, from the manifest danger of injury to the firm, interpose by injunction to stop such an abuse of the credit of the firm. 1 So, where there is an agreement, by the partners, not to engage in any other business, courts of equity will act by injunction to enforce it ; 9 and, if profits have been made by any partner, in violation of such an agreement, in any other business, the profits will be decreed to belong to the partnership, 3 so, if it is agreed that upon the dissolution of a partnership, a certain partnership book shall belong to one of the partners, and the other shall have a copy of it, courts of equity will decree a specific performance.* § 668. Courts of equity will even go farther ; and, in case of a partnership existing during the pleasure of the parties, with no time fixed for its renunciation, will interfere (as it should seem} to qualify or restrain that renunciation, unless it is done under fair and reasonable circumstances ; for, if a sudden dissolution is about to be made, in ill faith, and will work irreparable injury, courts of equity will, upon their ordinary jurisdiction* to prevent irreparable mischief, grant an injunction against such a dissolu- 1 Ibid. [And see, for injunctions 232 ; post, § 671 ; Richardson v. Bank of against excluding a partner from busi- England, 4 Mylne & Craig, 165, 172, 173. ness, Warder v. Stilwell, 3 Jur. (n. 8.) 9; [That equity will enjoin taking away of Z. u. X., 2 Kay & J. 441 ; and for injunc- partnership books, see Taylor v. Davis, tion against misapplication of assets, see 3 Beav. 388, note ; Greatrex v. Greatrex, Stockdale v. Allery, 37 Penn. St. 486 ; 1 De G. & Sm. 692 ; and see Morison v. Stanhope v. Suplee, 2 Brewst. 455.] Moat, 9 Hare, 241 ; Marshall w. Watson, 2 [And where a partner agrees to su- 25 Beav. 501. That equity will not re- perintend and manage, although he does strain use of firm name by surviving not expressly agree not to carry on busi- partner after dissolution, see Webster v. ness on his own account, he may be Webster, 3 Swans. 490. The firm name restrained from carrying on the same is part of the good-will, and the unau- business in the same place, but at a sepa- thorized use of the same may be enjoined rate establishment, on his own account, at suit of the surviving partner, or of the Marshall v. Johnson, 33 Geo. 500 ; and vendee of the good-will. See note Lewis see American Bank Note Co. v. Edson, v. Langdon, 7 Sim. 421 ; Churton v. 56 Barb. N. Y. 84 ; Hellman v. Reis, 1 Douglas, Johns. 174 ; Banks v. Gibson, Chin. Supr. Ct. R. (Ohio) 30.] 34 Beav. 566; Bininger v. Clark, 10 8 See Somerville v. Mackay, 16 Ves. Abb. (N. T.) Pr. n. s. 264. See Rogers 382, 387, 389. [See Lock v. Lyman, 4 Ir. v. Taintor, 97 Mass. 279. See also Mc- Ch. 188 ; Herrick v. Ames, 8 Bosw. 115 ; Gowan Bros. P. & M. Co. v. McGowan, Love v. Carpenter, 30 Ind. 284.] 22 Ohio St. 370 ; Hookham v. Pottage, 4 Lingen v. Simpson, 1 Sim. & Stu. L. R. 8 Ch. Ap. 91. A court of equity 600. For a more full consideration of cannot decree the sale of a partner's in- this subject, see Story on Partnership, terest in a trade-mark. Taylor v. Bemis, § 188 to 1 90 ; id. § 204 to 215 ; id. § 224 to 4 Biss. 406.] 648 EQUITY JUEISPEUDENCB. [CH. XV. tion. 1 And this is in strict conformity to the doctrine of the civil law on the same subject. By that law a partnership, without an express agreement for its continuance, may be dissolved by either party, provided the renunciation be bond fide and reasonable. " Societas coiri potest vel in perpetuum, id est, dum vivunt, vel ad tempus, vel ex tempore, vel sub conditione. Dissociamur renun- ciatione, morte, capitis minutione, et egestate." 2 But, then, it is afterwards added : " Diximus, dissensu solvi societatem ; hoc ita est, si omnes dissentiunt. Quid ergo, si unus renunciet ? Cassius scripsit, eum, qui renunciaverit societati, a se quidem liberare socios suos, se autem ab illis non liberare. Quod utique obser- vandum est, si dolo malo renunciatio facta sit, &c. 3 Si intempes- tive renuncietur societati, esse pro socio actionem." 4 And again, Labeo writes : " Si renunciaverit societati unus ex sociis eo tempore, quo. interfuit socii non dirimi societatem, committere eum in pro socio actione." 5 And again, in a more general form, it is said : " In societate coeunda, nihil attinet de renunciatione cavere ; quia ipso jure societatis intempestiva renunciatio in eestimationem venit." 6 The same principles are recognized in the countries which derive their jurisprudence from the civil law. 7 [* § 668 a. And where a surgeon, who had long carried on busi- ness, agreed to take his assistant into the concern, and sold him a portion of the profits for £800, and agreed to "become and continue " partners, from the date of the articles, " for such term and time as they should mutually agree so to continue partners," it was held, that in equity he could not be permitted to dissolve the partnership immediately afterwards and retain the premi- um. And where the articles provided that in the event of the death of one of the partners, the survivor might purchase his share and interest in the business, but if he should decline, it should be sold to any other person, and the surviving partner de- clined either to purchase or to admit a purchaser into the business, 1 See Chavany v. "Van Sommer, cited 4 Dig. Lib. 17, tit. 2, 1. 14. 1 Swanst. 511, 512, in a note. See id. 123 ; 6 Dig. Lib. 17, tit. 2, 1. 65, § 5 ; id. 1. 17, 16 Ves. 49; 17 Ves. 198, 308. [See Blis- § 2 ; 1 Swanst. 510, 511, 512, note; Vinn. set v, Daniel, 10 Hare, 493 ; Skinner v. in Inst. Comm. 680, § 1, 2, 3. Tinker, 34 Barb. 333; Smith v. Mulock, 6 Dig. Lib. 17, tit. 2, 1. 17, § 2. 1 Robert (N. Y.), 569 ; Bishop v. Breekles, 1 See 2 Bell, Comm. B. 7, ch. 3, n. 1227 ; Hoff. Ch. 534.] Ersk. Inst. B. 3, tit. 3, § 26; 1 Stair's Inst. 2 Dig. Lib. 17, tit. 2, 1. 1, § 4. B. 1, tit. 16, § 4 ; Pothier.Traite' de Soci^te", » Dig. Lib. 17, tit. 2, 1. 65, § 3. n. 65, 149, 150, 151. § 668-670.] PARTNERSHIP. 649 he was charged with the value of the deceased partner's interest, or share. 1 ] § 669. In like manner, courts of equity will interfere, by way of injunction, to prevent a partner, during the continuation of the partnership, from doing any acts injurious thereto, as by signing or indorsing notes to the injury of the partnership, or by driving away customers, or by violating the rights of the other parties, or his duty to them, even when a dissolution is not necessarily con- templated. 2 § 670. There are instances (and others might be mentioned) of the remedial justice of courts of equity, in carrying into specific effect the articles of partnership, where the remedy at law would be wholly illusory or inadequate. But it is not hence to be in- ferred, that courts of equity will, in all cases, interfere to enforce a specific performance of such articles. Where the remedy at law is entirely adequate, no relief will be granted in equity. And where the stipulation, though not against the policy of the law, yet is an effort to divest the ordinary jurisdiction of the common tribunals of justice, such as an agreement in case of any disputes, to refer the same to arbitrators, courts of equity will not, any more than courts of law, interfere to enforce that agreement ; but they will leave the parties to their own good pleasure in regard to such agree- ments. The regular administration of justice might be greatly impeded or interfered with, by such stipulations, if they were specifically enforced. And at all events, courts of justice are pre- sumed to be better capable of administering and enforcing the real rights of the parties, than any mere private arbitrators, as well from their superior knowledge, as their superior means, of sifting the controversy to the very bottom. 3 1 [* Eeatherstonhaugh v. Turner, 25 Drew. 134. See Jackson v. Jackson, 1 Sm. Beavan, 382. See also Astle v. Wright, & G. 184. That where by contract arbi- 23 Beavan, 77.] tration is to fix value or amount, e.g., of 2 See Charlton v. Poulter, 19 Ves. profits, but is not of the essence, equity 148, n ; Goodman v. Whitcomb, 1 Jae. & will itself fix the value or amount, see Walk. 589 ; Collyer on Partn. B. 2, ch. 3, Dinham v. Bradford, L. R. 5 Ch. App. 519. § 5 ; England v. Curling, 8 Beavan, 129 ; Agreements to submit to arbitration are Hall v. Hall, 12 Beavan, 414. [See Mar- now held binding in England, at least ble Co. v. Ripley, 10 Wal. (V. S.) 339.] to the extent that where the language 8 Street v. Bigby, 6 Ves. 815, 818; raises no agreement to pay, except to Thompson v. Charnock, 8 T. R. 139 ; pay such amount as may be fixed by ar- Connor v. Drake, 1 Ohic St. 168 ; Waters v. bitration, arbitration becomes a condition Taylor, 15 Ves. 10 ; Wellington v. Mack- precedent to suit. Scott v. Avery, 8 Exch. intosh, 2 Atk. 569. [See Agar w. Macklew, 487; 5 H. L. Cas. 811 ; Livingston v. Ealli, 2 Sim. & St. 418 j. Darbey v. Whitaker, 4 5 E. & B. 132 ; Russell v. Pelligrini, 6 E. 650 EQUITY JURISPRUDENCE. [CH. XV. § 671. The remedial justice of courts of equity is not confined to cases of the nature above stated. They may not only provide for a more effectual settlement of all the accounts of the partner- ship after a dissolution, but they may take steps for this purpose, which courts of law are inadequate to afford. They may, per- haps, interpose, and decree an account, where a dissolution has not taken place, and is not asked for, although ordinarily, they are not inclined to decree an account, unless under special circum- stances, if there is not an actual or contemplated dissolution, so that all the affairs of the partnership may be wound up. 1 & B. 1020; Cooke v. Cooke, L. R. 4 Eq. 77 ; Horton v. Sayre, 4 H. & N. 643 ; Wal- lis v. Hirsch, 1 C. B. (w. s.) 316 ; Scott v. Corporation of Liverpool, 3 De G. & J. 334 ; Elliott v. Royal Exch. Ass. Co. L. R. 2 Ex. 237 ; Lee v. Page, 30 L. J. w. b. Ch. 857 ; Wood v. Robson, 15 W. R. 756; 3 Am. Law Rev. 249 ; and the Common Law Procedure Act, in its provisions in favor of arbitration, is liberally construed in equity. Willesford u. "Watson, L. R. 14 Eq. 572.] 1 Eorman v. Homfray, 2 Ves. & B. 329 ; Harrison v. Armitage, 4 Mad. 143; Russell v. Loscombe, 4 Simons, 8 ; Knowles ». Haughton, 11 Ves. 168 ; s. o. Collyer on. Part. B. 2, ch. 3, § 3, p. 163, note (a) ; Waters v. Taylor, 15 Ves. 15. Lord Eldon, in Eorman v. Homfray (2 V. & Beam. 329), thought that no account ought to be decreed, unless there is also a prayer for a dissolution. But the then Vice-Chancellor (Sir John Leach), in Harrison v. Armitage (4 Mad. 143), thought otherwise. In the later case of Russell v. Loscombe (4 Simons, 8), the present Vice-Chancellor (Sir Lancelot Shadwell) agreed with Lord Eldon, and held the bill demurrable for not praying a dissolution. In Walworth v. Holt, 4 Mylne & Craig, 619, 635 to 639, Lord Cottenham reviewed the cases at large, and said : " When it is said, that the court cannot give relief of this limited kind, it is, I presume, meant that the bill ought to have prayed a dissolu- tion, and a final winding up of the affairs of the company. How far this court will interfere between partners, except in cases of dissolution, has been the subject of much difference of opinion, upon which it is not my purpose to say any thing beyond what is necessary for the deci- sion of this case; but there are strong authorities for holding, that to a bill pray- ing a dissolution, all the partners must be parties ; and this bill alleges that they are so numerous as to make that im- possible. The result, therefore, of these two rules would be, — rthe one binding the court to withhold its jurisdiction ex- cept upon bills praying a dissolution, and the other requiring that all the partners should be parties to a bill praying it, — that the door of this court would be shut in all cases in which the partners or shareholders are too numerous to be made parties, which, in the present state of the transactions of mankind, would be an absolute denial of justice to a large por- tion of the subjects of the realm, in some of the most important of their affairs. This result is quite sufficient to show that such cannot be the law ; for, as I have said upon other occasions, I think it the duty of this court to adapt its practice and course of proceeding to the existing state of society, and not by too strict an adherence to forms and rules, estab- lished under different circumstances, to decline to administer justice, and to en- force rights for which there is no other remedy. This has always been the prin- ciple of this court, though not at all times sufficiently attended to. It is the ground upon which the court has, in many cases, dispensed with the presence of parties, who would, according to the general practice, have been necessary parties. In Cockburn v. Thompson, Lord Eldon says : ' A general rule, established for the convenient administration of jus- 671, 672.] PARTNERSHIP. 651 § 672. -But where such, dissolution has taken place, an account will not only be "decreed, but, if necessary, a manager or receiver" tice, must not be adhered to in eases in which, consistently with practical con- venience, it is incapable of application ; ' and again, ' The difficulty must be over- come upon this principle, that it is better to go as far as possible towards justice, than to deny it altogether.' If, there- fore, it were necessary to go much further than it is, in opposition to some highly sanctioned opinions, in order to open the door of justice in this court to those who cannot obtain it elsewhere, I should not shrink from the responsibility of doing so ; but in this particular case, notwith- standing the opinions to which I have re- ferred, it will be found that there is much more of authority in support of the equity claimed by this bill, than there is against it. It is true that the bill does not pray for a dissolution, and that it states the company to be still subsisting; but it does not pray for an account of partner- ship dealing and transactions, for the pur- pose of obtaining the share of profits due to the plaintiffs, which seems to be the case contemplated in the opinions to which I have referred ; but its object is, to have the common assets realized and applied to their legitimate purpose, in order that the plaintiffs may be relieved from the responsibility to which they are exposed, and which is contrary to the provisions of their common contract, and to every principle of justice. But whether the interest of the plaintiffs in right of which they sue arises from such responsibility, or from any other cause, cannot be material, the question being, whether some partners, having an interest in the application of the partnership property, are entitled on behalf of them- selves and the other partners, except the defendants, to sue such remaining part- ners in this court for that purpose, pend- ing the subsistence of the partnership; and if it shall appear that such a suit may be maintained by some partners on behalf of themselves and others similarly circumstanced, .against other persons, whether trustees and agents for the com- pany, or strangers "being possessed of property of the company, it may be askeds, why the same right of suit should not exist, when the party in possession of Buch property happens also to be a part- ner or shareholder. In Chancey v. May, the defendants were partners. In the . Widows' case, before Lord Thurlow, cited by Lord Eldon, the bill was on be- half of the plaintiffs and all others in the same interest, and sought to provide funds for a subsisting establishment. In Knowles v. Haughton, 11th July, 1805, reported in Vesey, but more fully in Collyer on the Law of Partnership, the bill prayed an account of partnership transactions, and that the partnership might be established, and the decree di- rected an account of the brokerage busi- ness, and to ascertain what, if any thing, was due to the plaintiff in respect there- of; and the Master was to inquire whether the partnership between the plaintiff and the defendant had at any time, and when, been dissolved ; showing that the court did not consider the disso- lution of the partnership as a preliminary necessary, before directing the account. In Cockburn v. Thompson, the bill prayed a dissolution ; but it was filed by certain proprietors on behalf of them- selves and others, and Lord Eldon over- ruled the objection, that the others were not parties. In Hitchens o. Congreve, the bill was on behalf of the plaintiff and the other shareholders, against cer- tain shareholders who were also directors, not praying a dissolution, but seeking only the repayment to the company of certain funds alleged to have been im- properly abstracted from the partner- ship property by the defendants ; and Sir Anthony Hart overruled a demurrer, and his decision was affirmed by Lord Lynd- hurst. In Walburn v. Ingilby, the bill did not pray a dissolution of partnership, and Lord Brougham, in allowing the de- murrer upon other grounds, stated that it could not be supported upon the ground of want of parties, because a dissolution was not prayed. In Taylor v. Salmon, the suit was by some shareholders, on behalf of themselves and others, against Salmon, also a shareholder, to recover property claimed by the company, which he had appropriated to himself ; and the 652 EQUITY JURISPRUDENCE. [CH. XV. will be appointed to close the partnership business, and make sale of the partnership property ; so that a final distribution may be made of the partnership effects. 1 This a court of law is incom- petent to do. The accounts are usually directed to be taken (as has been already suggested) before a Master, who examines the parties, if necessary, and requires the production of all the books, papers, and vouchers of the partnership, and he is armed from time to time, by the court, with all the powers necessary to effectuate the objects of the reference to him. If it is deemed expedient and proper, the court will restrain the partners from collecting the Vice-Chancellor decreed for the plaintiff, which was affirmed on appeal. The bill did not pray a dissolution, and the com- pany was a subsisting and continuing partnership. That case and Hitchens v. Congreve differ from the present in this only, that in those cases the partnerships were nourishing and likely to continue ; whereas, in the present, though not dis- solved, it is unable to carry on the pur- poses for which it was formed, an inabil- ity to be attributed, in part, to the with- holding that property which this bill seeks to recover. So far, this case ap- proximates to those in which the partner- ship has been dissolved, as to which it is admitted that this court exercised its jurisdiction. This case also differs from the two last-mentioned cases in this, that the difficulty in which the plaintiffs are placed, and the consequent necessity for the assistance of this court, is greater in this case; — no reason, certainly, for withholding that assistance. How far the principle upon which these cases have proceeded is consistent with the doctrine in Russell v. Loseombe, ' that in occasional breaches of contract between partners, when they are not of so griev- ous a nature as to make it impossible that the partnership should continue, the court stands neuter, will be to be consid- ered if the case should arise. It is not necessary to express any opinion as to that in the present case ; but it may be suggested that the supposed rule that the court will not direct an account of part- nership dealings and transactions, except as consequent upon a dissolution, though true in some cases and to a certain ex- tent, has been supposed to be more gen- erally applicable than it is upon author- ity, or ought to be upon principle. It is, however, certain that this supposed rule is directly opposed to the decision of Sir J. Leach, in Harrison v. Armitage, and Richards v. Davies. Having referred to so many cases, in which suits similar to the present have been maintained by some partners on behalf of themselves and others, it is scarcely necessary to say any thing as to the objection for want of parties ; and as to the assignees of those shareholders who have become bank- rupts, those assignees are now sharehold- ers in their places, for the purpose of any interest they have in the property of the company ; and, as such, are included in the number of those on whose behalf this suit is instituted. A similar objection was raised and overruled in Taylor v. Sal- mon as to the shares of Salmon. Upon the authority of the cases to which I have referred, and of the principle to which I have alluded, if it be necessary to resort to it, I am of opinion, that a demurrer cannot be supported ; and the usual order, overruling a demurrer, must be substituted for that pronounced by the Vice-Chancellor." The point must, therefore, be held to be still open for further consideration. See Hall v. Hall, 3 Bng. Law & Eq. 196 ; Thomas v. Da- vies, 11 Beavan, 29 ; Smith v. Jeges, 4 Beavan, 503; [Fairthorne v. Weston, 3 Hare, 387]. 1 See Crawshay ». Maule, 1 Swanst. 606, 523; Peacock v. Peacock, 16 Ves. 67, 58 ; Featherstonhaugh «. Fenwick, 17 Ves. 298, 308 ; Crawshay v. Collings, 15 Ves. 218 ; Wilson v. Greenwood, 1 Swanst. 471; Oliver v. Hamilton, 2 Anst. 453. [See Richards v. Baurman, 65 N. C. 162 ; Phillips v. Trezevant, 67 N. C. 370.] § 672-673.] partnership. 653 debts, or disposing of the property of the concern, and w ill direct the moneys of the firm received by any of them to be paid into court. In this way it adapts its remedial authority to the exigen- cies of each particular case. 1 [* § 672 a. But the court will not appoint a receiver or man- ager at the instance of one of the partners, in a suit which does not seek to dissolve the partnership, 2 nor in one which does, upon an interlocutory application, and merely upon evidence that the partners do not co-operate in the management of the business. To justify such an appointment, it must be shown, that one part- ner has interfered so as to prevent the business being carried on. But where the partnership property consisted of mines, plant, and slaves, in the Brazils, but the shares were sold in England, in the form of scrip, transferable by delivery, and the defendant and another, at a meeting of the shareholders, had been appointed sole directors and trustees of the property, and the associate had died, and disputes had arisen, it was held, that a holder of shares pur- chased in the market might maintain a bill against defendant as sole surviving trustee, for an account of the receipts and payment of the debts of the association, and a division of the profits, and for a receiver and injunction, although the bill did not pray for a dissolution. The defendant having left England, after the filing of the bill, and pending the motion for a receiver and injunction, it was considered the plaintiff bad an equity to secure the property of the association, and for that purpose a receiver was appointed. 3 ] § 673. But, perhaps, one of the strongest cases to illustrate the beneficial operation of the jurisdiction of courts of equity in regard to partnership is their power to dissolve the partnership during the term for which it is stipulated. This is a peculiar remedy which courts of common law are incapable of administering, by the nature of their organization. - Such a dissolution may be granted, in the first place, on account of the impracticability of carrying on the undertaking, either at all or according to the stipulations of the articles. 4 In the next place, it may be granted 1 See Collyer on Partnership, B. 2, ch. Kay & J. 491 ; Madgwick o. "Wimble, 8 3, § 8, and the cases there cited. Foster Beav. 495 ; Sloan v. Moore, 37 Penn. St. v. Donald, 1 Jac. & Walk. 252, 253. 217 ; Garretson v. Weaver, 3 Edw. Ch. 2 [* Roberts v. Eberhardt, Kay, 148; 385. Birdsall v. Colie, 2 Stockton, Ch. 63; 8 Sheppard o. Oxenford, 1 Kay & J. Hall v. Hall, 3 Macn. & G. 79 ; Roberts 491.] . v. Eberhardt, Kay, 148 ; Henn v. Walsh, * Baring v. Dix, 1 Cox, 213 ; Waters v. 2 Edw. Ch. 129 ; Walker v. House, 4 Md. Taylor, 2 Ves. & B. 299 ; Barr v. Speirs, Ch. 39. See Shepnard v. Oxenford, 1 2 Bell, Comm. 642, § 1227, note (6). 654 EQUITY JURISPRUDENCE. [CH. XV. • on account of the insanity, or permanent incapacity, of one of the partners. 1 In the next place, it may be granted on account of the gross misconduct of one or more of the partners 2 [although the party applying for the dissolution may have committed the first wrong] . 3 But trifling faults and misbehavior, which do not go to the substance of the contract, do not constitute a sufficient ground to justify a decree for a dissolution. 4 [* § 673 a. In a late case 5 before the Vice-Chancellor, the sub- ject of the right of the other partners to claim a dissolution, on account of the insanity of one of the firm, is very extensively and lucidly discussed. That was a motion for an interim injunction to restrain a partner, who six months previously, being tempora- rily of unsound mind, had attempted to commit suicide, from inter- fering in the partnership affairs, and it was refused on the ground that the evidence did not show, that at the time of the motion, he was incompetent to conduct the business of the partnership accord- ing to the articles. And it was said that the circumstances, that the conduct and state of mind of the partner in question were such as at once to destroy the confidence of the other partners, and to induce customers to withdraw their custom from the firm, and that the malady under which he labored might as easily have led him to attempt the life of one of his partners, were not suffi- cient grounds for granting the motion. But a motion in a cross- suit, to restrain the defendants in such cross-suit from preventing 1 Waters v. Taylor, 2 "Ves. & B. 299 ; 8 .Blake v. Dorgan, 1 Green (Iowa), 537. Sayer v. Bennet, 1 Cox, 107 ; s. c. 1 Mon- [* See Essell v. Hayward, 6 Jur. n. s. 690, tague on Partn. Appx. 18 ; Collyer on where it is held that a breach of trust by Part. B. 2, ch. 3, § 3 ; Pearse v. Chamber- one partner gives the other a right to lain, 2 Ves. 34, 35 ; Wrexham v. Hud- dissolve the partnership, and the dissolu- dleston, 1 Swanst. 614, note ; Isler v. tion takes effect from the date of the no- ' Baker, 6 Humph. 85. tice of dissolution.] 2 See Marshall v. Colman, 2 Jac. & 4 Goodman v. Whitcomb, 1 Jac. & Walk. [266], 300 ; Goodman v. Whitcomb, Walk. [569], 592 ; Collyer on Partn. B. 2, 1 Jac. & Walk. [569], 594 ; Chapman v. ch. 3, § 3. [Equity will not dissolve the Beach, id. [573], 594 ; Norway v. Rowe, partnership at a time which will work 19 Ves. 148 : Waters v. Taylor, 2 Ves. & hardship, e. g., when a large operation B. 304 ; Master v. Kirton, 3 Ves. 74 ; I)e has just been commenced. Richards v. Berenger v. Hammel, 7 Jarman, Convey. Baurman, 65 N. C. 162. Nor at the suit 26, cited Collyer on Partn. B. 2, ch. 3, § 3, of a partner, if the bad character of his p. 161 ; Russell v. Loscornbe, 4 Simons, copartner was known to him before he 8; [Hartman u. Woehr, 3 C. E. Green, entered into the relation. Ambler *. 383 ; Seighortner v. Weissenborn, 6 C. E. Whipple, 20 Wall. 546. Nor error of judg- Green, 172. It may be granted for ex- ment. Cash v. Earnshaw, 66 HI. 402.] eluding one of the partners from any 6 [* Anonymous, 2 Kay & Johnson, management of the affairs of the firm. 441. Werner v. Leisen, 31 Wis. 169.] § 673-674.J partnership. ' 655 the partner, who had been insane, from transacting the business of the partnership, as a partner, was granted. From an examina- tion of the authorities it was determined here that the follow- ing propositions were established : 1. That actual insanity of a partner is not in itself a dissolution of the partnership, but there must be a decree of dissolution. 2. That such a decree, notwith- standing actual insanity proved to have existed before the filing of the bill, will not be made in a disputed case, without further in- quiry, whether, at the time when the relief is sought, the party is in such a state of mind as to be able to conduct the business of the firm in partnership with the other members according to the arti- cles of partnership. And it would seem that when the party is shown to have once been in the state above detailed, the affirmative of the issue is properly thrown upon him. 3. That insanity exist- ing when the relief is sought, with the apparent probability of its continuance, is good ground to decree a dissolution. 1 But the Court of Chancery will not dissolve a partnership on the ground of a small infraction of the articles. 2 They will, however, restrain a partner from doing an intentional serious injury to the partner- ship property. 3 § 673 b. The court dissolved a partnership entered into for a term of years, when, without any breach of the articles of partner- ship, circumstances had so altered, that it could not be carried on upon the footing originally contemplated, and the confidence mutually reposed having ceased, and given place to mistrust, it was apparent the business could not go on without mutual injury. 4 The general rule here recognized is, that where the circumstances have so changed, and the conduct of the parties is such as to render it impossible to continue the relation with- out injury to all the partners, the court will decree a dissolu- tion.] § 674. There are other considerations, which make a resort to a court of equity, instead of a court of law, not only a more con- 1 Anonymous, 2 Kay & Johnson, 441 ; profits, &c, hdd, ground for dissolution. Kirby t -. Carr, 3 Y. & C. Exch. 184 ; Wood v. Beath, 23 Wise. 254. Jones c, Noy, 2 My. & K. 125 ; Sadler v. 2 Anderson v. Anderson, 25 Beayan, Lee, 6 Beavan, 324 ; Besch v. Frolich, 1 ' 190. See Crosbie v. Guion, 23 Beayan, Phill. 172 ; Leaf v. Coles, 1 De G., McN. 518, as to the effect of the death of one & G. 171, 174 ; Bagshaw v. Parker, 10 Beav. of the partners. 532. Breaches of partnership agreement, 3 Marshall v. Watson, 25 Beayan, 501. in refusing to contribute the amount of * Harrison v. Tenant, 21 id. 482; capital agreed, to keep accounts, to divide Slemmer's Appeal, 58 Penn. St. 168.] 656 EQUITY JURISPRUDENCE. [CH. XV. venient, but even an indispensable, instrument for the purposes of justice. Thus, real estate may be bought and held for the pur- poses of the partnership, and really be a part of the stock in trade. The conveyance in such a case may be in the name of one, for the benefit of all the partners ; or in the name of all, as tenants in common, or as joint-tenants. In case of the death of a partner, by which a dissolution takes place, the real estate may thus be- come severed at law from the partnership funds, and vest in the surviving partner exclusively, or in the heirs of a deceased part- ner, in common with the survivor, according to the particular cir- cumstances of the case. In taking an account of the partnership effects at law, it is impossible for the court, for the benefit of creditors, to bring such real estate into the account ; or to direct a sale of it ; or to hold it a part of the partnership funds. It must be treated in courts of law just as its character is according to the common law. But in a court of equity, in such a case, the real estate is treated, to all intents and purposes, as a part of the part- nership funds, whatever may be the form of the conveyance. 1 For a court of equity considers the real estate, to all intents and purposes, as personal estate ; and subjects it to all the equitable rights and liens of the partners, which would apply to it, if it were personal estate. And this doctrine not only prevails, as between the partners themselves and their creditors; but (as it should seem) as between the representatives of the partners also. So that real estate, held in fee for the partnership, and as a part of its funds, will, upon the death of the partner, belong, in equity, not to the heirs-at-law, but to the personal representatives and distributees of the deceased ; unless, perhaps, there be a clear and determinate expression of the deceased partner, then it shall go to his heir-at-law beneficially. 2 1 See Goodburn v. Stevens, 5 Gill, 1 ; Sprague, 5 C. E. Green, 13. See Ware Kice v. Barnard, 20 Verm. 479 ; Buchan v. Owens, 42 Ala. 212 ; Pecot v. Armelin, u. Sumner, 2 Barb. Ch. 165 ; "Washburn 21 La. Ann. 667 ; and see, as to the whole v. Bank of Bellows Falls, 19 Verm. 278, subject of partnership real estate, Story 292 ; Day v. Perkins, 2 Sandf . Ch. 359 ; on Part. § 93, Gray's note. Hiscock v. Cox v. McBurney, 2 Sandf. S. C. 561; Phelps, 49 N. Y. 47 ; Deveney v. Mahoney, ATerill v. Loucks, 6 Barb. S. C. 19, 470. 23 N. J. Eq. 247. Equity will compel its Where land is bought with partner- application to the purposes for which it ship funds to be used in carrying on the was bought. Faulds v. Yates, 57 111. 416 ; business it becomes assets of the firm. Weston v. Ketcham, 39 N. Y. Slip. Ct. 54.] Cornwall v. Cornwall, 6 Bush (Ky.), 369 ; 2 gee Collyer on Partn. B. 2, ch. 1, § 1, Bank of Louisville v. Hall, 8 Bush (Ky.), p. 68 to 76; Lake v. Craddock, 3 P. Will. 672; Lime Bock Bank v. Phetteplace, 8 158; Elliot v. Brown, 9 Ves. 597; Thorn- E. I. 56; National Bank of the Met. v. ton v. Dixon, 3Bro. Ch. 199 (Belt's edi- § 674, 675.] PARTNERSHIP. 657 § 675. The lien, also, of partners upon the whole funds of the partnership, for the balance finally due to them respectively, seems incapable of being enforced in any other manner than by a court of equity, through the instrumentality of a sale. Besides, the creditors of the partnership have the preference to have their debts paid out of the partnership funds, before the private creditors of either of the partners. But this preference is, at law, generally disregarded ; in equity, it is worked out through the equity of the partners over the whole funds. 1 On the other hand, the separate creditors of each partner are entitled to be first paid out of the separate effects of their debtor, before the partnership creditors tion) ; Bell v. Phyn, 7 Ves. 453 ; Ripley v. Waterwortb, 7 Ves. 425 ; Selkrig v. Da- vies, 2 Dow, 242 ; Townsend v. Devaynes, 1 Montague on Partn. Appx. 96 [191] ; Gow on Partn. ch. 2, § 1 ; Randall ». Ran- dall, 7 Sim. 271 ; Morris v. Kearsley, 2 Younge & Coll. 139; Bligh v. Brent, 2 Younge & Coll. 268, 288; Houghton u . Houghton, 1 Simons, 491 ; Hoxie v. Carr, 1 Sumner, 173 ; Delmonico v. Guillaume, 2 Sandford, 366; [Darby v. Darby, 3 Drew. 497. If land bought with firm money for firm purposes is converted into personalty, and is not required to pay firm debts or balances due partners, and the share of a deceased partner goes to distributees not heirs-at-law. Cornwall v. Cornwall, ubi sup. ; Meily v. Wood, 71 Pa. St. 488. Where parties jointly owned and operated a mine, and with the profits purchased from time to time other , tracts, the legal title being taken by a trustee who held for the parties in same proportions as the origi- nal estate : Held, that the land so bought had been treated as land, not as personal property, that no partner on dissolution, could hare asked for a sale of it, and that consequently the share of a deceased partner went to heir. Steward v. Blake- way, L. R. 4 Ch. App. 603 ; 6 Bq. 479. Where land devised to three as tenants in common was used by them as partners for market gardening, and more land was purchased for same purpose, partly out of profits : Held, that both the devised and purchased land was converted into personalty as against the heir-at-law. Waterer v. Waterer, L. R. 15 Eq. 402. BQ. JUE. — VOL. I. 42 But that, except so far as required to pay firm debts or balances due partners, part- nership land retains the quality of real estate as to descent, dower, &c, see Shearer v. Shearer, 98 Mass. 107 ; Wilcox v. Wilcox, 13 Allen, 252 ; Uhler v. Semple, 5 C. E. Green, 288 ; Scruggs v. Blair, 44 Miss. 406; Stroud v. Stroud, Phil. (N.C.) L. 625. Partnership land is " real estate " within the meaning of a will requiring investments to be made on real estate security. Miller v. Proctor, 20 Ohio, n. 8. 442. As to strangers, a partnership agreement that real estate in the name of one shall be held in common must be in writing. It is not competent to show by parol that real estate in the name of one is partnership property. Lefevre's App. 69 Pa. St. 122 ; Ebbert's App. 70 Pa. St. 79 ; Jones' App. 70 Pa. St. 169.] 1 Twiss v. Massey, 1 Atk. 67 ; Ex parte Cook, P. Will. 500 ; Ex parte Elter, 3 Ves. 240; Ex parte Clay, 6 Ves. 833; Collyer on Partnership, B. 4, ch. 2, § 1, 2, 3 ; Campbell v. Mullett, 2 Swanst. 574, 575 ; Ex parte RufBn, 6 Ves. 125, 126 ; Gray v. Chiswell, 9 Ves. 118 ; Commercial Bank v. Wilkins, 9 Greenl. 28 ; Muir v. Leitch, 7 Barbour, 341. See Freeman v. Stewart, 41 Miss. 138 ; Q'Bannon ». Miller, 4 Bush (Ky.), 25; McGregor v. Ellis, 2 Disney (Ohio), 286 ; Pfirrman v. Koch, 1 Cinn. (Ohio) 460 ; Harman v. Clark, 13 Gray, 114 ; Allen v. Center Valley Co., 21 Conn. 130 ; Rainey v. Nance, 54 111. 29 ; Mauck v. Mauck, 64 111. 281, in this case the sur- viving partner was authorized by a court of equity to sell the partnership real estate at public or private sale. 658 EQUITY JURISPRUDENCE. [CH. XV. can claim any thing ; 1 which also can be accomplished only by the aid of a court of equity ; for at law a joint creditor may proceed directly against the separate estate. 2 This is another illustration of the doctrine of marshalling assets, and proceeds upon analogous principles ; and it is commonly applied in cases of insolvency, or bankruptcy. There are certain exceptions to the rule, which confirm, rather than abate, its force ; as they stand upon peculiar reasons. 8 § 676. In like manner, in cases of partnership debts, if one of the partners dies and the survivor becomes insolvent or bankrupt, the joint creditors have a right to be paid out of the estate of the deceased partner, through the medium of the equities subsisting between the partners. 4 Indeed, a broader principle is now estab- 1 See this rule considered and ques- tioned in Cleghorn v. Insurance Bank of Columbus, 9 Geo. 319. [See McCormick's Appeal, 55 Penn. St. 252 ; Mittnight v. Smith, 2 C. E. Green, 259; and see Morgan «. Skidmore, 55 Barb. 263.] 2 Ibid. ; Dutton v. Morrison, 17 Ves. 205 to 210 ; Tucker v. Oxley, 5 Cranch, 34. See Morris o. Morris, 4 Gratt. 293 ; Grosyenor v. Austin, 6 Ohio, 103 ; Murrill v. Neill, 8 How. TJ. S. 414 ; Mason v. Bogg, 2 M. & K. 443. [It has been held, how- ever, even at law, that if a joint creditor first levy his execution upon the separate real estate of one partner, a private credi- tor may still levy upon the same estate and bring a writ of entry against the partnership creditor; in which case the private creditor obtains all his priorities in a court of law. Jarvis v. Brooks, 3 Foster, 136-1 8 [Where A. and B. were partners, and A. allowed C. to offset A.'s private debt to him against C.'s debt to the firm, C. knowing it was a firm debt : Held, that B. could in equity sue A. and C. for his share in the firm debt. Piercy v. Eynney, L. R. 12 Eq : 69. Where a partner made a, mortgage upon his share of the real estate of a firm to secure his individual debt, the mortgagee acquires a lien only upon what remains after settling the part- nership affairs. Conant v. Frary, 49 Ind. 530.] * Collyer on Partn. B. 3, ch. 3, § 4 ; Cowell v. Sykes, 2 Russ. 191 ; Campbell v. Mullett, 2 Swanst. 574, 575 ; Ex parte Ruffin,6 Ves. 125, 126; Ex parte Kendall, 17 Ves. 514, 526, 527 ; Lane v. Williams, 2 Vern. 277, 292 ; Vulliamy v. Noble, 3 Meriv. 614, 618 ; Gray v. Chiswell, 9 Ves. 118; Brice's case, 1 Meriv. 620; Hamers- ley v. Lambert, 2 Johns. Ch. 509, 610; Jenkins v. De Groot, 1 Caines, Cas. Err. 122 ; [Freeman v. Stewart, 41 Miss. 138]. If the right of the joint creditors is worked out altogether through the equity of the partners, it seems somewhat diffi- cult to perceive how the separate estate of a deceased partner, who is a creditor of the firm far beyond all the partner- ship funds, should, the joint estate being insolvent, be compellable to pay any of the joint debts beyond these funds. Yet Lord Eldon acted upon the ground of the liability of such separate estate, in Gray v. Chiswell, 9 Ves. 118. If, on the other hand, the true doctrine be that avowed by Sir William Grant, in the case of De- vaynes v. Noble (1 Meriv. 529), afterwards affirmed by Lord Brougham (2 Russ. & Mylne, 495), that a partnership contract is several as well as joint, then there seems no ground to make any difference whatsoever in any case between joint and several creditors, as to payment out of joint or separate assets. See Collyer on Partn. B. 3, ch. 3, § 4, p. 337 to 347 ; Hamersley v. Lambert, 2 Johns. Ch. 509, 610. This is now the established doc- trine. Wilkinson v. Henderson, 1 Mylne & Keen, 682; Thorpe v. Jackson, 2 Younge & Coll. 663, 661, 562 ; Story on Partn. § 312 ; ante, § 162 to 164. § 675-676 a.] partnership. 659 listed ; and it is held that insolvency or bankruptcy is not nec- essary, in order to justify the creditors of the partnership in resorting to the assets of the deceased partner ; and that such credit- ors may, in the first instance, proceed against the executor or administrator of the deceased partner, leaving him to his remedy over against the surviving partners ; though, certainly, the surviv- ing partners in a suit in equity, in such a case, -would be proper parties, if not necessary parties, to the bill. 1 The doubts formerly entertained upon this subject seem to have arisen from the gen- eral principle, that the joint estate is the first fund for the payment of the joint debts, and as the joint estate vests in the surviving partner, the joint creditors, upon equitable considerations, ought to resort to the surviving partner before they seek satisfaction from the assets of the deceased partner. 2 The ground of the present doctrine is, that every partnership debt is joint and several ; and, in all such cases, resort may primarily be had for the debt to the surviving partners, or to the assets of the deceased partner. 3 Nor is this doctrine confined to cases of partnership, or to cases of a mercantile character. It equally applies to all cases, where there is a joint loan to several persons, not partners, whether it be in the course of mercantile transactions or not; for the debt will be treated in equity as joint and several; and in case any of the debtors die, the creditor may have relief out of his assets, without claiming any relief against the surviving joint debtors, or show- ing that they are unable to pay the debt by reason of their insol- vency. 4 [* § 676 a. Where the continuing partner covenanted with the retiring one, that he would pay the partnership debts and save him harmless, on that account, it was held, after the decease of the retiring partner and the bankruptcy of the other, and the presen- tation of partnership claims against the estate of the deceased part- ner, that by the true construction of the contract of dissolution it did not create a lien upon a policy of insurance belonging to the effects of the partnership, as to the unpaid debts of the partner- ship ; and if it had created such a lien, still, the mortgagee of the 1 Wilkinson v. Henderson, 1 Mylne & 2 Wilkinson v. Henderson, 1 Mylne & Keen, 582 ; Devaynes v. Noble, 2 Russ. & Keen, 582. Mylne, 495 ; Thorpe v. Jackson, 2 Younge 8 Thorpe v. Jackson, 2 Younge & Coll. & Coll. 553 ; Sleech's case, 1 Meriv. 539 ; 553, 561, 562 ; Sleech's case, 1 Meriv. 539 Braithwaite v. Britain, 1 Keen, 219 ; See Emanuel v. Bird, 19 Ala. 696. [Freeman v. Stewart, 41 Miss. 138]. * Ibid. 660' EQUITY JURISPRUDENCE. [CH. XT. policy from the surviving partner was not bound to see to the application of the mortgage money, he being justified in supposing that it would be properly applied. 1 The power of a solvent part- ner, upon the bankruptcy of his associate (and the same rule holds, in regard to the acting partner, in closing the concern), under all circumstances, is given him in his personal capacity, to wind up the concern, and cannot be delegated to another. 2 § 676 b. So also it often happens, either on account of the form of the articles of partnership, or the manner in which the surviv- ing partners treat the effects of the concern, after the decease of one of their number, that they are liable to account for a share of the profits to the personal representatives of the deceased partner or the legal cestui que trust. This subject is perspicuously dis- cussed by Sir John Romilly, Master of the Rolls, in the recent case of Wedderburn v. Wedderburn. 3 He divides the cases, where a liability of this kind occurs, into three classes. 1. Where the surviving partners continue the trade with the capital, composed wholly or in part of the estate of the deceased partner. The rule applicable to such a case is the same, whatever be the cause of the dissolution. The liability to account proceeds wholly on the ground that the profits are the product of the capital in part, and therefore, to that extent, belong to the owner of the capital. 2. Where the legal personal representatives of the deceased part- ner employ the assets in carrying on trade for themselves. The lia- bility to account, in this class of cases, proceeds from misconduct and breach of trust in the executors. In this class of cases the eestuis que trust are entitled, at their option, to legal interest on the amount, or a share of the profits. 3. This occurs where the surviving partners are also the personal representatives of the deceased partner. The liability to account here may involve an inquiry into the misconduct of the executors, but is affected more or less by the articles of partnership. That is true also of the first class. But in the second, no contract is supposed to exist. It is therefore a mere breach of trust. The third class will be governed by the rules which apply generally to the case of surviving part- ners, carrying on the trade of a deceased partner, and these rules are regulated by contract, and may vary in each case. The rule, 1 [* In re Langmead's Trusts, 7 De G., ' 22 Beavan, 84 ; s. c. 2 Keen, 722 ; 4 M. & G. 363; Giddings v. Palmer, 107 My. & Cr. 41; 2 Beavan, 208; 17 Beavan, Mass. 209]. 158; 18 Beavan, 466. 2 Eraser v. Kershaw, 2 Kay & J. 496. § 676 a-677.] partnership. ' 661 as laid down by Lord Eldon, "which is to be applied, must be deduced, in almost every case, from the particular circumstances of that very case." * § 676 c. A partnership was entered into for a term of years, subject to a power in one of the partners to determine the same by giving three months' notice, and it was provided that in case of the death of this partner before the partnership was fully wound up, his executors should settle its affairs. This partner during the term gave notice to dissolve, and died before the expiration of the three months. It was held that the partnership determined on the death of the partner. 2 ] § 677. In regard to partnership property, another illustration, of a kindred character, involving the necessity of an account, may be put to establish the utility and importance of equity jurisdiction. It is well known, that at law, an execution for the separate debt of one of the partners may be levied upon the joint property of the partnership. 3 In such a case, however, the judgment creditor can levy, not the moiety or undivided share of the judgment debtor in the property, as if there were no debts of the partnership, or lien on the same for the balance due to the other partner; but he can levy the interest only of the judgment debtor, if any, in the property, after the payment of all debts and other charges thereon. 4 In short, he can take only the same interest in the property, which the judgment debtor himself would have upon the final settle- ment of all the accounts of the partnership. When, therefore, the sheriff seizes such property upon an execution, he seizes only such undivided and unascertained interest ; and if he sells under the execution, the sale conveys nothing more to the vendee, who thereby becomes a tenant in common, substituted to the rights and interests of the judgment debtor in the property seized. 5 In truth, 1 Crawuhay v. Collins, 2 Russell, 325. 1 Foster, 462; Gow on Partn. ch. 4, § 1, [See Vyse v. Foster, L. E. 8 Ch. App. p. 247, 248. 309.] 5 West v. Skip, 1 Ves. 239 ; Chapman 2 I* Bell v. Nevin, 12 Jur. n. s. 935.] o. Koops, 3 Bos. & Pull. 289 ; Skip v. Har- 8 See Dow v. Sayward, 14 N. H. 9. wood, 2 Swanst. 586 ; s. c. cited Cowp. Sometimes granted until the interest of 451 ; Button v. Morrison, 17 Ves. 205, such partner in the property is ascer- 206; Heydon v. Heydon, 1 Salk. 392; tained. Place v. Sweetzer, 16 Ohio, 142. Taylor v. Fields, 4 Ves. 396 ; Fox v. 4 West v. Skip, 1 Ves. 239; 2 Swanst. Hanbury, Cowp. 445; Nicol v. Mumford, 526; Barker v. Goodair, 11 Ves. 85; Muir 4 Johns. Ch. 522 ; In re Wait, 1 Jac. & ». Leach, 7 Barb. S. C. 341; Dutton v. Walk. 587, 588, 589; Moody v. Payne, Morrison, 17 Ves. 205, 206, 207; Deal v. 2 Johns. Ch. 548; Habershon v. Blurton, Bogue, 8 Harris, 228 ; Ferson v. Munroe, 1 De Gex & Smale, 121. 662 EQUITY JURISPRUDENCE. [CH. XV. the sale does not transfer any part of the joint property to the vendee, so as to entitle him to take it from the other partners; for that would be, to place him in a better situation than the partner himself. 1 But it gives him, properly speaking, a right in equity to call for an account, and thus to entitle himself to the interest of the partner in the property which shall, upon such settlement, be ascertained to exist. 2 It is obvious, from what has been already stated, how utterly inadequate the means of a court of law are to take such an account. And, indeed, under a levy of this sort, it is not easy to perceive what authority a court of law has to interfere at all, to take an account of the partnership transactions ; or by what process it can enforce it. 3 In such a case, therefore, the proper remedy for the other partners, if nothing is due to the judg- ment debtor out of the partnership funds, is to file a bill in equity against the vendee of the sheriff, to have the proper accounts taken. 4 1 But see Thompson v. Lewis, 34 Maine, 167 ; United States v. Williams, 4 McLean, 51. 2 Gow on Partn. ch. 4, § 1, p. 249 to 254; In re Smith, 16 Johns. 106; Nicol v. Mumford, 4 Johns. Ch. 522, 525; s. c. 20 Johns. 611; Shaver v. White, 6 Munf. 110; Murray v. Murray, 5 Johns. Ch. 70; Newhall v. Buckingham, 14 111. 405; Marquand «. New York Manuf. Co., 17 Johns. 525. 3 See Chapman v. Koops, 3 Bos. & Pull. 389; Eddie ». Davidson, 2 Doug. 660; Waters u. Taylor, 2 Ves. & B. 300, 301; Dutton v. Morrison, 17 Ves. 205, 206 ; In re Wait, 1 Jac. & Walk. 585 ; Habershon v. Blurton, 1 De Gex & Smale, 121. The remarks of Lord Eldon on this point, in Waters v. Taylor (2 Ves. & B. 301), are very striking and important. " If the courts of law " (said he) " have followed courts of equity in giving exe- cution against partnership effects, I de- sire to have it understood that they do not appear to me to adhere to the princi- ple, when they suppose that the interest can he sold, before it has been ascer- tained what is the subject of sale and purchase. According to the old law, I mean before Lord Mansfield's time, the sheriff, under an execution against part- nership effects, took the undivided share of the debtor, without reference to the partnership account. But a court of equity would have set that right, by tak- ing the account, and ascertaining what the sheriff ought to have sold. The courts of law, however, have now repeat- edly laid down, that they will sell the actual interest of the partner, professing to execute the equities between the par- ties ; but forgetting that a court of equity ascertained previously what was to be sold. How could a court of law ascertain what was the interest to be sold, and what the equities depending upon an account of all the concerns of all the partners for years ? " 4 Chapman o. Koops, 3 Bos. & Pull. 290; Waters v. Taylor, 2 Ves. & B. 300, 301 ; Taylor v. Fields, 4 Ves. 396 ; Dut- ton v. Morrison, 17 Ves. 205, 206, 207 ; In re Wait, 1 Jac. & Walk. 588, 589; Gow on Partn. ch. 4, § 1, p. 253, 254. [As to the rights acquired by separate creditor by levy on firm property, &c, see Bank v. Carrolton Railroad, 11 Wal. (U. S.) 624 ; Marston v. Dewberry, 21 La. Ann. 518 ; Garvin ». Paul, 47 N. H. 158 ; Van- dike's App. 57 Penn. St. 9 ; Thompson v. Tinnin, 25 Tex. (Supp.) 56; White v. Jones, 38 111. 159 ; James v. Stratton, 32 111. 202; Buffum v. Seaver, 16 N. H. 160; Willis v. Freeman, 35 Vt. 44 ; Harris v. Murray, 28 N. Y. 674 ; Smith v. Emerson, 43 Penn. St. 456; Burpee v. Bunn, 22 § 677, 678.] partnership. 663 § 678. In cases of the seizure of the joint property, for the separate debt of one of the partners, a question has arisen, how far a court of equity would interfere, upon a bill for an account of the partnership, to restrain the sheriff from a sale, or the vendee of the sheriff from an alienation of the property seized, until the account was taken, and the share of the partner ascertained. Mr. Chancellor Kent has decided, that an injunction for such a purpose ought not to issue to restrain a sale, by the sheriff, upon the ground that no harm is done to the other partners ; and the sacri- fice, if any, is the loss of the judgment debtor only. 1 But that does not seem a sufficient ground upon which such an injunction is to be denied. If the debtor partner has, or will have, upon a final adjustment of the accounts, no interest in the partnership funds ; and if the other partners have a lien upon the funds, not only for the debts of the partnership, but for the balance ultimately due to them ; it may most materially affect their rights, whether a sale takes place or not. For it may be extremely difficult to follow the property into the hands of the various vendees ; and their lien may, perhaps, be displaced, or other equities arise, by intermediate bond fide sales of the property, by the vendees, to other purchasers without notice ; and the partners may have to sustain all the chances of any supervening insolvencies of the immediate ven- dees. 2 To prevent multiplicity of suits, and irreparable mischiefs, and to insure an unquestionable lien, it would seem perfectly proper, in cases of this sort, to restrain any sale by the sheriff. And, besides, it is also doing some injustice to the judgment debtor, by compelling a sale of his interest under circumstances, in which there must, generally, from its uncertainty and litigious character, be a very great sacrifice to his injury. If he has no right, in such a case, to maintain a bill to save his own interest, it furnishes no ground why the court should not interfere in his favor through the equities of the other partners. This seems Cal. 194 ; Treadwell v. Brown, 43 N. H. 14 La. Ann. 108 ; Jones v. Thompson, 12 290 ; Fellows v. Greenleaf , 43 N. H. 421 ; Cal. 191 ; Scudder v. Delashmut, 7 Clarke Van Alstyne v. Cook, 25 N. Y. 489 ; Loth- (la.), 39 ; Menagh v. Whitwell, 62 N. Y. rop v. Wightman, 41 Penn. St. 297 ; Clag- 146 ; Luce v. Hartshorn, 7 Lans. 331 ; gett v. Kilbourne, 1 Black (U. S.), 346; Fountaine v. Urquhart, 33 Ga. 1847] Nixon v. Nash, 12 Ohio, n. s. 647 ; Hill v. i Moody «. Payne, 2 Johns. Ch. 548. Beach, 1 Beasl. (N. J.) 31 ; Reinheimer v. 549. Hemingway, 35 Penn. St. 432 ; Andrews 2 See Skip v. Harwood, 2 Swanst. 586. v. Keith, 34 Ala. 722 ; Atwood v. Mere- 587. dith, 37 Miss. 635 ; Pittman v. Robicheau, 664 EQUITY JURISPRUDENCE. [CH. XT. (notwithstanding the doubts suggested by Mr. Chancellor Kent) to be the true result of the English decisions on this subject; which do not distinguish between the case of an assignee of a partner, and that of an executor or administrator of a partner, or of the sheriff, or of an assignee in bankruptcy. 1 § 679. Another illustration of the beneficial result of equity jurisdiction, in cases of partnership, may be found in the not un- common case of two firms dealing with each other, where some or all of the partners in one firm are partners with other persons in the other firm. Upon the technical principles of the common law, in such cases, no suit can be maintained at law in regard to any transactions or debts between two firms ; for in such suit, all the partners must join, and be joined ; and no person can maintain a suit against himself, or against himself and others. The objec- tion is, at law, a complete bar to the action. 2 Nay, even after the death of the partner or partners, belonging to both firms, no action, upon any contract, or mutual dealing, ex contractu, is maintainable by the survivors of one firm against those of the other firm ; for, in a legal view, there never was any subsisting contract between the firms; as a partner cannot contract with himself. 3 § 680. But there is no difficulty in proceeding in courts of equity to a final adjustment of all the concerns of both firms, in regard to each other ; for, in equity, it is sufficient, that all parties in interest are before the court as plaintiffs, or as .defendants ; and they need not as at law, in such a case, be on the opposite sides of the record. [Thus, if the same person is a general partner in two firms, one of which becomes insolvent, while indebted to the other, the latter may recover its debt or dividend of the insolvent firm, and the interest of such general partner in the solvent firm, may 1 See Taylor v. Field, 3 Ves. 396, 397, [That equity will not at suit of one part- 398 ; b. c. 15 Ves. 659, note ; Barker v. ner enjoin sale by sheriff of interest of Goodair, 11 Ves. 85, 86, 87 ; Skip v. Har- another partner in the firm, see Hardy i>. wood, 2 Swanst. 586, 587 ; Franklyn v. Donellan, 33 Ind. 501. But see Miner v. Thomas, 3 Meriy. 234 ; Hawkshaw v. Pierce, 38 Vt. 610 ; Backus v. Murphy, Perkins, 2 Swanst. 548, 549; Parker 39 Penn. St. 397; Hubbard v. Curtis, 8 v. Pistor, 3 Bos. & Pull. 288, 289; Eden Clarke (la.), 1; Thompson v. Frist, 15 on Injunct. 31 ; Collyer on Part. B. 3, ch. Md. 24.] 6, § 10, p. 474 to 478; 1 Mad. Pr. Ch. * Bosanquet v. Wray, 6 Taunt. 597; 112. See also Brewster v. Hammet, 4 s. c. 2 Marsh. 319 ; Mainwaring v. New- Conn. 640. See also In re Smith, 16 man, 2 Bos. & Pull. 120. Johns. 106, and the Reporter's learned * Ibid, note ; Gow on Part. ch. 4, § 1, p. 252. § 678-682.] partnership. 665 also be reached in equity by the creditors of the insolvent firm, by a proceeding to account. 1 ] In equity, all contracts and dealings between such firms, of a moral and legal nature, are deemed obligatory, though void at law. 2 Courts of equity, in all such cases, look behind the form of the transactions to their substance ; and treat the different firms, for the purposes of substantial jus- tice, exactly as if they were composed of strangers, 01 were in fact corporate companies. 3 § 681. Upon similar grounds, one partner cannot, at law, main- tain a suit against his copartners, to recover the amount of money, which he has paid for the partnership ; since he cannot sue them without suing himself, also, as one of the partnership. And, if one partner, in fraud of the partnership rights or credits, should release an action, that release would, at law, be obligatory upon all the partners. But a court of equity would not, under such circum- stances, hesitate to relieve the partnership. 4 § 682. Courts of equity, in this respect, act upon principles familiarly recognized in the civil law, and in the jurisprudence of those nations which derive their law from that most extensive source. This will abundantly appear, by reference to the known jurisprudence of Scotland, and that of the continental nations of Europe. 5 Indeed, it would be a matter, not merely of curiosity, but of solid instruction (if this were the proper place for such an examination), to trace out the strong lines of analogy between the law of partnership, as understood in England, and especially as administered in equity, and that of the Roman jurisprudence. Unexpected coincidences are everywhere to be found ; while the differences are comparatively few ; and, for the most part, these arise, rather from the different processes and forms of administer- ing justice in different countries, than from any general diversity of principles. 6 Among other illustrations, we may cite the general 1 Hares v. Bement, 3 Sandf. 394. B. & Cressw. 532, 538, 539, 540. [See 2 6 Taunt. 697 ; 2 B. & P. 120. Craig v. Hulchizer, 34 N. J. L. 363 ; Piercy 8 [See Haven v. Wakefield, 39 HI. 509 ; v. Phynney, L. R. 12 Eq. 69. But if Gibson v. Ohio, &c, Co., 2 Disney (Ohio), one partner makes advances to another 499 ; Printup v. Fort, 40 Geo. 276 ; Chap- partner, and an agreement is made to re- man v. Evans, 44 Miss. 113. As to rights pay that particular sum, an action at law of separate creditors of the common part- can be maintained. Sprout v. Crowley, ner, see Weaver v. Weaver, 46 N. H. 188 ; r 30 Wis. 187. See also Wells v. Carpenter, Bullock v. Hubbard, 23 Cal. 495. Knowl- 65 111. 447 ; Hale v. Wilson, 112 Mass. 444.] edge of the common partner is notice to the 6 See 2 Bell, Com. B. 7, ch. 2, § 2, art. firm. Steele v. Stewart, L. E. 2 Eq. 84.] 1214. 4 Ante, § 504, note ; Jones v. Yates, 9 6 To establish this statement, the 66b EQUITY JURISPRUDENCE. [CH. XV. doctrine, that the partnership property is first liable to the partner- ship debts ; that the right of any one partner is only to his share of the surplus ; that joint creditors have a priority or privilege of payment before separate creditors; 1 and that the estates of de- ceased partners are liable to contribute towards the payment of the joint debts. 2 § 683. This review of some of the more important cases in which courts of equity interfere in regard to partnerships, does (unless my judgment greatly misleads me) establish, in the most conclu- sive manner, the utter inadequacy of courts of law to administer justice in most cases, growing out of partnerships, and the indis- pensable necessity of resorting to courts of equity, for plain, com- plete, and adequate redress. Where a discovery, an account, a contribution, an injunction, or a dissolution is sought, in cases of partnership, or even where a due enforcement of partnership rights, and duties, and credits, is required, it is impossible not to perceive, that, generally, a resort to courts of law would be Uttle more than a solemn mockery of justice. Hence, it can excite no surprise, that courts of equity now exercise a full concurrent jurisdiction with courts of law in all matters of partnership ; and, indeed, it may be said, that, practically speaking, they exercise an exclusive jurisdiction over the subject in all cases of any com- plexity or difficulty. [* § 683 a. It is sometimes a question of considerable difficulty, how far a court of equity will interfere, in one country, in regard to partnership transactions occurring in foreign jurisdictions. In a suit, 3 therefore, where the subject-matter was immovable prop- learned, reader may be referred to the he was held entitled to his discharge, the Digest, Lib. 17, tit. 2, Pro Socio; and same as if he had moved to discharge Voet, Com. ad id. ; Vinnius, Com. Inst, the order for personal service abroad, or Lib. 3, tit. 26 ; 1 Domat, Civil Law, tit. the want of jurisdiction appeared upon Partnership, B. 1, tit. 8, per tot. ; 2 Bell, the face of the bill. So also Norris ». Com. B. 4, ch. 2, art. 1250 to 1263; Code Chambres, 29 Beav. 246 ; Hawarden o. Civil of France, art. 1832 to 1873 ; Pothier Dunlop, 7 Law T. n. s. 237. See Hen- Trait^ de Societe", per tot. drick v. Wood, 9 Jur. n. s. 117 ; Maunder i 1 Domat, B. 1, tit. 8, § 3, art. 10. v. Lloyd, 2 Johns. & H. 718 ; Steele *. 2 1 Domat, B. 1, tit. 8, § 6, art. 1, 2 ; Stuart, 12 W. R. 247. In some cases Pothier, de Societe, n. 96, 136, 161, 162. where one of the partners has brought 3 [* Cookney v. Anderson, 8 Jur. u. s. money into the concern beyond the 1220 ; s. c. 31 Beav. 452 ; s. o. on Appeal amount of capital stipulated in the arti- affirmed by the Lord Chancellor, 9 Jur. clcs, and the assets were not sufficient to N. s. 736. In this case process had been pay back all the capital, such additional served upon the defendant out of the sums have been treated as debts and jurisdiction, under the English statute, directed to be first paid. Wood v. Scoles, and the defendant appealed and demurred 12 Jur. jr. s. 555.' to the bill for want of jurisdiction ; and § 682-684.] bent. 667 erty situate in a foreign jurisdiction, being mining property, and where the contract sought to be enforced was entered into and to be performed in that country, and the defendants were domiciled there, it was held the courts of equity had no jurisdiction to enter- tain a suit. Sir J. Romilly, M. R., thus defines the jurisdiction of courts of equity : " The principles which govern this court upon questions of jurisdiction are analogous to those of the civil law, and the court will entertain a suit if the domicile of the defendant is within the territorial jurisdiction of the court, or if the subject- matter of the suit is within that jurisdiction, or if the contract sought to be enforced was entered into within that jurisdiction; but if neither of these circumstances exists the court has no juris- diction." J ] CHAPTER XVI. MATTERS OP RENT. [* § 684, 684 a. Equity grants relief for recovering rent, where there is no ade- quate remedy at law. § 685. Equity will not grant more extensive relief than the right at law. § 686. Advantage of resort to courts of equity. § 687. Will give relief where there is no personal obligation.] § 684. Another head of concurrent jurisdiction of the same nature, and resulting also from the imperfection of the remedy at law, is in the case of Rents. This subject has been already touched in other places ; 2 and a few particulars only will be here taken notice of, which have not been already fully discussed. Thus, for instance, in case of a rent seek, if the grantee has never had seisin, and the rent cannot be recovered at law, courts of equity will decree a seisin of the rent, and perhaps, also, that it be paid to the party. 3 So, if the deeds are lost, by which a rent 1 On a bill in equity to wind up the 1793) ; Ferris v. Newby, cited 1 Ch. Cas. affairs of a partnership, a receiver will 147 ; Palmer v. Wettenhal, 1 Ch. Cas. not he appointed of its assets out of the 184 ; 1 Fonbl. on Eq. B. 1, ch. 3, § 3 ; jurisdiction. Harvey v. Varney, 104 Mass. Com. Dig. Chancery, 4 N. 1, Rent ; Thorn- 436.] dike v. Collington, 1 Ch. Cas. 79 ; Web v. a Ante, § 608 to 515. Web, Moore, 626 ; Davy v. Davy, 1 Ch. 8 Francis's Maxims, 6", § 3, p. 26 (edit. Cas. 147. 668 EQUITY JURISPRUDENCE. [CH. XVI. is created, so that it is uncertain what kind of rent it was ; 1 or if (as we have seen), by reason of a confusion of boundaries, or otherwise, the lands out of which it issues cannot be exactly ascer- tained, courts of equity will, in like manner, interfere. 2 So, if the remedy for the rent has become difficult or doubtful at law ; or if there is an apparent perplexity and uncertainty as to the title, or as to the extent of the responsibility of the party, from whom it is sought ; in all such cases, courts of equity will maintain jurisdic- tion, and upon a due ascertainment of the right, will decree the rent. 3 So, if a rent is devised out of a rectory to a devisee, for which he cannot have any remedy by distress, or otherwise, at law, courts of equity will decree him the rent not only in future, but all arrears. 4 So, if a lease of an incorporeal thing is assigned, and the assignee enjoys it, he will be decreed, in equity, to pay the rent, although not bound at law. 6 So, if an assignee of a term, rendering rent, assigns over, the lessor will be entitled to relief in equity for the rent against the first assignee, so long as he held the land, although he may have no remedy at law for these arrears. 6 So, the executor of a terre-tenant of lands liable for 1 Collet v. Jacques, 1 Ch. Cas. 120; Cocks o. Foley, 1 Vern. 359; Duke of Leeds v. New Radnor, 2 Bro. Ch. 338, 618, 519; Holder v. Chambury, 3 P. Will. 256; Livingston v. -Livingston, 4 Johns. Ch. 290, 291. 2 Ante, § 622 ; 1 Fonbl. Eq. B. 1, ch. 3, § 3, note (/) ; Francis's Maxims, 6, § 3, p. 25 (edit. 1739) ; Bowman v. Yeat, cited 1 Ch. Cas. 145 ; Davy v. Davy, 1 Ch. Cas. 146, 147 ; Cocks v. Foley, 1 Vern. 359; North v. Earl of Strafford, 3 P. Will. 148; Holder v. Chambury, 3 P. Will 256 ; Com. Dig. Chancery, 4 N. i, Rent ; Duke of Bridgewater v. Edwards, 4 Bro. Pari. Cas. 139 ; a. c. 6 Bro. Pari. Cas. by Tomlins, 368. As to the ancient remedy for Rents, see 3 Reeves's History of the Law, ch. 21, p. 317 to 320 ; 3 Black Comm. 6; id. 231; 2 Black. Coram. 42; id. 288 ; Bacon, Abridg. Rent, A. K. 8 Livingston v. Livingston, 4 Johns. Ch. 287, 290. In Benson v. Baldwyn (1 Atk. 598), Lord Hardwicke said : " Where a man is entitled to a rent out of lands, and, through process of time, the remedy at law is lost, or become very difficult, this court has interfered and given relief upon the foundation only of payment of the rent for a long time, which bills are called bills founded upon the sola. Nay, the court has gone so far as to give relief, where the nature of the rent (as there are many kinds at law) has not been known so as to be set forth. But then, all the terre-tenants of the land, out of which the rent issues, must be brought before the court, in order for the court to make a complete decree." See also Collet ». Jacques, 1 Ch. Cas. 120. [Swedesbor- ough Church v. Shivers, 1 C. E. Green, 453 ; so where rent could not be re- covered at law for want of legal title. Fleming v. Chunn, 4 Jones Eq. (N. C.) 422. Where rent is to be fixed from time to time by appraisers chosen by the par- ties to the lease, and, owing to minority of parties who acquire the reversion, this cannot be done, equity will fix, it seems, a fair rent. Holmes v. Shepard, 49 Mis. 600.] 4 Com. Dig. Chancery, 4 N. 1, Rent; Thorndike v. Collington, 1 Ch. Cas. 79. 5 Com. Dig. Chancery, 4 N. 1, Rent, which cites City of London v. Richmond, 2 Vern. 423; s. c. 1 Bro. Pari. Cas. 30; [id. 516, Tomlins's edit.]. 6 Com. Dig. Chancery, 4 N. 1, Rent, § 684, 684 a.] bent. 669 a rent-charge, which the terre-tenant has suffered to be in arrear, will be compellable, in equity, to pay the same, although the testa- tor was not personally bound for the rent, which was recoverable only by distress ; for his personal estate has been augmented by the non-payment. 1 So, a cestui que trust of a lease, rendering rent, will, in equity, be compellable to pay the rent during the time wherein he has taken the profits, if his trustee (the lessee) has become insolvent. 2 . So, although a grantee of a rent shall not have a remedy in equity merely for the want of a distress ; yet, if the want of such distress be caused by the fraud or other default of the tenant there, he will be relieved in equity. 3 So, if a rent is settled upon a woman by way of jointure, but she has no power of distress or other remedy at law ; payment of the rent will be decreed, in equity, according to the intent of the conveyance. 4 So, where a person is a grantee of an entire rent, issuing out of a manor, and there are no demesne lands to distrain on, the rent will be decreed in equity. 5 § 684 a. This jurisdiction, in matters of rent, is asserted upon the general principle, that where there is a right, there ought to be a remedy ; and, if the law gives none, it ought to be administered in equity. 6 This principle is of frequent application in equity; but still it is not to be understood as of universal application, as its terms seem to import, for there are limitations upon it. An obvious exception is, where a man becomes remediless at law from his own negligence. 7 So, if he should destroy his own remedy to which cites Treackle v. Coke, 1 Vem. tion to which I cannot assent." 6 De G., 165; Valliant v. Dodemede, 2 Atk. 546, M. & G. 629, 646, 647. See Cox v. 548 ; Richmond v. City of London, 1 Bro. Bishop, 8 De G., M. & 6. 815.; Wright v. Pari. Cas. 30 ; [id. 516, Tomlins's edit.] ; Pitt, L. E. 12 Eq. 408. That the landlord s. c. 2 Vem. 422, 423. cannot sue an equitable assignee (e. g., by 1 Com. Dig. Chancery, 4 N. 1, Sent, contract for assignment) in possession for which cites Eton College v. Beauchamp, rent, see Cox v. Bishop, ubi sap.] ICh. Cas. 121. 8 Com. Dig. Chancery, 4 N. 3, Rent; 2 Clavering v. "Westley, 3 P. Will. 402. Davy v. Davy, 1 Ch. Cas. 144, 147 ; Fer- [* This case came under consideration re- ris v. Newby, cited 1 Ch. Cas. 147 ; Eer- cently in the Court of Appeal in chan- rers v. Tanner, cited 3 Ch. Cas. 91. . eery, in Walters v. The Northern Coal * Mitf. Eq. PL by Jeremy, 115, 116; Mining Company, when the Lord Chan- Plunket v. Brereton, 1 Bep. in Chan. 5; cellor said, in regard to Lord Talbot's Champernoon v. Gubbs, 1 Vern. 382. decision in Clavering v. Westley : "If it 6 Duke of Leeds v. Powell, 1 Ves. be taken as laying down a general prop- 171. osition, that whenever a legal lessee is 6 1 Eonbl. Eq. B. 1, ch. 3, § 3, note trustee for another, the rent becomes an (/) and cases before cited, equitable debt from the cestui que trust, to • Francis's Maxims, 6, § 3, p. 25 (edit, be recovered by a bill in this court, I 1739) ; Vincent v. Beverlye, Noy, 82 ; 1 must, with all respect, say it is a proposi- Fonbl. on Eq. B. 1, ch. 3, § 3. 670 EQUITY JURISPRUDENCE. [CH. XVI. distrain for rent, and debt would not lie for the arrears of rent, he would not be relievable in equity. 1 § 684 b. Courts of equity have, in some cases, carried their remedial justice farther in aid of parties entitled to rent. It is plain enough, that they may well give relief where a bill for dis- covery and relief is filed, and the discovery is essential to the plaintiff's case, and the defendant admits the right of the plaintiff to the rent ; for, in such a case the relief may well be held to be consequent upon the discovery. 2 But, where no special ground of this sort has been stated in the bill, and where, upon the circum- stances, there might well have been a remedy at law, courts of equity have in some cases gone on to decree the rent, when the defendant has by his answer admitted the plaintiff's right, and no exception has been taken to the jurisdiction by demurrer or by answer, but simply at the hearing. 3 § 684 c. These latter cases seem to stand upon grounds, which, if not questionable, may at least be deemed anomalous. The general doctrine of courts of equity certainly is, that, where the party, entitled to rent, has a complete remedy at law, either by an action or by distress, no suit will be entertained in equity for his relief; 4 and the cases, in which a suit in equity is commonly entertained, are of the kind above mentioned, namely, such as stand upon some peculiar equity between the parties ; or where the remedy at law is gone without laches ; or where it is inadequate or doubtful. 6 It is not enough to show that the remedy in equity 1 1 Fonbl. Eq. B. 1, ch. 3, § 3 ; 1 Roll, commenting on the case of The Duke of Abridg. 375, PI. 3. Leeds v. New Radnor, 2 Bro. Ch. 338, 619, 2 Ante, § 71 ; post, § 690, 691, 1483 ; has said : " The case of the Duke of Story on Eq. PL § 311, 312, 314, 315. Leeds v. Corporation of New Radnor 8 Duke of Leeds v. New Radnor, 2 may, in its first impression, he thought to Bro. Ch. 338, 518 ; North v. Earl of Straf- have been relievable at law ; for though,' ford, 3 P. Will. 184 ; Holder v. Cham- for the purpose of making it the subject bury, 3 P. Will. 256 ; Livingston u. Liv- of equitable jurisdiction, the bill alleged ington, 4 Johns. Ch. 287, 291, 292. that the lands in question had undergone 4 Com. Dig. Chancery, 4 N. 3, Rent; various alterations in their boundaries, Palmer o. Wettenhal, 1 Ch. Cas. 184; yet the defendants, by their answer, denied Francis's Maxims, 6, § 3, p. 25 (edit, that any alteration whatever had taken 1739), marg. note; Champernoon v. place in such particulars, and insisted that Gubbs, 2 Vern. 382 ; Fairfax v. Derby, 2 the plaintiff's remedy was at law. And Vern. 613 ; Holder v. Chambury, 3 P. Lord Kenyon, then Master of the Rolls, Will. 256 ; Duke of Leeds o. New Rad- appears to have been of such opinion, but nor, 2 Bro. Ch. 338, and Mr. Belt's note, he retained the bill for a year. Lord id. 619 ; Bouverie v. Prentice, 1 Bro. Ch. Thurlow, C, however, conceived the legal 200. . remedy to be doubtful, and was of opin- 6 Ante, § 684. Mr. Fonblanque, in ion, that the defendants having admitted § 684 a-686.] rent. 671 may be more beneficial, if the remedy at law is complete and ade- quate ; 1 or, even to show, that the remedy at law by distress is gone, if there be no fraud or default in the tenant. 2 § 685. But, in eases of rent, where cdurts of equity do interfere, they do not grant a remedy beyond what, by analogy to the law, ought to be granted. As, for instance, if an annuity be granted out of a rectory, and charged thereon, and the glebe be worth less per annum than the annuity, courts of equity will make the whole rectory, and not merely the glebe, liable for the annuity. 3 , But they will not extend the remedy to the tithes, they not being by law liable to a distress. 4 So, if a rent be charged on land only, the party, who comes into possession of it will not be personally charged with the payment of it, unless there be some fraud on his part to remove the stock, or he do some other thing to evade the right of distress. 5 § 686. Before the statute of Anne (8 Ann. ch. 14), it was often necessary to go into a court of equity in cases of a rent-seek, for a suitable remedy. 6 But that statute, and other subsequent statutes, enable the party, in all cases, whether the rent be a rent-service, or a rent-seek, or a rent-charge, to distrain or bring his action of debt. 7 The remedy in equity is, therefore, in a practical sense, narrowed; or, rather, it is less advisable than formerly. Still, however (as Mr. Fonblanque has properly remarked), there are cases in which a resort to a court of equity may be salutary, and, the plaintiff's right, and the bill having 2 Com. Dig. Chancery, 4 N. 3, Rent; been retained, had done away the objec- Davy v. Davy, 1 Ch. Cas. 144, 147 ; Cham- tion pressed against the jurisdiction of pernoon v. Gubbs, 2 Vera. 382 ; Francis's the court. It may be material to ob- Maxims, 6, § 3, p. 35 (edit. 1739), margin- serve, that his lordship's opinion went al note; 1 Fonbl. Eq. B. 1, ch. 3, § 3; upon the grounds of an admission of the Duke of Bolton v. Deane, Prec. Ch. 516. right, and the previous retaining of the 8 Thorndike v. Collington, 1 Ch. Cas. bill. As to the admission of the right, if 79 ; Com. Digest, Chancery, 4 N. 2, Rent. it stood alone, that, probably, would not * Ibid. ; Thorndike v. Collington, 1 Ch. be thought a sufficient circumstance to Cas. 79 ; Francis's Maxims, 6, p. 25 (edit, give to a court of equity cognizance of a 1739), in margin. matter not properly within its jurisdic- 6 Ibid. ; Palmer v. Wettenhal, 1 Ch. tion ; and, with respect to the bill having Cas. 184 ; Com. Dig. Chancery 4 N. 3, been retained for a year, the same cir- Rent ; 1 Fonbl. Eq. B. 3, ch. 2, § 3, note cumstance occurred in Ryan v. Macmath, (k) ; Davy v. Davy, 1 Ch. Cas. 144, 145 ; 3 Bro. 15, notwithstanding which the suit B. p. 3 Ch. Cas. 91. was dismissed for want of equity. See 6 See 3 Beeves, Hist, of the Law, ch. also Curtis v. Curtis, 2 Bro. 620, where 21, p. 316 to 320; Litt. § 218. this point was very much considered. ' Stat. 4 Geo. II. ch. 28 ; 5 Geo. IIL 1 Com. Dig. Chancery, 4 N. 3, Rent; ch. 17; 3 Black. Comm. 6; id. 230 to Attorney -General v. Mayor of Coventry, 233 ; Bac. Abridg. Rent, K. 6. 1 Vera. 713, 672 EQUITY JURISPRUDENCE. [CH. XVI. perhaps, indispensable ; as, where the premises, out of which the rent is payable, are uncertain ; 1 or where the time or amount of payment is uncertain ; or where (as already hinted) the distress is obstructed or evaded by fraud ; 2 <5r where the rent is issuing out of a thing of an incorporeal nature, as tithes, where no distress can be made ; 3 or where a discovery may be necessary ; or where an apportionment may be required, in order to attain complete justice. 4 § 687. The beneficial effect of this jurisdiction in equity may be further illustrated by reference to the doctrine at law in cases of derivative titles under leases. It is well known, that, although a derivative lessee, or undertenant, is liable to be distrained for rent during his possession ; yet, he is not liable to be sued for rent on the covenants of the lease; there being no privity of contract between him and the lessor. 6 But suppose the case to be, that the original lessee is insolvent, and unable to pay the rent ; the ques- tion would then arise whether the under lessee should be per- mitted to enjoy the profits and possession of the estate, without accounting for the rent to the original lessor. Undoubtedly there would be no remedy at law. But it is understood, that, in such a case, courts of equity would relieve the lessor ; and would direct a payment of the rent to the lessor, upon a bill making the original lessee, and the undertenant parties. For, if the original lessee were compelled to pay the rent, he would have a remedy over against the undertenant. And besides, in the eyes of a court of equity, the rent seems properly to be a trust or charge upon the estate; and the lessor is bound, at least, in conscience, not to take the profits without a due discharge of the rent out of them. 6 1 Benson v. Baldwyn, 1 Atk. 695 ; Atk. 698 ; Com. Dig. Chancery, 4 N. 3, ante, § 684 ; Com. Dig. Chancery, 4 N. 1, Sent. Bent. 6 Halford v. Hetch, 1 Doug. 183; 1 2 Champernoon v. Gubbs, 2 Vern. 382 ; Fonbl. Eq. B. 1, ch. 3, note (s) ; Com. Dig. s. c. Prec. Ch. 126 ; ante, § 684, 685. Chancery, 4 N. 5, Rent. 8 1 Fonbl. Eq. B. 1, ch. 3, § 3, note (g) 6 See Goddard v. Keate, 1 Vern. 27; and cases there cited. 1 Fonbl. Eq. B. 1, ch. 6, § 5, and note (x) ; * See North v. Earl of Strafford, 3 P. ante, § 684 ; Com. Dig. Chancery, 4 N. 1, "Will. 148, 161 ; Benson v. Baldwyn, 1 4 N. 2, Rent. § 686-689.] discovery. 673 CHAPTER XVII. PECULIAR REMEDIES IN EQUITY — DISCO VERY — CANCELLATION AND DELIVERY OE INSTRUMENTS. [* § 688. Cases where the peculiar remedy gives jurisdiction. § 689. Bills for discovery merely. § 690, 691. Grounds of jurisdiction with reference to discovery stated. § 692. Rescission of contracts ; cancellation of securities. § 693. Relief in such cases rests in legal discretion. § 694. Fraud is the most usual basis of such relief. § 694 a. Recent cases upon the subject examined. § 695, 695 a. Subject classified and illustrated. § 696. The party in fault must always make restitution. § 697. And if equally in fault can have no relief. § 698. If the contract is void, no need of relief commonly. § 699, 700. Nevertheless, equity interferes on various grounds. § 700 a. An instrument, void on its face, will not be ground of relief. § 701. The jurisdiction rests on the prevention of injury. § 702. Courts of equity now try the facts in such cases. § 703. Will interpose for the recovery of deeds and other writings. § 704. Or to give inspection and copies to those interested in title. § 705. Will decree the surrender of paid securities, &c. § 705 a. Courts of equity will compel grantor to surrender mortgage to grantee. § 705 b, 706. Or where circumstances indicate the party does not rely upon them. § 706 a. Equity will not complete an imperfect gift. What constitutes consider- ation. § 706 b. Voluntary gifts may be set aside in equity. § 707. Party seeking relief in equity must first do equity. § 708. Will not ordinarily decree delivery of specific chattels. § 709. But will so decree, where no other adequate compensation. § 710. Other cases of equitable interference to prevent irreparable mischief. § 710 a. How far machinery will be treated as fixtures. § 711. Equity formerly decreed compensation in some cases.] § 688. We shall now proceed to the consideration of the other branch of concurrent jurisdiction, that in which the peculiar reme- dies afforded by courts of equity constitute the principal, although not the sole, ground of jurisdiction. § 689. And here we may begin by adverting to that large class of cases, where the remedy of a DISCOVERY constitutes the main ground, and, in many cases, the sole ground, upon which a bill in equity is maintainable in point of jurisdiction. Every original bill in equity may, in truth, be properly deemed a bill of discovery ; for it seeks a disclosure of circumstances relative to the plaintiff's EQ. JUR. — VOL. i. 43 674 EQUITY JURISPRUDENCE. [CH. XVII. case. But that, which is usually and emphatically distinguished by this appellation, is a bill for the discovery of facts, resting in the knowledge of the defendant, or of deeds, or writings, or other things, in his custody, possession, or power, but seeking no relief in consequence of the discovery, although it may pray, and often does pray, for a stay of proceedings at law, until the discovery shall be made. 1 Wherever such a discovery alone is sought, without asking any relief, courts of equity have a complete jurisdiction to compel the discovery, if the plaintiff is entitled to it, according to the general principles which govern the subject. Courts of law are incompetent, by their very structure, to compel such a discovery ; and, therefore, it properly falls under the head of the exclusive jurisdiction of courts of equity, where the nature and limits of the right to a discovery will be fully examined. 2 § 690. But the class of cases designed to be treated of in this place, are cases where relief is sought, as consequent upon the dis- covery of facts, and where, but for the want of such discovery, the case would be perfectly remediable at law. The necessity of obtain- ing a discovery in such cases, therefore, constitutes the sole ground of equity j urisdiction ; and if, upon such a bill, no discovery is obtained, the cause fails, and the bill must be dismissed. If, on the other hand, the discovery is obtained (then, as we have already seen), courts of equity, in many cases, will proceed to give entire and full relief. This subject has been already treated somewhat at length in the preliminary part of these Commentaries ; 3 and, therefore, the ground of this jurisdiction may be briefly summed up in the language of Mr. Fonblanque, in a passage from which a short quotation has been already made : " This concurrence of jurisdiction " [by courts of equity], says he, "may, in the greater number of cases in which it is exercised, be justified by the pro- priety of preventing a multiplicity of suits ; for, as the mode of proceeding in courts of law requires the plaintiff to establish his case, without enabling him to draw the necessary evidence from the examination of the defendant, justice could never be obtained at law in those cases where the principal facts, to be proved by one party, are confined to the knowledge of the other party. In such i Mitf . Eq. PI. by Jeremy, 53, 183 to Pr. Ch. 160, &e. ; Story on Equity Plead. 185 ; post, § 1483 ; Cooper Eq. PI. ch. 1, § 311, 312, 315. § 4, p. 58 ; id. ch. 3, § 3, p. 188 ; Jeremy 2 Post, § 1480 to 1505. on Eq. Jurisd. B. 2, ch. 1, p. 257, &c. ; 2 8 ^ nte< § 64 to 74 e ; post, § 1483; Eonbl. Eq. B. 6, ch. 3, § 1, &c. ; 1 Mad. Story on Eq. Plead. § 311 to 316. § 689-691.J DISCOVERY. 675 cases, therefore, it becomes necessary for the party, wanting such evidence, to resort to the extraordinary powers of a court of equity, which will compel the necessary discovery. And the court, hav- ing acquired cognizance of the suit for the purpose of discovery, will entertain it for the purpose of relief in most cases of fraud, account, accident, and mistake." 1 § 691. We have already seen, that there is a difference between the English and the American courts, in regard to the extent of the jurisdiction, attaching for relief, as consequent upon discov- ery. 2 But, whichever doctrine ought, upon principle, to prevail, there is no doubt of the two propositions above stated : first, that the necessity of a discovery in a court of equity furnishes a just foundation of jurisdiction in a great variety of cases ; 3 and, sec- ondly, that if the discovery is totally denied by the answer, the bill 1 1 Fonbl. Eq. B. 1, ch. 1, § 3, note (f). iAnte, § 71, 74 d. 3 See Lord Eldon's remarks, in Kemp v. Pryor, 7 Ves. 248, 249. In Pearee v. Creswick, 2 Hare, 293, Mr. Vice- ' Chancellor Wigram said : " The first proposition relied upon by the plaintiff, in support of the equity of his bill, is this, — that the case was one in which the right to discovery would carry with it the right to relief. And, undoubtedly, dicta are to be met with, tending directly to the conclusion, that the right to dis- covery may entitle a plaintiff to relief also." In Adley v. The Whitstable Com- pany, 17 Ves. 324, Lord Eldon says : " There is no mode of ascertaining what is due, except an account in a court of equity ; but it is said the party may have discovery, and then go to law. The an- swer to that is, that the right to discovery carries along with it the right to relief in equity." In Kyle v. Haggie, 1 J. & W. 236, Sir Thomas Plumer said : " When it is admitted that a party comes here properly for the discovery, the court is never disposed to occasion a multiplicity of suits, by making him go to a court of law for the relief." And, in McKenzie v. Johnson, 4 Mad. 373, Sir J. Leach says : " The plaintiff can only learn from this discovery of the defendants, how they have acted in the execution of their agency ; and it would be most unreason- able that he should pay them for that discovery, if it turned out that they had abused his confidence ; yet such must be the case if a, bill for relief will not lie." Now, in a case in which I think that justice requires the court, if possible, to find an equity in this bill, to enable it once for all to decide the question between the parties, I should reluctantly deprive the plaintiff of any equity to which the dicta I have referred to may entitle him. But I confess that the argumentf ounded upon these dicta appears to me to be exposed to the objec- tion of proving too much. They can only be reconciled with the ordinary practice of the court, by understanding • them as having been uttered with reference, in each case, to the subject-matter to which they were applied, and not as laying down any abstract proposition so wide as the plaintiff's argument requires. I think this part of the plaintiff's case can- not be stated more highly in his favor than this, — that the necessity a party may be under (from the very nature of a given transaction) to come into equity for discovery, is a circumstance to be re- garded in deciding upon the distinct and independent question of equitable juris- diction ; further than this I have not been able to follow this branch of the plain- tiff's argument." [The changes of the law of evidence by which parties may be witnesses, or may be compelled to answer interrogatories, do not change the juris- diction of equity to compel discovery. Cannon v. McNab, 48 Ala. 99.] 676 EQUITY JURISPRUDENCE. [CH. XVII. must be dismissed, and the relief denied, although there might be other evidence sufficient to establish a title to relief ; for the sub- ject-matter is, under such circumstances, exclusively remediable at law. With these few remarks, the further consideration of this subject may be dismissed in this place. § 692. Another head of equity jurisdiction, founded upon the like circumstance of a peculiar remedy, embraces that large class of cases, where the Rescission, Cancellation, or Delivery up of agreements, securities, or deeds is sought, or a Specific Per- formance is required of the terms of such agreements, securities, or deeds, as indispensable to reciprocal justice. It is obvious that courts of law are utterly incompetent to make a specific decree for any relief of this sort ; 1 and, without it, the most seri- ous mischiefs may often arise to the parties interested. The subject naturally divides itself into two great branches. In the first place, what are the cases in which courts of equity will undertake to rescind, cancel, or direct a surrender of contracts, securities, and deeds ? And, in the second place, what are the cases in which courts of equity will enforce a specific performance of them ? § 693. Before proceeding to the consideration of these distinct and important subjects, it may be proper to suggest, that the appli- cation to a court of equity for either of these purposes is not, strictly speaking, a matter of absolute right, upon which the court is bound to pass a final decree. But it is a matter of sound dis- cretion, to be exercised by the court, either in granting or in refus- ing the relief prayed, according to its own notion of what is reasonable and proper under all the circumstances of the particu- lar case. 2 Thus, for instance, a court of equity will sometimes refuse to decree a specific performance of an agreement, which it will yet decline to order to be delivered up, cancelled or rescinded. 3 On the other hand, a specific performance will be decreed upon the application of one party when it would be denied upon the appli- cation of the other. And an agreement will be rescinded or can- celled upon the application of one party, when the court would decline any interference at the instance of the other. 4 So that 1 Bromley v. Holland, 7 Ves. 18. 167 ; Savage v. Brocksopp, 18 Ves. 335 ; » lFonbl. Eq. B. 1, ch. 3,§ 9,note (('); Mortlock v. Buller, 10 Ves. 305, 308; 3 Wooddes. Lect. 58, p. 464, 465, 466; Turner w. Harvey, Jacob, 178; 3Wooddes. Mortlock v. Buller, 10 Ves. 293 ; s. c. 2 Lect. 58, p. 454, 455. Dow, 518. * Cooke v. Clayworth, 18 Ves. 12; 1 8 See M'Leod v. Drummond, 17 Ves. Story on Eq. Jurisp. § 206. § 691-694.] CANCELLATION OP DEEDS. 677 we are here to understand, that the interference of a court of equity is a matter of mere discretion ; not, indeed, of arbitrary and capricious discretion, but of sound and reasonable discretion, secundum arbitrium boni judicis. 1 And in all cases of this sort, where the interposition of a court of equity is sought, the court will, in granting relief, impose such terms upon the party as it deems the real justice of the case to require; and, if the plaintiff refuses to comply with such terms, his bill will be dismissed. 2 The maxim here is emphatically applied, — He who seeks equity must do equity. § 694. In the first place, then, let us consider in what cases a court of equity will direct the Delivery up, Cancellation, or Rescis- sion of agreements, securities, deeds, or other instruments. It is obvious, that the jurisdiction, exercised in cases of this sort, is founded upon the administration of a protective or preventive jus- tice. The party is relieved upon the principle, as it is technically called, quia timet ; that is, for fear that such agreements, securities, deeds, or other instruments, may be vexatiously or injuriously used against him, when the evidence to impeach them may be lost ; or that they may now throw a cloud or suspicion over his title or interest. 3 A fortiori, the party will have a right to come into equity to have such agreements, securities, deeds, or other instru- ment delivered up and cancelled, where he has a defence against them, which is good in equity, but not capable of being made available at law. 4 We have already had occasion to take notice of a great variety of cases, in which agreements, securities, deeds, and other instruments have been set aside, and decreed to be de- livered up, on the ground of accident, mistake, and fraud. 5 Under the two former heads, it will readily be perceived, upon the slight- est examination, that a rescission, or cancellation of the agree- ments, securities, deeds, or other instruments, would not, in a great many cases, be an appropriate, adequate, or equitable relief. The accident or mistake may be of a nature which does not go to the very foundation and merits of the agreement ; but may only require, that some amendment, addition, qualification, or variation should 1 Goring v. Nash, 3 Atk. 188 ; Buckle 5 Paige, 493. See Burt v. Cassety, 12 v. Mitchell, 18 Ves. Ill ; Revell v. Hus- Ala. 734. sey, 2 B. & B. 288 ; post, § 742, 769. i Reed v. Bank of Newburgh, 1 Paige, 2 1 Fonbl. Eq. B. 1, ch. 4, § 4, note (a) ; 215, 218. id. B. 1, ch. 2, § 11, note Qt>). 5 Ante, § 161, 439; "Willan v. Willan, 8 Newland on Contracts, ch. 34, p. 493, 16 Ves. 72 ; Underbill v. Horwood, 10 Ves. . &c;post, § 700, 701; Petit v. Shepherd, 225; Ware v. Horwood, 14 Ves. 28, 31, 32. 678 EQUITY JURISPRUDENCE. [CH. XVII. take place, to make it at once just and reasonable, and fit to be enforced. 1 But it can rarely be said, that in cases of fraud, actual or constructive, the same observations properly apply. If there is actual fraud, there seems the strongest ground for the interfer- ence of a court of equity to rescind a contract, security, or other instrument. 2 And if the fraud be constructive, still for the most part it ought to draw after it the same consequences, either as a breach of trust, or an abandonment of duty or a violation of pub- lic policy. 3 But although fraud may, in all these cases, furnish a sufficient ground to rescind a contract in jure strictissimo ; yet there may be circumstances which may justly mitigate the rigid severity of the law ; or may place the parties in •pari delicto ; or may require a court of equity, from the demerit of the plaintiff in the particular transaction, to abstain from the slightest interfer- ence ; or may even induce it, if it should rescind the contract, to do so only upon the terms of due compensation, and the allowance of the countervailing equities of the plaintiff. 4 [* 694 a. But in all cases where the cancellation or surrender of a contract is sought on the ground of fraud, courts of equity should, it is said, maintain the principle that no relief be given, unless a distinct case of fraud be definitely alleged, and clearly proved as alleged. 5 But where an illiterate old man, in a feeble state of health, and within thirty-six hours of his death, executed a deed of conveyance for insufficient consideration, and without the assist- ance of independent professional advice, the transaction was set aside at the instance of the heir of the vendor, and the deed ordered to be delivered up to be cancelled. 6 So also where an un- married lady made a deed in favor of her brother, with whom she 1 See Mitford, Eq. PI. by Jeremy, 127, no general rule that actual fraud is neces- 128, 129, and note (u) ; Skillern's Execu- sary, even in sales of land, if the contract tors v. May's Executors, 4 Cranch, 137 ; or enforcement of it is, in opinion of Boyce's Executors v. Grundy, 3 Peters, court, unconscientious, equity will rescind 210. it. And see Graham v. Johnson, L. R. 8 2 See Rumph v. Abercrombie, 12 Ala. Eq. 36. And that innocent misrepresen- ts ; Sheppard v. Ireson, 12 Ala. 97. tations going to the essence, and a fortiori 3 Thompson v. Graham, 1 Paige, 384. fraudulent misrepresentations, entitle a 4 Ante, § 50 ; 1 Fonbl. Eq. B. 1, ch. 1, party to rescission, at least where there § 3, note (A); Holbrook v. Sharpey, 19 can be restitutio ad integrum, see Kennedy Ves. 131 ; Harding v. Handy, 11 Wheat, v. Panama, &c. Co. Limited, L. R. 2 Q. B. 125, 126. 580 ; Aberaman Iron Co. v. Wickens, L. 6 [* Martyn a. Westbrook, 7 Law T. R. 4 Ch. App. 101. n. s. 449; Bryan u. Hitchcock, 43 Mis. 6 Clark v. Malpas, 8 Jur. n. s. 734; 627. But in Torrance v. Bolton, L. R. 8 s. c. 31 Beav. 80. Ch. App. 118, it is laid down that there is § 694-695.] CANCELLATION OP DEEDS. 679 was residing at the time, the same being executed by her without professional advice, it was set aside at the instance of the lady and her husband. 1 And in the same case the sale of reversionary property was set aside on the ground of undervalue, as between the same parties, notwithstanding the lapse of more than ten years, the vendor continuing under the influence of the vendee until within two years of the bill being filed. But in the case of family arrangements, where there was no proof of undue influence, the court declined to interfere. 2 But such contracts will not be set aside after they have been acquiesced in and acted upon so that the parties cannot be restored to their original rights. 3 And An the absence of all fraud, and where the contract is no cloud upon title or any special embarrassment, the courts will not ordinarily interfere. 4 ] § 695. Without attempting to go over the different classes of cases of fraud (which have been already enumerated), it may be stated, that courts of equity will generally set aside, cancel, and direct to be delivered up, agreements and other instruments, how- ever solemn in their form of operation, where they are voidable, and not merely void, under the following circumstances : First, where there is actual fraud in the party defendant, in which the party plaintiff has not participated. Secondly, where there is a constructive fraud against public policy, and the party plaintiff has not participated therein. Thirdly, where there is a fraud against public policy, and the party plaintiff has participated therein, but public policy would be defeated by allowing it to stand. And lastly, where there is a constructive fraud by both parties, but they are not in pari delicto.^ i Sharp „. Leach, 8 Jur. n. s. 1026; » Ormes v. Beadel, 2 De G., F. & J. 333. s. u. 31 Beav. 491. For cases where the See also Croft v. Graham, 9 Jur. v. s. court refused to rescind, on ground of 1032 ; Tottenham «. Green, 32 Law J. undue influence, &c, see Harshaw v. Mc- N. s. Ch. 201. Combs, 63 N. C. 75 (insufficiently alleged) ; 4 Onions v. Cohen, 2 H. & M. 354 ; s. c. Hetrick's Appeal, 58 Penn. St. 477 ; 11 Jur. if. s. 198 ; Hoghton v. Money, 13 Thompson a. Gossit, 23 Ark. 175. For Law T. x. s. 447.] cases where the relief was granted, see 6 See ante, § 298 to 381 ; Mitford, Eq. Hartly v. Estis, Phill. (N. C.) Eq. 167; PI. by Jeremy, 128, 129, and notes; 3 Walker v. McCoy, 3 Head (Tenn.), 103; Wooddes. Lect. 58, p. 458, 459, and note; Seeley v. Price, 14 Mich. 541 ; Highberger Hannington v. Du Chatel, 1 Bro. Ch. 124; v. Stiffler, 21 Md. 338 ; Perkins v. Scott, s. c. 2 Dick. 581 ; s. c. more full, 2 Swanst. 23 la. 237. 159, note ; St. John v. St. John, 11 Ves. 2 Bentley v. Mackay, 8 Jur. ». s. 857 ; 535, 536 ; Wynne v. Callander, 1 Euss. B. c. affirmed 8 Jur. N. s. 1001 ; s. c. 31 293 ; Jackman v. Mitchell, 13 Ves. 581, Beav. 143. 583 ; Fanning v. Dunham, 5 Johns. Ch. 680 EQUITY JURISPRUDENCE. [CH. XVII. § 695 a. The first two classes of cases seem scarcely to require any illustration ; since it is manifestly a result of natural justice, that a party ought not to be permitted to avail himself of any agreement, deed, or other instrument procured by his own actual or constructive fraud, or by his own violation of legal duty or public policy, to the. prejudice of an innocent party. 1 The third class may be illustrated by the common case of a gaming security, which will be decreed to be given up, notwithstanding both par- ties have participated in the violation of the law ; because public policy will be best subserved by such a course. 2 The fourth class may also be illustrated by cases, where, although both parties have participated in the guilty transaction, yet, the party who seeks relief has acted under circumstances of oppression, imposi- tion, hardship, undue influence, or great inequality of age or con- dition ; so that in a moral as well as in a legal point of view, his guilt may well be deemed far less dark in its character and degree than that of his associate. 3 136, 142 ; Earl of Milltown v. Stewart, 3 Mylne & Craig, 18, 24 ; ante, § 302 ; Thompson v. Graham, 1 Paige, 384 ; Sey- mour v. Delancy, 3 Cowen, 445 ; Mac- Cabe v. Hussey, 2 Dow & Clark, 440; B. c. 5 Bligh, 715. 1 [Equity has jurisdiction to decree cancellation of an instrument perpetual in its nature, and which it would be a fraud to keep on foot, and where cancel- lation is only effectual remedy. Jones v. Bolles, 9 Wall. 364. The case was that of a stockholder seeking to enjoin a party from demanding the price of certain land from the corporation, he having caused complainant to buy his stock by false representations that the land was paid for. See also Glastenbury ;;. McDonald, 44 Vt. 450 ; Wilson v. Getty, 57 Penn. St. 286 ; Martin v. Graves, 5 Allen, 601. A deed of timber was ordered to be given up for fraud, the grantee having notice of n. prior purchase by a judgment cred- itor, who, on faith of .the purchase, had cancelled his judgment. Raines r. Dun- ning, 41 Geo. 617. Equity will not order bonds of a town about to be issued in aid of a R.R. to be delivered up and cancelled at suit of a taxpayer, unless there is fraud or unfairness. Technical irregu- larities are not enough. Sauerhering v. Iron Ridge, &c. R.R. Co , 25 Wise. 447. Equity, it seems, will not decree cancella- tion because a contract is hard, and especially will not relieve a party of per- forming residue of a contract executed in part. Marble Co. a. Ripley, 10 Wal. 339. A vendee under warranty deed, who had transferred personal property in payment, upon a bill alleging insolvency of vendor, failure of title, and fraudulent represen- tations, obtained a rescission of the con- tract and sequestration of the personal property. Johnson v. Powell, 34 Tex. 528. But see Trammel v.Marks, 44 Geo. 166. And though falsity of representations might have been discovered by a survey, the vendee may rescind. Aberaman Iron Works ». Wickens, L. R. 4 Ch. App. 101. A bond was rescinded where obligee re- pudiated his agreement to support obligor, which was part of the consideration of the bond. Schwear v. Haupt, 49 Mis. 225; Read v. Burns, 13 Ohio, sr. s. 49. The redelivery back of a deed does not devest the title. And a trustee by re- fusing the trust does not revest the title. Kimball v. Gray, 47 Ala. 230.] 2 Ante, § 302; Earl of Milltown v. Stewart, 3 Mylne & Craig, 18, 24 ; Wynno v. Callander, 1 Russ. 293. See, as to gaming securities given in a foreign country, Quarrier v. Colston, 1 Phillips, Ch. 147. 3 Ante, § 298, 300, 301 ; [Porter v. . Jones, 6 Coldw. (Tenn.) 313; Gotwalt § 695 a-69S.] cancellation op deeds. 681 § 696. But in many cases, where the instrument is declared void by positive law, and also, where it is held void or voidable upon other principles, courts of equity will impose terms upon the party, if the circumstances of the case require it. Thus, as we have seen, in cases of usury, courts of equity will not interpose in favor of the borrower, except upon the payment or allowance of the debt fairly due. 1 So, in cases of the setting aside and cancel- lation, and delivery up of annuity securities because they are not duly registered, courts of equity will direct an account of all re- ceipts and payments on each side, and require the just balance to be paid by the proper party. 2 And similar principles are applied to other cases, where the transaction is deemed indefensible, and yet there is an equitable right to compensation. 3 § 697. On the other hand, where the party seeking relief is the sole guilty party, or where he has participated equally and delib- erately in the fraud ; or where the agreement, which he seeks to set aside, is founded in illegality, immorality, or base and uncon- scionable conduct on his own part ; in such cases courts of equity will leave him to the consequences of his Own iniquity ; and will decline to assist him to escape from the toils which he has studi- ously prepared to entangle others, or whereby he has sought to violate with impunity the best interests and morals of social life. 4 And if acts of this sort have been deliberately done, under cir- cumstances in which innocence has been betrayed, or confidence seduced, or falsehood or concealment systematically practised, a fortiori, courts of equity could not, without staining the adminis- tration of justice, interfere to save the party from the just results of his own gross misconduct, when the failure of success in the scheme would manifestly be the sole cause of his praying relief. § 698. A question has often occurred how far courts of equity would or ought to interfere to direct deeds and other solemn in- struments to be delivered up and cancelled, which are utterly void, v. Neal, 25 Md. 434; Blossom v. Van . 8 See Harding v. Handy, 11 "Wheat. Amringe, Phill. (N. C.) Eq. 133 ; Tantura 103, 125, 126. !>. Miller, 3 Stockt. (N. J.) 551.] 4 See ante, § 298 to 305. See also 1 Ante, § 302. Franco v. Bolton, 3 Ves. Jr. 368 to 372 ; 2 Holbrook v. Sharpey, 19 Ves. 131 ; St. John v. St. John, 11 Ves. 535, 536; Bromley v. Holland, 5 Ves. 618; s. c. 7 Braekenbury v. Brackenbury, 2 Jac. & Ves. 16 to 28 ; Byne v. Vivian, 5 Ves. Walk. 391 ; Gray v. Mathias, 5 Ves. Jr. 606, 607; Byne v. Potter, 5 Ves. 609. 286 ; Benyon v. Nettlefield, 2 Eng. Law & Eq. 117. 682 EQUITY JURISPRUDENCE. [CH. XVII. and not merely voidable. 1 The doubt has been, in the first place, whether, as an instrument utterly void is incapable of being en- forced at law, it is not a case where the remedial justice to protect the party may not be deemed adequate and complete at law, and therefore where the necessity of the interposition of courts of equity is obviated. 2 [Upon this principle, a court of equity has refused to set aside a sale made by an administrator, without an order of the proper court ; the deed being absolutely void, there is an adequate remedy at law. 3 ] And, in the next place, whether, if the instrument be void, and ought not to be enforced, the more appropriate remedy in a court of equity would not be, to order a perpetual injunction to restrain the use of the instrument, 4 rather than to compel a delivery up and cancellation of the instrument. § 699. Where the party is seeking a discovery as the means of arriving at relief, by the delivery up or cancellation of the void instrument, it seems somewhat difficult to understand, why a court of equity, having acquired a full jurisdiction in the case for discovery, should not, when that is obtained, proceed, for the pur- pose of preventing multiplicity of suits, to make a decree for the relief sought. 5 But, where no discovery is sought, and the naked case, made by the bill, is for a mere delivery up or cancellation of the instrument, not averring any defect of proof, but simply stating that the instrument is void ; there might be more color for some scruple in entertaining the bill. 6 [And the delivery up of a written instrument of a former closed indebtedness, which remained in adverse hands, but upon which no action or claim in equity existed, has been refused, where the only ground alleged was a fear of a subsequent suit upon it, or an injury to the com- plainant's credit if the document were exhibited. 7 ] Still, in the 1 See Mitford, Eq. PI. by Jeremy, 129, s Mawhorter v. Armstrong, 16 Ohio, and note (x); 2 Swanst. 159, and note (6) ; 188. See also Thigpen v. Pitt, 1 Jones, Bromley v. Holland, 5 Ves. 618, 619 ; s. c. Eq. 49. 7 Ves. 18, 19; Simpson v. Lord Howden, 4 Mitford, Eq. PI. by Jeremy, 129, and 3 Mylne & Craig, 102, 103; Colman v. note (x); Jervis «. White, 7 Ves. 414; Sarrel, 1 Ves. Jr. 50. Hannington v. Du Chatel, 1 Bro, Ch. 124 ; 2 Hilton v. Barrow, 1 Ves. Jr. 284 ; s. c. 2 Dick. 581, and more fully 2 Swanst. Eyan v. Mackmath, 3 Bro. Ch. 15, 16, 159, note. Mr. Belt's note (1), and Pierce r. Webb, 5 gee Newman u. Milner, 3 Ves. Jr. there cited, p. 16, note (2); Jervis o. 483; ante, § 64 to 74, 690, 694; post, White, 7 Ves. 413, 414 ; Gray v. Mathias, § 1483. 5 Ves. 293, 294; Bromley v. Holland, 5 « See Gray v. Mathias, 5 Ves. 286; Ves. 618, 619; Peirsoll v. Elliot, 6 Peters, Franco v. Bolton, 3 Ves. 368. 95, 98. 1 Wilkes i>. Wilkes, 4 Edw. Ch. 630. § 698-700.] CANCELLATION OF DEEDS. former case, the specific relief required being such as a court of law cannot give, and yet the instrument being, from its very na- ture, and its apparent validity, calculated to throw some doubt upon the title, or being capable of future misuse, the justice of a court of equity would seem to require, even under such circum- stances, an interposition to prevent serious mischiefs. 1 § 700. But whatever may have been the doubts or difficulties formerly entertained upon this subject, they seem by the more modern decisions to be fairly put at rest ; and the jurisdiction is now maintained in the fullest extent. 2 And these decisions are founded on the true principles of equity jurisprudence, which is not merely remedial, but is also preventive of injustice. If an instrument ought not to be used or enforced, it is against con- science for the party holding it to retain it ; since he can only retain it for some sinister purpose. If it is a negotiable instru- ment, it may be used for a fraudulent or improper purpose, to the injury of a third person. 3 If it is a deed purporting to convey lands or other hereditaments, its existence in an uncancelled state necessarily has a tendency to throw a cloud over the title. 4 If it 1 Hamilton v. Cummings, 1 Johns. Ch. 520 to 524; Hawkshaw v. Parkins, 2 Swanst. 546. 2 Hamilton v. Cummings, 1 Johns. Ch. 520 to 524, and the cases there cited. The Chautauque County Bank v. White, 6 Barbour, S. C. 605 ; Mitford, Eq. PI. by Jeremy, 128, 129, and notes ; Mr. Swan- Bton's note to Davis v. Duke of Marlbor- ough, 2 Swanst 157, note (6) ; St. John v. St. John, 11 Ves. 526; Mitford, Eq. PI. by Jeremy, 127 to 130 ; 1 Mad. Pr. Ch. 186 to 190 ; Simpson v Lord Howden, 3 Mylne & Craig, 104, 105 ; Mayor of Col- chester v. Lowton, 1 Ves. & Beam. 244 ; Bromley v. Holland, 7 Ves. 16, 19, 20, 21 ; Hayward v. Dimsdale, 17 Ves. 112 ; Pierce v. Webb, cited in Mr. Belt's edit, of 4 Bro. Ch. 116, note; Williams v. Plight, 5 Beavan, 41. See Mr. Belt's notes to Kyan a. Mackmath, 3 Bro. Ch. 15; Chennel a. Churchman, cited id. p. 16 ; Minshaw v. Jordan, id. p. 17 ; Lisle v. Liddle, 3 Anst. 649 ; Peirsoll v. Elliot, 6 Peters, 95, 98, in which last case the doctrine was much considered. [See Sismay v. Eli, 13 Jurist, 480.] But see Buck, &c. Co. v. Conrad, 6 Phil. E. 111. 8 Minshaw v. Jordan, 1 Bro. Ch. 17, Mr. Belt's note ; Bromley v. Holland, 7 Ves. 20, 21 ; s. c. Cooper, 9, 21 ; Jervis v. White, 7 Ves. 414 ; Bishop of Winchester v. Eournier, 2 Ves. 445, 446; Wynne v. Callander, 1 Russell, 293 ; Beed v. Bank of Newburgh, 1 Paige, 215. * Pierce v. Webb, 3 Bro. Ch. 16, note, and Mr. Belt's notes ; Hayward a. Dims- dale, 17 Ves. Ill ; Byne v. Vivian, 5 Ves. 606, 607; Mayor of Colchester i<. Low- ton, 1 Ves. & B. 244 ; Attorney-General ?j. Morgan, 2 Eussell, 306; Duncan v. Worrall, 10 Price, 31 ; Jackmau v. Mit- chell, 13 Ves. 581 ; Petit v. Shephard, 5 Paige, 493 ; Van Doren v. Mayor, &c. of New York, 9 Paige, 388. [Fish v. French, 15 Gray, 520; Sherman v. Fitch, 98 Mass. 59. Equity will entertain jurisdiction to remove cloud where complainant is in pos- session, or from other cause, without ade- quate legal remedy. Sullivan v. Finne- gan, 101 Mass. 447 ; Bunce u. Gallagher, 5 Blatch. C. C. 48 ; Clouston e. Shearer, 99 Mass. 209 ; Woods v. Monroe, 17 Mich. 238. Party out of possession has no right to resort to equity to remove cloud on title. Herrington v. Williams, 31 Tex. 684 EQUITY JURISPRUDENCE. [CH. XVII. is a mere written agreement, solemn or otherwise, still, while it exists, it is always liable to be applied to improper purposes ; and 448 ; Polk i\ Pendleton, 31 Md. 118 ; Bar- ron r. Robbins, 22 Mich. 35 ; Lake Bigler Road Co. o. Bedford, 3 Nev. 399. Per con., Almony u. Hicks, 3 Head (Tenn.), 39 ; Branch v. Mitchell, 24 Ark. 431 (if title of complainant is equitable) ; Thomp- son v. Lynch, 29 Cal. 189; Burton v. Gleason, 56 111. 25 ; Clark v. Covenant, &c, Ins. Co., 52 Mo. 272. But see Taylor v. Rountree, 28 Miss. 391. That equity will only interfere against a tax or assess- ment as a cloud : ( 1 ) to save multiplicity of suits; (2) to save irreparable injury; (3) where the title is by the instrument or proceeding prima facie valid, and it is necessary to show some extrinsic fact to establish its invalidity; but as to mul- tiplicity of suits, they must be suits to which plaintiff will be party. See Crevier v. Mayor, &c. of N. Y., 12 Abb. Pr. n. s. 340. See Hunnewell v. Charlestown, 106 Mass. 350 ; Loud v. Charlestown, 99 Mass. 208. But in many States the relief is given without further special ground than the illegality of the tax. See Sco- field v. Lansing, 17 Mich. 437. See post, under Injunctions. But the rule that one in possession may maintain bill against one out of possession to remove cloud of deed valid on its face, applies to tax deeds and certificates, where extrinsic facts must be shown to establish their invalidity. Crooke v. Andrews, 40 N. Y. 547 ; Newell v. Wheeler, 48 N. Y. 486; Reed v. Tyler, 56 111. 288; Gage v. Billings, 56 111. 268; Gage v. Rohrbach, 56 111. 262 ; Hamilton v. Fond du Lac, 25 Wise. 490 ; Gage !>. Chapman, 56 111. 311 ; MePike v. Pen, 51 Mo. 63 ; Lee v. Ruggles, 62 111. 427. It seems to make no difference that com- plainant's title was acquired since the tax sale. Siegel v. Supervisors, &c, 26 Wise. 70. Where vendor in possession claims that a deed is only a mortgage, the ven- dee may come to equity to remove the cloud. Shays v. Norton, 48 111. 100 ; Rich b. Doane, 35 Vt. 124. Several landhold- ers holding from common source may maintain a bill to remove a cloud, on ground of multiplicity of suits (and in this case also on ground of complication of the transactions). Dart v. Orme, 41 Ga. 376. That mortgagee has right to have cloud removed, see Polk v. Rey- nolds, 31 Md. 106. So a mortgagee with power of sale has a right to come to equity to order sale and to remove cloud. Wofford v. Bbard of Police, &c, 44 Miss. 579. It is not necessary to constitute a cloud that there should be a title upon record apparently valid. A deed valid on its face, and which may work mis- chief, is enough. Fonda v. Sage, 48 N. Y. 173 ; Allen c. Buffalo, 39 N. Y. 386. There is no cloud where the defect is apparent on the face, or must appear upon attempt to prove title under it. Overing v. Foote, 43 N. Y. 290 ; Meloy v. Dougherty, 16 Wise. 269; Howell v. Buffalo, 2 Abb. N. Y. App. Dec. 412 ; Cohen v. Sharp, 44 Cal. 29. A mere notice recorded in the registry of deed, by one that he claims a trust in certain lands, does not create a cloud upon the title. Nickerson v. Loud, 115 Mass. 94. Where complainant him- self has no title, or a doubtful title, he cannot have this relief. West v. Schne- bley, 54 111. 523 ; Huntington v. Allen, 44 Miss. 654 ; Low o. Staples, 2 Nev. 209. An administrator has no right to apply for removal of cloud, at least not until he has been licensed to sell. Shoemate v. Loekridge, 53 111. 503 ; Gridley v. Wat- son, 53 111. 186 ; Paine v. Pirst Div. &c. R.R., 14 Minn. 65. That one who has warranted the title to land which he has sold in several parcels may bring the bill, see Ely v. Wilcox, 26 Wise. 91 ; Cham- blin v. Schlichter, 12 Minn. 276. But see Bissell v. Kellogg, 60 Barb. (N. Y.) 617. So it seems a judgment creditor, to ena- ble him the better to enforce his judg- ment. Stowell v. Haslett, 5 Lans. 380. Where complainant is not a party to a partition, nor bound by it, he cannot have it set aside for fraud. Peak v. Laughlin, 49 Miss. 162. A judgment obtained after death of defendant is a, cloud, and may be removed by heir. Blodget v. Blodget, 42 How. (N. Y.) Pr. 19. The court may entertain a bill to prevent a cloud being cast upon a title. Mann v. Utice, 44 How. Pr. 334 ; MePike v. Pen, 51 Mo. 63 ; Longley v. Hudson, 4 Thomp. & C. 533; Marsh v. Brooklyn, 4 Thomp. & C. 413; 59 N. Y. 280. So the § 700, 700 a.] CANCELLATION OP DEEDS. 685 it may be vexatiously litigated at a distance, of time, when the proper evidence to repel the claim may have been lost, or ob- scured ; or when the other party may be disabled from contesting its validity with as much ability and force as he can contest it at the present moment. 1 § 700 a. But where the illegality of the agreement, deed, or other instrument appears upon the face of it, so that its nullity can ad- mit of no doubt, the same reason for the interference of courts of equity, to direct it to be cancelled or delivered up, would not seem to apply ; for, in such a case, there can be no danger that the lapse court may entertain a bill to relieve land from the lien of a mortgage which has been paid, but not discharged upon the record. Tucker <.-. Conwell, 67 111. 553; Kedmond v. Packersham, 66 111. 434. So a bill may be entertained to relieve an estate from a cloud upon the title created by the fraud of the administrator, Da- month v. Klock, 29 Mich. 289 ; and from a judgment, Smith v. Hickman, 68 111. 314. An act en pais which prima facie gives no interest in the property is not a cloud, e. g., levy of execution against hus- band on wife's estate. Mulligan v. Bar- ing, 3 Daly (N. Y.) 75. See Farnham v. Campbell, 34 N. Y. 480. For cases where a, levy and sale under an execu- tion have been held to constitute a cloud, see Anderson v. Talbot, 1 Heisk. (Tenn.) 407 ; Stout v. Cook, 37 111. 283 ; Fitz v. Davis, 42 III. 391 ; Mustain v. Jones, 30 Geo. 951. But execution sales are not to be enjoined on ground that they will pass no title, and be a cloud. Kulm v. Mc- Neil, 47 Miss. 389; Maxon v. Ayers, 28 Wis. 612. So a deed never delivered, but recorded. Eckman v. Eckman, 55 Penn. St. 269. But see Pratt v. Pond, 5 Allen, 59. An offer to sell and acceptance re- corded, constitute such cloud as equity will remove. Larmon v. Jordan, 56 111. 204. Where land was conveyed to hus- band and wife, their heirs, &c, with the condition as to her that if she should not continue to live with him, not having good cause for divorce, the land should vest in fee in the husband, and the wife afterwards cease to live with him, not having good cause for divorce, and he obtained a divorce from her for wilful desertion, the deed, so far as it related to the wife, was held to be a cloud which equity would remove. Smith v. Smith, 23 Wise. 176. Where plaintiff has ob- tained judgment for sale of interest of vendee holding equitable title, he cannot proceed against vendor holding legal title as to remove a cloud, because ven- dor claims that » large amount of pur- chase-money is yet due, that contract has been forfeited, &c. Bennett v. Hotchkiss, 17 Minn. 89. Where the cloud appears to be supported by an equitable right, equity will not relieve against it. Torn- rent v. Booming Co., 22 Mich. 21 ; Gayne v. Boisregard, 39 Miss. 796. One whose title rests on the Statute of Limitations may, it seems, come into equity to re- move the cloud of the record title. Ar- rington v. Liscomb, 34 Cal. 365 ; Marston v. Eowe, 39 Ala. 722 ; Moody v. Holcomb, 26 Tex. 714. Where after the passing of the title the vendor was declared a luna- tic, it was held that this created such a cloud as justified vendee in coming into equity to have his title established. Yaugher v. Skinner, 1 McCart. 389. A pretended title, which if proved would call for an answer, is a cloud upon the true title. Lick v. Ray, 43 Cal. 83. The bill in such cases is addressed to the sound discretion of the Chancellor. Gla- zier v. Bailey, 47 Miss. 395. And if there is an adequate remedy at law, the bill should not be entertained. Camp v. El- ston, 48 Ala. 81. i Bromley v. Holland, 7 Ves. 20, 21 ; Kemp v. Pryor, 7 Ves. 248, 249 ; St. John v. St. John, 11 Ves. 535; Peake v. High- field, 1 Buss. 559; Duncan v. Worrall, 10 Price, 31 ; Hamilton v. Cummings, 1 Johns. Ch. 520 to 524. See Thigpen v. Pitt, 1 Jones, Eq. 66 ; Frakes v. Brown, 2 Blackf . 295. 686 EQUITY JURISPRUDENCE. [CH. XVII. of time may deprive the party of his full means of defence ; nor can it, in a just sense, be said, that such a paper can throw a cloud over his right or title, or diminish its security ; nor is it capable of being used as a means of vexatious litigation, or serious injury. And, accordingly, it is now fully established, that, in such cases, courts of equity will not interpose their authority to order a can- cellation or delivery up of such instruments. 1 Upon an analogous principle, courts of equity have refused to entertain a bill for the delivery up of a bill of exchange, on which the holder had obtained a judgment at law against the plaintiff, which was satisfied, but where he retained the bill, treating it as a case, in which there was scarcely a pretence of danger from future litigation ; 2 for the bill was merged in the judgment. § 701. The whole doctrine of courts of equity on this subject is referable to the general jurisdiction, which it exercises in favor of a party quia timet. 3 It is not confined to cases where the instru- ment, having been executed, is void upon grounds of law or equity. 4 But it is applied even in cases of forged instruments, which may be decreed to be given up without any prior trial at law on the point of forgery. 6 § 702. In cases where the delivery up or cancellation of any deed or other instrument is sought on account of its being void, the old course used to be, if the validity of the instrument was contested, to direct an issue or a trial at law to ascertain the fact. 6 1 Gray v. Mathias, 5 Ves. 286; Simp- of the paper. Ins. Co. v. Bailey, 13 Wal. son ». Lord Howden, 3 Mylne & Craig, 616. But see Commercial Mut. Ins. Co. 97, 102, 103, 108 ; Bromley v. Holland, v. McLoon, 14 Allen, 351, and see Hoare 7 Ves. 16, 20, 22. See also Peirsoll v. El- v. Brembridge, L. R. 8 Ch. App. 22.] liot, 6 Peters, 95, 98, 99, 100 ; Van Doren 8 See Newland on Contracts, ch. 34, v. Mayor, &c. of New York, 9 Paige, 388 ; p. 493 ; Viner, Abridg. Quia Timet, A. B. ; Smyth v. Griffin, 13 Simons, 245; Cox v. 1 Fonbl. Eq. B. 1, ch. 1, § 8, and note (y) ; Clift, 2 Comst. 123. ante, § 694 ; post, § 825 to 851. See Myers 2 Threlfall o. Lunt, 7 Sim. 627. See v. Hewitt, 16 Ohio, 449. Lisle v. Liddle, 3 Anst. 649, where, after * See Thornton v. Knight, 16 Sim. 509, a verdict and before judgment in favor that a policy of insurance would not be of the original defendant, the plaintiff in delivered up merely on the ground of a equity was held entitled to a delivery deviation. up of the note. See also Ryan v. 6 Peake v. Highfield, 1 Russell, 559; Mackmath, 3 Bro. Ch. 15, 16, 17, and Mr. [Johnston o. Renton, L. R. 9 Eq. 181 ; Belt's notes, id. ; ante, § 700, and note. Lee v, Angas, L. R. 7 Ch. App. 79 n. [Where the instrument, e. g., policy of Equity refused to order cancellation of a insurance, is not negotiable, and suit at note and mortgage given to compound a law has been commenced on it, though felony, the defence at law being clear, since bill filed, and the misrepresentation Atwood v. Fisk, 101 Mass. 363.] and fraud set up by bill are good defence 6 See Jeremy on Eq. Jurisd. B. 3,Pt.2, at law, equity will not order delivery up ch. 4, § 2, p. 469. § 700 a-703.] cancellation op deeds. 687 But this, although the common practice, was a matter in the sound discretion of the court ; as the determination of a jury upon the point was not indispensable. It was merely ancillary to the con- science of the court of equity, when administering relief, and not strictly the right of the party. 1 At present a different and more convenient course seems to prevail (which is clearly within the jurisdiction of the court) ; and that is, for the court itself to decide the point without sending the matter to be ascertained at law by a jury ; unless it is satisfied, from the contradictory charac- ter of the evidence, or the want of clearness in the proofs, that such a determination by a jury would be advisable. 2 § 703. Hitherto we have been considering the jurisdiction of courts of equity to decree a delivery up or cancellation of deeds or other instruments, on account of some inherent defect in their original character which renders them either voidable or void. But the powers of courts of equity are by no means limited to cases of this sort. On the contrary, its remediable justice is often and most beneficially applied, by affording specific relief, in cases of unexceptionable deeds and other instruments, in favor of per- sons who are legally entitled to them. 3 This, indeed, is a very old head of equity jurisdiction, and has been traced back to so early a period as the reign of Edward IV. 4 It is a most important branch of equity jurisprudence ; and is exerted, in all suitable cases of a public or private nature, in favor of persons entitled to the cus- tody and possession of deeds and other writings. But where the title to the possession of deeds and other writings depends upon the validity of the title of the party to the property, to which they relate ; and he is not in possession of that property ; and the evi- dence of his title to it is in his own power ; or it does not depend upon the production of the deed or writings, of which he prays the delivery ; in such cases he must first establish his title to the property at law, before he can come into a court of equity for a delivery of the deeds. 5 But, if his title is not disputed, relief fol- 1 Jervis v. White, 7 Ves. 414. court to decree its delivery as against a 2 Ibid. ; Newman v. Milner, 2 Ves. Jr. party unlawfully detaining it. Gilson v. 483 ; Smith „, Carll, 5 Johns. Ch. 118, Ingo, 6 Hare, 112.] 119; Shepley v. Eangely, Dareis, 246. * Mitford, Eq. PI. by Jeremy, 117, 3 Mitford, Eq. PI. by Jeremy, 117, note [I) ; Armitage v. Wadsworth, 1 Mad. 118; Brown v. Brown, l.Dick. 62; post, 192. § 906. [It has been expressly decided, 6 Mitford, Eq. PI. by Jeremy, 64, 117, that there is nothing in the nature of the 118, 128 ; Armitage v. Wadsworth, 1 Mad. certificate of registry of a ship which 192 ; post, § 906. excludes it from the jurisdiction of the EQUITY JURISPRUDENCE. [CH. XVII. lows of course. Thus, heirs-at-law, devisees, and other persons, properly entitled to the custody and possession of the title-deeds of their respective estates, may, if they are wrongfully detained or withheld from them, obtain a decree for a specific delivery of them. 1 The same doctrine applies to other instruments and securities, such as bonds, negotiable instruments, and other evidences of property, which are improperly withheld from the persons, who have an equitable or legal interest in them ; 2 or who have a right to have them preserved. This redress a court of common law is, for the most part, incapable of affording, since the prescribed forms of its remedies rarely enable it to pronounce a judgment in rem, in such cases, which is, or can be made, effectual. 3 It is true, that an action of detinue, or even of replevin, might in some few cases lie, and give the proper remedy, if the thing could be found. But, generally in actions at law, damages only are recoverable; and such a remedy must, in many cases, be wholly inadequate. This constitutes the true ground for the prompt interposition of courts of equity for the recovery of the specific deeds or other instru- ments. 4 § 704. Upon similar principles, persons having rights and inter- ests in real estate are entitled to come into equity for the purpose of having an inspection and copies of the deeds under which they claim title. 6 And in like manner, remainder-men, and rever- sioners, and other persons, having limited or ulterior interests in real [or personal 6 ] estate, have a right in many cases to come into equity, to have the title-deeds secured for their benefit 7 [or their interests otherwise secured] . But in all such cases, the court will 1 Reeves v. Reeves, 9 Mod. 128 ; Tan- 5 Banbury v. Briscoe, 2 Ch. Cas. 42 ; ner v. Wise, 3 P. Will. 296; Harrison i\ 2 Eq. Abridg. 285, D. ; Reeves v. Reeves, Southcote, 1 Atk. 539; Ford i: Peering, 9 Mod. 128; [Brown v. Wales, L. R. 15 1 Ves. Jr. 92 ; Papillon v. Voice, 2 P. Will. Eq. 142] . 478; Buncombe t>. Mayer, 8 Ves. 320; 6 As in slaves. McDougal v. Arm- Jeremy on Eq. Jurisd. B. 3, Pt. 2, ch. 4, strong, 6 Humph. 428 ; Bowling «. Bowl- § 2, p. 468, 469. ing, 6 Monroe, 31 ; Nations o. Hawkins, 2 See Kaye <•. Moore, 1 Sim. & Stu. 11 Ala. 859 ; James v. Scott, 9 Ala. 579. 61 ; Freeman v. Fairlie, 3 Meriv. 30 ; 7 Smith v. Cooke, 3 Atk. 382 ; Banbury post, § 906. v. Briscoe, 2 Ch. Cas. 42 ; Ivie v. Ivie, 8 Mitford, Eq. PI. by Jeremy, 127, 128'; 1 Atk. 431 ; Lempster v. Pomfret, Ambler, Cooper, Eq. PI. 137 ; Jackson v. Butler, 154 ; Jeremy on Eq. Jurisd. B. 3, Pt. 2, 2 Atk. 306; s. c. 9 Mod. 297; Gray v. ch. 4, § 2, p. 469; Freeman ». Fairlie, Cockeril, 2 Atk. 114; Duchess of New- 3 Meriv. 30. [As to when title-deeds in castle v. Pelham, 3 Bro. Pari. Cas. 460, hands of trustees or of the court will be by Tomlins ; s. c. 1 Bro. Pari. Cas. 392, delivered up to tenant for life, see Jenner folio edition. v. Morris, L. R. 1 Ch. App. 603 ; Stanford * Mitford, Eq. PI. by Jeremy, 127, 128. v. Roberts, L. R. 6 Ch. App. 307.] § 703-705 5.] CANCELLATION OP DEEDS. 689 exercise a sound discretion as to making the decree ; for it is by no means an absolute right of the party to have the title-deeds in all cases secured, or brought into chancery for preservation. If such a practice was suffered universally to prevail, the title-deeds of half the estates in the oountry might be brought into court. To entitle the party, therefore, to seek relief, it must clearly appear that there is danger of a loss or destruction of the title-deeds in the custody of the persons possessing them ; and, also, that the interest of the plaintiff is not too contingent, or too remote, to warrant the proceeding. 1 § 705. Cases also may occur, where a deed, or other instru- ment, originally valid, has, by subsequent events, such as by a satisfaction or payment, or other extinguishment of it, legal or equitable, become, functus officio ; and yet, its existence may be either a cloud upon the title of the other party, or subject him to the danger of some future litigation, when the facts are no longer capable of complete proof, or have become involved in the obscu- rities of time. 2 Under such circumstances, although the deed or other instrument has become a nullity, yet courts of equity will interpose, upon the like principles, to prevent injustice, and will decree a delivery and cancellation of the instrument. This, indeed, is a very old head of equity ; and traces of it are to be found in some of our earliest reports. 3 [* § 705 a. And a court of equity will also compel the surrender of a mortgage-deed to the mortgagee, where it had been executed and delivered, but not acknowledged, and intrusted to the mort- gagor to put upon record, he retaining it in his possession and refusing to surrender it or have it recorded. 4 ] § 705 b. The doctrine has been applied, not only to cases where the deed or other instrument is clearly established by the proofs to have become functus officio, according to the original intent and understanding of both parties, but also to cases where it has been fairly inferable from the acts or conduct of the party entitled to the benefit of the deed or other instrument, that he has treated it 1 Ivie v. Ivie, 1 Atk. 431 ; Ford v. Peer- note (a); Jeremy on Eq. Jurisd. B. 3,, ing, 1 Tes. Jr. 76, 78; Noel o. "Ward, 1 Pt. 2, ch. 4, § 3. Mad. 322; Lempster v. Pomfret, Ambler, 2 See Anon., Gilb. Eq. 1; Flower v. 154; Pyncent v. Pyncent, 3 Atk. 571; Marten, 2 Mylne & Craig, 459. See Joy v. Joy, 2 Eq. Abridg. 284 ; "Webb v. Banks v. Evans, 10 S. & M. 35. Lymington, 1 Eden, 8, and the editor's 8 Cary, 17 ; ante, § 700, 700 a. i [* Pierce v. Lamson, 5 Allen, 60.] EQ. JUE. — VOL. I. 44 690 EQUITY JUKISPRUDENCE. [CH. XVII. as released, or otherwise dead in point of effect. Thus, for exam- ple, where a nephew gave a note to his uncle for a sum of money, and afterwards the uncle wrote the following entry, " H. J. P. (the nephew) pays no interest, nor shall I ever take the principal unless greatly distressed," and upon his death, the executors found the entry : it was held a good discharge of the note at law. 1 So, where a son-in-law was indebted to his father-in-law on several bonds, and by his will the latter left him a legacy, and from some memoran- dums of the testator it was satisfactorily shown, that the testator did not intend that these bonds should be enforced by the execu- tors ; it was decreed that they should not be the subject of any demand by the executors against the son-in-law. 2 So, where a father, upon payment of the debts of his son, took a bond from the latter, and it was apparent, from all the circumstances, that the father did not intend it as an absolute security against his son, but in some sort as a check upon his future conduct, and that he did not intend, after his death, that it should be treated as a debt due from his son to his estate, or to be put in force against him, it was decreed that the bond should be delivered up by the executors to be cancelled. 3 So, where a testatrix, by her will, forgave a debt due to her on bond by her son-in-law, and he died in her life- time ; it was held, that it was a release in equity, and that the bond ought to be delivered up by her executor. 4 § 706. There is also a curious case of an analogous nature, which was finally decided by the House of Lords, in which the powers of a court of equity were applied to give relief to an extent which no court of law would for a moment entertain. The testa- tor, on his death-bed, said to his executrix, that he had the bond of B., but when he died B. should have it, and that he should not be asked or troubled for it. The executrix, after the death of the testator, put the bond in suit ; and thereupon, B. brought a bill for a discovery, and delivery up, and cancellation of the bond. And it was decreed accordingly at the hearing by the Lord Chancellor, 1 Aston o. Pye, 5 Ves. 350, note [b). Elliot v. Davenport, 2 Vern. 521 ; s. c. Cited also in Flower v. Marten, 2 Mylne 1 P. Will. 83. See also Toplis v. Baker, & Craig, 474, 475. cited in Mr. Cox's note, 1 P. Will. 86 ; 2 Eden v. Smith, 5 Ves. 340, 351. Duffield v. Elwes, 1 Bligh, n. s. 529, 530, Cited also in Flower v. Marten, 2 Mylne 531, 538, 539; ante, § 433, note, § 607, & Craig, 474, 475. post, § 793 a ; Richards v. Syraes, 2 Eq. 8 Flower v. Marten, 2 Mylne & Craig, Abridg. 617 ; s. c. 2 Atk. 319; 2 Barnard. 459, 474, 475. 90 ; 1 Bligh, n. s. 537, 538, 539. * Sipthorp v. Moxon, 3 Atk. 579; § 705 6—706 a.] cancellation op deeds. 691 and his decree was affirmed by the House of Lords. 1 This case carries the doctrine of an implied trust or equitable extinguish- ment of a debt to the very verge of the law. The case would be clearly unsupportable, as a donatio mortis causd ; and it must stand upon the parol evidence to establish an intention to have the bond delivered up, not touched or provided for by the testator's will. 2 § 706 a. Whether all the cases, which have been cited in the last two sections, being cases of imperfect gifts or incomplete acts, sought to be enforced in equity in favor of mere volunteers, are strictly maintainable or not upon the true principles which now regulate the subject, may perhaps, in the present state of the authorities, be thought to admit of some doubt. 3 Be this as it may, they proceed upon the distinct ground, that the transaction was one exclusively between the creditor and the debtor ; and that, taking all the circumstances together, it was clearly the intention of the creditor to treat the debt as in equity forgiven and released to the. debtor himself. But cases of this sort are clearly distin- guishable from purely voluntary imperfect gifts, or assignments of debts or other property, to third persons, and also from purely vol- untary contracts inter vivos, to which, however, at first view, they might seem to bear a very close analogy. 4 In respect to volun- tary contracts inter vivos, it is a general principle, that courts 1 Wekett v. Baby, 3 Bro. Pari. Cas. 16 of the bond was purely voluntary, and it [2 Bro. Pari. Cas. by Tomlins, 386]. This would not take effect as an assignment, case was recognized in its principle by not being under seal, and the act, there- Lord Cottenham, in Flower v. Marten, 2 fore, imperfect. It is not, perhaps, so Mylne & Craig, 459, 474, 475. See also easy to reconcile Tuffnel v. Constable Sipthorp v. Moxon, 3 Atk. 580, 581. But with Eden v. Smith, 5 Ves. 541. It has see TufEnell v. Constable, 8 Sim. 69, 70. been already stated (ante, note to this [Wekett v. Baby has been recognized as section) that Wekett v. Baby, 2 Bro. Pari, good law in the United States. Leddel's Cas. by Tomlins, p. 386, was fully recog- Exor. v. Starr, 5 C. E. Green, 274 ; Otis v. nized in its principles in Flower v. Mar- Beckwith, 49 111. 121. See Yeomans v. ten. See ante, § 433, note, where sev- Williams, L. R. 1 Eq. 184.] eral of the cases on this subject are cited ; 2 It may not, perhaps, be thought very and § 607 b, where the ease of Richard easy to reconcile the case of Tuffnell v. v. Symes, 2 Eq. Abridg. 617, before Lord Constable (8 Simons, 69), with that of Hardwicke, is cited, and on which Lord Flower v. Marten (2 Mylne & Craig, 459, Eldon commented in Duffield v. Elwes, 1 474, 475). The true difference, however, Bligh, n. s. 537, 538; Callaghan v. Calla- seems to be, that in the latter case, tak- ghan, 8 CI. & Fin. 374, 401. ing all the circumstances together, the 3 See ante, § 433, 706, 706 a ; Flower v. court presumed that the money advanced Marten, 2 Mylne & Craig, 459 ; Edwards to the son was originally intended as a v. Jones, 1 Mylne & Craig, 226 ; post, gift, or that the father subsequently § 787, 793 a. treated it as a gift, and abandoned it as a 4 See ante, § 433 ; post, § 787, 793 4, debt. In the former case, the assignment 973, 987. 692 EQUITY JURISPRUDENCE. [CH. XVII. of equity will not interfere ; but will leave the parties where the law finds them. 1 In respect also to gifts and assignments inter vivos, courts of equity will enforce them only when the gift or assignment is perfected and complete, so that nothing further remains to consummate the title of the donee. For, if the gift or assignment is imperfect, or any further act remains to be done to complete the title of the donee, courts of equity, treating the donee as a mere volunteer, will not aid him. to carry into effect either against the donor or against his legal representatives. 2 But of this we shall have occasion to speak more in another place. 3 [* § 706 b. There is a class of cases, which occupies some space in the English equity reports, which has not attracted much atten- tion in America, and which may be as conveniently noted here as anywhere ; viz., the setting aside of voluntary deeds and settle- ments, either at the suit of the party to the instrument, or of some other party interested in the subject-matter. Thus it has recently been held, that a mere voluntary deed of gift, the nature of which was not fully understood by the donor, may be set aside, after his death, either at the suit of the heir-at-law of the donor, or of persons claiming under a will of the donor. 4 So a voluntary settlement, which was executed by a settlor when he was supposed to be in extremis, and which contained no power of revocation, as it was said it should have done, was set aside, on that ground mainly. 5 But it has generally been required, that, in order to induce a court of equity to set aside a voluntary deed, and especially where it is of the nature of a family arrangement or settlement, that it should be shown that the writing was not fully i Post, § 787, 793, 793 o., 987. [It & Keen, 36; Sloane v. Cadogan, Sugden seems that a purchaser for value cannot on Vendors, Appx. No. 26 (9th edit.) ; come into equity to have delivered up a Jefferys v. Jefferys, 1 Craig & Phillips, previous voluntary settlement. De Hogh- 132, 140 ; Holloway v. Headington, 8 ton v. Money, L. R. 1 Eq. 154 ; 2 Ch. App. Simons, 324 ; ante, § 433, note ; Duffield 164.] v. Elwes, 1 Bligh, n. s. 629, 530, 531; 2 See ante, § 433, note, where several post, § 787, 793 a, 973 ; Cunningham ». of the cases are collected. See also Plunkett, 2 Younge & Coll. 245 ; 1 Drury Pulvertoft v. Pulvertoft, 18 Ves. 91,93, & Warren, 308 ; Ward v. Audland, 8 Beav. 99 ; Colman v. Sarrel, 1 Ves. Jr. 52, 54 ; 201. [See Morgan v. Malleson, L. R. 10 Ellison v. Ellison, 6 Ves. 656 ; Antrobus Eq. 475.] .-. Smith, 12 Ves. 39; Minturn v. Sey- s p ost> § 787, 793 a, 973, 987, 1040 c. mour, 4 Johns. Ch. 498, 500; Duffield v. * [* Anderson v. Elsworth, 3 Gif. 154; Elwes, 1 Bligh, n. s. 529, 530, 531 ; B . c. s. c. 7 Jur. K. s. 1047. 1 Sim. & Stu. 244, 245 ; Edwards v. Jones, 6 Forshaw v. Welsby, 4 Law T. N. s. 7 Simons, 325 ; s. u. 1 Mylne & Craig, 170 ; s. c. 30 Beav. 243. 226, 227 ; Fortescue v. Barnett, 1 Mylne § 706 a-707.] delivery up op instruments. 693 explained to the maker, or for some reason not entirely well understood by him. 1 § 706 a. Where parties in controversy as to their rights, being fully informed as to the facts, and on an equality as to professional advice, come to a deliberate agreement, without fraud, misrepre- sentation, or surprise, the court will uphold that agreement, although the conclusion at which the parties arrived may differ from that which the court would have reached. 2 The fact that by their agreement the parties have avoided the necessity of legal pro- ceedings, is a sufficient consideration to support the agreement. 3 Where a settlement for life was made upon the settlor, remainder upon her nephew in fee, and the only consideration expressed in the deed was natural love and affection and a covenant on the part of the nephew to pay off the mortgage upon the premises when called upon, and to indemnify the settlor against the same, and against all proceedings and costs in relation thereto, it was held on a bill for specific performance of a contract of sale subse- quently made by the settlor (reversing the decree of the Master of the Rolls), that the covenant to pay the mortgage constituted a valuable consideration for the settlement, and took the case out of the operation of the statute of Elizabeth, and that evidence beyond what appeared on the face of the deed is receivable in such cases to show valuable consideration. It was also considered here that the volunteer was properly a party to the bill for specific per- formance of a subsequent contract, and if the contract had been decreed to be specifically performed as against the volunteer, it is suggested that the purchase-money ought not to be held upon the same trusts as the land. 4 ] § 707. In all these cases, where a delivery up or cancellation of deeds or other instruments is sought, either upon the ground of their original invalidity, or of their subsequent satisfaction, or because the party has a just title thereto, or derives an interest 1 Toker v. Toker, 31 Beav. 629 ; Phil- improvident settlement may be confirmed, lipson w. Kerry, 11 W. R. 1034 ; s. c. 32 See Jarratt v. Aldam, L. R. 9 Eq. 463. Bear. 628. See also Bonfield v. Hassell, 2 Partridge v. Smith, 9 Jur. n. s. 742. 32 Beav. 217 ; Bentley o. Mackay, 31 * Ibid. Beav. 143; May v. May, 33 Beav. 81; 4 Townsend «. Toker, 12 Jur. u. s. Lister v. Hodgson, L. R. 4 Eq. SO; 477; a. u. L. R. 1 Ch. App. 466. And Coutts v. Acworth, L. R. 8 Eq. 558 ; "Wol- see Bayspoole v. Collins, L. R. 6 Ch. App. laston v. Tribe, L. R. 9 Eq. 44 ; Everitt v. 228, as to what consideration will sup- Everitt, L. R. 10 Eq. 405. But see Hall port a voluntary settlement against a v. Hall, L. R. 8 Ch. App. 430. Even an subsequent purchaser.] 694 EQUITY JURISPRUDENCE. [CH. XYII. under them, courts of equity act upon an enlarged and compre- hensive policy ; l and, therefore, in granting the relief, they will impose such terms and qualifications as shall meet the just equities of the opposing party. Thus, for instance, if the heir- at-law seeks a discoyery and delivery of the title-deeds of the estate of his ancestor against a jointress, he will not be allowed the relief, unless upon the terms of confirming her jointure. 2 So, where there is a subsequent mortgagee, without notice, who has possession of the title-deeds, he will not be compelled to deliver up the deeds to the first mortgagee, unless upon the terms, that the latter will pay him his mortgage money. 3 [So, where a party, seeking to set aside a conveyance made by him, has received part of the consideration, he must return it, before a court of equity will cancel the conveyance. 4 ] Cases of this sort afford a very frequent illustration of the maxim, that he who seeks the aid of equity must do equity. § 708. There yet remains another class of cases, in which the remedial power of courts of equity is applied to compel a specific delivery of the thing, to which another person has a clear right. We here allude to the jurisdiction to entertain bills for the de- livery of specific chattels. Ordinarily, in cases of chattels, courts of equity will not interfere to decree a specific delivery, because by a suit at law a full compensation may be obtained in damages, although the thing itself cannot be specifically obtained ; and, where such a remedy at law is perfectly adequate and effectual to redress the injury, there is no reason why courts of equity should afford any aid to the party. 6 Indeed, it may be truly said, that the value of goods and merchandise varies so much at different times, that it might not unfrequently be inequitable to decree a specific per- formance of contracts respecting them, since it might be wholly disproportionate to the injury sustained. 6 § 709. But there are cases of personal goods and chattels, in which the remedy at law by damages would be utterly inadequate, and leave the injured party in a state of irremediable loss. In all i Eonbl. Eq. B. 1, ch. 1, § 8, and * Buxton v. Lister, 3 Atk. 383 ; Mit- note (y). ford, Eq.. PI. by Jeremy, 118, 119 ; 1 Mad. 2 Towers v. Davys, 1 Vern. 479 ; Petre Pr. Ch. 184, 295, 323. t>. Petre, 3 Atk. 511 ; Ford v. Peering, 1 6 See Barr v. Lapsley, 1 Wheaton, 151 Ves. Jr. 76. and 154, note (a) ; Buxton v. Lister, 3 3 Head v. Edgerton, 3 P. Will. 280. Atk. 383 ; Mitf . Eq. Pi. by Jeremy, 118, * [Mill v. Cotton, 5 Geo. 341.] 119. § 707-709.] DELIVERY UP OP INSTRUMENTS. 695 such cases, courts of equity will interfere, and grant full relief, by- requiring a specific delivery of the thing which is wrongfully with- held. This may occur, where the thing is of a peculiar value and importance ; and the loss of it cannot be fully compensated in damages, when withheld from the owner ; and then relief will be granted in equity. 1 Thus, where the lord of a manor was entitled to an old altar-piece, made of silver, and remarkable for a Greek inscription and dedication to Hercules, as treasure-trove within his manor, and it had been sold by a wrong-doer, it was decreed to be delivered up to the lord of the manor, as a matter of curious antiquity, which could not be replaced in value, and which might, by being defaced, become greatly depreciated. 2 So, where an estate was held by the tenure of a horn, and a bill was brought by the owner to have it delivered up to him, it was held maintainable, for it constituted an essential muniment of his title. 3 [The same rule has been applied to a " box of jewels," 4 to " mortgage-deeds," 5 to " slaves," 6 to " furniture and household effects," 7 to " bank shares." 8 ] The same principle applies to any other chattel, whose principal value consists in its antiquity ; or its being the produc- tion of ' some distinguished artist ; or in its being a family relic, ornament, or heirloom; such, for instance, as ancient gems, medals, and coins ; ancient statues and busts ; paintings of old 1 Jeremy, Eq. Jurisd. B. 3, Et. 2, eh. 4, v. Clark, 12 S. & M. 189 ; Dudley v. Mal- § 2, p. 467 ; Mitf . Eq. PI. by Jeremy, 117 ; lery, 4 Georgia, 52 ; "Williams v. Howard, Cooper, Eq. PI. 132; Fells v. Bead, 3 3 Murph. 74; Loftin v. Espy, 4 Yerg. 84 ; Ves. Jr. 70; Walwyn v. Lee, 9 Ves. 33; 10 Yerg. 30; Sarter v. Gordon, 2 Hills, 1 Mad. Pr. Ch. 190, 320. [Relief will Ch. 121 ; Sims v. Shelton, 2 Strobh. Eq. also be granted where the party in pos- 221 ; Young v. Burton, 1 McMullan's Eq. session of the chattels has acquired such 256; Eraser v. McClenachan, 2 Pick. 79; possession through an alleged abuse of Ellis v. Commander, 1 Strobh. Eq. 188. power on the part of one standing in a But this is to be understood only of such fiduciary relation to the plaintiff. Wood cases when the owner would not have v. Rowcliffe, 2 Phillips, Ch. 382 ; s. c. 3 sufficient remedy at law. Wood v. Crius- Hare, 304. It seems a bill in equity will man, 6 Humph. 279 ; Savery v. Spence, lie to enforce the right of stoppage in 13 Alabama, 561 ; Bryan v. Robert, 1 transitu, on the ground of equitable lien. Strobh. Eq. 188 ; Parley v. Parley, 1 Mc- Schotsmans v. Lancashire, &e. R. Co., L. Cord's Ch. 506. R. 2 Ch. App. 332.] ' Wood v. Rowcliffe, 3 Hare, 304 ; 2 Somerset v. Cookson, 3 P. Will. 390. but this case may have proceeded upon 8 Pusey v. Pusey, 1 Vern. 273. the ground of a fiduciary relation be- 4 [Saville v. Tankred, 1 Ves. 101 ; Belt's tween the parties. And see Lingan «. Supp. 70. Simpson, 1 Sim. & Stu. 600. 6 Jackson v. Butler, 2 Atk. 306 ; Knye 8 Cowles v. Whitman, 10 Conn. 121. «. Moore, 1 Sim. & Stu. 61. But here there was a trust created in 6 Murphy v. Clark, 1 Sm. & Mar. 221 ; reference to the property. Hill v. Rock- Butler v. Hicks, 11 Sm. & Mar. 79; Hall ingham Bank, 44 N. H. 567.] 696 EQUITY JURISPRUDENCE. [CH. XVII. and distinguished masters; and even those of a modern date, having a peculiar distinction and value, such as family pictures and portraits, and ornaments, and other things of a kindred nature. 1 § 710. There are other cases, where courts of equity have inter- fered to decree a specific delivery of chattels under an agreement of sale, or for an exclusive possession and enjoyment for a term of years. But all these cases stand upon very peculiar circumstances, where the nature of the remedy at law is inadequate to complete redress ; or where some other ingredients of equity jurisdiction are mixed up in the transaction, such as the necessity of interference to prevent multiplicity of suits, or irreparable mischief. 2 Thus, for instance, where, oh the dissolution of a partnership, an agree- ment was made, that a particular book used in the trade should be considered the exclusive property of one of the partners, and that a copy of it should be given to the other, a specific performance of the agreement was decreed as to the copy ; for it is clear, that at law no adequate redress could be obtained. 3 So a decree was made against a lessee of alum works, to prevent a breach of a covenant, to leave a certain amount of stock on the premises at the expiration of the term ; there being ground of suspicion that he did not mean to perform the covenant. So a decree was made against a landlord, to restore to a tenant certain farm stock taken by the former in violation of the terms .of his contract. 4 These cases all proceed upon the same principle of quia timet, and the danger of irreparable mischief. 6 [* § 710 a. Nice questions frequently arise in courts of equity, upon applications to enjoin parties from removing alleged fixtures. There are few subjects where the opinions of the courts have varied more widely, or where it is more difficult to lay down any rule, which shall enable us to solve new cases, as they arise. The House of Lords had occasion to examine the question very exten- i Fells v. Bead, 3 Ves. Jr. 70 ; Lloyd u. Ves. 139, 148 ; Mitf. Eq. PI. by Jeremy, Loaring, 6 Ves. 773, 779 ; Lowther v. 119, and notes ; Lloyd v. Loaring, 6 Ves. Lowther, 13 Ves. 95; Pearne v. Lisle, 773; 1 Mad. Pr. Ch. 186 to 190. Ambl. 77 ; Macclesfield u. Davis, 3 Ves. 8 Lingan v. Simpson, 1 Sim. & Stu. & B. 16, 17, 18 ; Nutbrown v. Thornton, 600. 10 Ves. 163; Arundell v. Phipps, 10 Ves. 4 Nutbrown v. Thornton, 10 Ves. 169; 140, 148 ; post, § 719 a. Newland on Contracts, ch. 6, p. 92, 93 ; 2 See Nutbrown v. Thornton, 10 Ves. ante, § 701 ; post, § 825 to 851. 159, 161, 163 ; Buxton v. Lister, 3 Atk. <> "Ward v. Buckingham, cited 10 Ves. 383, 384, 385; Thompson v. Harcourt, 2 161. Bro. Pari. 415; Arundell o. Phipps, 10 § 709-710 J.J DELIVERY UP OP INSTRUMENTS. 697 sively, in the case of Fisher v. Dixon, 1 which was a Scotch appeal, and the rule there laid down (1845) still governs the courts in that country. It is there held, that where the absolute owner of land in fee, for the purpose of better using the land, erected upon and affixed to the freehold certain machinery, such as is in use in working coal and iron mines, that it will go to the heir, as part of the real estate ; and if the corpus of such machinery belongs to the heir, all that belongs to that machinery, although, more or less, capable of being detached from it, and of being used in such detached state, more or less, must, nevertheless, be considered as belonging to the heir. In a more recent case 2 (1856), the sub- ject is very thoroughly examined by Vice-Chancellor Wood, in regard to the machinery in use in copper-roller manufacturers' works. The points ruled by the learned judge are, that, even in regard to manufactures, all articles fixed to the freehold, whether by screws, solder, or any other permanent means, or by .being let into the soil, partake of the nature of the soil, and will descend to the heir, or pass by conveyance of the land ; that the rule of law by which fixtures are held less strictly, when erected for manufac- turing purposes, has no application to fixtures erected by the owners of the land in fee ; that machinery standing merely by its own weight does not become a fixture. But when part of a ma- chine is a fixture, and another and essential part of it is movable, the latter also shall be considered a fixture. 3 It has been held, that under an equitable mortgage by the deposit of a lease, unac- companied by any memorandum, the tenant's fixtures will be in- cluded. 4 § 710 b. An interesting opinion upon the question of the right of the mortgagor, or his partners in business, to remove trade fixtures from the premises where the business is carried on, the same being under mortgage and the fixtures erected after the mortgage, was delivered by Lord Romilly, M. R. 5 His lordship, 1 [* 12 Cl. & Fin. 312. See also Wal- case of an anvil, which, though not fixed, mesley v. Milne, 8 Am. Law Eeg. 273 ; was regarded as essential to a fixed steam- Eng. Com. PI. Nov. 2, 1859 ; s. o. 1 L. hammer. T. x. a. 62. Equity will restrain removal * Williams v. Evans, 23 Beavan, 239. of fixtures by tenant after expiration of 6 Cull wick v. Swindell, Law Rep. 3 Eq. the term. Pugh v. Arton, L. R. 8 Eq. 626. 249 ; Climie v. Wood, L. R. 3 Ex. 257 ; 2 Mather v. Fraser, 2 Kay & Johnson, s. o. 4 Ex. (Ex. Ch.) 328. As to what are 636. fixtures passing by assignment or mort- 8 The Metropolitan Counties' Society gage of lease, see Boyd v. Shorrock, L. R. v. Brown, 26 Beavan, 454. This was the 5 Eq. 72 ; Ex parte Astbury, L. R. 4 Cn. 698 EQUITY JURISPRUDENCE. [CH. XVII. after an extensive review of the former cases, came to the con- clusion that the law of England was clearly settled that such fix- tures could not be removed by the mortgagor or his partners or tenants, although in the ordinary case of tenants such fixtures are removable. His lordship regarded the case as governed by Cotton, Mx parte. 1 ] § 711. And formerly, where the court would not decree a specific performance and delivery of chattels, it would yet entertain the suit to decree compensation against the party for his omission to perform his contract. Thus, for instance, where there was a con- tract for the delivery of specific stock, the court refused to decree a specific performance ; but, at the same time, entertained the bill for the purpose of giving compensation for the non-delivery. 2 But this subject will naturally come more properly under review in the succeeding chapter. 3 [* § 711 a. It is very common in courts of equity to entertain suits, for the purpose of removing a cloud resting upon the plain- tiff's title. This is done upon the ground, that it is for the inter- est of both parties, that the precise state of the title to the estate be known if all are acting bond fide ; and if not, that a merely colorable and pretended claim is a fraud upon the real owner, and as such should be extinguished. Such bills are brought by the party in possession, in order to obtain a perpetual injunction against such false claim, partly for the reason that, being himself in possession, he cannot maintain an action at law to try the question. 4 ] App. 630 ; as between mortgagor and 2 Cud v. Rutter, 1 P. "Will. 570, and mortgagee of freehold, Longbottom v. Cox's notes (2 and 3) ; Colt v. Netterville, Berry, L. R. 5 Q. B. 123 ; as between life 2 P. Will. 394, 395; post, § 617, 718, 723, tenant and remainder-man, D'Eyncourt v. 796. Gregory, L. R. 3 Eq. 382. » Post, § 717, 718, 723, 794 to 799. 1 2 M. D. & De G. 725. See also * [*Eldridge v. Smith, 34 Vt. 484; Bidder v. Trinidad Petroleum Co., 17 Hodges v. Griggs, 21 Vt. 280.] W. K. 153.] CH. XVIII.] SPECIFIC PERFORMANCE. CHAPTER XVIII. SPECIFIC PERFORMANCE OF AGREEMENTS AND OTHER DUTIES. [» § 712. Specific performance of agreements. § 713. With reference to personalty, personal acts, and realty. § 614. Specific performance often due to simple justice. § 715. Form of the contract not important. § 716. This jurisdiction ancient and highly useful. § 717, 717 a. Rests upon the fact that pecuniary compensation is inadequate. § 718. In such cases specific performance of sales of chattels decreed. § 719-720. Cases illustrating the principle of compensation. § 719 a. Courts of equity may decree surrender of artist's own picture. § 721. Between landlord and tenant to prevent irreparable mischief. § 721 a. Permanent works upon real estate. § 722. Other illustrations of the same principle. § 722 a. The subject illustrated by contracts of partnership. § 723. Right to specific performance mutual. § 724, 724 a. Contracts to convey stocks considered. § 725-728. Contracts to repair and to rebuild referred to ; authority against de- fcreeing specific performance. § 729. Other cases illustrating the subject. § 730. Preventive interference of courts of equity. § 731-735. Will decree specific performance of contract to procure wife's act. § 735 a. Also for separation between husband and wife. § 736. Will not interfere in favor of party in fault, or in cases of doubt. § 736 a, 736 b, 736 c. When a contract becomes complete and binding. § 737. Contracts not to obstruct the enjoyment of land not conveyed. § 737 a. Mode of decreeing, or resisting, specific performance. § 738-741. Consideration of the question whether damages being recoverable at law for the breach of a contract, has any bearing upon the right to decree for specific performance. § 742. Relief in all such cases matter of legal discretion. § 743. In regard to lands in foreign countries. § 744, 744 a. The same principle further illustrated. § 745. Extends to contracts within, and not within, the statute of frauds. § 746. More seldom decreed, as to personal, than real estate. § 747. Grounds for preferring the remedy in equity. § 748. Will dispense with mere legal formalities. § 749. Will not decree specific performance if vendor's title defective. § 749 a. What degree of misrepresentation will bar specific performance. § 749 6. Will not decree specific performance against understanding of either party. § 749 c. In what cases courts of equity award damages. § 750. Or where it would be unequal between the parties. § 750 a. Or where the contract is founded in fraud or imposition. § 751. The form of the contract is not material. § 751 a. But the relation of the parties is often taken into account. 700 EQUITY JURISPRUDENCE. [CH. XVIII. § 762, 763. The statute of frauds and its policy. § 754. Equity cannot dispense with the substance of the statute. § 755. May decree upon the admission of defendant's answer. § 756. Where the answer insists upon the statute as » defence, shall the court decree ? § 757. It seems settled that it cannot. § 758. How far is the defendant bound to discover a parol contract * § 759. Part-performance takes a case out of the statute. § 760. Part payment of price will not have that effect. § 761, 763. Taking possession, in faith of the contract, is part-performance. § 762. But acts preliminary and not in fulfilment of the contract are not. § 763 a. If the party retain possession under the contract it is sufficient. § 764. Will not decree specific performance of indefinite contract. § 765. These exceptions rest upon questionable policy. § 766. Lord Redesdale's opinion against extending them. § 767. Will not decree specific performance of indefinite written contract. § 768. But will so decree where the writing is omitted by fraud. § 769. Will not so decree if in any respect inequitable. § 769 a. Will arrange particulars of contract, with reason and justice. § 769 6. Where title proves defective the only remedy at law. § 770. Defendant may show matter of excuse or defence. § 770 a. Will not decree specific performance with alterations, unless on the ground of fraud or written admissions. § 770 6. Where the parties agree, court will decree accordingly. § 771. The party seeking such relief must be without fault. § 772, 773. No such relief, where plaintiff is in statu quo, or unable to fulfil his por- tion of the contract. § 774. But where plaintiff is not in statu quo, and not in fault, may have decree. § 775. Equity will admit compensation of unimportant particulars. § 776. Time not of essence of contracts, but may be made so. § 777. Unimportant variations admitted with compensation. § 777 a. Contract to purchase at vendee's election must be strictly complied with, to admit of specific performance. § 778. Specific performance not allowed, where estate or title essentially defective. § 778 a. Many contracts are of such a nature the courts of equity cannot enforce them specifically. § 778 b. Numerous grounds on which specific performance denied. § 778 c. Trade-marks a protection to the public. § 778 d . May decree specific performance of contracts with railways, but time here of the essence of contract. § 778 e. Grounds of refusal to decree specific performance of railway covenants. § 778/ Awards of same force as to specific performance as agreements. Grounds of refusal to interfere. § 779. Purchaser may have part-performance at his election. § 780. Courts of equity do not encourage departures from contract. § 781. Other parol contracts enforced to prevent fraud. § 782. Contracts not within the statute of frauds. § 783. The assignee may bring a bill for specific performance. § 784. A purchaser with notice liable to such bill. § 785. Contracts which will be specifically decreed. § 786. Contracts in regard to wills enforced. § 712-714.] SPECIFIC PERFOBMANCE. 701 § 787. Equity will only decree performance of valid binding contracts. § 788. Privies in estate liable to such decree. § 789. Purchasers with notice stand in the place of their vendors. § 790, 791. Equity regards the land as the vendee's, and the price as the vendor's. § 792. This rule not applied to all cases or all parties. § 793. It is modified by the intention of the parties interested. § 793 a. But that will not be inferred from slight circumstances. § 793 b. Equity will not interfere on behalf of volunteers. § 793 c. But the assignment of property in the hands of trustees is good. § 793 d. Some cases not strictly within the principle. § 793 e. Not important to multiply eases on this subject. § 793_/ : -793 m. Numerous recent cases illustrating the grounds upon which specific performance will be granted or denied.] § 712. Having thus gone over some of the principal grounds, upon which courts of equity will interpose to decree the rescission, cancellation, or delivery up of agreements, securities, and other instruments, and the delivery of chattels to the rightful owners, we shall in the next place pass to the consideration of the other branch of our inquiries; namely, what are the cases in which courts of equity will interpose and decree a specific performance of agreements ? § 713. With reference to the present subject, agreements may be divided into three classes : (1) those which respect personal property; (2) those which respect personal acts; and (3) those which respect real property. And we shall presently see, that the jurisdiction now actually exercised by courts of equity is not coextensive in all these classes of cases, but at the same time it may be fairly resolved into the same general principles. § 714. It is well known that by the common law every contract or covenant to sell or transfer a thing, if there is no actual trans- fer, is treated as a mere personal contract or covenant ; and, as such, if it is unperformed by the party, no redress can be had, except in damages ; this is in effect, in all cases, allowing the party the election either to pay damages, or to perform the contract or covenant at his sole pleasure. But courts of equity have deemed such a course wholly inadequate for the purposes of justice ; and, considering it a violation of moral and equitable duties, they have, not hesitated to interpose, and require from the conscience of the offending party a strict performance of what he cannot, without manifest wrong or fraud, refuse. 1 However, where it has become 1 See 1 Mad. Pr. Ch. 286 ; Alley v. Bom. 220 ; Harnett v. Yeilding, 2 Sch. & Deschamps, 13 Ves. 228, 229; Gilb. Eor. Lefr. 553. 702 EQUITY JURISPRUDENCE. [CH. XVIII. impossible, from subsequent events, for the party to perform his contract as by a subsequent sale of the subject-matter of the con- tract without notice, courts of equity will not decree a specific performance ; but will, as we shall see, retain the bill for compen- sation. 1 § 715. The jurisdiction of courts of equity, to decree a specific performance of contracts, is not dependent upon, or affected by, the form or character of the instrument. What these courts seek to be satisfied of is, that the transaction in substance amounts to, and is intended to be, a binding agreement for a specific object, whatever may be the form or character of the instrument. Thus, if a bond with a penalty is made upon condition to convey certain lands upon the payment of a certain price, it will be deemed in equity an agreement to convey the land at all events and not to be discharged by the payment of the penalty, although it has assumed the form of a condition only. 2 Courts of equity, in all cases of this sort, look to the substance of the transaction, and the primary object of the parties ; and where that requires a specific performance, they will treat the penalty as a mere security for its due performance and attainment. 3 § 716. The jurisdiction of courts of equity to decree a specific performance of agreements, is certainly of a very ancient date, if it be not coeval with the existence of these courts in England. It may be distinctly traced back to the reign of Edward IV. ; for, in the Year Book of 8th Edward IV. 4 (J>~), it was expressly recog- nized by the Chancellor as a clear jurisdiction.* But, whatever 1 Greenaway v. Adams, 12 Ves. 395, said, by way of illustration (as the text 400 ; post, § 723, 796. stands) : " If I promise to build a house 2 Sugden on Vendors, ch. 4, § 2, p. 202 for you, if I do not build it you shall (7th edition) ; Newland on Contr. ch. 17, hare a remedy by subpoma;" to which p. 307 to 310 ; Logan v. Wienholt, 7 Bligh, the Chancellor is reported to hare re- 1, 49, 50 ; Chilliner v. Chilliner, 2 Ves. plied, " He shall." I cannot but think 528 ; Ensign v. Kellogg, 4 Pick. 1 ; post, that Genney put the case, not as an § 751. [* See Eisher v. Shaw, 42 Maine, affirmative proposition, but by, way of 32; Dailey v. Litchfield, 10 Mich. 29; interrogatory (would he have a subptena?), Gillis v. Hall, 7 Phila. (Penn.) 422 ; Hull v. for so the scope of his argument required. Sturdivant, 46 Me. 34 ; Hooker v. Pyn- But, either way, the Chancellor's remark chon, 8 Gray, 550.] points in favor of the jurisdiction. In 8 Ibid. cases of contract to build a house, or 4 1 Mad. Pr. Ch. 287 ; 1 Fonbl. Eq. B. » bridge, a specific performance would 1, ch. 1, § 5, note (o) ; Newl. on Contr. ch. not now be decreed. [See post, § 725- 6, p. 88; Halsey v. Grant, 13 Ves. 76. 728.] See Errington v. Aynesly, 2 Bro. The case in 8th Edw. IV. 4 (6), was a Ch. 341, 342 ; Mosely v. Virgin, 3 Ves. Jr. suit in chancery ; and Genney, of coun- 185, 186 ; Lucas v. Commerf ord, 3 Bro. eel for the defendant, in his argument, Ch. 166, 167. [Lucas v. Commerford was § 714-716.] SPECIFIC PERPOEMANCE. 703 may be its origin and antiquity, it is now clearly established, and is in daily and most beneficial exercise for the purposes of justice. 1 The ground of the jurisdiction is, that a court of law is inadequate to decree a specific performance, and can relieve the injured party only by a compensation in damages, which, in many cases, would fall far short of the redress which his situation might require. Wherever, therefore, the party wants the thing in specie, and he cannot otherwise be fully compensated, courts of equity will grant him a specific performance. 2 commented on and disapproved in the late case of Moore v. Greg, 12 Jurist, 952.] 1 Gilbert, Lex Praetoria, 235. 2 1 Fonbl. Eq. B. 1, ch. 1, § 5, note (o) ; Bettesworth u. Dean of St. Paul's, Sel. Cas. in Ch. 68, 69 ; Halsey v. Grant, 13 Ves. 76 ; Flint v. Brandon, 8 Ves. 159, 163; Harnett v. Yeilding, 2 Sch. & Lefr. 553; Errington v. Aynesly, 2 Bro. Ch. 341 ; Mitford, Eq. PI. by Jeremy, 112, 118,119; Gilb. Forum Roman. 220; Sug- den on Vendors, ch. 4, § 4, p. 190, 191 (7th edition); Gilb. Lex Pretoria, 235; Cathcart v. Robinson, 5 Peters, 264 ; Storer v. Great Western Railway Co.,'2 Y. & Coll. N. R. 48, 50. In Harnett v. Yeild- ing, 2 Sch. & Lefr. 552, 553, Lord Redes- dale said : " I hare bestowed a good deal of consideration upon this case, and par- ticularly with reference to the jurisdiction exercised by courts of equity in decreeing specific performance of agreements. Whe- ther courts of equity, in their determina- tions on this subject, have always con- sidered what was the original foundation of decrees of this nature, I very much doubt. I believe that from something of habit, decrees of this kind have been car- ried to an extent which has tended to in- justice. Unquestionably, the original foundation of these decrees was simply this, that damages at law would not give the party the compensation to which he was entitled ; that is, would not put him in a situation as beneficial to him as if the agreement were specifically performed. On this ground, the "court, in a variety of cases, has refused to interfere, where from the. nature of the case the damages must necessarily be commensurate to the injury sustained ; as, for instance, in agreements for the purchase of stock, it being the same thing to the party where or from whom the stock is pur- chased, provided he receives the money that will purchase it. These cases show what were the grounds on which courts of equity first interfered ; but they have constantly held that the party who comes into equity for a specific performance must come with perfect propriety of con- duct, otherwise they will leave him to his remedy at law. He must also show that in seeking the performance he does not call upon the other party to do an act which he is not lawfully competent to do ; for, if he does, a consequence is produced that quite passes by the object of the court in exercising the jurisdiction, which is to do more complete justice. If a party is compelled to do an act which he is not lawfully authorized to do, he is exposed to a new action for damages at the suit of the person injured by such act ; and therefore, if a bill is filed for a specific performance of an agreement made by a man who appears to have a bad title, he is not compel- lable to execute it, unless the party seek- ing performance is willing to accept such a title as he can give ; and that only in cases where an injury would be sustained by the party plaintiff, in case he were not to get such an execution of the agree- ment, as the defendant can give. I take the reason to be this among others, — not only that it is laying the foundation of an action at law, in which damages may be recovered against the party, but also that it is by possibility injuring a third person, by creating a title with which he may have to contend. There is also an- other ground on which courts of equity refuse to enforce specific execution of agreements ; that is, when, from the cir- cumstances, it is doubtful whether the 704 EQtTtTT JUBISPRUDENCE. [CH. XVTTT. § 717. And this constitutes the true and leading distinction in the present exercise of equity jurisdiction in England, in regard to decreeing specific performance. It does not proceed (as is some- times erroneously supposed) upon any distinction between real estate and personal estate ; but upon the ground, that damages at law may not, in the particular case, afford a complete remedy. 1 Thus, courts of equity will decree performance of a contract for land, not because of the particular nature of land, but because the damages at law, which must be calculated upon the general value of land, may not be a complete remedy to the purchaser, to whom the land purchased may have a peculiar and special value. So, courts of equity will not generally decree performance of a contract for the sale of stock or goods ; 2 not because of their personal nature, but because the damages at law, calculated on the market-price of the stock or goods, are as complete a remedy for the purchaser, as the delivery of the stock or goods contracted for ; inasmuch as with the damages he may ordinarily purchase the same quantity of the like stock or goods. 3 party meant to contract to the extent that he is sought to be charged. All these are held sufficient grounds to in- duce the court to forbear decreeing spe- cific performance, that being a remedy intended by courts of equity to supply what are supposed to be the defects in the remedy given by the courts of law. Under these circumstances, therefore, I think considerable caution is to be used in decreeing specific performance of agreement ; and the court is bound to see that it really does that complete justice which it aims at, and which is the ground of its jurisdiction. 1 Adderley v. Dixon, 1 Sim. & Stu. 607 ; Cud v. Rutter, 1 P. Will. 570, 571; 1 Mad. Pr. Ch. 295, 296; Harnett v. Yeilding, 2 Sch. & Lefr. 553, 554 ; Dean v. Izard, and Hollis v. Edwards, 1 Vern. 159. [See Duff v. Fisher, 15 Cal. 375; McGarvey v. Hall, 23 Cal. 140.] 2 [Scott a. Billgerry, 40 Miss. 119; McLaughlin v. Piatti, 27 Cal. 451. But see Yulee v. Canova, 11 Plor. 9.] 8 Adderley v. Dixon, 1 Sim. & Stu. 607, and the cases cited in the preceding note ; post, § 717, 724. Lord Hardwicke, in Buxton v. List (3 Atk. 384), lays down the same distinction between con- tracts respecting chattels and contracts respecting lands. But he does not seem to give precisely the same reasons for the distinction. " In general," says he, " this court will not entertain a bill for a spe- • cific performance of contracts of stock, corn, hops, &c. ; for, as these are con- tracts which relate to merchandise that vary according to different times and cir- cumstances, if a court of equity should admit such bills, it might drive on parties to the execution of a contract, to the ruin of one side, when, upon an action, that party might not have paid, perhaps, above a shilling damage." "As to the cases of contracts for purchase of lands or things that relate to realities, those are of a permanent nature ; and, if a person agrees to purchase them, it is on a partic- ular liking to the land, and is quite a dif- ferent thing from matters in the way of trade." It has been very properly re-' marked by Lord Chief Baron ltichards, that the reason given by Lord Hardwicke for not entertaining jurisdiction in cases of chattels would equally apply to con- tracts for the purchase of land, which (in the present times) sinks and rises in value in an extraordinary manner. Wright v. Bell, 5 Price, 329. See also Doloret u. § 717-718.] SPECIFIC PERFORMANCE. 705 § 717 a. The truth is, that, upon the principles of natural jus- tice, courts of equity might proceed much farther, and might insist upon decreeing a specific performance of all bond fide contracts ; since that is a remedy to which courts of law are inadequate. 1 There is no pretence for the complaints, sometimes made by the common lawyers, that such relief in equity would wholly subvert the remedies by actions of the case and actions of covenant ; for it is against conscience, that a party should have a right of election, whether he would perform his covenant, or only pay damages for the breach of it. But, on the other hand, there is no reasonable objection to allowing the other party, who is injured by the breach, to have an election, either to take damages at law, or to have a specific performance in equity; the remedies being concurrent, but not coextensive with each other. 2 The restriction stands, there- fore, not so much upon any general principle ex aequo et bono, as upon the general convenience of leaving the party to his remedy in damages at law, where that will give him a clear and full com- pensation. And the true reason why a contract for stock is not now specifically decreed, is, that it is ordinarily capable of such an exact compensation. But cases of a peculiar stock may easily be supposed, where courts of equity might still feel themselves bound to decree a specific performance, upon the ground that, from its nature, it has a peculiar value, and is incapable of com- pensation by damages. 3 Indeed, it has been thought, that on con- tracts for stock, a bill ought now to be maintainable generally in equity for a specific delivery thereof, upon the ground that a court of law cannot give the property, but can only give a remedy in damages, the beneficial effect of which must depend upon the' personal responsibility of the party. 4 § 718. But although the general rule now is, not to entertain jurisdiction in equity for a specific performance of agreements respecting goods, "chattels, stock, choses in action, and other things of a merely personal nature ; 5 yet the rule is (as we have seen) Rothschild, 1 Sim. & Stu. 590; [*and (d ) ; Alley v. Deschamps, 13 Ves. 228; Kekewich v. Manning, 1 De G., M. & Gilb. For. Rom. 220. Gordon, 176, in regard to equitable 8 See Lady Arundell v. Phipps, 10 Ves. trusts']. 148 ; post, § 724; Forrest v. Elwes, 4 Ves. 1 Halsey v. Grant, 13 Ves.76, 77 ; Alley 497. v. Deschamps, 13 Ves. 228. 4 Doloret v. Rothschild, 1 Sim. & Stu. 2 1 Fonbl. Eq. PI. B. 1, ch. 1, § 5, 6, 500; post, § 724. and note (r) ; id. B. 1, ch. 3, § 2, and note 5 See 1 Mad. Pr. Ch. 320; Pooley a. EQ. JUR. — VOL. I. 45 706 EQUITY JURISPRUDENCE. [CH. XVIII. a qualified oiie, and subject to exceptions ; or, rather, the rule is limited to cases where a compensation in damages furnishes a complete and satisfactory remedy. 1 Cases may readily be enumer- ated, which are, and have been deemed, lit for the exercise of equity jurisdiction. Thus, where there was a contract for the sale of 800 tons of iron, to be paid for in a certain number of years, by instalments, a specific performance was decreed ; for such sort of contracts (it was said) differ from those which are to be imme- diately executed. 2 But the true reason probably was, that under the particular circumstances of the case, there could be no ade- quate compensation in damages at law ; for the profits upon the •contract, being to depend upon future events, could not be cor- rectly estimated by the jury in damages, inasmuch as the calcula- -tion must proceed upon mere conjecture. 3 § 719. Lord Hardwioke has himself put several cases to illus- trate the same exception. A man may contract for the purchase •of a great quantity of timber, as a ship-carpenter, by reason of the vicinity of the timber, and this may be well known and under- stood on the part of the buyer ; and then a specific performance would seem indispensable to justice. 4 On the other hand, there may be a peculiar convenience on the part of the seller ; as, if a man wants to clear his land, in order to turn it to a particular •sort of husbandry ; there, nothing could answer the justice of the •case, but the performance of the contract in specie. b Upon the same general ground, an agreement for the purchase of timber- trees, to be paid for in six annual instalments, and eight years to be allowed for disposing of the same, and articles of agreement to be drawn up accordingly, has been thought to be a fit case for a decree for specific performance ; especially as, in that case, the Budd, 7 Eng. Law & Eq. 228. Equity s Adderley o. Dixon, 1 Sim. & Stu. will not enforce contract to consign 607, 610. produce of a farm, though advances 4 Buxton v. Lister, 3 Atk. 384, 385; have been made. Hall v. Joiner, 1 Bich. Adderley v. Dixon, 1 Sim. & Stu. 607. (S. C.) n. s. 186. See Marble Co. v. s Ibid. So a bill has been maintained Ripley, 10 Wal. (U.S.) 339; Furman for the specific delivery of chattels. The v. Clark, 3 Stockt. (N. J.) 306. Nor to case made by the bill was that certain cultivate land in a particular way. specific chattels, described in an inven- Starnes o. Newsom, 1 Tenn. Ch. 239.] tory, had been placed in the possession 1 See Eden on Injunct. ch. 2, p. 27 ; of A., as agent of the plaintiff, and that Wood v. Rowcliffe, 3 Hare, 304 ; Waters A. had, in breach of the duty of an agent, v. Howard, 1 Md. Ch. Dec. 112 ; Phillips contracted to sell them to a third party. a. Berger, 2 Barb. 609 ; 8 id. 527. The court restrained the agent from 2 Taylor v. Neville, cited in 3 Atk. parting with the possession. Wood v. 384; Adderley v. Dixon, 1 Sim. & Stu. Rowcliffe, 3 Hare, 304. 610. § 718-720.] SPECIFIC PERFORMANCE. 707 agreement, contemplating future articles, might perhaps he deemed incomplete at law. 1 And, indeed, this last ground alone would be (sufficient to sustain the jurisdiction ; 2 and it has been adopted on iother occasions. 3 [* 719 a. And it has been recently decided, in one of the Vice- Chancellor's courts, that specific performance of a contract for the sale of a chattel will be decreed where pecuniary damages would ■not be an adequate compensation, as where the article is of unusual distinction and curiosity, and of doubtful value. 4 § 719 b. And in another more recent case 5 it was said the courts ■of equity ihave jurisdiction to. order the delivery up to an artist of a picture painted by ;himself, as having a special value, and the legal remedy being inadequate. But where by the terms of an agreement, and the frame of the pleading, an artist, seeking such restitution, had, in effect, put a fixed price upon the picture, the court considered that the recovery of damages would be an ade- quate remedy, and that there was no jurisdiction in a court of equity to interfere.] § 720. Other illustrations may be found in cases, not merely of Bales, but of matters peculiarly resting in contracts of a very dif- ferent nature. Thus, where a covenant was made, in a lease of some alum works, to leave a certain stock upon the premises, a specific performance was decreed; because the trade would be greatly damaged if the covenant was not specifically performed, contrary to the real justice of the case between the parties ; and the landlord had stipulated for a sort of enjoyment of the premises after the expiration of the lease. 8 [So, where A. agreed with B. to furnish a quantity of fruit-trees, and B. agreed to plant and cultivate them on his own farm and sell the fruit on joint account during the life of the trees ; but before that time B. died, and his administrator sold his right to C, C. was allowed to file a bill for 1 Buxton w.. Lister, 3 Atk. 382, 385. Kindersley, is the true ground of distinc- 2 See Doloret v. Rothschild, 1 Sim. & tion in regard to granting or denying spe- Stu. 590. cific performance of contracts, whether 3 Wright v. Bell, 5 Price, 325, 332. with reference to real or personal estate. 4 [* Balcke v. Gray, 5 Jur. n. s. 645y See the language of Lord Redesdale, in Perhaps it will enable us to appreciate Harnett v. Yeilding, 2 Sch. & Lefr. 548, the basis of this decision more fully, to 553; ante, § 716; post, § 723. bear in mind that the articles sold were 6 Dowling v. Betjemann, 2 Johns. & H. two ancient China jars, which were so 544 ; s. c. 8 Jur. n. s. 538.] nearly unique that it was impossible to 6 Ward v. Duke of Buckingham, cited say what priGe they would bear in the 3 Atk. 385 ; s. c. 10 Ves. 161. market. And this, says Vice-Chancellor 708 EQUITY JURISPRUDENCE. [CH. XVIII. a specific performance, and for an account and payment of half the net proceeds of the sale. 1 So where a person pledged his growing crops to his agent who was to advance money and accept drafts drawn thereon, and the person died insolvent, and largely indebted to his agent, the latter obtained a judgment for a specific perform- ance of the contract, and the crops were ordered to be forwarded to him. 2 ] § 721. Of the like nature are the common cases of covenants between landlords and tenants, where injunctions, in the nature of a specific performance, are often decreed ; as, for instance, cove- nants not to remove manure or crops at the end of a lease [covenants to use the demised premises only for a certain busi- ness 3 ] ; covenants not to plough meadow ; covenants not to dig gravel, sand, or coal. In all cases of this sort, although the court acts merely by injunction, to prevent the breach of the particular covenant, it in effect secures thereby a specific performance ; and it may at once be seen, that such interposition is indispensable to prevent irreparable mischief. 4 § 721 a. Indeed, it may be laid down as a general rule, that it is competent for the court to interfere to enforce the specific per- formance of a contract by the defendant to do definite work upon his property, in the performance of which the plaintiff has a material interest, and one which is not capable of an adequate compensation in damages. A recent case furnishes a very satis- factory illustration of this doctrine; where a railway company undertook to build and maintain an archway on the pleasure- grounds of the plaintiff through which the railway was to pass, upon his withdrawing all opposition, and to make it sufficient to permit a loaded carriage to pass under. A specific performance was decreed. 6 1 [McKnight v. Robbins, 1 Halstead, id. ch. 10, p. 198, 199, and cases there Ch. 229, 642. cited ; Bathurst v. Burden, 2 Bro. Ch. 64 ; 2 Sullivan v. Tuck, 1 Md. Ch. Dec. 59. City of London v. Pugh, 3 Bro. Pari. Cas. But see Hall v. Joiner, 1 Rich. (S. C.) 374; s. c. 4 Bro. Pari. Cas. 395, by Tom- n. o. 186. So an agreement to deliver a lins ; post, § 929, 958. [So an agreement specified quantity of clay annually at a not to erect a, dam on defendant's own fixed price, and in mean time not to sell land may be enforced. Barnes v. Barnes, to other parties, there being part per- 65 N. C. 261. So a covenant for renewal formance. Furman v. Clark, 3 Stockt. in a lease was specifically performed. (N. J.) 306. But see Starnes v. Newsom, Clark v. Clark, 9 Cal. 586.] 1 Tenn. Ch. 239.] 5 Storer v. The Great Western Eail- 8 [Stewardw.Winter,4Sandf.Ch.587.] road Co., 2 Y. & Coll. New E. 48, 53; * See Eden on Injunct. ch. 2, p. 27; [Wilson v. Purness E. Co., L. E. 9 Eg,. § 720-722.] SPECIFIC PERFORMANCE. 709 § 722. Cases of agreements to form a partnership, and to exe- cute articles accordingly, may also be specifically decreed, although they relate exclusively to chattel interests ; for no adequate com- pensation can, in such cases, be made at law. 1 Upon the like ground courts of equity will decree the specific performance of a covenant for a lease, or to renew a lease 2 [so, of a contract to insure against loss by fire 3 ] ; so, of a contract for the sale of the good-will of a trade, and of a valuable secret connected with it ; * or for a barge, stores, &c. 5 [so, of a contract to assign an agree- ment between the defendant and a stranger, for service to be per- formed by plaintiff, on a stipulated compensation 6 ] ; so, of a contract to keep the banks of a river in repair ; 7 so, of a contract to pay the plaintiff an annual sum for life, and a certain other sum for every hundred-weight of brass wire manufactured by the defendant during the life of the plaintiff ; 8 so, of a contract for the 28; Greene v. West Cheshire R. Co., L. R. 13 Eq. 44. See Hood v. North- Eastern R. Co., L. R. 5 Ch. App. 525. It seems the public convenience cannot be alleged as an excuse. Raphael v. Thames Valley R. Co., L. R. 2 Ch. App. 147, overruling s. c. 2 Eq. 37-1 1 Buxton v. Lister, 3 Atk. 385; Anon., 2 Ves. 629 ; Birchett v. Boiling, 5 Munf. 442; Story on Partnership, § 188, 189; England v. Curling, 3 Beavan, 129 ; ante, § 666-668 a; [Whitworth v. Harris, 40 Miss. 483. Equity will not enforce an agreement to enter into a partnership, if no time is named. Buck v. Smith, 29 Mich. 166; Richmond v. Dubuque R.R. Co., 33 Iowa, 422.] 2 Furnival v. Carew, 3 Atk. 83, 87; Tritton v. Eoote, 2 Bro. Ch. 636 ; s. u. 2 Cox, 174 ; Russell v. Darwin, cited in note, 2 Bro. Ch. 639 ; Burke v. Smyth, 3 J. & L. 193 ; Newland on Contracts, ch. 6, p. 95 to 103 ; 5 Vin. Abridg. 548, pi. 4. [But a covenant between landlord and tenant to extend a lease, which does not fix the amount of rent, cannot be enforced in equity. Robinson o. Kettletas, 4 Edw. Ch. 67 ; Whittock v. Duffield, 1 Hoff. Ch. 100. A covenant to renew a lease, simply, at a certain rent, does not carry any of the covenants of the old lease with it. Willis v. Astor, 4 Edw. Ch. 594.] Where there was an agreement for occupancy for three years, with option in tenant to take a lease for a term at end of the three years' occupancy, and the tenant con- tinued to occupy as tenant from year to year four years after the expiration of the three years' occupancy : Held, he could still compel the landlord to give a lease, the landlord not having called upon him to exercise his option. Moss v. Bar- ton, L. R. 1 Eq. 474. See Buckland v. Papillon, L. R. 2 Ch. App. 67. Eor cases where specific performance of agreements for leases was refused on various grounds, see Moore v. Marrable, L. R. 1 Ch. App. 217 ; Myers v. Forbes, 24 Md. 598 , Gel- ston v. Sigmund, 27 Md. 334 ; Hopkins v. Gilman, 22 Wise. 476; McICibbin v. Brown, 1 McCart. (N. J.) 13. 3 Taylor o. Merchants' Fire Ins. Co., 9 How. U. S. 390 ; Neville o. Merchants', &c, Ins. Co., 19 Ohio, 452 ; Carpenter v. Mutual Safety Ins. Co., 4 Sandf. Ch. 408. 4 Bryson v. Whitehead, 1 Sim. & Stu. 74. But see Baxter v. Conolly, 1 Jac. & Walk. 576; Coslake v. Till, 1 Russell, 378. 6 Claringbould v. Curtis, 11 Eng. Law & Eq. 197. 6 Woodward v. Aspinwall, 3 Sandf. S. C. 272. 7 Kilmorey v. Thackeray, cited 2 Bro. Ch. 65; id. 343. 8 Ball v. Coggs, 1 Bro. Pari. Cas. 140 [296], cited 1 Sim. & Stu. 607. 710 EQUITY JURISPRUDENCE. [CH. XVIII. sale of an annuity payable out of the dividends of stock ; 1 so, of a covenant upon the grant of an annuity to charge the same upon* all the property of which the grantor should be possessed at the death of the annuitant, if the grantor should survive him 2 [so, of a contract to discharge a judgment debt upon receipt of a third person's promissory note for a portion of the amount 3 ] ; so, of a contract for the sale of debts proved under a commission of bank- ruptcy, where an assignment of the debt had not been already executed. 4 § 722 a. In like manner, although where one partner contracts that he will exert himself for the benefit, of the partnership, a court of equity cannot compel the specific performance of that, part of the agreement, 5 yet, if he has also covenanted that he will not carry on the same trade with other persons, there being a. partnership subsisting, the court will restrain him from breaking that part of the agreement. 6 So, if a party covenants, that he will not carry on his trade within a certain distance or in a cer- tain place, within which the other party carries on the same trade, a court of equity will restrain the party from breaking the agree- ment so made. In each of these cases, the decree operates, pro tanto, as a specific performance. 7 The ground of all these deci- sions is the utter uncertainty of any calculation of damages, as they must in such cases be in a great measure conjectural; or that some further act is necessary to' be done to clothe the defendant with a full and effective title to support his claim. 8 § 723. Where the specific performance of a contract respecting, chattels will be decreed upon the application of one party, courts of equity will maintain the like suit at the instance of the other party, although the relief sought by him is merely in the nature of a compensation in damages or value ; for, in all such cases, the court acts upon the ground that the remedy, if it exists at all,. i Withy v. Cottle, 1 Sim. & Stu. 174. gage. "Weir v. Mundell, 3 Brews. (Perm.). See also Pritchard a. Ovey, 1 Jac. & 694.] Walk. 396. 5 [Richmond v. Dubuque E.R. Co., 33 2 Lyde v. Mynn, 1 Mylne & Keen, 683. la. 432-1 3 Phillips v. Berger, 2 Barb. 609 ; 8 id. » Kemble »-. Kean, 6 Simons, 333. See &27. Lumley v. Wagner, 16 Jurist, 871; 13 i Adderley v. Dixon, 1 Sim. & Stu. Eng. Law & Eq. 252 ; 1 De G., M. & G. 604 ; 607 ; Wright v. Bell, 5 Price, 325. [So of 5 De G. & S. 485 ; Stocker v. Brocklebank, a contract by vendor to pay off mortgage. 6 Eng. Law & Eq. 67. Barkley v. Barkley, 14 Rich. (S. C.) Eq. i Ibid. 12 ; Bennett v. Abrams, 41 Barb. (N. Y.) 8 Adderley v. Dixon, 1 Sim. & Stu. 619. So to give partial release of mort- 607 ; post, § 729, 785. § 722-724.] SPECIFIC PERFORMANCE. 711 ought to be mutual and reciprocal, as well for the vendor as for the purchaser. 1 § 724. Indeed, a disposition has been evinced, on various occa- sions, to apply the jurisdiction to a much larger extent. 2 Thus, although the doctrine seems well settled, that a contract for the sale of stock will not now be decided to be specifically performed, because it is ordinarily capable of an exact compensation in dam- ages ; 3 yet it is well known, that, as late as Lord Hardwicke's time, such contracts were so decreed in chancery. 4 And, even in our own times, it has been held, that a bill will lie for a specific performance of a contract for the purchase of government stock in favor of a holder of scrip receipts, purporting to give the title to the bearer thereof, where the bill prayed for the delivery of the certificates, which gave the legal title to the stock, upon the ground that a court of law could not give the property ; but could only give a remedy in damages, the beneficial effect of which must i Withy v. Cottle, 1 Sim. & Stu. 174 ; Adderley v. Dixon, 1 Sim. & Stu. 607; Forrest v. Elwes, 4 Ves. 497 ; Lewis b. Lechmere, 10 Mod. 506; Newland on Contracts, ch. 6, p. 91 ; Brown v. Haff, 5 Paige, 235 ; Cathcart v. Robinson, 5 Peters, 264 ; ante, § 711 ; post, § 790, 796 ; Phillips V. Berger, 8 Barbour, 528 ; Hamblin v. Binneford, 2 Edw. Ch. 531; Flight v. Bolland, 4 Russ. 298 ; ante, § 716, 719 a. [That vendor of real estate may hare specific performance, see Old Colony R.R. v. Evans, 6 Gray, 25 ; Springs v . Sanders, Phil. (N. C.) Eq. 67; Hopper v. Hopper, 1 C. E. Creen, 147 ; Schroeppel v. Hopper, 40 Barb. (N. Y.) 425. But see Kauffman's Appeal, 55 Penn. St. 383 ; Tarr o. Scott, 4 Brews. Pa. 49.J 2 Mr. Cox, in his note to Cud v. Rutter, 1 P. Will. 571, note 2, says : " But cases of this kind depend so much on their own particular circumstances, that it seems no general rule can be laid down." And Lord Redesdale, in a note to his Treatise on Equity Pleadings, admits, that it is difficult to reconcile all the cases, in which the courts of equity have compelled the performance of agreements, or refused so to do ; and in some cases, where per- formance has been denied, it is difficult to reconcile the decisions with the principles of equal justice. Mitf. Eq. PI. by Jeremy, p. 119, note {q). Still, perhaps, the equity jurisprudence of England, on this subject, does not deserve the severe reproach of being " the caprices of the English law, in regard to specific performance." See Mr. Austin's Province of Jurisprudence, and the Outline appended, cited in the English Law Magazine, Vol. XII. p. 235. The able article in that volume on this subject did not fall under my immediate notice until the main body of these remarks was, written. I am glad to find that the au- thor takes the same view of this matter of equity jurisdiction in cases of a specific performance of contracts respecting chat- tels, which is to be found in the text. It does not strike me that the doctrines maintained in equity are either incon- gruous or indefensible upon principle. There may be some discrepancies in the authorities ; but the main doctrines stand upon the fundamental rule of equity juris- prudence, that there is not a plain, ade- quate, and complete remedy at law. 8 Cud v. Rutter, 1 P. Will. 570, 571 ; Nutbrown v. Thornton, 10 Ves. 161 ; Mason v. Armitage, 13 Ves. 37 ; Dorison v. Westbrook, 5 Vin. Abridg. 540, pi. 22 ; Capper v. Harris, Bunb. 135; Ferguson v. Paschall, 11 Miss. 267. 4 Nutbrown v. Thornton, 10 Ves. 161. See also Gardner v. Pullen, 2 Vern. 394 ; Forrest v. Elwes, 4 Ves. 497. 712 EQUITY JURISPRUDENCE. [CH. XVIII. depend upon the personal responsibility of the party. 1 If this, however, be a sufficient ground to entertain the jurisdiction, it seems universally applicable to all bills for a specific performance. [In cases of a trust created in relation to particular chattels, also, a bill in equity will lie to enforce the trust, and compel a transfer of the property, even although it be bank shares. 2 Thus, where A. sold 500 tons of iron stacked on his wharf to B., and in consid- eration of a bill accepted by a third party, gave an acknowledg- ment agreeing to deliver the iron to bearer, " as he, A., had been paid for the same," and B. mortgaged the iron, A. was held to be a trustee of the iron, and not allowed to retain it in a suit in equity by the mortgagee. 3 ] In the Supreme Court of the United States, an inclination has been evinced to maintain a far more extensive jurisdiction in equity to grant relief by a specific per- formance in contracts respecting personal chattels, than is at pres- ent exercised in the English courts. 4 [* § 724 a. The present rule of the English chancery is that a specific performance of a contract to convey shares in a railway, or other private corporation, will be decreed, upon the ground that such shares are of uncertain value, and not always readily obtainable in the market. 5 But it has been decided that a specific performance of a contract to convey public stocks will not be decreed, unless under peculiar circumstances, because the value of such stocks is fixed, and it may always be procured in the market. 6 This subject has been recently discussed in the English Court of 1 Doloret v. Rothschild, 1 Sim. & Stu. creed of the sale of scrip. Columbine v. 690. Besides the ground stated in the Chichester, 2 Phillips, Ch. 27.] text, Sir John Leach added : " I consider 2 [Cowles v. Whitman, 10 Conn. 121. also thatthe plaintiff, not being the origi- So of a vessel. Clark v. Flint, 22 Pick, nal holder of the scrip, but merely the 231. bearer, may not be able to maintain any 8 Pooley v. Budd, 7 Eng. Law & Eq. action at law upon the contract ; and that, 229 ; 14 Beav. 34.] if he has any title, it must be in equity." 4 Barr v. Lapsley, 1 Wheat. 151 ; Me- Ibid. p. 598 ; ante, § 717 and 717 a. Even chanics' Bank of Alexandria i>. Seton, 1 in regard to stock, a specific performance Peters, 305. is sometimes decreed in equity. As, for 6 [* Duncuft v. Albrecht, 12 Simons, instance, if a trustee of stock sells it, 189 ; 1 Eedfield on Railw. § 38. a cestui que. trust has an option, either to 6 Redfield on Railw. § 38, and notes, have it replaced in stock, or the money See also Nutbrown o. Thornton, 10 Ves, produced by it with interest. Forrest v. 159, 161 ; Cud v. Rutter, 1 P. Will. 570 Elwes, 4 Ves. 497. [See also Jackson v. Doloret v. Rothschild, 1 S. & S. 590 ; Ad- Cocke, 4 Beavan, 59 ; Duncuft v. Albrecht, derley i\ Dixon, id. 607 ; Adams, Eq. (ed. 12 Simons, 189 ; Fyfe o. Swaby, 8 Eng. 1859) 83, and notes. See also Colt v. Net- Law & Eq. 184. But it is doubtful terville, 2 P. WiU. 305. whether specific performance will be de- § 724-724 b.] specific performance. 713 Chancery Appeal, 1 and the same rule declared which is stated above. But in that case the plaintiff failed to obtain a decree, for the reason that he had already conveyed the stock to the defendant's vendee, in ignorance that the defendant was the real purchaser ; and the matter having lain by for a whole year, it now seemed impossible to say that the plaintiff had made, or could make, good title to the stock, which is always an insuperable barrier to a decree for specific performance. The latest case upon the subject in the English Court of Chancery Appeal holds, that an agreement to accept a transfer of railway shares, on which nothing had been paid, was not nudum pactum, but a contract which may be specifically enforced in equity. Lord Chelmsford, in delivering his judgment, quotes with approbation the words of the Vice-Chancellor of England, in Duncuft v. Albrecht. " There is not any kind of analogy," said that learned judge, " between a quantity of three per cent, or any other stock of that description (which is always to be had by any person who chooses *to apply for it in the market), and a certain number of railway shares of a particular description, which railway shares are limited in num- ber, and which are not always to be had in the market." This is the latest authoritative declaration of the English equity courts upon the subject. 2 § 724 b. The same rule is extensively practised upon in the American courts. 3 But the construction and effect of contracts for transferring shares in joint-stock companies are regulated to a very large extent by the customs and usages of the stock ex- change in England, and we have no reason to question that the same effect will be given to such usages in the American courts. These purchases are always made subject to the risk of future calls. 4 Where the name of an agent is entered upon the registry of shares without his consent, express or implied, he will be en- 1 Shaw v. Fisher, 5 De G., M. & G. There has been a similar decision by the 696 ; SulliVan v. Tuck, 1 Md. Dec. Ch. Supreme Court of Massachusetts, which 59 ; Waters v. Howard, id. 112 ; McGowin is not yet reported, it is understood. v. Remington, 12 Penn. St. 56. See also 8 Leach v. Fobes, 11 Gray, 506 ; Todd upon the subject of specific performance v. Taft, 7 Allen, 371. [See Treasurer v. in courts of equity, Adams, Eq. (ed. 1859) Commercial, &c. Co., 23 Cal. 390. But 77-91, and cases cited ; Carpenter v. Ins. see Ross v. Union Pac. R.R., Woolw. C. Co., 4 Sandf . Ch. 408 ; Lowry v. Muldrow, C. R. 26.] 8 Rich. Eq. 241. See also Leach v. Eobes, * Hawkins v. Maltby, Law Rep. 3 Ch. 1 1 Gray, 506. App. 188 ; s. c. Law Rep. 4 Eq. 572 ; Law 2 Cheale v. Kenward, 3 De G. & J. 27. Rep. 6 Eq. 535. 714 EQUITY JURISPRUDENCE. [CH. XVIII. titled to. redress and indemnity. 1 Bat where one who is entered as purchaser of shares in the transfer, and does not inform the vendor of his not being the actual purchaser in a reasonable time, he will be precluded from denying that he was the purchaser of the shares, and he will be bound to indemnify the vendor against future calls, and to pay costs accruing to the vendor. 2 On the mortgage of shares it seems that by the custom of the stock ex- change the mortgagee is not justified in trading with the same, but must return the identical shares and all gain made in the use of them. 3 ] § 725. Some of the cases already stated are not purely cases respecting the sale, transfer, or enjoyment of personal chattels; but may properly be deemed to involve personal acts and proceed-, ings. But it is difficult to. separate the one class entirely from the other ; and they naturally flow into each other. In regard, however, to contracts for personal acts and proceedings, there is some diversity of judgment in the authorities, as to the cases and circumstances in which a specific performance ought to be decreed in equity. 4 Thus, for example, it. has been a matter of some con- flict of opinion, how far courts of equity ought to entertain a suit for the specific performance of a covenant to build or rebuild a house of a -specified form and size on particular land. In the, earlier cases, the jurisdiction was maintained ; 5 and Lord Hard- wicke recognized it in its full extent, at the same time that he. denied that a covenant to repair a house ought to be specifically performed. 6 The ground of his opinion in the particular case (which was between landlord and tenant) was, that the not build- ing takes away the security of the landlord ; but that, upon the covenant to repair, he might have a remedy at law. 7 1 Paine v. Hutchinson, Law Rep. 3 Ch. * Equity will not enforce a contract App. 388. for the personal services of an actor. 2 Shepherd v. Gillespie, Law Hep. 3 Ford v. Jerraon, 6 Phila. 6.] Ch. App. 764 ; s. c. Law Rep. 5 Eq. 293. « Holt v. Holt, 2 Vera. 322 ; Allen v. Upon the general question of the effect of Harding, 2 Eq. Abridg. 17, pi. 6 ; 1 Fonbl. the custom of the stock exchange upon Eq. B. 1, ch. 3, § 7, note (x). contracts of this kind, see Shepherd's 6 City of London v. Nash, 3 Atk. 512, case, Law Rep. 2 Ch. App. 16 ; Evans v. 515 ; Pembroke v. Thorpe, 3 Swanst. 437, Wood, Law Rep, 5 Eq. 9; In re Overend, note ; Rook v. Worth, 1 Ves. 461 ; Mosely Gurney & Co., id. 193 ; Cruse v . Paine, v. Virgin, 3 Ves. Jr. 184, 185, 186 ; 3 Law Rep. 6 Eq. 641. For a case where Wooddes. Lect. 58, p. 465. specific performance was, under peculiar 1 Ibid. ; Hill v. Barclay, 16 Ves. 403, circumstances, refused, see Ex parte Lon- 406 ; Rayner v. Stone, 2 Eden, 128. But don Bank of Scotland, L. R. 12 Eq. 268. see Jeremy on Eq. Jurisd. B. 3, Pt. 2, ch. 4, 3 Langton u. Waite, Law Rep. 6 Eq. § 1, p. 442. 165. § 724 5-728.] specific perfobmance. 715 § 726. On the other hand, in later cases, this doctrine has been expressly denied ; and it has been said, that no such covenant ought to be enforced specifically in equity ; for if one will not, build, another may. There can be a full compensation at law in damages; and courts of equity ought not to undertake the conduct of a building or rebuilding, any more than of repairs. 1 Upon similar grounds,, a covenant to make good a gravel-pit at the expiration of a lease, has been refused to be specifically decreed. 2 § 727. Still, however, the doctrine, as to a covenant to build or rebuild,, can hardly be considered even now as completely settled against the jurisdiction (although the doctrine as to repairs cer- tainly is s )i) since Lord Rosslyn, in one of his leading judgments, maintained,, that where the covenant to build or rebuild had a definite certainty as to size,, materials* &c;, it ought to be de- creed in equity to be specifically performed. But, if it was loose, general, or uncertain, there it ought to be left to a suit for damages _at law. 4 This decision, although questioned ab the bar, has never been overruled; and, indeed, it has incidentally re- ceived some confirmation from the reluctance of courts of equity to shake it. 5 § 728. Independently of authority, there are certainly strong reasons which may be adduced in favor of entertaining the juris- diction in equity upon a covenant to build or rebuild, in cases where the contract has sufficient definiteness and certaint} r . In the first place, it is by no meas clear, that complete and adequate compensation can, in such cases, be obtained at law ; for, if the 1 Errington v. Aynesly, 2 Bro. Ch. 343 ; cally the whole contract, it would not Lucas v. Comerford, 3 Bro. Ch. 167 ; s. c. enjoin the assignee from selling the yard,, 1 Ves. Jr. 235. But see Mosely v. Virgin, though B. was thereby deprived of the 3 Ves. 184, 185, 186; Flint v. Brandon, privilege of entering, &c. Merchants' 8 Ves. 150, 163, 164. [See Moore v. Creg, Trading Co. v. Banner, L. R. 12 Eq. 18-1 12 Jurist, 952, where Lucas v. Comerford 4 Mosely v. Virgin, 3 Ves. Jr. 185. is disapproved.] 5 Flint v. Brandon, 8 Ves. 159, 164. 2 Flint v. Brandon* 8 Ves. 163, 164. [In Wilkinson ». Clements, L. R. 8 Ch. 8 See Rayner v. Stone, 2 Eden, 128, App* 96, it is said to be settled, as a gen- and the Reporter's motes, id. 130 ; Hill v. eral rule, that equity will not enforce the. Barclay, 16 Ves. 405> 406. [Where A. building of houses ; but, in this case, the contracted to alter a ship in a particular party building having performed his part, way for B., with a provision that on de- had a decree against the other party, fault B. might enter on the yard, and And see Phillips v. Soule, 9 Gray, 233 ; complete the ship, and A. become bank- Brace v. Wehnert, 25 Beav. 348 ; Oxford rupt before the work was done : Held, v. Provand, L. R. 2 P. C. 135. And see that as equity could not enforce specifU ante, § 721 a, note.] 716 r EQUITY JURISPRUDENCE. [CH. XVIII. suit is brought before any building or rebuilding by tbe party claiming the benefit of the covenant, the damages must be quite conjectural, and incapable of being reduced to any absolute cer- tainty ; and if the suit is brought afterwards, still the question must be left open, whether more or less than the exact sum re- quired has been expended upon the building, which inquiry must always be at the peril of the plaintiff. 1 In the next place, such a covenant does not admit of an exact compensation in damages from another circumstance, — the changing value of the stock and materials at different times, according to the various demands of the market. In the last place, it seems against conscience to compel a party, at his own peril, to -advance his own money to perform what properly belongs to another, when it may often happen, either from his own want of skill or means, that, at every step, he may be obliged to encounter personal obstacles, or to make personal sacrifices, for which no real compensation can ever be made. It would not, therefore, be surprising, if, after all, the doctrine of Lord Rosslyn should obtain a firm hold in equity jurisprudence, as it stands well supported by analogy,, as well as by high authority. 2 The just conclusion, in. all such cases, would seem to be, that courts of equity ought not to decline the jurisdiction for a specific performance of contracts, whenever the remedy at law is doubtful in its nature, extent, operation, or adequacy. 3 1 See Bettesworth v. Dean of St. Paul's, So award that railway company should Sel. Cas. in Ch. 68, 69. allow plaintiff to use their track, &c. 2 Ante, § 727. Blackett v. Bates, L. R. 1 Ch. App. 117. 3 .See Stuyvesant r. Mayor, &c., of So agreement to transport all plaintiff's New York, 11 Paige, 414. [Contracts for freight, &c. Atlanta, &c. R.R. v. Speer, sale of patent rights may be specifically 32 Geo. 550. So agreement to build a enforced. Corbin o. Tracy, 34 Conn, railroad. Ross v. Union Pac. R.R., 325; Ely v. McKay, 12 Allen, 323; Bin- Woolw. C. C. R. 26; Fallon v. Railroad ney v. Annan, 107 Mass. 94. So for con- Co., 1 Dill. C. C. R. 121. And see Port veyance of an interest in a ship under Clinton, &c. R.R. o. Cleveland, &c. R.R., peculiar circumstances involving a trust. 13 Ohio (s. s.), 544. And see Cinn., Peer v. Kean, 14 Mich. 354. So agree- &c. R.R. v. Washburn, 25 Ind. 259 (agree- ment of partner to offer his interest to ment to fence) ; Columbus, &c. R.R. other partners, before selling to a v. Wat6on, 26 Ind. 50 (agreement to stranger. Homfray v. Fothergill, L. R. keep cattle guards in repair). So con- 1 Eq. 567. See Vickers v. Vickers, L. R. tract for delivery and selection of Mar- 4 Eq. 529. Equity will not enforce per- ble, &c. Marble Co. v. Ripley, 10 Wal. formance of continuous duties. So cov- (U. S.) 339. An agreement for delivery enant to work coal mines efficiently, ac- up of promissory notes was enforced cording to approved practice : specific specifically. Tuttle v. Moore, 16 Minn, performance refused. Whcatly v. West 123. Where a note is made payable ex- minster, &c. Coal Co., L. R. 9 Eq. 538. pressly in gold, and the currency has de- § 728-730.] specific performance. 717 § 729. In regard to many other contracts for personal acts and proceedings, which are of a very different character, similar obser- vations may apply. 1 Thus, for instance, a covenant to renew a lease, will, as we have seen, be specifically decreed. 2 So a cove- nant to levy a fine of an estate ; for it may be indispensable as muniment of title. So, a covenant to invest money in lands, and settle it in a particular manner. 3 So, an agreement to settle the boundaries between two estates. 4 So, an agreement for the grant of an annuity, or to charge it on land. 5 So, an agreement to indorse a bill of exchange, or promissory note, upon a transfer thereof, when it has been omitted by design, or accident, or mis- take. 6 [So, of a will directing slaves to be sent to Liberia, on their election to go. 7 } So, an assignment of an expectancy, if made upon a valuable consideration. 8 Many other cases might easily be put to illustrate the same doctrine ; as the case of a cove- nant not to build upon a contiguous estate, to the injury of an ancient messuage; of a covenant. not to cut down timber-trees, which are peculiarly ornamental to the mansion of the covenantee ; of a covenant not to erect any noisome or injurious manufacturing establishment on an estate adjacent to that of the covenantee ; of a covenant not to carry on the same trade with the covenantee in the same street or town ; and of a covenant, that a house to be built adjacent to other houses should correspond with them in its elevation. 9 § 730. Courts of equity will, upon analogous principles, inter- preciated, it seems equity will enforce 4 Newland on Contracts, eh. 6, p. 109 ; specific performance. Hord o. Miller, 2 Penn. v. Baltimore, 1 Ves. 444 ; post, § 785. Duv. (Ky.) 103. But see Howe v. Nick- 5 Wellesley v. Wellesley, 4 Mylne & erson, 14 Allen, 400. Where real and Craig, 554, 559 ; Lyde v. Munn, 4 Sim. personal property are sold together for a 505 ; s. c. 1 Mylne & Keen, 683. lump sum, the vendor will not be obliged 6 Watkins i>. Maule, 2 Jac. & Walk, to convey the land, before receiving the 242 ; ante, § 99 6. whole price. McComas v. Easley, 21 7 Graham v. Sam, 7 B. Monroe, 403. Gratt. 23. And see Patterson v. Bloomer, 8 An assignment of an expectancy is 35 Conn. 57. A contract for sale of realty an agreement to assign the interest. If and personalty, where the sale of the made for a valuable consideration, it realty is the principal thing, may be en- may be enforced in equity ; otherwise it forced as a whole. Leach v. Fobes, 11 may not. Meek v. Kettlewell, 1 Phillips, Gray, 506. And see Richardson v. Smith, Ch. 342. See Trull v. Eastman, 3 Met. L. B. 5 Ch. App. 648.] 121. [See Power's Appeal, 63 Penn. St. 1 See Eden on Injunct. ch. 2, p. 27. 443 ; Mastin v. Marlow, 65 N. C. 695 ; 2 Ante, § 722; Eurnival v. Carew, 3 Bayler v. Commonwealth, 40 Penn. St. Atk. 87; Newland on Contracts, ch. 6, 37. But see Lowry u. Spear, 7 Bush p. 96 to 203; 1 Mad. Pr. Ch. 309. (Ky.), 451.] 8 Newland on Contracts, ch. 6, p. 109 ; 9 Franklin v. Tuton, 5 Mad. 469 ; post, 1 Mad. Pr. Ch. 312 ; post, § 785. § 926 a. 718 EQUITY JURISPRUDENCE. [CH. XVIII. pose in many cases, to decree a specific performance of express, and even of implied contracts, where no actual injury has as yet been sustained, but it is only apprehended from the peculiar rela- tion between the parties. This proceeding is commonly called a bill quia timet, in analogy to some proceedings at law, where, in some cases, a writ may be maintained before any actual molesta- tion, distress, or impleading of the party. 1 Thus, as we have seen, a surety may file a bill to compel a debtor, on a bond in which he has joined, to pay the debt when due, whether the surety has been actually sued or not. 2 And upon a covenant to save harmless, a bill may be filed to relieve the covenantee under similar circum- stances. 3 So where property is covenanted to be secured for cer- tain purposes, and in certain events, and- there is danger of its being alienated or squandered, courts of equity will interpose to secure the property for original purposes. 4 And, generally, it may be stated, that in cases of contracts, express or implied, courts of equity will interpose to preserve the funds devoted to particular objects under such contracts, and decree, what in effect is a specific performance, security to be given, or the fund to be placed under the control of the court. 5 This subject will present itself in some other aspects hereafter; and does not, therefore, require a fuller development in this place. § 731. There is another sort of contract, respecting which there has been no small diversity of opinion, whether a specific perform- ance ought to be decreed or not. It is where a husband covenants that his wife shall levy a fine, or execute any other lawful convey- i Co. Litt. 100 a ; Mitf. Eq. PL by * Ibid. ; 1 Fonbl. Eq. B. 1, ch. 1, § 8, Jeremy, 148; 1 Mad. Pr. Ch. 178, 179; and note (y). Where a party has agreed post, § 825, 826, 850. to execute a mortgage on an advance of 2 Ante, § 327, 722, 729 ; post, § 849, 850 ; money, and has refused to perform the Mitford, Eq. PI. by Jeremy, 148 ; Hayes agreement, a court of equity will often, v. Ward, 4 Johns. Ch. 132 ; Ranlagh v. upon a bill for a specific performance, Hayes, 1 Vern. 189, 190 ; s. c. 2 Ch. Cas. and praying for a receiver, order a re- 146; Barnesley «. Powell, 1 Ves. 283, 284 ; ceiver to be appointed. In such a case, Flight v. Cook, 2 Ves. 619 ; 1 Fonbl. Eq. the bill is in the nature of a bill quia timet, B. 1, ch. 1, § 8, and note (y) ; Baker v. so far as a receiver is prayed for. Shake! Shelbury, 1 Ch. Cas. 70; Champion a. v. Duke of Marlborough, 4 Mad. 463; Brown, 6 Johns. Ch. 398, 406, 407 ; Lee post, § 845, 846, 847, 850. [See as to spe- v. Rook, Moseley, 318. cific performance of agreements for mort- « Ibid. ; post,- § 786, 849, 850; Cham- gages, Ashton v. Corrigan, L. R. 13 Eq. pion v. Brown, 6 Johns. Ch. 398, 406. 76; Hermann v. Hodges, L. R. 16 Eq. 18 ; « Flight v. Cook, 2 Ves. 619 ; Green v. De Pierres v. Thorn, 4 Bosw. (N. Y.) 266 ; Pigot, 1 Bro. Ch. 108 ; Brown v. Dud- City, &c, Ins. Co. v. Olmstead, 33 Conn, bridge, 2 Bro. Ch. 321 ; Mitf. Eq PI. by -476 ; St. Paul Division v. Brown, 11 Minn. Jeremy, 148. 356 ; McClintock o. Laing, 22 Mich. 212.] § 730-733.] specific performance. 719 ance, to bar her right in his estate, or in her own estate. There are many cases in which covenants of this sort have been decreed to be specifically performed. And, on one occasion, Sir" Joseph Jekyll, Master of the Rolls, said, " There have been a hundred precedents, where, if the husband, for a valuable consideration, covenants that the wife shall join him in a fine, the court has decreed the husband to do it, for he has undertaken it, and must lie by it, if he does not perform it." 1 § 732. The reason is said to be, because in all such cases it is to be presumed that the husband, when he enters into such a cove- nant, has first gained the wife's consent for that purpose. 2 But this reason is a very insufficient one for so strong a doctrine, for it may be a presumption entirely against the fact, and if correct at -the time, the wife may have subsequently withdrawn her consent, and refused, upon very proper grounds, to comply with the cove- nant. Let us suppose a case in which either there has been no consent, or it has been thus withdrawn ; it may then be asked, and indeed it has been asked, with the earnestness of great doubt, whether, if it is impossible for the husband to procure the concur- rence of his wife in such a proceeding, a court of equity, acting according to conscience, will decree the husband to perform what it is morally impossible for him to perform. 3 It seems difficult to maintain the affirmative, especially as a full compensation may generally be obtained by returning the money with interest and damages. 4 § 733. But there is a much stronger ground, upon which the propriety of the doctrine may well be contested. It is the impolicy of endeavoring to compel the husband to use undue influence, and unjustifiable means, inconsistent with the harmony, peace, and confidence of conjugal life, to obtain such a surrender of the rights of the wife. It is offering to him a premium to be ungenerous as well as unjust, and separating his interests, as well as his good faith, from hers. 5 On this account, Lord Cowper refused to adopt the doctrine, saying, " It is a tender point to compel the husband 1 Hall v. Hardy, 3 P. Will. 189. See 189, note B. ; Newland on Contracts, ch. 6, also Berry v. Wade, Bep. temp. Finch, p. 104, 108. 180 ; Barrington u. Home, 2 Eq. Abridg. 8 Ante, p. 701, n. 4. See Greenaway 17, pi. 8 ; Withers v. Pinchard, cited 7 v. Adams, 12 Ves. 395, 400. Ves. 475 ; Morris v. Stephenson, 7 "Ves. * Ante, p. 701, n. 4. See Greenaway 474. v. Adams, 12 Ves. 395, 400. See Weed 2 Winter v. D'Evereux, cited 3 P. Will. v. Terry, 2 Doug. 344. * Howell v. George, 1 Mad. 9. 720 EQUITY JURISPRUDENCE. [CH. XVIII. by a decree to compel his wife to levy a fine, though there have been some precedents in the court for it. And it is a great breach upon the wisdom of the law, which secures the wife's lands from being aliened by the husband, without her free and voluntary con- sent, to lay a necessity upon the wife to part with her lands, or otherwise to be the cause of her husband's lying in prison all his days." 1 § 734. It is true, that this reasoning has not met the approba- tion of some learned minds in our own times, because it is sug- gested, creditors may, by throwing the husband into prison, compel the wife to part with her estate in the same way. 2 But with great submission, there is a great difference between a court's under- taking to enforce a contract against the policy of the law, and thus sanctioning a violation of conjugal duties, and leaving all par- ties free to act upon such exigencies as may arise, according to their own sense of the necessities of the case. A court of equity may well decline to enforce a contract, which it might not, under the circumstances, incline to cancel. It is most manifest, that the doctrine has not the support of one of the most able equity judges of England (Lord Eldon), for he has not hesitated to express a very pointed disapprobation of it. " If this was perfectly res Inte- gra " (said he), "I should hesitate long before I should say, the husband is to be understood to have gained her consent, and the presumption is to be, that he obtained it before the bargain, to avoid all fraud that may be afterwards practised to procure it." 3 1 Outram v. Round, 4 Vin. Abridg. Baron and Feme, H. b. pi. 4, and marg. p. 203 ; Frederick v. Coxwell, 3 Younge & Jerv. 514. 2 Morris v. Stephenson, 7 Ves. 474, and "Withers v. Pinchard, there cited. 8 Emery v. Wase, 8 Ves. 514, 515. See also Howell v. George, 1 Mad. 9; Davis v, Jones, 4 Bos. & Pull. 267 ; Mar- tin o. Mitchell, 2 Jac. & Walk. 425; Mortlock v. Buller, 10 Ves. 305; Innes i: Jackson, 16 Ves. 367. The reasoning of Lord Eldon is so forcible, that it de- serves to be here given at large. " Cer- tainly the general point is of great im- portance, whether the contract of the husband — which, however, this was not intended to be, but that of the daughters — is to be executed against the husband by a court of equity ; in effect compel- ling the husband to compel his wife to levy a fine, which is a voluntary act. This is brought forward in the report as the principal ground of the decree. The argument shows that point is not quite so well settled as it has been understood to be. The policy of the law is, that a wife is not to part with her property, but by her own spontaneous and free will. If this was perfectly res Integra, 1 should hesitate long before I should say the hus- band is to be understood to have gained her consent, and the presumption is to be made that he obtained it before the bar- gain, to avoid all the fraud that may be afterwards practised to procure it. I should have hesitated long in following up that presumption, rather than the principle of the policy of the law ; for, if a man chooses to contract for the estate § 733-735.] SPECIFIC PERFORMANCE. 721 § 735. "Where, indeed, there is no pretence to say, that the wife is not ready and willing to consent to the act, and that defence is not set up in the answer, but the objections to the decree are put wholly upon other distinct grounds, there may be less difficulty in making a decree for a specific performance. 1 Even in such a case a court of equity ought not to decree in so important a matter, affecting the wife's interest, without bringing her directly before the court, and obtaining her consent upon full deliberation. But where the answer expressly shows an inability of the husband to comply with the covenant, and a firm refusal of the wife, it will of a married woman, or an estate subject to dower, he knows the property is hers altogether, or to a given extent. The purchaser is bound to regard the policy of the law; and what right has he to complain, if she, who, according to law, cannot part with her property but by her own free will, expressed at the time of that act of record, takes advantage of the locus pmnitentiae ? And why is he not to take his chance of damages against the husband ? If cases have determined this question so that no consideration of the absurdity that must arise, and the almost ridiculous state in which this court must in many instances be placed, can prevail against their authority, i? must be so. For the sake of illustration, suppose £10,- 000 three per cents, carried to the ac- count of a married woman, and the hus- band contracts to transfer (taking it, that the court had jurisdiction to decree per- formance of such a contract), at the hear- ing, what is to be done for the wife t In the last two cases, the wife appears to have been left a party to the suit, without affecting her under the decree. If the court cannot by the decree order an act to be done by her, the bill ought to be dismissed against her, unless some future act by her, to be ordered upon further directions, is looked to. But the princi- ple of the decree shows that cannot be the purpose. It does not rest there. Sup- pose the husband procures her consent, even by the mildest means, — persuades and influences her by the difficulties he has got into, on entering into an improvi- dent contract, and she is examined here by the judge who has made the decree upon the husband, and if upon the sub- mission of all the considerations which ought to be submitted to her in this court and the Court of Common Pleas, she says, she thinks it, in her situation, not fit for her to part with the property, the court must send the husband to jail, tell- ing her she never ought to relieve him from that state. And all this for the benefit of a person who canndt have a specific performance certainly, but who may have damages, and who sets up his title to a specific peformance in opposi- tion to the policy of the law. Upon the first ground, therefore, there is difficulty enough to make me 'pause, before I should follow the last two authorities. And I am not sure, whether it is not proper to have the judgment of the House of Lords, to determine which of these decisions ought to bind us. As to the expression used by Lord Cowper, that this jurisdiction is to be very sparingly exercised; certainly, it is very dissatis- factory to be informed, that it is, and is not, to be done." See also the opinion of Sir Thomas Plumer, in Howell v. George, 1 Mad. 9, who says : " It could not be argued, that a man should be com- pelled to use his marital and parental authority to compel his wife and son to do acts which ought only to be spon- taneously done." Sir James Mans- field, also, in Davis o. Jones (4 Bos. & Pull. 267), said : "Nothing can be more absurd, than to allow a married woman to be compelled to levy a fine, through fear of her husband being sued and thrown into jail, when the general prin- ciple of the law is, that a married wo- man shall not be compelled to levy a fine." See also Frederick v. Coxwell, 3 Y. & Jerv. 614. 1 Morris v. Stephenson, 7 Ves. 474. kq. juk. — VOL. I. 46 722 EQUITY JURISPRUDENCE. [CH. XVI11. require more reasoning than has yet appeared to sustain the jus- tice, or equity, or policy of the doctrine. 1 [§ 735 a. Another contract concerning husband and wife, which may be enforced in a court of equity, is a contract for their sepa- ration. It has sometimes been argued that chancery could not interfere to decree a separation between husband and wife ; 2 but the contrary is now fully settled. 3 ] § 736. In cases of covenants and other contracts, where a spe- cific 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 dis- regarded, or they are incapable of being substantially 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. 4 Thus where two persons had agreed to work a coach from Bristol to London, one providing the horses for a part 1 See Howell v. George, 1 Mad. 9; Davis v. Jones, 4 Bos. & Pull. 267 ; Martin ». Mitchell, 2 Jac. & Walk. 425. [Where one agrees with husband and wife for the purchase of the fee-simple in such manner as not to bind the wife, he cannot compel the husband to convey his interest with an abatement. Gastle v. Wilkinson, L. B. 6 Ch. App. 534. Otherwise, where the hus- band holds himself out as owning the fee. Barnes v. Wood, L. E. 8 Eq. 424. See as to enforcing contract of sale of her real estate against married woman, Smith a. Armstrong, 24 Wise. 446 ; Clayton v. Fra- zier, 33 Tex. 91; Stevens v. Parish, 29 Ind. 260; Baker v. Hathaway, 5 Allen, 103. And as to power of married woman to contract for purchase of real estate and enforce the contract, see Eaymond v. Pritchard, 24 Ind. 318; Seager v. Bums, 4 Minn. 141 ; Farley v. Palmer, 20 Ohio (n. s.), 223; Baine a. Bickett, 1 Cinn. Sup. Ct. See also Eostetter v. Grant, 18 Ohio (n. s.), 126. And as to specific performance with compensation, when wife refuses to release dower, see Haw- ralty v. Warren, 3 C. E. Green, 124 Weller v. Weyand, 2 Grant's Cas. 103 Eichmond v. Eobinson, 12 Mich. 193 Davis v. Parker, 14 Allen, 94. A wife cannot enforce after death of her hus- band a contract made by him for sale of her" land. Hoover v. Calhoun, 16 Gratt. (Va.) 109. Equity will not enforce agreement of \ husband to convey land in which there are homestead or dower rights, and the wife will not consent. Burk's App., 75 Penn. St. 141. See Phil- lips v. Stauch, 20 Mich. 369; Yost v. Devault, 9 la. 60; compare Allison v. Shilling, 27 Tex. 450 ; Brewer v. Wall, 23 Tex. 585. So if she will not join in releasing her dower. Eiesz's App., 73 Pa. 485. And there can be no abatement in the price. Ibid. ; Eielly v. Smith, 25 N. J. Eq. 158. In Massachusetts, a different rule was held. Woodbury v. Luddy, 14 Allen, 1 ; Curran u. Holyoke Water Co., 116 Mass. 90.] 2 [See Westmeath v. Westmeath, 2 Hagg. Ec. Supp. 115 ; Seeling v. Cranley, 2 Vera. 386; Head v. Head, 3 Atk. 547; Wilkes v. Wilkes, 2 Dick. 791 ; Fletcher v. Fletcher, 2 Cox, 99. 8 Wilson u. Wilson, 31 Eng. Law & Eq. 29. See Gibbs v. Harding, L. E. 6 Ch. App. 336 ; Hamilton v. Hector, L. E. 6 Ch. App. 701. But see 2 Perry on Trusts, § 672, 673, and cases.] 4 See Stewart v. Eaymond Eailroad Co., 7 S. & M. 568. § 735-736 a.] specific performance. 723 of the road, and the other for the remainder ; and, in consequence of the horses of the latter being taken in execution, the former was obliged to furnish horses for the whole road, and claimed the whole profits ; the court, on a bill by the party, who was so in default, for an account of the profits, and to restrain the other party from working the coaches with his own horses on the whole road, refused to interfere ; because the default might again occur, and subject the defendant to an action. 1 So, where upon a grant of certain, land with a well in it, there was a covenant by the grantees not to sell or dispose of the water from the well, to the injury of the proprietors of certain waterworks intended for the public supply, but not deriving their supply from the well ; upon a bill for an injunction, the court refused to interfere, on account of the inconveniences, saying, that, although the court will in many cases interfere to restrain a breach of covenant, yet there was no instance to be met with of such a covenant as this. For, here, the court must in each instance try whether the act of selling any specified quantity of water was a prejudice to the proprietors of the waterworks or not ; and that upon such a covenant so framed, a court of equity ought not to entertain jurisdiction, even if there were no objection on the score of public policy. 2 [§ 736 a. But it is not necessary to the specific performance of a written agreement that it should be signed by the party seeking to enforce it; if the agreement is certain, fair, and just in all its parts, and signed by the party sought to be charged, that is suffi- cient ; the want of mutuality in the signature merely is no ob- jection to its enforcement. 3 But a bond duly executed by the 1 Smith v. Fromont, 2 Sw.anst. 330. the well. The case seems to hare been 2 Collins v. Plumb, 16 Ves. 454. This decided upon very mixed considerations, case turned upon its own special cir- as there are several other points before cumstances, and cannot be admitted to the court ; and it must be admitted not to be an authority for any general doctrine hare been decided upon very satisfactory on the subject. If the Waterworks Com- grounds. [Specific performance of a con- pany had derived their supply of water tract for supply of water to a mill will, from the well, there is no doubt that a it seems, be decreed where necessary for court of equity would have interfered to running of the mill. Randall v. Latham, prevent the party from violating his cov- 36 Conn. 48. An agreement to execute enant to the injury of the company. In a mortgage with a power of sale will be the actual posture of the case then before specifically executed. Herman v. Rogers, the court, the object of the covenant L. R. 16 Eq. 18.] seemed to have been, to secure to the com- 8 [Woodward v. Aspinwall, 3 Sandf. pany the monopoly of water for the sup- 272 ; In re Hunter, 1 Edw. Ch. 1 ; Mc- ply of the inhabitants of the town, and Crea v. Purmort, 16 Wend. 460 ; Clasono. other persons resorting thereto, against Bailey, 14 Johns. 484. [For cases where any competition by a sale of the water of option to purchase was held to entitle 724 EQUITY JURISPRUDENCE. [CH. XVIII. obligors, with, a blank space for the name of the obligee, being void at law, is inoperative in equity as an agreement, for want of a second contracting party. 1 § 736 b. When an offer in writing is made by the owner to sell an estate, on specified terms, and this is unconditionally accepted, there is a binding contract, which neither' party can vary. But until the proposition is accepted, the owner is at liberty to add new terms to his proposal, and if these be refused the treaty is at an end. The time for paying the deposit may be made an essen- tial term for entering into the contract. 2 § 736 c. And in a very late case 3 it was held that letters will not constitute an agreement which will be specifically performed, unless the answer is a simple acceptance, without the introduction of a new term. But a contract binding upon a corporation, and which the courts of equity will specifically perform, may be constituted by correspondence merely. 4 But if the contract be not actually concluded and certain in all its parts, as if the matter still rests, to any extent, in treaty, or be uncertain or undefined, in any party to a decree for specific performance, see SoufErain v. McDonald, 27 Ind. 269 ; Hall v. Center, 40 Cal. 63 ; Maughlin v. Perry, 35 Md. 352 ; Vineyard v. Smith, 34 Tex. 454 ; and see Corson v. Mulyany, 49 Penn. St. 88. For cases where, for various causes not affecting the general principle, such relief was refused, see Buckmaster v. Thompson, 36 N. Y. 558 (uncertainty); Hawralty v. Warren, 3 C. E. Green, 124 (refusal of wife to re- lease dower) ; Parry v. Tobacco Ins. Co., 1 Cinn. Supr. Ct. 251 (default of party holding option to pay taxes as agreed). See Phillips o. Mining, &c. Co., 7 Phila. 619. But the contract must be signed by all the parties named in it as parties de- pendents. Mclntire v. Bowden, 61 Me. 53. 1 Squire v. Whiton, 1 House of Lords Cases, 333. See Geigen v. Green, 4 Gill, 472. 2 Honeyman v. Marryatt, 21 Beavan, 14. * Wright v. St. George, 12 Ir. Ch. 226 ; Matteson v. Scofield, 27 Wis. 671 ; Ly- man v. Robinson, 14 Allen, 242. * Prince v. Prince, 12 Jur. n. s. 221. See Canton Co. v. Northern, &c. R.R., 21 Md. 383. A corporation may be bound, by standing by and allowing improve- ments. Crook v. Corporation of Seaford, L. R. 6 Ch. App. 551. Where land com- missioners, authorized to dispose of city lands, with approval of mayor, advertised for proposals, and an offer was made in writing, and they voted to " recommend " acceptance, and mayor approved : Meld, not a contract. Dunham v. Boston, 12 Allen, 375. And where one of the terms of sale was, that if the vendee should insist upon any requisition that the ven- dor could not comply with, the latter should be at liberty by notice to annul the contract, and the vendee made a requisi- tion that certain persons should concur in the sale, and the sale not being completed, filed his bill for specific performance, insisting in the bill upon his requisition, and the vendor, two months after, finding he could not comply with the requisition, gave notice to that effect, but the vendee still insisting upon the requisition, he gave notice to rescind the contract, it was held to have determined it, notwithstanding the vendor afterwards offered to waive the requisition and accept performance without it. Duddell v. Simpson, 12 Jur. n. s. 969; s. c. L. R. 2 Ch. App. 102. See Mawson v. Fletcher, L. R. 6 Ch. App. 91. § 736 a-737 a.] specific performance. 725 particular, a court of equity will not interfere, by way of specific performance. 1 Specific performance is sometimes denied in rail- way cases, where the public interest would be thereby seriously affected. 2 ] § 737. So, where a conveyance in fee had been made of certain lands in the city of London, and the feoffee covenanted not to use the land in a particular manner, with a view to the more ample enjoyment of the adjoining lands by the feoffor; and afterwards, by the voluntary acts of the feoffor and those claiming under him, the character and condition of the adjoining land had been so greatly altered, that the contemplated benefits were entirely gone ; the court refused to interfere to compel a specific performance by injunction, and left the party to his remedy at law on the cove- nant. 3 [But in the subsequent case, where A. purchased a piece of ground in the centre of a square in London, and covenanted not to use it otherwise than as a pleasure-ground, an injunction was granted, restraining a subsequent purchaser from A. from using the ground in violation of the covenant. 4 ] [* § 737 a. Where any question arises in regard to the defend- ant having understood the contract, in all its details, the court, if they decree specific performance, will not vary the terms to meet the defendant's misapprehension. 5 So, also, where it is claimed that the plaintiff has not performed all the stipulations of the 1 McKibbin D.Brown, 1 McCarter, 13 ; which have been substantially performed. Earl of Halsey, id. 332. As to specific Grigg v. Landis, 6 C. E. Green, 494.] performance against lunatics, see Yauger [ 4 Tulk v. Moxhay, 13 Jurist, 89 ; 2 v. Skinner, id. 389. Phillips, 774. And see the Feoffees of 2 Raphael v. The Thames Valley Bail- Heriot's Hospital v. Gibson, 2 Dow, 301. way Co., 12 Jur. n. s. 656 ; s. c. Law Rep. For cases where a restriction imposed by 2 Eq. 37. Overruled s. c. L. R. 2 Ch. a common grantor, in deeds of several App. 147.] adjoining parcels, was enforced in suit of 8 Duke of Bedford v. Trustees of the one grantee against another, see Perkins British Museum, 2 Mylne & K. 552. See v. Coddington, 4 Rob. (N. Y.) 647 ; Parker also Kepple ■>. Bailey, 2 Mylne & K. 517. v. Nightingale, 6 Allen, 341 ; Linzee v. [And that equity will not enforce per- Mixer, 101 Mass. 512. It must appear formance where rights secured by con- that it was intended for the benefit of tract have been substantially enjoyed, the party seeking to take advantage of and no substantial benefit will accrue, see it. Badger v. Boardman, 16 Gray, 559 ; Sharp's Rifle, &c, Co. v. Rowan, 35 Conn. Jewell v. Lee, 14 Allen, 145. See Clark 127. So equity will not refuse to enforce v. Martin, 49 Penn. St. 289. Immaterial a contract, at suit of assignee of such whether is in form of condition or restric- contract, although the contract provided tion. Whitney v. Union R. Co., 11 Gray, it should be void if assigned, where it ap- 359.] pears by the agreement that such stipu- s [* Parker ». Taswell, 2 De G. & J. lation was a mere incident to the princi- 559. pal covenants on the part of plaintiff, 726 EQUITY JURISPRUDENCE. [CH. XVIII. contract on his part, the proper decree is to direct the contract to be dated, at a time anterior to the alleged breaches, and to require from the plaintiff an undertaking to admit the execution, as of the day it bears date, in any action brought upon the contract. 1 It seems to be regarded as an insuperable barrier to a decree for specific performance in the courts of equity, that the plaintiff, before the filing of his bill, had failed in an attempt to enforce the agreement at law. 2 Where the court assume jurisdiction of a case for specific performance of the general stipulations of a contract, it may award the payment of a sum of money, by way of damages, for the breach of some incidental stipulation. 3 A defendant may always resist a decree for specific performance, upon the ground that he had made an innocent mistake in stating the conditions of sale. 4 ] § 738. Before proceeding to the remaining head ' of specific performance, that of contracts respecting real estate, which will occupy our attention to a far greater extent, it may be proper to mention, that before Lord Somers's time, the practice used to be, on bills for a specific performance, to send the party to law ; and if he recovered any thing by way of damages, the Court of Chan- cery then entertained a suit; otherwise the bill was dismissed. 5 1 Pain v. Coombs, 1 De G. & J. 34 ; ler, the old practice in courts of equity [Noonan v. Orton, 21 Wise. 283]. was, in all cases, first to send the party 2 Swinfen v. Swinfen, 2 De 6. & J. to law, to ascertain whether there was 381. any remedy there, or not. If there was 8 Lillie v. Legh, 3 De Gex & J. 204. no remedy at law, then equity would in- See also Capps v. Holt, 5 Jones, Eq. 153. terfere. His language is : " The grand 4 Wood v. Scarth, 2 Kay & Johnson, reason for the interference of a court of 33. See also the Marquis of Townshend equity is, that the imperfection of a legal v. Stangroom, 6 Vesey, 328 ; Duke of remedy, in consequence of the universal- Beaufort f. Neeld, 12 CI. & IF. 248. ity of legislative provisions, may he re- Where the defendant after a decree for dressed. Hence for a length of time specific performance, absconded, the after the introduction of equitable judi- complalnant obtained an order rescind- cature into this country, it was thought ing the contract. Watson v. Cox, L. E. necessary that, before equity should in- 15 Eq. 219. Where the complainant re- terfere, this imperfection should be man- tained possession during suit, rent and ifested by the party's previously pro- deterioration were allowed to be offset ceeding at law, so far as to show, from against interest. Phillips v. Silvester, its result, the want or inadequacy of L. R. 8 Ch. App. 173.] legal redress, and his claim for equitable 6 Dodsley v. Kinnersley, Ambler, 406 ; relief. This inflicted upon him two judi- 1 Mad. Pr. Ch. 288 ; 1 Ponbl. Eq. B. 1, cial suits, and consequently a double ex- ch. 1, § 5, note (c) ; id. B. 1, ch. 3, § 1, pense. To remedy this grievance, it note (e) ; Normanby v. Duke of Devon- became the practice, particularly from shire, 2 Freem. 217, and Mr. Hovenden's the time in which the seals were in- note ; Jeremy on Eq. Jurisd. B. 3, Pt. 2, trusted to Lord Cowper, to dispense ch. 4, § 1, p. 425. According to Mr. But- with the previous legal suit, when the § 737 a-740.] specific performance. 727 And, hence the opinion was not uncommon, that, unless damages •were recoverable at law, no suit could be maintained in equity, for a specific performance. Accordingly, it was laid down in a cele- brated case by Lord Chief Justice Raymond, that " where dam- ages are to be recovered at law, for the breach of covenant, equity will compel a specific execution of such act, for the not doing of which the law gives damages ; and that, for this reason, as an ade- quate compensation is to be made on the covenant, the quantum of the damages may be very uncertain ; and, therefore, to prevent that uncertainty, equity will enforce a specific execution of the thing." x At present no such practice prevails ; and therefore, the rule is not applied, as it certainly ought not to be applied, as a test of jurisdiction. § 739. But there is very great reason to doubt if the rule ever was generally applied at any former period; for many cases must always have existed, in which damages were not recoverable at law, bat in which a specific performance would nevertheless be decreed. 2 The rule was probably confined to cases in which the party was not entitled to any remedy at law, and there was no equity to be administered beyond the law. 3 Lord Macclesfield denied the existence of the rule altogether, and said : " Neither is it a true rule which has been laid down by the other side, that where an action cannot be brought at law on an agreement for damages, there, a suit will not lie in equity for a specific perform- ance." 4 And, accordingly, in the very case then before him, he gave relief, although there could be no remedy at law. It was a case where a feme sole gave a bond to her intended husband, that, in case of their marriage, she would convey her lands to him in fee. They afterwards married : and the wife died without issue, and then the husband died. And it was held that, although the bond was void at law, yet it was good evidence of an agreement ; and the heir of the husband could compel a specific performance against the heir of the wife. 6 § 740. Lord Macclesfield, on that occasion, put another case. want or inadequacy of the legal remedy id. B. 1, ch. 3, § 1, note (c) ; 1 Mad. Pr. to be obtained by it was evident 1 But- Ch. 288. ler, Eeminis. 39, 40. 3 See Sugden on Vendors, ch. 4, § 2, 1 Bettesworth v. Dean of St. Paul's", p. 201, 202 (7th edit.). Sel. Cas. in Ch. 68, 69 ; post, § 755, note. i Cannel v. Buckle, 2 P. Will. 244. [See White v. Butcher, 6 Jones, Eq. 6 Ibid. See also Acton v. Pierce, 2 (N. C.)231.] Vern. 480. 2 1 Fonbl. Eq. B. 1, ch. 1, § 5, note (e) ; 728 EQUITY JURISPBUDENCE. [CH. XVW. If a. feme infant, seised in fee, on a marriage, with the consent of her guardians, should covenant, in consideration of a settlement, to convey her inheritance to her husband, and the settlement were competent, a court of equity would decree a specific execution of the agreement, although no action at law would lie to recover damages. 1 Another case may also be put. If an agreement be made for the sale of an estate, and the vendor dies before the period when the estate is to be conveyed, the heir of the vendor will, in equity, be bound to convey, although no action lies at law against him. 2 § 741. It has been said, in a late case, that it may be safely laid down, as a general proposition, notwithstanding many exceptions, that an agreement, in order to call for a specific performance by the decree of a court of equity, must be such an agreement as might have been made the subject of an action at law. 3 This lan- guage, when understood in a qualified sense,, is doubtless correct ; for, generally, if a party does not contract personally at law, equity will not create a personal obligation on his part unless under peculiar circumstances. 4 But the whole class of cases of specific performance of contracts respecting real estate, where the contract is by parol, and there has been a part performance, or where the terms of the contract have not been strictly complied with, and yet equity relieves the party, are proofs that the right to maintain a suit in equity, to compel a specific performance, does not, and cannot properly be said to depend upon the party's having a right to maintain a suit at law for damages. 5 In cases of specific performance, courts of equity sometimes follow the law, and some- times go far beyond the law ; and their doctrines, if not wholly independent of the point, whether damages would be given at law, are not in general dependent upon it. Whoever should assume the 1 Cannel v. Buckle, 2 P. Will. 244, * See Com. Dig. Chancery, Bent, which and Mr. Cox's note (2). cites Davy v. Davy, 1 Ch. Cas. 145; 2 1 Mad. Pr. Ch. 288. See also Wise- Palmer u. WhettenhaU, 1 Ch. Cas. 184, man v. Eoper, 1 Rep. in Chan. 158; 185. Attorney-General v. Day, 1 Ves. 222 ; 6 Davis v. Hone, 2 Sch. & Lefr. 347, Whitmel v. Farrel, 1 Ves. 258; Gell v. 348; Lennon v. Napper, 2 Sch. & Lefr. Vermedun, 2 Freem. 199; Sugden on 684; Sngden on Vendors, ch. 4, § 2, Vendors (7th edit.), ch. 4, § 2, p. 180; 1 p. 192 (7th edit.) ; 1 Sugden on Vendors, Sugden on Vendors, ch. 4, § 3, n. 3, p. 321 ch. 4, § 3, n. 14, p. 330 (10th edit) ; id. (10th edit.); post, § 755, note. See Le- n. 35, p. 340; id. n. 59, p. 861; Alley v. land's Appeal, 1 Harris, 84. Deschamps, 13 Ves. 228, 229. 8 Sir Wm. Grant, in Williams ». Stew- ard, 3 Meriv. 491. § 740-742.] specific performance. 729 existence of a right to damages in an action at law, as the true test of the jurisdiction in equity, would find himself involved in endless perplexity ; 1 for, sometimes damages may be recoverable at law, where courts of equity would yet not decree a specific per- formance ; and, on the other hand, damages may not be recoverable at law, and yet relief would be granted in equity. 2 § 742. In truth, the exercise of this whole branch of equity jurisprudence, respecting the rescission and specific performance of contracts, is not a matter of right in either party ; but it is a matter of discretion in the court ; 3 not, indeed, of arbitrary or capricious discretion, dependent upon the mere pleasure of the judge, but of that sound and reasonable discretion, which governs itself as far as it may, by general rules and principles ; but at the same time, which withholds or grants relief, according to the cir- cumstances of each particular case, when these rules and prin- ciples will not furnish any exact measure of justice between the parties. 4 On this account it is not possible to lay down any rules and principles, which are of absolute obligation and authority in all cases ; and, therefore, it would be a waste of time to attempt to limit the principles, or the exceptions, which the complicated transactions of the parties, and the ever-changing habits of society may, at different times, and under different circumstances, require the court to recognize or consider. The most that can be done is, to bring under review some of the leading principles and excep- tions, which the past times have furnished, as guides to direct and aid our future inquiries. 1 See Sugden on Vendors, ch. 4, § 2, McComas v. Easley, 21 Gratt. (Va.) 23; p. 200 to 202 (7th edit.) ; 3 Wooddes. Hale v. Wilkinson, ib. 75 ; Fish v. Light Lect. 58, p. 463; Williams ». Stewart, ner, 44 Mis. 268; Humbard's Heirs v. SMeriv. 486. Humbard's Heirs, 3 Head (Tenn.), 100; 2 Weale v. West Middlesex Water Auter v. Miller, 18 la. 405; Lowry v. Works Company, 1 Jac. & Walk. 370. Buffington, 6 W. Va. 249 ; Aston v. Rob- 3 City of London v. Nash, 1 Ves. 13; inson, 49 Miss. 348; Sherman v. Wright, s. c. 3 Atk. 512; Joynes v. Statham, 3 49 N. Y. 227.] Atk. 389 ; Underwood v. Hitchcox, 1 Ves. i See 3 Wooddes. Lect. 58, p. 466 ; 279; Clowes v. Higginson, 1 Ves. & B. White v. Damon, 7 Ves. 35; Buckle v. 527 ; 1 Mad. Pr. Ch. 287 ; 1 Fonbl. Eq. B. Mitchell, 18 Ves. Ill ; Mason v. Armitage, 1, ch. 3, § 9, note (i) ; Sugden on Vendors, 13 Ves. 37 ; Clowes v. Higginson, 1 Ves. (7th edit.), ch. 4, §2, p. 191; 1 Sugden on & Beam. 527: Moore v. Blake, 1 B. & Vendors, ch. 4, §3, n. 330 (10th edit.); St. Beat. 69; Howell v. George, 1 Mad. 9; John v. Benedict, 6 Johns. Ch. Ill ; Sey- Sugden on Vendors, ch. 4, § 2, p. 191 mour v. Delancey, 6 Johns. Ch. 222 ; ante, (7th edit.) ; 1 Sugden on Vendors, ch. 4, § 207 ; Seaman v. Van Rensselaer, 10 § 3, n. 14, p. 330 (10th edit.) ; ante, § 693; Barbour, 83. [See Taylor v. Williams, post, § 769; Wedgewood v. Adams, 6 45 Mis. 80; Quinn v. Roath, 37 Conn. 16; Beavan, 600. 730 EQUITY JURISPRUDENCE. [CH. XVIII. § 743. Let us now, in the next place, proceed to the considera- tion of the remaining and far most numerous class of cases, in which courts of equity are called upon to decree a specific per- formance of contracts ; that is to say, contracts respecting land. 1 In examining this subject, our attention will almost exclusively be drawn to cases of contracts, respecting land, situate in the same country where the suit is brought. It may, therefore, be proper to premise that a bill for a specific performance of a contract respect- ing land may be entertained by courts of equity, although the land is situate in a foreign country, if the parties are resident within the territorial jurisdiction of the court. The ground of this juris- diction is, that courts of equity have authority to act upon the per- son ; JEquitas agit in personam. 2 And although they cannot bind the land itself by their decree, yet they can bind the conscience of the party in regard to the land, and compel him to perform his agreement according to conscience and good faith. 3 Accordingly, it was held by Lord Hardwicke, that the specific performance of a contract, respecting the boundaries of the colonies of Pennsylvania and Maryland, entered into by the proprietaries, might be decreed by the Court of Chancery in England. 4 The like doctrine was held in the case of an agreement respecting the Isle of Man, where a specific performance was decreed by the Court of Chancery in England, although the isle was without the realm. 5 In like man- ner, in a contract respecting lands in Ireland, a specific perform- ance has been decreed. 6 § 744. The proposition may, therefore, be laid down in the most general form, that, to entitle a court of equity to maintain a bill for the specific performance of a contract respecting land, it is not necessary that the land should be situate within the juris- diction of the state or country where the suit is brought. 7 It is 1 For the sake of brevity, land only is 4 Penn v. Lord Baltimore, 1 Ves. 444 ; mentioned ; but the same principles will Portarlington v. Soulby, 3 Mylne & Keen, apply generally to all other real property, 104. aul incorporeal hereditaments, savoring 5 Earl of Athol i>. Earl of Derby, 1 of the realty. Ch. Cas. 221 ; Com. Dig. Chancery, 3 X. 2 Toller v. Carteret, 2 Vern. 495 j post, 4 W. 27 ; Portarlington v. Soulby, 3 § 899, 900; Sutton v. Fowler, 9 Paige, Mylne & Keen, 104; post, § 899, 900. 280. [See 1 Perry on Trusts, § 72, and 6 Archer v. Preston, cited 1 Vern. 77 ; cases.] s. c. 1 Eq. Abr. 133. 8 Com. Dig. Chancery, 3 X. 4 Vf . 27 ; " See De Kyln v. W atkins, 3 Sandf. Ch. Lord Cranstown v. Johnston, 3 Ves. Jr. 185; Fairley v. Shippen, Wythe, Cb. 182 ; Massie v. Watts, 6 Cranch, 148, 158 ; 135 ; Guerrant v. Fowler, 1 Hen. & Munf. [Myers v. De Miers, 4 Daly, 343]. 4 ; Shattuck ». Cassidy, 3 Edw. Ch. 152. § 743-744 a.] specific performance. 731 sufficient that the parties to be affected and bound by the decree are resident within the state or country where the suit is brought ; for in all suits in equity the primary decree is in personam, and not in rem. 1 The incapacity to force the decree in rem constitutes no objection to the right to entertain such a suit. 2 Where, indeed, the lands lie within the reach of the process of the court, courts of equity will not exclusively rely on the proceedings in personam ; but will put the successful party in possession of the lands, if the other party remains obstinate, and refuses to comply with the decree. 3 [§ 744 a. On the other hand, it has recently been determined in America, after a full review of all the authorities, that a court of equity has no jurisdiction in cases touching lands in foreign countries, unless the relief sought is of such a nature as the court is capable of administering in the given case ; a court of equity has not necessarily jurisdiction over a subject of ordinary equity .cognizance, simply because the parties are within the forum. Accordingly it was held, that a court of equity sitting in and for one county in the State of Pennsylvania, had no jurisdiction over a bill praying for an injunction against the defendant residing in another county, but who was temporarily within the jurisdiction of the court, for erecting a nuisance which injured the plaintiff's land in that county ; for, to give a complete remedy in such cases, a court must not only restrain and prevent the continuance of the nuisance, but must order its removal, and give compensa- tion in damages for the injury already caused; and for a court of equity to give this ample relief, the locus in quo must be within [See Pingree v. Coffin, 12 Gray, 288 ; Gray, 213 ; Mead v. Merritt, 2 Paige, 402 ; Sut- J., in Brown v. Desmond, 100 Mass. 269 ; ton .v. Fowler, 9 Paige, 280. Myers v. De Miers, 4 Daly, N. Y. 348. 2 Earl of Arglasse v. Muschamp, 1 So suit for specific performance may be Vern. 135. brought in county where land does not 8 Earl of Arglasse v. Muschamp, 1 lie. Davis v. Parker, 14 Allen, 94.] Vern. 135 ; Earl of Kildare v. Eustace, 1 1 Newland on Contr. ch. 16, p. 305 ; Vern. 421 ; Penn v. Lord Baltimore, Com. Dig. Chancery, 3 X. 4 W. 27 ; Penn 1 Ves. 454 ; Hide v. Petit, 1 Ch. Cas 91 ; v. Lord Baltimore, 1 Ves. 447, 454 ; Ar- Newland on Contracts, ch. 16, p. 305, chert;. Preston, 1 Eg,. Abr. 133 ; s. c. 1 306; 1 Fonbl. Eq. B. 1, ch. 1, § 5, note Vera. 77, and Mr. Raithby's note ; Lord (q) ; Roberdeau v. Rous, 1 Atk. 643 ; Cranstown v. Johnston, 3 Ves. Jr. 182 ; Stribley v. Hawkie, 3 Atk. 275. [That Jackson v. Petrie, 10 Ves. 164 ; Foster v. specific performance may be decreed, as Vassall, 3 Atk. 589 ; Pike v. Hoare, 2 to land in the State, and title vested by Eden, 185, and note ; White v. Hall, 12 decree or otherwise, where the vendor is Ves. 323 ; Massie a. Watts, 6 Cranch, out of the jurisdiction, see Rourke v. Mc- 148,158; Story on Conflict of Laws, § Laughlin, 38 Cal. 196; Matteson v. Sco- 644, 545; Ward v. Arredondo, 1 Hopk. field, 27 Wise. 671.] 732 EQUITY JURISPRUDENCE. [CH. XVIII. the absolute jurisdiction of the court. 1 So, it seems, a court has no jurisdiction to order a defendant to sell lands situate in a for- eign jurisdiction, when the case would be otherwise within its power. 2 Nor will a court of equity enforce against defendants who have in their hands proceeds of the sale of lands situated out of the jurisdiction, the same equities to which such proceeds would have been unquestionably subject, had the land sold been within the jurisdiction. The exercise of such a power seems to depend upon the fact whether the contract sought to be enforced was capable of being fulfilled by the lex loci rei sitce. And this, although the parties are within the jurisdiction, and the proceeds of the land come into their hands, in specie. And if, by the lex loci rei sitae, the land could be alienated only upon the application of the proceeds in a particular manner, such a law is valid, and courts of equity will not interfere with such proceeds, though brought within its jurisdiction. 8 ] § 745. But to return to the class of cases where a specific per- formance is sought on contracts respecting land, situate in the country where the suit is brought. This class may be subdivided into two heads. (1) Where relief is sought upon parol contracts within the statute of frauds and perjuries (as it is called) ; and (2) where it is sought under written contracts, not falling within the scope of that statute. § 746. It has been already suggested, that courts of equity are in the habit of interposing to grant relief, in cases of contracts respecting real property, to a far greater extent than in cases respecting personal property ; not, indeed, upon the ground of any distinction founded upon the mere nature of the property, as real or as personal ; but, at the same time, not wholly excluding the consideration of such a distinction. In regard to contracts respect- ing personal estate, it is (as has already been intimated) generally true that no particular or peculiar value is attached to any one thing over another of the same kind ; and that a compensation in damages meets the full merits, as well as the full objects, of the contracts. If a man contracts for the purchase of a hundred bales 1 [Morris v. Remington, 1 Parsons, Eq. will not undertake to decree specific per- 387. But see Davis v. Parker, 14 Allen, formance of contracts concerning lands 94. in another State, unless all the parties to 2 Blount v. Blount, 1 Hawks. 365. be affected by the decree are within the 8 Waterhouse v. Stansfield, 12 Eng. jurisdiction of the court. Penn a. Hay- Law & Eq. 206; 9 Hare, 234. Courts ward, 14 Ohio, s. s. 302.] § 744 a-747.] specific performance. 733 of cotton, or boxes of sugar, or bags of coffee, of a particular description or quality, if the contract is not specifically performed, he may, generally, with a sum equal to the market-price, purchase other goods of the same kind of a like description and quality ; and thus completely obtain his object, and indemnify himself against loss. 1 But, in contracts respecting a specific messuage or parcel of land, the same considerations do not ordinarily apply. The locality, character, vicinage, soil, easements or accommoda- tion's of the land generally, may give it a peculiar and special value in the eyes of the purchaser ; so that it cannot be replaced by other land of the same precise value, but not having the same precise local conveniences or accommodations ; 2 and, therefore, a com- pensation in damages would not be adequate relief. It would not attain the object desired; and it would generally frustrate the plans of the purchaser. And hence it is, that the jurisdiction of courts of equity to decree specific performance, is, in cases of con- tracts respecting land, universally maintained ; 3 whereas, in cases respecting chattels, it is limited to special circumstances. § 747. Courts of equity, too, in cases of contracts respecting real property, have been in the habit of granting this relief, not only to a greater extent, but also under circumstances far more various and more indulgent than in cases of contracts respecting chattels. For they do not confine themselves to cases of a strict legal title to relief. Another principle, equally beneficial, is well known and established, that courts of equity will not permit the forms of law to be made the instruments of injustice ; and they will, therefore, interpose against parties attempting to avail them- selves of the rigid rules of law for unconscientious purposes. When, therefore, advantage is taken of a circumstance that does not admit of a strict performance in the contract, if the failure is not in a matter of substance, courts of equity will interfere. 4 Thus, they are in the habit of relieving in contracts for real prop- erty, where the party, from his own inadvertence or neglect, has suffered the proper time to elapse for the punctilious performance of his contract, and from that and other circumstances, he cannot maintain an action to recover damages at law. 6 Even where 1 Ante, § 716, 717, 718 to 724. * Halsey v. Grant, 13 Ves. 76, 77 ; post, 2 Adderley v. Dixon, 1 Sim. & Stu. § 775, 776, 777. 607; ante, § 718. 6 Post, § 771, 775, 776, 777. 3 Fobs v. Haynes, 31 Maine, 89. 734 EQUITY JURISPRUDENCE. [CH. XVIII. nothing exists to prevent the parties suing at law, so many cir- cumstances are necessary to enable him to recover at law, that the mere formal proofs alone render it very inconvenient and hazard- ous so to proceed, even if the legal remedy would (as in many cases it would not) be adequate to the demands of substantial justice. 1 § 748. On these accounts (as has been well remarked), courts of equity have enforced contracts of this sort, where no action for damages could be maintained ; for, at law, the party plaintiff iftust have strictly performed his part ; and the inconvenience of insist- ing upon that in all cases is sufficient to require the interference of courts of equity. They dispense with that which would make a compliance with what the law requires oppressive ; and, in various cases of such contracts, they are in the constant habit of relieving a party who has acted fairly, although negligently. 2 § 749. On the other hand, as the interference of courts of equity is discretionary, they will not enforce a specific performance of such contracts at the instance of the vendor, where his title is in- volved in difficulties which cannot be removed, although, perhaps, at law, an action might be maintainable against the defendant for damages for his not completing his purchase. 3 [* § 749 a. The plaintiff in a bill for specific performance of a contract for the lease of a limestone quarry, had at the time of the sale represented that the limestone was of a certain quality, the fact being that the quarry in the immediate neighborhood had 1 A party may maintain a bill in to the vendee at the time of his contract equity for the specific performance of a of purchase, he will take the land even contract to convey land, notwithstanding under a decree for specific performance, he may have full remedy at law for re- subject to the same equities. Smoot v. covering the value of the lands, that be- Eea, 19 Md. 398. See also Smith v. Cran- ing, in most cases, no adequate relief, dall, 20 id. 482 ; Dean v. Comstock, 32 111. Schoeppel v. Hopper, 40 Barb. 425 ; 173 ;' Laverty a. Moore, 33 N. Y. 658 ; [Barnes v. Barnes, 65 N. C. 261]. But see Hunter v. Bales, 24 Ind. 299. Pennsylvania Co. v. Delaware Co., 31 N.Y. 2 Lord Bedesdale, in Lennon v. Nap- 91. So also, notwithstanding one may per, 2 Sch. & Lefr. 684. have conveyed land with warranty, he 3 1 Fonbl. Eq. B. 1, ch. 3, § 9, note (t) ; may maintain a bill in equity to compel post, § 777, 778 ; Cooper v. Denne, 4 Bro. the specific performance of a contract to Ch. 80 ; s. c. 1 Ves. Jr. 565. [Vreeland release a mortgage upon the land. Ben- v. Blauvelt, 23 N. J. Eq. 483 ; Dobbs v. nett v. Abrams, 41 Barb. 619 ; Stark a. Norcross, 24 N. J. Eq. 327 ; Jeffries v. Belder, 36 Vt. 752. The court will exer- Jeffries, 117 Mass. 184. But a mere pos- cise its discretion in decreeing specific sibility against a title will not defeat performance of contracts to convey land, specific performance. Hayes v. Harmony and where there was a prior equitable Grove Cem., 108 Mass. 400. right to the land from the vendor known § 747-749 c] specific performance. 735 been worked and ascertained not to be of the specified quality. The result of this trial was not known to either party, but might have been ascertained on inquiry, and it appeared the plaintiff had no knowledge of the quality of the limestone. The defendant afterwards, and before signing the agreement, made a cursory inspection of the old quarry, and satisfied himself that the stone was limestone, but ascertained nothing of its quality. It was held that the misrepresentation was a bar to m the decree for specific performance. 1 § 749 b. And it seems to be settled now in the English courts of equity, that where the party against whom the decree is sought shows, to the satisfaction of the court, that he entered into the con- tract under a bond fide misapprehension in a material point, the contract will not be carried into effect. Thus where A. by letter offered to sell some property to B. for £1250, and B. by letter ac- cepted the offer, and A. had by mistake inserted £1250 in his letter instead of £2250, and so informed B. immediately, the court refused to enforce the contract. 2 § 749 0. The present English statute 3 provides that, in all cases of contracts respecting the conveyance of real estate, the courts of equity may award damages for the breach of the same. This is not understood as entitling the plaintiff to an award of damages to be assessed, in cases where he had no good reason to suppose a bill for specific performance would be sustained; but there are 1 [* Higgins v. Samels, 2 Johns. & H. L. B. 6 Ch. App. 770 ; and so where ven- 460 ; Harnett v. Baker, L. R. 20 Eq. 50. dee misled by a plan exhibited at sale as to 3 Webster v. Cecil, 30 Beav. 62 ; But- bounds or by conditions of sale. Denny v. terworth v. Walker, 13 W. R. 168 ; Moxey Hancock, L. R. 6 Ch. App. 1 ; Baskcomb v. v. Bigwood, 12 id. 811; Park v. Johnson, Beckwith, L. E. 8 Eq. 100. Where a public 4 Allen, 259. Performance was refused right of way was represented as a private for misrepresentation as to having sold a one, it was held, not so material a misrepre- half interest in the property to a particu- sentation as to bar relief. Wuesthoff v. lar person. Wells v. Millett, 23 Wis. 64. Seymour, 7 C. E. Green, 66 ; and see Refused for misrepresentation of rental. Masterton v. Beers, 1 Sweeny (N. Y.), 406. Boynton v. Hazelboom, 14 Allen, 107 That defendant must show that he will (though partly executed and not fraudu- be injured by performance, see Morrison lent, and compensation offered). Specific v. Lads, 39 Cal. 381. performance will not be decreed if there is 8 21 & 22 Viet. ch. 27, § 2. But if the any fraud, mistake, or misunderstanding, defendant claim in defence that the Con- or if the contract is a hard or unconscion- tract was obtained from him by misrep- able one, or if there is any other in equity resentation, he assumes the burden of under all the circumstances. Magraff v. proving it. Park v. Johnson, 4 Allen, Muir, 57 N. Y. 155 ; Weise's App., 72 Penn. 259. See also Wycombe Eailw. Co. v. St. 351 ; it was refused for concealment of Donnington Hospital, in Court of Chan- fact that vendee had trespassed in getting eery Appeals, 12 Jur. k. s. 347 ; Law Rep. coal from the land. Phillips v. Homfray, 1 Ch. App. 268. 736 EQUITY JURISPRUDENCE. [CH. XVIII. many cases where, under the statute, the court will decree the assessment of damages, if for any cause they do not deem it expedient to decree specific performance ; as where the defendant could not grant the lease, on account of the mortgagee refusing to concur with him. 1 So also the court will sometimes decree an assessment of damages for the breach of contract up to the time of specific performance being carried into effect. 2 And we appre- hend courts of equity commonly assume to award the assess- ment of damages, in all cases without statutory aid, when it becomes indispensable in order to do perfect justice between the parties in carrying the specific performance of a contract into effect. 8 ] § 750. Indeed, the proposition may be more generally stated, that courts of equity will not interfere to decree a specific perform- ance, except in cases where it would be strictly equitable to make such a decree. There is no pretence to say, that it is the doctrine of courts of equity to carry into specific execution every contract in all cases, where that is found to be the legal intention and effect of the contract between the parties. If, in any case, the parties have so dealt with each other in relation to the subject-matter of a contract, that the object of one party is defeated, while the other party is at liberty to do as he pleases, in relation to that very sub- 1 Howe v. Hunt, 8 Jur. n. s. 834. 40; Sherman v. Wilson, 44 Geo. 473 ; May 2 Samuda v. Lawford, 8 Jur. n.'b. 739. v. Le Claire, 11 Wal. (TJ. S.) 217. Where * Where a contract was impossible of D. purchased a bond for a deed of land performance (bill to enforce agreement out of the State from A., and A. conveyed not to cancel lease already cancelled), with notice to B. and C, two partners, and the plaintiff not knowing the impossibility A., B., and C, all three, were made de- when his bill was filed, it was held, that fendants, and B. died leaving heirs out of damages might be allowed. Milkman v. the State, it was held, that D. was entitled Ordway, 11)6 Mass. 232. Otherwise, where either to what the survivor could convey impossibility is known to plaintiff. Doan with compensation, or to damages for the v. Mauzey, 33 111. 227. But see Steven- whole value of the land, as of time when A. son v. Buxton, 37 Barb. 13 ; Gupton v. conveyed to B. and C. Pingree v. Coffin, Gupton, 47 Mis. 37 ; Foley v. Crow, 37 12 Gray, 288, p. 305, 315. In case of parol Md. 51 ; Marshall v. Caldwell, 41 Cal. 611. alternative agreement to pay money or Where the case is not one essentially convey land, if the statute is set up in of equitable cognizance, damages should defence, the court may decree payment of not, it seems, be allowed : a party is not the money. Bidgely v. Clodfelter, 43 111. to be encouraged to take his chances of 195; and that where specific performance specific performance, with alternative is denied, because contract is within stat- damages. Ferguson v. Wilson, L. B. 2 ute, compensation to the extent of pur- Ch. App. 77 ; Durell v. Pritchard, L. R. 1 chase-money paid and value of lasting Ch. App. 244 ; Lewers r. Earl of Shaftes- improvements may be decreed, see Green bury, L. R. 2 E. Fletcher, 2 chase-money would hare enabled equity Atk. 155 ; Spurrier v. Fitzgerald, 6 Ves. to specifically perform a parol agree- 548, 555; Gilb. Lex Praetor. 237, 238; ment ; but it certainly is too vague to be Attorney-General v. Sitwell, 1 Younge & relied on." Id. p. 120. * Coll. 583 ; post, § 770, 770 6. 1 Attorney-General v. Sitwell, 1 Younge a Lord Bathurst, however, in EyreV & Coll. 583. In such a case, if the de- Popham, Lofft, 808, 809, held that a parol fendant should die before a decree, upon agreement, not in part performed, could a bill of revivor against the heir, a specific not be carried into execution, although performance by him would be decreed, confessed by the answer, saying that the Attorney-General w. Day, 1 "Ves. 221. For court could not repeal the statute of the principle goes throughout, and equally frauds. See Sugden on Vendors, ch. 4, binds the representative as well as the § 2, p. 99 (7th edit.); The London and ancestor. Ibid. Lacon v. Mertins, 3 Atk. ' Birmingham Railway Company ^.Winter, 3 ; ante, § 740 ; [Houser o. Lamont, 55 1 Craig & Phillips, 57, 62. Lord Eosslyn, Penn. St. 311 ; Artzv. Grove, 21 Md. 456 ; in Rondeau v. Wyatt, 2 H. Bl. 68, speak- Kirksey v. Kirksey, 30 Geo. 156]. ing on the subject of the cases of parol § 754-757.] SPECIFIC PERFORMANCE. 741 it; and the rule is Quisque renuntiare potest juri pro se intro- ducto. 1 f § 756. But where the answer confesses the parol agreement, and insists upon the statute of frauds as a defence, the question arises whether courts of equity will allow the statute, under such circumstances, as a bar; or whether they will, notwithstanding the statute, decree a specific performance upon the ground of the confession. Upon this question, there has been no small conflict of judicial opinion. Lord Macclesfield expressly decreed a specific performance in such a case. 2 Lord Hardwicke appears to have entertained the same opinion; although, perhaps, he was not called upon finally to adjudicate it. 3 § 757. But later judges in equity have expressed a strong dis- satisfaction with this opinion ; and it may now be deemed to be entirely overruled, and the doctrine firmly established, that even where the answer confesses the parol agreement, if it insists, by way of defence, upon the protection of the statute, the defence agreements, confessed by the answer of the defendant, said : " It is said in these cases, and has been adopted in the argu- ment, that when the defendant confesses the agreement, there is no danger of per- jury, which was the only thing the stat- ute intended to prevent. But this seems to be very bad reasoning ; for the calling upon a party to answer a parol agree- ment certainly lays him under a great temptation to commit perjury. But though the preventing perjury was one, it was not the sole object of the statute. Another object was to lay down a clear and positive rule, to determine when the contract of sale should be complete. This last reason has great force ; but it is questionable, if the statute had in view so much the prevention of perjury in the party defendant, as the prevention of it in witnesses. There is always some temptation in the defendant to commit perjury in his answer, in all cases where his interest is concerned ; nevertheless, he is required generally to answer, on oath, all facts charged in the bill. Mr. Fonblanque's note on this subject is very able and satisfactory. 1 Fonbl. Eq. B. 1, ch. 3, § 8, note (d). 1 Newland on Contracts, ch. 10, p. 201 ; Bondeau v. Wyatt, 2 H. Bl. 68; Spurrier v. Fitzgerald, 6 Ves. 548 ; 1 Fonbl. Eq. B. 1, ch. 3, § 8, note (d) ; Elagg v. Mann, 2 Sumner, 489, 528, 529. 2 Child v. Godolphin, 1 Dick. 39 ; s. c cited 2 Bro. Ch. 566 ; Child v. Comber, 3 Swanst. 423, note. 8 Cottington v. Fletcher, 2 Atk. 155, 156 : Lacon v. Mertins, 3 Atk. 3. It is not quite certain that this was Lord Hardwicke's opinion. The case of Cot- tington o. Fletcher (2 Atk. 156) might, perhaps, have turned upon a point of pleading. But the dictum in Lacon o. Mertins (3 Atk. 3) seems direct. Lord Loughborough, in Moore v. Edwards (4 Ves. 24), said : " There is a case in At- kyns, that misleads people, where Lord Hardwicke is stated to have overruled the defence upon the statute, merely on the ground that the agreement was ad- mitted. I had occasion to look into that ; and it is a complete misstatement. It ap- pears by Lord Hardwicke's own notes, that it was upon the agreement having been in part executed, that he determined the case." See also Sugden on Vendors, ch. 4, § 2, p. 100 (7th edit.) ; Evans v. Harris, 2 Ves. & Beam. 361 ; Morrison i>. Turnour, 18 Ves. 175 ; Mitf. Eq. PI. by Jeremy, 265 to 268. 742 EQUITY JURISPRUDENCE. [CH. XVIII. must prevail as a competent bar. 1 This doctrine seems conform- able to the true intent and objects of the statute ; for it is difficult to perceive how a party can be legally bound by a contract, which the statute declares to be invalid, when the party insists upon the objection, and does not submit to waive it. It has been forcibly said by a great judge in equity, that it is immaterial what admis- sions are made by a defendant, who insists upon the benefit of the statute, for he throws it upon the plaintiff to show a complete written agreement ; and it can be no more thrown upon the defendant to supply defects in the agreement than to supply the want of an agreement. 2 The same doctrine seems now fully recognized in America. 3 § 758. It follows, from what has been already said, that, if the answer denies the existence of any parol contract, and insists upon the benefit of the statute, the case cannot be made out by parol evidence, and that the bar is complete. This would seem to be sufficiently clear upon principle. But the question having been at one time made, it is no longer a matter of mere principle, but it stands confirmed by the highest authority. 4 A question, however, of a different sort, but connected with this subject, has also been much discussed, and that is, whether, to a bill for discovery and relief upon the ground of a parol agreement, the statute can be pleaded as a bar to the discovery of the fact of such agreement ; or, in other words, whether the plea must not state, not only that i See Mitf. Eq. PI. by Jeremy, 265 to 268 ; Sugden on Vendors, ch. 4, § 2, p. 98, 100, 101, 102 (7th edit.) ; 1 Sugden on Vendors, ch. 3, § 6, n. 10, p. 197 (10th edit. ) ; Jeremy on Eq. Jurisd. B. 3, Pt. 2, ch. 4, § 1, p. 439 ; Newland on Contr. ch. 10, p. 197 to 201 ; 1 Fonbl. Eq. B. 1, ch. 3, § 8, note (d) ; Thompson v. Todd, 1 Peters, Circuit, 380. Mr. BaroD Eyre, in Eyre v. Ivison, and Stewart v. Careless, in 1785 (cited 2 Bro. Ch. 563, 564), and Walters v. Morgan, 2 Cox, 369, decided the point directly in favor of the bar of the statute under such circumstances. That also appears to have been the opin- ion of Lord Thurlow. Whitbread v. Brockhurst, 1 Bro. Ch. 416, and Mr. Belt's note ; and Whitchurch v. Bevis, 2 Bro. Ch. 559, 568, 569. Lord Kosslyn held the same opinion. Rondeau v. Wy- att, 2 H. Bl. 68; Moore v. Edwards, 4 Ves. 23; Cooth v. Jackson, 6 Ves. 17. So Lord Eldon in Cooth v. Jackson, 6 Ves. 37, and Bowe v. Tweed, 15 Ves. 375 ; and Sir William Grant, in Blagden v. Brad- bear, 12 Ves. 466, 471. 2 Sir William Grant, in Blagden ». Bradbear, 12 Ves. 471 ; [Luckett v. Wil- liamson, 37 Miss. 388. See Auter v. Mil- ler, 18 la. 405.] 3 See Thompson v. Todd, 1 Peters, Circ. 388, and the cases cited by Mr. In- graham, in his note to the American edi- tion of Vesey, Jr., Vol. 3, p. 38 to 40. 4 Whaley v. Bagenel, 6 Bro. Pari. 45; s. c. cited 2 Bro. Ch. 567, 568; Whit- church o. Bevis, 2 Bro. Ch. 567 ; s. o. 1 Bro. Pari. Cas. by Tomlins, 345; Buck- master v. Harrop, 7 Ves. 347 ; Botsford v. Burr, 2 Johns. Ch. 408 ; Bartlett v. Pick- ersgill, 4 East, 677, note ; s. c. 1 Eden, 515; Leman v. Whitley, 4 Russ. 423; 2 Sugden on Vendors, p. 138 (9th edit.). § 757, 758.] SPECIFIC PERFORMANCE. 743 there was no agreement in writing, but also that there was no such agreement by parol, as is charged in the bill. Upon this point some diversity of judicial opinion has also existed, and per- haps it is not now quite put at rest. But as this is rather a matter of pleading than of jurisdiction, it properly belongs to another place. 1 1 See Mitf . Eq. PI. by Jeremy, 265 to 268 ; Beames, Eq. PI. 176 to 187 ; Cooper Eq. PI. 255, 256; Newl. on Contr. ch. 10, p. 201 to 204; Story on Eq. Pleadings, § 761!, 766. See also note to 3 Ves. Jr. 38 (Amer. edit.). Mr. Fonblanque's note upon this point (1 Fonbl. Eq. B. 1, ch. 3, § 8, note d), as well as upon the preced- ing, is so valuable, that though long, it deserves to be cited at large in this place. "If a defendant " (says he) " confess the agreement charged in the bill, there is certainly no danger of fraud or perjury in decreeing the performance of such agreement. But it is of considerable im- portance to determine whether the de- fendant be bound to confess or deny a merely parol agreement not alleged to be in any part executed ; or, if he do confess it, whether he may not insist on the statute, in bar of the performance of it. The cases upon the first point are many in number, various in their circumstances, and the decisions upon them not imme- diately reconcilable. I shall therefore consider them in their principle rather than in detail. They who insist that the defendant is bound to confess or deny the agreement alleged principally rely on the rule of equity, that the defend- ant is bound to confess or deny all facts which, if confessed, would give the plaintiff a claim or title to the relief prayed ; and that, as equity would decree a parol agreement if confessed, the de- fendant must confess or deny it. It is certainly a general rule in equity, that the defendant shall discover whatever is ma- terial to the justice of the plaintiff's case ; but in applying this rule to the case of a parol agreement, it is previously material to ascertain, whether the statute of frauds has not, in such case, relieved the defend- ant from this general obligation. The prevention of frauds and perjuries is the declared object of the statute ; and the decreeing of a parol agreement, when con- fessed by the defendant, and the statute not insisted on, is evidently consistent with such object ; Nam quisque renuntiare potest juri pro se introducto. But if the defendant be bound to confess or deny the parol agreement, his answer must be either liable to contradiction, or not liable to contradiction. If the defendant's answer be liable to contradiction by evidence aliunde, the evil arising from contradic- tory evidence, which the statute proposed to guard against, would necessarily result. If the defendant's answer be not liable to contradiction by evidence aliunde, the rule would furnish a temptation to per- jury, by giving the defendant a certain interest in denying the agreement ; since, if he confessed it, he would be bound to perform it. If the defendant be bound to confess or deny the parol agreement insisted on by the plaintiff, one of the above consequences must necessarily ensue ; which of the two is likely to prove the most mischievous were, per- haps, difficult to decide ; for though the perjury which might take place, if con- tradictory evidence were allowed, is an evil of considerable size, yet the de- fendant's being liable to be contradicted, might operate as a check on his falsely denying that it was truly alleged. It seems, however, to have been the opinion of Lord Chancellor Thurlow, that the only effect of the statute is to preclude the plaintiff from resorting to evidence aliunde for the purpose of substantiating a parol agreement denied by the de- fendant. Whitchurch v. Bevis, 2 Bro. 566. See also Child v. Godolphin (1 Dick. 39), therein cited by Lord Chancellor Thurlow ; Cooth v. Jackson, 6 Ves. 39. This rule, which, when the agreement is in no part performed, renders the de- fendant's answer conclusive, may cer- tainly, in some instances, prevent fraud ; but it is possible that in other instances it may encourage perjury. To strike out the mean, by which the spirit of the statute might be preserved without 744 EQUITY JURISPRUDENCE. [CH. XVIII. § 759. In the next place, courts of equity will enforce a specific performance of a contract within the statute, where the parol agreement has been partly carried into execution. 1 The distinct ground, upon which courts of equity interfere in cases of this sort, is, that otherwise one party would be able to practise a fraud upon the other ; 2 and it could never be the intention of the statute to enable any party to commit such a fraud with impunity. Indeed, trenching on its provisions, is certainly difficult, perhaps impossible ; for it is clear that the statute intended to prevent fraud, as well as perjury ; and it cannot be denied, that the refusing to execute an agreement, deliberately and fairly en- tered into, merely because it was not re- duced into writing, is a fraud which, a court of conscience ought to discourage, but which it cannot discourage, if of such an agreement it cannot enforce a dis- covery. It would ill become me to pur- sue this point further ; the difficulties which I have stated are probably suf- ficient to explain and justify the con- trariety of opinion which has prevailed upon it. It remains, however, to con- sider, whether a defendant, having con- fessed the agreement alleged, can protect himself from the performance of it, by insisting on the statute ? This, which is also vexata quasstio, is almost immediately dependent on the former point ; for when Lord Macclesfield, in Child v. Godolphin, held that the defendant was bound to confess or deny the agreement, it seems to have been a necessary consequence, that if the defendant confessed the agree- ment, he should not be allowed to avail himself of the statute, for if he might avail himself of the statute, cui bono com- pel him to confess or deny the agreement. See Cottington v. Fletcher, 2 Atk. 155 ; La con v. Mertins, 3 Atk. 1. But see Kingsman v. Gingsinan, cited in 10 Mod. 404. But if the defendant be not bound to confess or deny the agreement, it must be in respect of the statute affording him a good defence against the perform- ance of it ; and if such be the effect of the statute, it should seem to be imma- terial, whether he set up such defence in the shape of a plea, or by his answer, the statute not having prescribed any mode in particular, by which a defendant must avail himself of such defence. See Stewart v. Careless, cited in Whitchurch .;. Bevis. It may be material here to observe, that even the caseB which most favor the opinion, that courts of equity may compel the performance, and, con- sequently, the discovery of merely parol agreements, require, that the terms of such agreement should be clear, definite, and conclusive; and, therefore, if the courts can collect the jus deliberandi, or locus painitentice to have been reserved, the contract shall not be considered as com- plete till reduced into writing, or in part performed. Whaley v. Bagenal, 6 Bro. P. C. 45; s. c. 1 Bro. Pari. Cas. 345 by Tomlins; Whitchurch v. Bevis, 2 Bro. 566; Clarke v. Grant, 14 Ves. 519; Mort- lock v. Buller, 10 Ves. 311." i Gilb. Lex Pretoria, p. 239, 240 ; 1 Fonbl. Eq. B. 1, ch. 3, § 8, and note (e). [It seems, that in Mississippi part per- formance will not take a case out of the statute. McGuire v. Stephens, 42 Miss. 724. So in Massachusetts before the recent enlargement of jurisdiction. Buck v. Dowley, 16 Gray, 555. The question now seems an open one, though in Glass v. Hulbert, 102 Mass. 24, p. 33, the Court inclines in favor of the jurisdiction. The rule as there laid down is, that fraud alone will not take a parol contract out of the statute. There must be " change of situation, or part performance creating an estoppel against the plea of the stat- ute." See Potter u. Jacobs, 111 Mass. 32 ; Northrop v. Boom, 66 111. 368 ; Fall v. Hazebrigg, 45 Ind. 576 ; Lowry v. Buffington, 6 W. Va. 249; Semmes v. Worthington, 38 Md. 298 ; Pierce v. Ca- tron, 23 Gratt. 588 ; Morgan v. Berger, 3 Neb. 209; Cole «. Cole, 41 Md. 301; Hall v. Whittier, 10 E. I. 530 ; Gregg v. Hamilton, 12 Kan. 133 ; Johnson v. Bow- den, 37 Tex. 621.] 2 Jacobs v. Peterborough & Shirley Eailroad Co., 8 Cush. 225. § 759, 760.] SPECIFIC PERFORMANCE. 745 fraud in all cases constitutes an answer to the most solemn acts and conveyances, and the objects of the statute are promoted, instead of being obstructed, by such a jurisdiction for discovery and relief. 1 And where one party has executed his part of the agreement, in the confidence that the other party would do the same, it is obvious, that if the latter should refuse, it would be a fraud upon the former to suffer this refusal to work to his preju- dice. 2 § 760. But the more difficult question is to ascertain what, in the sense of courts of equity, is to be deemed a part performance, so as to extract the case from the reach of the statute.' It seems formerly to have been thought, that a deposit, or security, or pay- ment of the purchase-money, or of a part of it, or at least of a considerable part of it, was such a part performance as took the case out of the statute. 3 But that doctrine was open to much controversy, and is now finally overthrown. 4 Indeed, the distinc- tion taken in some of the cases, between the payment of a small 1 See Attorney-General v. Day, 1 Ves. 221; Walker v. Walker, 2 Atk. 100; Taylor v. Beeeh, 1 Ves. 297 ; Buckmas- ter v. Harrop, 7 Ves. 346 ; Whitbread v. Broekhurst, 1 Bro. Ch. 417 ; s. c. 2 Ves. & B. 153, note ; Hawkins v. Holmes, 1 P. Will. 770; WiUs v. Stradling, 3 Ves. 378; Morphett v. Jones, 1 Swanst. 181 ; Hare v. Shearwood, 1 Ves. Jr. 242 ; Clinan v. Cooke, 1 Soh. & Lefr. 41 ; Mr. Raithby's note to Hollis v. Edwards, 1 Vern. 159 ; Newland on Contr. ch. 10, p. 179, 180, 181, 182; Mitford, Eq. PI. by Jeremy, 266 ; Rathbun v. Rathbun, 6 Barb. 98 ; 1 Fonbl. Eq. B. 1, ch. 3, § 8, notes (a), (6). 2 Ibid. ; 1 Fonbl. Eq. B. 1, ch. 3, § 8, note (e) ; 3 Wooddes. Lect. 57, p. 433, . 434; Newland on Contr. ch. 10, p. 179, 181 to 187. 8 Hales v. Van Berchem, 2 Vern. 618 ; Owen v. Davies, 1 Ves. 82; Skett o. Whitmore, 2 Freem. Ch. 281 ; Lacon v. Mertins, 3 Atk. 4 ; Main v. Melbourn, 4 Ves. 720, 724; Clinan v. Cooke, 1 Sch. & Lefr. 40, note (a) ; 3 Wooddes. Lect. 57, p. 427. * Clinan t. Cooke, 1 Sch. & Lefr. 40, 41 ; O'Herlihy v. Hedges, 1 Sch. & Lefr. 129; Jackson's Assignees v. Cutright, 5 Munf. 318; [Cuppy ». Hixon, 29 Ind. 622]. I am aware that this may seem strong language. But the direct dect sions and dicta in some cases in former times, — see 1 Ereem. 486, Case 664 (6) ; Leak v. Morrice, 2 Ch. Cas. 135 ; Alsopp v. Patten, 1 Vern. 472 ; Seagood v. Meale, Prec. Ch. 560; Pengal v. Ross, 2 Eq. Abr. 46, pi. 12, — and the positive decision of Lord Redesdale on the point, in Clinan v. Cooke, 1 Sch. & Lefr. 41, 42, seem to jus- tify it. Mr. Sugden has collected all the authorities in an able manner, with a very clear commentary, in his Treatise on Vendors, ch. 3, § 3, p. 107 to 112 (7th edit.) ; 1 Sugden on Vendors, ch. 3, § 7, note 10, p. 202 (10th edit), and holds the same opinion. Mr. Newland manifestly inclines to the same opinion. Newland on Contr. ch. 10, p. 187 to 191. There are also other modern cases, in which the contrary doctrine has been treated as doubtful. See Buckmaster v. Harrop, 7 Ves. 341, 346 ; Coles v. Trecothick, 9 Ves. 234, 240; Frame v. Dawson, 14 Ves. 388; Ex parte Hooper, 1 Meriv. 7, 8 ; s. c. 19 Ves. 479, 480 ; 1 Fonbl. Eq. B. 1, ch. 3, § 8, note (e) ; Astor v. L'Amoreux, 4 Sandf. 532; [Cronk v. Trumble, 66 Rl. 428 ; Berta Lodge v. Leleverton, 42 Tex. 18 ; McCatter v. Lawrence, 6 Thomp. & C. 107 ; Horn i: Ludington, 32 Wis. 73.] 746 EQUITY JURISPRUDENCE. [CH. XVIII. part and the payment of a considerable part of the purchase- money, seems quite too refined and subtle ; for, independently of the difficulty of saying what shall be deemed a small, and what a considerable part of the purchase-money, each must, upon principle, stand upon the same reason ; namely, that it is a part performance in both cases, or not in either. 1 One ground, why part payment is not now deemed a part performance, sufficient to take a case out of the statute, is, that the money can be recovered back again at law, and, therefore, the case admits of full and direct compensation. 2 This ground is not, however, quite satisfactory ; for the party may become insolvent before the judgment at law can be executed. Another ground has been stated, which certainly has more strength in it. It is, that the statute has said, in another clause (that which respects contracts for goods), that part payment, by way of earnest, shall operate as a part performance. And hence, the courts have considered this clause as excluding agreements for lands, because it is to be inferred, that, when the legislature said it should bind in the case of goods, and were silent as to the case of lands, they meant that it should not bind in the case of lands. 3 § 761. But a more general ground, and that which ought to be the governing rule in cases of this sort, is, that nothing is to be considered as a part performance which does not put the party 1 Mr. Sugden has made some striking with reference to the amount of the remarks on this subject, in his Treatise purchase-money, what is the proportion on Vendors, eh. 3, § 3, p. 112 (7th edit.) ; which ought to be paid ? Mr. Booth also 1 Sugden on Vendors, ch. 3, § 7, note 10, was impressed with this difficulty, al- p. 209 (10th edit.), which deserves to be though his sentiments are not so forcibly cited. "On this subject" (says he) " Sir expressed. Where, he asks, will you William Grant's admirable judgment, in strike the line 1 And who shall settle Butcher v. Butcher, must occur to every the quantum, that shall suffice in pay- discerning mind. It turns on a subject ment of part of any purchase-money, to so applicable to the present, that his ar- draw the case out of the statute, or as- gument, with a slight alteration, directly certain what shall be deemed so trifling bears upon it. To say that a considerable as to leave the case within it t " share of the purchase-money must be 2 1 Sugd. on Vendors, ch. 3, § 7, note given, is rather to raise a question, than 10, p. 209 (10th edit.), to establish a rule. What is a consider* 8 Clinan v. Cooke, 1 Sch. & Lefr. 40, able share, and what is a trifling sum 1 41 ; Pengall v. Ross, 2 Eq. Abr. 46, pi. 12. Is it to be judged of upon a mere state- [But see as to effect of payment, or ser- ment of the sum paid, without reference vices rendered in lieu thereof, where ven- to the amount of the purchase-money t If dor is insolvent, Chastain o. Smith, 30 so, what is the sum that must be given Geo. 96. Services of a son rendered on to call for the interference of the court 'i faith of parol promise that he should What is the limit of amount at which have the farm after his father's death, it ceases to be trifling, and begins to be was held part performance, in Davison v. substantial ? If it is to be considered Davison, 2 Beasl. (N. J.) 426. § 760-762.] specific performance. 747 into a situation which is a fraud upon him, unless the agreement is fully performed. 1 Thus, for instance, if upon a parol agreement a man is admitted into possession, he is made a trespasser, and is liable to answer as a trespasser, if there be no agreement valid in law or equity. 2 Now, for the purpose of defending himself against a charge as a trespasser, and a suit to account for the profits in such a case, the evidence of a parol agreement would seem to be admissible for his protection ; and if admissible for such a pur- pose, there seems no reason why it should not be admissible throughout. 3 A case still more cogent might be put, where a vendee, upon a parol agreement for a sale of land, should proceed to build a house on the land, in the confidence of a due comple- tion of the contract. In such a case, there would be a manifest fraud upon the party, in permitting the vendor to escape from a -due and strict fulfilment of such agreement. 4 Such a case is cer- tainly distinguishable from that of part payment of the purchase- money, for the latter may be repaid, and the parties are then just where they were before, especially if the money is repaid with interest. A man who has parted with his money is not in the situation of a man against whom an action may be brought, and who may otherwise suffer an irreparable injury. 5 § 762. In order to make the acts such as a court of equity will deem part performance of an agreement within the statute, it is essential that they should clearly appear to be done solely with a view to the agreement being performed. For, if they are acts which might have been done with other views, they will not take the case -out of the statute, since they cannot properly be said to be done by way of part performance of the agreement. 6 On this 1 Id. ; Savage v. Foster, 9 Mod. 37 ; Cortlandt, 14 Johns. 15. [That the im- |*Meach v. Perry, 1 D. Chip. 182; Gil- provements should be permanent and bert v . The East Newark Co., 1 Beasley, valuable, in order to constitute part per- Ch. 180; Glass v. Hulbert, 102 Mass. 24; formance, see Peckham v. Barker, "8 R. I. Cuppy v. Hixon, 29 Ind. 522 ; Pierce v. 17 ; Williams v. Evans, L. R. 19 Eq.. 547 ; Catron, 23 Gratt. 588.] Cole v. Pilkinton, L. K. 19 Eq. 174.] 2 See Eaton v. "Whitaker, 18 Conn. 6 Clinan v. Cooke, 1 Sch. & Lefr. 41, 222; Tilton a. Tilton, 9 N. Hamp. 386; 42. See Sutherland v. Briggs, 1 Hare, 26. Malins v. Brown, 4 Comst. 403 ; Pain o. [It seems to make no difference that the Cooms, 1 De G. & J. 34. occupancy has been of enough value to 3 Id., and Eoxcroft v. Lister, cited compensate for improvements. Mims v. Prec. Ch. 519; Vern. 456; Pengall v. Lockett, 33 Geo. 9.] Boss. 2 Eq. Ab. 46, PI. 12 ; post, § 763. « Gunter u. Halsey, Ambl. 586 ; s. c. 4 Eoxcroft v. Lister, cited 2 Vern. 456 ; 1 West, 681 ; Lacon v. Mertins, 3 Atk. 4 ; Prec. Ch. 519; Wetmore v. White, 1 Ex parte Hooper, 19 Ves. 479 ; Morphett Caines, Cas. Er. 87 ; Parkhurst v. Van v. Jones, 1 Swanst. 181 ; Phillips v. 748 EQUITY JURISPRUDENCE [CH. XVIII. account, acts, merely introductory or ancillary to an agreement, are not considered as a part-performance thereof, although they should be attended with expense. Therefore, delivering an abstract of title, giving directions for conveyances, going to view the estate, fixing upon an appraiser to value stock, making valuations, ad- measuring the lands, registering conveyances, and acts of the like nature, are not sufficient to take a case out of the statute. 1 They are all preliminary proceedings, and are, besides, of an equivocal character, and capable of a double interpretation ; whereas acts, to be deemed a part-performance, should be so clear, certain, and definite in their object and design, as to refer exclusively to a complete and perfect agreement, of which they are a part execution. 2 § 763. In like manner, the mere possession of the land con- tracted for will not be deemed a part performance, if it be ob- tained wrongfully by the vendee, or if it be wholly independent of the contract. Thus, if the vendee enter into possession, not under the contract, but in violation of it, as a trespasser [or under a right derived otherwise than by the contract 3 ], the case is not taken out of the statute. So, if the vendee be a tenant in possession under the vendor ; for his possession is properly referable to his tenancy, and not to the contract. 4 But if the possession be deliv- Thompson, 1 Johns. Ch. 149 ; Parkhur6t B. 1, ch. 3, § 8, note (c) ; Newland on v. Van Cortlandt, 1 Johns. Ch. 283, 284, Contr. ch. 10, p. 196, 197 ; Frame v. Daw- 285 ; 1 Fonbl. Eq. B. 1, ch. 3, § 8, note (c). son, 14 Ves. 386. [See Billingslea v. Ward, 33 Md. 48 ; 2 Ibid. ; Jacobs v. Peterborough & Shir- Knoll o. Harrey, 19 Wise. 99 ; Lester v. ley Railroad , 8 Cnsh. 224 ; Shepherd v. Kinne, 37 Conn. 9. It seems that the Shepherd, 1 Md. Ch. Dec. 244. part performance relied on must be such 8 [Jacobs v. Peterborough and Shirley as to give a mutual right to performance. Railroad, 8 Cush. 224. See Purcell v. See Smith v. McVeigh, 3 Stockt. (N. J.) Miner, 4 Wal. (U. S.) 513.] 239. The part performance must be by 4 Cole v. White, cited 1 Bro. Ch. 409 ; the complainant. The fact that defend- Wills v. Stradling, 3 Ves. 378 ; Smith v. ant has made a will in pursuance of an Turner, Prec. Ch. 561 ; Savage v. Carroll, oral antenuptial contract will not take it 1 B. & Beatt. 265, 282 ; Frame v. Dawson, out of the statute. Caton ». Caton, L. R. 14 Ves. 386 ; Lindsay v. Lynch, 2 Sch. & 1 Ch. App. 137. Per con., see Lowe v. Lefr. 1 ; O'Reilly v. Thompson, 2 Cox, Bryant, 30 Geo. 528. And see Whitridge 271 ; 1 Fonbl. Eq. B. 1, ch. 3, § 8, note v. Parkhurst, 20 Md. 62.] (e) ; Morphett v. Jones, 1 Swanst. 181 ; i Hawkins v. Holmes, 1 P. Will. 770 ; Sugden on Vendors, ch. 3, § 3, p. 104, 105 Pembroke v. Thorpe, 3 Swanst. 437; (7th edit.); 1 Sugden on Vendors, ch. 3, Clarke v. Wright, 1 Atk. 12 ; Whitbread § 7, n. 5 and 6, p. 200, 201 (10th edit.) ; v. Brockhurst, 1 Bro. Ch. 412 ; Whit- 3 Wooddes. Lect 57, p. 424 to 246 ; [Ro- church v. Bevis, 2 Bro. Ch. 559, 566 ; senthal v. Freeburger, 26 Md. 75 ; Maha- Redding v. Wilkes, 3 Bro. Ch. 400; na v. Blunt, 20 la. 142 ; Peckham v. Bar- Cooth v. Jackson, 6 Ves. 17 ; Sugden on ker, 8 R. I. 17 ; Crawford v. Wick, 18 Vendors, ch. 3, § 3, p. 104 (7th edit.); Ohio, w. a. 190]. Stokes v. Moore, 1 Cox, 219 ; 1 Fonbl. Eq. § 762-763 a.] specific performance. 749 ered and obtained solely under the contract ; or if, in case of ten- ancy, the nature of the holding, be different from the original tenancy, as by the payment of a higher rent, or by other une- quivocal circumstances, referable solely and exclusively to the contract ; there, the possession may take the case out of the stat- ute. Especially will it be held to do so, where the party let into possession has expended money in building or repairs, or other improvements ; for under such circumstances, if the parol con- tract were to be deemed a nullity, he would be liable to be treated as a trespasser ; and the expenditures would not only operate to his prejudice, but be the direct result of a fraud practised upon him. 1 [* § 763 a. In a recent case, 2 before the Court of Appeal in Chancery, it is suggested, by way of query, whether possession, taken previously, but continued after, a parol agreement, may not be such part performance as to exclude a defence founded on the statute of frauds. This rule has been applied with justice, we think, to estoppels by deed, where the deed was accepted while the party was in possession of land, which would of itself have been a sufficient title as against the plaintiff, but for the deed, which, to create the estoppel, must be regarded as a merger of the former possessory title of the grantor. 3 There is no reason why the, continuance of possession under a contract may not be regarded as much part performance as the taking possession under the con- tract. Where substantial improvements are subsequently made, 1 Butcher v. Staples, 1 Vern. 363 ; be held in Holmes v. Holmes, 44 111. 168, Pike v. Williams, 2 Vern. 455 ; Lockey v. that making improvements is not enough, Lockey, Prec. Ch. 518 ; Earl of Ayles- without payment of purchase-money. In ford's case, 2 Str. 783 ; Binstead v. this case the promise relied on was with- Colman, Bunb. 65 ; Lacon v. Mertins, out consideration, the possession was 3 Atk. 1 ; Wills v. Stradling, 3 Ves. 378 ; mixed, and the defendant had contrib- Kine u. Balfe, 2 B. &Beatt. 348; Denton v. uted to the improvements. Where a donee Stewart, 1 Cox, 258; Gregory v. Mighell, has made 'improvements, it is the same 18 Ves. 328 ; Morphea v. Jones, 1 Swanst. as if there were valuable consideration. 172 ; Sugden on Vendors, ch. 3, § 3, p. Galbraith v. Galbraith, 5 Kans. 402 ; 104, 105 (7th edit.); 1 Sug. on Vend. ch. Kurtz v. Hibner, 55 111. 514; Neale v. 3, § 7, n. 5 and 6, p. 200, 201 (10th edit.) ; Neale, 9 Wal. (U. S.) 1 ; Lobdell v. Lob- 1 Fonbl. Eq. B. 1, ch. 3, § 8, note (e) ; id. dell, 36 N. Y. 327 ; Bright «. Bright 41 § 9; ante, § 761. [See Nunn o. Fabian, 111. 97 ; Johnston r. Johnston, 19 la. 74; L. R. 1 Ch. App. 35; Spear v. Orendorf, Williston v. Williston, 41 Barb. (N. Y.) 26 Md. 37. See Blunt v. Tomlin, 27 111. 635 ; Freeman u. Freeman, 43 N. Y. 34. 93 ; Howe's Heirs v. Rogers, 32 Tex. 218 ; But see Thome v. Thome, 18 Ind. 462.] Brown v. Jones, 46 Barb. (N. Y.) 400; 2 [*Pain v. Coombs, 1 De Gex & J, Morrison v. Peay, 21 Ark. 110; Watson 34, 46. u. Mahan, 20 Ind. '223. But it seems to 8 Brooks v. Chaplin, 3 Vt. 281.] 750 EQUITY JURISPRUDENCE. [CH. XVIII. in faith of the contract, there could be no question it should be ' regarded as part performance.] § 764. But, in order to take a case out of the statute, upon the ground of part performance of a parol contract, it is not only in- dispensable that the acts done should be clear and definite, and referable exclusively to the contract, but the contract should also be established by competent proofs to be clear, definite, and une- quivocal in all its terms. 1 If the terms are uncertain, or ambigu- ous, or not made out by satisfactory proofs, a specific performance will not (as, indeed, upon principle it should not) be decreed. 2 The reason would seem obvious enough ; for a court of equity ought not to act upon conjecture ; and one of the most important objects of the statute was, to prevent the introduction of loose and indeterminate proofs of what ought to be established by solemn written contracts. 8 Yet it is certain, that, in former times, very able judges felt themselves at liberty to depart from such a reason- able course of adjudication, and granted relief, notwithstanding the uncertainty of the terms of the contract. In other words, the court framed a contract for the parties, ex aequo et bono, where it found none. 4 Such a latitude of jurisdiction seems unwarrantable upon any sound principle ; and, accordingly, it has been expressly renounced in more recent times. 5 It may, perhaps, be true, that, in such cases of part performance, the court will not be deterred from making an inquiry, before a master, into the terms of the contract, by the mere fact that all the terms are not sufficiently before the court to enable it to make a final decree. 6 But if such 1 See Charnley v. Hansbury, 1 Harris, 1 Johns. Ch. 149, 150 ; Parkhurst v. Van 10 ; [Delavan v. Duncan, 49 N. Y. 485]. Cortlandt, 1 Johns. Ch. 283 to 286 ; Beard 2 Waters v. Howard, 8 Gill, 277 ; [Les- u . Linthicum, 1 Md. Ch. Dec. 348 ; Lind- ter v. Kinne, 37 Conn. 9 ; Petrick a. Ash- say v. Lynch, 2 Sch. & Lefr. 6. croft, 4 C. E. Green, 339 ; Eyre v. Eyre, « Sugden on Vendors, ch. 3, § 3, p. 4 C. E. Green, 102 ; McNeill v. Jones, 21 114 to 118 (7th edit. ) ; 1 Sugden on Ven- Ark. 277]. dors, ch. 3, § 7, n. 19 to 32, p. 210 to 216 3 Owins v. Baldwin, 1 Md. Ch. Dec. (10th edit.) ; Allan v. Bower, 3 Bro. 123. Ch. 149, and Mr. Belt's notes, p. 151, 4 Anon., 5 Vin. Abr. 523, PI. 40 ; id. notes (2), (3) ; 1 Sch. & Lefr. 33, 36, 522, PI. 38 ; Anon., cited 6 Ves. 470 ; Allan 37 ; Harnett v. Yielding, 2 Sch. & Lefr. v. Bower, 3 Bro. Ch. 149. 555 ; 1 Fonbl. Eq. B. 1, ch. 3, § 7, note 5 See Boardman v. Mostyn, 6 Mes. 467, (x). I have used this language rather 470 ; Clinan ... Cooke, 1 Sch. & Lefr. 22, in deference to Sir Edward Sugden's 40; Symondson v. Tweed, Prec. Ch. 374; opinion (Sugden on Vendors, ubi supra), Eorster v. Hale, 3 Ves. 712, 713 ; Savage than because I am entirely satisfied v. Carroll, 1 B. & Beatt. 265, 551 ; s. c. that the authorities bear out the position. 2 B. & Beatt. 451; Toole id. 758 EQUITY JURISPRUDENCE. [ch. xvm. have seen) to be certain, fair and just in all its parts. 1 Courts of equity will not decree a specific performance in cases of fraud or mistake ; 2 or of hard and unconscionable bargains ; 3 or where the decree would produce injustice ; 4 or where it would compel the party to an illegal or immoral act ; or where it would be against public policy; 5 or where it would involve a breach of 1 Buxton ». Lister, 3 Atk. 385; Bra- shier v. Gratz, 6 Wheaton, 528 ; Hartnett v. Yielding, 2 Sch. & Lefr. 554 ; EUard v. Landaff, 1 B. & Beatt. 250 ; Seymour v. Delaneey, 6*Johns. Ch. 222 ; ante, § 693, 750, 751, 767, 792 ; Kendall v. Almy, 2 Sumner, 278. [* See also Drysdale v. Mace, 5 De G., M. & G. 103.] 2 See "Western Eailroad Corporation v. Babcock, 6 Met. 346. [See Davis o. Shepherd, L. E. 1 Ch. App. 410 ; Gilroy v. Alis, 22 la. 174. So where the court is not satisfied that the contract embodies the real intent of the parties. Pendleton v. Dalton, Phill. (N. C.) Eq. 119; Cham- bers v. Livermore, 15 Mich. 381 ; Mor- ganthau i\ White, 1 Sweeny (N. Y.), 395. Where agreement called for conveyance of a lot 120 feet deep " to, and including the stable on the rear of the premises," the land was conveyed 120 feet deep with- out mentioning the building, and it proved on survey that the building was not within the bounds given in agreement and deed, which both parties thought included it : Held, equity would not compel deed of the building. White v. Williams, 48 Barb. 222. That equity will not correct mistake by parol, and then enforce, see Climer v. Hovey, 15 Mich. 18; Glass v. Hulbert, 102 Mass. 43. Where mistake is not mu- tual, but parties can be restored to statu quo, equity will rectify with option on part of defendant to rescind Harris v. Pep- perell, L. R. 5 Eq. 1. See Bloomer v. Spittle, L. E. 13 Eq. 427 ; Gilroy v. Alis, 22 la. 174. Mistake originating in mere negligence and not caused by complain- ant, will not, it seems, prevent a decree for specific performance, where to refuse such decree would be injurious to com- plainant. Thompson v. Pittston, &c. Co., 7 Phila. 617.] » Gasgal v. Small, 2 Strobh. Eq. 72. * Webb v. Alton Mar. & Eire Ins. Co., 5 Gilman, 223. 6 [Complainant must do equity. So it seems, where justice requires that payment shall be made in a particular currency, e.g., gold, such payment may be made a condition of relief. Willard v. Taylor, 8 Wal. (U. S.) 557; but see Humphrey v. Clement, 44 111. 299. Equity will not enforce performance where complainant has been in fault, as where the vendor of an undivided inter- est made trouble with the cotenant, by which vendee was prevented from getting possession peaceably. Dech's Appeal, 57 Penn. St. 467"; or has refused to pay what he was in good faith bound to pay, McClellan v. Darrah, 50 111. 249 ; or has used undue influence, Brady's Appeal, 66 Penn. St. 277; Chambers v. Livermore, 15 Mich. 381 ; Piersol v. Neill, 63 Penn. St. 420 ; or has repudiated the contract, or elected against it, Eastman v. Plumer 46 N. H. 464 ; or has failed to perform what he on his side was bound to perform, or to show excuse therefor, Howe v. Conley, 16 Gray, 552 ; Thorp v. Pettit, 1 C. E. Green, 488 ; Cox v. Boyd, 38 Ala. 42 ; Board of Supervisors, &c. v. Henneberry, 41 111. 179. Where there is nothing to be done but to pay money, an offer to pay may be sufficient, but where the com- plainant is to perform services as the consideration of the sale, an offer is not enough, since he could not be compelled to perform the service. Cooper v. Pena, 21 Cal. 403; see Martin v. Veeder, 20 Wise. 466. Where the contract is illegal or against public policy, it cannot be en- forced. So contract of a director with his railroad. Flanagan v. Great Western R.R., L R. 7 Eq. 116 ; so where vendee bought under agreement to divide with a third party if he would not bid, Whitaker v. Bond, 63 N. C. 290 ; so where there were by-bidders, Mortimer v. Bell, L. R. 1 Ch. App. 10 ; so where purchase was to enable party to escape justice by leaving the State, Dodson v. Swan, 2 W. Va. 611 ; so contract against policy of land laws, § 769.] SPECIFIC PERFORMANCE. 759 trust ; or where a performance has become impossible ; 1 and, gen- erally, not in any cases where such a decree would be inequitable under all the circumstances. 2 Smith v. Johnson, 37 Ala. 633. But for cases where defendant was not permitted to set up illegality, the parties not being in pari delicto, see Pingree v. Coffin, 12 Gray, 288; Ereelove o. Cole, 41 Barb. (N. Y.) 318; Sandfoss v , Jones, 35 Cal. 481.] 1 [Impossibility. — In case of agreement by bond to lay out a way, a sale of the land by the obligee makes performance impossible. Smith u. Kelley, 56 Me. 64. "Where vendor is unable to procure title, and the vendee knew he was not owner when he contracted, performance will not be decreed. Love v. Cobb, 63 N. C. 324. So where vendor has conveyed to bona fide purchaser. Youell v. Alien, 18 Mich. 108. A decree for removal by vendor of en- cumbrances of which he had no control, was held erroneous. Jerome v. Scudder, 2 Bob. (N. Y.) 169. A conveyance during lis pendens, though in pursuance of con- tract before lis mota, does not create ina- bility, and is no excuse. Snowman v. Harford, 57 Me. 397.] 2 Sugderi on Vendors, ch. 3, § 4, p. 125 to 135 (7th edit.) ; 1 Sugden on Vendors, ch. 3, § 8, n. 18 to 28, p. 224 to 231 (10th edit.) ; id. ch. 4, § 3, n. 29 to 42, p. 337 to 343 ; id. § 5, n. 3 to 15, p. 381 to 386 ; King v. Hamilton, 4 Peters, 311; ante, § 650; Kimberley v. Jennings, 6 Sim. 340 ; Har- nett v. Yielding, 2 Sch. & Lefr. 554, 555; Jeremy on Equity Jurisd. B. 3, Pt. 2, ch. 4, § 1, p. 432, &c. ; Greenaway v. Adams, 13 Ves. 399,400; Denton v. Stuart, 1 Cox, 258; Cathcart v. Robinson, 5 Peters, 264 ; Mechanics' Bank of Alexandria v. Lynn, 1 Peters, 376 ; ante, § 750 a, 751. We have already seen, that Mr. Baron Alderson, in Attorney-General v. Sitwell, 1 Younge & Coll. 582, 583, expressed a strong opinion against a court of equity's undertaking, first, upon the ground of mistake to reform a contract, and then decreeing a specific performance of it. Ante, § 161, note, § 207, 769; post, § 787. [* See also Howard v. Edgell, 17 Vt. 9; Powers o.. Hale, 5 Foster, 145 Davidson v. Little, 22 Penn. St. 245 Viele v. Troy & B. Eailw., 21 Barb. 381 Glass o. Hulbert, 102 Mass. 43. Inade- quacy, improvidence, and change of value are not enough, in general, to prevent per- formance, there being no fraud or mistake. See Lee v. Kirby, 104 Mass. 420 ; Booten o. Scheffer, 21 Gratt. (Va.) 474; Chubb v. Peckham, 2 Beasl. (N. J.) 207. That inadequacy is not enough, unless gross, see Park v. Johnson, 4 Allen, 259 ; Pow- ers o. Mayo, 97 Mass. 180; Turley v. No well, Phill. (N. C.) Eq. 301; Losee v. Morey, 57 Barb. 561. But equity will consider circumstances of war, depre- ciated currency, &c. Hudson v. King, 2 Heisk. (Tenn.) 560. It is no objection to compelling conveyance that land of ven- dor is subject to a charge of maintaining a third person : the land passes subject to the trust. Downer v. Church, 44 N. Y. 647. It is no objection that the house on the premises has been burned. Brewer v. Herbert, 30 Md. 301. A contract for sale of land, on credit of one year, at 40 per cent above its cash cost, is not usurious. Casady v. Scallen, 15 la. 93. See Lee v. Kirby, 104 Mass. 420. Change of value, and vendor having at first been unable to make title, and then having become able to do so by discovery of a deed. Performance refused. Griffin v. Cunningham, 19 Gratt. ( Va.) 571 ; Young v. Rathbone, 1 C. E. Green, 224. Con- tract under erroneous belief that chattel mortgage would be security. Perform- ance refused. Patterson v. Bloomer, 35 Conn. 57. The circumstances must be such as to make it strictly equitable, to decree specific performance. Backus's Appeal, 58 Penn. St. 186; McCarty v. Kyle, 4 Cold. (Tenn.) 348; Daniel v. Erazer, 40 Miss. 507. Performance re- fused where consideration, Confederate money, had become worthless. Love o. Cobb, 63 N. C. 324. Contracts in restraint • of trade, even if good at law, not enforced in equity, if hard or complicated. Keeler v. Taylor, 53 Penn. St. 467. A contract- among cotenants, giving arbitrary powers to majority, not enforced. Harkness v. Remington, 7 R. I. 154. So agreement between cotenants not to sell, without 760 EQUITT JURISPRUDENCE. [CH. XVIII. [* § 769 a. A very curious case was recently decided, in the Court of Appeal, by the Lord Chancellor Chelmsford, and the Lords Justices, in a suit for specific performance. A vendor insisted on executing the purchase deed, without the purchaser or any agent on his behalf being present ; and also insisted on the purchase-money being paid, not to himself, but to his solicitor, or his clerk, to neither of whom had he given any written authority to receive it. On the purchaser declining to complete the pur- chase in that mode, the vendor brought an action for the. purchase- money. In giving judgment, the court characterized the conduct of the vendor as frivolous, insulting, and suspicious; and held that he ought to pay all the costs, both at law and in equity ; and gave him, for the benefit of others in similar temptation, a very salutary admonition not to attempt to be too curious in the detail of common matters, but take the common course. They say these matters are to be regulated by reason and courtesy. 1 It has been decided, that in the absence of any express stipulation, the expenses and outgoings of property, such as the repairs and re- newals of premises, and machinery, in the case of mills, when sold, must be borne by the vendors, down to the time when the purchaser could prudently take possession ; i.e., when good title was shown. 2 The validity of a leasehold title depended on the lessor's assent to the assignment. The assent was not given until after suit by the vendor. It was held that the vendor must bear the rent, rates, taxes, and outgoings, down to the date of the assent, and that the purchaser must pay interest from that time. A purchaser who had altogether denied the vendor's right to spe- giving refusal, not enforced against dev- dee, where agreement for sale of land of isees. Weisman u. Smith, 6 Jones, Eq. A. and B. to C. did not bind B., being (N. C.) 124. Where plaintiff has already made by agent without his authority, got a deed of just what he bargained Snyder v. Neefus, 53 Barb. 63. But a for, but his contract by legal construction unilateral agreement or option may be may embrace more, equity will not aid enforced after performance of condition, him. Conover v. Wardell, 5 C. E. Green, See Perkins v. Hadsell, 50 111. 216 ; Vine- 266. Equity will enforce contracts only yard v. Smith, 34 Tex. 454 ; Corson o. where mutual. See Ewins v. Gordon, Mulvany, 49 Penn. St. 88 ; Ivory v. Mur- 49 N. H. 444 ; Jones v. Noble, 3 Bush phy, 36 Mis. 534. But not without con- (Ky.), 694; Phillips o. Mining, &c. Co., sideration. Hawralty v. Warren, 3 C. E. 7 Phila. B. 619 ; Marble Co. v. Ripley, Green, 124. And that equity will not en- 10 Wal. (U. S.) 339; Meason v. Kaine, force a merely voluntary contract, see 63 Penn. St. 335; Billingslea v. Ward, Oxley v. Tryon, 25 la. 95; Smith v. 33 Md. 48. Where valid provision was Wood, 12 Wise. 382.]. in consideration of void provision, equity 1 [* Viney v. Chaplin, 2 De G. & J. will not enforce. Butman v. Porter, 100 468. Mass. 337. Refused, in suit against ven- 2 Carrodus v. Sharp, 20 Beavan, 66. § 769 a, 769 6.] specific performance. 761 cific performance, ordered to pay the costs of suit, instituted by the vendor for that purpose, down to the hearing, although the title was not finally completed until after the decree. 1 But where in the terms of the agreement there is a provision for compensa- tion in case of mistake or error in the particulars, the fact of such mistake or error occurring is no sufficient ground for denying spe- cific performance. 2 So, also, where the property has diminished in value, or has been deteriorated by permissive waste, and the com- pletion of the purchase in the mean time has been delayed by the vendor in possession, the purchaser is entitled to compensation. 3 Objections to the abstract of title furnished must be made in a reasonable time, or they will be considered as waived. 4 And where the defendant agreed to purchase the property on the valu- ation of a person named, the court decreed specific performance, although it considered the valuation very high " and perhaps exor- bitant," there appearing neither " fraud, mistake, or miscarriage." s And where a vendor reserves the right of rescinding, in the event of the purchaser objecting to " the title, conveyance, or otherwise, and should insist thereon," it was held that this was not a mere arbitrary power of rescission upon the objection being made, but that he must answer the objection if he could, and wait to see whether the purchaser would insist. 6 Specific performance will not be decreed after considerable lapse of time. 7 ] § 769 b. It sometimes happens that a contract involving the sale and conveyance of land becomes impossible by reason of the title proving defective, and at the same time the vendee may have taken possession, and insist upon strict performance on the part of the vendor and also decline to surrender possession on the ground of not being in fault. This subject is largely discussed and in a very interesting manner, by the Master of the Rolls in a late case. 8 His lordship here came to the conclusion that such a contract must be treated the same as if never made, as to any act of possession 1 Carrodus v. Sharp, 20 Beavan, 56. 6 Collier v. Mason, 25 Beavan, 200. 2 Hoy v. Smythies, 22 Beavan, 510. "> Greaves v. Wilson, 25 Beavan, 290. Though the conditions of sale exclude See also Gedye v. The Duke of Mont- compensation for error, this will not he rose, 26 Beavan, 45. held to apply to so material an error as 7 Alloway v. Braine, 26 Beavan, 575.] a deficiency of 180 square yards out of 8 Mullins v. Hussey, 12 Jur. n. s. 636 753. Whittemore v, Whittemore, L. E. [Mclndoe v. Morman, 26 Wise. 588 8 Eq. 603. Davison v. Perrine, 7 C. E. Green, 87] 8 Begent's Canal Co. v. Ware, 23 Eoley v. Crow, 37 Md. 51 ; Marshall ». Beavan, 575. Caldwell, 4 Cal. 611. * Bown v, Stenson, 24 Beavan, 631. 762 EQUITY JURISPRUDENCE. [CH. XVIII. under it or specific performance, leaving the party to any redress he might have for damages in an action at law. In the case before the court, a suit had been agreed to be compromised on the ground of selling the estate in controversy and dividing the proceeds between the parties in a stipulated proportion. The court held the compromise had failed, by reason of the defect of title, and that the party was entitled to prosecute the suit. § 770. But courts of equity do not stop here ; for they will let in the defendant to defend himself, by evidence to resist a decree, where the plaintiff would not always be permitted to establish his case by the like evidence. Thus, for instance, courts of equity will allow the defendant to show, that, by fraud, accident, or mis- take, the thing bought is different from whdt he intended ; 1 or that material terms have been omitted in the written agreement ; or that there has been a variation of it by parol ; 2 or that there has been a parol discharge of a written contract. 3 The ground of 1 Malms v. Freeman, 2 Keen, 25, 34. 2 [Quinn v. Roath, 37 Conn. 16 ; Ryno v. Darby, 5 C. E. Green, 231. But see Merkle v. Wehrheim, 32 111. 534.] 8 Joynes v. Statham, 3 Atk. 388 ; Woollam v. Hearn, 7 Ves. 211 ; Towns- hend v. Stangroom, 6 Ves. 328 ; Clarke v. Grant, 14 Ves. 519; 15 Ves. 523; Winch v. Winchester, 1 Ves. & Beam. 375 ; Price v. Dyer, 17 Ves. 356 ; Rich v. Jack- son, 4 Bro. Ch. 514 ; 6 Ves. Jr. 334, note ; Robson o. Collins, 7 Ves. 130 ; Ogilvie v. Foljambe, 3 Meriv. 53; King v. Hamil- ton, 4 Peters, 311 ; Squire v. Campbell, 1 Mylne & Craig, 180; The London and Birmingham Railway Co. v. Winter, 1 Craig & Phillips, 60, 61/63; Pope v. Gar- land, 4 Younge & Coll. 394 ; Hepburn v. Dunlop, 1 Wheat. 179 ; Malins v. Free- . man, 2 Keen, 25, 34 ; 1 Fonbl. Eq. B. 1, ch. 6, § 2, note (e) ; 3 Wooddes. Lect. 57, p. 428 ; Jeremy on Eq. Jurisd. B. 3, Pt. 1, ch. 4, § 1, p. 432, &c. ; ante, § 153, 154, 155, 750 a. The cases on this sub- ject are very numerous, and are com- mented on with great care by Sir Ed- ward Sugden, in his Treatise on Vendors, ch. 3, § 4, p. 125 to 140 (7th edit); 1 Sugden on Vendors, ch. 3, § 8, u. 18 to 28, p. 224 to 231 (10th edit.), to which the reader is referred. I have cited only a few of the more prominent cases to support the text. Sir Edward Sugden states, that whether an absolute parol discharge, not followed by any other agreement, upon which the parties have acted, can be set up, even as a defence in equity, is questionable. He gives the re- sult of the authorities, as to a parol varia- tion, as follows : " 1. That evidence of it is totally inadmissible at law. 2. That in equity the most unequivocal proof of it will be expected. 3. That if it be proved to the satisfaction of the court, and be such a variation as the court will act upon ; yet, it can only be used as a defence to a bill demanding a specific per- formance, and is inadmissible, as a ground to compel a specific performance ; unless, 4. There has been such a part perform- ance of the new parol agreement as would enable the court to grant its aid in the case of an original independent agreement; and then in the view of equity, it is tantamount to a written agreement." The case of Omerod v. Hardman, 5 Ves. 722, turned upon a different point. There the object of the parol evidence was not to establish any fraud or mistake of the intention of the parties, but to add a new term to the contract by parol, which was held inad- missible, even as a defence against a specific performance. See also Newland on Contracts, ch. 10, p. 206 to 211. [Parol waiver inducing change of situatic n by § 769 5-770 a.] specific performance. 763 this doctrine is that which has been already alluded to, that courts of equity ought not to be active in enforcing cjaims, which are not, under the actual circumstances, just, as between the parties. The statute has said, that no person shall be charged with the execu- tion of an agreement, who has not personally, or by his agent, signed a written agreement. But the statute does not say, that, if a written agreement is signed, the same exceptions shall not hold to it, as did before the statute. Now, before the statute, if a bill had been brought for a specific performance, and it had appeared that the agreement had been prepared contrary to the intentions of the defendant, he might have resisted the performance of it. The statute has made no alteration in this respect in the situation of the defendant. It does not say a written agreement shall bind ; but only that an unwritten agreement shall not bind. 1 § 770 a. But in the case of a plaintiff seeking the specific per- formance of a contract, if it is reduced to writing, courts of equity will not (as has just been hinted), ordinarily, entertain a bill, to decree a specific performance thereof with variations or additions, or new terms, to be made and introduced into it by parol evidence ; for, in such a case, the attempt is to enforce a contract partly in writing and partly by parol ; and courts of equity deem the writ- ing to be higher proof of the real intentions of the parties than any parol proof can generally be, independently of the objection which arises, in many cases, under the statute of frauds. 2 There are, however, certain exceptions to this doctrine, which have been allowed to_ prevail; as, for example, where the omission has been by fraud; 3 and in cases not within the reach of the statute of frauds, where there has been a clear omission by mistake. 4 So, also, 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 of the written contract, with such variations other party, is a defence. Huffman v. way Co. v. Winter, 1 Craig & Phillips, Hummer, 3 C. E. Green, 83.] 67, 62 ; ante, § 770 ; Gray v. Tubbs, 43 1 Clinan v. Cooke, 1 Sch. & Lef r. 39; Cal. 359; Snelling v. Thomas, L. E. 17 Rann v. Hughes, 7 Term, 350, note ; Eq. 303. Clarke v. Grant, 14 Ves. 524. » Ante, § 152, 153, 154. 2 Joynes v. Statham, 3 Atk. 388; i Henkle v. Royal Exch. Assur. Co., Townshend v. Stangroom, 6 Ves. 328 ; 1 "Ves. 317 ; Motteux v. London Assur. Eamsbottom v. Gosden, 1 Ves. & Beam. Co., 1 Atk. 545; ante, § 152, 155; past, 165 ; The London and Birmingham Bail- § 1018. 764 EQUITY JURISPRUDENCE. [CH. XVIII. or additions so set up ; for, under such circumstances, there is a written admission of each party to the parol variation or addition, and there can be no danger of injury to the parties, or evasion of the rules of evidence, or of the statute of frauds. 1 So, the court may decree a specific performance in favor of the plaintiff, not- withstanding he does not make out the case stated by his bill, if he offers to comply with the contract as set forth in the defendant's answer, and as the defendant states it. 2 [* § 770 b. But in a very late case before the Master of the 1 The London & Birmingham Railway Co. v. Winter, 1 Craig & Phillips, 57. On this occasion, Lord Cottenham said : " This is not a case within the meaning of those decisions, in which the court has said that it will not specifically perform the contract with a variation. If the court finds a written contract has been entered into, and the plaintiff says, ' That was agreed upon, but then there were certain other terms added, or certain variations made,' the court holds, that in such a case the contract is not in the writing, but in the terms, which are ver- bally stated, to have been the agreement between the parties ; and therefore re- fuses specifically to perform such an agreement. On the other hand, it is quite competent for the defendant to set up a variation from the written contract ; and it will depend on the particular circum- stances of each case, whether that is to defeat the plaintiff's title to have a speci- fic performance, or whether the court will perform the contract, taking care that the subject-matter of this parol agreement or understanding is also carried into effect, so that all parties may have the benefit of what they contracted for. That this is the rule of the court is sufficiently es- tablished in many cases, of which I will only mention three : Joynes v. Statham, 3 Atk. 388, by Lord Hardwicke ; Towns- hend v. Stangroom, 6 Ves. Jr. 328, by Lord Eldon ; and Ramsbottom v. Gosden, 1 Ves. & Beames, 165, by Sir William Grant. In the last mentioned case, Sir William Grant put it to the plaintiff whether he would take a specific perform- ance with the performance of the condi- tion established by parol testimony, or whether he would have the bill dismissed. The only doubt, therefore, I should have had, if Mr. Wigram had declined, on the part of the plaintiffs, to comply with the terms mentioned by the witness, would have been, whether, in this case, the variation was so stated as to entitle the defendant to the benefit of it ; because he does not state it in his answer, nor. does he prove it, nor attempt to prove it ; but it comes out on the cross-examination of the plaintiff's witness. On such a statement, not put in issue between the parties, and which the plaintiffs had, therefore, no op- portunity of meeting, I should certainly not have thought it right to act ; but as it appears, on the evidence before the court, that such an understanding existed, I should probably have thought it a fit sub- ject of inquiry, before I finally disposed of the case, if the course taken by the plaintiffs had not made it unnecessary for me to consider the point." See ante, § 755. See Ryno v. Darby, 5 C. E. Green, 231. 2 1 Daniell, Ch. Pr. 513, 514, which cites Lindsay v. Lynch, 2 Sch. & Lefr. 9 ; Woollam v. Hearn, 7 Ves. 22 ; Deniston v. Little, 2 Sch. & Lefr. 11, note (2) ; ib. 149, note (2) ; Story on Eq. Plead. § 394. [That where, on bill to enforce parol con- tract, different contract is set up and proved, plaintiff should not, as general rule, be allowed to dismiss bill, but per- formance should be decreed, if it will work no injustice, see McComas v. Easley, 21 Gratt. ( Va.) 23. So if the fulfilment of a certain part of the contract is orally waived, and the part so waived does not ef- fect the essential rights of the parties, spe- cific performance may be decreed. Port- land, &c. R.R. Co. v. Grand Trunk R. Co., 63 Me. 90. So the non-performance of an independent but collateral contract is no bar to a bill for specific performance. Stewart v. Metcalf, 68 111. 109.] § 770 0-771.] SPECIFIC PERFORMANCE. 765 Rolls, it was decided, that where the defendant set up in his answer a different agreement from that which the plaintiff sought to have enforced, and one which the plaintiff had always repudiated, he was not entitled to have the agreement set up by defendant specifically performed. 1 And it must be obvious to every one familiar with the proceedings in courts of equity, that, under such circumstances, the plaintiff could never claim to have the contract admitted by defendant made the basis of a decree in his favor, when it differed essentially from the one alleged in his bill ; since the decree must correspond with the allegations in the bill, as well as with the proof. And it is always matter of discretion in the court, whether to allow an amendment in the bill, after issue joined. But when the parties come to an agreement in regard to the true state of the facts, it is usual to allow the plaintiff to with- draw his replication and so amend his bill, or to take such a decree as the admissions in the defendant's answer will entitle him tn have. 2 ] § 771. In general, it may be stated that, to entitle a party to a specific performance, he must show that he has been in no default in not having performed the agreement, and that he has taken all proper steps towards the performance on his own part. 3 If he has been guilty of gross laches, or if he applies for relief after a long lapse of time, unexplained by equitable circumstances, his bill will be dismissed ; for courts of equity do not, any more than courts of law, administer relief to the gross negligence of suitors. 4 But this doctrine is to be taken (as we shall presently see) with some qualifications. For, although courts of equity will not encourage laches, yet if there has not been a strict legal compliance with the terms of the contract, and the non-com- pliance does not go to the essence of the contract, relief will be granted. 5 i [* Jeffery o. Stephens, 6 Jur. N. s. 5 Vea. 720, note ; Moore v. Blake, 1 E. & 947. See Eichardson v. Godwin, 6 Jones, Beatt. 68, 69 ; King v. Hamilton, 4 Peters, Eq. (N. C.) 229. 311, 328; Watson v. Reid, 1 Euss. & 2 Doe v. Doe, 37 N. H. 268 ; Buck v. Mylne, 236 ; Page v. Broom, 4 Euss. 6 ; Dowley, 16 Gray, 555.] Watts v. Waddle, 6 Peters, 389 ; McNeil 8 1 Fonbl. Eq. B. 1, ch. 6, § 2, and v. Magee, 5 Mason, 244; Coulson v. Wal- notes (c), (d) ; Gilbert, Lex Praetor. 240 ; ton, 9 Peters, 62 ; Holt v. Eogers, 8 Peters, Colsonu. Thompson, 2 Wheaton, 336, 341; 420; Baldwin v. Salter, 8 Paige, 473; Kendall v. Almy, 2 Sumner, 278. Vigers v. Pike, 8 Clark & Fin. 650. * Ibid, and note (e) ; Pratt v. Carroll, 5 Post, § 776, 777; Taylor v. Long- 8 Cranch, 471; Br-ashier v. Gratz, 6 worth, 14 Peters, 170 ; |* Fuller v. Hovey, Wheaton, 528 ; Milward v. Earl of Thanet, 2 Allen, 324 ; Todd v. Taf t, 7 Allen, 371. 76b EQUITY JURISPRUDENCE. [CH. XVIII. § 772. It lias been laid down, that, if a man has performed a valuable part of an agreement, and is in no default for not per- forming the residue, there it is but reasonable that he should have a specific execution of the other part of his contract, or at least should recover back what he has paid, so that he may not be a loser. For, since he entered upon the performance, in contempla- tion of the equivalent from the other party, there is no reason why an accidental loss should fall upon him any more than upon the other. 1 A distinction has been put upon this subject by Lord Chief Baron Gilbert, which is entitled to consideration because it apparently reconciles authorities which might otherwise seem dis- cordant. It is the distinction between cases in which the plaintiff is in statu quo as to all that part of his agreement which he has performed, and those cases in which he is not in statu quo. In But if the contract is not in a condition to be performed substantially as made, the court will not interfere. Park v. Johnson, 4 Allen, 259. In a very late case in the Court of Chancery Appeal, Collier v. Mc- Bean, 12 Jur. w. s. 1 ; s. c. Law Bep. 1 Ch. App. 81, it was said, that where a bill for specific performance by a vendor has been dismissed in the court below on a question of title, it requires a very strong case for the Court of Appeal to force the title upon the purchaser. But a merely formal objection to the title is no impedi- ment to a decree of specific performance. Minton v. Kirwood, 12 Jur. N. s. 86. Un- reasonable delay, especially where im- provements have intervened, &c, will bar performance. Du Bois v. Baum, 46 Penn. St. 537 ; Boston, &c. R.B. v. Bartlett, 10 Gray, 384; Johns w.Norris,7 C.E. Green, 102; Norris v. Knox, 1 Pittsb. B. 56; Haughwout a. Murphy, 6 C. E. Green, 118; Lawrences. Lawrence, ib. 317; Mer- ritt v. Brown, ib. 401; Hubbell v. Van Schoening, 58 Barb. 498 ; Campbell v. Hicks, 19 Ohio, n. s. 433; Eppinger n. McGreal, 31 Tex. 147 ; Eyre i». Eyre, 4 C. E. Green, 102 ; Andrews k, Bell, 56 Penn. St. 343 ; Cadwallader's Appeal, 57 Penn. St. 158 ; Nelson v. Hagerstown Bank, 27 Md. 61 ; Addington v. McDon- nell, 63 N. C. 389 ; Thompson v. Bruen, 46 111. 125; Gentry v. Eogers, 40 Ala. 442; Gariss v. Gariss, 1 C. E. Green, 79 ; Van Doren v. Robinson, 1 C. E. Green, 256 ; Miller v. Henlan,51 Penn. St. 265 : Glass- cock v. Nelson, 26 Tex. 150; Smith v. Lawrence, 15 Mich. 499 ; Tibbs v. Morris, 44 Barb. 138 ; Johnson v. Hopkins, 19 la. 49; Van Zandt v. New York, 8 Bosw. 375 ; Conway v. Kinsworthy, 21 Ark. 9 ; Fuller v. Hovey, 2 Allen, 324 ; McClin- toek v. Laing, 22 Mich. 212 ; Iglehart v. Gibson, 56 111. 81 ; Mason v. Owen, 56 111. 259; Rose v. Swann, 56 111. 37; Williams v. Hart, 116 Mass. 513; Short- all v. Mitchell, 57 111. 161; Peters v. Delaplane, 49 N. Y. 362; Hubbell v. Van Schoening, 49 N. Y. 326; Phelps v. Illinois Central R.R. Co., 63 111. 468. Where the plaintiff has not been grossly negligent, and compensation is possible, or where there has been default on both sides, &c, equity will enforce, although contract has not been strictly complied with. Spalding o. Alexander, 6 Bush (Ky.), 160; Ashmore v. Evans, 3 Stockt. (N. J.) 151 ; Snowman v. Harford, 55 Me. 197 ; De Camp v. Crane, 4 C. E. Green, 166; Mix v. Beach, 46 111. 311 ; Farris v. Bennett, 26 Tex. 568 ; Laverty v. Hall's Admx., 19 la. 526; Williston a. Williston, 41 Barb. (N. Y.) 635; Richmond v. Rob- inson, 12 Mich. 193 ; Morris v. Hoyt, 11 Mich. 9 ; Pritchard v. Todd, 38 Conn. 413 ; Delavan v. Duncan, 49 N. Y. 485. Delay is not, it seems, a bar, where possession has been given and continued. Stretch o. Schenck, 23 Ind. 77; Green v. Finin, 35 Conn. 178.] 1 1 Fonbl. Eq. B. 1, ch. 6, § 3 ; Gilb. Lex Prator. 240, 241 ; post, § 775, 976. § 772-774.] specific performance. 767 the former cases, equity will not enforce the agreement, if the plaintiff cannot completely perform the whole of his part of it ; in the latter cases, equity will not enforce it, notwithstanding he is incapable of performing the remainder by a subsequent acci- dent. 1 § 773. Thus upon a marriage settlement, A. contracted to settle a manor on his wife and the heirs of their bodies, and to clear it of encumbrances, and to settle a separate maintenance on her, and likewise to sell some pensions, in order to make a further pro- vision for her and the issue of the marriage ; and his father-in- law agreed to settle £3000 per annum on A. for life, remainder to the wife for life, and so to the issue of the marriage. A. cleared the manor of encumbrances, and settled it accordingly, and settled also the separate maintenance ; but he did not .sell the pensions, nor settle the further provisions. The wife died without issue ; and A. brought his bill to have the £3000 settled on him during his life. The court refused to decree it ; because A. was in statu quo, as to all that part of the agreement which he had performed, and not having performed the whole, and the other part being now impossible, and no compensation being possible to be adjusted for it, he had no title in equity to a specific perform- ance, since such performance would not be mutual. But the issue of A., if any, might have been relieved, because they would have been in no default. This case illustrates the first propo- sition. 2 § 774. But (which is the second case) if a man has performed so much of the agreement, as that he is not in statu quo, and is in no default for not performing the residue, there he shall have a specific execution of the agreement from the other party. As, if a man has contracted for a portion to be received with the wife, and has agreed to settle lands of a certain value upon the wife, and her issue free of encumbrances ; and he sells part of his lands to disencumber the other lands, and is proceeding to disencumber and settle the rest. In such a case, if the wife should die without issue 1 Gilb. Lex Praetor. 240 ; 1 Fonbl. Eq. to have been put in the reports upon the B. 1, ch. 6, § 3, note (/) ; Newland on ground that the covenants of the plaintiff Contr. ch. 12, p. 249. were by way of condition precedent, 2 Gilb. Lex Prsetor. 240, 241 ; Fever- which could not be dispensed with in sham v. Watson, Eep. temp. Finch, 445 ; equity. Eep. temp. Finch. 447 ; 2 Freem. s. c. 2 Freem. 35. But see Hovenden's 35. See Newland on Contracts, ch. 12, note to 2 Freem. 35 (4). The case seems p. 249, 250. 768 EQUITY JURISPRUDENCE. [ch. xvm. before the settlement is actually made, yet he shall have the por- tion, because he cannot be placed in statu quo, having sold a part of his lands ; and there was no default in him, since he was going on to perform his contract ; and, therefore, the accident of the wife's death shall not prejudice him. 1 § 775. Where the terms of an agreement have not been strictly complied with, or are incapable of being strictly complied with ; still, if there has not been gross negligence in the party, and it is conscientious that the agreement should be performed; and if compensation may be made for an injury occasioned by non-com- pliance with the strict terms ; in all such cases courts of equity will interfere, and decree a specific performance. For the doc- trine of courts of equity is, not forfeiture, but compensation ; 2 and nothing but such a decree will, in such cases, do entire justice between the parties. 3 Indeed, in some cases courts of equity will decree a specific execution, not according to the letter of the con- tract, if that will be unconscientious; but they will modify it according to the change of circumstances. 4 1 Gilb. Lex Praetor. 241, 242; Mere- dith v. Wynn, 1 Eq. Abr. 71 ; s. o. Prec. Ch. 312 ; 1 Ponbl. Eq. B. 1, ch. 6, § 4, note (/). 2 Page v. Broom, 4 Buss. 6, 19 ; ante, §712; post, §776. 8 Davis v. Hone, 2 Sch. & Lefr. 347 ; Lennon v. Napper, 2 Sch. & Lefr. 684 ; 1 Fonbl. Eq. B. 1, ch. 6, § 2, note (e) ; Jeremy on Eq. Jurisd. B. 3, Pt. 2, ch. 4, § 1, p. 460, 461 ; Winne v . Reynolds, 6 Paige, 407 ; Taylor v. Longworth, 14 Peters, 173. 4 Ibid. ; ante, § 759 a. [See Spalding v. Alexander, 6 Bush (Ky.), 160.] Me- chanics' Bank of Alexandria v. Lynn, 1 Pe"ters, 376. On this occasion, Mr. Justice Thompson, in delivering the opinion of the court, said : " But the court ought not to decree performance according to the letter, when, from change of circum- stances, mistake, or misapprehension, it would be unconscientious so to do. The court may so modify the agreement, as to do justice, as far as circumstances will permit, and refuse specific execution, un- less the party seeking it will comply with such modifications as justice requires." The remarks of Lord Redesdale on this same point deserve to be cited at large. " A court of equity," says he, " frequently decrees specific performance where the action at law has been lost by the de- fault of the Very party seeking the speci- fic performance, if it be, notwithstanding, conscientious, that the agreement should be performed ; as in cases where the terms of the agreement have not been strictly performed on the part of the person seek- ing specific performance, and to sustain an action at law performance must be averred according to the very terms of the contract, nothing but specific execu- tion of the contract, so far as it can be executed, will do justice in such a case." Davis v. Hone, 2 Sch. & Lefr. 347. Again, in Lennon v. Napper, 2 Sch. & Lefr. 684, he said : " The courts, in all cases of con- tracts for estates in land, have been in the habit of relieving, where the party, from his own neglect, had suffered a lapse of time, and from that, or other circum- stances, could not maintain an action to recover damages at law. And even where nothing exists to prevent his suing at law, so many things are necessary to enable him to recover at law, that the formalities alone render it very inconven- ient and hazardous so to proceed ; nor could, in many cases, the legal remedy be adequate to the demands of justice. § 774-776.] SPECIFIC PERFORMANCE. 769 § 776. One of the most frequent occasions on which courts of equity are asked to decree a specific performance of contract is, where the terms for the performance and completion of the con- tract have not, in point of time, been strictly complied with. Time is not generally deemed in equity to be of the essence of the con- tract, unless the parties hare expressly so treated it, or it necessa- rily follows from the nature and circumstances of the contract. 1 Courts of equity have, therefore, enforced contracts specifically, where no action for damages could be maintained ; for, at law, the party plaintiff must have strictly per- formed his part, and the inconvenience of insisting upon that in all cases was suffi- cient to require the interference of courts of equity. They dispense with that which would make compliance with what the law requires oppressive ; and in various cases of such contracts, they are in the constant habit of relieving the man who has acted fairly, though negligently. Thus, in the case of an estate sold by auction, there is a condition to forfeit the deposit, if the purchase be not com- pleted within a certain time ; yet the court is in the constant habit of relieving against the lapse of time. And so in the case of mortgages, and in many instances, relief is given against mere lapse of time, where lapse of time is not essential to the sub- stance of the contract. 1 Newland on Contr. ch. 12, p. 230 to 255; 1 Fonbl. Eq. B. 1, ch. 6, § 2, note (e) ; Sugden on Vendors, ch. 8, § 1, p. 359, § 4, p. 375 to 379 (7th edit.) ; Wynn v. Mor- gan, 7 Ves. 202 ; Gibson v. Patterson, 1 Atk. 12; Pincke v. Curteis, 4 Bro. Ch. 329; Lloyd o. Collett, 4 Bro. Ch. 469 (Tomlins's edit.); 4 Ves. 689, note; Omerod v. Hardman, 5 Ves. 736 ; Seton v. Slade, 7 Ves. 265 ; Hall v. Smith, 14 Ves. 426 ; Savage o. Brocksopp, 18 Ves. 335; Hertford v. Boore, 5 Ves. 719; Reynolds v. Nelson, 6 Mad. 19, 25, 26 ; Newman v. Rogers, 4 Bro. Ch. 391 ; Tiernan v. Roland, 3 Harris, 429; Dol- oret v. Rothschild, 1 Sim. & Stu. 590; Heaphy v. Hall, 2 Sim. & Stu. 29 ; Hep- burn v. Dundas, 5 Cranch, 262 ; Brashier •>. Gratz, 6 Wheat. 528 ; Taylor i>. Long- worth, 14 Peters, 173, 174; Baldwin v. Salter, 8 Paige, 473; Jones v. Robbins, 29 Maine, 351 ; ante, § 771. The doc- trine was formerly carried to an extrav- agant extent In favor of relief. But in recent times courts of equity have endeavored to restrict it to very mod- erate limits. See Sugden on Vendors, ch. 8, § 1, p. 359, 360, 361 (7th edit.); 1 Sugden on Vendors, ch. 5, § 2, n. 1 to 15 ; id. § 3, u. 27 (10th edit). Mr. Baron Alderson, in the recent case of Hipwell v. Knight, 1 Younge & Collyer, 415, has put this whole subject in its true light ; and I gladly avail myself of the oppor- tunity to quote his remarks. " Now the first question," said he, " is, whether time is of the essence of this agreement. After examining, with as much attention as I can, the various cases brought before me during the argument, it seems to me to be the result of them all, that a court of equity is to be governed by this principle : 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 parties, and to carry that into effect. But in so doing, I should think it prudent, in the first place, to look carefully at what the parties have ex- pressed ; because, in general, they must be taken to express what they intend ; and the burden ought, in good reason, to be thrown on those who assert the contrary. In the case of a mortgage, however, which I use rather for the purpose of illustrating the principle, than as at all parallel to the present case, the court, looking at the real contract, which is a pledge of the estate for a debt, treats the time mentioned in the mortgage-deed as only a formal part of it, and decrees accordingly ; taking it to be clear, that the general intention should override the words of the particular stipulation. So, in the ordinary case of the purchase of an estate, and the fixing a particular day for the completion of the title, the court seems to have considered that the general EQ. JUR. — VOL. I. 49 770 EQUITY JURISPRUDENCE. [CH. XVIII. It is true that courts of equity have regard to time, so far as it respects the good faith and diligence of the parties. But if cir- object being only the sale of the estate for a given sum, the particular day named is merely formal ; and the stipula- tion means, in truth, that the purchase shall be completed within a reasonable time, regard being had to all the circum- stances of the case, and the nature of the title to be made. But this is but a corol- lary from the general position, which is, that the real contract, and all the stipu- lations really intended to be complied with, literally shall be carried into effect. .We must take care, however, that we do not mistake the corollary for the original proposition. If, therefore, the thing sold be of greater or less value according to the effluxion of time, it is manifest that time is of the essence of the contract ; and a stipu- lation as to time must then be literally com- plied with in equity, as well as in law. The cases of the sale of stock, and of a rever- sion, are instances of this. So also if it appear that the object of one party, known to the other, was, that the prop- erty should be conveyed on or before a given period, as the case of a house for residence, or the like. I do not see, there- fore, why, if the parties chose, even arbi- trarily, provided both of them intend so to do, to stipulate for a particular thing to be done at a particular time, such a stipulation is not to be carried literally into effect in a court of equity. That is the real contract. The parties had a right to make it. Why, then, should a court of equity interfere to make a new contract, which the parties have not made % It seems to me, therefore, that the conclusion at which Sir Edward Sug- den, in his valuable treatise on this sub- ject, has arrived, is founded in law and good sense." See also Potter v. Tuttle, 22 Conn. 519; Coslake v. Till, 1 Ituss. 376 ; Doloret v. Rothschild, 1 Sim. & Stu. 590; King v. Wilson, 6 Beavan, 124; [* Parkin v. Thorold, 16 Beavan, 59. It is here said, that in equity even, time may be made of the essence of a contract, by express stipulation, or necessary im- plication, or by subsequent notice, insist- ing upon the contract being completed within a reasonable time. But in a con- tract for the lease of working mines, time, though not named, is, from the fluctuating nature of the property, con- sidered as of the essence of the contract, and the intended lessee may therefore fix a reasonable time for completion, and on default may rescind the contract. Mac- bryde v. Weekes, 22 Beavan, 533. Time is not generally of the essence. Huffman o. Hummer, 2 C. E. Green, 263; Scarbor- ough v. Arrant, 25 Tex. 129; Steele v. Branch, 40 Cal. 4 ; Pritchard v. Todd, 38 Conn. 413 ; but parties may make it so by agreement. King v. Ruckman, 5 C. E. Green, 316; Stow v. Russell, 36 Bl. 18; Heckard v. Sayre, 34 Dl. 142; Quinn o. Roath, 37 Conn. 16 ; Sharp v. Trimmer, 24 N. J. Eq. 422 ; Hubbell v. Van Schoen- ing, 49 N. Y. 326 ; Miller v. Miller, 25 N. J. 354. And where forfeiture is stipulated if payment is not made at time, equity will not relieve, unless there has been some waiver, or there is other equitable reason for relief. OTallon v. Kennedy, 45 Mis. 124 ; Becker v. Smith, 59 Penn. St. 469. See Steele v. Branch, 40 Cal. 4 ; Bullock v. Adams, 5 C. E. Green, 367: Richmond a. Robinson, 12 Mich. 193; Van Campen v . Knight, 63 Barb. 205. But where a lien was reserved " to be en- forced within six years, or stand for naught thereafter," it was held, that time was not of the essence. Atkins v. Rison, 25 Ark. 138. So time may be made of essence by circumstances, e. g., fluctua- tion of values. Merritt v. Brown, 4 C. E. Green, 286 ; Goldsmith v. Guild, 10 Allen, 239; Booten v. Scheffer, 21 Gratt. 474. So where the sale is of a residence and growing crop, time is of the essence. Gale v. Archer, 42 Barb. 320. See Tilley v. Thomas, L. R. 3 Ch. App. 61. So where a public house is sold as a going concern. Day v. Luhke, L. R. 6 Eq. 336 ; Cowles v. Gale, L. R. 7 Ch. App. 12. So where contract is not mutual. Magoffin v. Holt, 1 Duv. (Ky.) 95. If defendant has himself not been punctual in delivering abstract, &c, he cannot insist on condi- tion that time is of the essence. Upper- ton v. Nickolson, L. R. 6 Ch. App. 436. So continuance of negotiations after ex- piration of the time waives the condition, at least in favor of parties having in- § 776, 777.] specific performance. 771 cumstances of a reasonable nature have disabled the party from a strict compliance, or if he comes, recenti faeto, to ask for a spe- cific performance ; the suit is treated with indulgence, and gen- erally with favor by the court. 1 But then, in such cases, it should be clear that the remedies are mutual ; 2 that there has been no change of circumstances affecting the character or justice of the contract ; 3 that compensation for the delay can be fully and bene- ficially given; 4 that he who asks a specific performance is in a condition to perform his own part of the contract ; 5 and that he has shown himself ready, desirous, prompt, and eager to perform the contract. 6 Even where time is of the essence of the contract, it may be waived by proceeding in the purchase after the time has elapsed ; and if time was not originally made by the parties of the essence of the contract, yet it may become so by notice, if the other party is afterwards guilty of improper delays in completing the purchase. 7 § 777. Courts of equity will also relieve the party vendor, by decreeing a specific performance, where he has been unable to comply with his contract according to the terms of it, from the state of his title at the time, if he comes within a reasonable time, and the defect is cured. 8 So, if there has been no unnecessary delay, courts of equity will sometimes decree a specific perform- ance in favor of the vendor, although he is unable to make a good tervening equities. Webb v. Hughes, L. E. * Pratt v. Law, 9 Crauch, 456, 493,494. 10 Eq. 281 ; Grigg v. Landis, 6 C. E. 6 Morgan v. Morgan, 2 Wheaton, 290 ; Green, 494 ; Richmond a. Foote, 3 Lans. Sugden on Vendors, ch. 8, § 2, p. 365 to 244. And though time has been extended 375 (7th edit.). at request of vendee, with notice that the 6 Millard v. Earl of Thanet, 5 Ves. contract must be performed at the end of 420, note ; Alley v. Deschamps, 13 Ves. the extension, there must be tender to 228 ; Moore v. Blake, 1 B. & Beatt. 68, put either party in default. Leaird v. 69 ; Newland on Contracts, ch. 12, p. 242 Smith, 44 N. Y. 618. And see as to when to 248 ; King v. Hamilton, 4 Peters, 311. time is of the essence, Reed v. Breeden, 7 King v. Wilson, 6 Beavan, 124. 61 Penn. St. 460 ; Jones v. Noble, 3 Bush 8 See the cases cited in Sugden on (Ky.), 694; Barnard v. Lee, 97 Mass. 92 ; Vendors, ch. 8, § 2, p. 365 to 375 (7th Troy v. Clarke, 30 Cal. 419.] edit.) ; id. ch. 6, p. 260, § 2, p. 279, § 3, 1 Ibid.; Jeremy on Eq. Jurisd. B. 3, p. 290 (7th edit.); 1 Sugden on Vendors, Pt. 2, ch. 4, § 1, p. 461, 462 ; ante, § 771 ; ch. 5, § 2, n. 6, 8 ; id. § 3, n. 1 to 9, p. 415 post, § 777. to 420; Guest v. Homfray, 5 Ves. 818; 2 1 Fonbl. Eq. B. 1, ch. 6, § 12, note Newland on Contr. ch. 12, p. 227 to 230; (c), and the case there cited. Esdaile «. Stephenson, 1 Sim. & Stu. 122 ; 8 Pratt v. Law, 9 Craneh, 456, 493, Wynn v. Morgan, 7 Ves. 202 ; Hepburn 494 ; Brashier v. Gratz, 6 Wheaton, 528 ; v. Auld, 5 Craneh, 262 ; 3 Wooddes. Lect. Mechanics' Bank of Alexandria u. Lynn, 68, p. 465, 466 ; Jeremy on Eq. Jurisd. • 1 Peters, 383 ; Payne v. Meller, 6 Ves. B. 3, Pt. 2, ch. 4, § 1, p. 457 ; Hepburn v. 349 ; Taylor v. Longworth, 14 Peters, 172. Dunlop, 1 Wheat. 179 ; ante, § 771. 772 EQUITY JURISPRUDENCE. [CH. XVIII. title at the time when the bill is brought, if he is in a condition to make such a title at or before the time of the decree. 1 So, if the circumstances of the quality or quantity of land are not cor- rectly described, and the misdescription is not very material, and admits of complete compensation, courts of equity will decree a specific performance. In all such cases, courts of equity look to the substance of the contract, and do not allow small matters of variance to interfere with the manifest intention of the parties, and especially where full compensation can be made to the party on account of any false or erroneous description. 2 [* § 777 a. But notwithstanding the rule is well established in courts of equity, that time will not be regarded as indispensable, in regard to decreeing specific performance of contracts for the actual sale of lands on one side and the actual purchase on the other, it is different where the contract gives a mere election to purchase upon certain conditions. Accordingly, where upon a lease, with the right of purchase within seven years, upon giving three months' notice, and paying a fixed sum at the expiration of such notice, and the lessee gave the requisite notice, but did not pay the money in time, a bill for specific performance was dis- missed. 3 And a similar decision was made by the Lord Chan- cellor,* where his lordship said, " The things required must be done in the order of sequence stipulated. These were notice and the payment of the money, on a day certain." And a court of equity will never decree specific performance in favor of the ven- 1 Hepburn v. Dunlop, 1 Wheat. 179; ch. 12, p. 251 to 255; Drewe v. Hanson, ante, § 766, 771 ; Hoggart v. Scott, 1 Ross. 6 Ves. 675; Halsey v. Grant, 13 Ves. 76, & Mylne, 293 ; s. c. Tamlyn, 500. |That 77 ; Sugden on Vendors, ch. 6, § 2, 3, it is sufficient, if party has title at time p. 279 to 300 (7th edit.); Hovenden on of decree, and that if time is not of the Frauds, Vol. 2, ch. 16, p. 31 to 34 ; King essence, nor made so by offer and request v. Barbeau, 6 Johns. Ch. 38 ; Hanbury v. of purchaser, a reasonable time and op- Litchfield, 2 Mylne & Keen, 629 ; Horni- portunity to perfect title will be allowed, blow v. Shirley, 13 Ves. 81. [* See Carv- see Dresel v. Jordan, 104 Mass. 407 ; com- er v. Richards, 6 Jur. k. s. 667.] pare Richmond v. Gray, 3 Alien, 25 ; 3 [* Lord Ranelagh 0. Melton, 10 Jur. Luckett v. Williamson, 37 Mis. 388. See N. 8. 1141 ; s. 0. 2 Drew. & Sm. 278 ; [Ma- Mussleman's Appeal, 65 Penn. St. 480; goffin v. Holt, 1 Duv. (Ky.) 95. And it Christian v. Cabell, 22 Gratt. 82. But the makes no difference that the reversioners rule, it seems, applies only to secret de- were minors unable to convey. Mason feet. Cook v. Bean, 17 Ind. 504.] v. Payne, 47 Mis. 517. And see Potts ». 2 1 Eonbl. Eq. B. 1, ch. 6, § 2, note (e) ; Whitehead, 5 C. E. Green, 55 ; Parry v. Calcraft v. Roebuck, 1 Ves. Jr. 220 ; Cal- Tobacco Ins. Co., 1 Cinn. Supr. Ct. Ri verley v. Williams, 1 Ves. Jr. 212 ; Dyer 251.] v. Hargrave, 10 Ves. 507 ; Guest ». Horn- * Weston v. Collins, 11 Jur. N. s. 190. * fray, 5 Ves. 818 ; Newland on Contr. § 777-778.] SPECIFIC PERFORMANCE. 773 dor of real estate, when the title is so defective as to expose the vendee to litigation. 1 And that possession has been taken and repairs made will make no difference, if it were done without the knowledge of any defect in the title. 2 ] § 778. But where there is a substantial defect in the estate sold, either in the title itself, or in the representation or descrip- tion, or the nature, character, situation, extent, 3 or quality of it, which is unknown to the vendee, and in regard to which he is not put upon inquiry, there a specific performance will not be decreed against him. 4 Upon the like ground, a party contracting for the 1 The title must be marketable. Swain v. Fidelity Ins. Co., 64 Penn. St. 455 ; Linkous v. Cooper, 2 W. Va. 67 ; Freetley v. Barnhart, 51 Penn. St. 279; Littlefield v. Tinseley, 26 Tex. 353. But a mere possibility of a defect in the title will not bar a specific performance. Hayes v. Harmony Grove Cem., 108 Mass. 400 ; ante, § 749, and cases. Equity will not enforce taking a doubtful title. See Col- lier «. McBean, L. R. 1 Ch. App. 81 ; Rich- mond v. Gray, 3 Allen, 25. See as to doubt- ful title, Mullings w. Trinder, L. R 10 Eq. 449; In re Huish's Charity, L. R. 10 Eq. 5; Sturtevant v. Jaques, 14 Allen, 623; Young o. Rathbone, 1 C. E. Green, 224. That court should settle the doubt where question is one of general law, see Alex- ander i). Mills, L. R. 6 Ch. App. 124; Radford •>. Willis, L. R. 7 Ch. App. 7 ; Beiorley v.' Carter, L. R. 4 Ch. App. 230; Hamilton v. Buckmaster, L. R. 3 Eq. 323 ; Bell v. Holtey, L. R. 15 Eq. 178. As to what circumstances will excuse purchaser from paying interest where he has agreed to do so, if, " from any cause whatever," the sale is delayed, see Williams v. Glen- tAi. L. R. 1 Ch. App. 200. If defect is cured by the party making the objection, performance may, it seems, be decreed, with compensation. Hume v. Pocock, L. R. 1 Eq. 662. Condition that vendor only be required to show title " from his vendor," was held good, where vendee purchased, knowing the vendor was only one of four reputed owners. Hume v. Pocock, L. R. 1 Ch. App. 379. Condition not stating fairly the objection against which it is directed, is not binding. Beiorley v. Carter, L. R. 4 Ch. App. 230. That equity will force upon vendee a title depending upon the Statute of Limi- tation, see Shober v. Dutton, 6 Phila. R. 185. Where it is doubtful whether the estate is not entailed, equity will order conveyances so made as to bar entail. Doebler's Appeal, 64 Penn. St. 9. 2 Richmond v. Gray, 3 Allen, 25.) 3 See Belknap «. Sealey, 2 Duer, 577 ; ante, § 141. 4 Sugden on Vendors, ch. 6, § 2, p. 279, &c, § 3, p. 290 (7th edit.); 1 Sugden on Vendors, ch. 7, § 3. n. 1 to 24, p. 525 to 534 (10th edit.) ; id. § 4, n. 1 to 38, p. 536 to 550; Lowndes v. Lane, 2 Cox, 363; Ellard v. Landaff, 1 B. & Beatt. 249, 250; Grant v. Meunt, Cooper, 173; Dyer v. Hargrave, 10 Ves. 505 ; Shirley v. Strat- ton, 1 Bro. Ch. 440 ; Hovenden on Frauds, ' ch. 16, p. 1 to 65 ; Drewe v. Hanson, 6 Ves. 678; 1 Fonbl. Eq. B. 1, ch. 3, § 9, note (t) ; Waters o. Travis, 9 Johns. 450 ; Bowyer v. Bright, 13 Price, 702, 703, 704 ; Binkes v. Rokeby, 2 Swanst. 222; Collier v. Jenkins, 1 Younge, 295 , Dalby v. Pul- len, 3 Sim. 29 ; Portman v. Mill, 2 Russ. 570; Bowyer v. Bright, 13 Price, 698; s. c. 1 McClelland, 479; Wood v. Grif- fith, 1 Swanst. 54 ; Watts v. Waddle, 6 Peters, 389. Lord Erskine, in Halsey v. Grant (13 Ves. 76, 77), said : "If a court of equity can compel a party to perform a contract that is substantially different from that which he entered into, and pro- ceed upon the principle of compensation, as it has compelled him to execute a con- tract substantially different and substan- tially less than that for which he stipu- lated, without some very distinct limitation of such jurisdiction, having alLthe preci- sion of law, the rights of mankind under contracts must be extremely uncertain. There is no doubt, that this jurisdiction had its origin upon the foundation of a 774 EQUITY JURISPRUDENCE. [rH. XVIII. entirety of an estate, will not be compelled to take an undivided aliquot part of it. 1 [* § 778 a. And where the plaintiffs, a railway company, agreed with the defendants to execute a branch railway according to specifications furnished by their engineer, and to give a bond to secure the performance of the contract, it was held, the agreement could not be enforced, as regards the construction of the railway, because, from the nature of the works, the court could not super- intend their execution consistently with public convenience ; nor could they enforce the plaintiffs' portion of the contract, to procure the land ; and they would not therefore decree a part performance of the contract, by the execution of the stipulated bond, if indeed, in any case of the advance of money, and the agreement to execute a bond for its repayment, a court of equity will compel the execu- tion of the bond. The remedy at law would seem ample in all such cases. 2 § 778 b. It seems to be a settled rule in regard to decreeing specific performance of contracts in courts of equity, that it will not be done when the terms of the contract are such, that the court cannot superintend the execution so as to secure full per- formance on the part of the plaintiff. 3 So, also, if there is any legal right, the law giving the title ; but of law for unconscientious purposes, a court of law, from the modes in which Where, therefore, advantage is taken of justice is there administered, not being a circumstance that does not admit a capable of giving a complete remedy, all strict performance of the contract, if the the relief to which the party was entitled, failure is not substantial, equity will inter- This jurisdiction began so long ago as the fere. If, for instance, the contract is for time of King Henry the 7th ; and though a term of 99 years in a farm, and it ap- courts of equity then proceeded upon pears that the vendor has only 98 or 97 that principle, yet the courts of law years, he must be nonsuited in an action, thought proper to resist the jurisdiction. But equity will not so deal with him ; and Bromage v. Genning (1 Roll. 368), in the if the other party can have the substan- fourteenth year of King James I,, was the tial benefit of his contract, that slight plainest case that can be stated ; and difference being of no importance to him, the ground taken against the jurisdiction, equity will interfere. Thus was intro- the most untenable, preposterous, and duced the principle of compensation, now unjust. This most beneficial jurisdic- so well established, a principle which I tion was, in that instance, maintained in have no disposition to shake," See also equity. When the courts of equity had Morgan's Heirs v. Morgan, 2 Wheat. 290 ; quieted these doubts, and maintained Hepburn v. Auld, 5 Cranch, 262 ; Winne their jurisdiction, they, could not confine v . Reynolds, 6 Paige, 407. it to cases of strict legal title ; for i Dalby v. Pullen, 3 Sim. 29. another principle equally beneficial, is 2 [* South Wales Railway Co. v. equally well known and established, — Wythes, 1 Kay & J. 186. that equity does not permit the forms of 8 p et0 „. B r , jj. & Tunb. Wells Railw. law to be made instruments of injustice, Co., 9 Law T. n. s. 227 ; s. c. 1 H. & M. and will interpose against parties attempt- 468. See also Ogden o. Fossick, 9 Jur. ing to avail themselves of the rigid rule n. s. 288. And it will make no differ- § 778-778 c?.] specific performance. ' 775 inequality and hardship in the contract, as against the defendant ; or there be good reason to doubt if the defendant entered into it understandingly, or whether he might not have been suffering some degree of obscuration of clear perception by reason of intoxi- cation. 1 § 778 c. Nor will courts of equity specifically enforce any con- tract, between the immediate parties, which would operate inci- dentally as a fraud upon others, or the public generally. As where one had infringed the trade-mark of another and the matter was compromised by paying .£1000 in full for all sales made, with a stipulation not to prosecute those who had bought of him, and the defendant was prosecuting those who had bought of the plaintiff for sales made by them after the settlement; the court inclined to regard such sales as not embraced in the settlement ; but said if they were, the court could not interfere, since they were a fraud upon the public. 2 § 778 d. The courts of equity will decree specific performance of contracts with the promoters of railways, for the sale of lands to the contemplated company, notwithstanding objections, for want of privity, want of consideration, want of mutuality, and vague- ness. 8 But where the company, when formed, proceeded under their compulsory powers against such land-owners, without claim- ing any special contract for the purchase, it was held sufficient reason for refusing a decree for specific performance. 4 In con- tracts with railway companies for the making and maintaining of such and so many crossings as should be notified to the company, ence in this respect that the contract has eery Appeal, upon full argument and been acted upon for some time; if the consideration, will probably have the court cannot enforce one portion of it, it effect to make cases of this character, will not decree specific performance of like others for specific performance, rest any part of it. lb. But in the very re- in the discretion of the court. See Black- cent case of Wilson v. West Hartlepool ett v. Bates, 2 H. & M. 270 ; s. c. Law Railw. & Harbor Company, 11 Jur. n. s. Rep. 1 Ch. App. 117; Bruck v. Tucker, 124, it was held that the fact that the 42 Cal. 347. contract contains stipulations on the part 1 Vivers v. Tuck, 9 Law T. h. s. 554; of the plaintiff, which could not be speci- s. c. 1 Moore, P. C. C. s. B . 516 ; Miller fically enforced by a court of equity, will v. Miller, 68 Pa. St. 486 ; Christian «. not preclude a decree of specific perform- Kunsome, 46 Ga. 138. ance of the rest of the contract, where it 2 Oldham v. James, 14 Ir. Ch. 81 ; was the intention of the parties that the Richmond v. Dubuque R. E. Co., 33 la. stipulations on the part of the plaintiff 422. should rest only in covenant. This dig- 8 Bedford & Camb. Railw. Co. v. tinction, however, does not seem to rest Stanley, 2 J. & H. 746. upon any very satisfactory ground, but 4 Ibid, being the decision of the Court of Chan- 776 EQUITY JURISPRUDENCE. [CH. XVIII. in writing, within one month after the company obtaining posses- sion of the land, it was considered that time was of the essence of the contract, and no such notice being given within the time named, the court declined to grant a decree for specific perform- ance. 1 § 778 e. There is a considerable conflict of opinion among the English equity judges in regard to enforcing covenants by railway companies with land-owners, against making erections upon the land, whenever such covenants come to interfere with the exten- sion and enlargement of the public works of the company under their parliamentary powers. Thus, in a very recent case which came before the Court of Chancery Appeal, from the decision of Vice-Chancellor Kindersley, granting a decree of specific perform- ance of such a covenant, the Lords Justices were divided in opin- ion, and the decree of the Vice-Chancellor was, therefore, affirmed. The points ruled were, that where a railway company, in pur- chasing land, covenanted with the owner not to build upon it above a certain height, and they afterwards obtain a parliamen- tary grant to widen their line, the covenant will prevent them from building, so as to widen their line; secondly, that if the covenant was not invalid at law, as being against public policy, as the majority of the judges held it was not, a court of equity ought to withhold a decree of specific performance ; thirdly, that where a court of equity refuses to enforce a covenant, because the dam- age is inconsiderable, or would be inappreciable, the case must be perfectly clear. 2 § 778 /. In a very late case 3 before Lord Cranworth, Chancellor, on a bill for specific performance of an award, the learned judge said, " I conceive it to be clear, that both parties to the award obtained the same right to specific performance which they would have had if this had been not an award resulting from an agree- ment, but simply an agreement entered into between them." But the court reversed the decree below in this case, and dismissed the bill upon the ground that they could not specifically enforce the 1 Damley ». London, Chatham, & D. has been fixed by arbitrators, is like any R. Co., 9 Jur. h. B. 452. vendee, and, where the property is lease- 2 Lloyd v. London, Chatham, & D. hold, may be compelled to accept assign- Railw. Co., 11 Jur. n. s. 380. ment, with usual covenant of indemnity. 8 Blackett v. Bates, 12 Jur. n. s. 151. Harding v. Metropolitan R. Co., L. R. 7 A railroad taking land under Lands Ch. App. 154. Clauses Consolidation Act, after price § 778 c?-779.] specific performance. 777 agreement on the part of the plaintiff, and that, unless they could do so, they would not grant a decree for specific performance on the part of the defendant. § 778 g. Where the plaintiff filed his bill for the specific per- formance of a resolution of the board of railway directors, under which he claimed to be entitled to a certain number of shares, and prayed that if all the shares had been allotted, so that none could be awarded him, that the directors should be decreed to indemnify him out of their own shares or compensate him in damages, and it appeared that the shares had all been allotted, it was held the bill must fail, the specific performance claimed having become impos- sible, and the alternative being a mere claim for damages. 1 Where the owner of land sold the same to a railway company and gave a right to take possession upon making a certain deposit, and stipu- lated for five per cent interest upon the price agreed, in case of delay in completing the purchase, it was held, the court could not compel the company to pay the purchase-money into court before final decree against them, there being nothing in the contract to that effect ; although if he had proceeded under the statute the company might have been compelled to pay the price of the land into court upon entering into possession. 2 Where the" plaintiff had withdrawn his opposition to a railway on a stipulation on the part of the company to build a road and an approach in a particu- lar manner, and the company afterwards varied the level of their line and the course and inclination of the road ; whereupon the plaintiff filed his bill for specific performance, and a motion for injunction was ordered to stand till the hearing, the company undertaking to abide by the order of the court as to altering their works, and subsequently the road was opened for traffic, it was held, the company could not urge the public convenience, in not having the traffic interrupted, against the claim of the plaintiff to have a decree for specific performance. 3 ] § 779. We have thus far principally spoken of cases of suits by the vendor against the purchaser for a specific performance, where the contract has not been, or cannot be, strictly complied with. But suits may also be brought by the purchaser for a specific per- formance under similar circumstances where the vendor is inca- • 1 Ferguson v. Wilson, Law Eep. 2 Ch. 3 Raphael v. Thames Valley Railway App. 77. Co., Law Rep. 2 Ch. App. 147.] 2 Pryse v. Cambrian Railw. Co., Law Rep. 2 Ch. App. 444. 778 EQUITY JURISPRUDENCE. [ch. xvm. pable of making a complete title to all the property sold, or where there has been a substantial misdescription of it in important particulars ; or where the terms, as to the time and manner of execution, have not been punctually or reasonably complied with on the part of the vendor. In these and the like cases, as it would be unjust to allow the vendor to take advantage of his own wrong, or default, or misdescription, courts of equity allow the purchaser an election to proceed with the purchase pro tanto, or to abandon it altogether. The general rule (for it is not universal) in all such cases, is, that the purchaser, if he chooses, is entitled to have the contract specifically performed, as far as the vendor can per- form it, and to have an abatement out of the purchase-money or compensation, for any deficiency in the title, quantity, quality, description, or other matters touching the estate. 1 But if the purchaser should insist upon such a performance, the court will grant the relief only upon his compliance with equitable terms. 2 i Paton v. Rogers, 1 Ves. & B. 351 ; Hill v. Buckley, 17 Ves. 394; Ketchum v. Stout, 20 Ohio, 453 ; Springle r. Shields, 17 Ala. 297 ; Millegan v. Cooke, 16 Ves. 1 ; Waters v. Travis, 9 Johns. 465 ; Todd v. Gee, 17 Ves. 278, 279 ; Wood v. Grif- fith, 1 Swanst. 54 ; Mestaer v. Gillespie, 11 Ves. 640 ; Graham v. Oliver, 3 Beav. 124, 128. In this last case, Lord Lang- dale said : " The general rule, subject to some qualification, undoubtedly is, that where a party has entered into a contract for the sale of more than he has, the purchaser, if he thinks fit to accept that which it is in the power of the vendor to give, is entitled to a per- formance to that extent. There is, how- ever, a very great difficulty in all these cases, and I scarcely know how it can be overcome; though a partial perform- ance only, it has been somewhat incor- rectly called a specific performance. The sentiments of Lord Bedesdale on this point, as expressed by him in two cases before him, are strongly impressed on my mind. The court has thought it right, in many cases, to get over those difficul- ties for the purpose of compelling parties to perform the agreements into which they have entered; and it is right they should be compelled to do so, where it can be done without any great prepon- derance of inconvenience." King v. Wil- son, 6 Beavan, 124. 2 Paton v. Sogers, 1 Ves. & Beam. 351 ; Thomas v. Deering, 1 Keen, 729, 743, 747 ; Spingle v. Shields, 17 Ala. 297. [Where, by mistake, the boundaries stated in agreement did not include house, sup- posed by both parties to be on the land sold, vendee was held entitled to perform- ance, with abatement. Austin v. Ewell, 25 Tex. (Supp.j 403. Where there are encumbrances known to vendor, but not to vendee, equity will decree performance with compensation. Jerome v. Scudder, 2 Bob. (N. Y.) 169. So where can only make title to undivided interest. Covell v. Cole, 16 Mich. 223. Where two parcels included, and title can only be made to one, vendee may enforce conveyance of such one, if he will take it in full perform- ance. White v. Dobson, 17 Gratt. (Va.) 262. Vendee may be compelled to accept, though there is deficiency in acreage, if not material. Carver v. Bichards, 6 Jur. u. s. 667. Pro rata by quantity is rule of compensation where no improvements or difference in value shown. Wilcoxon «. GaUoway, 67 N. C. 463. See Stockton ». Union Oil Co., 4 W. Va. 273. Only mar- ket value of what cannot be conveyed allowed. Woodbury v. Luddy, 14 Allen, 1. See ante, § 735, and notes. No right to compensation where vendee knew there was a tenant, and afterwards discovered he had a lease. James v. Lichfield, L. B. 9 Eq. 51. Compensation and performance, § 779-781.] SPECIFIC PERFORMANCE. 779 § 780. Perhaps it may be truly said, that in some of the cases, in which, in former times, the strict terms of the contract, as to time, description, quantity, quality, and other circumstances of the estate sold, were dispensed with, courts of equity went beyond the true limits, to which every jurisdiction of this sort should be con- fined, as it amounted to a substitution fro tanto, of what the parties had not contracted for. 1 But the tendency of the modern decisions is to bring the doctrine within such moderate bounds as seem clearly indicated by the principles of equity, and by a reasonable regard to the convenience of mankind, as well as to the common accidents, mistakes, infirmities, and inequalities belonging to all human transactions. 2 § 781. We have hitherto been considering cases of contracts respecting lands within the reach of the statute of frauds. But other cases within the reach of other clauses of the statute of frauds have occurred, and may again occur, in which, also, the remedial justice of courts of equity ought to be exerted by decree- ing a specific performance of the contemplated act of trust. Thus, if a man, in confidence of the parol promise of another to perform the intended act, should omit to make certain provisions, gifts, or arrangements for other persons, by will or otherwise, such a prom- ise would be specifically enforced in equity against such a promisee; although founded on a parol declaration, creating a trust contrary to the statute of frauds ; for it would be a fraud upon all the other so far as able, decreed, where vendee ig- Harding v. Parshall, 56 HI. 219. Equity norantly contracted for fee, vendor having will not decree specific performance of less estate. Barnes v. Wood, L. R. 8 Eq. husband's bond to convey homestead es- 424. Compensation for deficiency (753 tate, though the estate exceeds in value yards against 573), though condition of the amount allowed for homestead, and sale excluded abatement for error. Whit- though complainant willing to accept temore v. Whittemore, L. E. 8 Eq. 603. deed of husband alone, with compensa- See Aberaman Iron Works v. Wickens, tion, the estate being subject, beside L. E. 4 Ch. App. 101. A condition in sale homestead, to inchoate dower, and com- by court made recitals in deeds twenty pensation very difficult. Phillips v. years old conclusive as to right to rescind Stauch, 20 Mich. 369. So, even though for deficiency. One of these recitals was since the contract for sale the property so framed as to hide a defect. Held, con- may, by change of residence, have ceased dition did not bind. Else v. Else, L. R. to be a homestead, the contract looking 13 Eq. 196. Eor a case where the con- to no such contingency. Ibid, tract was held severable, and enforced 1 See Halsey v. Grant, 13 Ves. 76; accordingly, see Wilkinson v. Clements, Drewe v. Hanson, 6 Ves. 678 ; Bowyer v. L. R. 8 Ch. App. 96. Where vendor Bright, 13 Price, 702. agrees to convey with certain covenants, 2 Newland on Contr. ch. 12, p. 254 ; vendee is entitled to performance, though Drewe v. Hanson, 6 Ves. 678. title in view of the covenants is defective. 780 EQUITY JURISPBUDENCE. [CH. XVIH. parties to permit him to derive a benefit from his own breach of duty and obligation. 1 Therefore, where a testator, by his will, gave an annuity to his nephew,' and his brother (who was his executor and devisee of his real estate) promised to pay the annu- ity, otherwise the testator would have charged it on his lands devised ; it was decreed, that the executor should specifically per- form it by paying the annuity, although he had fully administered all the personal assets. 2 So, where a testator intended by will to fell timber to raise portions for his younger children ; but his eldest son being by, desired him not to fell the timber, because it would deface the estate, and promised that he would answer for the value of it to his brothers and sisters, and the testator forbore to cut the timber, and after his death the eldest son refused to perform his promise, he was held bound by it. 3 So, where a tenant in tail was about to suffer a recovery, in order to provide for his younger children, and was kept by the issue in tail from so doing, by a promise to make such a provision, the issue in tail was decreed to perform the promise. 4 ■ So, where an executor promised the testator to pay a legacy, and told the testator he need not put it into his will, he was decreed specifically to per- form it. 6 So, where a testator was about altering his will, for fear that there would not be assets enough to pay all the legacies, and his heir-at-law persuaded him not to alter it, promising to pay all the legacies, he was decreed specifically to perform his promise. 6 § 782. These may suffice as illustrations of the class of cases calling for a specific performance, which are within the purview of the statute of frauds. And we shall now proceed, in the next place, to a brief statement of the other class of cases already referred to, namely, those where relief is sought under written or parol contracts not within the statute of frauds. Many of these cases have already been incidentally taken notice of under the other heads, and especially under the heads of Accident, Mistake, and Fraud. 7 1 3 Wooddes. Lect. 67, p. 436 ; ante, 6 Reech o. Kennigate, Ambl. 67 ; s. o. § 64, 256, 439. 1 Ves. 123; Barrow v. Greenough, Ves. 2 Oldham v. Litchfield, 2 Vera. 606; 152, 154; Mestaer v. Gillespie, 11 Ves. 8. c. 2 Freem. 284 ; ante, § 64, 256. 638 ; Chamberlain v. Agar, 2 V. & Beam. 8 Dutton v. Pool, 2 Lev. 211 ; s. c. 1 262 ; Devenish v. Baines, Prec. Ch. 3. Ventr. 318; s. c. cited 2 Freem. 285; « Chamberlaine a. Chamberlaine, 2 ante, § 64, 256, 439. Freem. 34. * 3 Wooddes. Lect. 57, p. 436. » See ante, § 54, 99, 162 to 157, 161, 330, § 781-785.] SPECIFIC PERFORMANCE. 781 § 783. Illustrations may easily be put, of cases where no action ■whatsoever would lie at law between the parties. Thus, if A. should enter into a contract with B., which contract B. should afterwards assign to a third person, there no action would be maintainable at law by such assignee against A., or by A. against such assignee, on such contract. But a bill in equity would well lie by either of them against the other, either to enforce a specific execution of the contract, or to set it aside in the same manner, and under the same circumstances, as such a bill would lie between the immediate parties to it. 1 "We all know, that privity of con- tract between the parties is, in general, indispensable to a suit at law ; but courts of equity act in favor of all persons claiming by assignment under the parties, independent of any such privity. 2 § 784. Upon similar principles, if a person has, in writing, Contracted to sell land, and afterwards refuses to perform his con- tract, and then sells the land to a purchaser with notice of the contract, the latter will be compelled to perform the contract of his vendor, for he stands upon the same equity ; and although he is not personally liable on the contract, yet he will be decreed to convey the land in the same manner as his vendor, 3 in other words, he is treated as a trustee of the first vendee. So, if a power is reserved in a marriage settlement, for a feme covert to dispose of her separate property, real and personal, courts of equity will enforce the specific performance of it in favor of any party claim- ing title from her against her husband, although at law it might, in many cases, be difficult to prevent the latter from exercising power over it. 4 , § 785. The cases of contracts to grant an annuity for a life or lives, to settle the boundaries between contiguous estates, arid to levy a fine, have been already mentioned as proper matters for a bill for a specific performance. 5 So, where an agreement was 331. See also 3 Wooddes. Lect. 58, p. 471, rant, 25 Tex. 129; Hunter v. Bales, 24 472; 1 Fonbl. Eq. B. 1, ch. 3, § 11, and Ind. 299; St. Paul Division v. Brown, id. B. 1, ch. 1, § 8, note (o) ; Jeremy on 9 Min. 167 ; Smoot v. Rea, 19 Md. 398. Eq. Jurisd. B. 3, Pt. 2, ch. 4, § 1, p. 456, * Jeremy on Eq. Jurisd. B. 1, ch. 3, 457. § 2, p. 207, 208 ; id. B. 1, Pt. 2, ch. 4, § 1, 1 See Williams v. Steward, 3 Meriv. p. 430, 431 ; Rippon v. Dawding, Ambler, 485,486; and Duke of Chandos v. Talbot, 565; Power v. Bailey, 1 B. & Beatt. 49; 2 P.Will. 608; Champion ». Brown, 6 Fettiplace v. Gorges, 3 Bro. Ch. 8; 3 Johns. Ch. 402. Wooddes. Lect. 68, p. 444; post, § 788, 2 Pest, § 1040, 1057, 1057 a. 789, 790. 3 Champion v. Brown, 6 Johns. Ch. 5 Ante, § 722, 729, 730; Nield v. Smith, 402 ; Potter v. Sanders, 6 Hare, 1 ; Foss 14 Ves. 490 ; Penn. v. Lord Baltimore, o. Haynes, 31 Maine, 89. [See Keegan ». 1 Ves. 444. Williams, 22 la. 378; Scarborough v. Ar- 782 EQUITY JURISPRUDENCE. [CH. XVm. made by persons, who were presumptive heirs to another person, to divide the estate equally between them, without any reference to any will which might be made by such person, it was held valid ; and that it should be specifically decreed. 1 So, contracts to invest money in land, and, on the other hand, to turn land into money, have been held proper for a specific performance. 2 So, a contract to make mutual wills, if one of the parties has died, hav- ing made a will according to the agreement, will be decreed in equity to be specifically executed by the surviving party, if he has enjoyed the benefit of the will of the other party. 3 So, a general covenant to indemnify a party for the purchase-money due for land, upon an assignment thereof to an assignee, although it sounds only in damages, will be decreed to be specifically per- formed by the assignee, upon the principle of quia timet.* § 786. Another curious case, illustrative of the extent to which courts of equity will go to enforce a specific performance of con- tracts against parties and privies in estate, in cases where a fraud- ulent evasion is attempted, has been recently propounded and acted upon in the House of Lords. If a person covenants, or agrees, or in any other manner validly binds himself to give to A., by his will, as much property as he gives to any other child, he may put it out of his power to do so, by giving away all his prop- erty in his lifetime. Or, if he binds himself to- give to A. as much as he gives to B. by his will, he may, in his lifetime, give to B. what he pleases, so as, by his will, he shall give to A. as much as he gives to B. But then the gifts which he makes in his lifetime to B. must be out and out. For, if to defraud or defeat the obliga- tion which he has thus entered into, he gives to B. any property, real" or personal, over which he retains a control, or in which he reserves an interest to himself; then, in order to protect the agreement or obligation which he has entered into, and to defeat the fraud attempted upon that agreement or obligation and to pre- vent his escaping, as it were, from his own contract, courts of equity will treat this gift to B. in the same manner as if it were purely testamentary, and were included in a will; and the subject- 1 Beckley v. Newland, 2 P. Will. 182 ; 416 ; Goilmere o. Battison, 1 Vein. 48 ; id. 608 ; 3 Wooddes. Lect. 68, p. 451 ; Newland on Contr. ch. 6, p. 111. Newland on Contr. ch. 6, p. 110; ante, * Champion v. Brown, 6 Johns. Ch. § 265. 405, 406, and the cases there cited; 1 2 Newland on Contr. ch. 3, p. 43, 47, Fonbl. Eq. B. 1, ch. 1, § 8, and note (y) ; ch. 6, p. 109. ante, § 730 ; post, § 849, 850. 8 Dufour v. Ferrara, cited 3 Ves. 412, § 785-787.] specific performance. 783 matter of the gift will be brought back and made the fund out of which to perform the obligation. At all events, it will be made the measure for calculating and ordering the performance of, and dealing with, the claim arising under that agreement or obligation. 1 § 787. These cases are sufficient to point out the general course of remedial justice in equity in all cases of specific performance, whether they are within or without the statute of frauds. To go over all the doctrines applicable to the subject, in all the varieties, would require a discussion wholly incompatible with the objects of this work. The principles already expounded may serve to explain the true nature and extent of the jurisdiction at present exercised, — a jurisdiction which has been an appropriate theme of praise on all occasions in which the claims of courts of equity to public favor have been vindicated by their friends or assailed by their enemies. 2 In conclusion, it may, however, be proper to remark, that all the cases for a specific performance, which we have been examining, presuppose the contract to be between competent parties, and founded upon a valuable or meritorious consideration ; for courts of equity will not, as we have seen, and shall presently more fully see, 3 carry into specific execution any merely nude pacts or voluntary agreements, not founded upon some valuable or meri- torious consideration ; nor between parties not sui juris or com- petent to contract, such as infants and femes covert ; 4 nor (as we have already seen) any agreements which are against public policy, or are immoral, or which involve a breach of trust. 6 1 Logan v. Wienhold, 7 Bligh, 63, 54. Tinsley, 30 Mis. 389. And see Frisby v. [See Moorhouse v. Colvin, 9 Eng. Law & Parkhurst, 29 Md. 68 ; Semmes w. Worth- Eq. 136, where a bill was brought by a ington, 38 Md. 298 ; Pordy v. Williams, husband to enforce an alleged contract 38 Md. 493.] to bequeath his wife the sum of £2000, 2 Jeremy on Eq. Jurisd. B. 3, Pt. 2, ch. upon which expectation he married her. 4, § 1, p. 445 ; 1 Fonbl. Eq. B. 1, ch. 5, See also Van Dyne v. Vreeland, 1 § 1, and notes (a), (e) ; id. § 2, (h) ; 1 Beasley, Ch. 142. That equity, where Mad. Pr. Ch. 32C, 327. there has been part performance, and s Ante, § 433, 706, 706 a, 750, 769 ; post, where otherwise a fraud would be worked § 793 a, 973, 977, 987, 1040 ; Woodcock v. on plaintiff, will enforce a contract for Bennet, 1 Cowen, 711 ; Crosbie v. Mc- a will by decreeing that the defendant Doual, 13 Ves. 148 ; Wycherley v. Wych- hold the property to his own use for life, erley, 2 Eden, 177 ; [Marler v. Tommas, and afterwards according to the agreed L. B. 18 Eq. 8]. disposition, see Gupton v. Gupton, 47 Mis. * Flight v. Bolland, 4 Russ. 298, 301 ; 37. And see, that a contract to will prop- ante, § 723, 761, note ; [Curlin v. Hendricks, erty in a particular manner, made on good 35 Tex. 226] . consideration, will be enforced where sub- 6 1 Mad. Pr. Ch. 328 ; Brownsmith ». Btantial execution is possible, Wright v. Gilbourne, 2 Str. 738 ; Jeremy on Eq. 784 EQUITY JURISPRUDENCE. [CH. XVIII. § 788. It may also be stated, that, in general, where the specific execution of a contract respecting lands will be decreed between the parties it will be decreed between all persons claiming under them in privity of estate, or of representation, or of title, un- less other controlling equities are interposed. 1 If a person pur- chases lands with knowledge of a prior contract to convey them, he is (as we have seen) affected by all the equities which affected the lands in the hands of the vendor. 2 The lien of the vendor for the purchase-money attaches to them, and such purchaser may be compelled either to pay the purchase-money, or to surrender up the land, or to have it sold for the benefit of the vendor. In this view, the remedy of the vendor against such purchaser may be said to be in rem, rather than in personam. 3 On the other hand, if the vendee under such a contract, conveys the same to a third person, the latter, upon paying the purchase-money, may compel the ven- dor, and any person claiming under him in privity, or as a pur- chaser with notice, to complete the contract and convey the title to him. 4 § 789. The general principle upon which this doctrine proceeds, is, that from the time of the contract for the sale of the land, the vendor, as to the land, becomes a trustee for the vendee, and the vendee, as to the purchase-money, a trustee for the vendor, who has a lien upon the land therefor. And every subsequent purchaser Jurisd. B. 3, Pt. 2, ch. 4, § 1, p. 445, 451 ; enforce performance in equity of a parol 1 Fonbl. Eq. B. 1, ch. 1, § 7 (x) ; Ellison contract for purchase of land is not sub- v. Ellison, 6 Ves. 656, 662 ; Ex parte Pye, ject of sheriff's sale under laws of Texas. 18 Ves. 149 ; ante, § 293, 294, 296, 297, 769. Hendricks v. Snedicker, 30 Tex. 297. As- 1 See 3 Wooddes. Lect. 58, p. 468, 469, signee of an infant cannot hare specific 472 ; Newland on Contr. ch. 2, p. 34, &c. ; performance without showing affirmance Jeremy on Eq. Jurisd. B. 3, Pt. 2, ch. 4, after coming of age. Carrell v. Potter, § 1, p. 448, 449 ; Champion v. Brown, 6 23 Mich. 377. As to making sub-pur- Johns. Ch. 398, 402, 403 ; Smith v. Hib- chaser of part a party, see Fenwick v. bard, 2 Dick. 730. [Assignee may enforce. Bulman, L. B. 9 Eq. 165. As to what See Ewins v. Gordon, 49 N. H. 444. And constitutes notice of assignment, prevent- the assignment may be by parol. Currier ing vendor from conveying to original v. Howard, 14 Gray, 511. So contract vendee, see McCreight v. Foster, L. B. 5 may be enforced by person for whose Ch. App. 604 ; s. c. 5 H. of L. 321 ; Crab- benefit intended, though not a party, tree v. Poole, L. B. 12 Eq. 13.] Van Dyne v. Vreeland, 3 Stockt. (N. J.) * Ante, § 784. 370. Where right of purchaser by parol, 8 Champion v. Brown, 6 Johns. Ch. who had made improvements, was sold on 398, 402. execution to original owner, and after 4 Champion v. Brown, 6 Johns. Ch. surrender by debtor of his rights, and 398, 402 ; Winged v. Lefebury, 2 Eq. four years' delay, was resold on execution Abridg. 32, pi. 43 ; Taylor v. Stibbert, 2 to another creditor who sued for specific Ves. Jr. 437 ; Daniels v. Davison, 16 Ves performance, relief was refused. Burke 249 ; s. c. 17 Ves. 433 ; ante, § 784. ». Seeley, 46 Mo. 334. It seems, right to § 788-790.] specific performance. 785 from either, with notice, becomes subject to the same equities as the party would be from whom he purchased. 1 In cases of this Bort, if the original vendee dies, after having sold the lands to a third person, who is to pay the purchase-money, his personal repre- sentatives are entitled to proceed against such purchaser in equity, to indemnify them, and to pay the purchase-money. 2 On the other hand, if the vendor dies, his personal representatives may enforce the lien for the purchase-money against the land in the possession of the purchaser. But who, as between the heirs and personal representatives of the vendee or a subsequent purchaser, is to bear the charge, that is, whether it is to be borne by the personal estate or by the land purchased, is a matter properly belonging to other branches of equity jurisdiction, in which the marshalling of assets is considered. 3 § 790. There is another consideration which is incident to this subject, and to which courts of equity have given an attention and effect proportioned to its importance. In the view of courts of law, contracts respecting lands, or other things, of which a specific execution will be decreed in equity, are considered as simple ex- ecutory agreements, and as not attaching to the property in any manner, as an incident, or as a present or future charge. But courts of equity regard them in a very different light. They treat them, for most purposes, precisely as if they had been specifically executed. 4 Thus, if a man has entered into a valid contract for the purchase of land, he is treated in equity as the equitable owner of the land, and the vendor is treated as the owner of the money. The purchaser may devise it as land, even before the conveyance is made, and it passes by descent to his heir as land. 5 The vendor is deemed in equity to stand seised of it for the benefit of the purchaser; 6 and the trust (as has been already stated) attaches to the land, so as to bind the heir of the vendor, and every one claiming under him as a purchaser, with notice of the 1 Champion v. Brown, 6 Johns. Ch. 3 Ante, § 558 to 580; Champion v. 403; Davie v. Beardsham, 1 Ch. Cas. Brown, 6 Johns. Ch. 402. 39; Green v. Smith, 1 Atk. 572, 573; * 1 Fonbl. Eq. B. 1, ch. 6, § 9, note (s) ; Pollexfen v. Moore, 3 Atk. 273; Mack- ante, §64j. [See Huffman v. Hummer, 2 reth v. Symmons, 15 Ves. 329, 336 ; C. E. Green, 263 ; Brewer v. Herbert, 30 Walker v. Preswick, 2 Ves. 622 ; Seaman Md. 301 ; Worrall v. Munn, 38 N. Y. 137.] i). Van Rensselaer, 10 Barbour, 83 ; Trim- 6 geton v. Slade, 7 Ves. 264, 274; post, mer v. Bayne, 9 Ves. 209 ; ante, § 506. § 1212. 2 Champion w.Brown, 6 John. Ch. 405, 6 See Seaman v. Van Rensselaer, 10 406. Barbour, 86. eq. jub. — VOL. I. 50 786 EQUITY JURISPRUDENCE. [CH. XVIII. trust. 1 The heir of the purchaser may come into equity and insist upon a specific performance of the contract; and, unless some other circumstances affect the case, he may require the purchase- money to be paid out of the personal estate of the purchaser, in the hands of his personal representative. On the other hand, the vendor may come into equity for a specific performance of the con- tract on the other side, and to have the money paid; for the remedy, in cases of specific performance, is mutual, 2 and the pur- chase-money is treated as the personal estate of the vendor, and goes as such to his personal representatives. In like manner, land, articled or devised to be sold, and turned into money, is re- puted as money, 3 and money, articled or bequeathed to be invested in land, has, in equity, many of the qualities of real estate, and is descendible and devisable as such, according to the rules of inheri- tance in other cases. 4 So, if a trustee should take property with 1 Ante, § 788, 789. 2 Ante, § 723 ; post, § 796, 1212, 1214. 8 [See Burr v. Sim, 1 Wharton, 252 ; Pratt v. Taliaferro, 3 Leigh, 419 ; North v. Valk, Dudley's Eq. 212; Lindsay v. Pleasants, 4 Iredell, Eq. 321 ; Wood v. Cone, 7 Paige, 472 ; Wood v. Keyes, 8 Paige, 365.] * Past, § 1212 to 1215 ; 8 Wooddes. Lect. 58, p. 466 to 468 ; 1 Fonbl. Eq. B. 1, ch. 6, § 9, and notes (s), (t) ; Newland on Contr. ch. 3, p. 48 to 64 ; Craig v. Leslie, 3 Wheat. 563, 577, 578 ; Fletcher v. Ash- burner, 1 Bro. Ch. 496. See 1 Equity Leading Cases, 534, and editor's notes. Taylor v. Berham, 5 How. S. C. 234; Willing v. Peters, 7 Barr, 287 ; Doughty v. Bull, 2 P. Will. 320 ; Yates v. Compton, 2 P. Will. 308 ; Trelawney o. Booth, 2 Atk. 307 ; Rose o. Cunynghame, 11 Ves. 554 ; Kirkman v. Miles, 13 Ves. 338. As a fit illustration of the text, Mr. Fon- blanque's note (Fonbl. Eq. B. 1, ch. 6, § 9, note (t), containing the principal authori- ties) is here inserted. " The rule," says he, " equally applies to money devised to be laid out in land. The authorities, to show that money, agreed or directed to be laid out in land, is to be considered as land, are very numerous. The force of the rule is particularly evinced by those cases in which it has been held that the money, agreed or directed to be laid out, so fully becomes land, as, 1st, not to be personal assets. Earl of Pembroke v. Beighderi, 3 Ch. 115; 2 Vern. 52; Law- rence v. Beverly, 2 Keble, 841 ; cited also in 'Kettleby v. Attwood, 1 Vern. 298, 741. 2d)y, to be subject to the courtesy of the husband, though not to the dower of the wife. Sweetapple v. Bindon, 2 Vern. 536; Otway v. Hudson, 2 Vern. 583. 3dly, to pass as land by will, if subject to the real use at the time the will was made. See ch. 4, § 2, note (n). See also Milner v. Mills, Mosely, 123 ; Greenhill v. Green- hill, 2 Vern. 679, Prec. Ch. 320; Shore™. Shorer, 10 Mod. 39 ; Lingen v. Sowray, 1 P. Wms. 172 ; Guidott v. Guidott, 3 Atk. 254. 4thly, not to pass as money by a general bequest to a legatee ; but it will by a particular description, as so much money to be laid out in land. Cross v. Addenbroke and Fulham v. Jones, cited in a note to Lechmere v. Earl of Carlisle, 3 P. Wms. 222 ; or by a bequest of all the testator's estate in law and equity ; Bashleigh t>. Master, 1 Ves. Jr. 204. But equity will not consider money as land, unless the covenant or direction to lay it out in land be express. Symons v. Butter, 2 Vern. 227 ; Curling v. May, M. 8, G. 2, cited in Guidott v. Guidott, 3 Atk. 255. And as money agreed or di- rected to be laid out in land shall in gen- eral be considered as land, so land agreed or directed to be sold shall be considered and treated as money. Gilb. Lex Prse- toria, 243; but see Ashby v. Palmer, 1 Merivale, 296. As to from what time the § 790, 791.J SPECIFIC PERFORMANCE. 787 absolute directions to sell and convert it into money, there, although the directions were not carried into effect during the life of the party creating the trust, the property would be deemed personalty. But if the charge is not absolute, as if a testator should charge his real estate for the payment of his debts, it will retain its char- acter as real estate, so far as the charge does not extend, until it is actually converted. 1 The like rule will apply to the case of real estate, conveyed to a trustee in trust, to permit a mortgagor to receive the rents and profits, and upon payment of the mortgage money to reconvey to the mortgagor, and upon default of payment to sell the premises, and pay over the residue to the mortgagor, after payment of the mortgage ; there, if no sale should be made until after the death of the mortgagor, it will pass by his devise to his devisee, or to his heir, as real estate, and not as person- alty. 2 § 791. The ground of this latter doctrine is, that courts of equity will regard the substance, and not the mere form, of agreements and other instruments ; and will give them the precise effect which the parties intended, in furtherance of that intention. It is pre- sumed that the parties, in directing money to be invested in land, or land to be turned into money, intend that the property shall conversion shall be supposed, see Sitwell Bro. Ch. 603 ; see also Hewitt v. Wright, v. Bernard, 6 Ves. 520 ; Elwin v. Elwin, 8 1 Bro. Ch. 86, as to Lord Thurlow's Ves. 547 ; and the creditors of the bar- opinion, that money, resulting to the heir, gainor may compel the heir to convey the as being produced by sale of real estate land. Best v. Stanford, 1 Salk. 154. But undisposed of, is to be considered as per- il must not be understood that where a sonal estate of the heir, and as such testator directs his real estate to be sold would go to his executor ; Russell v. for purposes which are answered out of Smythies, 1 Cox, 215. But if the use the personal estate, the next of kin may and possession were not united it would insist upon the real estates being sold ; still be considered as land. Rashleigh v. for ' there is no equity between the next Masters, 1 Ves. Jr. 201 ; Wheldale v. Part- of kin and the heir ; but the general prin- ridge, 8 Ves. 235." The same subject is ciple is, that the heir takes all that which most amply discussed by Mr. Newland, is not for a defined and specific purpose with uncommon care, in his treatise on given by the will.' Chitty v. Parker, 2 Contracts, ch. 3, p. 48 to 64. See also Ves. Jr. 271 ; Ex parte Bromfield, 1 Ves. Jeremy on Eq. Jurisd. B. 3, Pt. 2, ch. 4, Jr. 453 ; Oxenden v. Lord Compton, 2 Ves. § 1, p. 446, 447 ; Craig v. Leslie, 3 Wheat. Jr. 69; Walker v. Denne, 2 Ves. Jr. 170; 577; 2 Fonbl. on Eq. B. 1, ch. 4, § 2, Lord Compton v. Oxenden, 2 Ves. Jr. 361 ; note (n). but see Wheldale v. Partridge, 8 Ves. 235. 1 Bourne v. Bourne, 2 Hare, 38 ; Dal- And where the testator was entitled to zell on the Law of Conversion, 89. [A a fund, as money or land, his real and discretionary power to sell works, no con- personal representatives shall take it as version. White v. Howard, 46 N. Y. 144, money or as land, according as the testa- p. 162 ; McCarty it. Deming, 4 Lans. 440.] tor would have taken it. See Ackroyd s Ibid. u. Smithson, and the cases there cited, 1 788 EQUITY JURISPRUDENCE. [CH. XVIII. assume the very character of the property into which it is to be converted, whatever may be the manner in which that direction is given. And no one will deny that it is competent, at least in a court of equity, for the owner of the fund to make land money, or money land, at his sole will and pleasure. 1 § 792. But, although these are the general principles adopted by courts of equity, yet they are not without limitations and qualifi- cations, 2 standing upon peculiar reasons, but still consistent with those principles. Thus (as we have seen), nothing is looked upon in equity, as done, but what ought to be done ; not what might have been done. 3 Nor will equity consider things as thus done in favor of everybody ; but only in favor of those who have a right to pray that they might be done. 4 § 793. Upon the ground of intention, also, if it can be collected from any present or subsequent acts of the parties, that it is their intention, notwithstanding any will, or deed, or other instrument, that the property shall retain its present character, either in whole or in part, courts of equity will act upon that intention. 5 Thus, for instance, if money is directed by will, or other instrument, to be laid out in land, or land is directed to be turned into money, the party entitled to the beneficial interest may in either case, if he elects so to do, prevent any conversion of the property from its present state, and hold it as it is. And this election he may make, as well by acts or declarations, clearly indicating a determination to that effect, as by an application to a court of equity. It is this election, however, 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 whole beneficial interest. If he does not make such an election in time to stamp the property with a character different from that which the will or other instrument gives it, the latter character accompanies it, with all its legal con- sequences, into the hands of those who are entitled to it in that character. So that, in case of the death of the party thus bene- ficially entitled, without having made an election, the property will pass to his heirs, or personal representatives, in the same i Ibid. ; post, § 1212 to 1214. « See Mr. Cox's note to Cruse v. Bar- 2 See North v. Valk, Dudley's Eq. 212. ley, 3 P. Will. 22 (1) ; Craig v. Leslie, 3 8 Ante, § 64jy790. Wheat. 577 to 585; Newby v. Skinner, 1 « 1 Fonbl. Eq. B. 1, ch. 6, § 9, and Dev. & Bat. Eq. 488 ; post, § 1212 to 1215, note (s) ; ante, § 664 g; Craig v. Leslie, 3 1250; Shadforth v. Temple, 10 Simons, Wheat. 677, 578. 184. § 791-793 a.] specific performance. 789 manner it would have done if the trust had been executed and the conversion had been actually made in his lifetime. 1 [* § 793 a. In a late case 2 this question, in regard to implied elections in family settlements, is discussed much at length in the Court of Chancery Appeal, where the decree of the Vice-Chan- cellor was reversed. In this case the estate constituting the settle- ment was the remainder after the termination of a life-estate in lands of one-eighth part owned in common, and which had been conveyed to trustees, for the wife during life, with remainder to the husband for life, with remainder to the children in tail, and remainder to the heirs of the wife ; and a power of sale and ex- change was given to the trustees, who were to invest the proceeds in the purchase of realty, in possession, and hold it on the trusts declared. The entirety of a portion of the estate was sold, and an eighth part of the purchase-money apportioned according to the value of the life-estate and reversion respectively, and the value of the reversionary interest paid to the trustees of the settlement, or so expressed. In point of fact, however, the whole eighth part was invested in consols, and the dividends paid to the tenant for life. This state of things continued during the life of the wife, who died without issue, and during the life of the husband and heir-at-law, successively. But there was no evidence of their in- 1 Craig v. Leslie, 3 Wheat. 677, 578, that his lands should be sold for the pay- 679 ; Kirkman o. Miles, 13 Ves. 338 ; ment of his debts, or for other purposes, Edwards o. Countess of Warwick, 2 P. the question would arise, whether he Will. 171 ; Roper a. Radcliffe, 9 Mod. 167 ; meant to give the produce of his real Cruse v. Barley, 3 P. Will. 20, and Mr. estate the quality of personalty to all Cox's note ; id. 22 ; Ackroyd v. Smithson, intents and purposes, or only so far as 1 Bro. Ch. 503, and Mr. Belt's note ; s. c. respected the purposes of his will. For, cited 3 P. Will. 22, Cox's note ; Hewitt v. unless the testator has sufficiently de- Wright, 1 Bro. Ch. 86 ; Seton v. Slade, 7 clared his intention, not only that the Ves. 274. This whole subject is most realty shall be converted into personalty elaborately considered upon all the dis- for the purposes of the will ; but, f ur- tinctions stated in the text, in the opinion ther, that the produce of the real estate of the court, delivered by Mr. Justice shall be taken as personalty, whether Washington, in Craig v. Leslie, 3 Wheat, such purposes take effect or not, so much 577 to 588, which will well reward the of the real estate, or the produce of it, as diligent perusal of the reader. Mr. Cox's may not, in the event, be required for note, also, to Cruse v. Barley, 3 P. Will, any purposes of the will from any cause 22, note (1), contains a valuable exposi- whatsoever, will result to the heir-at-law, tion of the doctrine. The question often who will be entitled to hold it in any arises, under wills between personal rep- character which he may elect. See Mr. resentatives and real representatives, as Cox's note, supra; ante, § 790; post, § 1212 to who are entitled ; and the struggle is to 1215. maintained with great pertinacity on each 2 [ *In re Pedder's Settlement, 5 De G., side. Thus, if a testator should direct M. & G. 890.] 790 EQUITY JURISPRUDENCE. [CH. XVIII. tention, as to the destination of the fund, except what might be inferred from the course of dealing with it. That, in the opin- ion of the Vice-Chancellor, justified the inference of an election to treat the fund as properly converted into personalty. But the Court of Chancery Appeal held, that an election could not be inferred to take the property in its actual state, and that on the death of the heir-at-law his part of the fund was to be treated as part of his real estate ; and that it did not pass under a devise of all such shares as he might at his death possess in the estate, there being a part of it still remaining unsold to answer the description.] § 793 J. We have already had occasion to remark, throughout the whole of the discussion, respecting Bills for specific perform- ance of contracts, that it has been constantly supposed that the contract was one founded upon a valuable consideration in the contemplation of law. 1 In respect to voluntary contracts, or such as are not founded in a valuable consideration, we have already had occasion to state, that courts of equity do not interfere to enforce them, either as against the party himself or as against other volun- teers claiming under him. 2 Thus, for example, if a party should enter into a voluntary agreement to transfer stock to another, or to give him a sum of money, or to convey to him a certain real estate, courts of equity would not assist in enforcing the agreement, either against the party entering into the agreement, or against his personal representatives ; for the party contracted with is a mere volunteer. 3 - The same rule is applied to imperfect gifts, not testamentary, inter vivos, to imperfect voluntary assignments of debts and other property, to voluntary executory trusts, and to voluntary defective conveyances. 4 A few cases may serve to illus- trate this doctrine. Thus, where a parent has assigned certain i Ante, § 787. Colman v. Sarel. 3 Bro. Ch. 12 ; s. c. 2 Ante, § 433, note, § 706, 706 a, 787 ; 1 Ves. Jr. 50, 56 ; Jefferys v. Jefferys, 1 1 Fonbl. on Equity, B. 1, ch. 5, § 2, Craig & Phillips, 138, 141 ; post, § 793 b. note (h), § 3; Tate v. Hilbert, 2 Ves. Jr. * Ellison v. Ellison, 6 Ves. 662; Ex 112 ; Jefferys v. Jefferys, 1 Craig & Phil- parte Pye, 18 Ves. 149 ; Bunn v. Win- lips, 136, 141 ; Meek v. Kettlewell, 1 throp, 1 Johns. Ch. 336, 337, 338 ; Ed- Phillips, Ch. 342. wards v.. Jones, 1 Mylne & Craig, 226, 8 Ex parte Pye, 18 Ves. 149 ; Bunn v. 227 ; s. c. 7 Simons, 325 ; Tufnell v. Con- Winthrop, 1 Johns. Ch. 336, 337, 338 Pulyertoft ». Pulvertoft, 18 Ves. 98, 99 Antrobus v. Smith, 12 Ves. 39, 45, 4G stable, 8 Simons, 69, 70 ; ante, § 433, note, 706 a ; 1 Fonbl. on Equity, B. 1, ch. 5, § 2, and note (A) ; Callaghan v. Callaghan, Ellison v. Ellison, 6 Ves. 662 ; Edwards 8 Clark & Finnell. 394, 401 ; Dillon e. v. Jones, 1 Mylne & Craig, 226, 237 ; Duf- Coppin, 4 Mylne & Craig, 647, 670, 671 ; field v. Elwes, 1 Bligh, w. s. 529, 530, 531 ; Antrobus v. Smith, 12 Ves. 39. § 793 a, 793 b.~] specific performance. 791 scrip to his daughter by a written assignment, which operated as an equitable assignment only, and not as a legal transfer, a court of equity refused to compel the donor or his executors to perfect the gift. 1 So, where a lady, by a writing, assigned a bond of a third person to her niece, and delivered the bond to the latter, and then died, a court of equity refused to enforce the assignment against the* executor, or to decree payment of the money by the obligor to the niece. 2 So, where a testatrix drew a check on her bankers for £150, in favor of A., and verbally directed A. to apply that sum, or so much of it as might be necessary, to make up to a legatee the difference in value between a legacy of £100 which she had by her will given to the legatee, and the price of a £100 share in a certain railway ; the testatrix informing A. that she intended to give the share instead of the legacy, but she did. not think it necessary to alter her will ; and the bankers gave credit to A. for the £150: in a suit for the administration of the testatrix's estate, it was held, that there was no trust created for the benefit of the legatee in respect to the £150, as it could not be inferred from the facts that the testatrix meant to place this disposition of the £150 out of .her own control in her lifetime. It was, therefore, not an absolute perfected gift. 3 [So, where a husband executed a 1 Antrobus o. Smith, 12 Ves. 39, 43 ; but has completely declared himself to be ante, § 433 and note. trustee of that property for the object 2 Edwards v. Jones, 1 Mylne & Craig, indicated. Ev -parte Pye, Ex parte Du- 226 ; s. c. 7 Simons, 325 ; ante, § 433, note. bost. But it is clear, also, that a per- 3 Hughes u. Stubbs, 1 Hare, 476. In son not intending to give or to part this case, Mr. Vice-Chancellor Wigram with the dominion over his property, said : " The question is, whether the tes- may retain such dominion, notwithstand- tatrix has so dealt with the sum of £150 ing he may have vested the property in question, as to make it no longer her in trustees, and have declared a property, but the property of Mrs. Geld- trust upon it in favor of thir,d persons ing (the legatee). If a person intending (Walwyn v. Coutts, 3 Sim. 14 ; Garrard to give property to another vests that v. Lord Lauderdale, 3 Sim. 1 ; s. c. 2 R. & property in trustees, and declares a trust M. 451 ; Acton v. Woodgate, 2 Myl. & K. upon it in favor of the object of his 492 ; Gaskell v. Gaskell, 2 Younge & J. bounty, there are cases which establish 502). The different effects thus given by that, by such acts, the gift is perfected, courts of equity to transactions similar in and the author of the trust loses all do- form, necessarily give rise, in some cases, minion over it (Colman a. Sarel, 3 Bro. to questions of considerable difficulty. C. C. 12 ; s. c. 1 Ves. Jr. 50 ; Ellison a. But the distinction, which has been taken Ellison, 6 Ves. 656 ; Pulvertoft v. Pulver- between the two classes of cases is toft, 18 Ves. 84 ; Ex parte Pye, Ex parte founded in reason and good sense, and Dubost, 18 Ves. 140). See Price v. Price, however refined that distinction may in 8 Eng. Law & Eq. 271. The principle some instances appear, I do not entertain has been extended to cases in which the a doubt but that courts of equity will author of the gift has had legal domin- continue to maintain it. " The distinc- lon over the property remaining in him, tion " (as Lord Cottenham observed, in 792 EQUITY JUEISPRUDENCE. [CH. XVIU. document which was attested hy two witnesses, giving to his wife a freehold house in which they resided, but afterwards died with- out making a will, and the heir-at-law recovered a verdict for the possession of the house against the wife, it was held, that the gift to her was incomplete, and a bill asking that the heir-at-law might be declared a trustee of the wife was dismissed. 1 ] So, where a testator, to whom a party was indebted in one sum on a note and in another on a bond, in his will bequeathed to a son a part of the entire debt, and afterwards, by codicil, revoked the bequest, and, by an indorsement on the bond, declared that he thereby acquitted the obligor of the sum, and stated that, in consequence thereof, he had revoked the bequest, to the same amount made by the codicil ; it was held, that the obligor was not entitled, after the death of the testator, to come into equity for an injunction and relief against the enforcement of the bond, because he was a mere vol- unteer, and the acquittance was without any consideration to support it. 2 On the other hand, if the transfer, assignment, trust, or conveyance is completed at law, so that no further act remains to be done to give full effect to the title, there courts of equity will enforce it throughout, although it is derived from a mere gift or other voluntary act of the party. Thus, for example, if there is a gift of stock, and a transfer is actually made thereof, it will be held valid against the donor and his representatives. 3 So, if an assign- ment of a debt or other property is consummate, so as to pass the title, and no further act is to be done by the donor, it will be enforced in equity. 4 So, if a creditor, shortly before his death, Bill v. Cureton, 2 Myl. & K. 511, speak- what the effect of it shall be in divesting ing of trusts for the payment of debts) the owner of the property to which it " is adopted to promote the views and in- relates." tentions of the parties. A man who, with- 1 [Price v. Price, 8 Eng. Law & Eq. out communication with his creditors, puts 281.] property into the hands of trustees for 2 Tufnell v. Constable, 8 Simons, 69. the purpose of paying his debts, proposes 8 Ex parte Pye, 18 Ves. 149 ; Edwards only a benefit to himself by the payment v. Jones, 1 Mylne & Craig, 226, 237 ; For- of his debts ; his object is not to benefit tescue o. Barnett, 3 Mylne & Keen, 36 ; his creditors. It would, therefore, be a Ellison v. Ellison, 6 Ves. 662 ; ante, § 433, result most remote from the contempla- note ; post, § 973 a, 987, 1040, 1040 b, tion of the debtor, if it should be held 1196 ; Collinson v. Pattrick, 2 Keen, 123, that any creditor, discovering the transac- 134. tion, should be able to fasten upon the * Fortescue v. Barnett, 2 Mylne & property and invest himself with the Keen, 36 ; Sloane v. Cadogan, Sugden on character of a cestui que trust. The result Vendors, Appx. 26 (9th edition). The of the cases is, that the court looks into application of the principle in these cases the nature of the transaction, and deter- must, since the remarks of Lord Cotten- mines from the nature of the transaction ham on them, in Edwards v. Jones, 1 § 793 b, 793 c] specific performance. 793 should send a verbal message to his debtor to hold the debt in trust for a particular person, and the debtor should assent thereto, and the fact is communicated to the cestui que trust or beneficiary, there the trust, although verbal, will be held consummate and enforced against the representatives of the creditor after his death. 1 [* § 793 c. In a late case 2 the subject of voluntary assignments is examined with considerable carefulness, by a very eminent equity judge, Vice-Chancellor Wood, and the conclusion arrived at, that a voluntary assignment, by deed, of the assignor's interest in stocks standing in the names of trustees, upon trust for him, is a complete transfer of such interest, as between the donee and the representatives of the donor, although no notice of the deed was given to the trustees, in the donor's lifetime ; because no further act, on the part of the donor, was requisite to complete the gift. And it was said the donee could compel the trustees to transfer the stock to him, without making the donor or his representatives parties to the suit. But if the trustees, before notice of the deed, transferred the stock to another person, the donee would have no remedy against them. The case is put upon the ground that the title to the property had passed, by the deed, so far as the donor, or his representatives, were concerned. And it is conceded, that where there is a contract only, or an imperfect gift, which re- quires some other act on the part of the assignor or donor, the court will not interfere to compel the performance of such act. Mylne & Craig, 238, 239, 240, be deemed the debt for the plaintiff, that, in equity, open to some doubt. But they certainly would perfect the gift to the plaintiff derived support from the case of Rich- as against Thomas Worry and his estate, ards v. Symes, 2 Eq. Abridg. 617, cited The distinctions upon this subject are ante, § 607 6, and commented on by Lord undoubtedly refined, but it does not ap- Elden in Duffield u. Elwes, 1 Bligh, 538, pear to me that there is any substantial 639. See also ante, § 433, note, and the difference between such a case and the Vice Chancellor's remarks in Edwards v. present. The testator, in directing Jen- Jones, 7 Simons, 325. See Collinson v. kins to hold the money in trust for the Pattrick, 2 Keen, 122, 134 ; Ward v. Aud- plaintiff, which was assented to and acted land, 8 Beavan, 201. upon by Jenkins, impressed, I think, a 1 M'Fadden v. Jenkins, 1 Phillips, Ch. trust upon the money, which was com- 153. In this case, Lord Lyndhurst said plete and irrevocable. It was equivalent some points were disposed by the Vice- to a declaration by the testator that the Chancellor, in this case, which are indeed debt was a trust for the plaintiff. The free from doubt, and appear not to have transaction bears no resemblance to an been contested in this court, viz., that a . undertaking or agreement to assign. It declaration by parol is sufficient to create was in terms a trust, and the aid of the a trust of personal property ; and that if court was not necessary to complete it. the testator, Thomas Worry, had, in his 2 [* Donaldson v. Donaldson, Kay, lifetime, declared himself a trustee of 711. 794 EQUITY JURISPRUDENCE. [CH. XVIII. The cases upon this subject are very thoroughly and ably re- viewed in the case of Kekewich v. Manning; 1 and Beatson v. Beatson, 2 and Dillon v. Coppin, 3 are there considered as not in accordance with the general course of the decisions upon the subject.] § 793 d. It has been said that there are exceptions, however, to the rule where the contract or conveyance, although voluntary, is deemed to be founded upon a meritorious, as contradistinguished from a valuable consideration ; and that courts of equity will inter- fere and aid a defective conveyance, as they will the defective execution of a power against mere volunteers under the same party, where it is designed to be a provision for a wife or children ; for, in such cases, it is treated as founded in a meritorious con- sideration, since the party is under a natural and moral obligation to provide for them. 4 And, it has been added, that it might be a very different question whether such a defective conveyance, or a defective execution of a power, would be enforced against the grantor or appointor himself, unless he had voluntarily entered into some contract to make a perfect conveyance, or to execute the power. And, accordingly, in a recent case, it was held, on great consideration, that a voluntary contract, in writing, by a father, to make a post-nuptial provision or settlement upon his daughter, might be enforced against him in equity, as being founded on a meritorious, although not on a valuable considera- tion. 5 But this doctrine has been since denied, and the general 1 1 De Gex, M. & G. 176. The learned 500. See also Colyear v. Countess of judge, the Lord Justice Knight Bruce, Mulgrave, 2 Keen, 81, 97, 98. among others, refers to Wheatley v. 6 Ellis v. Nimmo, Lloyd & Goold, 333. Purr, 1 Keen, 551 ; Blakely v. Brady, 2 See also Salone v. Cadogan, Sugden on Dr. & Walsh, 316, as confirming his own Vendors, Appx. No. 26 (9th edit.) ; For- opinion. He also referred to the follow- tescue v. Barnett, 3 Mylne & Keen, 36 ; ing, among others, as possibly in conflict Edwards v. Jones, 1 Mylne & Craig, 226, with his lordship's decision. Godsal v. 238,239,240; Antrobus v. Smith, 12 Ves. Webb, 2 Keen, 99 ; James v. Bydder, 39 ; Minturn v. Seymour, 4 Johns. Ch. 4 Beavan, 600; Bayley v. Boulcott, 4 498, 500. See also King's Heirs v. Russell, 345. See Otis v. Beckwith, 49 Thompson, 9 Peters, 204. The case of 111. 121 ; Stone v. Hackett, 12 Gray, 227. Ellis v. Nimmo was doubted by the Vice- 2 12 Simons, 281. Chancellor (Sir L. Shadwell), in Hollo- * 8 4 My. & Cr. 647.] way v. Headington, 8 Simons, 325, and * Ante, § 95, 169, 433, 706, 706a,- 1 overthrown in efiect in Jefferys o. Jef- Fonbl. on Equity, B. 1, ch. 5, § 2 ; Eoth- ferys, 1 Craig & Phillips, 138-141. But ergill v. Fothergill, 2 Freem. 256 ; Ellis still the reasoning of Lord Chancellor v. Nimmo, Lloyd & Goold, 333 ; Bunn v. Sugden deserves to be very carefully Winthrop, 1 Johns. Ch. 336, 337, 338 ; examined. It is certainly very able. But Minturn v. Seymour, 4 Johns. Ch. 498, see Moore i>. Crafton, 3 Jones & Lat. 38. See also post, § 973 a, 987, 1040 4, 1196. § 793 c-793/.] specific performance. 795 rule seems now established, that the court will not execute a vol- untary contract, but will withhold assistance from a volunteer, whether he seeks to have the benefit of a contract, or a covenant, or a settlement. 1 There may be a clear, if not a satisfactory, line of distinction, drawn between cases of voluntary contracts, cove- nants, and settlements, where there has been a defective conveyance or execution thereof, and cases of a defective execution of a power. In the latter cases, the donee of the power designs to carry into effect not merely his own objects and interests, but those of other persons, by executing the power in favor of persons who stand as volunteers, upon a meritorious consideration, and for whom he is under a natural and moral obligation to provide; and his own defective execution of the power by mistake, or otherwise, not only defeats his own positive intention and moral obligation and duty to execute the trust reposed in him, but it would, if not aided, also defeat the very objects for which the power was created by third persons, whether it was created as a bounty, or upon a valuable consideration passing between the donor and donee of the power. 2 Another exception, having a firmer foundation, is of cases of dona- tions mortis causd, as contradistinguished from donations inter vivos, in which, although the donation is imperfect, as a complete transfer of the right of property, yet, in equity, it will be upheld, in order to effectuate the intention of the donor, and enforced against his executors, as it is treated, as in the nature of a testa- mentary act. But of this sufficient has been already said in another place. 3 [* § 793 e. The subject of the specific performance of contracts in courts of equity covers a large space, and it will not be impor- tant to give the points decided since the last edition much in detail, since the cases more commonly turn upon some slight distinction, depending upon matter of fact, and are not much guide for the decision of other cases not precisely similar. The following points may be noted as occurring in recent cases : — § 793/. Where the principal agreement cannot be enforced, for any reason, the court will not, ordinarily, decree specific perform- ance of an accessory agreement. 4 i JeSerys v. Jefferys, 1 Craig & 2 See ante, § 169, 170, and note. Phillips, 138, 141; Holloway v. Heading- » Ante, § 433, note; § 607 a, note; ton, 8 Simons, 325. See post, § 1377 a, 607 b, note. 1415; ante, § 793 a; Callaghan v. Cal- 4 [* Scottish North Eastern Railway laghan, 8 Clarke & Fin. 374, 401 ; Dillon Co. ». Stewart, 3 Macqu. H. Lds. Caa. v. Coppin, 4 Mylne & Craig, 647, 670, 671. 382. 796 EQUITY JURISPRUDENCE. [CH. XYIII. § 793 g. Where the contract is constituted by a proposal on one side and an acceptance on the other, the court will not decree specific performance, unless the acceptance is unqualified and unconditional. 1 § 793 h. Where there is any matter affecting the contract, about which the party might bond fide make a mistake, and he swears positively that he did make such mistake, a court of equity will not decree specific performance against him. 2 § 793 i. In regard to the specific performance of contracts for the lease of premises, it has been held, that where the premises were hired for a particular use, for which a license failed to be procured, without the party's fault, he would not be decreed to accept the lease. 3 The lessee cannot require specific performance of a parol contract to grant a lease on more ample terms than those stipulated in the written contract. 4 And where on a bill for specific performance of a contract to grant a farming lease, the evidences left it doubtful whether the lessee had been guilty of any such breaches of covenant as would have worked a forfeiture of the lease, if it had been granted, the court will direct the lease to be antedated, so as to enable the defendant to try the question at law. 6 § 793 k. The court will not compel specific performance of a contract by a company to employ the plaintiff as their broker, or enjoin such company from publishing an advertisement announc- ing another person as their broker. 6 § 793 I. The courts will not decree specific performance of a contract which will have the effect to infringe the prior rights of other parties ; 7 nor for the execution of a lease where it is impos- sible to determine to whom the ground rent is payable. 8 But one cannot excuse himself from specific performance by paying the amount of stipulated damages named in the contract. 9 And vagueness of the terms of the contract, or where it involves the 1 Oriental In. Steam Co. ». Briggs, 5 See also, upon the general question, Law T. n. s. 477 ; s. c. 2 Johns. & H. Clowes v. Garraway, 7 Law T. u. s. 243. 625 ; s. c. 8 Jur. s. s. 201. . « Brett v. East India & L. Shipping 2 Swaisland /■. Dearsley, 7 Jur. n. s. Co., 10 L. T. n. b. 187 ; s. c. 2 H. & M. 984; s. c. 29 Beav. 430; Day v. Wells, 404. 30 id. 220. 1 Reed v. Don Pedro, &c. Gold Mining 8 Modlen v. Snowball, 7 Jur. n. s. Co., 10 Law T. n. s. 836. 1260. » Pegler v. White, 33 Beav. 403. * Londonderry a. Baker, 3 Law T. 9 Long v. Bowring, 33 Bear. 686 ; s.o. K.s. 546. 10 Jur. n. s. 668. 6 Rankin y. Lay, 2 De G., F. & J. 65. § 793 #-793 o.J specific performance. 797 performance of personal services, or where there is any want of mutuality, or the position of the parties has become materially changed, are all considerations urging against decreeing specific performance. 1 § 793 m. Although the courts of equity do not in general decree specific performance of merely executory agreements, arid espe- cially where they cannot superintend the performance of the con- tract on both parts, they will, nevertheless, enforce family settle- ments. It was accordingly held in a recent case, where a father had conveyed his entire estate to his children upon their stipu- lating the support of their parents, that a specific performance should be decreed. 2 § 793 n. It is not competent for the plaintiff in a bill for specific performance to join as defendants both the agent and his principal in entering into the contract, and pray alternative relief against the one or the other as the court shall be of opinion equity justifies a decree. Thus where a contract had been entered into by a firm of solicitors, acting on behalf of their client, to pay the plaintiff certain sums of money, and he filed his bill against the client and the solicitors, alleging that the client was bound by the contract, but that he denied that he was so bound on the ground that the solicitors had no authority to enter into such contract ; and the bill prayed specific performance by the client, or otherwise, if it should appear that the solicitors were not authorized, then that the solicitors themselves might be declared personally liable to per- form the same; a demurrer to the bill by the solicitors was allowed on the ground that the plaintiff himself did not allege that the client was not bound, and also on the ground that alternative relief could not be prayed in such case. 8 § 793 o. In one case 4 where the plaintiff had purchased an estate with a view to set aside a fraudulent contract in regard to the property made with the vendor, the court declined to grant relief upon the ground that the contract was in the nature of champerty or maintenance. And it was here very justly considered that the purchaser could not, in any view, join the parties to the alleged fraudulent contract which he sought to impeach, with the parties to his own contract of purchase, which he desired to have specifi- i Firth v. Ridley, 33 Beav. 616; Eu- 8 Clark v. Lord Rivers, Law Rep. 6 ropean & Am. Sub. Tel. Co. v. Elliott, 12 Eq. 91. Law T. x. s. 418. ' 4 De Hoghton v. Money, Law Rep. 2 2 Chubb v. Peckham, 2 Beasley, 207. Ch. App. 164. 798 EQUITY JURISPRUDENCE. [CH. XVIII. cally enforced. In proceedings for specific performance the direc- tion that the vendor shall convey has the same effect as a direction that the vendor and all other necessary parties shall convey. 1 The direction in a will that the executor shall convert all the estate into money gives him power to sell and convey a freehold house acquired after the date of the will. 2 The court will not decree specific performance against a married woman upon a compromise of a controversy as to her real estate made by the husband in her presence, she not being a party to the suit, although she continued to occupy the estate thereafter, still being a, feme covert. In such cases the other party, knowing the disability of married women, has no right to regard her rights as concluded except by some con- veyance made in conformity with the requirements of the law. 3 § 793 p. The rule that courts of equity will not reform a con- tract except where both parties understood the same alike does not apply to bills for the specific performance of contracts for the sale of land, where the court may give the purchaser an option to go forward or abandon the contract. Hence where, in a convey- ance of messuages, the plan upon the deed comprised a piece of land not intended by the vendor to be included, a decree was made to rectify the deed, an option being given to the purchaser to have his contract annulled ; but, having regard to the conduct of the parties, no costs were given on either side. 4 § 793 q. The English courts of equity decree specific perform- ance of contracts for the purchase of lands by railway companies, not only against the companies but against their lessees also, and will maintain the lien of the vendor, and hold, if necessary, that the land may be sold, even, under the decree of the court. But time is commonly given the company to make payment, with leave, in case the money is not paid, to apply to the court for an injunction and for the appointment of a receiver to enforce the lien. 6 § 793 r. The late decisions do not vary essentially from the rules in regard to specific performance already declared in the preceding sections. Courts of equity will decree specific performance of a 1 Minton v. Kirwood, Law Eep. 3 Ch. 696 ; s. p. Avery ». Griffin, Law Hep. 6 App. 614. Eq. 606. 2 Hamilton v. Buckmaster, Law Eep. 4 Harris v. Pepperell, Law Rep. 5 Eq. 3Eq. 323. 1. 8 Nicholl u. Jones, Law Eep. 3 Eq. 6 Bishop of Winchester i>. Mid-Hants Railw., Law Eep. 6 Eq. 17. § 793 o-793 s.] specific performance. 799 contract of compromise in regard to claims under a will without inquiring into the nature or adequacy of the considerations leading to the contract. The contract being a friendly compromise of a family controversy, and in its nature tending to maintain the peace and harmony of families, is one entitled to the most favor- able consideration of courts of equity. 1 A purchaser must have a good title, and cannot be compelled to accept one which exposes him to litigation. 2 The cases where part performance has been held to take the case out of the operation of the statute of frauds, are very numerous ; but they all agree that something more is required than the payment of the price. Possession must be taken by the vendee at least, and the case is rendered unquestion- able by his making substantial improvements. 3 But courts will not decree specific performance of contracts against good policy, or enforce an agreement to change the board of directors of a railway company in consideration of the payment of money. Nor * will the courts of equity decree specific performance of a contract by the cestui que trust to convey his interest in a trust estate. 5 Awards in regard to disputed boundaries will be decreed to be specifically performed. 6 § 793 8. A contract to convey land at the option of the vendee only, may, upon election and notice, be enforced in equity, not- withstanding that the vendor has refused to accept the considera- tion. And the refusal of the vendor's wife to join in the deed to release her right of dower will present no obstruction against a decree for specific performance, so long as the vendee offers to waive the release of dower on the part of the wife. 7 But where 1 Bigelow, J., in Leach r. Fobes, 11 Nor will the court purge the contract of Gray, 506, 509. its illegality, and then enforce it, as by 2 Speakraan v. Forepaugh, 44 Penn. enforcing a contract which stipulates St. 363. But it will be sufficient to enti- usurious interest above th« rate allowed tie the party to a specific performance if by law. Farwell v. Meyer, 35 111. 40. the vendor can give a good title any time But one cannot defend a suit for specific before the decree. Luckett v. William- performance on the ground that he ob- son, 37 Mo. 388 ; Hume n, Pocock, Law tained his title to the land in question Rep. 1 Ch. App. 379. But if the contract by contracts against sound policy, pro- define the person from whom title is to vided the other party to the contract be given, and that be produced, the court claimed to be specifically performed, did will decree specific performance, and not not participate in such illegal contracts, allow the title to be impeached. lb. Pingree v. Coffin, 12 Gray, 288. See also 8 Traphagen v. Traphagen, 40 Barb. Smith v. Johnson, 37 Ala. 633. 537; Bennett v. Abrams, 41 id. 619; 6 Shankland's Appeal, 47 Penn. St. Whitridge «. Parkhurst, 20 Md. 62; 113. Neatherly v. Eipley, 21 Texas, 434. 6 Thompson v. Deans, 6 Jones, Eq, 22. 4 Fremont v. Stone, 42 Barb. 169. 7 Corson ». Mulvany, 49 Penn. St. 88. 800 EQUITY JURISPRUDENCE. [CH. XVIII. the party seeking specific performance has needlessly and without excuse failed to perform the contract on his part, the court will not help him by way of decree for specific performance. 1 If the party stipulates that time shall be regarded as of the essence of the contract, and he will make no claim for the conveyance of the land unless he performed punctually, and, after part performance, fails to make full performance within the time stipulated, he can- not compel specific performance. 2 § 793 t. It seems to be the general rule of law, that the party applying to a court of equity to decree specific performance of a contract must himself have done all that by the terms of the con- tract he was required to do, in order to entitle him to demand performance on the other side, and that it will not be sufficient to entitle him to a decree in his favor to make a general offer in his bill to do every thing the court shall decree he ought to do, if the bill is not filed until long after the proper time for performance on his part, and after material changes in the condition of the parties. 3 A mistake in regard to the quantity of the land agreed to »be con- veyed, where "the party had full means of knowledge, and no fraud was practised upon him, will not relieve him from a decree of specific performance, and especially where his want of knowledge had no influence upon him in entering into the contract. 4 Where the party agrees to convey the land with full covenants of warranty and release of dower, 5 and he is unable to procure the release of dower, a decree of specific performance will be made with compen- sation for the right of dower and' an exception to that extent in the covenants. If the party who agrees to convey land for a certain price refuses to accept the price when tendered, he will not be en- titled to receive interest thereon upon a decree of specific perform- ance, unless it appears that the purchaser has made use of the money, or in some way received interest thereon, nor will the party be entitled to claim payment upon such a contract in coin. 6 § 793 u. The court will not refuse to grant a decree of specific performance against the seller of land on account of the deprecia- tion of the stocks in which he agreed to accept the price, at par, 1 Tibbs v. Morris, 44 Barb. 138. See 6 Ibid. [See Humphrey v. Clement, also Bennett v. Welch, 25 Ind. 140 ; Doan 44 111. 299 ; Corson v. Mulvany, 49 Penn. v . Mauzey, 33 111. 227. St. 88 ; Troutman v. Gowing, 16 la. 415; 2 Heckard v. Sayre, 34 HI. 142. Hazelrig v. Hutson, 18 Ind. 481.] » Ely v. McKay, 12 Allen, 323. • Davis v. Parker, 16 Allen, 94. 4 Davis v. Parker, 14 Allen, 94. § 793 s-793 v.] specific performance. 801 relying on the purchaser's representation that the stocks were worth that, although in fact they had no market-value at the time, having sold two months before at ninety-five cents on the dollar of the par value, and two months after the contract it was first known to the directors of the company and one month later to the public, that the shares were in fact worth only ten cents on the dollar of par value, there being no proof of any fraudulent purpose on the part of the purchaser of the land in so representing the value of the shares. 1 But it seems to us that the case scarcely comes within the rule that courts of equity will not decree specific performance of contracts which, although valid at law, operate unequally and unjustly between the parties. In other words, the courts of equity have commonly refused to decree the specific performance of a contract to convey land, where the parties have acted under any misapprehension of material facts either as to the value of the land or the price paid for it. And in the present case, by the decree of the court, the defendant was compelled to part with his land without any just equivalent. The principle of the case would have been the same if the stocks had been entirely valueless. The true doctrine upon this point is that declared in a late case, 2 that where the defendant shows, to the satisfaction of the court, that he entered into the contract under a bond fide misapprehension in a material point, a specific performance will not be decreed. § 793 v. Courts of equity exercise a discretion in regard to decreeing specific performance, and where the title to any portion of the estate fails, or is not of a marketable character, it will not be forced upon the purchaser. 3 And where any of the facts requi- site to determine the location or quantity of land require the con- currence of both the parties in order to be settled, the court will not decree specific performance. 4 So any unreasonable delay on the part of the plaintiff will defeat his claim for specific per- formance. 5 So also where the plaintiff has not been punctual in performing his portion of the contract, and especially where, in the mean time, the value of the property has materially changed, specific performance will not be decreed. 6 The grounds upon 1 Powers v. Mayo, 97 Mass. 180. 6 Houghwont v. Boisaubin, 3 C. E- 2 Cuff v. Dorland, 50 Barb. 438. See Green, 316 ; Hoffman v. Hummer, id. 83. also post, § 793 v, and cases cited. See also Kerr v. Purdy, 54 Barb. 24. 8 Freetly v. Barnhart, 51 Penn. St. 6 Merritt v. Brown, 4 C. E. Green, 286. 279. See also, as to when a tender of the price * C. & A. Railw. v. Stewart, 3 C. E. of the land will be dispensed with in Green 489. form, if not in substance, Kerr v. Perdy, EQ. JUK. — VOL. I. 51 802 EQUITY JURISPRUDENCE. [CH. XVIII. which courts of equity will in their discretion deny specific per- formance is extensively discussed and learnedly presented by Sargent, Justice, in a late case in New Hampshire. The learned judge here enumerates, as grounds upon which the court will decline to grant such relief, fraud, or mistake, a hard and unrea- sonable bargain, great inadequacy of price, or where the decree would in any way produce injustice, or where the party seeking relief has not been prompt and punctual on his part, or where he has once elected to rescind the contract. The distinction between the grounds which will warrant setting aside a contract and refus- ing to decree specific performance are here well presented. 1 ] 50 Barb. 24. Where the contract for con- veying land is unobjectionable in its char- acter, it is as much matter of course for a court of equity to decree specific per- formance, as for a court of law to award damages for the breach of Buch con- tract. Cuff v. Dorland, 50 Barb. 438. 1 Eastman u. Plumer, 46 N. H. 464] END OF VOL. I. NEW HAVEN CO. BAR LIBRARY/ Cambridge : Press of John Wilson & Son.